# - State of

- 

# NorthDakota Office of the Governor 

## J

ack Dalrymple Governor

Lisa P. Jackson, Administrator May 25,2012

c/oJames Martin, Regional Administrator (8RA) U.S. EPA, Region 8 1595 Wynkoop Street Denver, CO 80202-1129
RE: ND State Implementation Plan for 1997 PM2

.sNAAQS and 2008 Lead AAQS
DearAdministratorJackson:
The North Dakota Department ofHealth has reviewed its State Implementation Plan (SIP) for the control ofair pollution to determine ifthe SIP is adequate for implementing the 1997 PM2.s NAAQS and 2008 lead NAAQS. Attached to this letter are documents which demonstrate that the required elements are included in the existing SIP except for the "conflictofinterest" requirements under the Clean Air

### Act§ 128. The Department ofHealth has committed to revise the State Implementation Plan by May 31, 2013 to address the requirements of§ 128

. If

### you have any questions regarding the submittal, please contact Mr. Terry O'Clair, Director, Division ofAir Quality, North Dakota Department ofHealth at 701-328-5188. Sincerely,

C: 

### David Glatt, Chief, Environmental Health Section Terry O'Clair, Director, Division ofAir 

### Quality
37:68:56

600 E Boulevard Ave. • Bismarck, ND 58505-0001 • Phone: 701.328.2200 • Fax: 701.328.2205 • www.governor.nd.gov

### North Dakota Certification Clean Air Act Section 110(a)(1) and (2) Requirements 2008 LeadNAAQS

Under the Clean Air Act (CAA), States must submit State Implementation Plans (SIPs) to assure compliance with the National Ambient Air Quality Standards (NAAQS). Sections 110(a)(1) and (2) of the Clean Air Act (CAA) require states to adopt and submit to the U.S

. EPA

"infrastructure" SIPs that address basic program elements to implement, maintain, and enforce new or revised standards including requirements for emissions inventories, monitoring, and modeling among other elements. Each ofthe basic or infrastructure requirements is listed below along with the corresponding State regulation, State statute or SIP element that implements the requirement.
Emission limits and other control measures: 

### Section 110(a)(2)(A) of the Clean Air Act requires SIPs to include enforceable emission limits and other control measures, means or techniques, schedules for compliance, and otherrelated matters.
The North Dakota Air Pollution Control Rules (NDAC 33-15) establishes control requirements for lead (Pb) indirectly through the control ofparticulate matter (PM) emissions. The following regulations address the required control measures, means and techniques. Chapter
33-15-01

33-15-02

33-15-03

33-15-04 General Provisions
This chapter establishes prohibitions against creating air pollution and provides for the enforcement ofall air pollution control rules

. The chapterprovides that all excess emissions, including emission during startup/shutdown and malfunction, are subject to enforcement action

. AmbientAir Quality Standards This chapter establishes a state ambient air quality standard (SAAQS) for lead that is identical to the NAAQS.
Restriction ofEmission ofVisible Air Contaminants
The chapter establishes visible emissions standards for bothpoint and area sources, including sources oflead emissions. Open Burning Restrictions
The chapterprohibits the open burningunless specifically authorized

.

1

### 33-15-05

33-15-12

33-15-13

33-15-14

33-15-15

33-15-17

33-15-18

33-15-19

33-15-21 Emissions ofParticulateMatter Restricted
The chapter establishes PM emission limits for fuel burning and industrial process type sources
. Standards ofPerformance for New Stationary Sources
The chapter incorporates byreference the standards in 40 CFR 60.
Emission Standards for Hazardous AirPollutants
The chapter incorporates the standards in 40 CFR 61. Designated Air Contaminant Sources,Permitto Construct,Minor Source Permitto Operate, Title V Permitto Operate
The chapterprovides a preconstructionpermittingprogram for both major and minor sources, a federally enforceable state operatingpermitprogram (FESOP) for minor sources, and a Title V Permitto Operate programfor major sources. Prevention ofSignificantDeterioration ofAir Quality
The chapterincorporatesbyreference the PSDrequirements in 40 CFR52.21.
Restriction ofFugitiveEmissions
The chapter establishes criteria for the control offugitive emissions (including lead emissions).
StackHeights
The chapterprohibits dispersion ofair contaminants through the use ofstacks that exceed good engineeringpractice (GEP). Visibility Protection
The chapter establishes requirements for the review ofmajor stationary sources and prohibits a source from having an adverse impact on any Class I 

### area
. Acid Rain Program
This chapter incorporates by reference the requirements of40 CFR 72, 75 and 76. Control of sulfur dioxide and nitrogen oxides may indirectly control lead emiSSIOnS

.

2

### 33-15-22

33-15-25 Emission Standards for Hazardous AirPollutants for Source Categories This chapterincorporates by reference the standards in 40 CFR 63. Regional Haze Requirements
The chapterprovides for the application ofBestAvailable Retrofit Technology (BART) to affected sources. A copy ofthese rules are attached to this analysis.
The North Dakota Century Code (NDCC), Chapter 23-25, Air Pollution Control (Appendix B of SIP), in Section 23-25-03 provides the following general authority to regulate sources of Pb. This section states thatthe Department shall:


### NDCC23-25-03.6- Provide rules andregulations relating to the construction of any new direct or indirect air contaminant source or modification ofany existing direct or indirect air contaminant source which the Department determines will prevent the attainment ormaintenance of any ambient airquality standard, andrequire thatprior to commencing construction or modification ofany such source, the owner or operator

· thereof shall submit such information as may be necessary to permit the Department to makesuch determination.
NDCC23-25-03.7

- 

### Establish ambient airqualitystandardsfor the state which may vmy according to appropriate areas. NDCC 23-25-03.8

- Formulate andpromulgate emission control requirementsfor the prevention, abatement, andcontrol of airpollution in this state including achievement of ambientairqualitystandards.
Ambient air gualitv monitoring/data system: 

### Section 110(a)(2)(B) ofthe CAA requires SIPs to provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to monitor, compile, and analyze data on ambient air quality, and upon request, make such data available to EPA.
The 2011 Annual Monitoring Network Plan for North Dakota (submitted to EPA in July, 2010 and approved September 2010) provides for an ambient air quality monitoring system in the State. Because North Dakota has no significant sources of Pb (2: 

### 0

.5 tpy), no Core Based Statistical Areas (CBSA) with a population of 500,000 or more, and no airports listed in Appendix D of40 CFR 589 (Table D-3A), no ambient monitoring for Pb is required. Therefore, there is no duty to correlate ambient monitoring data to emission limits for stationary sources. If necessary, the Department can establish ambient monitoring sites for Pb.
NDCC 23-25-03 provides the authority for the Department to conduct ambient air monitoring. This subsection states thatthe Department shall:

3

### NDCC 23-25-03.2

- Determine by scientifically oriented field studies andsampling the degree of airpollution in the state andthe severalparts thereof
NDCC 23-25-03.10

- Require the owner or operator ofa regulated air contaminant source to establish and maintain such records; make such reports; install , use, and maintain such monitoring equipment or methods; sample such emissions in accordance with such methods, at such locations, intervals, andprocedures; andprovide such other information as may be required.


### Ambient monitoring is covered in Chapter 6 ofthe North Dakota SIP. It

### provides fon the design and operation ofa monitoring network,reporting ofdata obtained from the monitors, and annual network review including notification to EPA of any changes, and public notification of exceedances ofNAAQS. Program for enforcement ofcontrol measures: 

### Section 110(a)(2)(C) requires SIPs to include a program providing for enforcement ofall SIP measures and the regulation ofconstruction of new or modified stationary sources as necessary to assure that the NAAQS are achieved, including apermitprogram as required in parts C and D.
NDCC 23-25-10, Enforcement

- Penalties

- Injunctions, provides authority for enforcement of the North Dakota Air Pollution Control Rules (NDAPCR) and specifies the potential penalties for such violation. NDAC 33-15-01-17, Enforcement, provides general interpretation of enforcement ofthe NDAPCR. The following regulations within the NDAPCR and the North Dakota SIP provide for the permitting ofsources oflead:
NDAC 33-15-14-02 NDAC 33-15-14-03 NDAC 33-15-14-06 NDAC 33-15-15 Permitto Construct Minor Source Permit to Operate Title V Permitto Operate Prevention ofSignificantDeterioration
NDAC 33-15-15 contains all federal PSD regulations through July 2, 2010

. These rules also incorporate EPA's Tailoring Rule. The rules are being updated as part ofa SIP revision to be submitted separately in 2012. NDAC 33-15-14-02 and 33-15-14-03 provide a preconstruction and operating permitprogram for minor sources oflead emissions. Authority for the permitting programs is found in NDCC 23-25-03 which states that the Department shall:
NDCC23-25-03.6- Provide rules andregulations relating to the construction of anynew direct or indirect air contaminant source or modification ofany existing direct or indirect air contaminant source which the Department determines will prevent the attainment or maintenance ofany ambient air standard, and require that prior to commencing construction or modification ofany such source, the owner or operator



### 4

# I

.

thereofshall submit such information as may be necessary to permit the Department to makesuch determination.
and


### NDCC23-25-04.1- Permits andRegistration
I. ljo person shall construct, install, modify, use or operate an air contaminant source designated by regulation, capable ofcausing or contributing to air pollution, eitherdirectly or indirectly, without apermit from the Department or in violation of any conditions imposedbysuchpermit.
2. The Department shall providefor the issuance, suspension, revocation, and renewalof anypermits which it may requirepursuant to this section.
3. The Department may require that applications for such permits shall be accompanied byplans, specifications, and such other information as it deems necessa1y.
4. Possession of an approvedpermit or registration certificate does not relieve any person of the responsibility to comply with applicable emission limitations orwith any otherprovision oflaw or regulations adoptedpursuant thereto anddoes not relieve any person from the requirement that that person possess a valid contractor's license issuedunder Chapter43-07.
5. The Department by rule or regulation may provide for registration and registration renewal ofcertain air contaminant sources in lieu ofthe permit requiredpursuant to this section.
6. The Department may exempt by rule or regulation certain air contaminant sources from thepermitor registration requirements set forth in this section when the Department makes a finding that the exemption ofsuch sources ofair contaminants willnot be contrary to section 23-25-01.1.
Interstate transport: Section 110(a)(2)(D) of the CAA requires SIPs to contain adequate provisiOns prohibiting any source or other type of emissions activity in one State from 1) contributing significantly to nonattainment of the National Ambient Air Quality Standards (NAAQS), 2) interfering with maintenance ofthe NAAQS, and 3) interfering with measures required to prevent significant deterioration or interfering with the implementation of plans related to regional haze or visibility in another State. The following regulations and SIP provisions address interstate transport:
NDAC 33-15-15 NDAC 33-15-19 NDAC 33-15-25 Prevention ofSignificantDeterioration Visibility Protection Regional Haze Requirements



### 5

### SIP Section 7.8 SIP Interstate Transport ofAirPollution North Dakota State Implementation Plan for Regional Haze (February 24, 2010)

NDCC 23-25-03 states that the Department shall:
NDCC 23-25-03.6- Provide rules and regulations relating to the construction ofany new direct or indirect air containment source or modification ofany existing direct or indirect air containment source which the Department determines will prevent the attainment or maintenance of any ambient air quality standard, andrequire thatprior to commencing construction or modification ofany such source, the owner or operator thereofshall submit such information as may be necessary topermit the Department to makesuch determination.
A. 

### Significant Contribution Requirement ofSection 110(a)(2)(D)(i)(I).
Section 110(a)(2)(D)(i)(I) specifically provides that each state's SIP must contain adequate provisions to prohibit air pollutant emissions from within the state that significantly contribute to nonattainment ofthe NAAQS in any other state. The state's submission must explain whether or not emissions from the state have this impact and, if so, address the impact.
The nearest lead nonattainment area to North Dakota is the Eagan, Minnesota area which includes aportion ofDakota County. The Eagan area is approximately 185 miles from the North Dakota border. EPA believes that requirements of subsection (2)(D)(i)(I) (prongs 1 and 2) could be satisfied through a state's assessment as to whether or not emissions from Pb sources located in close proximity to their state borders (e.g. within 2 miles) have emissions that impact the neighboring state such that they contribute significantly to nonattainment by having a emissions threshold of 0.5 tons per year or greater orinterfere with maintenance on that state1• 

### North Dakota has few sources oflead located within 2 miles ofthe Minnesota border. The following sources emit lead, or lead compounds, due to the combustion ofcoal and include the following:
2010 Approximate Distance to Lead Emissions NearestNonattainment Source (tons)* Area (miles) 

### American Crystal Sugar

- 0.028 310 Drayton

1

### Memorandum issued by Stephen Page, OAQPS, "Guidance on Infrastructure State Implementation Plan (SIP) Elements Required Under Sections 110(a) (1) and (2) for the 2008 Lead (Pb) National AmbientAir Quality Standards (NAAQS); October, 2011.

6

### 2010 Approximate Distance to Lead Emissions NearestNonattainment Source (tons)* Area (miles) 

### University ofNorthDakota 0

.010 285 North Dakota State 0

.007 225 University Minn-Dak Farmers Coop. 0

.031 200 ND State School ofScience 0.001 200 Sanford Medical Center < 

### 0.0001 225 *Basedon AP-42 emission factors
The small quantity oflead emissions and the large distance to Dakota County, Minnesota indicates that sources in North Dakota will not significantly contribute to this nonattainment area. There are no sources oflead within 2 miles ofthe border with South Dakota and Montana than have emissions greater than 0

.001 tons peryear. B. 

### Interfere with Maintenance Requirement ofSection 110(a)(2)(D)
Section 110(a)(2)(D)(i)(I) specifically provides that each state's SIP must contain adequate provisions to prohibit air pollutant emissions from within the state that interfere with maintenance ofthe NAAQS in any other state. States' submission must address this independent requirement ofthe statute. This provision requires evaluation ofimpacts on areas of other states that are meeting the lead NAAQS, not merely areas formerly designated nonattainment that are subject to maintenance SIP. Therefore, the SIP must explain whether or not emissions from the state have this impact and, ifso, address the impact.
North Dakota has no significant sources oflead**~** 

### 0

.5 tons/yr) lo"cated within 2 miles of the borders with Minnesota, South Dakota or Montana. No source would have lead emissions greater than 0.031 tons per year. Therefore, North Dakota sources will not interfere with these states ability to maintain compliance with the NAAQS for lead.
C

. PSD sub-element of 110(a)(2)(D)(i)(II) and 110(a)(2)(J):
These sections require that sources in North Dakota may not interfere with measures required to be included in the SIP for any other State under Part C to prevent significant deterioration of air quality and requires North Dakota to have in place a prevention of significant determinationprogram for sources in the North Dakota.
The Department has adopted the Federal PSD rules by reference as they exist on July 2, 2010. The Department is in the process of adopting the PSD rules as they exist on January 1, 2012. This will incorporate all existing requirements

. The PSD rules require compliance with the 2008 lead NAAQS incorporated in NDAC 33-15-02.
D. Visibility sub-element of 110(a)(2)(D)(i)(II) and 110(a)(2)(J):

7

### These sections require that sources in North Dakota may not interfere with measures required for any other state for visibility protection and requires North Dakota to have inplace measures to protect visibility in North Dakota Class I areas. North Dakota has in place a SIP to address visibility impairment for major source (PSD) permitting (NDAC 33-15-15), specific visibility impairment (RAVI) and plume blight (NDAC 33-15-19). To date, no sources in North Dakota have been identified as causing "reasonably attributable visibility impairment" in any Federal Class I area. The Department has prepared and submitted to EPA (March 3, 2010) a SIP revision to address regional haze for the current planning period

. This includes a long-term strategy which provides for improvement in the most impaired days and no degradation in the least impaired days.
Section 110(a)(2)(D)(ii): Interstate and International TransportProvisions:


### Section 110(a)(2)(D)(ii) requires that each plan include measures that ensure compliance with the applicable requirements of Sections 136 and 115 relating to interstate and international pollution abatement. Section 126(a) ofthe Clean Air Act (CAA) requires each SIP to include provisions to notify neighboring states ofpotential impacts from anew or modified source. The North Dakota PSD rules provide for notifying neighboring states whose land may be significantly affected by emissions from a new or modified source. NDAC 33-15-15- 01.2(q)(2)(d) states: NDAC-33-15-15-0l.(q)(2)(d)- Send a copy ofthe notice required in subparagraph c to the applicant, the United States environmentalprotection agency administrator, and to officials and agencies having cognizance over the location where the source or modification will be situatedasfollows: the chief executive of the city andcounty where the source or modification would be located; any comprehensive regional land use planning agency; andany state,federal land manager , orIndian governing body whose lands may besignificantlyaffectedbyemissions from the source ormodification.
Similar notification requirements are provided for minor sources under NDAC 33-15-14- 02.6.b(4). Adequate personnel, funding and authority: 

### Section 11O(a)(2)(E) ofthe CAA requires states to provide for adequate personnel, funding and legal authority under State law to carry out its SIP and related issues.
The authority for the Department to carry out the requirements ofthe SIP is found in NDCC 23- 25-03 which states:
23-25-03. Powerandduties to theDepartment. The Departmentshall:

8

### • Encourage the voluntary cooperation of persons oraffectedgroups to achieve the purposes of this chapter.

• Determine by scientifically oriented field studies andsampling the degree of air pollution in the state andthe severalparts thereof

• Encourage and conduct studies, investigations, and research relating to air pollution andits causes, effects,prevention, abatementandcontrol.

• Advise, counsel, and cooperate with other public agencies and with affected groups andindustries.

• Issue such orders as may be necessary to effectuate thepurposes ofthis chapter andenforce the same byallappropriate administrative and judicialprocedures.

• Provide rules and regulations relating to the construction ofany new direct or indirect air contaminant source ormodification of any existing direct or indirect air containment source which the Department determines will prevent the attainment ormaintenance of any ambient air qualitystandards, andrequire that prior to commencing construction ormodification of any such source, the owner or operator thereof shall submit such information as may be necessary topermit the Department to makesuch determination.

• Establish ambient airqualitystandardsfor the state which may vary according to appropriateareas.

• Formulate andpromulgate emzsszon control requirementsfor the prevention, abatement, and control ofair pollution in the state including achievement of ambientairqualitystandards.

• Hold hearings relating to any aspect or matter in the administration ofthis chapter, and in connection therewith, compel the attendance of witnesses andthe production of evidence.

• Require the owner or operator of a regulatedair containment source to establish and maintain such records; make such reports; install, use and maintain such monitoring equipment or methods; sample such emissions in accordance with such methods, at such locations, intervals, andprocedures; andprovide such other information as may be required.

• Provide by rules and procedures necessary and appropriate to develop, implement, and enforce any air pollution prevention and control program established by the Federal Clean AirAct, as amended, and the authorities and responsibilities ofwhich are delegatable to the state by the United States environmentalprotection agency. Such rules may include any andall enforceable
9

### ambient standards, emzsswn limitations, and other control measures, means, techniques, or economic incentives such asfees, marketablepermits, andactions ofemission rights as provided by the Act. The Department shall develop and implement suchfederalprograms 

## ifthe Department determines there is a benefit to the state.

• Provide by rules a program for implementing lead-based paint remediation training, certification andperformance requirements in accordance with title 40, Code of FederalRegulations,part 745, sections 220, 223, 225, 226, 227and233.
In addition,NDAC 33-15-01-03 states:


### NDAC 33-15-01-03. Authority. The North Dakota State Department of Health has been authorized to provide and administer this article under theprovisions of North Dakota Century Code chapter23-25.
The provisions ofthe SIP are carried out by the Department ofHealth. The only portion ofthe SIP that has been delegated is approval ofopen burning requests. Several local Health Districts have been delegated this authority. There are no other agencies, departments or local units that have been delegated authority to develop any portion ofthe SIP.
NDAC 33-15-23, Fees, provides the regulatory mechanism for requiring stationary sources that emit air pollutants to pay a fee based on the quantity ofemissions emitted. Fees are collected annually from both major sources and minor sources. In 

### addition, fees are charged for reviewing applications for the construction ofnew or modified sources. Title V fees are adjusted annually to match the change in the consumerprice index.
The Department does not anticipate the construction ofany new significant (2: 

### 0.5 tons/yr) lead emission sources during the next five years. Therefore, no additional personnel will be required to assure compliance with the Pb NAAQS. The Department currently has 11 people dedicated to permitting ofnew or modified sources ofair pollution and the enforcement ofthe air pollution control rules. In addition, another 5people are dedicated to monitoring air quality.
NDCC 23-25-04.2 provides the statutory authority for collectingfees.


### NDCC 23-25-04.2, Fees

- Deposit in operatingfund. The Department by rule or regulation mayprescribe andprovidefor thepayment andcollection of reasonablefees for the issuance of permits or registration certificates. The permit or registration certificatefees must be based on the anticipated cost of filing and processing the application, oftaking action on the requestedpermit or registration certificate, and conducting an inspectionprogram to determine compliance or noncompliance with the permit or registration certificate. Any moneys collected forpermit or registrationfees must be deposited in the Department operatingfund in the state treasury andmust be spentsubject to appropriation by the legislativeassembly

.

10

### Resources for the operation ofthe air pollution control program are also addressed in Section 9 of the SIP which was updated in April 2009. The Department has determined that it has adequate resources to implement the 2008 Pb NAAQS. The Department has addressed the legal authority to collect fees necessary to implement the air pollution control program in section 2.11 ofthe SIP.
The regulations that control emissions of lead or lead compounds are described in the section titled "Emission limits and othercontrol measures".
In North Dakota there are no boards, or any other body, that approves permits or enforcements. The State Health Officer is the head of the State Health Department which includes the Air Pollution Control program. NDCC 23-01-05 states "The State Health Officer may not engage in any occupation or business that may conflict with the statutory duties of the state health officer.

..". NDCC 23-01-05 is contained in Appendix B of the SIP. The Department has committed to revise the SIP to require that any conflict of interest by anyone that approves permits or enforcement actions mustbe disclosed (See attachment 21). Stationary source monitoring system: 

### Section 11O(a)(2)(F) of the CAA requires states to establish a system to monitor emissions from stationary sources and to submit periodic emission reports.
The following State regulations require monitoring of emissions from stationary sources, recordkeeping and reporting ofemissions and monitoring data:
NDAC 33-15-14-02.9 NDAC 33-15-14-03.6 NDAC 33-15-14-06.5 Statutory authority for the monitoring IS 

### found 

### m NDCC 23-25-03 which states that the Department shall:


### NDCC 23-25-03.10

- Require the owner or operator ofa regulated air containment source to establish and maintain such records; make such reports; install, use and maintain such monitoring equipment or methods; sample such emissions in accordance with such methods, at such locations, intervals, andprocedures; andprovide such other information as may be required.
Source surveillance is also addressed in Chapter 8 ofthe SIP. This chapter provides for the permitting ofsources, inspection ofthe sources and compliance determinations. Emergency episodes: 

### Section 110(a)(2)(G) ofthe CAA requires states to provide for authority to address activities causing imminent and substantial endangerment to public health, including contingencyplans to implementthe emergency episode provisions in their SIPs. NDAC 33-15-11, Prevention of Air Pollution Emergency Episodes, provides the means to implement emergency air pollution episode measures and is authorized by NDCC 23-25-03 which states thatthe Department shall:

11

### NDCC 23-25-03.5

- Issue such orders as may be necessary to effectuate thepurposes of this chapter and enforce the same by all appropriate administrative andjudicial procedures.


### NDCC 28-32-32 (Appendix B ofSIP) states that in an emergency, the administrative agency (the Department) may take action pursuant to a specific statute as is necessary to prevent or avoid imminentperil to public health, safety orwelfare.
In addition, NDCC 23-25-08 states "when an emergency exists requiring immediate action to protect thepublic health and safety, the Department ma y, without notice or hearing , issue an order reciting the existence ofsuch emergency and requiring that such action be taken as is necessary to meet this emergency." 

### North Dakota does not have any stationary sources that emit a significant amount oflead, or lead compounds. The primary source, although small, is the combustion of coal. Other minor sources include catalyst recycling and fugitive dust emissions. The Department believes these sources are such minor sources oflead that a contingency plan is not required. The Department believes the emissions of PM 10 

### and PM2
.5 

### from coal combustion sources will present an endangerment to public health before lead emissions from coal combustion do. North Dakota has in place abatement strategies for PM 10 

### in NDAC 33-15-11 which address coal combustion.
Future SIP revisions: 

### Section 11O(a)(2)(H) ofthe CAA requires states to have the authority to revise their SIPs in response to changes in the NAAQS, availability ofimproved methods for attaining the NAAQS, or in response to an EPA finding that the SIP is substantially inadequate.
NDCC 25-25-03 states that the Department shall:
NDCC 23-25-03.8

-Formulate andpromulgate emission control requirementsfor the prevention, abatement andcontrol of airpollution in this state including achievement of ambientairqualitystandards.
NDCC 23-25-03.12

- Provide by rules an y procedures necessmy and appropriate to develop, implement , and enforce any air pollution prevention and control program established b y the Federal Clean Air Act, as amend ed, and the authorities and responsibilities of which are delegatable to the state by the United States environmental protection agency. Such rules may include any andall enforceable ambient standards, emission limitations, and other control measures, means, techniques, or economic incentives such asfees, marketablepermits, andauctions of emissions rights asprovided by theAct. The Departmentshall develop andimplementsuch asfederalprograms 

## if the Departmentdetermines there is a benefit to thestate.


### The North Dakota SIP, Section 1.14, commits the Departmentto making the necessary revisions. Section 1.14 states "The Department will revise this implementation plan as may be necessary to take account of revisions of the National Ambient Air Quality Standards (both primary and secondary) or the availability of improved or more expeditious methods of attaining these

12

### standards

. The Department will also revise the implementationplan whenever the Administrator of the United States Environmental Protection Agency finds, on the basis of information available to the Administrator, that the plan is substantially inadequate to attain the National Ambient Air Quality Standards which it implements or to otherwise comply with additional requirements established under the Federal Clean Air Act. The Department·will make such revision only ifthe finding ofthe Administrator is in accordance with the requirements ofthe Federal Clean AirAct."


### Consultation with government officials: Section 110(a)(2)(J) ofthe CAA requires states to provide a process for consultation with local governments, designated organizations and federal land managers (FLMs) carrying out NAAQS implementation requirements pursuant to section 121 relative to consultation.
North Dakota has no transportation control plans, maintenance plans or nonattainrnent areas. For preconstruction review, the public participation procedures of NDAC 33-15-14-02.6 are followed for minor sources. For sources subject to PSD review, the public participation procedures in paragraph (q) ofNDAC 33-15-15-01.2 are followed

. Both NDAC 33-15-14-02

.6 and 33-15-15-01.2(q) require notification ofthe chiefexecutive ofthe city or county a source is proposing to locate, any regional land use planning agency, and any state, federal land manager or Indian body whose lands will be significantly affected by a proposed source's emissions

. Consultation with the FLMs for PSD projects is accomplished in accordance with 40 CFR 52.21 (p) which is incorporated by reference into NDAC 33-15-15-01.2

. For enforcement orders, the requirements of NDCC 23-25-08 and NDCC 28-32 are followed. Consultation with other government agencies is addressed in Chapter 10 ofthe SIP

. This Chapter ofthe SIP commits the Department to consultation with adjacent state, local government and other state agencies whenever a SIP revision is required

. 

### Public notification: Section 11O(a)(2)(J)

.ofthe CAA further requires states to notify the public ifNAAQS are exceeded in an area and to enhance public awareness of measures that can be taken to prevent exceedances

. The North Dakota SIP, Section 6

.9, commits the Department to notification ofthe public, on a regular basis, whenever an ambient air quality standard is exceeded. The public will be advised ofthe potential health effects, measures which can be taken to prevent future exceedances, and ways they can participate in the regulatory and other efforts to improve air quality. The authority for this notification is found in NDCC 23-25-06. In addition, NDAC 33-15-11-03.1 requires the Department to notify the public whenever an air pollution emergency has been determined to exist.


### PSD and visibilitv protection: Section 110(a)(2)(J) of the CAA requires states to meet applicable requirements ofPart C related to prevention ofsignificant deterioration and visibility protection.
The Department has updated the SAAQS for lead in NDAC 33-14-02 (April, 2011) to be identical to the 2008 NAAQS. Pursuant to NDCC 33-15-15-01.2(k)(i), a PSD applicant must demonstrate compliance with the SAAQS including the 2008 lead NAAQS. The Departmenthas

13

### also adopted the "Tailoring Rule" for greenhouse gases (April, 2011). PSD applicants must address any applicable requirements for greenhouse gases.
The Department has submitted it Regional Haze SIP (March, 2010). In addition, visibility impacts must be addressed by a PSD applicant in accordance with NDAC 33-15-15-01.2(o) and (p).


### Air quality modeling/data: Section 110(a)(2)(K) requires SIPs to provide for the performance ofair quality modeling for predicting effects on air quality ofemissions ofany NAAQS pollutant and the submission ofsuch data to EPA upon request.
Air quality modeling is addressed in Section 7.7 ofthe North Dakota SIP. This section commits the Department to performing air quality modeling to predict the impact of a source on air quality. The section also commits the Department to providing data to EPA on air quality modelingupon request. Modeling for minor sources is addressed in NDAC 33-15-14-02.4 while modeling for majorPSD sources is address in 40 CFR 52.21(k), 

### (1), (m), (n) and (o) a· s incorporated into NDAC 33-15-15- 01.2. Authority for requiring modeling is in NDCC 23-25-03 which states the Department shall:


### NDCC 23-25-03-02

- Determine by scientifically oriented fieldstudies andsampling the degree of airpollution in the state andthe severalparts thereof
and


### NDCC 23-25-03-12

- Provide by rules andprocedures necessary and appropriate to develop, implement, and enforce any air pollution prevention and control program established by the Federal Clean Air Act, as amended, and the authorities and responsibilities of which are delegateable to the state by the UnitedStates Environmental ProtectionAgency. Such rules may include any andall enforceable ambient standards, emissions limitations, and other control measures, means, techniques, or economic incentives such asfees, marketablepermits, andauctions of emissions rights asprovided by the Act. The Department shall develop and implement suchfederalprograms 

## ifthe Departmentdetermines there is a benefit to the state. Permitting fees: Section 110(a)(2)(L) requires SIPs to include a requirement for each major stationary source to pay permitting fees to cover the cost of reviewing, acting upon, implementing and enforcing a permit until such fee requirement is superseded by EPA approval ofa fee programunder Title V ofthe Clean AirAct.
NDAC 33-15-23, Fees, establishes fees for processing Permit to Construct applications, annual operating fees for minor sources and fees for major sources under the Title V Permit to Operate program. These fees are used for reviewing, approving, implementing and enforcing a permit. The authority for the fees is found inNDCC 23-25-04.2.

14

### NDCC 23-25-04.2. Fees

- Deposit in operatingfund: The Department by rule or regulation mayprescribe andprovidefor thepayment andcollection of reasonablefees for the issuance ofpermits or registration certificates. The permit or registration certificatefees for the issuance ofthe anticipated cost of filing andprocessing the application, oftaking action on the requestedpermit or registration certificate, and conducting an inspectionprogram to determine compliance or noncompliance with the permit or registration certificate. Any moneys collected forpermit or registrationfees must be deposited in the Department operatingfund in the state treasury and must be spentsubject to appropriation by the legislative assembly.
The Department collects fees for reviewing permit applications, annual minor source Permit to Operate fees and Title V Permit to Operate fees. North Dakota's Title V Permit to Operate programreceived full approval from EPA effective August 16, 1999 (64 FR 32433). 

### Consultation/participation by 

### affected local entities: Section 11O(a)(2)(M) requires SIPs to provide for consultation and participation in SIP development by local political subdivisions affectedby the SIP.
No other state or local entities are responsible for developing the SIP. Implementation and enforcement ofopen burning request approvals has been delegated to several local health units. The Departmentretains responsibility for ensuring adequate implementation ofall SIP revisions. No otherportions ofthe SIP have been delegatedto other organizations.
The North Dakota SIP, Chapter 10, addresses the consultation process the Departmentwill use to coordinate with local political subdivisions that are affected by any SIP revisions. NDCC 23-25- 03 also requires consultation by stating that the Department shall:


### NDCC23-25-03.4-Advise, consults andcooperates with otherpublic agencies andwith affectedgroups andindustries. Intergovernmental cooperation, Section 10 of North Dakota's SIP, addresses the process for sharing information and working with othergovernment agencies. Regarding SIP and rule revisions, NDCC 23-25-02.6 requires public notice, the opportunity for public comment, and a public hearing. It 

### states: "The advisory council shall hold a public hearing to consider and recommend the adoption, amendment, or repeal ofrules, regulations , and standards as provided in this chapter. Notice of such public hearing or hearings must be given by publication of a notice of such hearing or hearings in each of the official county newspapers within the state ofNorthDakotaby at least two publications, one week apart, the last publicationbeing at least thirty days prior to the first hearing. The hearing or hearings must be held in the state capitol in Bismarck and interested parties may present witnesses and other evidence pertinent and relevant to proposed rules, regulations and standards. The advisory council shall consider any other matters related to the purposes ofthis chapter and may make recommendations on its own initiative to the Department concerning the administration ofthis chapter."

15

### North Dakota has no nonattainment areas
. Therefore, consultation with affected entities is not required for transportation conformity or other nonattainment area SIP requirements

.

16

### Attachments
1. NDCC 23-01
2

. NDCC 23-25
3

. NDCC 28-32
4. NDAC 33-15-01
5. NDAC 33-15-02
6

. NDAC 33-15-03
7. NDAC 33-15-04
8

. NDAC 33-15-05
9. NDAC 33-15-11
10. NDAC 33-15-12
11. NDAC 33-15-13
12

. NDAC 33-15-14
13

. NDAC 33-15-15
14

. NDAC 33-15-17
15. NDAC 33-15-18
16

. NDAC 33-15-19
17

. NDAC 33-15-21
18

. NDAC 33-15-22
19

. NDAC 33-15-23
20

. NDAC 33-15-25
21. Section 128 CommitmentLetter
22. Public ParticipationDocumentation

17

### a
. Abbreviated Public Notice
b. Full Public Notice

c. Press Release
d. Website Notice

e. Affidavit ofPublication


### f. Invoice ofPublication

g. List ofHearing attendees


### h. Hearing transcript

1. 

### Response to Public Comments


### J. Certification ofHearing

18

## I

- TITLE 23 HEALTH AND SAFETY 

### CHAPTER 23-01 STATE DEPARTMENT OF HEALTH
23-01-01. State department of health - Officers. The state department of health consists of a health council, a state health officer, section chiefs, directors of divisions, and other employees ofthe department.
23-01-01.1. State department of health to replace state department of health and consolidated laboratories. Wherever the terms "North Dakota state department of health", "department of health", "health department", "state department of health and consolidated laboratories", "North Dakota state laboratories department", "state laboratories department", "state laboratories department director", or "state laboratories director" appear in this code, the term "state department of health" must be substituted therefor. Wherever the terms "state food commissioner and chemist" and "commissioner" when referring to the state food commissioner and chemist appear in chapters 19-17 and 19-18, the term "state department of health" must be substituted therefor

. 23-01-01.2. State department of health designated primary state environmental agency. The state department of health is the primary state environmental agency. 23-01-02. Health council - Members, terms of office, vacancies, compensation, officers, meetings. The health council consists of eleven members appointed by the governor in the following manner: four persons from the health care field, five persons representing consumer interests, one person from the energy industry, and one from the manufacturing and processing industry. The governor may select members to the council from recommendations submitted by trade, professional, and consumer organizations. On the expiration of the term of any member, the governor, in the manner provided by this section, shall appoint for a term ofthree years, persons to take the place of members whose terms on the council are about to expire. The officers ofthe council must be elected annually. Any state agency may serve in an advisory capacity to the health council at the discretion of the council. The council shall meet at least twice each year and at other times as the council or its chairman may direct. The health council shall have as standing committees

. any committees the council may find necessary. The chairman of the council shall select the members of these committees

. The members of the council are entitled to receive sixty-two dollars and fifty cents as compensation per day and their necessary mileage and travel expenses as provided in sections 44-08-04 and 54-06-09 while attending council meetings or in the performance of any special duties as the council may direct. The per diem and expenses must be audited and paid in the manner in which the expenses of state officers are audited and paid

. The compensation provided for in this section may not be paid to any member ofthe council who received salary or other compensation as a regular employee of the state, or any of its political subdivisions, or any institution or industry operated by the state.
23-01-02.1. Hospital utilization committees - Internal quality assurance review committees - Reports -Immunity. Repealed by S.L. 1997, ch. 234, 

### § 5.
23-01-03. Powers and duties of the health council. The health council shall: 1. Fix, subject to the provisions of section 23-01-02, the time and place of the meetings ofthe council.
Page No.12. Make rules and regulations for the government of the council and its officers and meetings

. 3. Establish standards, rules, and regulations which are found necessary for the maintenance of public health, including sanitation and disease control. 4

. Provide for the development, establishment, and enforcement of basic standards for hospitals and related medical institutions which render medical and nursing care, and for the construction and maintenance of such institutions, such standards to cover matters pertaining to sanitation , building construction, fire protection measures, nursing procedures, and preservation of medical records. No rule may be adopted with respect to building construction of existing medical hospitals or related medical institutions unless the rule relates to safety factors or the hospital or related medical institution changes the scope of service in such a way that a different license is required from the department pursuant to rules adopted under chapter 23-16. 5. Hold hearings on all matters brought before it by applicants and licensees of medical hospitals with reference to the denial, suspension , or revocation of licenses and make appropriate determination as specified herein

. The council may direct the state health officer to do or cause to be done any or all ofthe things which may be required in the proper performance of the various duties placed upon the state department of health

. 23-01-03.1. Newborn metabolic and genetic disease screening tests. The health council may authorize the use of newborn metabolic and genetic disease screening tests, as provided for in chapter 25-17,for research purposes. The council shall adopt rules to ensure that the results are used for legitimate research purposes and to ensure that the confidentiality ofthe newborns and their families is protected.
23-01-03.2. Duties ofthe health council. The health council shall: 1. Monitor overall health care costs and quality of health care in the state. 2

. Recommend to the appropriate interim legislative committees changes to the health care system in the state

. 3. Publish an annual report on health care in the state.
23-01-03.3. Long-term care nursing scholarship and loan repayment grant program. 1

. The state health council, in cooperation with the North Dakota long term care association, shall administer the long-term care nursing scholarship and loan repayment grant program. The purpose ofthe program is to provide matching funds to nursing facilities for the facilities to use in recruiting and retaining nurses by providing scholarships to nursing facility staff and other individuals to obtain a nursing education and by assisting in the repayment of student loans for licensed nurses employed in a nursing facility

. The state health council shall adopt rules necessary to administer the program , including rules establishing criteria regarding eligibility for and distribution of program grants. 2

. An applicant for a program grant shall establish that the applicant: a. Is a licensed nursing facility; b

. Has available matching funds equal to the amount ofthe grant request; and c. Meets the eligibility criteria established by rule. 3

. An eligible applicant may receive a program grant not exceeding five thousand five hundred dollars in the first year of the biennium

. Any funds appropriated by the legislative assembly for the grant program which are remaining after the first year of the biennium may be distributed to eligible applicants in the second year of the biennium in any amount determined by the state health council.

