CHAPTER 33-15-15
 

General Provisions [Repealed] 

Purpose 

Scope 

Reclassification 

Section 

-15-15-01 

33-1 -01.1 

33-15-15­ . 

33-15-15-02 

PREVENTION OF SIGNIFICANT DETERIORATION OF AIR QUALITY 

33-15-15"()1.1. Pur e. The ose of this chapter is to adopt by 

reference federal prov" s for the preventio ignificant deterioration program 

in North Dakota e department will continue to' lement the prevention of 

significant rioration program as part of the state imp ntation plan. 

tory: Effective February 1, 2005. 

General Authority: NDCC 23-25-03, 23-25-04.1 

Law 1m lemented: NDCC 23-25-03, 23-25-04.1 

33-15-15-01.2. Scope. The provisions of 40 Code of Federal Regulations 

part 52, section 21, paragraphs (a)(2) through (e), (h) through (r), (v), (w), (aa), 

and (bb) as they exist on August 1, 2007, are incorporated by reference into this 

chapter. This includes revisions to the rules that were effective by this date but 

had not been published in the Code of Federal Regulations· yet. Any changes or 

additions to the provisions are listed below the affected paragraph. 

For purposes of this chapter, administrator means the department except 

for those duties that cannot be delegated by the United States environmental 

protection agency. For those duties listed below, or any others that cannot 

be delegated, administrator means the administrator of the United States 

environmental protection agency: 

(b)(17) - Definition of federally enforceable. 

(b)(37}(i) - Definition of repowering. 

(b)(42) - Definition of clean unit. 

(b)(43) - Definition of prevention of significant deterioration. 

(b}(48)(ii)(c) - Definition of baseline actual emissions. 

(b)(50)(i) - Definition of regulated NSR pollutant. 

(1 )(2) - Air quality models. 

(p)(2) - Consultation with the federal land manager. 

1 4/2009 
(y)(4)(i) - First sentence only - Comparison to previous BACT and LAER 

determinations. .. r .... 7" 

For purposes of this chapter, permit or approval to construct means a permit 

to construct. The procedures for obtaining a permit to construct are specified in 

section 33-15-14-02 and this chapter. When there is a conflict in the requirements 

between this chapter and section 33-15-14..Q2, the requirements of this chapter 

shall apply. 

For purposes of this chapter, the term "40 CFR 52.21" is replaced with "this 

chapter". 

40 CFR 

52.21 (b)(2)(a) 

The following is deleted: 

Routine maintenance, repair and replacement shall 

include. but not be limited to, any activity(s) that meets 

the requirements of the equipment replacement provisions 

contained in paragraph (cc). 

40 CFR 

52.21 (b)(3)(iii)(a) 

The words "the administrator or otheHeViewiAg 

authority" are replaced with "the department or the 

administrator of the United States environmental 

protection agency". 

40 CFR 

52.21 (b)(14) 

The following is added: 

(v) The department shall provide a list of baseline 

dates for each contaminant for each baseline area. 

40 CFR 

52.21(b)(15) 

The following is added: 

(iv) North Dakota is divided into two intrastate areas 

under section 107(d)(1)(D) or (E) of the Federal 

Clean Air Act [Pub. L. 95-95]: the Cass County 

portion of region no. 130, the metropolitan 

Fargo-Moorhead interstate air quality control 

region; and region no. 172, the North Dakota 

intrastate air quality control region (the remaining 

fifty-two counties). 

40 CFR 

52.21 (b)(22) 

The following is added: 

Designating an application complete for purposes 

of permit processing does not preclude the 

department from requesting or accepting any 

additional information. 

40 CFR 

52.21 (b)(29) 

The following is added: 

This term does not include effects on integral vistas. 

.-

4/2009 2
 
40 CFR 

52.21 (b)(30) 

40 CFR 

52.21 (b)(43) 

40 CFR 

52.21 (b)(48)(ii) 

40 CFR 

52.21 (b)(51) 

40 CFR 

52.21 (b)(53)

.­

40 CFR 

52.21 (b)(54) 

40 CFR 

52.21 (b)(58) 

40 CFR 52.21 (d) 

40 CFR 52.21(e) 

The term section 51.1 OO(s) of this chapter is deleted and 

replaced with "40 CFR 51.100(s)". 

The paragraph is deleted in its entirety and replaced with 

the following: 

Prevention of significant deterioration (PSD) program 

means a major source preconstruction permit program 

administered by the department that has been approved 

by the administrator of the United States environmental 

protection agency and incorporated into the state 

implementation plan pursuant to 40 CFR 51.166 to 

implement the requirements of that section. Any permit 

issued by the department under the program is a major 

NSR permit. . 