Page No

. 223-01-04. Effect of rules and regulations. All rules and regulations promulgated by the health council under the powers granted by any provisions ofthis title are binding upon all county and municipal health officers, and upon all county, municipal, and private medical hospitals and upon related institutions, and have the force and effect of law.
23-01-04.1. Rulemaking authority and procedure. 1

. Except as provided in subsection 2, no rule which the state department of health, hereinafter the department, adopts for the purpose of the state administering a program under the federal Clean Air Act, federal Clean Water Act, federal Safe Drinking Water Act, federal Resource Conservation and Recovery Act, federal Comprehensive Environmental Response, Compensation and Liability Act, federal Emergency Planning and Community Right to Know Act of 1986, federal Toxic Substances Control Act, or federal Atomic Energy Act of 1954, may be more stringent than corresponding federal regulations which address the same circumstances. In adopting such rules, the department may incorporate by reference corresponding federal regulations. 2

. The department may adopt rules more stringent than corresponding federal regulations or adopt rules where there are no corresponding federal regulations, for the purposes described in subsection 1, only if it makes a written finding after public comment and hearing and based upon evidence in the record, that corresponding federal regulations are not adequate to protect public health and the environment of the state. Those findings must be supported by an opinion ofthe department referring to and evaluating the public health and environmental information and studies contained in the record which form the basis for the department's conclusions. 3. If the department, upon petition by any person affected by a rule of the department, identifies rules more stringent than federal regulations or rules where there are no corresponding federal regulations, the department shall review and revise those rules to comply with this section within nine months ofthe filing ofthe petition. 4. All existing rules of the department remain in full force and effect after July 10, 1989, pending department review and revision under subsection 3. 5. Any person who is issued a notice of violation, or a denial of a permit or other approval , based upon a rule of the department which is more stringent than a corresponding federal regulation or where there is no corresponding federal regulation, may assert a partial defense to that notice, or a partial challenge to that denial, on the basis and to the extent that the department's rule violates this section by imposing requirements more stringent than corresponding federal regulations, unless the more stringent rule ofthe department has been adopted in compliance with this section. 6. The provisions ofthis section may not be construed so as to require the department to review and propose revisions to any existing rule regarding the collection of fees by the department in connection with the administration of any program identified in subsection 1.
23-01-04.2. Legislative intent - Health vaccination charges. It is the intent of the legislative assembly that the state department of health adopt rules defining appropriate administration charges for vaccine provided by the department to physicians, private clinics, and hospitals

. 23-01-04.3. Alternative health care services pilot project - Application - Notice

- Hearing -Approval - Duration. 1. At any time that the health care needs of a city,township, or other geographic area are not being adequately met, any person may apply to the state health council for approval to conduct an alternative health care services pilot project. The application must address the need for and benefits of the pilot project. It must also contain a

Page No

. 3detailed description of the nature and scope of the project, quality control, organization, accountability, responsibility, and financial feasibility

. 2

. Upon receipt of an application under subsection 1 , the state health council shall schedule a public hearing, send notice to all interested parties, and give public notice ofthe hearing by publication in the official newspaper of each county in the pilot project area. At the hearing, the council shall accept written and oral testimony. The council shall review the application and all testimony presented at the hearing and approve, disapprove, or modify and approve the application based on criteria established by the council. The criteria must address the availability and use of health personnel, facilities, and services. 3

. Notwithstanding any other provisions of law, upon approval of an application submitted under subsection 1 ,the state health council, in consultation with the state health officer and any other public or private entity consulted by the state health council, shall set the standards for the delivery of health care services by the pilot project. The standards may not adversely affect the state's participation in federal medicare and medicaid programs. No more than three separate projects may be operational at any time and no project may be operational for longer than five years

. 23-01-05. Health officer - Qualifications, salary, term, duties -Advisory committee. The governor shall appoint the state health officerwho must have had substantive private or public administrative experience and demonstrated experience in the management of people. The state health officer is entitled to receive a salary commensurate with that person's training and experience. The governor shall set the salary of the state health officer within the limits of legislative appropriations to the department. The state health officer is entitled to receive all necessary traveling expenses incurred in the performance of official business. The state health officer may not engage in any other occupation or business that may conflict with the statutory duties of the state health officer and holds office for a term of four years beginning January 1, 1993. The state health officer is the administrative officer ofthe state department of health. Ifthe governor does not appoint as state health officer a physician licensed in this state, the governor shall appoint at least three licensed physicians recommended by the state medical association to serve as an advisory committee to the state health officer. Each member of the advisory committee is entitled to receive reimbursement of expenses in performing official duties in amounts provided by law for other state officers. The term ofthe advisory committee coincides with the term of the state health officer. A committee member serves at the pleasure of the governor. The duties ofthe state health officer are as follows: 1

. Enforce all rules and regulations as promulgated by the health council. 2. Hold public health unit boards of health responsible for enforcement of state rules, serve in an advisory capacity to public health unit boards of health, and provide for coordination of health activities. 3. Establish and enforce minimum standards of performance of the work of the local department of health. 4. Study health problems and plan for their solution as may be necessary. 5

. Collect, tabulate, and publish vital statistics for each important political or health administrative unit ofthe state and for the state as a whole. 6

. Promote the development of local health services and recommend the allocation of health funds to local jurisdictions subject to the approval ofthe health council. 7

. Collect and distribute health education material. 

### 8

.

9

.



### 10

. Maintain a central public health laboratory and where necessary, branch laboratories for the standard function of diagnostic, sanitary and chemical

.examinations, and production and procurement of therapeutic and biological preparations for the prevention ofdisease and their distribution for public health purposes. Establish a service for medical hospitals and related institutions to include licensing of such institutions according to the standards promulgated by the health council and consultation service to communities planning the construction of new hospitals and related institutions

. Comply with the state merit system policies of personnel administration.
Page No.411. Establish a program to provide information to the surviving family of a child whose cause of death is suspected to have been the sudden infant death syndrome. 12

. Issue any orders relating to disease control measures deemed necessary to prevent the spread of communicable disease. Disease control measures may include special immunization activities and decontamination measures. The state health officer may apply to the district court in ajudicial district where a communicable disease is present for an injunction canceling public events or closing places of business. On application of the state health officer showing the necessity of such cancellation , the court may issue an ex parte preliminary injunction, pending a full hearing. 13. Make bacteriological examination of bodily secretions and excretions and of waters and foods

. 14

. Make preparations and examinations of pathological tissues submitted by the state health officer, by any county superintendent of public health, or by any physician who has been regularly licensed to practice in this state

. 15. Make all required analyses and preparations, and furnish the results thereof, as expeditiously and promptly as possible. 16

. Cause sanitary statistics to be collected and tabulated , and cause to be ascertained by research work such methods as will lead to the improvement of the sanitation of the various parts ofthe state. 17

. From time to time, cause to be issued bulletins and reports setting forth the results of the sanitary and pathological work done in the laboratories embodying all useful and important information resulting from the work carried on in the laboratories during the year, the substance of such bulletins and reports to be incorporated in the annual report ofthe state health officer. 18. Establish by rule a schedule of reasonable fees that may be charged for laboratory analysis

. No charge may be made for any analysis conducted in connection with any public health incident affecting an entire region, community, or neighborhood. 19. a

. Establish a review process for instances in which the department is requested to conduct an epidemiological assessment of a commercial building. The epidemiological assessment must include: (1) A statement ofwhether there are known environmental causes; (2) If there are known environmental causes identified, a recommendation of how they can be remediated or mitigated; and (3) If there are no known environmental causes identified, a statement that no known causes exist. b. Costs for remediation, mitigation, and consultant services are the responsibility of the building owner. Proof of remediation of any identified environmental concern related to the epidemiological assessment is the burden ofthe building owner

. 23-01-05.1. Organ or tissue transplant assistance administration - Standing appropriation. The state health officer shall select a private nonprofit patient-oriented organization incorporated in this state for the purpose of administering financial assistance to organ or tissue transplant patients who are residents of this state. The state health officer shall adopt rules governing administration ofthis section. The organization selected shall administer and provide grants from available funds to alleviate demonstrated financial needs of transplant patients for any costs associated with transplant operations, under guidelines based on current social service eligibility requirements

. There is hereby created as a special fund in the state treasury an organ transplant support fund, the principal and income of which is hereby appropriated to the organization selected under this section

.The organization administering the fund may solicit contributions from private or governmental sources and such contributions may be deposited in the fund.
23-01-05.2. Administration of epinephrine- Liability. 1. The state health officer shall adopt rules to authorize a layperson to administer epinephrine to an individual who has a severe allergic reaction.
Page No

. 52. An individual authorized to administer epinephrine by the state health officer may obtain premeasured doses of epinephrine and the necessary paraphernalia for epinephrine administration from any licensed physician or pharmacist. 3. An individual authorized to administer epinephrine by the state health officer, and the employer of such an individual, is not civilly or criminally liable for any act or omission ofthat individual when acting in good faith while rendering emergency treatment to an individual who has a severe adverse reaction, except when the conduct amounts to gross negligence.
23-01-05.3. Immunization data. 1. The state department of health may establish an immunization information system and may require the childhood immunizations specified in subsection 1 of section 23-07-17.1 and other information be reported to the department. The state department of health may only require the reporting of childhood immunizations and other data upon completion of the immunization information reporting system. A health care provider who administers a childhood immunization shall report the patient's identifying information, the immunization that is administered, and other required information to the department. The report must be submitted using electronic media, and must contain the data content and use the format and codes specified by the department. 2. If a health care provider fails to submit an immunization report required under this section within four weeks ofvaccination: a. That health care provider may not order or receive any vaccine from the North Dakota immunization program until that provider submits all reports required under this section

. b

. The state department of health shall make a report to that health care provider's occupational licensing entity outlining that provider's failure to comply with the reporting requirements under this section

. 3

. Notwithstanding any other provision of law, a health care provider, elementary or secondary school, early childhood facility, public or private postsecondary educational institution, city or county board of health, district health unit, and the state health officer may exchange immunization data in any manner with one another. Immunization data that may be exchanged under this section is limited to the date and type of immunization administered to a patient and may be exchanged regardless ofthe date ofthe immunization

. 23-01-05.4. Department to employ state forensic examiner- Qualifications- Duties. The state department of health may employ and establish the qualifications and compensation of the state forensic examiner. The state forensic examiner must be a physician who is board-certified or board-eligible in forensic pathology, who is licensed to practice in this state, and who is in good standing in the profession. The state forensic examiner shall: 1. Exercise all authority conferred upon the coroner under chapter 11-19.1 and any other law; 2. Consult with local coroners on the performance oftheir duties as coroners; 3

. Conduct investigations into the cause of death of and perform autopsies on any deceased human body whenever requested to do so by the acting local county coroner orthe local state's attorney; 4

. Provide training and educational materials to local county coroners, law enforcement, and any other person the state forensic examiner deems necessary; 5

. Maintain complete records of the cause, manner, and mode of death necessary for accurate health statistics and for public health purposes; and 6

. Perform other duties assigned by the state health officer.
23-01-05.5. Autopsy reports - Confidential - Exceptions. 1

. As used in this section:

Page No.6a

. "Autopsy report" means the report of the forensic examiner or the examiner's designee on the post-mortem examination of a deceased individual to determine the cause and manner of death, including any written analysis, diagram, photograph , or toxicological test results. b. "Report of death" means the official findings on the cause of death and manner of death issued by the state forensic examiner, the examiner's designee, county coroner, or pathologist performing an autopsy ordered by a county coroner or by the state forensic examiner and which is the face page of the autopsy report identifying the decedent and stating the cause of death and manner of death. 2. An autopsy report and any working papers and notes relating to an autopsy report are confidential and may be disclosed only as permitted by this section

. The report of death is a public record subject to disclosure under section 44-04-18. 3

. Subject to the limitations on the disclosure of an autopsy photograph or other visual image or video or audio recording of an autopsy required under section 44-04-18

.18, any working papers and notes relating to a final autopsy report may be disclosed pursuant to a court order and as otherwise expressly provided by law. 4

. The state forensic examiner or the examiner's designee shall disclose a copy of the autopsy report: a. To any county coroner, including a coroner in any state or Canadian province, with jurisdiction over the death, and the coroner may use or disclose these records for purposes of an investigation, inquest, or prosecution. b

. To any state's attorney or criminal justice agency, including a prosecutor or criminal justice agency ofthe United States, any state, or any Canadian province, with jurisdiction over an investigation of the death and the state's attorney or criminal justice agency may use or disclose these records for the purposes of an investigation or prosecution

. c

. To workforce safety and insurance ifthe death is related to the decedent's work, and to any other workers' compensation or other similar program, established by law, that provides benefits for work-related injuries or illness without regard to fault ifthere is no criminal investigation. d

. To the child fatality review panel ifthere is no active criminal investigation. e. In accordance with a court order

. 5. The state forensic examiner or the examiner's designee upon request shall disclose a copy ofthe autopsy report to: a

. The decedent's personal representative and to the decedent's spouse, child, or parent, upon proof ofthe relationship, ifthere is no active criminal investigation. b. A physician or hospital who treated the deceased immediately prior to death if there is no active criminal investigation. c. An insurance company upon proof that the decedent's life was covered by a policy issued by the company ifthere is no active criminal investigation. d. The food and drug administration, the national transportation safety board, the occupational health and safety administration, and any other federal or state agency with authority to obtain an autopsy report to investigate a death resulting from the decedent's type of injury or illness

. e

. A professional or research organization collecting data to initiate or advance death investigation standards, after the identifiers necessary to create a limited data set under title 45, Code of Federal Regulations, part 164, section 514, subsection e have been removed from the report

. 6

. The forensic examiner,the examiner's designee, any county coroner or county medical coroner, and any public employee who, in good faith , discloses autopsy findings, an autopsy report, or other information relating to an autopsy report or cause of death to a person who the public official or employee reasonably believes is entitled to that information under this section is immune from any liability, civil or criminal , for making that disclosure. For the purposes of any proceeding, the good faith of any public employee who makes a disclosure under this section is presumed

.

Page No

. 723-01-06. Biennial report - Contents. The state health officer shall submit a biennial report to the governor and the secretary of state in accordance with section 54-06-04. In addition to any requirements established pursuant to section 54-06-04,the report must cover the following subjects: 1. The activities of the various divisions, the work accomplished during the two years covered by the report, and an analysis ofthe program of each ofthe divisions

. 2

. The expenditures ofthe state department of health

. 3. The expenditures in each county board of health orthe district board of health

. 4

. Any reports relating to the hospital program as required by the health council.
23-01-07. Structure of department. Repealed by S

.L. 1993, ch. 218, 

### § 10

. 23-01-08. Directors of divisions- Deputy- Appointment, salary, duties. The state health officer shall appoint directors ofthe various divisions ofthe department and shall determine the salary,within the limits of legislative appropriations to the department and in conformity with the state merit system, to be received by such persons

. The duties of such director must be those prescribed by the state health officer. The state health officer may appoint a deputy state health officer

. A deputy state health officer who does not hold a health-related degree may not individually issue an order regarding public health unless the order is cosigned by a physician who is employed by the department or cosigned by the state epidemiologist. The deputy state health officer serves at the pleasure ofthe state health officer.
23-01-09. Duties of director of consolidated laboratories branch. Repealed by S.L

. 1993, ch. 218, 

### § 10

. 23-01-09.1. Duties of state toxicologist. Repealed by S.L

. 2003, ch

.469, 

### § 13

. 23-01-10. Office space. The state shall provide suitable office space in Bismarck for housing and maintaining the state department of health

. Special fireproof vaults must be provided for the storage of birth and death certificates.
23-01-11. Acceptance of funds and right to qualify for benefits under federal laws authorized. The state department of health may: 1

. Accept funds from cities, counties, the federal government, private organizations, and individuals for infancy and maternal hygiene, for other public health work and for the purpose of conducting a survey of existing medical hospitals and related institutions, planning of needed hospital construction and for construction and maintenance of such medical hospitals and related institutions. When approved by the governor ofthis state, the state department of health may match the same from any unexpended portion of its appropriation in accordance with specifications agreed to or required by congressional act. All infancy and maternal hygiene and public health work must be done underthe supervision ofthe state department of health

. 2

. Adopt rules necessary to enable the state to be in compliance with any federal laws in order to qualify for any federal funds related to medical facilities or agencies licensed by the state department of health.
23-01-12. Hospital records to be kept at direction of state health officer. When any person is admitted into a lying-in hospital or other institution, public or private, to which persons resort for the treatment of disease or for confinement, or to which persons are committed by process of law, the superintendent, manager, or other person in charge of such institution shall make a record of all the personal and statistical particulars relative to such
Page No

. 8

# - State of

- 

# NorthDakota Office of the Governor 

## J

ack Dalrymple Governor

Lisa P. Jackson, Administrator May 25,2012

c/oJames Martin, Regional Administrator (8RA) U.S. EPA, Region 8 1595 Wynkoop Street Denver, CO 80202-1129
RE: ND State Implementation Plan for 1997 PM2

.sNAAQS and 2008 Lead AAQS
DearAdministratorJackson:
The North Dakota Department ofHealth has reviewed its State Implementation Plan (SIP) for the control ofair pollution to determine ifthe SIP is adequate for implementing the 1997 PM2.s NAAQS and 2008 lead NAAQS. Attached to this letter are documents which demonstrate that the required elements are included in the existing SIP except for the "conflictofinterest" requirements under the Clean Air

### Act§ 128. The Department ofHealth has committed to revise the State Implementation Plan by May 31, 2013 to address the requirements of§ 128

. If

### you have any questions regarding the submittal, please contact Mr. Terry O'Clair, Director, Division ofAir Quality, North Dakota Department ofHealth at 701-328-5188. Sincerely,

C: 

### David Glatt, Chief, Environmental Health Section Terry O'Clair, Director, Division ofAir 

### Quality
37:68:56

600 E Boulevard Ave. • Bismarck, ND 58505-0001 • Phone: 701.328.2200 • Fax: 701.328.2205 • www.governor.nd.gov

### North Dakota Certification Clean Air Act Section 110(a)(1) and (2) Requirements 2008 LeadNAAQS

Under the Clean Air Act (CAA), States must submit State Implementation Plans (SIPs) to assure compliance with the National Ambient Air Quality Standards (NAAQS). Sections 110(a)(1) and (2) of the Clean Air Act (CAA) require states to adopt and submit to the U.S

. EPA

"infrastructure" SIPs that address basic program elements to implement, maintain, and enforce new or revised standards including requirements for emissions inventories, monitoring, and modeling among other elements. Each ofthe basic or infrastructure requirements is listed below along with the corresponding State regulation, State statute or SIP element that implements the requirement.
Emission limits and other control measures: 

### Section 110(a)(2)(A) of the Clean Air Act requires SIPs to include enforceable emission limits and other control measures, means or techniques, schedules for compliance, and otherrelated matters.
The North Dakota Air Pollution Control Rules (NDAC 33-15) establishes control requirements for lead (Pb) indirectly through the control ofparticulate matter (PM) emissions. The following regulations address the required control measures, means and techniques. Chapter
33-15-01

33-15-02

33-15-03

33-15-04 General Provisions
This chapter establishes prohibitions against creating air pollution and provides for the enforcement ofall air pollution control rules

. The chapterprovides that all excess emissions, including emission during startup/shutdown and malfunction, are subject to enforcement action

. AmbientAir Quality Standards This chapter establishes a state ambient air quality standard (SAAQS) for lead that is identical to the NAAQS.
Restriction ofEmission ofVisible Air Contaminants
The chapter establishes visible emissions standards for bothpoint and area sources, including sources oflead emissions. Open Burning Restrictions
The chapterprohibits the open burningunless specifically authorized

.

1

### 33-15-05

33-15-12

33-15-13

33-15-14

33-15-15

33-15-17

33-15-18

33-15-19

33-15-21 Emissions ofParticulateMatter Restricted
The chapter establishes PM emission limits for fuel burning and industrial process type sources
. Standards ofPerformance for New Stationary Sources
The chapter incorporates byreference the standards in 40 CFR 60.
Emission Standards for Hazardous AirPollutants
The chapter incorporates the standards in 40 CFR 61. Designated Air Contaminant Sources,Permitto Construct,Minor Source Permitto Operate, Title V Permitto Operate
The chapterprovides a preconstructionpermittingprogram for both major and minor sources, a federally enforceable state operatingpermitprogram (FESOP) for minor sources, and a Title V Permitto Operate programfor major sources. Prevention ofSignificantDeterioration ofAir Quality
The chapterincorporatesbyreference the PSDrequirements in 40 CFR52.21.
Restriction ofFugitiveEmissions
The chapter establishes criteria for the control offugitive emissions (including lead emissions).
StackHeights
The chapterprohibits dispersion ofair contaminants through the use ofstacks that exceed good engineeringpractice (GEP). Visibility Protection
The chapter establishes requirements for the review ofmajor stationary sources and prohibits a source from having an adverse impact on any Class I 

### area
. Acid Rain Program
This chapter incorporates by reference the requirements of40 CFR 72, 75 and 76. Control of sulfur dioxide and nitrogen oxides may indirectly control lead emiSSIOnS

.

2

### 33-15-22

33-15-25 Emission Standards for Hazardous AirPollutants for Source Categories This chapterincorporates by reference the standards in 40 CFR 63. Regional Haze Requirements
The chapterprovides for the application ofBestAvailable Retrofit Technology (BART) to affected sources. A copy ofthese rules are attached to this analysis.
The North Dakota Century Code (NDCC), Chapter 23-25, Air Pollution Control (Appendix B of SIP), in Section 23-25-03 provides the following general authority to regulate sources of Pb. This section states thatthe Department shall:


### NDCC23-25-03.6- Provide rules andregulations relating to the construction of any new direct or indirect air contaminant source or modification ofany existing direct or indirect air contaminant source which the Department determines will prevent the attainment ormaintenance of any ambient airquality standard, andrequire thatprior to commencing construction or modification ofany such source, the owner or operator

· thereof shall submit such information as may be necessary to permit the Department to makesuch determination.
NDCC23-25-03.7

- 

### Establish ambient airqualitystandardsfor the state which may vmy according to appropriate areas. NDCC 23-25-03.8

- Formulate andpromulgate emission control requirementsfor the prevention, abatement, andcontrol of airpollution in this state including achievement of ambientairqualitystandards.
Ambient air gualitv monitoring/data system: 

### Section 110(a)(2)(B) ofthe CAA requires SIPs to provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to monitor, compile, and analyze data on ambient air quality, and upon request, make such data available to EPA.
The 2011 Annual Monitoring Network Plan for North Dakota (submitted to EPA in July, 2010 and approved September 2010) provides for an ambient air quality monitoring system in the State. Because North Dakota has no significant sources of Pb (2: 

### 0

.5 tpy), no Core Based Statistical Areas (CBSA) with a population of 500,000 or more, and no airports listed in Appendix D of40 CFR 589 (Table D-3A), no ambient monitoring for Pb is required. Therefore, there is no duty to correlate ambient monitoring data to emission limits for stationary sources. If necessary, the Department can establish ambient monitoring sites for Pb.
NDCC 23-25-03 provides the authority for the Department to conduct ambient air monitoring. This subsection states thatthe Department shall:

3

### NDCC 23-25-03.2

- Determine by scientifically oriented field studies andsampling the degree of airpollution in the state andthe severalparts thereof
NDCC 23-25-03.10

- Require the owner or operator ofa regulated air contaminant source to establish and maintain such records; make such reports; install , use, and maintain such monitoring equipment or methods; sample such emissions in accordance with such methods, at such locations, intervals, andprocedures; andprovide such other information as may be required.


### Ambient monitoring is covered in Chapter 6 ofthe North Dakota SIP. It

### provides fon the design and operation ofa monitoring network,reporting ofdata obtained from the monitors, and annual network review including notification to EPA of any changes, and public notification of exceedances ofNAAQS. Program for enforcement ofcontrol measures: 

### Section 110(a)(2)(C) requires SIPs to include a program providing for enforcement ofall SIP measures and the regulation ofconstruction of new or modified stationary sources as necessary to assure that the NAAQS are achieved, including apermitprogram as required in parts C and D.
NDCC 23-25-10, Enforcement

- Penalties

- Injunctions, provides authority for enforcement of the North Dakota Air Pollution Control Rules (NDAPCR) and specifies the potential penalties for such violation. NDAC 33-15-01-17, Enforcement, provides general interpretation of enforcement ofthe NDAPCR. The following regulations within the NDAPCR and the North Dakota SIP provide for the permitting ofsources oflead:
NDAC 33-15-14-02 NDAC 33-15-14-03 NDAC 33-15-14-06 NDAC 33-15-15 Permitto Construct Minor Source Permit to Operate Title V Permitto Operate Prevention ofSignificantDeterioration
NDAC 33-15-15 contains all federal PSD regulations through July 2, 2010

. These rules also incorporate EPA's Tailoring Rule. The rules are being updated as part ofa SIP revision to be submitted separately in 2012. NDAC 33-15-14-02 and 33-15-14-03 provide a preconstruction and operating permitprogram for minor sources oflead emissions. Authority for the permitting programs is found in NDCC 23-25-03 which states that the Department shall:
NDCC23-25-03.6- Provide rules andregulations relating to the construction of anynew direct or indirect air contaminant source or modification ofany existing direct or indirect air contaminant source which the Department determines will prevent the attainment or maintenance ofany ambient air standard, and require that prior to commencing construction or modification ofany such source, the owner or operator



### 4

# I

.

thereofshall submit such information as may be necessary to permit the Department to makesuch determination.
and


### NDCC23-25-04.1- Permits andRegistration
I. ljo person shall construct, install, modify, use or operate an air contaminant source designated by regulation, capable ofcausing or contributing to air pollution, eitherdirectly or indirectly, without apermit from the Department or in violation of any conditions imposedbysuchpermit.
2. The Department shall providefor the issuance, suspension, revocation, and renewalof anypermits which it may requirepursuant to this section.
3. The Department may require that applications for such permits shall be accompanied byplans, specifications, and such other information as it deems necessa1y.
4. Possession of an approvedpermit or registration certificate does not relieve any person of the responsibility to comply with applicable emission limitations orwith any otherprovision oflaw or regulations adoptedpursuant thereto anddoes not relieve any person from the requirement that that person possess a valid contractor's license issuedunder Chapter43-07.
5. The Department by rule or regulation may provide for registration and registration renewal ofcertain air contaminant sources in lieu ofthe permit requiredpursuant to this section.
6. The Department may exempt by rule or regulation certain air contaminant sources from thepermitor registration requirements set forth in this section when the Department makes a finding that the exemption ofsuch sources ofair contaminants willnot be contrary to section 23-25-01.1.
Interstate transport: Section 110(a)(2)(D) of the CAA requires SIPs to contain adequate provisiOns prohibiting any source or other type of emissions activity in one State from 1) contributing significantly to nonattainment of the National Ambient Air Quality Standards (NAAQS), 2) interfering with maintenance ofthe NAAQS, and 3) interfering with measures required to prevent significant deterioration or interfering with the implementation of plans related to regional haze or visibility in another State. The following regulations and SIP provisions address interstate transport:
NDAC 33-15-15 NDAC 33-15-19 NDAC 33-15-25 Prevention ofSignificantDeterioration Visibility Protection Regional Haze Requirements



### 5

### SIP Section 7.8 SIP Interstate Transport ofAirPollution North Dakota State Implementation Plan for Regional Haze (February 24, 2010)

NDCC 23-25-03 states that the Department shall:
NDCC 23-25-03.6- Provide rules and regulations relating to the construction ofany new direct or indirect air containment source or modification ofany existing direct or indirect air containment source which the Department determines will prevent the attainment or maintenance of any ambient air quality standard, andrequire thatprior to commencing construction or modification ofany such source, the owner or operator thereofshall submit such information as may be necessary topermit the Department to makesuch determination.
A. 

### Significant Contribution Requirement ofSection 110(a)(2)(D)(i)(I).
Section 110(a)(2)(D)(i)(I) specifically provides that each state's SIP must contain adequate provisions to prohibit air pollutant emissions from within the state that significantly contribute to nonattainment ofthe NAAQS in any other state. The state's submission must explain whether or not emissions from the state have this impact and, if so, address the impact.
The nearest lead nonattainment area to North Dakota is the Eagan, Minnesota area which includes aportion ofDakota County. The Eagan area is approximately 185 miles from the North Dakota border. EPA believes that requirements of subsection (2)(D)(i)(I) (prongs 1 and 2) could be satisfied through a state's assessment as to whether or not emissions from Pb sources located in close proximity to their state borders (e.g. within 2 miles) have emissions that impact the neighboring state such that they contribute significantly to nonattainment by having a emissions threshold of 0.5 tons per year or greater orinterfere with maintenance on that state1• 

### North Dakota has few sources oflead located within 2 miles ofthe Minnesota border. The following sources emit lead, or lead compounds, due to the combustion ofcoal and include the following:
2010 Approximate Distance to Lead Emissions NearestNonattainment Source (tons)* Area (miles) 

### American Crystal Sugar

- 0.028 310 Drayton

1

### Memorandum issued by Stephen Page, OAQPS, "Guidance on Infrastructure State Implementation Plan (SIP) Elements Required Under Sections 110(a) (1) and (2) for the 2008 Lead (Pb) National AmbientAir Quality Standards (NAAQS); October, 2011.

6

### 2010 Approximate Distance to Lead Emissions NearestNonattainment Source (tons)* Area (miles) 

### University ofNorthDakota 0

.010 285 North Dakota State 0

.007 225 University Minn-Dak Farmers Coop. 0

.031 200 ND State School ofScience 0.001 200 Sanford Medical Center < 

### 0.0001 225 *Basedon AP-42 emission factors
The small quantity oflead emissions and the large distance to Dakota County, Minnesota indicates that sources in North Dakota will not significantly contribute to this nonattainment area. There are no sources oflead within 2 miles ofthe border with South Dakota and Montana than have emissions greater than 0

.001 tons peryear. B. 

### Interfere with Maintenance Requirement ofSection 110(a)(2)(D)
Section 110(a)(2)(D)(i)(I) specifically provides that each state's SIP must contain adequate provisions to prohibit air pollutant emissions from within the state that interfere with maintenance ofthe NAAQS in any other state. States' submission must address this independent requirement ofthe statute. This provision requires evaluation ofimpacts on areas of other states that are meeting the lead NAAQS, not merely areas formerly designated nonattainment that are subject to maintenance SIP. Therefore, the SIP must explain whether or not emissions from the state have this impact and, ifso, address the impact.
North Dakota has no significant sources oflead**~** 

### 0

.5 tons/yr) lo"cated within 2 miles of the borders with Minnesota, South Dakota or Montana. No source would have lead emissions greater than 0.031 tons per year. Therefore, North Dakota sources will not interfere with these states ability to maintain compliance with the NAAQS for lead.
C

. PSD sub-element of 110(a)(2)(D)(i)(II) and 110(a)(2)(J):
These sections require that sources in North Dakota may not interfere with measures required to be included in the SIP for any other State under Part C to prevent significant deterioration of air quality and requires North Dakota to have in place a prevention of significant determinationprogram for sources in the North Dakota.
The Department has adopted the Federal PSD rules by reference as they exist on July 2, 2010. The Department is in the process of adopting the PSD rules as they exist on January 1, 2012. This will incorporate all existing requirements

. The PSD rules require compliance with the 2008 lead NAAQS incorporated in NDAC 33-15-02.
D. Visibility sub-element of 110(a)(2)(D)(i)(II) and 110(a)(2)(J):

7

### These sections require that sources in North Dakota may not interfere with measures required for any other state for visibility protection and requires North Dakota to have inplace measures to protect visibility in North Dakota Class I areas. North Dakota has in place a SIP to address visibility impairment for major source (PSD) permitting (NDAC 33-15-15), specific visibility impairment (RAVI) and plume blight (NDAC 33-15-19). To date, no sources in North Dakota have been identified as causing "reasonably attributable visibility impairment" in any Federal Class I area. The Department has prepared and submitted to EPA (March 3, 2010) a SIP revision to address regional haze for the current planning period

. This includes a long-term strategy which provides for improvement in the most impaired days and no degradation in the least impaired days.
Section 110(a)(2)(D)(ii): Interstate and International TransportProvisions:


### Section 110(a)(2)(D)(ii) requires that each plan include measures that ensure compliance with the applicable requirements of Sections 136 and 115 relating to interstate and international pollution abatement. Section 126(a) ofthe Clean Air Act (CAA) requires each SIP to include provisions to notify neighboring states ofpotential impacts from anew or modified source. The North Dakota PSD rules provide for notifying neighboring states whose land may be significantly affected by emissions from a new or modified source. NDAC 33-15-15- 01.2(q)(2)(d) states: NDAC-33-15-15-0l.(q)(2)(d)- Send a copy ofthe notice required in subparagraph c to the applicant, the United States environmentalprotection agency administrator, and to officials and agencies having cognizance over the location where the source or modification will be situatedasfollows: the chief executive of the city andcounty where the source or modification would be located; any comprehensive regional land use planning agency; andany state,federal land manager , orIndian governing body whose lands may besignificantlyaffectedbyemissions from the source ormodification.
Similar notification requirements are provided for minor sources under NDAC 33-15-14- 02.6.b(4). Adequate personnel, funding and authority: 

### Section 11O(a)(2)(E) ofthe CAA requires states to provide for adequate personnel, funding and legal authority under State law to carry out its SIP and related issues.
The authority for the Department to carry out the requirements ofthe SIP is found in NDCC 23- 25-03 which states:
23-25-03. Powerandduties to theDepartment. The Departmentshall:

8

### • Encourage the voluntary cooperation of persons oraffectedgroups to achieve the purposes of this chapter.

• Determine by scientifically oriented field studies andsampling the degree of air pollution in the state andthe severalparts thereof

• Encourage and conduct studies, investigations, and research relating to air pollution andits causes, effects,prevention, abatementandcontrol.

• Advise, counsel, and cooperate with other public agencies and with affected groups andindustries.

• Issue such orders as may be necessary to effectuate thepurposes ofthis chapter andenforce the same byallappropriate administrative and judicialprocedures.

• Provide rules and regulations relating to the construction ofany new direct or indirect air contaminant source ormodification of any existing direct or indirect air containment source which the Department determines will prevent the attainment ormaintenance of any ambient air qualitystandards, andrequire that prior to commencing construction ormodification of any such source, the owner or operator thereof shall submit such information as may be necessary topermit the Department to makesuch determination.

• Establish ambient airqualitystandardsfor the state which may vary according to appropriateareas.

• Formulate andpromulgate emzsszon control requirementsfor the prevention, abatement, and control ofair pollution in the state including achievement of ambientairqualitystandards.

• Hold hearings relating to any aspect or matter in the administration ofthis chapter, and in connection therewith, compel the attendance of witnesses andthe production of evidence.

• Require the owner or operator of a regulatedair containment source to establish and maintain such records; make such reports; install, use and maintain such monitoring equipment or methods; sample such emissions in accordance with such methods, at such locations, intervals, andprocedures; andprovide such other information as may be required.

• Provide by rules and procedures necessary and appropriate to develop, implement, and enforce any air pollution prevention and control program established by the Federal Clean AirAct, as amended, and the authorities and responsibilities ofwhich are delegatable to the state by the United States environmentalprotection agency. Such rules may include any andall enforceable
9

### ambient standards, emzsswn limitations, and other control measures, means, techniques, or economic incentives such asfees, marketablepermits, andactions ofemission rights as provided by the Act. The Department shall develop and implement suchfederalprograms 

## ifthe Department determines there is a benefit to the state.

• Provide by rules a program for implementing lead-based paint remediation training, certification andperformance requirements in accordance with title 40, Code of FederalRegulations,part 745, sections 220, 223, 225, 226, 227and233.
In addition,NDAC 33-15-01-03 states:


### NDAC 33-15-01-03. Authority. The North Dakota State Department of Health has been authorized to provide and administer this article under theprovisions of North Dakota Century Code chapter23-25.
The provisions ofthe SIP are carried out by the Department ofHealth. The only portion ofthe SIP that has been delegated is approval ofopen burning requests. Several local Health Districts have been delegated this authority. There are no other agencies, departments or local units that have been delegated authority to develop any portion ofthe SIP.
NDAC 33-15-23, Fees, provides the regulatory mechanism for requiring stationary sources that emit air pollutants to pay a fee based on the quantity ofemissions emitted. Fees are collected annually from both major sources and minor sources. In 

### addition, fees are charged for reviewing applications for the construction ofnew or modified sources. Title V fees are adjusted annually to match the change in the consumerprice index.
The Department does not anticipate the construction ofany new significant (2: 

### 0.5 tons/yr) lead emission sources during the next five years. Therefore, no additional personnel will be required to assure compliance with the Pb NAAQS. The Department currently has 11 people dedicated to permitting ofnew or modified sources ofair pollution and the enforcement ofthe air pollution control rules. In addition, another 5people are dedicated to monitoring air quality.
NDCC 23-25-04.2 provides the statutory authority for collectingfees.


### NDCC 23-25-04.2, Fees

- Deposit in operatingfund. The Department by rule or regulation mayprescribe andprovidefor thepayment andcollection of reasonablefees for the issuance of permits or registration certificates. The permit or registration certificatefees must be based on the anticipated cost of filing and processing the application, oftaking action on the requestedpermit or registration certificate, and conducting an inspectionprogram to determine compliance or noncompliance with the permit or registration certificate. Any moneys collected forpermit or registrationfees must be deposited in the Department operatingfund in the state treasury andmust be spentsubject to appropriation by the legislativeassembly

.

10

### Resources for the operation ofthe air pollution control program are also addressed in Section 9 of the SIP which was updated in April 2009. The Department has determined that it has adequate resources to implement the 2008 Pb NAAQS. The Department has addressed the legal authority to collect fees necessary to implement the air pollution control program in section 2.11 ofthe SIP.
The regulations that control emissions of lead or lead compounds are described in the section titled "Emission limits and othercontrol measures".
In North Dakota there are no boards, or any other body, that approves permits or enforcements. The State Health Officer is the head of the State Health Department which includes the Air Pollution Control program. NDCC 23-01-05 states "The State Health Officer may not engage in any occupation or business that may conflict with the statutory duties of the state health officer.

..". NDCC 23-01-05 is contained in Appendix B of the SIP. The Department has committed to revise the SIP to require that any conflict of interest by anyone that approves permits or enforcement actions mustbe disclosed (See attachment 21). Stationary source monitoring system: 

### Section 11O(a)(2)(F) of the CAA requires states to establish a system to monitor emissions from stationary sources and to submit periodic emission reports.
The following State regulations require monitoring of emissions from stationary sources, recordkeeping and reporting ofemissions and monitoring data:
NDAC 33-15-14-02.9 NDAC 33-15-14-03.6 NDAC 33-15-14-06.5 Statutory authority for the monitoring IS 

### found 

### m NDCC 23-25-03 which states that the Department shall:


### NDCC 23-25-03.10

- Require the owner or operator ofa regulated air containment source to establish and maintain such records; make such reports; install, use and maintain such monitoring equipment or methods; sample such emissions in accordance with such methods, at such locations, intervals, andprocedures; andprovide such other information as may be required.
Source surveillance is also addressed in Chapter 8 ofthe SIP. This chapter provides for the permitting ofsources, inspection ofthe sources and compliance determinations. Emergency episodes: 

### Section 110(a)(2)(G) ofthe CAA requires states to provide for authority to address activities causing imminent and substantial endangerment to public health, including contingencyplans to implementthe emergency episode provisions in their SIPs. NDAC 33-15-11, Prevention of Air Pollution Emergency Episodes, provides the means to implement emergency air pollution episode measures and is authorized by NDCC 23-25-03 which states thatthe Department shall:

11

### NDCC 23-25-03.5

- Issue such orders as may be necessary to effectuate thepurposes of this chapter and enforce the same by all appropriate administrative andjudicial procedures.


### NDCC 28-32-32 (Appendix B ofSIP) states that in an emergency, the administrative agency (the Department) may take action pursuant to a specific statute as is necessary to prevent or avoid imminentperil to public health, safety orwelfare.
In addition, NDCC 23-25-08 states "when an emergency exists requiring immediate action to protect thepublic health and safety, the Department ma y, without notice or hearing , issue an order reciting the existence ofsuch emergency and requiring that such action be taken as is necessary to meet this emergency." 

### North Dakota does not have any stationary sources that emit a significant amount oflead, or lead compounds. The primary source, although small, is the combustion of coal. Other minor sources include catalyst recycling and fugitive dust emissions. The Department believes these sources are such minor sources oflead that a contingency plan is not required. The Department believes the emissions of PM 10 

### and PM2
.5 

### from coal combustion sources will present an endangerment to public health before lead emissions from coal combustion do. North Dakota has in place abatement strategies for PM 10 

### in NDAC 33-15-11 which address coal combustion.
Future SIP revisions: 

### Section 11O(a)(2)(H) ofthe CAA requires states to have the authority to revise their SIPs in response to changes in the NAAQS, availability ofimproved methods for attaining the NAAQS, or in response to an EPA finding that the SIP is substantially inadequate.
NDCC 25-25-03 states that the Department shall:
NDCC 23-25-03.8

-Formulate andpromulgate emission control requirementsfor the prevention, abatement andcontrol of airpollution in this state including achievement of ambientairqualitystandards.
NDCC 23-25-03.12

- Provide by rules an y procedures necessmy and appropriate to develop, implement , and enforce any air pollution prevention and control program established b y the Federal Clean Air Act, as amend ed, and the authorities and responsibilities of which are delegatable to the state by the United States environmental protection agency. Such rules may include any andall enforceable ambient standards, emission limitations, and other control measures, means, techniques, or economic incentives such asfees, marketablepermits, andauctions of emissions rights asprovided by theAct. The Departmentshall develop andimplementsuch asfederalprograms 

## if the Departmentdetermines there is a benefit to thestate.


### The North Dakota SIP, Section 1.14, commits the Departmentto making the necessary revisions. Section 1.14 states "The Department will revise this implementation plan as may be necessary to take account of revisions of the National Ambient Air Quality Standards (both primary and secondary) or the availability of improved or more expeditious methods of attaining these

12

### standards

. The Department will also revise the implementationplan whenever the Administrator of the United States Environmental Protection Agency finds, on the basis of information available to the Administrator, that the plan is substantially inadequate to attain the National Ambient Air Quality Standards which it implements or to otherwise comply with additional requirements established under the Federal Clean Air Act. The Department·will make such revision only ifthe finding ofthe Administrator is in accordance with the requirements ofthe Federal Clean AirAct."


### Consultation with government officials: Section 110(a)(2)(J) ofthe CAA requires states to provide a process for consultation with local governments, designated organizations and federal land managers (FLMs) carrying out NAAQS implementation requirements pursuant to section 121 relative to consultation.
North Dakota has no transportation control plans, maintenance plans or nonattainrnent areas. For preconstruction review, the public participation procedures of NDAC 33-15-14-02.6 are followed for minor sources. For sources subject to PSD review, the public participation procedures in paragraph (q) ofNDAC 33-15-15-01.2 are followed

. Both NDAC 33-15-14-02

.6 and 33-15-15-01.2(q) require notification ofthe chiefexecutive ofthe city or county a source is proposing to locate, any regional land use planning agency, and any state, federal land manager or Indian body whose lands will be significantly affected by a proposed source's emissions

. Consultation with the FLMs for PSD projects is accomplished in accordance with 40 CFR 52.21 (p) which is incorporated by reference into NDAC 33-15-15-01.2

. For enforcement orders, the requirements of NDCC 23-25-08 and NDCC 28-32 are followed. Consultation with other government agencies is addressed in Chapter 10 ofthe SIP

. This Chapter ofthe SIP commits the Department to consultation with adjacent state, local government and other state agencies whenever a SIP revision is required

. 

### Public notification: Section 11O(a)(2)(J)

.ofthe CAA further requires states to notify the public ifNAAQS are exceeded in an area and to enhance public awareness of measures that can be taken to prevent exceedances

. The North Dakota SIP, Section 6

.9, commits the Department to notification ofthe public, on a regular basis, whenever an ambient air quality standard is exceeded. The public will be advised ofthe potential health effects, measures which can be taken to prevent future exceedances, and ways they can participate in the regulatory and other efforts to improve air quality. The authority for this notification is found in NDCC 23-25-06. In addition, NDAC 33-15-11-03.1 requires the Department to notify the public whenever an air pollution emergency has been determined to exist.


### PSD and visibilitv protection: Section 110(a)(2)(J) of the CAA requires states to meet applicable requirements ofPart C related to prevention ofsignificant deterioration and visibility protection.
The Department has updated the SAAQS for lead in NDAC 33-14-02 (April, 2011) to be identical to the 2008 NAAQS. Pursuant to NDCC 33-15-15-01.2(k)(i), a PSD applicant must demonstrate compliance with the SAAQS including the 2008 lead NAAQS. The Departmenthas

13

### also adopted the "Tailoring Rule" for greenhouse gases (April, 2011). PSD applicants must address any applicable requirements for greenhouse gases.
The Department has submitted it Regional Haze SIP (March, 2010). In addition, visibility impacts must be addressed by a PSD applicant in accordance with NDAC 33-15-15-01.2(o) and (p).


### Air quality modeling/data: Section 110(a)(2)(K) requires SIPs to provide for the performance ofair quality modeling for predicting effects on air quality ofemissions ofany NAAQS pollutant and the submission ofsuch data to EPA upon request.
Air quality modeling is addressed in Section 7.7 ofthe North Dakota SIP. This section commits the Department to performing air quality modeling to predict the impact of a source on air quality. The section also commits the Department to providing data to EPA on air quality modelingupon request. Modeling for minor sources is addressed in NDAC 33-15-14-02.4 while modeling for majorPSD sources is address in 40 CFR 52.21(k), 

### (1), (m), (n) and (o) a· s incorporated into NDAC 33-15-15- 01.2. Authority for requiring modeling is in NDCC 23-25-03 which states the Department shall:


### NDCC 23-25-03-02

- Determine by scientifically oriented fieldstudies andsampling the degree of airpollution in the state andthe severalparts thereof
and


### NDCC 23-25-03-12

- Provide by rules andprocedures necessary and appropriate to develop, implement, and enforce any air pollution prevention and control program established by the Federal Clean Air Act, as amended, and the authorities and responsibilities of which are delegateable to the state by the UnitedStates Environmental ProtectionAgency. Such rules may include any andall enforceable ambient standards, emissions limitations, and other control measures, means, techniques, or economic incentives such asfees, marketablepermits, andauctions of emissions rights asprovided by the Act. The Department shall develop and implement suchfederalprograms 

## ifthe Departmentdetermines there is a benefit to the state. Permitting fees: Section 110(a)(2)(L) requires SIPs to include a requirement for each major stationary source to pay permitting fees to cover the cost of reviewing, acting upon, implementing and enforcing a permit until such fee requirement is superseded by EPA approval ofa fee programunder Title V ofthe Clean AirAct.
NDAC 33-15-23, Fees, establishes fees for processing Permit to Construct applications, annual operating fees for minor sources and fees for major sources under the Title V Permit to Operate program. These fees are used for reviewing, approving, implementing and enforcing a permit. The authority for the fees is found inNDCC 23-25-04.2.

14

### NDCC 23-25-04.2. Fees

- Deposit in operatingfund: The Department by rule or regulation mayprescribe andprovidefor thepayment andcollection of reasonablefees for the issuance ofpermits or registration certificates. The permit or registration certificatefees for the issuance ofthe anticipated cost of filing andprocessing the application, oftaking action on the requestedpermit or registration certificate, and conducting an inspectionprogram to determine compliance or noncompliance with the permit or registration certificate. Any moneys collected forpermit or registrationfees must be deposited in the Department operatingfund in the state treasury and must be spentsubject to appropriation by the legislative assembly.
The Department collects fees for reviewing permit applications, annual minor source Permit to Operate fees and Title V Permit to Operate fees. North Dakota's Title V Permit to Operate programreceived full approval from EPA effective August 16, 1999 (64 FR 32433). 

### Consultation/participation by 

### affected local entities: Section 11O(a)(2)(M) requires SIPs to provide for consultation and participation in SIP development by local political subdivisions affectedby the SIP.
No other state or local entities are responsible for developing the SIP. Implementation and enforcement ofopen burning request approvals has been delegated to several local health units. The Departmentretains responsibility for ensuring adequate implementation ofall SIP revisions. No otherportions ofthe SIP have been delegatedto other organizations.
The North Dakota SIP, Chapter 10, addresses the consultation process the Departmentwill use to coordinate with local political subdivisions that are affected by any SIP revisions. NDCC 23-25- 03 also requires consultation by stating that the Department shall:


### NDCC23-25-03.4-Advise, consults andcooperates with otherpublic agencies andwith affectedgroups andindustries. Intergovernmental cooperation, Section 10 of North Dakota's SIP, addresses the process for sharing information and working with othergovernment agencies. Regarding SIP and rule revisions, NDCC 23-25-02.6 requires public notice, the opportunity for public comment, and a public hearing. It 

### states: "The advisory council shall hold a public hearing to consider and recommend the adoption, amendment, or repeal ofrules, regulations , and standards as provided in this chapter. Notice of such public hearing or hearings must be given by publication of a notice of such hearing or hearings in each of the official county newspapers within the state ofNorthDakotaby at least two publications, one week apart, the last publicationbeing at least thirty days prior to the first hearing. The hearing or hearings must be held in the state capitol in Bismarck and interested parties may present witnesses and other evidence pertinent and relevant to proposed rules, regulations and standards. The advisory council shall consider any other matters related to the purposes ofthis chapter and may make recommendations on its own initiative to the Department concerning the administration ofthis chapter."

15

### North Dakota has no nonattainment areas
. Therefore, consultation with affected entities is not required for transportation conformity or other nonattainment area SIP requirements

.

16

### Attachments
1. NDCC 23-01
2

. NDCC 23-25
3

. NDCC 28-32
4. NDAC 33-15-01
5. NDAC 33-15-02
6

. NDAC 33-15-03
7. NDAC 33-15-04
8

. NDAC 33-15-05
9. NDAC 33-15-11
10. NDAC 33-15-12
11. NDAC 33-15-13
12

. NDAC 33-15-14
13

. NDAC 33-15-15
14

. NDAC 33-15-17
15. NDAC 33-15-18
16

. NDAC 33-15-19
17

. NDAC 33-15-21
18

. NDAC 33-15-22
19

. NDAC 33-15-23
20

. NDAC 33-15-25
21. Section 128 CommitmentLetter
22. Public ParticipationDocumentation

17

### a
. Abbreviated Public Notice
b. Full Public Notice

c. Press Release
d. Website Notice

e. Affidavit ofPublication


### f. Invoice ofPublication

g. List ofHearing attendees


### h. Hearing transcript

1. 

### Response to Public Comments


### J. Certification ofHearing

18

## I

- TITLE 23 HEALTH AND SAFETY 

### CHAPTER 23-01 STATE DEPARTMENT OF HEALTH
23-01-01. State department of health - Officers. The state department of health consists of a health council, a state health officer, section chiefs, directors of divisions, and other employees ofthe department.
23-01-01.1. State department of health to replace state department of health and consolidated laboratories. Wherever the terms "North Dakota state department of health", "department of health", "health department", "state department of health and consolidated laboratories", "North Dakota state laboratories department", "state laboratories department", "state laboratories department director", or "state laboratories director" appear in this code, the term "state department of health" must be substituted therefor. Wherever the terms "state food commissioner and chemist" and "commissioner" when referring to the state food commissioner and chemist appear in chapters 19-17 and 19-18, the term "state department of health" must be substituted therefor

. 23-01-01.2. State department of health designated primary state environmental agency. The state department of health is the primary state environmental agency. 23-01-02. Health council - Members, terms of office, vacancies, compensation, officers, meetings. The health council consists of eleven members appointed by the governor in the following manner: four persons from the health care field, five persons representing consumer interests, one person from the energy industry, and one from the manufacturing and processing industry. The governor may select members to the council from recommendations submitted by trade, professional, and consumer organizations. On the expiration of the term of any member, the governor, in the manner provided by this section, shall appoint for a term ofthree years, persons to take the place of members whose terms on the council are about to expire. The officers ofthe council must be elected annually. Any state agency may serve in an advisory capacity to the health council at the discretion of the council. The council shall meet at least twice each year and at other times as the council or its chairman may direct. The health council shall have as standing committees

. any committees the council may find necessary. The chairman of the council shall select the members of these committees

. The members of the council are entitled to receive sixty-two dollars and fifty cents as compensation per day and their necessary mileage and travel expenses as provided in sections 44-08-04 and 54-06-09 while attending council meetings or in the performance of any special duties as the council may direct. The per diem and expenses must be audited and paid in the manner in which the expenses of state officers are audited and paid

. The compensation provided for in this section may not be paid to any member ofthe council who received salary or other compensation as a regular employee of the state, or any of its political subdivisions, or any institution or industry operated by the state.
23-01-02.1. Hospital utilization committees - Internal quality assurance review committees - Reports -Immunity. Repealed by S.L. 1997, ch. 234, 

### § 5.
23-01-03. Powers and duties of the health council. The health council shall: 1. Fix, subject to the provisions of section 23-01-02, the time and place of the meetings ofthe council.
Page No.12. Make rules and regulations for the government of the council and its officers and meetings

. 3. Establish standards, rules, and regulations which are found necessary for the maintenance of public health, including sanitation and disease control. 4

. Provide for the development, establishment, and enforcement of basic standards for hospitals and related medical institutions which render medical and nursing care, and for the construction and maintenance of such institutions, such standards to cover matters pertaining to sanitation , building construction, fire protection measures, nursing procedures, and preservation of medical records. No rule may be adopted with respect to building construction of existing medical hospitals or related medical institutions unless the rule relates to safety factors or the hospital or related medical institution changes the scope of service in such a way that a different license is required from the department pursuant to rules adopted under chapter 23-16. 5. Hold hearings on all matters brought before it by applicants and licensees of medical hospitals with reference to the denial, suspension , or revocation of licenses and make appropriate determination as specified herein

. The council may direct the state health officer to do or cause to be done any or all ofthe things which may be required in the proper performance of the various duties placed upon the state department of health

. 23-01-03.1. Newborn metabolic and genetic disease screening tests. The health council may authorize the use of newborn metabolic and genetic disease screening tests, as provided for in chapter 25-17,for research purposes. The council shall adopt rules to ensure that the results are used for legitimate research purposes and to ensure that the confidentiality ofthe newborns and their families is protected.
23-01-03.2. Duties ofthe health council. The health council shall: 1. Monitor overall health care costs and quality of health care in the state. 2

. Recommend to the appropriate interim legislative committees changes to the health care system in the state

. 3. Publish an annual report on health care in the state.
23-01-03.3. Long-term care nursing scholarship and loan repayment grant program. 1

. The state health council, in cooperation with the North Dakota long term care association, shall administer the long-term care nursing scholarship and loan repayment grant program. The purpose ofthe program is to provide matching funds to nursing facilities for the facilities to use in recruiting and retaining nurses by providing scholarships to nursing facility staff and other individuals to obtain a nursing education and by assisting in the repayment of student loans for licensed nurses employed in a nursing facility

. The state health council shall adopt rules necessary to administer the program , including rules establishing criteria regarding eligibility for and distribution of program grants. 2

. An applicant for a program grant shall establish that the applicant: a. Is a licensed nursing facility; b

. Has available matching funds equal to the amount ofthe grant request; and c. Meets the eligibility criteria established by rule. 3

. An eligible applicant may receive a program grant not exceeding five thousand five hundred dollars in the first year of the biennium

. Any funds appropriated by the legislative assembly for the grant program which are remaining after the first year of the biennium may be distributed to eligible applicants in the second year of the biennium in any amount determined by the state health council.

Page No

. 223-01-04. Effect of rules and regulations. All rules and regulations promulgated by the health council under the powers granted by any provisions ofthis title are binding upon all county and municipal health officers, and upon all county, municipal, and private medical hospitals and upon related institutions, and have the force and effect of law.
23-01-04.1. Rulemaking authority and procedure. 1

. Except as provided in subsection 2, no rule which the state department of health, hereinafter the department, adopts for the purpose of the state administering a program under the federal Clean Air Act, federal Clean Water Act, federal Safe Drinking Water Act, federal Resource Conservation and Recovery Act, federal Comprehensive Environmental Response, Compensation and Liability Act, federal Emergency Planning and Community Right to Know Act of 1986, federal Toxic Substances Control Act, or federal Atomic Energy Act of 1954, may be more stringent than corresponding federal regulations which address the same circumstances. In adopting such rules, the department may incorporate by reference corresponding federal regulations. 2

. The department may adopt rules more stringent than corresponding federal regulations or adopt rules where there are no corresponding federal regulations, for the purposes described in subsection 1, only if it makes a written finding after public comment and hearing and based upon evidence in the record, that corresponding federal regulations are not adequate to protect public health and the environment of the state. Those findings must be supported by an opinion ofthe department referring to and evaluating the public health and environmental information and studies contained in the record which form the basis for the department's conclusions. 3. If the department, upon petition by any person affected by a rule of the department, identifies rules more stringent than federal regulations or rules where there are no corresponding federal regulations, the department shall review and revise those rules to comply with this section within nine months ofthe filing ofthe petition. 4. All existing rules of the department remain in full force and effect after July 10, 1989, pending department review and revision under subsection 3. 5. Any person who is issued a notice of violation, or a denial of a permit or other approval , based upon a rule of the department which is more stringent than a corresponding federal regulation or where there is no corresponding federal regulation, may assert a partial defense to that notice, or a partial challenge to that denial, on the basis and to the extent that the department's rule violates this section by imposing requirements more stringent than corresponding federal regulations, unless the more stringent rule ofthe department has been adopted in compliance with this section. 6. The provisions ofthis section may not be construed so as to require the department to review and propose revisions to any existing rule regarding the collection of fees by the department in connection with the administration of any program identified in subsection 1.
23-01-04.2. Legislative intent - Health vaccination charges. It is the intent of the legislative assembly that the state department of health adopt rules defining appropriate administration charges for vaccine provided by the department to physicians, private clinics, and hospitals

. 23-01-04.3. Alternative health care services pilot project - Application - Notice

- Hearing -Approval - Duration. 1. At any time that the health care needs of a city,township, or other geographic area are not being adequately met, any person may apply to the state health council for approval to conduct an alternative health care services pilot project. The application must address the need for and benefits of the pilot project. It must also contain a

Page No

. 3detailed description of the nature and scope of the project, quality control, organization, accountability, responsibility, and financial feasibility

. 2

. Upon receipt of an application under subsection 1 , the state health council shall schedule a public hearing, send notice to all interested parties, and give public notice ofthe hearing by publication in the official newspaper of each county in the pilot project area. At the hearing, the council shall accept written and oral testimony. The council shall review the application and all testimony presented at the hearing and approve, disapprove, or modify and approve the application based on criteria established by the council. The criteria must address the availability and use of health personnel, facilities, and services. 3

. Notwithstanding any other provisions of law, upon approval of an application submitted under subsection 1 ,the state health council, in consultation with the state health officer and any other public or private entity consulted by the state health council, shall set the standards for the delivery of health care services by the pilot project. The standards may not adversely affect the state's participation in federal medicare and medicaid programs. No more than three separate projects may be operational at any time and no project may be operational for longer than five years

. 23-01-05. Health officer - Qualifications, salary, term, duties -Advisory committee. The governor shall appoint the state health officerwho must have had substantive private or public administrative experience and demonstrated experience in the management of people. The state health officer is entitled to receive a salary commensurate with that person's training and experience. The governor shall set the salary of the state health officer within the limits of legislative appropriations to the department. The state health officer is entitled to receive all necessary traveling expenses incurred in the performance of official business. The state health officer may not engage in any other occupation or business that may conflict with the statutory duties of the state health officer and holds office for a term of four years beginning January 1, 1993. The state health officer is the administrative officer ofthe state department of health. Ifthe governor does not appoint as state health officer a physician licensed in this state, the governor shall appoint at least three licensed physicians recommended by the state medical association to serve as an advisory committee to the state health officer. Each member of the advisory committee is entitled to receive reimbursement of expenses in performing official duties in amounts provided by law for other state officers. The term ofthe advisory committee coincides with the term of the state health officer. A committee member serves at the pleasure of the governor. The duties ofthe state health officer are as follows: 1

. Enforce all rules and regulations as promulgated by the health council. 2. Hold public health unit boards of health responsible for enforcement of state rules, serve in an advisory capacity to public health unit boards of health, and provide for coordination of health activities. 3. Establish and enforce minimum standards of performance of the work of the local department of health. 4. Study health problems and plan for their solution as may be necessary. 5

. Collect, tabulate, and publish vital statistics for each important political or health administrative unit ofthe state and for the state as a whole. 6

. Promote the development of local health services and recommend the allocation of health funds to local jurisdictions subject to the approval ofthe health council. 7

. Collect and distribute health education material. 

### 8

.

9

.



### 10

. Maintain a central public health laboratory and where necessary, branch laboratories for the standard function of diagnostic, sanitary and chemical

.examinations, and production and procurement of therapeutic and biological preparations for the prevention ofdisease and their distribution for public health purposes. Establish a service for medical hospitals and related institutions to include licensing of such institutions according to the standards promulgated by the health council and consultation service to communities planning the construction of new hospitals and related institutions

. Comply with the state merit system policies of personnel administration.
Page No.411. Establish a program to provide information to the surviving family of a child whose cause of death is suspected to have been the sudden infant death syndrome. 12

. Issue any orders relating to disease control measures deemed necessary to prevent the spread of communicable disease. Disease control measures may include special immunization activities and decontamination measures. The state health officer may apply to the district court in ajudicial district where a communicable disease is present for an injunction canceling public events or closing places of business. On application of the state health officer showing the necessity of such cancellation , the court may issue an ex parte preliminary injunction, pending a full hearing. 13. Make bacteriological examination of bodily secretions and excretions and of waters and foods

. 14

. Make preparations and examinations of pathological tissues submitted by the state health officer, by any county superintendent of public health, or by any physician who has been regularly licensed to practice in this state

. 15. Make all required analyses and preparations, and furnish the results thereof, as expeditiously and promptly as possible. 16

. Cause sanitary statistics to be collected and tabulated , and cause to be ascertained by research work such methods as will lead to the improvement of the sanitation of the various parts ofthe state. 17

. From time to time, cause to be issued bulletins and reports setting forth the results of the sanitary and pathological work done in the laboratories embodying all useful and important information resulting from the work carried on in the laboratories during the year, the substance of such bulletins and reports to be incorporated in the annual report ofthe state health officer. 18. Establish by rule a schedule of reasonable fees that may be charged for laboratory analysis

. No charge may be made for any analysis conducted in connection with any public health incident affecting an entire region, community, or neighborhood. 19. a

. Establish a review process for instances in which the department is requested to conduct an epidemiological assessment of a commercial building. The epidemiological assessment must include: (1) A statement ofwhether there are known environmental causes; (2) If there are known environmental causes identified, a recommendation of how they can be remediated or mitigated; and (3) If there are no known environmental causes identified, a statement that no known causes exist. b. Costs for remediation, mitigation, and consultant services are the responsibility of the building owner. Proof of remediation of any identified environmental concern related to the epidemiological assessment is the burden ofthe building owner

. 23-01-05.1. Organ or tissue transplant assistance administration - Standing appropriation. The state health officer shall select a private nonprofit patient-oriented organization incorporated in this state for the purpose of administering financial assistance to organ or tissue transplant patients who are residents of this state. The state health officer shall adopt rules governing administration ofthis section. The organization selected shall administer and provide grants from available funds to alleviate demonstrated financial needs of transplant patients for any costs associated with transplant operations, under guidelines based on current social service eligibility requirements

. There is hereby created as a special fund in the state treasury an organ transplant support fund, the principal and income of which is hereby appropriated to the organization selected under this section

.The organization administering the fund may solicit contributions from private or governmental sources and such contributions may be deposited in the fund.
23-01-05.2. Administration of epinephrine- Liability. 1. The state health officer shall adopt rules to authorize a layperson to administer epinephrine to an individual who has a severe allergic reaction.
Page No

. 52. An individual authorized to administer epinephrine by the state health officer may obtain premeasured doses of epinephrine and the necessary paraphernalia for epinephrine administration from any licensed physician or pharmacist. 3. An individual authorized to administer epinephrine by the state health officer, and the employer of such an individual, is not civilly or criminally liable for any act or omission ofthat individual when acting in good faith while rendering emergency treatment to an individual who has a severe adverse reaction, except when the conduct amounts to gross negligence.
23-01-05.3. Immunization data. 1. The state department of health may establish an immunization information system and may require the childhood immunizations specified in subsection 1 of section 23-07-17.1 and other information be reported to the department. The state department of health may only require the reporting of childhood immunizations and other data upon completion of the immunization information reporting system. A health care provider who administers a childhood immunization shall report the patient's identifying information, the immunization that is administered, and other required information to the department. The report must be submitted using electronic media, and must contain the data content and use the format and codes specified by the department. 2. If a health care provider fails to submit an immunization report required under this section within four weeks ofvaccination: a. That health care provider may not order or receive any vaccine from the North Dakota immunization program until that provider submits all reports required under this section

. b

. The state department of health shall make a report to that health care provider's occupational licensing entity outlining that provider's failure to comply with the reporting requirements under this section

. 3

. Notwithstanding any other provision of law, a health care provider, elementary or secondary school, early childhood facility, public or private postsecondary educational institution, city or county board of health, district health unit, and the state health officer may exchange immunization data in any manner with one another. Immunization data that may be exchanged under this section is limited to the date and type of immunization administered to a patient and may be exchanged regardless ofthe date ofthe immunization

. 23-01-05.4. Department to employ state forensic examiner- Qualifications- Duties. The state department of health may employ and establish the qualifications and compensation of the state forensic examiner. The state forensic examiner must be a physician who is board-certified or board-eligible in forensic pathology, who is licensed to practice in this state, and who is in good standing in the profession. The state forensic examiner shall: 1. Exercise all authority conferred upon the coroner under chapter 11-19.1 and any other law; 2. Consult with local coroners on the performance oftheir duties as coroners; 3

. Conduct investigations into the cause of death of and perform autopsies on any deceased human body whenever requested to do so by the acting local county coroner orthe local state's attorney; 4

. Provide training and educational materials to local county coroners, law enforcement, and any other person the state forensic examiner deems necessary; 5

. Maintain complete records of the cause, manner, and mode of death necessary for accurate health statistics and for public health purposes; and 6

. Perform other duties assigned by the state health officer.
23-01-05.5. Autopsy reports - Confidential - Exceptions. 1

. As used in this section:

Page No.6a

. "Autopsy report" means the report of the forensic examiner or the examiner's designee on the post-mortem examination of a deceased individual to determine the cause and manner of death, including any written analysis, diagram, photograph , or toxicological test results. b. "Report of death" means the official findings on the cause of death and manner of death issued by the state forensic examiner, the examiner's designee, county coroner, or pathologist performing an autopsy ordered by a county coroner or by the state forensic examiner and which is the face page of the autopsy report identifying the decedent and stating the cause of death and manner of death. 2. An autopsy report and any working papers and notes relating to an autopsy report are confidential and may be disclosed only as permitted by this section

. The report of death is a public record subject to disclosure under section 44-04-18. 3

. Subject to the limitations on the disclosure of an autopsy photograph or other visual image or video or audio recording of an autopsy required under section 44-04-18

.18, any working papers and notes relating to a final autopsy report may be disclosed pursuant to a court order and as otherwise expressly provided by law. 4

. The state forensic examiner or the examiner's designee shall disclose a copy of the autopsy report: a. To any county coroner, including a coroner in any state or Canadian province, with jurisdiction over the death, and the coroner may use or disclose these records for purposes of an investigation, inquest, or prosecution. b

. To any state's attorney or criminal justice agency, including a prosecutor or criminal justice agency ofthe United States, any state, or any Canadian province, with jurisdiction over an investigation of the death and the state's attorney or criminal justice agency may use or disclose these records for the purposes of an investigation or prosecution

. c

. To workforce safety and insurance ifthe death is related to the decedent's work, and to any other workers' compensation or other similar program, established by law, that provides benefits for work-related injuries or illness without regard to fault ifthere is no criminal investigation. d

. To the child fatality review panel ifthere is no active criminal investigation. e. In accordance with a court order

. 5. The state forensic examiner or the examiner's designee upon request shall disclose a copy ofthe autopsy report to: a

. The decedent's personal representative and to the decedent's spouse, child, or parent, upon proof ofthe relationship, ifthere is no active criminal investigation. b. A physician or hospital who treated the deceased immediately prior to death if there is no active criminal investigation. c. An insurance company upon proof that the decedent's life was covered by a policy issued by the company ifthere is no active criminal investigation. d. The food and drug administration, the national transportation safety board, the occupational health and safety administration, and any other federal or state agency with authority to obtain an autopsy report to investigate a death resulting from the decedent's type of injury or illness

. e

. A professional or research organization collecting data to initiate or advance death investigation standards, after the identifiers necessary to create a limited data set under title 45, Code of Federal Regulations, part 164, section 514, subsection e have been removed from the report

. 6

. The forensic examiner,the examiner's designee, any county coroner or county medical coroner, and any public employee who, in good faith , discloses autopsy findings, an autopsy report, or other information relating to an autopsy report or cause of death to a person who the public official or employee reasonably believes is entitled to that information under this section is immune from any liability, civil or criminal , for making that disclosure. For the purposes of any proceeding, the good faith of any public employee who makes a disclosure under this section is presumed

.

Page No

. 723-01-06. Biennial report - Contents. The state health officer shall submit a biennial report to the governor and the secretary of state in accordance with section 54-06-04. In addition to any requirements established pursuant to section 54-06-04,the report must cover the following subjects: 1. The activities of the various divisions, the work accomplished during the two years covered by the report, and an analysis ofthe program of each ofthe divisions

. 2

. The expenditures ofthe state department of health

. 3. The expenditures in each county board of health orthe district board of health

. 4

. Any reports relating to the hospital program as required by the health council.
23-01-07. Structure of department. Repealed by S

.L. 1993, ch. 218, 

### § 10

. 23-01-08. Directors of divisions- Deputy- Appointment, salary, duties. The state health officer shall appoint directors ofthe various divisions ofthe department and shall determine the salary,within the limits of legislative appropriations to the department and in conformity with the state merit system, to be received by such persons

. The duties of such director must be those prescribed by the state health officer. The state health officer may appoint a deputy state health officer

. A deputy state health officer who does not hold a health-related degree may not individually issue an order regarding public health unless the order is cosigned by a physician who is employed by the department or cosigned by the state epidemiologist. The deputy state health officer serves at the pleasure ofthe state health officer.
23-01-09. Duties of director of consolidated laboratories branch. Repealed by S.L

. 1993, ch. 218, 

### § 10

. 23-01-09.1. Duties of state toxicologist. Repealed by S.L

. 2003, ch

.469, 

### § 13

. 23-01-10. Office space. The state shall provide suitable office space in Bismarck for housing and maintaining the state department of health

. Special fireproof vaults must be provided for the storage of birth and death certificates.
23-01-11. Acceptance of funds and right to qualify for benefits under federal laws authorized. The state department of health may: 1

. Accept funds from cities, counties, the federal government, private organizations, and individuals for infancy and maternal hygiene, for other public health work and for the purpose of conducting a survey of existing medical hospitals and related institutions, planning of needed hospital construction and for construction and maintenance of such medical hospitals and related institutions. When approved by the governor ofthis state, the state department of health may match the same from any unexpended portion of its appropriation in accordance with specifications agreed to or required by congressional act. All infancy and maternal hygiene and public health work must be done underthe supervision ofthe state department of health

. 2

. Adopt rules necessary to enable the state to be in compliance with any federal laws in order to qualify for any federal funds related to medical facilities or agencies licensed by the state department of health.
23-01-12. Hospital records to be kept at direction of state health officer. When any person is admitted into a lying-in hospital or other institution, public or private, to which persons resort for the treatment of disease or for confinement, or to which persons are committed by process of law, the superintendent, manager, or other person in charge of such institution shall make a record of all the personal and statistical particulars relative to such
Page No

. 8person

.The record must be in such form as is directed by the state health officer. In the case of any person admitted or committed for medical treatment of disease, the physician in charge shall specify for entry in the records the nature of the disease and where, in the physician's opinion , it was contracted

.The personal particulars and information required for compliance with the provisions ofthis section must be obtained from the individual personally if practicable, and when the information cannot be obtained from the individual, from the individual's relatives or friends or from any other person acquainted with the facts

. 23-01-13. Blood plasma- Obtaining, storing, and distributing. Repealed by S.L. 1991 , ch

. 263, 

### § 1

. 23-01-14. State department of health authorized to transfer future accumulated fees

. As a continuing policy, the state department of health may automatically from time to time transfer unclaimed fees on deposit with the Bank of North Dakota or other authorized depository to the state general fund when the unclaimed status has existed for a period of at least three years

. 23-01-15. Research studies confidential - Penalty. 1. All information, records of interviews, written reports, statements, notes, memoranda, or other data procured by the state department of health, in connection with studies conducted by the state department of health, or carried on by the department jointly with other persons, agencies, or organizations, or procured by such other persons, agencies, or organizations, for the purpose of reducing the morbidity or mortality from any cause or condition of health is confidential and must be used solely for the purposes of medical or scientific research

. 2. Such information, records, reports, statements, notes, memoranda, or other data is not admissible as evidence in any action of any kind in any court or before any other tribunal , board, agency, or person

. Such information, records, reports, statements, notes, memoranda, or other data may not be exhibited nor their contents disclosed in any way, in whole or in part, by any officer or representative ofthe state department of health, nor by any other person, except as may be necessary for the purpose of furthering the research project to which they relate

. No person participating in such research project may disclose, in any manner, the information so obtained except in strict conformity with such research project. No officer or employee of said department may interview any patient named in any such report, nor a relative of any such patient, unless the consent ofthe attending physician and surgeon is first obtained

. 3. The furnishing of such information to the state
-department of health or its authorized representative, or to any other cooperating agency in such research project, does not subject any person , hospital, sanitarium, rest home, nursing home, or other person or agency furnishing such information,to any action for damages or other relief.
23-01-16. Dairy products- Joint standards. The state department of health and the dairy department of the department of agriculture shall jointly adopt a set of uniform standards in relation to all matters falling within their joint jurisdiction regarding dairy products. The state department of health, district health units, municipal health departments or units, and the dairy department shall each be permitted to accept any inspection report of the other department or unit regarding the inspection of dairy products and the producers and processors of such products, when such report is based substantially upon standards conforming with the milk ordinance and code recommended by the United States public health service

. 23-01-17. Noise harmful to health and safety- Power to regulate- Hearings- AppealPenalty -Injunction. Repealed by S

.L

. 1991 , ch

. 264, 

### § 1.

Page No

. 923-01-18. State department of health responsible for control of rabies. Repealed by S

.L

. 1999, ch. 243, 

### § 2

. 23-01-19. Extermination of rabies. Repealed by S.L. 1999, ch

. 243, 

### § 2

. 23-01-20. Traumatic head injury defined. Repealed by S.L. 1999, ch. 231, 

### § 1.
23-01-21. Central registry oftraumatic head injury - Establishment - Reports. Repealed by S.L. 1999, ch. 231 , 

### § 1

. 23-01-22. Department to employ waste management facility inspectors. The state department of health shall employ and establish the qualifications, duties, and compensation of at least one full-time inspector for each commercial, nonpublicly owned waste management disposal or incineration facility that accepts more than twenty-five thousand tons [22679.5 kilograms] per year of hazardous waste, industrial waste, nuclear waste, or ash resulting from the incineration of municipal solid waste. This section does not apply to any energy conversion facility or coal mining operation that disposes of its solid waste onsite. The department may require inspectors for those facilities that accept less than twenty-five thousand tons [22679.5 kilograms] per year

. The facility inspector shall conduct regular inspections ofthe operating procedure and conditions ofthe facility and report the findings to the department on a regular basis. If an inspector discovers a condition at a facility that is likely to cause imminent harm to the health and safety of the public or environment, the inspector shall notify the department. The department shall proceed as provided by sections 23-29-10 and 23-29-11. The department shall assess the owner or operator of a waste management facility that accepts hazardous waste, industrial waste, nuclear waste, or ash resulting from the incineration of municipal solid waste an annual fee to pay the salaries, wages, and operating expenses associated with employing an inspector for the facility. The owner or operator ofthe facility shall submit the fee to the department by July first of each year. Any fees collected must be deposited in the department's operating fund in the state treasury and any expenditures from the fund are subject to appropriation by the legislative assembly. Ifa facility begins operation after July first of any year, the owner or operator ofthe facility shall pay to the department a prorated fee for the fiscal year before the facility may begin accepting waste. Moneys in the waste management facility account may be spent by the department within the limits of legislative appropriation.
23-01-23. Permit or investigatory hearings - Exemption from chapters 28-32 and 54-57. A permit hearing conducted for purposes of receiving public comment or an investigatory hearing conducted under chapters 23-20

.1 , 23-20

.3, 23-25, 23-29, 61-28, and 61-28.1 is not an adjudicative proceeding under chapter 28-32 and is not subject to the requirements of chapter 54-57

. 23-01-24. Health care cost and quality review program - Penalty. The department of health shall conduct a continuous program to review and improve the quality of health care in the state. The department may contract with a qualified person or organization to develop

.and implement the program. The department shall use the program to compile relevant information about the quality of health care in this state which will allow the department to evaluate the cost, quality, and outcomes of health care. The department shall establish and consult a provider advisory committee composed of health care providers regarding the data that is a cost-effective process for collecting and evaluating the information

. The state health officer may assess against a provider a penalty of one hundred dollars per day for each day the provider willfully refuses to provide the department with information requested for use with the program, but the penalty may not exceed one thousand dollars for each request. A provider against whom a fee is assessed may appeal that assessment to the state

Page No. 10 

# . Ihealth council. If the provider fails to pay the penalty, the health council may, in the county where the provider's principal place of business is located, initiate a civil action against the provider to collect the penalty. As used in this section , "provider" means a person who is licensed, certified , or otherwise authorized by the law of this state to administer health care in the ordinary course of business or professional practice

. The department shall ensure that patient privacy is protected throughout the compilation and use of the information. The department shall evaluate data management capabilities in the state and shall organize its capabilities to provide information about the cost of care on an individual provider basis as well as a collective basis

. 23-01-25. Commercial feed, insecticide, fungicide, rodenticide, fertilizer, and soil conditioner laws - Laboratory function. Notwithstanding any other provision of law, any laboratory test or analysis required under chapter 19-13

.1 , 19-18, or 19-20

.1 must be performed by the state department of health for the agriculture commissioner at no charge

. 23-01-26. State department of health -Indirect cost recoveries. Notwithstanding section 54-44.1-15, the state department of health may deposit indirect cost recoveries in its operating account.
23:..01-27. Donated dental services program. The state department of health shall contract with the North Dakota dental association , or other appropriate and qualified organizations, to develop and administer a donated dental services program through which volunteer dentists provide comprehensive dental care for needy, disabled, aged, or medically compromised individuals. The volunteers will treat individuals through the program and, with the exception of certain dental laboratory costs, will fully donate their services and supplies. The contract must specify the responsibilities of the administering organization and include: 1. Establishment of a network ofvolunteer dentists, including dental specialists,volunteer dental laboratories, and other appropriate volunteer professionals to donate dental services to eligible individuals; 2. Establishment of a system to refer eligible individuals to appropriate volunteers; 3. Development and implementation of a public awareness campaign to educate eligible individuals about the availability ofthe program; 4

. Provision of appropriate administrative and technical support to the program; and 5. Submission ofan annual report to the state department of health that: a

. Accounts for all program funds; b. Reports the number of individuals served by the program and the number of dentists and dental laboratories participating as providers in the program; c. Includes any other information required by the state department of health; and d

. Performs, as required by the state department of health, any other duty relating to the program

. 23-01-28. Combined purchasing with local public health units - Continuing appropriation. The state department of health may make combined or joint purchases with or on behalf of local public health units for items or services

. Payments received by the state department of health from local public health units pursua11t to a combined orjoint purchase must be deposited in the operating fund and are appropriated as a standing and continuing appropriation to the state department of health for the purpose ofthis section

. 23-01-29. Bone marrow donor education. The state department of health shall provide information and educational materials to the public regarding bone marrow donation through the national marrow donor program. The department shall seek assistance from the national marrow donor program to establish a

Page No

. 11system to distribute materials, ensure that the materials are updated periodically, and address the education and recruitment of minority populations.
23-01-30. Zoning regulation of concentrated animal feeding operations - Central repository. The state department of health shall establish , operate, and maintain an electronically accessible central repository for all county and township zoning regulations that pertain to concentrated animal feeding operations. The county auditor of a county and the township clerk ofa township having a zoning regulation that pertains to concentrated animal feeding operations shall file the regulation with the state department of health for inclusion in the central repository.
23-01-31. North Dakota health information technology steering committee. Repealed by S.L. 2009, ch. 519, 

### § 6

. 23-01-32. Viral hepatitis program -Vaccination - Study. 1. The state department of health shall establish and administer a viral hepatitis program with the goal of distributing to residents of the state who are at an increased risk for exposure to viral hepatitis information that addresses the higher incidence of hepatitis C exposure and infection among these populations, addresses the dangers presented by the disease, and provides contacts for additional information and referrals. 2. The department shall establish a list of classes of individuals by category that are at increased risk for viral hepatitis exposure

. The list must be consistent with recommendations developed by the federal centers for disease control and prevention. The department shall determine the type of information the department will distribute under the program and the form and manner of distribution

. 3. The department shall establish a vaccination and testing program, to be coordinated by the department through local public health units.
23-01-33. Human papilloma virus -Information. The state department of health shall educate the public about the human papilloma virus and the availability of a human papilloma virus vaccine; promote immunization against the human papilloma virus; and distribute informational material regarding the human papilloma virus and the human papilloma virus vaccine

. The department shall distribute the informational material through relevant department programs and divisions, including breast and cervical cancer control programs; immunization programs; family planning programs; and human immunodeficiency virus and sexually transmitted disease programs

. Informational materials distributed must include the recommendations of the advisory committee on immunization practices of the federal centers for disease control and prevention; contain information relevant to the target populations of each of the participating programs and divisions distributing the informational material; and contain information regarding the availability of the vaccine through the vaccines for children program operated by the department under 42 U.S

.C. 1396s, and the medical assistance program

. 23-01-34. Children with special health care needs - Program administration. The state department of health shall administer programs for children with special health care needs as may be necessary to conform to title 5, part 2, of the federal Social Security Act, as amended through July 1 , 2007 [Pub

. L

. 74-271 ; 49 Stat. 620; 42 U.S.C. 701 et seq.), including providing services and assistance to children with special health care needs and their families and developing and operating clinics for the identification, screening, referral, and treatment ofchildren with special health care needs

.