The following words are deleted: "by the 

administrator for a permit required under this 

section or", 

The paragraph is deleted in its entirety and replaced with 

the following: 

Reviewing authority means the department. 

This paragraph is deleted in its entirety and replaced with 

the following: 

Lowest achievable emission rate (LAER) has the meaning 

given in 40 CFR 51.165(a)(1)(xiii) which is incorporated by 

reference. 

This paragraph is deleted in its entirety and replaced with 

the following: 

Reasonably available control technology (RACT) has the 

meaning given in 40 CFR 51.100(0) which is incorporated 

by reference. 

This paragraph is deleted in its entirety. 

The paragraph is deleted and replaced with the following: 

No concentration of a contaminant shall exceed 

the ambient air quality standards in chapter 

33-15-02 for those areas subject to regulation 

under this article and the national ambient air 

quality standards in all other areas of the United 

States. 

The folloWing is added: 

3 4/2009
 
40 CFR 52.21 (h) 

40	 CFR 

52.21 (i)(5)(ii) 

40 CFR 52.21 (i) 

40	 CFR 

52.21 (k)(1) 

40 CFR 

52.21(1)(1) 

4/2009
 

(5)	 The class I areas in North Dakota are the 

Theodore Roosevelt National Park - north 

and south units and the Theodore Roosevelt 

Elkhorn Ranch Site in Billings County - and 

the Lostwood National Wilderness Area in 

Burke County. 

The paragraph is deleted and replaced with the 

following: 

The stack height of any source subject to this 

chapter must meet the requirements of chapter 

33-15-18. 

In this paragraph the reference to paragraph 

(i)(8)(i) is replaced with (;)(5)(i). 

The following subparagraphs are added: 

(11)	 The class I area increment limitations of the Theodore 

Roosevelt Elkhorn Ranch Site of the Theodore 

Roosevelt National Park shall apply to sources or 

modifications for which complete applications were 

filed after July 1, 1982. The impact of emissions from 

sources or modifications for which permits under this 

chapter have been issued or complete applications 

have already been filed will be counted against the 

increments after July 1, 1982. 

(12) Provided that all necessary requirements of this article 

have been met, permits will be issued on a first-come, 

first-served basis as determined by the completion 

date of the applications. 

This subparagraph is deleted and replaced with 

the following: 

(1)	 Any ambient air quality standard in chapter 33-15-02 

for those areas subject to regulation under this article 

and the national ambient air quality standards in all 

other areas of the United States; or 

This subparagraph is deleted and replaced with 

the following: 

All estimates of ambient concentrations required under this 

chapter shall be based on applicable air quality models, 

technical data bases (inclUding quality assured air quality 

monitoring results), and other requirements specified in 

appendix w of 40 CFR 51 ("guideline on air quality models" 

as it exists on July 1, 2007) as supplemented by the "North 

Dakota guideline for air quality modeling analyses". These 

documents are incorporated by reference. Technical inputs 

for these models shall be based upon credible technical 

data approved in advance by the department. In making 

such determinations, the department shall review such 

4 
.- technical data to determine whether it is representative of 

actual source, meteorological, topographical, or local air 

quality circumstances. 

40 CFR	 "Appendix B to part 58 of this chapter" is replaced 

52.21 (m)(3)	 with 40 CFR 58, appendix B. 

40 CFR	 The following is added: 

52.21 (0)(1) 

The visibility analysis shall be prepared in 

accordance with chapter 33-15-19. 

40	 CFR "paragraph (q)(4)" is replaced with 

52.21 (p)(6) "paragraph (p)(4)" and "(q)(7)" is replaced 

with "(p)(7)". 

40 CFR	 "paragraph (q)(7)" is replaced with 

52.21 (p)(7)	 "paragraph (p)(7)". 

40 CFR	 "paragraphs (q)(5) or (6)" is replaced with 

52.21 (p)(8)	 "paragraphs (p)(5) or (6)". 

40 CFR 52.21(p)	 The following is added: 

(9)	 Notice to the United States environmental 

protection agency. The department shall 

transmit to the administrator of the United 

States environmental protection agency 

..-.. through the region VIII regional administrator 

a copy of each permit application relating to a 

major stationary source or major modification 

received by the department and provide notice 

to the administrator of every action related to 

the consideration of such permit. 

40 CFR 52.21 (q)	 This paragraph is deleted and replaced with the 

following: 

q.	 Public participation. 

(1)	 Within thirty days after receipt of an application to construct a 

source or modification subject to this chapter, or any addition 

to such application, .the department shall advise the applicant 

as to the completeness of the application or of any deficiency 

in the application or information submitted. In the event of 

such a deficiency, the date of receipt of the application, for the 

purpose of this chapter, shall be the date on which all reqUired 

information to form a complete application is received by the 

department. 