Page No. 1223-01-35. Tattooing, body piercing, branding, subdermal implants, or scarification

- Permit- Fee -Adoption of rules - Exemptions - Injury reports. 1

. A person may not operate a facility providing tattooing, body piercing, branding, subdermal implant, or scarification services without a permit issued by the department under this section. The holder of a permit shall display the permit in a conspicuous place at the facility for which the permit is issued. A permit issued under this section expires annually

. An applicant for a permit shall submit an application for a permit to the department, on a form provided by the department, with a permit fee established by the department. The application must include the name and c9mplete mailing address and street address of the facility and any other information reasonably required by the department for the administration ofthis section

. 2

. The health council shall adopt rules to regulate any person that receives compensation for engaging in the practice of tattooing , body piercing, branding, subdermal implants, or scarification

. The rules must establish health and safety requirements and limitations with respect to the age of an individual who may receive a tattoo, body piercing, or scarification and may prohibit any practice that the health council deems unsafe or a threat to public health. 3. A facility is exempt from subsection 1 ifthe facility provides body piercing that is limited to the piercing ofthe noncartilaginous perimeter or lobe ofthe ear and the facility do
· es not provide tattooing , branding, scarification, or subdermal implants. A person is exempt from regulation under subsection 2 ifthe person's practice under this section is limited to piercing of the noncartilaginous perimeter or lobe of the ear. A licensed health care professional acting within that professional's scope of practice and the associated medical facility are exempt from this section. 4

. Ifa customer of a facility regulated under this section reports to the facility an injury the customer or operator of the facility believes to have resulted from the tattooing, body piercing, branding, subdermal implanting, or scarification provided at the facility, the operator of the facility shall provide the customer with written information on how to report the alleged injury to the state department of health. If a licensed health care professional treats a patient for an injury the professional determines, in the exercise of professional judgment, occurred as a result of a service regulated under this section , the professional shall report the circumstances to the
·state department of health. A licensed health care professional is immune from liability for making or not making a report under this subsection. 5. The fees established by the department must be based on the cost of conducting routine and complaint inspections and enforcement actions and preparing and sending license renewals. Fees collected under this section must be deposited in the department's operating fund in the state treasury and any expenditure from the fund is subject to appropriation by the legislative assembly. The department shall waive all or a portion ofthe fee for any facility that is subject to local jurisdiction.
23-01-36. Appeal from permit proceedings. An appeal from the issuance, denial, modification, or revocation of a permit issued under chapter 23-20.3, 23-25, 23-29, or 61-28 may be made by the person who filed the permit application , or by any person who is aggrieved by the permit application decision, provided that person participated in or provided comments during the hearing process for the permit application , modification, or revocation

.An appeal must be taken within thirty days after the final permit application determination is mailed by first-class mail to the permit applicant and to any interested person who has requested a copy of the final permit determination during the permit hearing process. Except as provided in this section , an appeal of the final permit determination is governed by sections 28-32-40, 28-32-42, 28-32-43, 28-32-44, 28-32-46, and 28-32-49. The department may substitute final permit conditions and written responses to public comments for findings of fact and conclusions of law

. Except for a violation of chapter 23-20.3, 23-25, 23-29, or 61-28 which occurs after the permit is issued, or any permit condition, rule, order, limitation, or other applicable requirement implementing those chapters which occurs after the permit is issued, any challenge to the department's issuance, modification, or revocation of the permit or
Page No

. 13permit conditions must be made in the permit hearing process and may not be raised in any collateral or subsequent legal proceeding, and the applicant and any aggrieved person may raise on appeal only issues that were raised to the department in the permit hearing process

. 23-01-37. Survey program- Health facilities construction or renovation projects. 1. The state department of health shall conduct a life safety survey process for all health facilities licensed by the division of health facilities of the state department of health during and at the conclusion of a construction, renovation, or construction and renovation project. 2

. The department may charge a reasonable fee for the review of plans for construction, renovation, or construction and renovation projects performed under this section based on the size of the project. Revenues derived from the fees collected under this subsection must be deposited in the department's operating fund in the state treasury. 3. The department shall design and operate the program in a manner that will provide that the surveyor that performs a life safety survey under this section does not violate the federal requirements associated with medicare-certified life safety surveys.
23-01-38. Electronic drug prior authorization and transmission - Limitations. 1

. Effective August 1 , 2013, a drug prior authorization request must be accessible to a health care provider with the provider's electronic prescribing software system and must be accepted electronically, through a secure electronic transmission, by the payer, by the insurance company, or by the pharmacy benefit manager responsible for implementing or adjudicating or for implementing and adjudicating the authorization or denial ofthe prior authorization request. For purposes ofthis section , a facsimile is not an electronic transmission. 2

. Effective August 1 , 2013, electronic transmission devices used to communicate a prescription to a pharmacist may not use any means or permit any other person to use any means, including advertising, commercial messaging, and popup advertisements, to influence or attempt to influence through economic incentives the prescribing decision of a prescribing practitioner at the point of care. Such means may not be triggered by or be in specific response to the input, selection , or act of a prescribing practitioner or the prescribing practitioner's staff in prescribing a certain pharmaceutical or directing a patient to a certain pharmacy. Any electronic communication sent to the prescriber, including advertising, commercial messaging, or popup advertisements must be consistent with the product label, supported by scientific evidence, and meet the federal food and drug administration requirements for advertising pharmaceutical products

. 3. Electronic prescribing software may show information regarding a payer's formulary if the software is not designed to preclude or make more difficult the act of a prescribing practitioner or patient selecting any particular pharmacy or pharmaceutical.
23-01-39. Immunization program - Provider choice - Purchasing. 1

. As used in this section: a. "Department" means the state department of health. b. "North Dakota immunization advisory committee" means the group of private health care providers, local public health units, department staff, and other applicable individuals which makes immunization and vaccine selection recommendations to the North Dakota immunization program. c. "North Dakota immunization program" means the program administered by the department to provide vaccinations to North Dakota children consistent with state and federal law. d. "Program-eligible child" means any child , who is under nineteen years of age, whose custodial parent or legal guardian resides in this state

. e. "Vaccine" means any vaccine recommended by the federal advisory committee on immunization practices ofthe centers for disease control and prevention

.
Page No. 14f. "Vaccines for children program" is a federally funded program that provides vaccines at no cost to eligible children pursuant to section 1928 of the Social SecurityAct [42 U.S.C. 1396s]. 2. As part ofthe North Dakota immunization program: a

. The department shall implement a provider choice system as part of the state's implementation ofthe vaccines for children program. This provider choice system must provide a health care provider participating in the state's vaccines for children program or in any other immunization program for children, adolescents, or adults which is administered through the state using federal or state funds, may select any licensed vaccine, including combination vaccines, and any dosage forms that have in effect a recommendation from the federal advisory committee on immunization practices

. This subsection does not apply in the event of a disaster, public health emergency, terrorist attack, hostile military or paramilitary action, or extraordinary law enforcement emergency

. b

. The department shall establish a program through which the department purchases vaccines through the federal vaccine purchasing contract. (1) The department shall supply public health units with the purchased vaccines. A public health unit that receives vaccines under this subdivision shall administerthe vaccines to program-eligible children

. (2) A public health unit that receives vaccines under this purchasing program may not bill an insurer for the cost of the vaccine but may charge an administration fee

. (3) The department shall fund this purchasing program through participation in the vaccines for children program , the federal section 317 vaccine program, and state funds appropriated for this purpose. If it appears there will be inadequate funds to fund this purchasing program, the department shall petition the emergency commission for a transfer from the state contingency fund

. The emergency commission may grant the transfer request, or so much thereof as may be necessary,to fund this purchasing program.

Page No

. 15

### CHAPTER 23-25 AIR POLLUTION CONTROL
23-25-01. Definitions. For purposes ofthis chapter,the following words and phrases are defined: 1

. "Air contaminant" means any solid, liquid, gas, or odorous substance, or any combination thereof

. 2

. "Air pollution" means the presence in the outdoor atmosphere of one or more air contaminants in such quantities and duration as is or may be injurious to human health, welfare, or property, animal or plant life, or which unreasonably interferes with the enjoyment of life or property

. 3

. "Air quality standard" means an established concentration , exposure time, or frequency of occurrence of a contaminant or multiple contaminants in the ambient air which may not be exceeded

. 4. "Ambient air" means the surrounding outside air

. 5. "Asbestos abatement" means any demolition, renovation, salvage, repair, or construction activity which involves the repair, enclosure, encapsulation , removal, handling, or disposal of more than three square feet [0

.28 square meter] or three linear feet [0

.91 meter] of friable asbestos material. Asbestos abatement also means any inspections, preparation of management plans, and abatement project design for both friable and nonfriable asbestos material. 6. "Asbestos contractor" means any partnership, firm, association , corporation , limited liability company, or sole proprietorship that contracts to perform asbestos abatement for another

. 7. "Asbestos worker" means any person engaged in the abatement of more than three square feet [0.28 square meter] or three linear feet [0.91 meter] of friable asbestos material, except for individuals engaged in abatement at their private residence

. 8. "Emission" means a release ofair contaminants into the ambient air. 9. "Emission standard" means a limitation on the release of any air contaminant into the ambient air

. 10. "Friable asbestos material" means any material containing more than one percent asbestos that hand pressure or mechanical forces expected to act on the material can crumble, pulverize, or reduce to powderwhen dry

. 11. "Indirect air contaminant source" means any facility, building, structure, or installation, or any combination thereof, which can reasonably be expected to cause or induce emissions ofair contaminants

. 12. "Lead-based paint" means paint or other surface coatings that contain lead equal to or in excess of 1.0 milligram per square centimeter or more than 0.5 percent by weight. 13

. "Person" means any individual, corporation, limited liability company, partnership, firm , association, trust, estate, public or private institution, group, agency, political subdivision ofthis state, any other state or political subdivision or agency thereof, and any legal successor, representative agency, or agency ofthe foregoing

. 23-25-01.1. Declaration of public policy and legislative intent. It is hereby declared to be the public policy of this state and the legislative intent of this chapter to achieve and maintain the best air quality possible, consistent with the best available control technology, to protect human health, welfare, and property, to prevent injury to plant and animal life, to promote the economic and social development of this state, to foster the comfort and convenience of the people, and to facilitate the enjoyment of the natural attractions of this state

. 23-25-02. State air pollution control agency- Advisory council. 1

. The state department of health, hereinafter referred to as the department, is hereby designated as the agency to administer and coordinate a statewide program of air pollution control consistent with the provisions ofthis chapter.

Page No

. 12

. There is hereby established an air pollution control advisory council, hereinafter referred to as the advisory council, of nine members to include the state health officer, the state geologist, the director of the department of transportation, and six other members to be appointed by the governor, one of whom must be a representative of county or municipal government, one a representative ofthe solid fuels industry, one a representative of the fluid and gas fuels industry, one a representative of the environmental sciences, and two appointed at large. 3

. The term of office for the appointed members of the advisory council must be six years, but of those four first appointed, two shall serve for two years and two for four years, and the lengths oftheir terms must be designated by the governor at the time of appointment. 4. The advisory council shall select its own chairman from among its members. The state health officer, state geologist, and director of the department of transportation each may designate a principal deputy or assistant to act in the officer's place and stead

. The chief sanitary engineer of the state department of health, or that officer's designated assistant, must be the principal administrative officer ofthe council. 5. The advisory council shall hold at least one regular meeting each year, and such additional meetings as the chairman deems necessary, at a time and place to be fixed by the chairman

. Special meetings must be called by the chairman on the written request ofany three members. Five members constitute a quorum

. 6. The advisory council shall hold a public hearing to consider and recommend the adoption, amendment, or repeal of rules, regulations, and standards as provided in this chapter. Notice of such public hearing or hearings must be given by publication of a notice of such hearing or hearings in each of the official county newspapers within the state of North Dakota by at least two publications, one week apart, the last publication being at least thirty days prior to the first hearing. The hearing or hearings must be held in the state capitol in Bismarck and interested parties may present witnesses and other evidence pertinent and relevant to proposed rules, regulations, and standards

. The advisory council shall consider any other matters related to the purposes of this chapter and may make recommendations on its own initiative to the department concerning the administration ofthis chapter

. 23-25-03. Power and duties ofthe department. The department shall: 1

. Encourage the voluntary cooperation of persons or affected groups to achieve the purposes ofthis chapter

. 2

. Determine by scientifically oriented field studies and sampling the degree of air pollution in the state and the several parts thereof

. 3

. Encourage and conduct studies, investigations, and research relating to air pollution and its causes, effects, prevention, abatement, and control. 4. Advise, consult, and cooperate with other public agencies and with affected groups and industries. 5

. Issue such orders as may be necessary to effectuate the purposes ofthis chapter and enforce the same by all appropriate administrative and judicial procedures. 6. Provide rules and regulations relating to the construction of any new direct or indirect air contaminant source or modification of any existing direct or indirect air contaminant source which the department determines will prevent the attainment or maintenance of any ambient air quality standard, and require that prior to commencing construction or modification of any such source, the owner or operator thereof shall submit such information as may be necessary to permit the department to make such determination. 7

. Establish ambient air quality standards for the state which may vary according to appropriate areas. 8

. Formulate and promulgate emission control requirements for the prevention, abatement, and control of air pollution in this state including achievement of ambient air quality standards.
Page No

. 29. Hold hearings relating to any aspect or matter in the administration ofthis chapter, and in connection therewith, compel the attendance of witnesses and the production of evidence. 10

. Require the owner or operator of a regulated air contaminant source to establish and maintain such records; make such reports; install, use, and maintain such monitoring equipment or methods; sample such emissions in accordance with such methods, at such locations, intervals, and procedures; and provide such other information as may be required. 11. Provide by rules and regulations a procedure for the handling of applications for the granting of a variance to any person who owns or is in control of any plant, establishment, process, or equipment. The granting of a variance is not a right of the applicant but must be in the discretion ofthe department. 12

. Provide by rules any procedures necessary and appropriate to develop, implement, and enforce any air pollution prevention and control program established by the Federal Clean Air Act, as amended, and the authorities and responsibilities of which are delegatable to the state by the United States environmental protection agency. Such rules may include any and all enforceable ambient standards, emission limitations, and other control measures, means, techniques, or economic incentives such as fees, marketable permits, and auctions ofemissions rights as provided by the Act. The department shall develop and implement such federal programs if the department determines there is a benefit to the state. 13. Provide by rules a program for implementing lead-based paint remediation training, certification, and performance requirements in accordance with title 40, Code of Federal Regulations, part 745, sections 220, 223, 225, 226, 227, and 233. After consultation with the advisory council, the department is empowered to adopt, amend, and repeal rules and regulations implementing and consistent with this chapter.
23-25-03.1. Licensing of asbestos and lead-based paint contractors and certification of asbestos and lead-based paint workers. The department is charged with the responsibility of administering and enforcing a licensing program for asbestos contractors and lead-based paint contractors and a certification program for asbestos workers and lead-based paint workers and is given and charged with the following powers and duties: 1

. To require training of, and to examine, asbestos workers and lead-based paint workers

. 2

. To establish standards and procedures for the licensing of contractors, and the certification of asbestos workers engaging in the abatement of friable asbestos materials or nonfriable asbestos materials that become friable during abatement, and to establish performance standards for asbestos abatement. The performance standards will be as stringent as those standards adopted by the United States environmental protection agency pursuant to section 112 of the Federal Clean AirAct, as amended. 3

. To establish standards and procedures for the licensing of contractors and the certification of lead-based paint workers engaging in the abatement of lead-based paint and to establish performance standards for lead-based paint abatement in accordance with title 40, Code of Federal Regulations, part 745, sections 220, 223, 225, 226, 227, and 233. 4. To issue certificates to all applicants who satisfy the requirements for certification under this section and any rules under this section , to renew certificates, and to suspend or revoke certificates for cause after notice and opportunity for hearing. 5. To establish an annual fee and renewal fees for licensing asbestos contractors and lead-based paint contractors and certifying asbestos and lead-based paint workers and to establish examination fees for asbestos and lead-based paint workers under section 23-25-04

.2. The annual , renewal , and examination fees for lead-based contractors and workers may not exceed those charged to asbestos contractors and workers

. Page No

. 36. To establish indoor environmental nonoccupational air quality standards for asbestos

. 7

. To adopt and enforce rules as necessary for the implementation ofthis section. For nonpublic employees performing asbestos abatement in facilities or on facility components owned or leased by their employer, only the provisions of rules adopted in accordance with the federal Asbestos Hazard Emergency Response Act of 1986 [Pub. L. 99-519; 100 Stat. 2970; 15 U.S.C

. 2641 et seq

.], as amended, or the federal Clean AirAct [Pub

. L

. 95-95; 91 Stat. 685; 42 U

.S

.C. 7401 et seq

.], as amended, apply to this section. This does not include ownership that was acquired solely to effect a demolition or renovation

. 23-25-03.2. Sulfur dioxide ambient air quality standards more strict than federal standards prohibited. The department may not adopt ambient air quality rules or standards for sulfur dioxide that affect coal conversion facilities or petroleum refineries that are more strict than federal rules or standards under the Clean Air Act [42 U

.S

.C

. 7401 et seq

.], nor may the department adopt ambient air quality rules or standards for sulfur dioxide that affect these facilities and refineries when there are no corresponding federal rules or standards

.Any ambient air quality standards that have been adopted by the department for sulfur dioxide that are more strict than federal rules or standards under the Clean AirAct, or for which there are no corresponding federal rules or standards, are void as to coal conversion facilities and petroleum refineries. However, the department may adopt rules for dealing with exposures of less than one hour to sulfur dioxide emissions on a source-by-source basis pursuant to any regulatory program for dealing with short-term exposures to sulfur dioxide that may be established under the Clean Air Act. Any intervention levels or standards set forth in the rules, however, may not be more strict than federal levels or standards recommended or adopted under the federal program

. In adopting the rules, the department shall follow all other provisions of state law governing the department's adoption of ambient air quality rules when there are no mandatory corresponding federal rules or standards.
23-25-03.3. Requirements for adoption of air quality rules more strict than federal standards. 1

. Notwithstanding any other provisions of this title, the department may not adopt air quality rules or standards affecting coal conversion and associated facilities, petroleum refineries, or oil and gas production and processing facilities which are more strict than federal rules or standards under the Clean Air Act [42 U

.S.C

. 7401 et seq

.], nor may the department adopt air quality rules or standards affecting such facilities when there are no corresponding federal rules or standards, unless the more strict or additional rules or standards are based on a risk assessment that demonstrates a substantial probability of significant impacts to public health or property, a cost-benefit analysis that affirmatively demonstrates that the benefits of the more stringent or additional state rules and standards will exceed the anticipated costs, and the independent peer reviews required by this section. 2. The department shall hold a hearing on any rules or standards proposed for adoption under this section on not less than ninety days' notice

. The notice of hearing must specify all studies, opinions, and data that have been relied upon by the department and must state that the studies, risk assessment, and cost-benefit analysis that support the proposed rules or standards are available at the department for inspection and copying. If at any time the department intends to rely upon any studies, opinions, risk assessments, cost-benefit analyses, or other information that were not available from the department when it gave its notice of hearing, the department shall give a new notice of hearing not less than ninety days prior to the hearing that clearly identifies the additional or amended studies, analyses, opinions, data, or information upon which the department intends to rely and conduct an additional hearing ifthe first hearing has already been held

. 3. In this section: a. "Cost-benefit analysis" means both the analysis and the written document that contains: Page No

. 4(1) A description and comparison ofthe benefits and costs ofthe rule and ofthe reasonable alternatives to the rule. The analysis

.must include a quantification or numerical estimate of the quantifiable benefits and costs

. The quantification or numerical estimate must use comparable assumptions including time periods, specify the ranges of predictions, and explain the margins of error involved in the quantification methods and estimates being used. The costs that must be considered include the social, environmental, and economic costs that are expected to result directly or indirectly from implementation or compliance with the proposed rule. (2) A reasonable determination whether as a whole the benefits of the rule justify the costs of the rule and that the rule will achieve the rulemaking objectives in a more cost-effective manner than other reasonable alternatives, including the alternative of no government action

. In evaluating and comparing the costs and benefits, the department shall not rely on cost, benefit, or risk assessment information that is not accompanied by data, analysis, or supporting materials that would enable the department and other persons interested in the rulemaking to assess the accuracy, reliability, and uncertainty factors applicable to the information. b. "Risk assessment" means both the process used by the department to identify and quantify the degree of toxicity, exposure, or other risk posed for the exposed individuals, populations, or resources and the written document containing an explanation of how the assessment process has been applied to an individual substance, activity, or condition. The risk assessment must include a discussion that characterizes the risks being assessed. The risk characterization must include the following elements: (1) A description of the exposure scenarios used, the natural resources or subpopulations being exposed, and the likelihood of these exposure scenarios expressed in terms of probability. (2) A hazard identification that demonstrates whether exposure to the substance, activity, or condition identified is causally linked to an adverse effect. (3) The major sources of uncertainties in the hazard identification, dose-response, and exposure assessment portions ofthe risk assessment. (4) When a risk assessment involves a choice of any significant assumption , inference, or model, the department in preparing the risk assessment shall: (a) Rely only upon environmental protection agency-approved air dispersion models. (b) Identify the assumptions, inferences, and models that materially affect the outcome. (c) Explain the basis for any choices

. (d) Identify any policy decisions or assumptions. (e) Indicate the extent to which any model has been validated by, or conflicts with, empirical data

. (f) Describe the impact of alternative choices of assumptions, inferences, or mathematical models. (5) The range and distribution of exposures and risks derived from the risk assessment. c. The risk assessment and cost-benefit analysis performed by the department must be independently peer reviewed by qualified experts selected by the air pollution control advisory council. 4

. This section applies to any petition submitted to the department pursuant to section 23-01-04.1 that identifies air quality rules or standards affecting coal conversion facilities or petroleum refineries that are more strict than federal rules or standards under the Clean Air Act [42 U.S.C. 7401 et seq.] or for which there are no corresponding federal rules or standards, regardless of whether the department has previously adopted the more strict or additional rules or standards pursuant to section
Page No.523-01-04.1. This section also applies to any petitions filed under section 23-01-04

.1 affecting coal conversion facilities or petroleum refineries that are pending on the effective date ofthis section for which new rules or standards have not been adopted, and the department shall have a reasonable amount of additional time to comply with the more stringent requirements of this section

. To the extent section 23-01-04.1 conflicts with this section, the provisions of this section govern

. This section does not apply, however, to existing rules that set air quality standards for odor, hydrogen sulfide,visible and fugitive emissions, or emission standards for particulate matter and sulfur dioxide, but does apply to any new rules governing such matters.
23-25-04. Classification and reporting of air pollution sources. 1. After consultation with the advisory council the department, by rule or regulation , may classify air contaminant sources according to levels and types of emissions and other criteria which relate to air pollution and may require reporting for any of such class or classes

. Classifications made pursuant to this subsection may apply to the state as a whole or to any designated area ofthe state and must be made with special reference to effects on health, economic, and social factors and physical effects on property

. 2. Any person operating or responsible for the operation of air contaminant sources of any class for which rules and regulations of the department require reporting shall make reports containing information as may be required by the department relevant to air pollution.
23-25-04.1. Permits or registration. 1. No person shall construct, install, modify, use, or operate an air contaminant source designated by regulation , capable of causing or contributing to air pollution , either directly or indirectly, without a permit from the department or in violation of any conditions imposed by such permit. 2

. The department shall provide for the issuance, suspension, revocation , and renewal of any permits which it may require pursuant to this section

. 3. The department may require that applications for such permits shall be accompanied by plans, specifications, and such other information as it deems necessary. 4. Possession of an approved permit or registration certificate does not relieve any person of the responsibility to comply with applicable emission limitations or with any other provision of law or regulations adopted pursuant thereto and does not relieve any person from the requirement that that person possess a valid contractor's license issued under chapter 43-07. 5

. The department by rule or regulation may provide for registration and registration renewal of certain air contaminant sources in lieu of the permit required pursuant to this section. 6

. The department may exempt by rule and regulation certain air contaminant sources from the permit or registration requirements set forth in this section when the department makes a finding that the exemption of such sources of air contaminants will not be contrary to section 23-25-01

.1.
23-25-04.2. Fees - Deposit in operating fund. The department by rule or regulation may prescribe and provide for the payment and collection of reasonable fees for the issuance of permits or registration certificates

. The permit or registration certificate fees must be based on the anticipated cost of filing and processing the application , of taking action on the requested permit or registration certificate, and conducting an inspection program to determine compliance or noncompliance with the permit or registration certificate

. Any moneys collected for permit or registration fees must be deposited in the department operating fund in the state treasury and must be spent subject to appropriation by the legislative assembly.

Page No.623-25-05. Right of onsite inspection. 1

. Any duly authorized officer, employee, or agent of the department may enter and inspect any property, premise, or place on or at which an air contaminant source is located or is being constructed, installed, or established at any reasonable time for the purpose of ascertaining the state of compliance with this chapter and rules and regulations enforced pursuant thereto. If requested, the owner or operator of the premises shall receive a report setting forth all facts found which relate to compliance status

. 2

. The department may conduct tests and take samples of air contaminants, fuel, process material, and other materials which affect or may affect emission of air contaminants from any source, and shall have the power to have access to and copy any records required by department rules or regulations to be maintained, and to inspect monitoring equipment located on the premises. Upon request of the department,the person responsible for the source to be tested shall provide necessary holes in stacks or ducts and such other safe and proper sampling and testing facilities exclusive of instruments and sensing devices as may be necessary for proper determination of the emission of air contaminants. If an authorized representative of the department, during the course of an inspection, obtains a sample of air contaminant, fuel , process material, or other material, that representative shall issue a receipt for the sample obtained to the owner or operator of, or person responsible for, the source tested. 3

. For the purpose of ascertaining the state of compliance with this chapter and any applicable rules, any duly authorized officer, employee, or agent of the department may enter and inspect, at any reasonable time, any property, premises, or place on or at which a lead-based paint remediation activity is ongoing. If requested , the department shall provide to the owner or operator of the premises a report that sets forth all facts found which relate to compliance status.
23-25-06. Confidentiality of records. 1. Any record , report, or information obtained under this chapter must be available to the public, except that upon a showing satisfa

_ ctory to the department that the record, report, or information, or particular part thereof, other than emission data, to which the department has access under this chapter, if made public,would divulge trade secrets, the department shall consider the record , report, or information or particular portion thereof confidential in the administration ofthis chapter. 2

. Nothing herein may be construed to prevent disclosure of any report, or record of information to federal , state, or local agencies when necessary for purposes of administration of any federal , state, or local air pollution control laws, or when relevant in any proceeding under this chapter.
23-25-07. Emission control requirements. Repealed by S.L. 1975, ch. 231 , 

### § 11

. 23-25-08. Administrative procedure and judicial review. Any proceeding under this chapter for: 1. The issuance or modification of rules and regulations including emergency orders relating to control of air pollution; or 2

. Determining compliance with rules and regulations ofthe department, must be conducted in accordance with the provisions of chapter 28-32, and appeals may be taken as therein provided

. When an emergency exists requiring immediate action to protect the public health and safety, the department may, without notice or hearing, issue an order reciting the existence of such emergency and requiring that such action be taken as is necessary to meet this emergency. Notwithstanding any provision of this chapter, such order must be effective immediately, but on application to the department an interested person must be afforded a hearing before the state health council within ten days. On the basis of such hearing,
Page No.7the emergency order must be continued , modified, or revoked within thirty days after such hearing. Except as provided for in this section, notice of any hearing held under this chapter must be issued at least thirty days prior to the date specified for the hearing.
23-25-09. Injunction proceedings. Repealed by S

.L. 1975, ch. 231 , 

### § 11.
23-25-10. Enforcement- Penalties -Injunctions. 1

. Any person who willfully violates this chapter, or any permit condition, rule, order, limitation, or other applicable requirement implementing this chapter, is subject to a fine of not more than ten thousand dollars per day per violation, or by imprisonment for not more than one year, or both. If the conviction is for a violation committed after a first conviction of such person under this subsection, punishment must be by a fine of not more than twenty thousand dollars per day per violation, or by imprisonment for not more than two years, or both. 2. Any person who violates this chapter, or any permit condition , rule, order, limitation, or other applicable requirement implementing this chapter, with criminal negligence as defined by section 12.1-02-02, is subject to a fine of not more than ten thousand dollars per day per violation, or by imprisonment for not more than six months, or both. 3. Any person who knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under this chapter or any permit condition, rule, order, limitation, or other applicable requirement implementing this chapter, or who falsifies, tampers with , or knowingly renders inaccurate any monitoring device or method required to be maintained under this chapter or any permit condition , rule, order, limitation, or other applicable requirement implementing this chapter, upon conviction, is subject to a fine of not more than ten thousand dollars per day per violation, or by imprisonment for not more than six months, or both. 4. Any person who violates this chapter, or any permit condition , rule, order, limitation, or other applicable requirement implementing this chapter, is subject to a civil penalty not to exceed ten thousand dollars per day per violation. 5

. Without prior revocation of any pertinent permits, the department, in accordance with the laws of this state governing injunction or other process, may maintain an action in the name of the state against any person to enjoin any threatened or continuing violation of any provision ofthis chapter or any permit condition , rule, order, limitation, or other applicable requirement implementing this chapter.
23-25-11. Regulation of odors - Rules. 1

. In areas located within a city or the area over which a city has exercised extraterritorial zoning as defined in section 40-47-01

.1 , a person may not discharge into the ambient air any objectionable odorous air contaminant that measures seven odor concentration units or higher outside the property boundary where the discharge is occurring. If an agricultural operation as defined by section 42-04-01 has been in operation for more than one year, as provided by section 42-04-02, and the business or residence making the odor complaint was built or established after the agricultural operation was established, the measurement for compliance with the seven odor concentration units standard must be taken within one hundred feet [30.48 meters] of the subsequently established residence, church , school, business, or public building making the complaint rather than at the property boundary of the agricultural operation. The measurement may not be taken within five hundred feet [

.15 kilometer] ofthe property boundary ofthe agricultural operation. 2. In areas located outside a city or outside the area over which a city has exercised extraterritorial zoning as defined in section 40-47-01

.1 , a person may not discharge into the ambient air any objectionable odorous air contaminant that causes odors that

Page No.8measure seven odor concentration units or higher as measured at any ofthe following locations: a

. Within one hundred feet [30.48 meters) of any residence, church , school, business, or public building, or within a campground or public park

. An odor measurem!3nt may not be taken at the residence of the owner or operator ofthe source of the odor, or at any residence, church, school, business, or public building, or within a campground or public park, that is built or established within one-half mile [

.80 kilometer] ofthe source ofthe odor after the source of the odor has been built or established; b

. At any point located beyond one-half mile [

.80 kilometer] from the source of the odor, except for property owned by the owner or operator of the source of the odor, or over which the owner or operator of the source of the odor has purchased an odor easement; or c. Ifa county or township has zoned or established a setback distance for an animal feeding operation which is greater than one-half mile [

.80 kilometer] under either section 11-33-02

.1 or 58-03-11.1 , or ifthe setback distance under subsection 7 is greater than one-half mile [

.80 kilometer], measurements for compliance with the seven odor concentration units standard must be taken at the setback distance rather than one-half mile [

.80 kilometer] from the facility under subdivision b, except for any residence, church, school, business, public building, park, or campground within the setback distance which was built or established before the animal feeding operation was established, unless the animal feeding operation has obtained an odor easement from the preexisting facility

. 3. An odor measurement may be taken only with a properly maintained scentometer, by an odor panel, or by another instrument or method approved by the state department of health, and only by inspectors certified by the department who have successfully completed a department-sponsored odor certification course and demonstrated the ability to distinguish various odor samples and concentrations. If a certified inspector measures a violation of this section, the department may send a certified letter of apparent noncompliance to the person causing the apparent violation and may negotiate with the owner or operator for the establishment of an odor management plan and best management practices to address the apparent violation. The department shall give the owner or operator at least fifteen days to implement the odor management plan

. If the odor problem persists, the department may proceed with an enforcement action provided at least two certified inspectors at the same time each measure a violation and then confirm the violation by a second odor measurement taken by each certified inspector, at least fifteen minutes, but no more than two hours, afterthe first measurement. 4

. A person is exempt from this section while spreading or applying animal manure or other recycled agricultural material to land in accordance with a nutrient management plan approved by the state department of health

.A person is exempt from this section while spreading or applying animal manure or other recycled agricultural material to land owned or leased by that person in accordance with rules adopted by the department. An owner or operator of a lagoon or waste storage pond permitted by the department is exempt from this section in the spring from the time when the cover of the permitted lagoon or pond begins to melt until fourteen days after all the ice cover on the lagoon or pond has completely melted. Notwithstanding these exemptions, all persons shall manage their property and systems to minimize the impact of odors on their neighbors

. . 5. This section does not apply to chemical compounds that can be individually measured by instruments, other than a scentometer, that have been designed and proven to measure the individual chemical or chemical compound , such as hydrogen sulfide, to a reasonable degree of scientific certainty, and for which the state department of health has established a specific limitation by rule

. 6

. For purposes of this section , a public park is a park established by the federal government, the state, or a political subdivision of the state in the manner prescribed
Page No.9by law. For purposes of this section, a campground is a public or private area of land used exclusively for camping and open to the public for a fee on a regular or seasonal basis

. 7

. a. In a county that does not regulate the nature, scope, and location of an animal feeding operation under section 11-33-02, the department shall require that any new animal feeding operation permitted under chapter 61-28 be set back from any existing residence, church, school, business, public building, park, or campground. (1) If there are fewer than three hundred animal units, there is no minimum setback requirement. (2) If there are at least three hundred animal units but no more than one thousand animal units, the setback for any animal operation is one-half mile [.80 kilometer]. (3) If there are at least one thousand one animal units but no more than two thousand animal units, the setback for a hog operation is three-fourths mile [1

.20 kilometers] and the setback for any other animal operation is one-half mile [.80 kilometer]

. (4) If there are at least two thousand one animal units but no more than five thousand animal units, the setback for a hog operation is one mile [1

.60 kilometers] and the setback for any other animal operation is three-fourths mile [1

.20 kilometers]. (5) If there are five thousand one or more animal units, the setback for a hog operation is one and one-half miles [2.40 kilometers] and the setback for any other animal operation is one mile [1.60 kilometers]

. b. The setbacks set forth in subdivision a do not apply if the owner or operator applying for the permit obtains an odor easement from the preexisting use that is closer

. c

. For purposes ofthis section: (1) One mature dairy cow,whether milking or dry, equals 1

.33 animal units; (2) One dairy cow, heifer or bull, other than an animal described in paragraph 1 equals 1.0 animal unit; (3) One weaned beef animal, whether a calf, heifer, steer, or bull, equals 0.75 animal unit; (4) One cow-calf pair equals 1.0 animal unit; (5) One swine weighing fifty-five pounds [24

.948 kilograms] or more equals 0.4 animal unit; (6) One swine weighing less than fifty-five pounds [24.948 kilograms] equals 0

.1 animal unit; (7) One horse equals 2.0 animal units; (8) One sheep or lamb equals 0.1 animal unit; (9) One turkey equals 0.0182 animal unit; (10) One chicken, other than a laying hen, equals 0.008 animal unit; (11) One laying hen equals 0.012 animal unit; (12) One duck equals 0

.033 animal unit; and (13) Any livestock not listed in paragraphs 1 through 12 equals 1.0 animal unit per each one thousand pounds [453.59 kilograms] whether single or combined animal weight. 8

. A permitted animal feeding operation may expand its permitted capacity by twenty-five percent on one occasion without triggering a higher setback distance. 9. Neither a county nor a township may regulate or through any means impose restrictions or requirements on animal feeding operations or on other agricultural operations except as permitted under sections 11-33-02 and 58-03-11.

Page No

. 10

### CHAPTER 28-32 ADMINISTRATIVE AGENCIES PRACTICE ACT
28-32-01. Definitions. In this chapter, unless the context or subject matter otherwise provides: 1

. "Adjudicative proceeding" means an administrative matter resulting in an agency issuing an order after an opportunity for hearing is provided or required

. An adjudicative proceeding includes administrative matters involving a hearing on a complaint against a specific-named respondent; a hearing on an application seeking a right, privilege, or an authorization from an agency, such as a ratemaking or licensing hearing; or a hearing on an appeal to an agency. An adjudicative proceeding includes reconsideration , rehearing, or reopening

. Once an adjudicative proceeding has begun, the adjudicative proceeding includes any informal disposition of the administrative matter under section 28-32-22 or another specific statute or rule, unless the matter has been specifically converted to another type of proceeding under section 28-32-22

.An adjudicative proceeding does not include a decision or order to file or not to file a complaint, or to initiate an investigation, an adjudicative proceeding, or any other proceeding before the agency, or another agency, or a court

. An adjudicative proceeding does not include a decision or order to issue, reconsider, or reopen an order that precedes an opportunity for hearing or that under another section of this code is not subject to review in an adjudicative proceeding. An adjudicative proceeding does not include rulemaking underthis chapter. 2. "Administrative agency" or "agency" means each board, bureau, commission , department, or other administrative unit of the executive branch of state government, including one or more officers, employees, or other persons directly or indirectly purporting to act on behalf or under authority of the agency. An administrative unit located within or subordinate to an administrative agency must be treated as part o( that agency to the extent it purports to exercise authority subject to this chapter. The term administrative agency does not include: a

. The office of management and budget except with respect to rules made under section 32-12

.2-14, rules relating to conduct on the capitol grounds and in buildings located on the capitol grounds under section 54-21-18, rules relating to the classified service as authorized under section 54-44.3-07, and rules relating to state purchasing practices as required under section 54-44.4-04

. b. The adjutant general with respect to the department ofemergency services. c

. The council on the arts. d. The state auditor

. e

. The department of commerce with respect to the division of economic development and finance. f

. The dairy promotion commission. g

. The education factfinding commission

. h

. The educational technology council. i. The board ofequalization

. j. The board of higher education. k

. The Indian affairs commission

. I. The industrial commission with respect to the activities of the Bank of North Dakota, North Dakota housing finance agency, public finance authority, North Dakota mill and elevator association, North Dakota farm finance agency, the North Dakota transmission authority, and the North Dakota pipeline authority

. m. The department of corrections and rehabilitation except with respect to the activities ofthe division of adult services under chapter 54-23.4. n. The pardon advisory board

. o. The parks and recreation department. p. The parole board. q. The state fair association

.

Page No.1r. The attorney general with respect to activities of the state toxicologist and the state crime laboratory. s

. The board of university and school lands except with respect to activities under chapter 47-30.1. 

### t. The administrative committee on veterans' affairs except with respect to rules relating to the supervision and government of the veterans' home and the implementation of programs or services provided by the veterans' home. u. The industrial commission with respect to the lignite research fund except as required under section 57-61-01.5. v. The attorney general with respect to guidelines adopted under section 12

.1-32-15 for the risk assessment of sexual offenders, the risk level review process, and public disclosure of information under section 12.1-32-15. w. The commission on legal counsel for indigents. x. The attorney general with respect to twenty-four seven sobriety program guidelines and program fees

. 3

. "Agency head" means an individual or body of individuals in whom the ultimate legal authority ofthe agency is vested by law

. 4. "Complainant" means any person who files a complaint before an administrative agency pursuant to section 28-32-21 and any administrative agency that, when authorized by law,files such a complaint before such agency or any other agency. 5. "Hearing officer" means any agency head or one or more members of the agency head when presiding in an administrative proceeding, or, unless prohibited by law, one or more other persons designated by the agency head to preside in an administrative proceeding, an administrative law judge from the office of administrative hearings, or any other person duly assigned, appointed, or designated to preside in an administrative proceeding pursuant to statute or rule

. 6. "License" means a franchise, permit, certification, approval, registration, charter, or similarform of authorization required by law. 7

. "Order" means any agency action of particular applicability which determines the legal rights, duties, privileges, immunities, or other legal interests of one or more specific persons

.The term does not include an executive order issued by the governor. 8

. "Party" means each person named or admitted as a party or properly seeking and entitled as of right to be admitted as a party

.An administrative agency may be a party

. In a hearing for the suspension , revocation , or disqualification of an operator's license under title 39, the term may include each city and each county in which the alleged conduct occurred, but the city or county may not appeal the decision of the hearing officer

. 9. "Person" includes an individual, association , partnership, corporation , limited liability company, state governmental agency or governmental subdivision, or an agency of such governmental subdivision. 10

. "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the administrative action more probable or less probable than it would be without the evidence

. 11

. "Rule" means the whole or a part ofan agency statement ofgeneral applicability which implements or prescribes law or policy or the organization , procedure, or practice requirements of the agency

. The term includes the adoption of new rules and the amendment, repeal, or suspension of an existing rule

.The term does not include: a

. A rule concerning only the internal management of an agency which does not directly or substantially affect the substantive or procedural rights or duties of any segment ofthe public. b. A rule that sets forth criteria or guidelines to be used by the staff of an agency in the performance of audits, investigations, inspections, and settling commercial disputes or negotiating commercial arrangements, or in the defense, prosecution , or settlement of cases, ifthe disclosure ofthe statement would : (1 ) Enable law violators to avoid detection; (2) Facilitate disregard of requirements imposed by law; or
Page No.2(3) Give a clearly improper advantage to persons who are in an adverse position to the state. c

. A rule establishing specific prices to be charged for particular goods or services sold by an agency. d. A rule concerning only the**physics:~!** servicing, maintenance, or care of agency-owned or agency-operated facilities or property. e. A rule relating only to the use of a particular facility or property owned, operated, or maintained by the state or any of its subdivisions, ifthe substance ofthe rule is adequately indicated by means of signs or signals to persons who use the facility or property. f. A rule concerning only inmates of a correctional or detention facility, students enrolled in an educational institution, or patients admitted to a hospital, if adopted by that facility, institution, or hospital. g. A form whose contents or substantive requirements are prescribed by rule or statute or are instructions for the execution or use ofthe form. h. An agency budget. i. An opinion ofthe attorney general. j. A rule adopted by an agency selection committee under section 54-44.7-03. k. Any material, including a guideline, interpretive statement, statement of general policy, manual, brochure, or pamphlet, which is explanatory and not intended to have the force and effect of law

. 28-32-02. Rulemaking power ofagency -Organizational rule. 1

. The authority of an administrative agency to adopt administrative rules is authority delegated by the legislative assembly

. As part of that delegation, the legislative assembly reserves to itself the authority to determine when and if rules of administrative agencies are effective

. Every administrative agency may adopt, amend, or repeal reasonable rules in conformity with this chapter and any statute administered or enforced by the agency

. 2. In addition to other rulemaking requirements imposed by law, each agency may include in its rules a description ofthat portion of its organization and functions subject to this chapter and may include a statement of the general course and method of its operations and how the public may obtain information or make submissions or requests.
28-32-03. Emergency rules. 1

. If the agency, with the approval of the governor, finds that emergency rulemaking is necessary, the agency may declare the proposed rule to be an interim final rule effective on a date no earlier than the date of filing with the legislative council of the notice required by section 28-32-10. 2

. A proposed rule may be given effect on an emergency basis under this section if any ofthe following grounds exists regarding that rule: a

. Imminent peril threatens public health, safety, or welfare, which would be abated by emergency effectiveness; b

. A delay in the effective date of the rule is likely to cause a loss of funds appropriated to support a duty imposed by law upon the agency; c

. Emergency effectiveness is reasonably necessary to avoid a delay in implementing an appropriations measure; or d

. Emergency effectiveness is necessary to meet a mandate offederal law. 3

. A final rule adopted after consideration of all written and oral submissions respecting the interim final rule, which is substantially similar to the interim final rule, is effective as ofthe declared effective date ofthe interim final rule

. 4. The agency's finding, and a brief statement of the agency's reasons for the finding , must be filed with the legislative council with the final adopted emergency rule. 5

. The agency shall attempt to make interim final rules known to persons who the agency can reasonably be expected to believe may have a substantial interest in them. As
Page No

. 3used in this subsection, "substantial interest" means an interest in the effect of the rules which surpasses the common interest of all citizens. An agency adopting emergency rules shall comply with the notice requirements of section 28-32-10 which relate to emergency rules and shall provide notice to the chairman of the administrative rules committee of the emergency status, declared effective date, and grounds for emergency status of the rules under subsection 2

. When notice of emergency rule adoption is received , the legislative council shall publish the notice and emergency rules on its website

. 6

. An interim final rule is ineffective one hundred eighty days after its declared effective date unless first adopted as a final rule.
28-32-04. Repeal or waiver of rules from federal guidelines. 1

. An agency shall repeal or amend any existing rule that was adopted from federal guidelines and which is not relevant to state regulatory programs. 2. An agency may not adopt rules from federal guidelines which are not relevant to state regulatory programs when developing or modifying programs. 3

. An agency shall seek a waiver from the appropriate United States agency when the United States agency is evaluating current programs or delegating or modifying programs to relieve the agency from complying with or adopting rules that are not relevant to state regulatory programs.
28-32-05. Adoption by reference of certain rules. 1

. When adopting rules, an agency shall adopt by reference any applicable existing permit or procedural rules that may be adapted for use in a new or existing program

. 2

. An agency shall seek authorization from the appropriate United States agency to adopt by reference applicable existing permit or procedural rules that may be adapted for use in a new or existing program when the United States agency is delegating or modifying a program.
28-32-06. Force and effect of rules. Upon becoming effective, rules have the force and effect of law until amended or repealed by the agency, declared invalid by a final court decision, suspended or found to be void by the administrative rules committee, or determined repealed by the legislative council because the authority for adoption ofthe rules is repealed ortransferred to another agency

. 28-32-07. Deadline for rules to implement statutory change. Any rule change, including a creation, amendment, or repeal, made to implement a statutory change must be adopted and filed with the legislative council within nine months ofthe effective date of the statutory change

. Ifan agency needs additional time for the rule change, a request for additional time must be made to the legislative council. The legislative council may extend the time within which the agency must adopt the rule change if the request by the agency is supported by evidence that the agency needs more time through no deliberate fault of its own

. 28-32-08. Regulatory analysis. 1

. An agency shall issue a regulatory analysis of a proposed rule if: a

. Within twenty days after the last published notice date ofa proposed rule hearing, a written request for the analysis is filed by the governor or a member of the legislative assembly; or b

. The proposed rule is expected to have an impact on the regulated community in excess of fifty thousand dollars. The analysis under this subdivision must be available on or before the first date of public notice as provided for in section 28-32-10

. 2

. The regulatory analysis must contain:

Page No.4a. A description of the classes of persons who probably will be affected by the proposed rule, including classes that will bear the costs of the proposed rule and classes that will benefit from the proposed rule; b. A description of the probable impact, including economic impact, ofthe proposed rule; c. The probable costs to the agency of the implementation and enforcement of the proposed rule and any anticipated effect on state revenues; and d. A description of any alternative methods for achieving the purpose of the proposed rule that were seriously considered by the agency and the reasons why the methods were rejected in favor ofthe proposed rule. 3

. Each regulatory analysis must include quantification of the data to the extent practicable

. 4

. The agency shall mail or deliver a copy of the regulatory analysis to any person who requests a copy ofthe regulatory analysis. The agency may charge a fee for a copy of the regulatory analysis as allowed under section 44-04-18. 5

. If required under subsection 1 ,the preparation and issuance ofa regulatory analysis is a mandatory duty of the agency proposing a rule. Errors in a regulatory analysis, including erroneous determinations concerning the impact ofthe proposed rule on the regulated community, are not a ground upon which the invalidity of a rule may be asserted or declared.
28-32-08.1. Rules affecting small entities - Analysis - Economic impact statements
- Judicial review. 1

. As used in this section: a

. "Small business" means a business entity, including its affiliates,which: (1) Is independently owned and operated; and (2) Employs fewer than twenty-five full-time employees or has gross annual sales of less than two million five hundred thousand dollars; b

. "Small entity" includes small business, small organization , and small political subdivision; c. "Small organization" means any not-for-profit enterprise that is independently owned and operated and is not dominant in its field; and d. "Small political subdivision" means a political subdivision with a population of less than five thousand

. 2

. Before adoption of any proposed rule, the adopting agency shall prepare a regulatory analysis in which, consistent with public health, safety, and welfare, the agency considers utilizing regulatory methods that will accomplish the objectives of applicable statutes while minimizing adverse impact on small entities

. The agency shall consider each of the following methods of reducing impact of the proposed rule on small entities: a. Establishment of less stringent compliance or reporting requirements for small entities; b. Establishment of less stringent schedules or deadlines for compliance or reporting requirements for small entities; c. Consolidation or simplification of compliance or reporting requirements for small entities; d

. Establishment of performance standards for small entities to replace design or operational standards required in the proposed rule; and e. Exemption of small entities from all or any part of the requirements contained in the proposed rule

. 3. Before adoption of any proposed rule that may have an adverse impact on small entities, the adopting agency shall prepare an economic impact statement that includes consideration of: a. The small entities subject to the proposed rule; b. The administrative and other costs required for compliance with the proposed rule; Page No.5c. The probable cost and benefit to private persons and consumers who are affected by the proposed rule; d

. The probable effect ofthe proposed rule on state revenues; and e. Any less intrusive or less costly alternative methods of achieving the purpose of the proposed rule. 4

. For any rule subject to this section, a small entity that is adversely affected or aggrieved by final agency action is entitled to judicial review of agency compliance with the requirements of this section

. A small entity seeking judicial review under this section must file a petition for judicial review within one year from the date of final agency action

. 5

. This section does not apply to any agency that is an occupational or professional licensing authority, nor does this section apply to the following agencies or divisions of agencies: a

. Council on the arts. b

. Beef commission

. c. Dairy promotion commission

. d

. Dry bean council. e. Highway patrolmen's retirement board. f. Indian affairs commission

. g. Board for Indian scholarships

. h

. State personnel board. i. Potato council. j. Board of public school education. k. Real estate trust account committee. I. Seed commission. m

. Soil conservation committee

. n

. Oilseed council. o. Wheat commission. p

. State seed arbitration board. q

. North Dakota lottery. 6

. This section does not apply to rules mandated by federal law. 7

. The adopting agency shall provide the administrative rules committee copies of any regulatory analysis or economic impact statement, or both, prepared under this section when the committee is considering the associated rules

. 28-32-08.2. Fiscal notes for administrative rules. When an agency presents rules for administrative rules committee consideration, the agency shall provide a fiscal note or a statement in its testimony that the rules have no fiscal effect. A fiscal note must reflect the effect of the rules changes on s l ate revenues and expenditures, including any effect on funds controlled by the agency

. 28-32-09. Takings assessment. 1

. An agency shall prepare a written assessment ofthe constitutional takings implications of a proposed rule that may limit the use of private real property

. The agency's assessment must: a

. Assess the likelihood that the proposed rule may result in a taking or regulatory taking

. b. Clearly and specifically identify the purpose ofthe proposed rule

. c

. Explain why the proposed rule is necessary to substantially advance that purpose and why no alternative action is available that would achieve the agency's goals while reducing the impact on private property owners

. d

. Estimate the potential cost to the government if a court determines that the proposed rule constitutes a taking or regulatory taking

. e. Identify the source of payment within the agency's budget for any compensation that may be ordered

.

Page No.6f. Certify that the benefits ofthe proposed rule exceed the estimated compensation costs. 2

. Any private landowner who is or may be affected by a rule that limits the use of the landowner's private real property may request in writing that the agency reconsider the application or need for the rule. Within thirty days of receiving the request, the agency shall consider the request and shall in writing inform the landowner whether the agency intends to keep the rule in place, modify application of the rule, or repeal the rule. 3

. In an agency's analysis of the takings implications of a proposed rule, "taking" means the taking of private real property, as defined in section 47-01-03, by government action which requires compensation to the owner of that property by the fifth or fourteenth amendment to the Constitution ofthe United States or section 16 of article I of the Constitution of North Dakota. "Regulatory taking" means a taking of real property through the exercise of the police and regulatory powers of the state which reduces the value of the real property by more than fifty percent. However, the exercise of a police or regulatory power does not effect a taking if it substantially advances legitimate state interests, does not deny an owner economically viable use ofthe owner's land, or is in accordance with applicable state or federal law.
28-32-10. Notice of rulemaking- Hearing date. 1

. An agency shall prepare a full notice and an abbreviated notice of rulemaking

. a. The agency's full notice ofthe proposed adoption, amendment, or repeal of a rule must include a short, specific explanation ofthe proposed rule and the purpose of the proposed rule, identify the emergency status and declared effective date of any emergency rules, include a determination of whether the proposed rulemaking is expected to have an impact on the regulated community in excess of fifty thousand dollars, identify at least one location where interested persons may review the text of the proposed rule, provide the address to which written comments concerning the proposed rule may be sent, provide the deadline for submission of written comments, provide a telephone number and post-office or electronic mail address at which a copy ofthe rules and regulatory analysis may be requested , and, in the case of a substantive rule, provide the time and place set for each oral hearing

. The agency's full notice must be filed with the legislative council, and the agency shall request publication of an abbreviated newspaper publication notice at least once in each official county newspaper published in this state

. The notice filed with the legislative council must be accompanied by a copy ofthe proposed rules. b. The abbreviated newspaper publication of notice must be in a display-type format with a minimum width of one column of approximately two inches [5.08 centimeters] and a depth of from three inches [7

.62 centimeters] to four inches [1 0

.16 centimeters] with a headline describing the general topic of the proposed rules. The notice must also include the telephone number or address to use to obtain a copy ofthe proposed rules, identification ofthe emergency status and declared effective date of any emergency rules, the address to use and the deadline to submit written comments, and the location, date, and time of the public hearing on the rules. 2

. The agency shall mail or deliver a copy ofthe agency's full notice to each member of the legislative assembly whose name appeared as a sponsor or cosponsor of legislation enacted during the most recent session ofthe legislative assembly which is being implemented by the proposed rule and to each person who has made a timely request to the agency for a copy of the notice

. The agency may mail or otherwise provide a copy of the agency's full notice to any person who is likely to be an interested person. The agency shall mail or deliver a copy ofthe rules to each member of the legislative assembly whose name appeared as a sponsor or cosponsor of legislation enacted during the most recent session ofthe

- legislative assembly which is being implemented by the proposed rule and to any person requesting a copy

. The
Page No.7agency may charge persons who are not members ofthe legislative assembly fees for copies ofthe proposed rule as allowed under section 44-04-18. 3. In addition to the other notice requirements of this subsection , the superintendent of public instruction shall provide notice of any proposed rulemaking by the superintendent of public instruction to each association with statewide membership whose primary focus is elementary and secondary education issues which has requested to receive notice from the superintendent under this subsection and to the superintendent ofeach public school district in this state, or the president ofthe school board for school districts that have no superintendent, at least twenty days before the date of the hearing described in the notice. Notice provided by the superintendent of public instruction under this section must be by first-class mail. However, upon request of a group or person entitled to notice under this section , the superintendent of public instruction shall provide the group or person notice by electronic mail. 4. The legislative council shall establish standard procedures for all agencies to follow in complying with the provisions of this section and a procedure to allow any person to request and receive mailed copies of all filings made by agencies pursuant to this section

. The legislative council may charge an annual fee as established by the administrative rules committee for providing copies ofthe filings. 5. At least twenty days must elapse between the date ofthe publication ofthe notice and the date ofthe hearing. Within fifteen business days after receipt of a notice under this section , a copy of the notice must be mailed by the legislative council to any person who has paid the annual fee established under subsection 4.
28-32-11. Conduct of hearings - Notice of administrative rules committee consideration - Consideration and written record of comments. The agency shall adopt a procedure whereby all interested persons are afforded reasonable opportunity to submit data, views, or arguments, orally or in writing, concerning the proposed rule, including data respecting the impact of the proposed rule

. The agency shall adopt a procedure to allow interested parties to request and receive notice from the agency of the date and place the rule will be reviewed by the administrative rules committee

. In case of substantive rules, the agency shall conduct an oral hearing. The agency shall consider fully all written and oral submissions respecting a proposed rule prior to the adoption , amendment, or repeal of any rule not of an emergency nature

. The agency shall make a written record of its consideration of all written and oral submissions contained in the rulemaking record respecting a proposed rule.
28-32-12. Comment period. The agency shall allow, after the conclusion of any rulemaking hearing, a comment period of at least ten days during which data,views, or arguments concerning the proposed rulemaking will be received by the agency and made a part of the rulemaking record to be considered by the agency. 28-32-13. Substantial compliance with rulemaking procedure. A rule is invalid unless adopted in substantial compliance with this chapter. However, inadvertent failure to supply any person with a notice required by section 28-32-10 does not invalidate a rule. Notwithstanding subsection 2 of section 28-32-42, an action to contest the validity of a rule on the grounds of noncompliance with this chapter may not be commenced more than two years afterthe effective date ofthe rule

. 28-32-14. Attorney general review of rules. Every rule proposed by any administrative agency must be submitted to the attorney general for an opinion as to its legality before final adoption , and the attorney general promptly shall furnish each such opinion. The attorney general may not approve any rule as to legality when the rule exceeds the statutory authority ofthe agency or is written in a manner that is not concise or easily understandable or when the procedural requirements for adoption ofthe rule in

Page No

. 8this chapter are not substantially met. The attorney general shall advise an agency of any revision or rewording of a rule necessary to correct objections as to legality

. 28-32-15. Filing of rules for publication - Effective date of rules. 1. A copy of each rule adopted by an administrative agency, a copy of each written comment and a written summary of each oral comment on the rule, and the attorney general's opinion on the rule must be filed by the adopting agency with the legislative council for publication ofthe rule in the North Dakota Administrative Code. 2

. a

. Nonemergency rules approved by the attorney general as to legality, adopted by an administrative agency, and filed with the legislative council and not voided or held for consideration by the administrative rules committee become effective according to the following schedule: (1) Rules filed with the legislative council from August second through November first become effective on the immediately succeeding January first. (2) Rules filed with the legislative council from November second through February first become effective on the immediately succeeding April first. (3) Rules filed with the legislative council from February second through May first become effective on the immediately succeeding July first. (4) Rules filed with the legislative council from May second through August first become effective on the immediately succeeding October first. b. If publication is delayed for any reason other than action of the administrative rules committee, nonemergency rules, unless otherwise provided, become effective when publication would have occurred but for the delay

. c

. A rule held for consideration by the administrative rules committee becomes effective on the first effective date of rules under the schedule in subdivision a following the meeting at which that rule is reconsidered by the committee.
28-32-16. Petition for reconsideration of rule- Hearing by agency. Any person substantially interested in the effect of a rule adopted by an administrative agency may petition such agency for a reconsideration of any such rule or for an amendment or repeal thereof. Such petition must state clearly and concisely the petitioners' alleged grounds for such reconsideration or for the proposed repeal or amendment of such rule

. The agency may grant the petitioner a public hearing upon such terms and conditions as the agency may prescribe

. 28-32-17. Administrative rules committee objection. If the legislative management's administrative rules committee objects to all or any portion of a rule because the committee deems it to be unreasonable, arbitrary, capricious, or beyond the authority delegated to the adopting agency, the committee may file that objection in certified form with the legislative council. The filed objection must contain a concise statement of the committee's reasons for its action. 1

. The legislative council shall attach to each objection a certification ofthe time and date of its filing and, as soon as possible, shall transmit a copy of the objection and the certification to the agency adopting the rule in question

. The legislative council also shall maintain a permanent register ofall committee objections. 2

. The legislative council shall publish an objection filed pursuant to this section in the next issue of the code supplement. In case of a filed committee objection to a rule subject to the exceptions of the definition of rule in section 28-32-01 , the agency shall indicate the existence of that objection adjacent to the rule in any compilation containing that rule

. 3. Within fourteen days after the filing of a committee objection to a rule, the adopting agency shall respond in writing to the committee

. After receipt of the response, the committee may withdraw or modify its objection.

Page No.94

. After the filing of a committee objection, the burden of persuasion is upon the agency in any action for judicial review or for enforcement of the rule to establish that the whole or portion thereof objected to is within the procedural and substantive authority delegated to the agency

. Ifthe agency fails to meet its burden of persuasion, the court shall declare the whole or portion ofthe rule objected to invalid and judgment must be rendered against the agency for court costs. These court costs must include a reasonable attorney's fee and must be payable from the appropriation of the agency which adopted the rule in question.
28-32-18. Administrative rules committee may void rule - Grounds - Amendment by agreement ofagency and committee. 1. The legislative management's administrative rules committee may find that all or any portion of a rule is void ifthat rule is initially considered by the committee not later than the fifteenth day ofthe month before the date ofthe administrative code supplement in which the rule change is scheduled to appear. The administrative rules committee may find a rule or portion of a rule void ifthe committee makes the specific finding that, with regard to that rule or portion of a rule, there is: a. An absence of statutory authority. b

. An emergency relating to public health, safety, or welfare. c

. A failure to comply with express legislative intent or to substantially meet the procedural requirements ofthis chapter for adoption ofthe rule. d. A conflict with state law. e. Arbitrariness and capriciousness. f

. A failure to make a written record of its consideration of written and oral submissions respecting the rule under section 28-32-11. 2. The administrative rules committee may find a rule void at the meeting at which the rule is initially considered by the committee or may hold consideration of that rule for one subsequent meeting. If no representative of the agency appears before the administrative rules committee when rules are scheduled for committee consideration, those rules are held over for consideration at the next subsequent committee meeting. Rules are not considered initially considered by the committee under this subsection until a representative ofthe agency appears before the administrative rules committee when the rules are scheduled for committee consideration. If no representative of the agency appears before the administrative rules committee meeting to which rules are held over for consideration, the rules are void ifthe rules were adopted as emergency rules and for rules not adopted as emergency rules the administrative rules committee may void the rules, allow the rules to become effective, or hold over consideration of the rules to the next subsequent committee meeting. Within three business days after the administrative rules committee finds that a rule is void, the legislative council shall provide written notice of that finding and the committee's specific finding under subdivisions a through f of subsection 1to the adopting agency and to the chairman of the legislative management. Within fourteen days after receipt of the notice, the adopting agency may file a petition with the chairman of the legislative management for review by the legislative management of the decision of the administrative rules committee. Ifthe adopting agency does not file a petition for review, the rule becomes void on the fifteenth day after the notice from the legislative council to the adopting agency. If within sixty days after receipt of the petition from the adopting agency the legislative management has not disapproved by motion the finding of the administrative rules committee, the rule is void. 3. An agency may amend or repeal a rule or create a related rule if, after consideration of rules by the administrative rules committee, the agency and committee agree that the rule amendment, repeal , or creation is necessary to address any of the considerations under subsection 1. A rule amended, repealed, or created under this subsection is not subject to the other requirements of this chapter relating to adoption of administrative rules and may be published by the legislative council as amended, repealed, or created. If requested by the agency or any interested party, a rule amended, repealed , Page No

. 10or created under this subsection must be reconsidered by the administrative rules committee at a subsequent meeting at which public comment on the agreed rule change must be allowed

. 28-32-18.1. Administrative rules committee review ofexisting administrative rules. 1. Upon request by the administrative rules committee, an administrative agency shall brief the committee on its existing administrative rules and point out any provisions that appear to be obsolete and any areas in which statutory authority has changed or been repealed since the rules were adopted or amended

. 2. An agency may amend or repeal a rule without complying with the other requirements of this chapter relating to adoption of administrative rules and may resubmit the change to the legislative council for publication provided: a

. The agency initiates the request to the administrative rules committee for consideration ofthe amendment or repeal; b. The agency provides notice to the regulated community, in a manner reasonably calculated to provide notice to those persons interested in the rule, of the time and place the administrative rules committee will consider the request for amendment or repeal ofthe rule; and c. The agency and the administrative rules committee agree the rule amendment or repeal eliminates a provision that is obsolete or no longer in compliance with law and that no detriment would result to the substantive rights of the regulated community from the amendment or repeal.
28-32-19. Publication ofadministrative code and code supplement. 1. The legislative council shall compile, index, and publish all rules filed pursuant to this chapter in a publication which must be known as the North Dakota Administrative Code, in this chapter referred to as the code

.The code also must contain all objections filed with the legislative council by the administrative rules committee pursuant to section 28-32-17. The legislative council shall revise all or part ofthe code as often as the legislative council determines necessary

. 2. The legislative council may prescribe a format, style, and arrangement for rules which are to be published in the code and may refuse to accept the filing of any rule that is not in substantial compliance therewith. In arranging rules for publication, the legislative council may make such corrections in spelling, grammatical construction , format, and punctuation ofthe rules as determined proper

. The legislative council shall keep and maintain a permanent code of all rules filed, including superseded and repealed rules,which must be open to public inspection during office hours. 3. The legislative council shall compile and publish the North Dakota Administrative Code supplement according to the schedule ofeffective dates of rules in section 28-32-15

. a

. The code supplement must contain all rules that have been filed with the legislative council or which have become effective since the compilation and publication ofthe preceding issue ofthe code supplement. b. The code supplement must contain all objections filed with the legislative council by the administrative rules committee pursuant to section 28-32-17. 4

. The legislative council, with the consent of the adopting agency, may omit from the code or code supplement any rule the publication of which would be unduly cumbersome, expensive, or otherwise inexpedient, if the rule in printed or duplicated form is made available on application to the agency, and if the code or code supplement contains a notice stating the general subject matter ofthe omitted rule and stating how a copy may be obtained. 5

. The code must be arranged, indexed, and printed or duplicated in a manner to permit separate publication of portions thereof relating to individual agencies

.An agency may print as many copies of such separate portions of the code as it may require. If the legislative council does not publish the code supplement due to technological problems or lack of funds, the agency whose rules would have been published in the

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. 11code supplement shall provide a copy of the rules to any person upon request. The agency may charge a fee for a copy ofthe rules as allowed under section 44-04-18.
28-32-20
. Printing, sales, and distribution of code and code supplement. 1

. The secretary of state shall distribute the code and code supplement and shall distribute copies ofthe code, revisions, and the code supplement without charge to the following : a. Governor, one copy. b. Attorney general, one copy. c

. Each supreme courtjudge, one copy

. d

. Each district courtjudge, one copy. e

. Each county auditor of this state, for the use of county officials and the public, one copy. f

. Supreme court library, one copy. g

. State library, one copy

. h

. Law library ofthe university of North Dakota, one copy. i. Each ofthe five depository libraries in this state, one copy, upon request. j

. Secretary ofstate, one copy. k

. Legislative council,four copies. 

### I. Each member ofthe legislative assembly, one copy, upon request. 2. The legislative council, each county auditor in the state, and the librarians for the supreme court library, the state library, the university of North Dakota law library, and the five depository libraries as designated according to subsection 1 and section 54-24-09 shall maintain a complete, current set of the code, including revisions and the code supplement. 3. The secretary of state shall make copies of and subscriptions to the code and code supplement available to any person upon payment ofthe appropriate subscription fee

. 4

. The legislative council shall determine the appropriate fee for subscribing to the code and code supplement. 5

. All fees collected by the secretary of state must be deposited in the general fund ofthe state treasury

. 6. If applicable, the administrative code, revisions to the administrative code, and the code supplement must be considered sixth-class printing under sections 46-02-04 and 46-02-09.
28-32-21. Adjudicative proceedings - Procedures. Administrative agencies shall comply with the following procedures in all adjudicative proceedings: 1

. 

### a
.

b

.



### c. For adjudicative proceedings involving a hearing on a complaint against a specific-named respondent, a complainant shall prepare and file a clear and concise complaint with the agency having subject matter jurisdiction of the proceeding

. The complaint shall contain a concise statement of the claims or charges upon which the complainant relies, including reference to the statute or rule alleged to be violated , and the relief sought. After a complaint is filed ,the appropriate administrative agency shall serve a copy of the complaint upon the respondent in the manner allowed for the service of process under the North Dakota Rules of Civil Procedure at least forty-five days before the hearing on the complaint. The administrative agency shall designate the time and place for the hearing and shall serve a copy of the notice of hearing upon the respondent in the manner allowed for service under the North Dakota Rules of Civil Procedure, at least twenty days before the hearing on the complaint. Service ofthe notice of hearing may be waived in writing by the respondent, or the parties may agree on a definite time and place for hearing with the consent of the agency having jurisdiction

.

Page No

. 12d. A complaint may be served less than forty-five days before the time specified for a hearing on the complaint and a notice of hearing on a complaint may be served less than twenty days before the time specified for hearing if otherwise authorized by statute

. However, an administrative hearing regarding the renewal, suspension, or revocation of a license may not be held fewer than ten days after the licensee has been served, personally or by certified mail, with a copy of a notice for hearing with an affidavit, complaint, specification of issues, or other document alleging violations upon which the license hearing is based. e

. A complaint may inform the respondent that an answer to the complaint must be served upon the complainant and the agency with which the complaint is filed within twenty days after service of the complaint, or the agency may deem the complaint to be admitted

. If the respondent fails to answer as required within twenty days after service of the complaint, the agency may enter an order in default as the facts and law may warrant. Answers must be served in the manner allowed for service under the North Dakota Rules ofCivil Procedure. f

. Service is complete upon compliance with the provisions of the North Dakota Rules of Civil Procedure. Proof of service may be made as provided in the North Dakota Rules of Civil Procedure. g. A respondent may be given less than twenty days to answer the complaint, pursuant to another statute, but no respondent may be required to answer a complaint in less than five days and an answer must be served on the complainant and the agency with which the complaint is filed at least two days before the hearing on the complaint. h. Amended and supplemental pleadings may be served and filed with the agency in the manner allowed for amended and supplemental pleadings under the North Dakota Rules of Civil Procedure. 2. At any hearing in an adjudicative proceeding, the parties shall be afforded opportunity to present evidence and to examine and cross-examine witnesses as is permitted under sections 28-32-24 and 28-32-35. 3. a. Ifthe adjudicative proceeding does not involve a hearing on a complaint against a specific-named respondent, the provisions of subsection 1 do not apply

. Unless otherwise provided by law,the provisions of subdivisions bthrough d apply. b. The administrative agency shall designate the time and place for the hearing and shall serve a copy of the notice of hearing upon all the parties in the manner allowed for service under the North Dakota Rules of Civil Procedure at least twenty days before the hearing. Service ofthe notice of hearing may be waived in writing by the parties, or the parties may agree on a definite time and place for the hearing with the consent ofthe agency having jurisdiction. c. A hearing under this subsection may not be held unless the parties have been properly served with a copy of the notice of hearing as well as a written specification of issues for hearing or other document indicating the issues to be considered and determined at the hearing. In lieu of, or in addition to, a specification of issues or other document, an explanation about the nature of the hearing and the issues to be considered and determined at the hearing may be contained in the notice. d. Service is complete upon compliance with the provisions of the North Dakota Rules of Civil Procedure

. Proof of service may be made as provided in the North Dakota Rules of Civil Procedure

. 28-32-22. Informal disposition. Unless otherwise prohibited by specific statute or rule, informal disposition may be made of any adjudicative proceeding, or any part or issue thereof, by stipulation, settlement, waiver of hearing, consent order, default, alternative dispute resolution , or other informal disposition, subject to agency approval. Any administrative agency may adopt rules of practice or procedure for informal disposition if such rules do not substantially prejudice the rights of any party. Such

Page No

. 13rules may establish procedures for converting an administrative matter from one type of proceeding to anothertype of proceeding

. 28-32-23. Adjudicative proceedings - Exceptions - Rules of procedure. Notwithstanding the requirements for standardization of procedures in adjudicative proceedings under this chapter, an administrative agency may adopt specific agency rules of procedure not inconsistent with this chapter. An administrative agency may also adopt specific agency rules of procedure when necessary to comply with requirements found elsewhere in this code or when necessary to comply with the requirements of federal statutes, rules, or standards.
28-32-24. Evidence to be considered by agency - Official notice. 1. The admissibility of evidence in any adjudicative proceeding before an administrative agency shall be determined in accordance with the North Dakota Rules of Evidence. An administrative agency, or any person conducting proceedings for it, may waive application ofthe North Dakota Rules of Evidence if a waiver is necessary to ascertain the substantial rights of a party to the proceeding, but only relevant evidence shall be admitted

.The waiver must be specifically stated, orally or in writing, either prior to or at a hearing or other proceeding

. 2. All objections offered to evidence shall be noted in the record of the proceeding

. No information or evidence except that which has been offered, admitted, and made a part of the official record of the proceeding shall be considered by the administrative agency, except as otherwise provided in this chapter. 3. Upon proper objection, evidence that is irrelevant, immaterial, unduly repetitious, or excludable on constitutional or statutory grounds, or on the basis of evidentiary privilege recognized in the courts of this state, may be excluded. In the absence of proper objection, the agency, or any person conducting a proceeding for it, may exclude objectionable evidence. 4. The North Dakota Rules of Evidence in regard to privileges apply at all stages of an administrative proceeding under this chapter. 5. All testimony must be made under oath or affirmation. Relevant statements presented by nonparties may be received as evidence if all parties are given an opportunity to cross-examine the nonparty witness or to otherwise challenge or rebut the statements

. Nonparties may not examine or cross-examine witnesses except pursuant to a grant of intervention

. 6. Evidence may be received in written form if doing so will expedite the proceeding without substantial prejudice to the interests of any party. 7

. Official notice may be taken of any facts that could be judicially noticed in the courts of this state. Additionally, official notice may be taken of any facts as authorized in agency rules.
28-32-25. Adjudicative proceedings- Consideration of information not presented at a hearing. In any adjudicative proceeding, an administrative agency may avail itself of competent and relevant information or evidence in its possession or furnished by members of its staff, or secured from any person in the course of an independent investigation conducted by the agency, in addition to the evidence presented at the hearing

. It may do so after first transmitting a copy of the information or evidence or an abstract thereof to each party of record in the proceeding. The agency must afford each party, upon written request, an opportunity to examine the information or evidence and to present its own information or evidence and to cross-examine the person furnishing the information or evidence. Any further testimony that is necessary shall be taken at a hearing to be called and held, giving at least ten days' notice. Notice must be served upon the parties in the manner allowed for service under the North Dakota Rules of Civil Procedure. This section also applies to information officially noticed after

Page No

. 14the hearing when the issuance of any initial or final order is based in whole or in part on the facts or material noticed.
28-32-26. Costs of investigation. An agency may assess the costs of an investigation to a person found to be in violation of a statute or rule as a result of an adjudicative proceeding or informal disposition. The total costs assessed and any civil penalty that may be imposed as a result ofviolation may not exceed the statutorily authorized civil penalty for the violation. For the purposes ofthis section , costs mean reasonable out-of-pocket agency costs, not including any attorney's fees, actually incurred in conducting the investigation for which they may be assessed. Any such costs paid must be paid into the general fund and are appropriated as a refund to the agency for the purposes of defraying the costs of undertaking the investigation.
28-32-27. Hearing officer- Disqualification -Substitution. 1

. Any person or persons presiding for the agency in an administrative proceeding must be referred to individually or collectively as hearing officer

.Any person from the office of administrative hearings presiding for the agency as a hearing officer in an administrative proceeding must be referred to as an administrative lawjudge. 2. Any hearing officer is subject to disqualification for good cause shown

. 3. Any party may petition for the disqualification of any person presiding as a hearing officer upon discovering facts establishing grounds for disqualification. 4

. A person whose disqualification is requested shall determine whether to grant the petition , stating facts and reasons for the determination. 5. If a substitute is required for a person who is disqualified or becomes unavailable for any other reason,the substitute may be appointed by: a

. The attorney general, if the disqualified or unavailable person is an assistant attorney general; b

. The agency head, if the disqualified or unavailable person is one or more members of the agency head or one or more other persons designated by the agency head; c. A supervising hearing officer, ifthe disqualified or unavailable person is a hearing officer designated from an office, pool, panel, or division of hearing officers; or d

. The governor, in all other cases. 6. Any action taken by a duly appointed substitute for a disqualified or unavailable person is as effective as iftaken by the disqualified or unavailable person

. 7

. Any hearing officer in an administrative proceeding, from the time of appointment or designation, may exercise any authority granted by law or rule. A hearing officer may be designated to preside over the entire administrative proceeding and may issue orders accordingly

.A procedural hearing officer may only issue orders in regard to the course and conduct of the hearing under statute or rule and to otherwise effect an orderly hearing. If a procedural hearing officer is designated,the agency head must be present at the hearing and the agency head shall issue findings of fact and conclusions of law, as well as any order resulting from the hearing.
28-32-28. Intervention. An administrative agency may grant intervention in an adjudicative proceeding to promote the interests of justice if intervention will not impair the orderly and prompt conduct of the proceeding and if the petitioning intervenor demonstrates that the petitioner's legal rights, duties, privileges, immunities, or other legal interests may be substantially affected by the proceeding or that the petitioner qualifies as an intervenor under any provision ofstatute or rule. The agency may impose conditions and limitations upon intervention. The agency shall give reasonable notice of the intervention to all parties. An administrative agency may adopt rules relating to intervention in an adjudicative proceeding

.