(2)	 With respect to a completed application, the department shall: 

(a)	 Within one year after receipt, make a preliminary 

determination whether the source should be approved, 

5	 4/2009 
- approved with conditions, or disapproved pursuant to 

the requirements of this chapter. 

(b) Make available, in at least one location in each region 

in which the proposed source or modification would 

be constructed. a copy of all materials submitted by 

the applicant, a 'copy of the department's preliminary 

determination, and a copy or summary of other 

materials, if any, considered by the department in 

making a preliminary determination. 

(c) Notify the public, by prominent advertisement in 

newspapers of general circulation in each region in 

which the proposed source or modification would 

be constructed, of the application. the preliminary 

determination, the degree of increment consumption 

that is expected from the source or modification, and the 

opportunity for comment at a public hearing as well as 

written public comment on the information submitted by 

the owner or operator and the department's preliminary 

,determination on the approvability of the source. The 

department shall allow at least thirty days for public 

comment. 

(d) Send a copy of the notice required in subparagraph c 

to the applicant, the United States environmental 

protection agency administrator, and to officials 

and agencies having cognizance over the location 

where the source or modification will be situated as 

follows: the chief executive of the city and county 

where the source or modification would be located; any 

comprehensive regional land use planning agency; and 

any state, federal land manager, or Indian governing 

body whose lands may be significantly affected by 

emissions from the source or modification. 

(e) Hold a pUblic hearing whenever, on the basis of written 

requests, a significant degree of public interest exists 

or at its discretion when issues involved in the permit 

decision need to be clarified. A public hearing would 

be held during the public comment period for interested 

persons, incruding representatives of the United States 

environmental protection agency administrator, to 

appear and submit written or oral comments on the air 

quality impact ofthe source or modification, alternatives 

to the source or modification, the control technology 

reqUired, and other appropriate considerations. 

4/2009 6 
40 CFR 52.21 (r)(2) 

40 CFR 52.21 (r)(6) 

40 CFR 52.21 (v)(1) 

40 CFR 

52.21 (v)(2)(iv)(a) 

(f)	 Consider all public comments submitted in writing 

within a time specified in the public notice required 

in subparagraph c and all comments received at any 

public hearing conducted pursuant to subparagraph e 

in making its final decision on the approvability of 

the application. No later than thirty days after the 

close of the public comment period, the applicant may 

submit a written response to any comments submitted 

by the pUblic. The department may extend the time 

to respond to comments based on a written request 

by the applicant. The department shall consider 

the applicant's response in making its final decision. 

All comments must be made available for public 

inspection in the same locations where the department 

made available preconstruction information relating to 

the source or modification. 

(g)	 Make a final determination whether the source should 

be approved, approved with conditions, or disapproved 

pursuant to the requirements of this chapter. 

(h)	 Notify the applicant in writing of the department's 

final determination. The notification must be made 

ava ilable for public inspection in the same locations 

where the department made available preconstruction 

information and public comments relating to the source 

or modification. 

The following is added: 

In cases of major construction projects involving long 

lead times and substantial financial commitments, the 

department may provide by a condition to the permit 

to construct a time period greater than eighteen 

months when such time extension is supported by 

sufficient documentation by the applicant. 

The word "reasonable" is deleted. 

This sUbparagraph is deleted and replaced with 

the following: 

(1)	 An owner or operator of any proposed major 

stationary source or major modification may request 

the department to approve a system of innovative 

control technology. 

This subitem is deleted and replaced 

with the following: 

7	 4/2009 
(a) Cause or contribute to a violation of an applicable 

ambient air quality standard in chapter 33-15-02 

for those areas subject to regulation under 

this article and the national ambient air quality 

standards in all other areas of the United States; 

or 

40 CFR 

52.21 (w)(1) 

This subparagraph is deleted and replaced with the 

following: 

(1) Any permit issued under this chapter or a prior version 

of this chapter shall remain in effect, unless and until 

it expires under 40 CFR 52.21(r) or is rescinded. 

40 CFR 

52.21(aa)(15) 

This paragraph is deleted in its entirety and 

replaced with the following: 

(i) The department shall not issue a PAL that 

does not comply with the requirements 

in paragraphs (aa)(1) through (15) of 

this section after the administrator of the 

environmental protection agency has 

approved regulations incorporating these 

requirements into the state implementation 

plan. 

(ii) The department may supersede any PAL 

which was established prior to the date of 

approval of the state implementation plan 

by the administrator of the United States 

environmental protection agency with a 

PAL that complies with the requirements 

of paragraphs (aa)(1) through (15) of this 

section. 

History: Effective February 1, 2005; amended effective April 1, 2009. 

General Authority: NDCC 23-25-03, 23-25-04.1 

Law Implemented: NDCC 23-25-03, 23-25-04.1