Page No. 1528-32-29. Prehearing conference. Before a hearing, an administrative agency may conduct a prehearing conference after giving reasonable notice to all parties and other interested persons

. A prehearing conference may be conducted in total or in part by making use of telephone, facsimile services, television, or other electronic means, as long as such use does not substantially prejudice or infringe on the rights and interests of any party

. An administrative agency may adopt rules regarding the availability of, notice of, and procedures for prehearing conferences

. 28-32-30. Default. 1. If a party fails to attend or participate in a prehearing conference, hearing, or other stage of an adjudicative proceeding, the agency may enter and serve upon all parties written notice of default and a default order, including a statement of the grounds for default. 2. Within seven days after service of the default notice, order, and grounds, the party against whom default was ordered may file a written motion requesting that the default order be vacated and stating the grounds relied upon. During the time within which a party may file a written motion under this section, or at the time of issuing notice and the default order, the agency may adjourn the proceedings or conduct them without the participation of the party against whom a default order was issued, having due regard for the interests of justice and the orderly and prompt conduct of the proceedings. If an agency conducts further proceedings necessary to complete the administrative action without the participation of a party in default, it shall determine all the issues involved, including those affecting the defaulting party.
28-32-31. Duties of hearing officers. All hearing officers shall: 1. Assure that proper notice has been given as required by law. 2

. Conduct only hearings and related proceedings for which proper notice has been given. 3. Assure that all hearings and related proceedings are conducted in a fair and impartial manner. 4. Make recommended findings offact and conclusions of law and issue a recommended order,when appropriate. 5. Conduct the hearing only and perform such other functions of the proceeding as requested, when an agency requests a hearing officer to preside only as a procedural hearing officer. If the hearing officer is presiding only as a procedural hearing officer, the agency head must be present at the hearing and the agency head shall make findings of fact and conclusions of law and issue a final order

. The agency shall give proper notice as required by law

. The procedural hearing officer may issue orders in regard to the conduct ofthe hearing pursuant to statute or rule and to otherwise effect an orderly and prompt disposition ofthe proceedings. 6. Make findings of fact and conclusions of law and issue a final order, if required by statute or requested by an agency

. 7. Function only as a procedural hearing officer, when an agency requests a hearing officer to preside for a rulemaking hearing. The agency head need not be present. The agency shall give proper notice as required by law

. 8

. Perform any and all other functions required by law, assigned by the director of administrative hearings, or delegated to the hearing officer by the agency.
28-32-32. Emergency adjudicative proceedings. An administrative agency may use an emergency adjudicative proceeding, in its discretion, in an emergency situation involving imminent peril to the public health, safety, or welfare. 1

. In an emergency, the administrative agency may take action pursuant to a specific statute as is necessary to prevent or avoid imminent peril to the public health, safety, or welfare

.
Page No. 162

. In an emergency, in the absence of a specific statute, an administrative agency may serve a complaint fewer than forty-five days before the hearing and give notice of a hearing on the complaint by giving less than twenty days' notice as is necessary to prevent or avoid imminent peril to the public health, safety, or welfare. But, every party to the emergency adjudicative proceeding must be given a reasonable time within which to serve an answer and to prepare for the hearing, which may be extended by the agency upon good cause being shown. 3

. In an emergency, in the absence of a specific statute, in an adjudicative proceeding that does not involve a complaint against a specific-named respondent, an administrative agency may give notice of a hearing by giving less than twenty days' notice as is necessary to prevent or avoid imminent peril to the public health, safety, or welfare. But, every party to the emergency adjudicative proceeding shall be given a reasonable time to prepare for the hearing, which may be extended by the agency upon good cause being shown

. 4

. As a result of the emergency adjudicative proceeding, in the absence of a specific statute requiring other administrative action, the administrative agency shall issue an order. The order must include a brief statement of the reasons justifying the determination of imminent peril to the public health, safety, or welfare and requiring an emergency adjudicative proceeding to prevent or avoid the imminent peril. 5. After issuing an order pursuant to this section ,the administrative agency shall proceed as soon as possible to complete any other proceedings related to the emergency adjudicative proceeding that do not involve imminent peril to the public health, safety, or welfare

. 28-32-33. Adjudicative proceedings -Subpoenas - Discovery - Protective orders. 1. In an adjudicative proceeding, discovery may be obtained in accordance with the North Dakota Rules of Civil Procedure. 2. In any adjudicative proceeding, upon the request or motion of any party to the proceeding or upon the hearing officer's own motion on behalf ofthe agency, a hearing officer may issue subpoenas, discovery orders, and protective orders in accordance with the North Dakota Rules of Civil Procedure

. A motion to quash or modify, or any other motion relating to subpoenas, discovery, or protective orders must be made to the hearing officer. The hearing officer's rulings on these motions may be appealed under section 28-32-42 after issuance of the final order by the agency

. The cost of issuing and serving a subpoena in any adjudicative proceeding must be paid by the person or agency requesting it. 3. Any witness who is subpoenaed under the provisions ofthis section and who appears at a hearing or other part of an adjudicative proceeding, or whose deposition is taken, shall receive the same fees and mileage as a witness in a civil case in the district court. Witness fees and mileage shall be paid by the party or agency at whose instance the witness appears

. Any hearing officer may order the payment of witness fees or mileage by the appropriate party or agency. 4

. Subpoenas, discovery orders, protective orders, and other orders issued under this section may be enforced by applying to any judge of the district court for an order requiring the attendance of a witness, the production of all documents and objects described in the subpoena, or otherwise enforcing an order

. Failure of a witness or other person to comply with the order ofthe district court is contempt of court which is punishable by the district court, upon application

. Thejudge may award attorney's fees to the prevailing party in an application under this subsection

. 28-32-34. Administration of oaths - Parties to be advised of perjury provisions. Any hearing officer in an administrative proceeding has the power to examine witnesses and records and to administer oaths to witnesses. At the time the person presiding administers the oath to a witness, the person shall advise the witness of the provisions of subsection 1 of section 12.1-11-01 and ofthe maximum penalty for perjury

.

Page No

. 1728-32-35. Procedure at hearing. The person presiding at a hearing shall regulate the course ofthe hearing in conformity with this chapter and any rules adopted under this chapter by an administrative agency, any other applicable laws, and any prehearing order. To the extent necessary for full disclosure of all relevant facts and issues,the person presiding at the hearing shall afford to all parties and other persons allowed to participate the opportunity to respond, present evidence and argument, conduct cross-examination , and submit rebuttal evidence, except as restricted or conditioned by a grant of intervention or by a prehearing order

.A hearing may be conducted in total or in part by making use of telephone, television, facsimile services, or other electronic means if each participant in the hearing has an opportunity to participate in, to hear, and, if practicable, to see the entire proceeding while it is taking place, and if such use does not substantially prejudice or infringe on the rights and interests of any party.
28-32-36. Agency to make record. An administrative agency shall make a record of all testimony, written statements, documents, exhibits, and other evidence presented at any adjudicative proceeding or other administrative proceeding heard by it. Oral testimony may be taken by a court reporter, by a stenographer, or by use of an electronic recording device. All evidence presented at any proceeding before the administrative agency shall be filed with the agency. A copy ofthe record of any proceeding before an administrative agency, or a part thereof, must be furnished to any party to the proceeding and to any other person allowed to participate in the proceeding, upon written request submitted to the agency and upon payment of a uniform charge to be set by the agency

.Any fee paid to an administrative agency for the record , or a part thereof, shall be paid into the general fund and is appropriated as a refund to the agency for the purposes ofdefraying the costs of preparing the record. An agency may contract with any person or another agency to prepare a record, or a part thereof, of any proceeding before the agency

. 28-32-37. Ex parte communications. 1. Except as provided in subsections 2 and 4 or unless required for the disposition of ex parte matters specifically authorized by another statute, an agency head or hearing officer in an adjudicative proceeding may not communicate, directly or indirectly, regarding any issue in the proceeding, while the proceeding is pending,with any party, with any person who has a direct or indirect interest in the outcome ofthe proceeding, with any other person allowed to participate in the proceeding, or with any person who presided at a previous stage of the proceeding, without notice and opportunity for all parties to participate in the communication. 2

. When more than one person is the hearing officer in an adjudicative proceeding,those persons may communicate with each other regarding a matter pending before the panel. An agency head or hearing officer may communicate with or receive aid from staff assistants if the assistants do not furnish , augment, diminish, or modify the evidence in the record. 3

. Except as provided in subsection 4 or unless required for the disposition of ex parte matters specifically authorized by statute, no party to an adjudicative proceeding, no person who has a direct or indirect interest in the outcome of the proceeding, no person allowed to participate in the proceeding, and no person who presided at a previous stage in the proceeding may communicate directly or indirectly in connection with any issue in that proceeding, while the proceeding is pending, with any agency head or hearing officer in the proceeding without notice and opportunity for all parties to participate in the communication. 4

. In an adjudicative proceeding conducted by a hearing officer other than the agency head, counsel for the administrative agency and the agency head, without notice and opportunity for all parties to participate, may communicate and consult regarding the status of the adjudicative proceeding, discovery, settlement, litigation decisions, and other matters commonly communicated between attorney and client, to permit the agency head to make informed decisions. This subsection does not apply after recommended findings of fact, conclusions of law, and orders have been issued,
Page No

. 18except counsel for the administrative agency and the agency head may communicate regarding settlement and negotiation after recommended findings offact, conclusions of law, and orders have been issued

. 5

. If, before being assigned, designated, or appointed to preside in an adjudicative proceeding, a person receives an ex parte communication of a type that could not properly be received while presiding, the person, promptly after being assigned, designated, or appointed, shall disclose the communication in the manner prescribed in subsection 6. 6. An agency head or hearing officer in an adjudicative proceeding who receives an ex parte communication in violation of this section shall place on the record of the pending matter all written communications received , all written responses to the communications, or a memorandum stating the substance of all oral communications received, all responses made, and the identity of each person from whom the person received an ex parte oral communication , and shall advise all parties, interested persons, and other persons allowed to participate that these matters have been placed on the record

. Any person desiring to rebut the ex parte communication must be allowed to do so, upon requesting the opportunity for rebuttal. A request for rebuttal must be made within ten days after notice ofthe communication

. 7. If necessary to eliminate the effect of an ex parte communication received in violation of this section, an agency head or hearing officer in an adjudicative proceeding who receives the communication may be disqualified, upon good cause being shown in writing to the hearing officer or to the agency. The portions ofthe record pertaining to the communication may be sealed by protective order issued by the agency

. 8

. The agency shall, and any party may, report any willful violation of this section to the appropriate authorities for any disciplinary proceedings provided by law. In addition, an administrative agency may, by rule, provide for appropriate sanctions, including default, for any violations ofthis section. 9

. Nothing in this section prohibits a member ofthe general public, not acting on behalf or at the request of any party, from communicating with an agency in cases of general interest. The agency shall disclose such written communications in adjudicative proceedings.
28-32-38. Separation offunctions. 1

. No person who has served as investigator, prosecutor, or advocate in the investigatory or prehearing stage ofan adjudicative proceeding may serve as hearing officer. 2. No person who is subject to the direct authority of one who has served as an investigator, prosecutor, or advocate in the investigatory or prehearing stage of an adjudicative proceeding may serve as hearing officer

. 3. Any other person may serve as hearing officer in an adjudicative proceeding, unless a party demonstrates grounds for disqualification

. 4

. Any person may serve as hearing officer at successive stages of the same adjudicative proceeding, unless a party demonstrates grounds for disqualification.
28-32-39. Adjudicative proceedings - Findings of fact, conclusions of law, and order of agency - Notice. 1

. In an adjudicative proceeding an administrative agency shall make and state concisely and explicitly its findings of fact and its separate conclusions of law and the order of the agency based upon its findings and conclusions. 2

. If the agency head, or another person authorized by the agency head or by law to issue a final order, is presiding, the order issued is the final order. The agency shall serve a copy ofthe final order and the findings offact and conclusions of law on which it is based upon all the parties to the proceeding within thirty days after the evidence has been received, briefs filed, and arguments closed , or as soon thereafter as possible, in the manner allowed for service under the North Dakota Rules of Givil Procedure

.

Page No

. 193

. If the agency head, or another person authorized by the agency head or by law to issue a final order, is not presiding, then the person presiding shall issue recommended findings offact and conclusions of law and a recommended order within thirty days after the evidence has been received, briefs filed , and arguments closed , or as soon thereafter as possible. The recommended findings of fact and conclusions of law and the recommended order become final unless specifically amended or rejected by the agency head

. The agency head may adopt the recommended findings of fact and conclusions of law and the recommended order as final. The agency may allow petitions for review of a recommended order and may allow oral argument pending issuance of a final order. An administrative agency may adopt rules regarding the review of recommended orders and other procedures for issuance of a final order by the agency

. If a recommended order is issued, the agency must serve a copy of any final order issued and the findings of fact and conclusions of law on which it is based upon all the parties to the proceeding within sixty days after the evidence has been received, briefs filed, and arguments closed , or as soon thereafter as possible, in the manner allowed for service under the North Dakota Rules of Civil Procedure.
28-32-40. Petition for reconsideration. 1

. Any party before an administrative agency who is aggrieved by the final order of the agency, including the administrative agency when the hearing officer is not the agency head or one or more members ofthe agency head, within fifteen days after notice has been given as required by section 28-32-39, may file a petition for reconsideration with the agency. Filing ofthe petition is not a prerequisite for seeking judicial review. If the agency's hearing officer issues the agency's final order, the petition for reconsideration must be addressed to the hearing officer, who may grant or deny the petition under subsection 4. 2. Any party, including workforce safety and insurance, that appears before workforce safety and insurance may file a petition for reconsideration within thirty days after notice has been given as required by section 28-32-39. 3

. The party must submit with the petition for reconsideration a statement ofthe specific grounds upon which relief is requested or a statement of any further showing to be made in the proceeding. The petition must also state whether a rehearing is requested. The petition and any statement shall be considered a part of the record in the proceeding

. 4. The administrative agency may deny the petition for reconsideration or may grant the petition on such terms as it may prescribe. If a rehearing is granted, the agency may allow a new hearing or limit the hearing as appropriate. The agency may dissolve or amend the final order and set the matter for further hearing

. The petition is deemed to have been denied if the agency does not dispose of it within thirty days after the filing of the petition. Any rehearing must be presided over by the same person or persons presiding previously at the hearing, if available. Any amended findings, conclusions, and orders must be issued by the same person or persons who issued the previous recommended or final orders, if available. Within thirty days after the close of proceedings upon reconsideration , or as soon thereafter as possible, the agency shall issue and give notice of its order upon reconsideration as required in subsection 3 of section 28-32-39

. 5. This section does not limit the right of any agency to reopen any proceeding or rehear any matter under any continuing jurisdiction which is granted to the agency by statute

. 28-32-41. Effectiveness of orders. Unless a later date is stated in the order, a final order of an administrative agency is effective immediately, but a party may not be required to comply with a final order unless it has been served upon the party and notice is deemed given pursuant to section 28-32-39 or the party has actual knowledge of the final order. A nonparty may not be required to comply with a final order unless the agency has made the final order available for public inspection and copying or the nonparty has actual knowledge ofthe final order

. This section does not preclude
Page No

. 20an agency from taking emergency action to protect the public health, safety, or welfare as authorized by statute

. 28-32-42. Appeal from determination of agency - Time to appeal - How appeal taken. 1

. Any party to any proceeding heard by an administrative agency, except when the order of the administrative agency is declared final by any other statute, may appeal from the order within thirty days after notice of the order has been given as required by section 28-32-39

. If a reconsideration has been requested as provided in section 28-32-40, the party may appeal within thirty days after notice ofthe final determination upon reconsideration has been given as required by sections 28-32-39 and 28-32-40. If an agency does not dispose of a petition for reconsideration within thirty days after the filing of the petition , the agency is deemed to have made a final determination upon which an appeal may be taken. 2

. Any interested person who has participated in the rulemaking process of an administrative agency may appeal the agency's rulemaking action if the appeal is taken within ninety days afterthe date of publication in the North Dakota Administrative Code ofthe rule resulting from the agency rulemaking action. 3

. a. The appeal of an order may be taken to the district court designated by law, and if none is designated, then to the district court ofthe county in which the hearing or a part thereof was held

. If the administrative proceeding was disposed of informally, or for some other reason no hearing was held, an appeal may be taken to the district court of Burleigh County. Only final orders are appealable

.A procedural order made by an administrative agency while a proceeding is pending before it is not a final order. b. The appeal of an agency's rulemaking action may be taken to the district court of Burleigh County, 4

. An appeal shall be taken by serving a notice of appeal and specifications of error specifying the grounds on which the appeal is taken , upon the administrative agency concerned, upon the attorney general or an assistant attorney general, and upon all the parties to the proceeding before the administrative agency, and by filing the notice of appeal and specifications of error together with proof of service of the notice of appeal, and the undertaking required by this section, with the clerk ofthe district court to which the appeal is taken

. In an appeal of an agency's rulemaking action , only the administrative agency concerned, the attorney general, or an assistant attorney general, as well as the legislative council , need to be notified. 5

. The notice of appeal must specify the parties taking the appeal as appellants. The agency and all other parties of record who are not designated as appellants must be named as appellees. A notice of appeal of agency rulemaking actions need not name all persons participating in the rulemaking proceeding as appellees. The agency and all parties of record have the right to participate in the appeal. In the appeal of agency rulemaking action , any person who has participated in the rulemaking process has the right to participate in the appeal. 6. A bond or other undertaking for costs on appeal must be filed by the appellant as is required by appellants for costs on appeal in civil cases under the rules of appellate procedure. The bond or other undertaking must be filed with the clerk of the district court with the notice of appeal , must be made to the state of North Dakota, and may be enforced by the agency concerned for and on behalf ofthe state as obligee

.A bond or other undertaking is not required when filing fees have been waived by a district court pursuant to section 27-01-07 or when the costs of preparation and filing of the record of administrative agency proceedings have been waived by a district court pursuant to subsection 3 of section 28-32-44.
28-32-43. Docketing of appeals. Appeals taken in accordance with this chapter must be docketed as other cases pending in the district court are docketed and must be heard and determined by the court without ajury at such time as the court shall determine.
Page No

. 2128-32-44. Agency to maintain and certify record on appeal. 1. An administrative agency shall maintain an official record of each adjudicative proceeding or other administrative proceeding heard by it. 2

. Within thirty days, or a longer time as the court by order may direct, after an appeal has been taken to the district court as provided in this chapter, and after payment by the appellant of the estimated cost of preparation and filing of the entire record of the proceedings before the agency, the administrative agency concerned shall prepare and file in the office of the clerk ofthe district court in which the appeal is pending the original or a certified copy ofthe entire record of proceedings before the agency, or an abstract of the record as may be agreed upon and stipulated by the parties

. Upon receiving a copy of the notice of appeal and specifications of error pursuant to subsection 4 of section 28-32-42 and unless the agency is appealing, the administrative agency shall notify the party appealing of the estimated costs of preparation and filing of the record

. Thereafter, unless the agency is appealing, the party appealing shall pay the administrative agency the estimated costs required by this subsection

. If the actual costs of preparation and filing of the entire record of the proceedings is greater than the estimated costs, the party appealing shall pay to the agency the difference. Ifthe actual costs are less than the estimated costs,the agency shall pay to the party appealing the difference

. Any payment for the costs of preparation and filing of the record must be paid into the insurance recovery fund and is appropriated as a refund to the agency for the purposes of defraying the costs of preparing and filing the record. An agency may contract with any person or another agency to prepare and file the record ofany proceeding before the agency. 3

. The cost of preparation and filing of the record may be waived by the district court upon application by an appellant, showing that the appellant is a low-income person unable to afford these costs

. When a waiver is granted, the costs of preparation and filing ofthe record must be paid by the administrative agency

. 4

. The agency record of the proceedings, as applicable, may consist of only the following:
. a

. The complaint, answer, and other initial pleadings or documents. b

. Notices of all proceedings

. c

. Any prehearing notices,transcripts, documents, or orders. d

. Any motions, pleadings, briefs, petitions, requests, and intermediate rulings

. e

. A statement of matters officially noticed

. f

. Offers of proof and objections and rulings thereon

. g

. Proposed findings, requested orders, and exceptions. h

. The transcript of the hearing prepared for the person presiding at the hearing, including all testimony taken , and any written statements, exhibits, reports, memoranda, documents, or other information or evidence considered before final disposition of proceedings

. i. Any recommended or proposed order, recommended or proposed findings of fact and conclusions of law, final order,final findings offact and conclusions of law, or findings offact and conclusions of law or orders on reconsideration

. j. Any information considered pursuant to section 28-32-25

. k

. Matters placed on the record after an ex parte communication

. 5

. Except to the extent that this chapter or another statute provides otherwise, the agency record constitutes the exclusive basis for administrative agency action and judicial review ofan administrative agency action

. 6

. The record on review of agency rulemaking action, as applicable, may consist of only the following : a. All agency notices concerning proposed rulemaking. b

. A copy ofthe proposed rule upon which written and oral submissions were made

. c

. A copy ofthe rule as submitted for publication

. d

. Any opinion letters by the attorney general as to a rule's legality or the legality of the agency's rulemaking action.

Page No

. 22e

. A copy ofany interim rule and the agency's findings and statement ofthe reasons for an interim rule

. f

. The regulatory analysis of a proposed rule

. g

. The transcript of any oral hearing on a proposed rule. h

. All written submissions made to the agency on a proposed rule. i. Any staff memoranda or data prepared for agency consideration in regard to the proposed rule. j

. Any other documentthat the agency believes is relevant to the appeal. k. Any other document that is not privileged and which is a public record that the appellant requests the agency to include in the record , if relevant to the appeal. 7

. Ifthe notice of appeal specifies that no exception or objection is made to the agency's findings offact, and that the appeal is concerned only with the agency's conclusions of law based on the facts found by it, the agency may submit an abstract of the record along with such portions of the record as the agency deems necessary, to be supplemented by those portions of the record requested to be submitted by the appellant or by the other party when the agency is appealing. 8

. The court may permit amendments or additions to the record filed by the administrative agency in order to complete the record

. 28-32-45. Consideration of additional or excluded evidence. If an application for leave to offer additional testimony, written statements, documents, exhibits, or other evidence is made to the court in which an appeal from a determination of an administrative agency is pending, and it is shown to the satisfaction of the court that the additional evidence is relevant and material and that there were reasonable grounds for the failure to offer the evidence in the hearing or proceeding, or that the evidence is relevant and material to the issues involved and was rejected or excluded by the agency, the court may order that the additional evidence be taken , heard, and considered by the agency on terms and conditions as the court may deem proper. After considering the additional evidence, the administrative agency may amend or reject its findings offact, conclusions of law, and order and shall file with the court a transcript of the additional evidence with its new or amended findings offact, conclusions of law, and order, if any,which constitute a part ofthe record with the court.
28-32-46. Scope of and procedure on appeal from determination of administrative agency. A judge of the district court must review an appeal from the determination of an administrative agency based only on the record filed with the court

.After a hearing, the filing of briefs, or other disposition of the matter as the judge may reasonably require, the court must affirm the order ofthe agency unless it finds that any ofthe following are present 1

. The order is not in accordance with the law. 2

. The order is in violation ofthe constitutional rights ofthe appellant. 3

. The provisions ofthis chapter have not been complied with in the proceedings before the agency. 4. The rules or procedure ofthe agency have not afforded the appellant a fair hearing

. 5

. The findings offact made by the agency are not supported by a preponderance ofthe evidence. 6. The conclusions of law and order of the agency are not supported by its findings of fact. 7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant. 8. The conclusions of law and order ofthe agency do not sufficiently explain the agency's rationale for not adopting any contrary recommendations by a hearing officer or an administrative lawjudge. If the order of the agency is not affirmed by the court, it must be modified or reversed, and the case shall be remanded to the agency for disposition in accordance with the order ofthe court

.

Page No. 2328-32-47. Scope of and procedure on appeal from agency rulemaking. A judge of the district court shall review an appeal from an administrative agency's rulemaking action based only on the record filed with the court. If an appellant requests documents to be included in the record but the agency does not include them, the court, upon application by the appellant, may compel their inclusion

. After a hearing, the filing of briefs, or other disposition of the matter as the judge may reasonably require, the court shall affirm the agency's rulemaking action unless it finds that any ofthe following are present: 1. The provisions of this chapter have not been substantially complied with in the agency's rulemaking actions. 2. A rule published as a result of the rulemaking action appealed is unconstitutional on the face ofthe language adopted

. 3

. A rule published as a result of the rulemaking action appealed is beyond the scope of the agency's authority to adopt. 4

. A rule published as a result of the rulemaking action appealed is on the face of the language adopted an arbitrary or capricious application of authority granted by statute

. If the rulemaking action of the agency is not affirmed by the court, it must be remanded to the agency for disposition in accordance with the order of the court, or the rule or a portion of the rule resulting from the rulemaking action of the agency must be declared invalid for reasons stated by the court

. 28-32-48. Appeal -Stay of proceedings. An appeal from an order or the rulemaking action of an administrative agency does not stay the enforcement of the order or the effect of a published rule unless the court to which the appeal is taken , upon application and after a hearing or the submission of briefs, orders a stay. The court may impose terms and conditions for a stay of the enforcement of the order or for a stay in the effect of a published rule. This section does not prohibit the operation of an automatic stay upon the enforcement ofan administrative order as may be required by another statute.
28-32-49. Review in supreme court. The judgment of the district court in an appeal from an order or rulemaking action of an administrative agency may be reviewed in the supreme court on appeal in the same manner as 'provided in section 28-32-46 or 28-32-47, except that the appeal to the supreme court must be taken within sixty days after the service of the notice of entry ofjudgment in the district court. Any party of record, including the agency, may take an appeal from the final judgment of the district court to the supreme court. Ifan appeal from the judgment ofthe district court is taken by an agency, the agency may not be required to pay a docket fee or file a bond for costs or equivalent security.
28-32-50. Actions against administrative agencies -Attorney's fees and costs. 1

. In any civil judicial proceeding involving as adverse parties an administrative agency and a party not an administrative agency or an agent of an administrative agency, the court must award the party not an administrative agency reasonable attorney's fees and costs if the court finds in favor of that party and, in the case of a final agency order, determines that the administrative agency acted without substantial justification. 2. This section applies to an administrative or civil judicial proceeding brought by a party not an administrative agency against an administrative agency for judicial review of a final agency order, or for judicial review pursuant to this chapter of the legality of agency rulemaking action or a rule adopted by an agency as a result ofthe rulemaking action being appealed. 3

. Any attorney's fees and costs awarded pursuant to this section must be paid from funds available to the administrative agency the final order, rulemaking action , or rule ofwhich was reviewed by the court. The court may withhold all or part ofthe attorney's fees from any award ifthe court finds the administrative agency's action, in the case of a final agency order, was substantially justified or that special circumstances exist which make the award ofall or a portion

. ofthe attorney's fees unjust.

Page No. 244

. This section does not alter the rights of a party to collect any fees under other applicable law. 5. In any civil judicial proceeding involving adverse parties to an appeal or enforcement action involving an environmental permit issued under chapter 23-20.3, 23-25, 23-29, or 61-28 in which two or more ofthe adverse parties are not an administrative agency or an agent of an administrative agency, the court may award the prevailing nonagency party reasonable attorney's fees and costs ifthe court finds in favor ofthat party and determines that the nonprevailing nonagency party acted without substantial justification, or on the basis of claims or allegations that are factually unsupported

. The court shall award reasonable attorney's fees and costs ifthe court determines that the nonprevailing nonagency party's claims or allegations are frivolous as provided in section 28-26-01. If the appeal or civil judicial proceeding covered by this subsection involves multiple claims or allegations, the court may apportion attorney's fees and costs in proportion to the time reasonably spent by a prevailing party relating to claims pursued by the nonprevailing party that were frivolous, factually unsupported, or without substantial justification

. 28-32-51. Witnesses -Immunity. If any person objects to testifying or producing evidence, documentary or otherwise, at any proceeding before an administrative agency, claiming a privilege against self-incrimination, but is directed to testify or produce evidence pursuant to the written approval of the attorney general, that person must comply with the direction but no testimony or evidence compelled from that person, after a valid claim of privilege against self-incrimination has been made, may be used against that person in any criminal proceeding subjecting that person to a penalty or forfeiture

. No person testifying at any proceeding before an administrative agency may be exempted from prosecution and punishment for perjury or giving a false statement, or for contempt committed in answering, or failing to answer, or in producing, or in failing to produce, evidence pursuant to direction given under this section.
28-32-52. Elected official authority. This chapter does not prohibit an elected official from presiding at that agency's cases, nor from deciding cases within that agency'sjurisdiction.

Page No

. 25

# - State of

- 

# NorthDakota Office of the Governor 

## J

ack Dalrymple Governor

Lisa P. Jackson, Administrator May 25,2012

c/oJames Martin, Regional Administrator (8RA) U.S. EPA, Region 8 1595 Wynkoop Street Denver, CO 80202-1129
RE: ND State Implementation Plan for 1997 PM2

.sNAAQS and 2008 Lead AAQS
DearAdministratorJackson:
The North Dakota Department ofHealth has reviewed its State Implementation Plan (SIP) for the control ofair pollution to determine ifthe SIP is adequate for implementing the 1997 PM2.s NAAQS and 2008 lead NAAQS. Attached to this letter are documents which demonstrate that the required elements are included in the existing SIP except for the "conflictofinterest" requirements under the Clean Air

### Act§ 128. The Department ofHealth has committed to revise the State Implementation Plan by May 31, 2013 to address the requirements of§ 128

. If

### you have any questions regarding the submittal, please contact Mr. Terry O'Clair, Director, Division ofAir Quality, North Dakota Department ofHealth at 701-328-5188. Sincerely,

C: 

### David Glatt, Chief, Environmental Health Section Terry O'Clair, Director, Division ofAir 

### Quality
37:68:56

600 E Boulevard Ave. • Bismarck, ND 58505-0001 • Phone: 701.328.2200 • Fax: 701.328.2205 • www.governor.nd.gov

### North Dakota Certification Clean Air Act Section 110(a)(1) and (2) Requirements 2008 LeadNAAQS

Under the Clean Air Act (CAA), States must submit State Implementation Plans (SIPs) to assure compliance with the National Ambient Air Quality Standards (NAAQS). Sections 110(a)(1) and (2) of the Clean Air Act (CAA) require states to adopt and submit to the U.S

. EPA

"infrastructure" SIPs that address basic program elements to implement, maintain, and enforce new or revised standards including requirements for emissions inventories, monitoring, and modeling among other elements. Each ofthe basic or infrastructure requirements is listed below along with the corresponding State regulation, State statute or SIP element that implements the requirement.
Emission limits and other control measures: 

### Section 110(a)(2)(A) of the Clean Air Act requires SIPs to include enforceable emission limits and other control measures, means or techniques, schedules for compliance, and otherrelated matters.
The North Dakota Air Pollution Control Rules (NDAC 33-15) establishes control requirements for lead (Pb) indirectly through the control ofparticulate matter (PM) emissions. The following regulations address the required control measures, means and techniques. Chapter
33-15-01

33-15-02

33-15-03

33-15-04 General Provisions
This chapter establishes prohibitions against creating air pollution and provides for the enforcement ofall air pollution control rules

. The chapterprovides that all excess emissions, including emission during startup/shutdown and malfunction, are subject to enforcement action

. AmbientAir Quality Standards This chapter establishes a state ambient air quality standard (SAAQS) for lead that is identical to the NAAQS.
Restriction ofEmission ofVisible Air Contaminants
The chapter establishes visible emissions standards for bothpoint and area sources, including sources oflead emissions. Open Burning Restrictions
The chapterprohibits the open burningunless specifically authorized

.

1

### 33-15-05

33-15-12

33-15-13

33-15-14

33-15-15

33-15-17

33-15-18

33-15-19

33-15-21 Emissions ofParticulateMatter Restricted
The chapter establishes PM emission limits for fuel burning and industrial process type sources
. Standards ofPerformance for New Stationary Sources
The chapter incorporates byreference the standards in 40 CFR 60.
Emission Standards for Hazardous AirPollutants
The chapter incorporates the standards in 40 CFR 61. Designated Air Contaminant Sources,Permitto Construct,Minor Source Permitto Operate, Title V Permitto Operate
The chapterprovides a preconstructionpermittingprogram for both major and minor sources, a federally enforceable state operatingpermitprogram (FESOP) for minor sources, and a Title V Permitto Operate programfor major sources. Prevention ofSignificantDeterioration ofAir Quality
The chapterincorporatesbyreference the PSDrequirements in 40 CFR52.21.
Restriction ofFugitiveEmissions
The chapter establishes criteria for the control offugitive emissions (including lead emissions).
StackHeights
The chapterprohibits dispersion ofair contaminants through the use ofstacks that exceed good engineeringpractice (GEP). Visibility Protection
The chapter establishes requirements for the review ofmajor stationary sources and prohibits a source from having an adverse impact on any Class I 

### area
. Acid Rain Program
This chapter incorporates by reference the requirements of40 CFR 72, 75 and 76. Control of sulfur dioxide and nitrogen oxides may indirectly control lead emiSSIOnS

.

2

### 33-15-22

33-15-25 Emission Standards for Hazardous AirPollutants for Source Categories This chapterincorporates by reference the standards in 40 CFR 63. Regional Haze Requirements
The chapterprovides for the application ofBestAvailable Retrofit Technology (BART) to affected sources. A copy ofthese rules are attached to this analysis.
The North Dakota Century Code (NDCC), Chapter 23-25, Air Pollution Control (Appendix B of SIP), in Section 23-25-03 provides the following general authority to regulate sources of Pb. This section states thatthe Department shall:


### NDCC23-25-03.6- Provide rules andregulations relating to the construction of any new direct or indirect air contaminant source or modification ofany existing direct or indirect air contaminant source which the Department determines will prevent the attainment ormaintenance of any ambient airquality standard, andrequire thatprior to commencing construction or modification ofany such source, the owner or operator

· thereof shall submit such information as may be necessary to permit the Department to makesuch determination.
NDCC23-25-03.7

- 

### Establish ambient airqualitystandardsfor the state which may vmy according to appropriate areas. NDCC 23-25-03.8

- Formulate andpromulgate emission control requirementsfor the prevention, abatement, andcontrol of airpollution in this state including achievement of ambientairqualitystandards.
Ambient air gualitv monitoring/data system: 

### Section 110(a)(2)(B) ofthe CAA requires SIPs to provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to monitor, compile, and analyze data on ambient air quality, and upon request, make such data available to EPA.
The 2011 Annual Monitoring Network Plan for North Dakota (submitted to EPA in July, 2010 and approved September 2010) provides for an ambient air quality monitoring system in the State. Because North Dakota has no significant sources of Pb (2: 

### 0

.5 tpy), no Core Based Statistical Areas (CBSA) with a population of 500,000 or more, and no airports listed in Appendix D of40 CFR 589 (Table D-3A), no ambient monitoring for Pb is required. Therefore, there is no duty to correlate ambient monitoring data to emission limits for stationary sources. If necessary, the Department can establish ambient monitoring sites for Pb.
NDCC 23-25-03 provides the authority for the Department to conduct ambient air monitoring. This subsection states thatthe Department shall:

3

### NDCC 23-25-03.2

- Determine by scientifically oriented field studies andsampling the degree of airpollution in the state andthe severalparts thereof
NDCC 23-25-03.10

- Require the owner or operator ofa regulated air contaminant source to establish and maintain such records; make such reports; install , use, and maintain such monitoring equipment or methods; sample such emissions in accordance with such methods, at such locations, intervals, andprocedures; andprovide such other information as may be required.


### Ambient monitoring is covered in Chapter 6 ofthe North Dakota SIP. It

### provides fon the design and operation ofa monitoring network,reporting ofdata obtained from the monitors, and annual network review including notification to EPA of any changes, and public notification of exceedances ofNAAQS. Program for enforcement ofcontrol measures: 

### Section 110(a)(2)(C) requires SIPs to include a program providing for enforcement ofall SIP measures and the regulation ofconstruction of new or modified stationary sources as necessary to assure that the NAAQS are achieved, including apermitprogram as required in parts C and D.
NDCC 23-25-10, Enforcement

- Penalties

- Injunctions, provides authority for enforcement of the North Dakota Air Pollution Control Rules (NDAPCR) and specifies the potential penalties for such violation. NDAC 33-15-01-17, Enforcement, provides general interpretation of enforcement ofthe NDAPCR. The following regulations within the NDAPCR and the North Dakota SIP provide for the permitting ofsources oflead:
NDAC 33-15-14-02 NDAC 33-15-14-03 NDAC 33-15-14-06 NDAC 33-15-15 Permitto Construct Minor Source Permit to Operate Title V Permitto Operate Prevention ofSignificantDeterioration
NDAC 33-15-15 contains all federal PSD regulations through July 2, 2010

. These rules also incorporate EPA's Tailoring Rule. The rules are being updated as part ofa SIP revision to be submitted separately in 2012. NDAC 33-15-14-02 and 33-15-14-03 provide a preconstruction and operating permitprogram for minor sources oflead emissions. Authority for the permitting programs is found in NDCC 23-25-03 which states that the Department shall:
NDCC23-25-03.6- Provide rules andregulations relating to the construction of anynew direct or indirect air contaminant source or modification ofany existing direct or indirect air contaminant source which the Department determines will prevent the attainment or maintenance ofany ambient air standard, and require that prior to commencing construction or modification ofany such source, the owner or operator



### 4

# I

.

thereofshall submit such information as may be necessary to permit the Department to makesuch determination.
and


### NDCC23-25-04.1- Permits andRegistration
I. ljo person shall construct, install, modify, use or operate an air contaminant source designated by regulation, capable ofcausing or contributing to air pollution, eitherdirectly or indirectly, without apermit from the Department or in violation of any conditions imposedbysuchpermit.
2. The Department shall providefor the issuance, suspension, revocation, and renewalof anypermits which it may requirepursuant to this section.
3. The Department may require that applications for such permits shall be accompanied byplans, specifications, and such other information as it deems necessa1y.
4. Possession of an approvedpermit or registration certificate does not relieve any person of the responsibility to comply with applicable emission limitations orwith any otherprovision oflaw or regulations adoptedpursuant thereto anddoes not relieve any person from the requirement that that person possess a valid contractor's license issuedunder Chapter43-07.
5. The Department by rule or regulation may provide for registration and registration renewal ofcertain air contaminant sources in lieu ofthe permit requiredpursuant to this section.
6. The Department may exempt by rule or regulation certain air contaminant sources from thepermitor registration requirements set forth in this section when the Department makes a finding that the exemption ofsuch sources ofair contaminants willnot be contrary to section 23-25-01.1.
Interstate transport: Section 110(a)(2)(D) of the CAA requires SIPs to contain adequate provisiOns prohibiting any source or other type of emissions activity in one State from 1) contributing significantly to nonattainment of the National Ambient Air Quality Standards (NAAQS), 2) interfering with maintenance ofthe NAAQS, and 3) interfering with measures required to prevent significant deterioration or interfering with the implementation of plans related to regional haze or visibility in another State. The following regulations and SIP provisions address interstate transport:
NDAC 33-15-15 NDAC 33-15-19 NDAC 33-15-25 Prevention ofSignificantDeterioration Visibility Protection Regional Haze Requirements



### 5

### SIP Section 7.8 SIP Interstate Transport ofAirPollution North Dakota State Implementation Plan for Regional Haze (February 24, 2010)

NDCC 23-25-03 states that the Department shall:
NDCC 23-25-03.6- Provide rules and regulations relating to the construction ofany new direct or indirect air containment source or modification ofany existing direct or indirect air containment source which the Department determines will prevent the attainment or maintenance of any ambient air quality standard, andrequire thatprior to commencing construction or modification ofany such source, the owner or operator thereofshall submit such information as may be necessary topermit the Department to makesuch determination.
A. 

### Significant Contribution Requirement ofSection 110(a)(2)(D)(i)(I).
Section 110(a)(2)(D)(i)(I) specifically provides that each state's SIP must contain adequate provisions to prohibit air pollutant emissions from within the state that significantly contribute to nonattainment ofthe NAAQS in any other state. The state's submission must explain whether or not emissions from the state have this impact and, if so, address the impact.
The nearest lead nonattainment area to North Dakota is the Eagan, Minnesota area which includes aportion ofDakota County. The Eagan area is approximately 185 miles from the North Dakota border. EPA believes that requirements of subsection (2)(D)(i)(I) (prongs 1 and 2) could be satisfied through a state's assessment as to whether or not emissions from Pb sources located in close proximity to their state borders (e.g. within 2 miles) have emissions that impact the neighboring state such that they contribute significantly to nonattainment by having a emissions threshold of 0.5 tons per year or greater orinterfere with maintenance on that state1• 

### North Dakota has few sources oflead located within 2 miles ofthe Minnesota border. The following sources emit lead, or lead compounds, due to the combustion ofcoal and include the following:
2010 Approximate Distance to Lead Emissions NearestNonattainment Source (tons)* Area (miles) 

### American Crystal Sugar

- 0.028 310 Drayton

1

### Memorandum issued by Stephen Page, OAQPS, "Guidance on Infrastructure State Implementation Plan (SIP) Elements Required Under Sections 110(a) (1) and (2) for the 2008 Lead (Pb) National AmbientAir Quality Standards (NAAQS); October, 2011.

6

### 2010 Approximate Distance to Lead Emissions NearestNonattainment Source (tons)* Area (miles) 

### University ofNorthDakota 0

.010 285 North Dakota State 0

.007 225 University Minn-Dak Farmers Coop. 0

.031 200 ND State School ofScience 0.001 200 Sanford Medical Center < 

### 0.0001 225 *Basedon AP-42 emission factors
The small quantity oflead emissions and the large distance to Dakota County, Minnesota indicates that sources in North Dakota will not significantly contribute to this nonattainment area. There are no sources oflead within 2 miles ofthe border with South Dakota and Montana than have emissions greater than 0

.001 tons peryear. B. 

### Interfere with Maintenance Requirement ofSection 110(a)(2)(D)
Section 110(a)(2)(D)(i)(I) specifically provides that each state's SIP must contain adequate provisions to prohibit air pollutant emissions from within the state that interfere with maintenance ofthe NAAQS in any other state. States' submission must address this independent requirement ofthe statute. This provision requires evaluation ofimpacts on areas of other states that are meeting the lead NAAQS, not merely areas formerly designated nonattainment that are subject to maintenance SIP. Therefore, the SIP must explain whether or not emissions from the state have this impact and, ifso, address the impact.
North Dakota has no significant sources oflead**~** 

### 0

.5 tons/yr) lo"cated within 2 miles of the borders with Minnesota, South Dakota or Montana. No source would have lead emissions greater than 0.031 tons per year. Therefore, North Dakota sources will not interfere with these states ability to maintain compliance with the NAAQS for lead.
C

. PSD sub-element of 110(a)(2)(D)(i)(II) and 110(a)(2)(J):
These sections require that sources in North Dakota may not interfere with measures required to be included in the SIP for any other State under Part C to prevent significant deterioration of air quality and requires North Dakota to have in place a prevention of significant determinationprogram for sources in the North Dakota.
The Department has adopted the Federal PSD rules by reference as they exist on July 2, 2010. The Department is in the process of adopting the PSD rules as they exist on January 1, 2012. This will incorporate all existing requirements

. The PSD rules require compliance with the 2008 lead NAAQS incorporated in NDAC 33-15-02.
D. Visibility sub-element of 110(a)(2)(D)(i)(II) and 110(a)(2)(J):

7

### These sections require that sources in North Dakota may not interfere with measures required for any other state for visibility protection and requires North Dakota to have inplace measures to protect visibility in North Dakota Class I areas. North Dakota has in place a SIP to address visibility impairment for major source (PSD) permitting (NDAC 33-15-15), specific visibility impairment (RAVI) and plume blight (NDAC 33-15-19). To date, no sources in North Dakota have been identified as causing "reasonably attributable visibility impairment" in any Federal Class I area. The Department has prepared and submitted to EPA (March 3, 2010) a SIP revision to address regional haze for the current planning period

. This includes a long-term strategy which provides for improvement in the most impaired days and no degradation in the least impaired days.
Section 110(a)(2)(D)(ii): Interstate and International TransportProvisions:


### Section 110(a)(2)(D)(ii) requires that each plan include measures that ensure compliance with the applicable requirements of Sections 136 and 115 relating to interstate and international pollution abatement. Section 126(a) ofthe Clean Air Act (CAA) requires each SIP to include provisions to notify neighboring states ofpotential impacts from anew or modified source. The North Dakota PSD rules provide for notifying neighboring states whose land may be significantly affected by emissions from a new or modified source. NDAC 33-15-15- 01.2(q)(2)(d) states: NDAC-33-15-15-0l.(q)(2)(d)- Send a copy ofthe notice required in subparagraph c to the applicant, the United States environmentalprotection agency administrator, and to officials and agencies having cognizance over the location where the source or modification will be situatedasfollows: the chief executive of the city andcounty where the source or modification would be located; any comprehensive regional land use planning agency; andany state,federal land manager , orIndian governing body whose lands may besignificantlyaffectedbyemissions from the source ormodification.
Similar notification requirements are provided for minor sources under NDAC 33-15-14- 02.6.b(4). Adequate personnel, funding and authority: 

### Section 11O(a)(2)(E) ofthe CAA requires states to provide for adequate personnel, funding and legal authority under State law to carry out its SIP and related issues.
The authority for the Department to carry out the requirements ofthe SIP is found in NDCC 23- 25-03 which states:
23-25-03. Powerandduties to theDepartment. The Departmentshall:

8

### • Encourage the voluntary cooperation of persons oraffectedgroups to achieve the purposes of this chapter.

• Determine by scientifically oriented field studies andsampling the degree of air pollution in the state andthe severalparts thereof

• Encourage and conduct studies, investigations, and research relating to air pollution andits causes, effects,prevention, abatementandcontrol.

• Advise, counsel, and cooperate with other public agencies and with affected groups andindustries.

• Issue such orders as may be necessary to effectuate thepurposes ofthis chapter andenforce the same byallappropriate administrative and judicialprocedures.

• Provide rules and regulations relating to the construction ofany new direct or indirect air contaminant source ormodification of any existing direct or indirect air containment source which the Department determines will prevent the attainment ormaintenance of any ambient air qualitystandards, andrequire that prior to commencing construction ormodification of any such source, the owner or operator thereof shall submit such information as may be necessary topermit the Department to makesuch determination.

• Establish ambient airqualitystandardsfor the state which may vary according to appropriateareas.

• Formulate andpromulgate emzsszon control requirementsfor the prevention, abatement, and control ofair pollution in the state including achievement of ambientairqualitystandards.

• Hold hearings relating to any aspect or matter in the administration ofthis chapter, and in connection therewith, compel the attendance of witnesses andthe production of evidence.

• Require the owner or operator of a regulatedair containment source to establish and maintain such records; make such reports; install, use and maintain such monitoring equipment or methods; sample such emissions in accordance with such methods, at such locations, intervals, andprocedures; andprovide such other information as may be required.

• Provide by rules and procedures necessary and appropriate to develop, implement, and enforce any air pollution prevention and control program established by the Federal Clean AirAct, as amended, and the authorities and responsibilities ofwhich are delegatable to the state by the United States environmentalprotection agency. Such rules may include any andall enforceable
9

### ambient standards, emzsswn limitations, and other control measures, means, techniques, or economic incentives such asfees, marketablepermits, andactions ofemission rights as provided by the Act. The Department shall develop and implement suchfederalprograms 

## ifthe Department determines there is a benefit to the state.

• Provide by rules a program for implementing lead-based paint remediation training, certification andperformance requirements in accordance with title 40, Code of FederalRegulations,part 745, sections 220, 223, 225, 226, 227and233.
In addition,NDAC 33-15-01-03 states:


### NDAC 33-15-01-03. Authority. The North Dakota State Department of Health has been authorized to provide and administer this article under theprovisions of North Dakota Century Code chapter23-25.
The provisions ofthe SIP are carried out by the Department ofHealth. The only portion ofthe SIP that has been delegated is approval ofopen burning requests. Several local Health Districts have been delegated this authority. There are no other agencies, departments or local units that have been delegated authority to develop any portion ofthe SIP.
NDAC 33-15-23, Fees, provides the regulatory mechanism for requiring stationary sources that emit air pollutants to pay a fee based on the quantity ofemissions emitted. Fees are collected annually from both major sources and minor sources. In 

### addition, fees are charged for reviewing applications for the construction ofnew or modified sources. Title V fees are adjusted annually to match the change in the consumerprice index.
The Department does not anticipate the construction ofany new significant (2: 

### 0.5 tons/yr) lead emission sources during the next five years. Therefore, no additional personnel will be required to assure compliance with the Pb NAAQS. The Department currently has 11 people dedicated to permitting ofnew or modified sources ofair pollution and the enforcement ofthe air pollution control rules. In addition, another 5people are dedicated to monitoring air quality.
NDCC 23-25-04.2 provides the statutory authority for collectingfees.


### NDCC 23-25-04.2, Fees

- Deposit in operatingfund. The Department by rule or regulation mayprescribe andprovidefor thepayment andcollection of reasonablefees for the issuance of permits or registration certificates. The permit or registration certificatefees must be based on the anticipated cost of filing and processing the application, oftaking action on the requestedpermit or registration certificate, and conducting an inspectionprogram to determine compliance or noncompliance with the permit or registration certificate. Any moneys collected forpermit or registrationfees must be deposited in the Department operatingfund in the state treasury andmust be spentsubject to appropriation by the legislativeassembly

.

10

### Resources for the operation ofthe air pollution control program are also addressed in Section 9 of the SIP which was updated in April 2009. The Department has determined that it has adequate resources to implement the 2008 Pb NAAQS. The Department has addressed the legal authority to collect fees necessary to implement the air pollution control program in section 2.11 ofthe SIP.
The regulations that control emissions of lead or lead compounds are described in the section titled "Emission limits and othercontrol measures".
In North Dakota there are no boards, or any other body, that approves permits or enforcements. The State Health Officer is the head of the State Health Department which includes the Air Pollution Control program. NDCC 23-01-05 states "The State Health Officer may not engage in any occupation or business that may conflict with the statutory duties of the state health officer.

..". NDCC 23-01-05 is contained in Appendix B of the SIP. The Department has committed to revise the SIP to require that any conflict of interest by anyone that approves permits or enforcement actions mustbe disclosed (See attachment 21). Stationary source monitoring system: 

### Section 11O(a)(2)(F) of the CAA requires states to establish a system to monitor emissions from stationary sources and to submit periodic emission reports.
The following State regulations require monitoring of emissions from stationary sources, recordkeeping and reporting ofemissions and monitoring data:
NDAC 33-15-14-02.9 NDAC 33-15-14-03.6 NDAC 33-15-14-06.5 Statutory authority for the monitoring IS 

### found 

### m NDCC 23-25-03 which states that the Department shall:


### NDCC 23-25-03.10

- Require the owner or operator ofa regulated air containment source to establish and maintain such records; make such reports; install, use and maintain such monitoring equipment or methods; sample such emissions in accordance with such methods, at such locations, intervals, andprocedures; andprovide such other information as may be required.
Source surveillance is also addressed in Chapter 8 ofthe SIP. This chapter provides for the permitting ofsources, inspection ofthe sources and compliance determinations. Emergency episodes: 

### Section 110(a)(2)(G) ofthe CAA requires states to provide for authority to address activities causing imminent and substantial endangerment to public health, including contingencyplans to implementthe emergency episode provisions in their SIPs. NDAC 33-15-11, Prevention of Air Pollution Emergency Episodes, provides the means to implement emergency air pollution episode measures and is authorized by NDCC 23-25-03 which states thatthe Department shall:

11

### NDCC 23-25-03.5

- Issue such orders as may be necessary to effectuate thepurposes of this chapter and enforce the same by all appropriate administrative andjudicial procedures.


### NDCC 28-32-32 (Appendix B ofSIP) states that in an emergency, the administrative agency (the Department) may take action pursuant to a specific statute as is necessary to prevent or avoid imminentperil to public health, safety orwelfare.
In addition, NDCC 23-25-08 states "when an emergency exists requiring immediate action to protect thepublic health and safety, the Department ma y, without notice or hearing , issue an order reciting the existence ofsuch emergency and requiring that such action be taken as is necessary to meet this emergency." 

### North Dakota does not have any stationary sources that emit a significant amount oflead, or lead compounds. The primary source, although small, is the combustion of coal. Other minor sources include catalyst recycling and fugitive dust emissions. The Department believes these sources are such minor sources oflead that a contingency plan is not required. The Department believes the emissions of PM 10 

### and PM2
.5 

### from coal combustion sources will present an endangerment to public health before lead emissions from coal combustion do. North Dakota has in place abatement strategies for PM 10 

### in NDAC 33-15-11 which address coal combustion.
Future SIP revisions: 

### Section 11O(a)(2)(H) ofthe CAA requires states to have the authority to revise their SIPs in response to changes in the NAAQS, availability ofimproved methods for attaining the NAAQS, or in response to an EPA finding that the SIP is substantially inadequate.
NDCC 25-25-03 states that the Department shall:
NDCC 23-25-03.8

-Formulate andpromulgate emission control requirementsfor the prevention, abatement andcontrol of airpollution in this state including achievement of ambientairqualitystandards.
NDCC 23-25-03.12

- Provide by rules an y procedures necessmy and appropriate to develop, implement , and enforce any air pollution prevention and control program established b y the Federal Clean Air Act, as amend ed, and the authorities and responsibilities of which are delegatable to the state by the United States environmental protection agency. Such rules may include any andall enforceable ambient standards, emission limitations, and other control measures, means, techniques, or economic incentives such asfees, marketablepermits, andauctions of emissions rights asprovided by theAct. The Departmentshall develop andimplementsuch asfederalprograms 

## if the Departmentdetermines there is a benefit to thestate.


### The North Dakota SIP, Section 1.14, commits the Departmentto making the necessary revisions. Section 1.14 states "The Department will revise this implementation plan as may be necessary to take account of revisions of the National Ambient Air Quality Standards (both primary and secondary) or the availability of improved or more expeditious methods of attaining these

12

### standards

. The Department will also revise the implementationplan whenever the Administrator of the United States Environmental Protection Agency finds, on the basis of information available to the Administrator, that the plan is substantially inadequate to attain the National Ambient Air Quality Standards which it implements or to otherwise comply with additional requirements established under the Federal Clean Air Act. The Department·will make such revision only ifthe finding ofthe Administrator is in accordance with the requirements ofthe Federal Clean AirAct."


### Consultation with government officials: Section 110(a)(2)(J) ofthe CAA requires states to provide a process for consultation with local governments, designated organizations and federal land managers (FLMs) carrying out NAAQS implementation requirements pursuant to section 121 relative to consultation.
North Dakota has no transportation control plans, maintenance plans or nonattainrnent areas. For preconstruction review, the public participation procedures of NDAC 33-15-14-02.6 are followed for minor sources. For sources subject to PSD review, the public participation procedures in paragraph (q) ofNDAC 33-15-15-01.2 are followed

. Both NDAC 33-15-14-02

.6 and 33-15-15-01.2(q) require notification ofthe chiefexecutive ofthe city or county a source is proposing to locate, any regional land use planning agency, and any state, federal land manager or Indian body whose lands will be significantly affected by a proposed source's emissions

. Consultation with the FLMs for PSD projects is accomplished in accordance with 40 CFR 52.21 (p) which is incorporated by reference into NDAC 33-15-15-01.2

. For enforcement orders, the requirements of NDCC 23-25-08 and NDCC 28-32 are followed. Consultation with other government agencies is addressed in Chapter 10 ofthe SIP

. This Chapter ofthe SIP commits the Department to consultation with adjacent state, local government and other state agencies whenever a SIP revision is required

. 

### Public notification: Section 11O(a)(2)(J)

.ofthe CAA further requires states to notify the public ifNAAQS are exceeded in an area and to enhance public awareness of measures that can be taken to prevent exceedances

. The North Dakota SIP, Section 6

.9, commits the Department to notification ofthe public, on a regular basis, whenever an ambient air quality standard is exceeded. The public will be advised ofthe potential health effects, measures which can be taken to prevent future exceedances, and ways they can participate in the regulatory and other efforts to improve air quality. The authority for this notification is found in NDCC 23-25-06. In addition, NDAC 33-15-11-03.1 requires the Department to notify the public whenever an air pollution emergency has been determined to exist.


### PSD and visibilitv protection: Section 110(a)(2)(J) of the CAA requires states to meet applicable requirements ofPart C related to prevention ofsignificant deterioration and visibility protection.
The Department has updated the SAAQS for lead in NDAC 33-14-02 (April, 2011) to be identical to the 2008 NAAQS. Pursuant to NDCC 33-15-15-01.2(k)(i), a PSD applicant must demonstrate compliance with the SAAQS including the 2008 lead NAAQS. The Departmenthas

13

### also adopted the "Tailoring Rule" for greenhouse gases (April, 2011). PSD applicants must address any applicable requirements for greenhouse gases.
The Department has submitted it Regional Haze SIP (March, 2010). In addition, visibility impacts must be addressed by a PSD applicant in accordance with NDAC 33-15-15-01.2(o) and (p).


### Air quality modeling/data: Section 110(a)(2)(K) requires SIPs to provide for the performance ofair quality modeling for predicting effects on air quality ofemissions ofany NAAQS pollutant and the submission ofsuch data to EPA upon request.
Air quality modeling is addressed in Section 7.7 ofthe North Dakota SIP. This section commits the Department to performing air quality modeling to predict the impact of a source on air quality. The section also commits the Department to providing data to EPA on air quality modelingupon request. Modeling for minor sources is addressed in NDAC 33-15-14-02.4 while modeling for majorPSD sources is address in 40 CFR 52.21(k), 

### (1), (m), (n) and (o) a· s incorporated into NDAC 33-15-15- 01.2. Authority for requiring modeling is in NDCC 23-25-03 which states the Department shall:


### NDCC 23-25-03-02

- Determine by scientifically oriented fieldstudies andsampling the degree of airpollution in the state andthe severalparts thereof
and


### NDCC 23-25-03-12

- Provide by rules andprocedures necessary and appropriate to develop, implement, and enforce any air pollution prevention and control program established by the Federal Clean Air Act, as amended, and the authorities and responsibilities of which are delegateable to the state by the UnitedStates Environmental ProtectionAgency. Such rules may include any andall enforceable ambient standards, emissions limitations, and other control measures, means, techniques, or economic incentives such asfees, marketablepermits, andauctions of emissions rights asprovided by the Act. The Department shall develop and implement suchfederalprograms 

## ifthe Departmentdetermines there is a benefit to the state. Permitting fees: Section 110(a)(2)(L) requires SIPs to include a requirement for each major stationary source to pay permitting fees to cover the cost of reviewing, acting upon, implementing and enforcing a permit until such fee requirement is superseded by EPA approval ofa fee programunder Title V ofthe Clean AirAct.
NDAC 33-15-23, Fees, establishes fees for processing Permit to Construct applications, annual operating fees for minor sources and fees for major sources under the Title V Permit to Operate program. These fees are used for reviewing, approving, implementing and enforcing a permit. The authority for the fees is found inNDCC 23-25-04.2.

14

### NDCC 23-25-04.2. Fees

- Deposit in operatingfund: The Department by rule or regulation mayprescribe andprovidefor thepayment andcollection of reasonablefees for the issuance ofpermits or registration certificates. The permit or registration certificatefees for the issuance ofthe anticipated cost of filing andprocessing the application, oftaking action on the requestedpermit or registration certificate, and conducting an inspectionprogram to determine compliance or noncompliance with the permit or registration certificate. Any moneys collected forpermit or registrationfees must be deposited in the Department operatingfund in the state treasury and must be spentsubject to appropriation by the legislative assembly.
The Department collects fees for reviewing permit applications, annual minor source Permit to Operate fees and Title V Permit to Operate fees. North Dakota's Title V Permit to Operate programreceived full approval from EPA effective August 16, 1999 (64 FR 32433). 

### Consultation/participation by 

### affected local entities: Section 11O(a)(2)(M) requires SIPs to provide for consultation and participation in SIP development by local political subdivisions affectedby the SIP.
No other state or local entities are responsible for developing the SIP. Implementation and enforcement ofopen burning request approvals has been delegated to several local health units. The Departmentretains responsibility for ensuring adequate implementation ofall SIP revisions. No otherportions ofthe SIP have been delegatedto other organizations.
The North Dakota SIP, Chapter 10, addresses the consultation process the Departmentwill use to coordinate with local political subdivisions that are affected by any SIP revisions. NDCC 23-25- 03 also requires consultation by stating that the Department shall:


### NDCC23-25-03.4-Advise, consults andcooperates with otherpublic agencies andwith affectedgroups andindustries. Intergovernmental cooperation, Section 10 of North Dakota's SIP, addresses the process for sharing information and working with othergovernment agencies. Regarding SIP and rule revisions, NDCC 23-25-02.6 requires public notice, the opportunity for public comment, and a public hearing. It 

### states: "The advisory council shall hold a public hearing to consider and recommend the adoption, amendment, or repeal ofrules, regulations , and standards as provided in this chapter. Notice of such public hearing or hearings must be given by publication of a notice of such hearing or hearings in each of the official county newspapers within the state ofNorthDakotaby at least two publications, one week apart, the last publicationbeing at least thirty days prior to the first hearing. The hearing or hearings must be held in the state capitol in Bismarck and interested parties may present witnesses and other evidence pertinent and relevant to proposed rules, regulations and standards. The advisory council shall consider any other matters related to the purposes ofthis chapter and may make recommendations on its own initiative to the Department concerning the administration ofthis chapter."

15

### North Dakota has no nonattainment areas
. Therefore, consultation with affected entities is not required for transportation conformity or other nonattainment area SIP requirements

.

16

### Attachments
1. NDCC 23-01
2

. NDCC 23-25
3

. NDCC 28-32
4. NDAC 33-15-01
5. NDAC 33-15-02
6

. NDAC 33-15-03
7. NDAC 33-15-04
8

. NDAC 33-15-05
9. NDAC 33-15-11
10. NDAC 33-15-12
11. NDAC 33-15-13
12

. NDAC 33-15-14
13

. NDAC 33-15-15
14

. NDAC 33-15-17
15. NDAC 33-15-18
16

. NDAC 33-15-19
17

. NDAC 33-15-21
18

. NDAC 33-15-22
19

. NDAC 33-15-23
20

. NDAC 33-15-25
21. Section 128 CommitmentLetter
22. Public ParticipationDocumentation

17

### a
. Abbreviated Public Notice
b. Full Public Notice

c. Press Release
d. Website Notice

e. Affidavit ofPublication


### f. Invoice ofPublication

g. List ofHearing attendees


### h. Hearing transcript

1. 

### Response to Public Comments


### J. Certification ofHearing

18

## I

- TITLE 23 HEALTH AND SAFETY 

### CHAPTER 23-01 STATE DEPARTMENT OF HEALTH
23-01-01. State department of health - Officers. The state department of health consists of a health council, a state health officer, section chiefs, directors of divisions, and other employees ofthe department.
23-01-01.1. State department of health to replace state department of health and consolidated laboratories. Wherever the terms "North Dakota state department of health", "department of health", "health department", "state department of health and consolidated laboratories", "North Dakota state laboratories department", "state laboratories department", "state laboratories department director", or "state laboratories director" appear in this code, the term "state department of health" must be substituted therefor. Wherever the terms "state food commissioner and chemist" and "commissioner" when referring to the state food commissioner and chemist appear in chapters 19-17 and 19-18, the term "state department of health" must be substituted therefor

. 23-01-01.2. State department of health designated primary state environmental agency. The state department of health is the primary state environmental agency. 23-01-02. Health council - Members, terms of office, vacancies, compensation, officers, meetings. The health council consists of eleven members appointed by the governor in the following manner: four persons from the health care field, five persons representing consumer interests, one person from the energy industry, and one from the manufacturing and processing industry. The governor may select members to the council from recommendations submitted by trade, professional, and consumer organizations. On the expiration of the term of any member, the governor, in the manner provided by this section, shall appoint for a term ofthree years, persons to take the place of members whose terms on the council are about to expire. The officers ofthe council must be elected annually. Any state agency may serve in an advisory capacity to the health council at the discretion of the council. The council shall meet at least twice each year and at other times as the council or its chairman may direct. The health council shall have as standing committees

. any committees the council may find necessary. The chairman of the council shall select the members of these committees

. The members of the council are entitled to receive sixty-two dollars and fifty cents as compensation per day and their necessary mileage and travel expenses as provided in sections 44-08-04 and 54-06-09 while attending council meetings or in the performance of any special duties as the council may direct. The per diem and expenses must be audited and paid in the manner in which the expenses of state officers are audited and paid

. The compensation provided for in this section may not be paid to any member ofthe council who received salary or other compensation as a regular employee of the state, or any of its political subdivisions, or any institution or industry operated by the state.
23-01-02.1. Hospital utilization committees - Internal quality assurance review committees - Reports -Immunity. Repealed by S.L. 1997, ch. 234, 

### § 5.
23-01-03. Powers and duties of the health council. The health council shall: 1. Fix, subject to the provisions of section 23-01-02, the time and place of the meetings ofthe council.
Page No.12. Make rules and regulations for the government of the council and its officers and meetings

. 3. Establish standards, rules, and regulations which are found necessary for the maintenance of public health, including sanitation and disease control. 4

. Provide for the development, establishment, and enforcement of basic standards for hospitals and related medical institutions which render medical and nursing care, and for the construction and maintenance of such institutions, such standards to cover matters pertaining to sanitation , building construction, fire protection measures, nursing procedures, and preservation of medical records. No rule may be adopted with respect to building construction of existing medical hospitals or related medical institutions unless the rule relates to safety factors or the hospital or related medical institution changes the scope of service in such a way that a different license is required from the department pursuant to rules adopted under chapter 23-16. 5. Hold hearings on all matters brought before it by applicants and licensees of medical hospitals with reference to the denial, suspension , or revocation of licenses and make appropriate determination as specified herein

. The council may direct the state health officer to do or cause to be done any or all ofthe things which may be required in the proper performance of the various duties placed upon the state department of health

. 23-01-03.1. Newborn metabolic and genetic disease screening tests. The health council may authorize the use of newborn metabolic and genetic disease screening tests, as provided for in chapter 25-17,for research purposes. The council shall adopt rules to ensure that the results are used for legitimate research purposes and to ensure that the confidentiality ofthe newborns and their families is protected.
23-01-03.2. Duties ofthe health council. The health council shall: 1. Monitor overall health care costs and quality of health care in the state. 2

. Recommend to the appropriate interim legislative committees changes to the health care system in the state

. 3. Publish an annual report on health care in the state.
23-01-03.3. Long-term care nursing scholarship and loan repayment grant program. 1

. The state health council, in cooperation with the North Dakota long term care association, shall administer the long-term care nursing scholarship and loan repayment grant program. The purpose ofthe program is to provide matching funds to nursing facilities for the facilities to use in recruiting and retaining nurses by providing scholarships to nursing facility staff and other individuals to obtain a nursing education and by assisting in the repayment of student loans for licensed nurses employed in a nursing facility

. The state health council shall adopt rules necessary to administer the program , including rules establishing criteria regarding eligibility for and distribution of program grants. 2

. An applicant for a program grant shall establish that the applicant: a. Is a licensed nursing facility; b

. Has available matching funds equal to the amount ofthe grant request; and c. Meets the eligibility criteria established by rule. 3

. An eligible applicant may receive a program grant not exceeding five thousand five hundred dollars in the first year of the biennium

. Any funds appropriated by the legislative assembly for the grant program which are remaining after the first year of the biennium may be distributed to eligible applicants in the second year of the biennium in any amount determined by the state health council.

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. 223-01-04. Effect of rules and regulations. All rules and regulations promulgated by the health council under the powers granted by any provisions ofthis title are binding upon all county and municipal health officers, and upon all county, municipal, and private medical hospitals and upon related institutions, and have the force and effect of law.
23-01-04.1. Rulemaking authority and procedure. 1

. Except as provided in subsection 2, no rule which the state department of health, hereinafter the department, adopts for the purpose of the state administering a program under the federal Clean Air Act, federal Clean Water Act, federal Safe Drinking Water Act, federal Resource Conservation and Recovery Act, federal Comprehensive Environmental Response, Compensation and Liability Act, federal Emergency Planning and Community Right to Know Act of 1986, federal Toxic Substances Control Act, or federal Atomic Energy Act of 1954, may be more stringent than corresponding federal regulations which address the same circumstances. In adopting such rules, the department may incorporate by reference corresponding federal regulations. 2

. The department may adopt rules more stringent than corresponding federal regulations or adopt rules where there are no corresponding federal regulations, for the purposes described in subsection 1, only if it makes a written finding after public comment and hearing and based upon evidence in the record, that corresponding federal regulations are not adequate to protect public health and the environment of the state. Those findings must be supported by an opinion ofthe department referring to and evaluating the public health and environmental information and studies contained in the record which form the basis for the department's conclusions. 3. If the department, upon petition by any person affected by a rule of the department, identifies rules more stringent than federal regulations or rules where there are no corresponding federal regulations, the department shall review and revise those rules to comply with this section within nine months ofthe filing ofthe petition. 4. All existing rules of the department remain in full force and effect after July 10, 1989, pending department review and revision under subsection 3. 5. Any person who is issued a notice of violation, or a denial of a permit or other approval , based upon a rule of the department which is more stringent than a corresponding federal regulation or where there is no corresponding federal regulation, may assert a partial defense to that notice, or a partial challenge to that denial, on the basis and to the extent that the department's rule violates this section by imposing requirements more stringent than corresponding federal regulations, unless the more stringent rule ofthe department has been adopted in compliance with this section. 6. The provisions ofthis section may not be construed so as to require the department to review and propose revisions to any existing rule regarding the collection of fees by the department in connection with the administration of any program identified in subsection 1.
23-01-04.2. Legislative intent - Health vaccination charges. It is the intent of the legislative assembly that the state department of health adopt rules defining appropriate administration charges for vaccine provided by the department to physicians, private clinics, and hospitals

. 23-01-04.3. Alternative health care services pilot project - Application - Notice

- Hearing -Approval - Duration. 1. At any time that the health care needs of a city,township, or other geographic area are not being adequately met, any person may apply to the state health council for approval to conduct an alternative health care services pilot project. The application must address the need for and benefits of the pilot project. It must also contain a

Page No

. 3detailed description of the nature and scope of the project, quality control, organization, accountability, responsibility, and financial feasibility

. 2

. Upon receipt of an application under subsection 1 , the state health council shall schedule a public hearing, send notice to all interested parties, and give public notice ofthe hearing by publication in the official newspaper of each county in the pilot project area. At the hearing, the council shall accept written and oral testimony. The council shall review the application and all testimony presented at the hearing and approve, disapprove, or modify and approve the application based on criteria established by the council. The criteria must address the availability and use of health personnel, facilities, and services. 3

. Notwithstanding any other provisions of law, upon approval of an application submitted under subsection 1 ,the state health council, in consultation with the state health officer and any other public or private entity consulted by the state health council, shall set the standards for the delivery of health care services by the pilot project. The standards may not adversely affect the state's participation in federal medicare and medicaid programs. No more than three separate projects may be operational at any time and no project may be operational for longer than five years

. 23-01-05. Health officer - Qualifications, salary, term, duties -Advisory committee. The governor shall appoint the state health officerwho must have had substantive private or public administrative experience and demonstrated experience in the management of people. The state health officer is entitled to receive a salary commensurate with that person's training and experience. The governor shall set the salary of the state health officer within the limits of legislative appropriations to the department. The state health officer is entitled to receive all necessary traveling expenses incurred in the performance of official business. The state health officer may not engage in any other occupation or business that may conflict with the statutory duties of the state health officer and holds office for a term of four years beginning January 1, 1993. The state health officer is the administrative officer ofthe state department of health. Ifthe governor does not appoint as state health officer a physician licensed in this state, the governor shall appoint at least three licensed physicians recommended by the state medical association to serve as an advisory committee to the state health officer. Each member of the advisory committee is entitled to receive reimbursement of expenses in performing official duties in amounts provided by law for other state officers. The term ofthe advisory committee coincides with the term of the state health officer. A committee member serves at the pleasure of the governor. The duties ofthe state health officer are as follows: 1

. Enforce all rules and regulations as promulgated by the health council. 2. Hold public health unit boards of health responsible for enforcement of state rules, serve in an advisory capacity to public health unit boards of health, and provide for coordination of health activities. 3. Establish and enforce minimum standards of performance of the work of the local department of health. 4. Study health problems and plan for their solution as may be necessary. 5

. Collect, tabulate, and publish vital statistics for each important political or health administrative unit ofthe state and for the state as a whole. 6

. Promote the development of local health services and recommend the allocation of health funds to local jurisdictions subject to the approval ofthe health council. 7

. Collect and distribute health education material. 

### 8

.

9

.



### 10

. Maintain a central public health laboratory and where necessary, branch laboratories for the standard function of diagnostic, sanitary and chemical

.examinations, and production and procurement of therapeutic and biological preparations for the prevention ofdisease and their distribution for public health purposes. Establish a service for medical hospitals and related institutions to include licensing of such institutions according to the standards promulgated by the health council and consultation service to communities planning the construction of new hospitals and related institutions

. Comply with the state merit system policies of personnel administration.
Page No.411. Establish a program to provide information to the surviving family of a child whose cause of death is suspected to have been the sudden infant death syndrome. 12

. Issue any orders relating to disease control measures deemed necessary to prevent the spread of communicable disease. Disease control measures may include special immunization activities and decontamination measures. The state health officer may apply to the district court in ajudicial district where a communicable disease is present for an injunction canceling public events or closing places of business. On application of the state health officer showing the necessity of such cancellation , the court may issue an ex parte preliminary injunction, pending a full hearing. 13. Make bacteriological examination of bodily secretions and excretions and of waters and foods

. 14

. Make preparations and examinations of pathological tissues submitted by the state health officer, by any county superintendent of public health, or by any physician who has been regularly licensed to practice in this state

. 15. Make all required analyses and preparations, and furnish the results thereof, as expeditiously and promptly as possible. 16

. Cause sanitary statistics to be collected and tabulated , and cause to be ascertained by research work such methods as will lead to the improvement of the sanitation of the various parts ofthe state. 17

. From time to time, cause to be issued bulletins and reports setting forth the results of the sanitary and pathological work done in the laboratories embodying all useful and important information resulting from the work carried on in the laboratories during the year, the substance of such bulletins and reports to be incorporated in the annual report ofthe state health officer. 18. Establish by rule a schedule of reasonable fees that may be charged for laboratory analysis

. No charge may be made for any analysis conducted in connection with any public health incident affecting an entire region, community, or neighborhood. 19. a

. Establish a review process for instances in which the department is requested to conduct an epidemiological assessment of a commercial building. The epidemiological assessment must include: (1) A statement ofwhether there are known environmental causes; (2) If there are known environmental causes identified, a recommendation of how they can be remediated or mitigated; and (3) If there are no known environmental causes identified, a statement that no known causes exist. b. Costs for remediation, mitigation, and consultant services are the responsibility of the building owner. Proof of remediation of any identified environmental concern related to the epidemiological assessment is the burden ofthe building owner

. 23-01-05.1. Organ or tissue transplant assistance administration - Standing appropriation. The state health officer shall select a private nonprofit patient-oriented organization incorporated in this state for the purpose of administering financial assistance to organ or tissue transplant patients who are residents of this state. The state health officer shall adopt rules governing administration ofthis section. The organization selected shall administer and provide grants from available funds to alleviate demonstrated financial needs of transplant patients for any costs associated with transplant operations, under guidelines based on current social service eligibility requirements

. There is hereby created as a special fund in the state treasury an organ transplant support fund, the principal and income of which is hereby appropriated to the organization selected under this section

.The organization administering the fund may solicit contributions from private or governmental sources and such contributions may be deposited in the fund.
23-01-05.2. Administration of epinephrine- Liability. 1. The state health officer shall adopt rules to authorize a layperson to administer epinephrine to an individual who has a severe allergic reaction.
Page No

. 52. An individual authorized to administer epinephrine by the state health officer may obtain premeasured doses of epinephrine and the necessary paraphernalia for epinephrine administration from any licensed physician or pharmacist. 3. An individual authorized to administer epinephrine by the state health officer, and the employer of such an individual, is not civilly or criminally liable for any act or omission ofthat individual when acting in good faith while rendering emergency treatment to an individual who has a severe adverse reaction, except when the conduct amounts to gross negligence.
23-01-05.3. Immunization data. 1. The state department of health may establish an immunization information system and may require the childhood immunizations specified in subsection 1 of section 23-07-17.1 and other information be reported to the department. The state department of health may only require the reporting of childhood immunizations and other data upon completion of the immunization information reporting system. A health care provider who administers a childhood immunization shall report the patient's identifying information, the immunization that is administered, and other required information to the department. The report must be submitted using electronic media, and must contain the data content and use the format and codes specified by the department. 2. If a health care provider fails to submit an immunization report required under this section within four weeks ofvaccination: a. That health care provider may not order or receive any vaccine from the North Dakota immunization program until that provider submits all reports required under this section

. b

. The state department of health shall make a report to that health care provider's occupational licensing entity outlining that provider's failure to comply with the reporting requirements under this section

. 3

. Notwithstanding any other provision of law, a health care provider, elementary or secondary school, early childhood facility, public or private postsecondary educational institution, city or county board of health, district health unit, and the state health officer may exchange immunization data in any manner with one another. Immunization data that may be exchanged under this section is limited to the date and type of immunization administered to a patient and may be exchanged regardless ofthe date ofthe immunization

. 23-01-05.4. Department to employ state forensic examiner- Qualifications- Duties. The state department of health may employ and establish the qualifications and compensation of the state forensic examiner. The state forensic examiner must be a physician who is board-certified or board-eligible in forensic pathology, who is licensed to practice in this state, and who is in good standing in the profession. The state forensic examiner shall: 1. Exercise all authority conferred upon the coroner under chapter 11-19.1 and any other law; 2. Consult with local coroners on the performance oftheir duties as coroners; 3

. Conduct investigations into the cause of death of and perform autopsies on any deceased human body whenever requested to do so by the acting local county coroner orthe local state's attorney; 4

. Provide training and educational materials to local county coroners, law enforcement, and any other person the state forensic examiner deems necessary; 5

. Maintain complete records of the cause, manner, and mode of death necessary for accurate health statistics and for public health purposes; and 6

. Perform other duties assigned by the state health officer.
23-01-05.5. Autopsy reports - Confidential - Exceptions. 1

. As used in this section:

Page No.6a

. "Autopsy report" means the report of the forensic examiner or the examiner's designee on the post-mortem examination of a deceased individual to determine the cause and manner of death, including any written analysis, diagram, photograph , or toxicological test results. b. "Report of death" means the official findings on the cause of death and manner of death issued by the state forensic examiner, the examiner's designee, county coroner, or pathologist performing an autopsy ordered by a county coroner or by the state forensic examiner and which is the face page of the autopsy report identifying the decedent and stating the cause of death and manner of death. 2. An autopsy report and any working papers and notes relating to an autopsy report are confidential and may be disclosed only as permitted by this section

. The report of death is a public record subject to disclosure under section 44-04-18. 3

. Subject to the limitations on the disclosure of an autopsy photograph or other visual image or video or audio recording of an autopsy required under section 44-04-18

.18, any working papers and notes relating to a final autopsy report may be disclosed pursuant to a court order and as otherwise expressly provided by law. 4

. The state forensic examiner or the examiner's designee shall disclose a copy of the autopsy report: a. To any county coroner, including a coroner in any state or Canadian province, with jurisdiction over the death, and the coroner may use or disclose these records for purposes of an investigation, inquest, or prosecution. b

. To any state's attorney or criminal justice agency, including a prosecutor or criminal justice agency ofthe United States, any state, or any Canadian province, with jurisdiction over an investigation of the death and the state's attorney or criminal justice agency may use or disclose these records for the purposes of an investigation or prosecution

. c

. To workforce safety and insurance ifthe death is related to the decedent's work, and to any other workers' compensation or other similar program, established by law, that provides benefits for work-related injuries or illness without regard to fault ifthere is no criminal investigation. d

. To the child fatality review panel ifthere is no active criminal investigation. e. In accordance with a court order

. 5. The state forensic examiner or the examiner's designee upon request shall disclose a copy ofthe autopsy report to: a

. The decedent's personal representative and to the decedent's spouse, child, or parent, upon proof ofthe relationship, ifthere is no active criminal investigation. b. A physician or hospital who treated the deceased immediately prior to death if there is no active criminal investigation. c. An insurance company upon proof that the decedent's life was covered by a policy issued by the company ifthere is no active criminal investigation. d. The food and drug administration, the national transportation safety board, the occupational health and safety administration, and any other federal or state agency with authority to obtain an autopsy report to investigate a death resulting from the decedent's type of injury or illness

. e

. A professional or research organization collecting data to initiate or advance death investigation standards, after the identifiers necessary to create a limited data set under title 45, Code of Federal Regulations, part 164, section 514, subsection e have been removed from the report

. 6

. The forensic examiner,the examiner's designee, any county coroner or county medical coroner, and any public employee who, in good faith , discloses autopsy findings, an autopsy report, or other information relating to an autopsy report or cause of death to a person who the public official or employee reasonably believes is entitled to that information under this section is immune from any liability, civil or criminal , for making that disclosure. For the purposes of any proceeding, the good faith of any public employee who makes a disclosure under this section is presumed

.

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. 723-01-06. Biennial report - Contents. The state health officer shall submit a biennial report to the governor and the secretary of state in accordance with section 54-06-04. In addition to any requirements established pursuant to section 54-06-04,the report must cover the following subjects: 1. The activities of the various divisions, the work accomplished during the two years covered by the report, and an analysis ofthe program of each ofthe divisions

. 2

. The expenditures ofthe state department of health

. 3. The expenditures in each county board of health orthe district board of health

. 4

. Any reports relating to the hospital program as required by the health council.
23-01-07. Structure of department. Repealed by S

.L. 1993, ch. 218, 

### § 10

. 23-01-08. Directors of divisions- Deputy- Appointment, salary, duties. The state health officer shall appoint directors ofthe various divisions ofthe department and shall determine the salary,within the limits of legislative appropriations to the department and in conformity with the state merit system, to be received by such persons

. The duties of such director must be those prescribed by the state health officer. The state health officer may appoint a deputy state health officer

. A deputy state health officer who does not hold a health-related degree may not individually issue an order regarding public health unless the order is cosigned by a physician who is employed by the department or cosigned by the state epidemiologist. The deputy state health officer serves at the pleasure ofthe state health officer.
23-01-09. Duties of director of consolidated laboratories branch. Repealed by S.L

. 1993, ch. 218, 

### § 10

. 23-01-09.1. Duties of state toxicologist. Repealed by S.L

. 2003, ch

.469, 

### § 13

. 23-01-10. Office space. The state shall provide suitable office space in Bismarck for housing and maintaining the state department of health

. Special fireproof vaults must be provided for the storage of birth and death certificates.
23-01-11. Acceptance of funds and right to qualify for benefits under federal laws authorized. The state department of health may: 1

. Accept funds from cities, counties, the federal government, private organizations, and individuals for infancy and maternal hygiene, for other public health work and for the purpose of conducting a survey of existing medical hospitals and related institutions, planning of needed hospital construction and for construction and maintenance of such medical hospitals and related institutions. When approved by the governor ofthis state, the state department of health may match the same from any unexpended portion of its appropriation in accordance with specifications agreed to or required by congressional act. All infancy and maternal hygiene and public health work must be done underthe supervision ofthe state department of health

. 2

. Adopt rules necessary to enable the state to be in compliance with any federal laws in order to qualify for any federal funds related to medical facilities or agencies licensed by the state department of health.
23-01-12. Hospital records to be kept at direction of state health officer. When any person is admitted into a lying-in hospital or other institution, public or private, to which persons resort for the treatment of disease or for confinement, or to which persons are committed by process of law, the superintendent, manager, or other person in charge of such institution shall make a record of all the personal and statistical particulars relative to such
Page No

. 8person

.The record must be in such form as is directed by the state health officer. In the case of any person admitted or committed for medical treatment of disease, the physician in charge shall specify for entry in the records the nature of the disease and where, in the physician's opinion , it was contracted

.The personal particulars and information required for compliance with the provisions ofthis section must be obtained from the individual personally if practicable, and when the information cannot be obtained from the individual, from the individual's relatives or friends or from any other person acquainted with the facts

. 23-01-13. Blood plasma- Obtaining, storing, and distributing. Repealed by S.L. 1991 , ch

. 263, 

### § 1

. 23-01-14. State department of health authorized to transfer future accumulated fees

. As a continuing policy, the state department of health may automatically from time to time transfer unclaimed fees on deposit with the Bank of North Dakota or other authorized depository to the state general fund when the unclaimed status has existed for a period of at least three years

. 23-01-15. Research studies confidential - Penalty. 1. All information, records of interviews, written reports, statements, notes, memoranda, or other data procured by the state department of health, in connection with studies conducted by the state department of health, or carried on by the department jointly with other persons, agencies, or organizations, or procured by such other persons, agencies, or organizations, for the purpose of reducing the morbidity or mortality from any cause or condition of health is confidential and must be used solely for the purposes of medical or scientific research

. 2. Such information, records, reports, statements, notes, memoranda, or other data is not admissible as evidence in any action of any kind in any court or before any other tribunal , board, agency, or person

. Such information, records, reports, statements, notes, memoranda, or other data may not be exhibited nor their contents disclosed in any way, in whole or in part, by any officer or representative ofthe state department of health, nor by any other person, except as may be necessary for the purpose of furthering the research project to which they relate

. No person participating in such research project may disclose, in any manner, the information so obtained except in strict conformity with such research project. No officer or employee of said department may interview any patient named in any such report, nor a relative of any such patient, unless the consent ofthe attending physician and surgeon is first obtained

. 3. The furnishing of such information to the state
-department of health or its authorized representative, or to any other cooperating agency in such research project, does not subject any person , hospital, sanitarium, rest home, nursing home, or other person or agency furnishing such information,to any action for damages or other relief.
23-01-16. Dairy products- Joint standards. The state department of health and the dairy department of the department of agriculture shall jointly adopt a set of uniform standards in relation to all matters falling within their joint jurisdiction regarding dairy products. The state department of health, district health units, municipal health departments or units, and the dairy department shall each be permitted to accept any inspection report of the other department or unit regarding the inspection of dairy products and the producers and processors of such products, when such report is based substantially upon standards conforming with the milk ordinance and code recommended by the United States public health service

. 23-01-17. Noise harmful to health and safety- Power to regulate- Hearings- AppealPenalty -Injunction. Repealed by S

.L

. 1991 , ch

. 264, 

### § 1.

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. 923-01-18. State department of health responsible for control of rabies. Repealed by S

.L

. 1999, ch. 243, 

### § 2

. 23-01-19. Extermination of rabies. Repealed by S.L. 1999, ch

. 243, 

### § 2

. 23-01-20. Traumatic head injury defined. Repealed by S.L. 1999, ch. 231, 

### § 1.
23-01-21. Central registry oftraumatic head injury - Establishment - Reports. Repealed by S.L. 1999, ch. 231 , 

### § 1

. 23-01-22. Department to employ waste management facility inspectors. The state department of health shall employ and establish the qualifications, duties, and compensation of at least one full-time inspector for each commercial, nonpublicly owned waste management disposal or incineration facility that accepts more than twenty-five thousand tons [22679.5 kilograms] per year of hazardous waste, industrial waste, nuclear waste, or ash resulting from the incineration of municipal solid waste. This section does not apply to any energy conversion facility or coal mining operation that disposes of its solid waste onsite. The department may require inspectors for those facilities that accept less than twenty-five thousand tons [22679.5 kilograms] per year

. The facility inspector shall conduct regular inspections ofthe operating procedure and conditions ofthe facility and report the findings to the department on a regular basis. If an inspector discovers a condition at a facility that is likely to cause imminent harm to the health and safety of the public or environment, the inspector shall notify the department. The department shall proceed as provided by sections 23-29-10 and 23-29-11. The department shall assess the owner or operator of a waste management facility that accepts hazardous waste, industrial waste, nuclear waste, or ash resulting from the incineration of municipal solid waste an annual fee to pay the salaries, wages, and operating expenses associated with employing an inspector for the facility. The owner or operator ofthe facility shall submit the fee to the department by July first of each year. Any fees collected must be deposited in the department's operating fund in the state treasury and any expenditures from the fund are subject to appropriation by the legislative assembly. Ifa facility begins operation after July first of any year, the owner or operator ofthe facility shall pay to the department a prorated fee for the fiscal year before the facility may begin accepting waste. Moneys in the waste management facility account may be spent by the department within the limits of legislative appropriation.
23-01-23. Permit or investigatory hearings - Exemption from chapters 28-32 and 54-57. A permit hearing conducted for purposes of receiving public comment or an investigatory hearing conducted under chapters 23-20

.1 , 23-20

.3, 23-25, 23-29, 61-28, and 61-28.1 is not an adjudicative proceeding under chapter 28-32 and is not subject to the requirements of chapter 54-57

. 23-01-24. Health care cost and quality review program - Penalty. The department of health shall conduct a continuous program to review and improve the quality of health care in the state. The department may contract with a qualified person or organization to develop

.and implement the program. The department shall use the program to compile relevant information about the quality of health care in this state which will allow the department to evaluate the cost, quality, and outcomes of health care. The department shall establish and consult a provider advisory committee composed of health care providers regarding the data that is a cost-effective process for collecting and evaluating the information

. The state health officer may assess against a provider a penalty of one hundred dollars per day for each day the provider willfully refuses to provide the department with information requested for use with the program, but the penalty may not exceed one thousand dollars for each request. A provider against whom a fee is assessed may appeal that assessment to the state

Page No. 10 

# . Ihealth council. If the provider fails to pay the penalty, the health council may, in the county where the provider's principal place of business is located, initiate a civil action against the provider to collect the penalty. As used in this section , "provider" means a person who is licensed, certified , or otherwise authorized by the law of this state to administer health care in the ordinary course of business or professional practice

. The department shall ensure that patient privacy is protected throughout the compilation and use of the information. The department shall evaluate data management capabilities in the state and shall organize its capabilities to provide information about the cost of care on an individual provider basis as well as a collective basis

. 23-01-25. Commercial feed, insecticide, fungicide, rodenticide, fertilizer, and soil conditioner laws - Laboratory function. Notwithstanding any other provision of law, any laboratory test or analysis required under chapter 19-13

.1 , 19-18, or 19-20

.1 must be performed by the state department of health for the agriculture commissioner at no charge

. 23-01-26. State department of health -Indirect cost recoveries. Notwithstanding section 54-44.1-15, the state department of health may deposit indirect cost recoveries in its operating account.
23:..01-27. Donated dental services program. The state department of health shall contract with the North Dakota dental association , or other appropriate and qualified organizations, to develop and administer a donated dental services program through which volunteer dentists provide comprehensive dental care for needy, disabled, aged, or medically compromised individuals. The volunteers will treat individuals through the program and, with the exception of certain dental laboratory costs, will fully donate their services and supplies. The contract must specify the responsibilities of the administering organization and include: 1. Establishment of a network ofvolunteer dentists, including dental specialists,volunteer dental laboratories, and other appropriate volunteer professionals to donate dental services to eligible individuals; 2. Establishment of a system to refer eligible individuals to appropriate volunteers; 3. Development and implementation of a public awareness campaign to educate eligible individuals about the availability ofthe program; 4

. Provision of appropriate administrative and technical support to the program; and 5. Submission ofan annual report to the state department of health that: a

. Accounts for all program funds; b. Reports the number of individuals served by the program and the number of dentists and dental laboratories participating as providers in the program; c. Includes any other information required by the state department of health; and d

. Performs, as required by the state department of health, any other duty relating to the program

. 23-01-28. Combined purchasing with local public health units - Continuing appropriation. The state department of health may make combined or joint purchases with or on behalf of local public health units for items or services

. Payments received by the state department of health from local public health units pursua11t to a combined orjoint purchase must be deposited in the operating fund and are appropriated as a standing and continuing appropriation to the state department of health for the purpose ofthis section

. 23-01-29. Bone marrow donor education. The state department of health shall provide information and educational materials to the public regarding bone marrow donation through the national marrow donor program. The department shall seek assistance from the national marrow donor program to establish a

Page No

. 11system to distribute materials, ensure that the materials are updated periodically, and address the education and recruitment of minority populations.
23-01-30. Zoning regulation of concentrated animal feeding operations - Central repository. The state department of health shall establish , operate, and maintain an electronically accessible central repository for all county and township zoning regulations that pertain to concentrated animal feeding operations. The county auditor of a county and the township clerk ofa township having a zoning regulation that pertains to concentrated animal feeding operations shall file the regulation with the state department of health for inclusion in the central repository.
23-01-31. North Dakota health information technology steering committee. Repealed by S.L. 2009, ch. 519, 

### § 6

. 23-01-32. Viral hepatitis program -Vaccination - Study. 1. The state department of health shall establish and administer a viral hepatitis program with the goal of distributing to residents of the state who are at an increased risk for exposure to viral hepatitis information that addresses the higher incidence of hepatitis C exposure and infection among these populations, addresses the dangers presented by the disease, and provides contacts for additional information and referrals. 2. The department shall establish a list of classes of individuals by category that are at increased risk for viral hepatitis exposure

. The list must be consistent with recommendations developed by the federal centers for disease control and prevention. The department shall determine the type of information the department will distribute under the program and the form and manner of distribution

. 3. The department shall establish a vaccination and testing program, to be coordinated by the department through local public health units.
23-01-33. Human papilloma virus -Information. The state department of health shall educate the public about the human papilloma virus and the availability of a human papilloma virus vaccine; promote immunization against the human papilloma virus; and distribute informational material regarding the human papilloma virus and the human papilloma virus vaccine

. The department shall distribute the informational material through relevant department programs and divisions, including breast and cervical cancer control programs; immunization programs; family planning programs; and human immunodeficiency virus and sexually transmitted disease programs

. Informational materials distributed must include the recommendations of the advisory committee on immunization practices of the federal centers for disease control and prevention; contain information relevant to the target populations of each of the participating programs and divisions distributing the informational material; and contain information regarding the availability of the vaccine through the vaccines for children program operated by the department under 42 U.S

.C. 1396s, and the medical assistance program

. 23-01-34. Children with special health care needs - Program administration. The state department of health shall administer programs for children with special health care needs as may be necessary to conform to title 5, part 2, of the federal Social Security Act, as amended through July 1 , 2007 [Pub

. L

. 74-271 ; 49 Stat. 620; 42 U.S.C. 701 et seq.), including providing services and assistance to children with special health care needs and their families and developing and operating clinics for the identification, screening, referral, and treatment ofchildren with special health care needs

.

Page No. 1223-01-35. Tattooing, body piercing, branding, subdermal implants, or scarification

- Permit- Fee -Adoption of rules - Exemptions - Injury reports. 1

. A person may not operate a facility providing tattooing, body piercing, branding, subdermal implant, or scarification services without a permit issued by the department under this section. The holder of a permit shall display the permit in a conspicuous place at the facility for which the permit is issued. A permit issued under this section expires annually

. An applicant for a permit shall submit an application for a permit to the department, on a form provided by the department, with a permit fee established by the department. The application must include the name and c9mplete mailing address and street address of the facility and any other information reasonably required by the department for the administration ofthis section

. 2

. The health council shall adopt rules to regulate any person that receives compensation for engaging in the practice of tattooing , body piercing, branding, subdermal implants, or scarification

. The rules must establish health and safety requirements and limitations with respect to the age of an individual who may receive a tattoo, body piercing, or scarification and may prohibit any practice that the health council deems unsafe or a threat to public health. 3. A facility is exempt from subsection 1 ifthe facility provides body piercing that is limited to the piercing ofthe noncartilaginous perimeter or lobe ofthe ear and the facility do
· es not provide tattooing , branding, scarification, or subdermal implants. A person is exempt from regulation under subsection 2 ifthe person's practice under this section is limited to piercing of the noncartilaginous perimeter or lobe of the ear. A licensed health care professional acting within that professional's scope of practice and the associated medical facility are exempt from this section. 4

. Ifa customer of a facility regulated under this section reports to the facility an injury the customer or operator of the facility believes to have resulted from the tattooing, body piercing, branding, subdermal implanting, or scarification provided at the facility, the operator of the facility shall provide the customer with written information on how to report the alleged injury to the state department of health. If a licensed health care professional treats a patient for an injury the professional determines, in the exercise of professional judgment, occurred as a result of a service regulated under this section , the professional shall report the circumstances to the
·state department of health. A licensed health care professional is immune from liability for making or not making a report under this subsection. 5. The fees established by the department must be based on the cost of conducting routine and complaint inspections and enforcement actions and preparing and sending license renewals. Fees collected under this section must be deposited in the department's operating fund in the state treasury and any expenditure from the fund is subject to appropriation by the legislative assembly. The department shall waive all or a portion ofthe fee for any facility that is subject to local jurisdiction.
23-01-36. Appeal from permit proceedings. An appeal from the issuance, denial, modification, or revocation of a permit issued under chapter 23-20.3, 23-25, 23-29, or 61-28 may be made by the person who filed the permit application , or by any person who is aggrieved by the permit application decision, provided that person participated in or provided comments during the hearing process for the permit application , modification, or revocation

.An appeal must be taken within thirty days after the final permit application determination is mailed by first-class mail to the permit applicant and to any interested person who has requested a copy of the final permit determination during the permit hearing process. Except as provided in this section , an appeal of the final permit determination is governed by sections 28-32-40, 28-32-42, 28-32-43, 28-32-44, 28-32-46, and 28-32-49. The department may substitute final permit conditions and written responses to public comments for findings of fact and conclusions of law

. Except for a violation of chapter 23-20.3, 23-25, 23-29, or 61-28 which occurs after the permit is issued, or any permit condition, rule, order, limitation, or other applicable requirement implementing those chapters which occurs after the permit is issued, any challenge to the department's issuance, modification, or revocation of the permit or
Page No

. 13permit conditions must be made in the permit hearing process and may not be raised in any collateral or subsequent legal proceeding, and the applicant and any aggrieved person may raise on appeal only issues that were raised to the department in the permit hearing process

. 23-01-37. Survey program- Health facilities construction or renovation projects. 1. The state department of health shall conduct a life safety survey process for all health facilities licensed by the division of health facilities of the state department of health during and at the conclusion of a construction, renovation, or construction and renovation project. 2

. The department may charge a reasonable fee for the review of plans for construction, renovation, or construction and renovation projects performed under this section based on the size of the project. Revenues derived from the fees collected under this subsection must be deposited in the department's operating fund in the state treasury. 3. The department shall design and operate the program in a manner that will provide that the surveyor that performs a life safety survey under this section does not violate the federal requirements associated with medicare-certified life safety surveys.
23-01-38. Electronic drug prior authorization and transmission - Limitations. 1

. Effective August 1 , 2013, a drug prior authorization request must be accessible to a health care provider with the provider's electronic prescribing software system and must be accepted electronically, through a secure electronic transmission, by the payer, by the insurance company, or by the pharmacy benefit manager responsible for implementing or adjudicating or for implementing and adjudicating the authorization or denial ofthe prior authorization request. For purposes ofthis section , a facsimile is not an electronic transmission. 2

. Effective August 1 , 2013, electronic transmission devices used to communicate a prescription to a pharmacist may not use any means or permit any other person to use any means, including advertising, commercial messaging, and popup advertisements, to influence or attempt to influence through economic incentives the prescribing decision of a prescribing practitioner at the point of care. Such means may not be triggered by or be in specific response to the input, selection , or act of a prescribing practitioner or the prescribing practitioner's staff in prescribing a certain pharmaceutical or directing a patient to a certain pharmacy. Any electronic communication sent to the prescriber, including advertising, commercial messaging, or popup advertisements must be consistent with the product label, supported by scientific evidence, and meet the federal food and drug administration requirements for advertising pharmaceutical products

. 3. Electronic prescribing software may show information regarding a payer's formulary if the software is not designed to preclude or make more difficult the act of a prescribing practitioner or patient selecting any particular pharmacy or pharmaceutical.
23-01-39. Immunization program - Provider choice - Purchasing. 1

. As used in this section: a. "Department" means the state department of health. b. "North Dakota immunization advisory committee" means the group of private health care providers, local public health units, department staff, and other applicable individuals which makes immunization and vaccine selection recommendations to the North Dakota immunization program. c. "North Dakota immunization program" means the program administered by the department to provide vaccinations to North Dakota children consistent with state and federal law. d. "Program-eligible child" means any child , who is under nineteen years of age, whose custodial parent or legal guardian resides in this state

. e. "Vaccine" means any vaccine recommended by the federal advisory committee on immunization practices ofthe centers for disease control and prevention

.
Page No. 14f. "Vaccines for children program" is a federally funded program that provides vaccines at no cost to eligible children pursuant to section 1928 of the Social SecurityAct [42 U.S.C. 1396s]. 2. As part ofthe North Dakota immunization program: a

. The department shall implement a provider choice system as part of the state's implementation ofthe vaccines for children program. This provider choice system must provide a health care provider participating in the state's vaccines for children program or in any other immunization program for children, adolescents, or adults which is administered through the state using federal or state funds, may select any licensed vaccine, including combination vaccines, and any dosage forms that have in effect a recommendation from the federal advisory committee on immunization practices

. This subsection does not apply in the event of a disaster, public health emergency, terrorist attack, hostile military or paramilitary action, or extraordinary law enforcement emergency

. b

. The department shall establish a program through which the department purchases vaccines through the federal vaccine purchasing contract. (1) The department shall supply public health units with the purchased vaccines. A public health unit that receives vaccines under this subdivision shall administerthe vaccines to program-eligible children

. (2) A public health unit that receives vaccines under this purchasing program may not bill an insurer for the cost of the vaccine but may charge an administration fee

. (3) The department shall fund this purchasing program through participation in the vaccines for children program , the federal section 317 vaccine program, and state funds appropriated for this purpose. If it appears there will be inadequate funds to fund this purchasing program, the department shall petition the emergency commission for a transfer from the state contingency fund

. The emergency commission may grant the transfer request, or so much thereof as may be necessary,to fund this purchasing program.

Page No

. 15

### CHAPTER 23-25 AIR POLLUTION CONTROL
23-25-01. Definitions. For purposes ofthis chapter,the following words and phrases are defined: 1

. "Air contaminant" means any solid, liquid, gas, or odorous substance, or any combination thereof

. 2

. "Air pollution" means the presence in the outdoor atmosphere of one or more air contaminants in such quantities and duration as is or may be injurious to human health, welfare, or property, animal or plant life, or which unreasonably interferes with the enjoyment of life or property

. 3

. "Air quality standard" means an established concentration , exposure time, or frequency of occurrence of a contaminant or multiple contaminants in the ambient air which may not be exceeded

. 4. "Ambient air" means the surrounding outside air

. 5. "Asbestos abatement" means any demolition, renovation, salvage, repair, or construction activity which involves the repair, enclosure, encapsulation , removal, handling, or disposal of more than three square feet [0

.28 square meter] or three linear feet [0

.91 meter] of friable asbestos material. Asbestos abatement also means any inspections, preparation of management plans, and abatement project design for both friable and nonfriable asbestos material. 6. "Asbestos contractor" means any partnership, firm, association , corporation , limited liability company, or sole proprietorship that contracts to perform asbestos abatement for another

. 7. "Asbestos worker" means any person engaged in the abatement of more than three square feet [0.28 square meter] or three linear feet [0.91 meter] of friable asbestos material, except for individuals engaged in abatement at their private residence

. 8. "Emission" means a release ofair contaminants into the ambient air. 9. "Emission standard" means a limitation on the release of any air contaminant into the ambient air

. 10. "Friable asbestos material" means any material containing more than one percent asbestos that hand pressure or mechanical forces expected to act on the material can crumble, pulverize, or reduce to powderwhen dry

. 11. "Indirect air contaminant source" means any facility, building, structure, or installation, or any combination thereof, which can reasonably be expected to cause or induce emissions ofair contaminants

. 12. "Lead-based paint" means paint or other surface coatings that contain lead equal to or in excess of 1.0 milligram per square centimeter or more than 0.5 percent by weight. 13

. "Person" means any individual, corporation, limited liability company, partnership, firm , association, trust, estate, public or private institution, group, agency, political subdivision ofthis state, any other state or political subdivision or agency thereof, and any legal successor, representative agency, or agency ofthe foregoing

. 23-25-01.1. Declaration of public policy and legislative intent. It is hereby declared to be the public policy of this state and the legislative intent of this chapter to achieve and maintain the best air quality possible, consistent with the best available control technology, to protect human health, welfare, and property, to prevent injury to plant and animal life, to promote the economic and social development of this state, to foster the comfort and convenience of the people, and to facilitate the enjoyment of the natural attractions of this state

. 23-25-02. State air pollution control agency- Advisory council. 1

. The state department of health, hereinafter referred to as the department, is hereby designated as the agency to administer and coordinate a statewide program of air pollution control consistent with the provisions ofthis chapter.

Page No

. 12

. There is hereby established an air pollution control advisory council, hereinafter referred to as the advisory council, of nine members to include the state health officer, the state geologist, the director of the department of transportation, and six other members to be appointed by the governor, one of whom must be a representative of county or municipal government, one a representative ofthe solid fuels industry, one a representative of the fluid and gas fuels industry, one a representative of the environmental sciences, and two appointed at large. 3

. The term of office for the appointed members of the advisory council must be six years, but of those four first appointed, two shall serve for two years and two for four years, and the lengths oftheir terms must be designated by the governor at the time of appointment. 4. The advisory council shall select its own chairman from among its members. The state health officer, state geologist, and director of the department of transportation each may designate a principal deputy or assistant to act in the officer's place and stead

. The chief sanitary engineer of the state department of health, or that officer's designated assistant, must be the principal administrative officer ofthe council. 5. The advisory council shall hold at least one regular meeting each year, and such additional meetings as the chairman deems necessary, at a time and place to be fixed by the chairman

. Special meetings must be called by the chairman on the written request ofany three members. Five members constitute a quorum

. 6. The advisory council shall hold a public hearing to consider and recommend the adoption, amendment, or repeal of rules, regulations, and standards as provided in this chapter. Notice of such public hearing or hearings must be given by publication of a notice of such hearing or hearings in each of the official county newspapers within the state of North Dakota by at least two publications, one week apart, the last publication being at least thirty days prior to the first hearing. The hearing or hearings must be held in the state capitol in Bismarck and interested parties may present witnesses and other evidence pertinent and relevant to proposed rules, regulations, and standards

. The advisory council shall consider any other matters related to the purposes of this chapter and may make recommendations on its own initiative to the department concerning the administration ofthis chapter

. 23-25-03. Power and duties ofthe department. The department shall: 1

. Encourage the voluntary cooperation of persons or affected groups to achieve the purposes ofthis chapter

. 2

. Determine by scientifically oriented field studies and sampling the degree of air pollution in the state and the several parts thereof

. 3

. Encourage and conduct studies, investigations, and research relating to air pollution and its causes, effects, prevention, abatement, and control. 4. Advise, consult, and cooperate with other public agencies and with affected groups and industries. 5

. Issue such orders as may be necessary to effectuate the purposes ofthis chapter and enforce the same by all appropriate administrative and judicial procedures. 6. Provide rules and regulations relating to the construction of any new direct or indirect air contaminant source or modification of any existing direct or indirect air contaminant source which the department determines will prevent the attainment or maintenance of any ambient air quality standard, and require that prior to commencing construction or modification of any such source, the owner or operator thereof shall submit such information as may be necessary to permit the department to make such determination. 7

. Establish ambient air quality standards for the state which may vary according to appropriate areas. 8

. Formulate and promulgate emission control requirements for the prevention, abatement, and control of air pollution in this state including achievement of ambient air quality standards.
Page No

. 29. Hold hearings relating to any aspect or matter in the administration ofthis chapter, and in connection therewith, compel the attendance of witnesses and the production of evidence. 10

. Require the owner or operator of a regulated air contaminant source to establish and maintain such records; make such reports; install, use, and maintain such monitoring equipment or methods; sample such emissions in accordance with such methods, at such locations, intervals, and procedures; and provide such other information as may be required. 11. Provide by rules and regulations a procedure for the handling of applications for the granting of a variance to any person who owns or is in control of any plant, establishment, process, or equipment. The granting of a variance is not a right of the applicant but must be in the discretion ofthe department. 12

. Provide by rules any procedures necessary and appropriate to develop, implement, and enforce any air pollution prevention and control program established by the Federal Clean Air Act, as amended, and the authorities and responsibilities of which are delegatable to the state by the United States environmental protection agency. Such rules may include any and all enforceable ambient standards, emission limitations, and other control measures, means, techniques, or economic incentives such as fees, marketable permits, and auctions ofemissions rights as provided by the Act. The department shall develop and implement such federal programs if the department determines there is a benefit to the state. 13. Provide by rules a program for implementing lead-based paint remediation training, certification, and performance requirements in accordance with title 40, Code of Federal Regulations, part 745, sections 220, 223, 225, 226, 227, and 233. After consultation with the advisory council, the department is empowered to adopt, amend, and repeal rules and regulations implementing and consistent with this chapter.
23-25-03.1. Licensing of asbestos and lead-based paint contractors and certification of asbestos and lead-based paint workers. The department is charged with the responsibility of administering and enforcing a licensing program for asbestos contractors and lead-based paint contractors and a certification program for asbestos workers and lead-based paint workers and is given and charged with the following powers and duties: 1

. To require training of, and to examine, asbestos workers and lead-based paint workers

. 2

. To establish standards and procedures for the licensing of contractors, and the certification of asbestos workers engaging in the abatement of friable asbestos materials or nonfriable asbestos materials that become friable during abatement, and to establish performance standards for asbestos abatement. The performance standards will be as stringent as those standards adopted by the United States environmental protection agency pursuant to section 112 of the Federal Clean AirAct, as amended. 3

. To establish standards and procedures for the licensing of contractors and the certification of lead-based paint workers engaging in the abatement of lead-based paint and to establish performance standards for lead-based paint abatement in accordance with title 40, Code of Federal Regulations, part 745, sections 220, 223, 225, 226, 227, and 233. 4. To issue certificates to all applicants who satisfy the requirements for certification under this section and any rules under this section , to renew certificates, and to suspend or revoke certificates for cause after notice and opportunity for hearing. 5. To establish an annual fee and renewal fees for licensing asbestos contractors and lead-based paint contractors and certifying asbestos and lead-based paint workers and to establish examination fees for asbestos and lead-based paint workers under section 23-25-04

.2. The annual , renewal , and examination fees for lead-based contractors and workers may not exceed those charged to asbestos contractors and workers

. Page No

. 36. To establish indoor environmental nonoccupational air quality standards for asbestos

. 7

. To adopt and enforce rules as necessary for the implementation ofthis section. For nonpublic employees performing asbestos abatement in facilities or on facility components owned or leased by their employer, only the provisions of rules adopted in accordance with the federal Asbestos Hazard Emergency Response Act of 1986 [Pub. L. 99-519; 100 Stat. 2970; 15 U.S.C

. 2641 et seq

.], as amended, or the federal Clean AirAct [Pub

. L

. 95-95; 91 Stat. 685; 42 U

.S

.C. 7401 et seq

.], as amended, apply to this section. This does not include ownership that was acquired solely to effect a demolition or renovation

. 23-25-03.2. Sulfur dioxide ambient air quality standards more strict than federal standards prohibited. The department may not adopt ambient air quality rules or standards for sulfur dioxide that affect coal conversion facilities or petroleum refineries that are more strict than federal rules or standards under the Clean Air Act [42 U

.S

.C

. 7401 et seq

.], nor may the department adopt ambient air quality rules or standards for sulfur dioxide that affect these facilities and refineries when there are no corresponding federal rules or standards

.Any ambient air quality standards that have been adopted by the department for sulfur dioxide that are more strict than federal rules or standards under the Clean AirAct, or for which there are no corresponding federal rules or standards, are void as to coal conversion facilities and petroleum refineries. However, the department may adopt rules for dealing with exposures of less than one hour to sulfur dioxide emissions on a source-by-source basis pursuant to any regulatory program for dealing with short-term exposures to sulfur dioxide that may be established under the Clean Air Act. Any intervention levels or standards set forth in the rules, however, may not be more strict than federal levels or standards recommended or adopted under the federal program

. In adopting the rules, the department shall follow all other provisions of state law governing the department's adoption of ambient air quality rules when there are no mandatory corresponding federal rules or standards.
23-25-03.3. Requirements for adoption of air quality rules more strict than federal standards. 1

. Notwithstanding any other provisions of this title, the department may not adopt air quality rules or standards affecting coal conversion and associated facilities, petroleum refineries, or oil and gas production and processing facilities which are more strict than federal rules or standards under the Clean Air Act [42 U

.S.C

. 7401 et seq

.], nor may the department adopt air quality rules or standards affecting such facilities when there are no corresponding federal rules or standards, unless the more strict or additional rules or standards are based on a risk assessment that demonstrates a substantial probability of significant impacts to public health or property, a cost-benefit analysis that affirmatively demonstrates that the benefits of the more stringent or additional state rules and standards will exceed the anticipated costs, and the independent peer reviews required by this section. 2. The department shall hold a hearing on any rules or standards proposed for adoption under this section on not less than ninety days' notice

. The notice of hearing must specify all studies, opinions, and data that have been relied upon by the department and must state that the studies, risk assessment, and cost-benefit analysis that support the proposed rules or standards are available at the department for inspection and copying. If at any time the department intends to rely upon any studies, opinions, risk assessments, cost-benefit analyses, or other information that were not available from the department when it gave its notice of hearing, the department shall give a new notice of hearing not less than ninety days prior to the hearing that clearly identifies the additional or amended studies, analyses, opinions, data, or information upon which the department intends to rely and conduct an additional hearing ifthe first hearing has already been held

. 3. In this section: a. "Cost-benefit analysis" means both the analysis and the written document that contains: Page No

. 4(1) A description and comparison ofthe benefits and costs ofthe rule and ofthe reasonable alternatives to the rule. The analysis

.must include a quantification or numerical estimate of the quantifiable benefits and costs

. The quantification or numerical estimate must use comparable assumptions including time periods, specify the ranges of predictions, and explain the margins of error involved in the quantification methods and estimates being used. The costs that must be considered include the social, environmental, and economic costs that are expected to result directly or indirectly from implementation or compliance with the proposed rule. (2) A reasonable determination whether as a whole the benefits of the rule justify the costs of the rule and that the rule will achieve the rulemaking objectives in a more cost-effective manner than other reasonable alternatives, including the alternative of no government action

. In evaluating and comparing the costs and benefits, the department shall not rely on cost, benefit, or risk assessment information that is not accompanied by data, analysis, or supporting materials that would enable the department and other persons interested in the rulemaking to assess the accuracy, reliability, and uncertainty factors applicable to the information. b. "Risk assessment" means both the process used by the department to identify and quantify the degree of toxicity, exposure, or other risk posed for the exposed individuals, populations, or resources and the written document containing an explanation of how the assessment process has been applied to an individual substance, activity, or condition. The risk assessment must include a discussion that characterizes the risks being assessed. The risk characterization must include the following elements: (1) A description of the exposure scenarios used, the natural resources or subpopulations being exposed, and the likelihood of these exposure scenarios expressed in terms of probability. (2) A hazard identification that demonstrates whether exposure to the substance, activity, or condition identified is causally linked to an adverse effect. (3) The major sources of uncertainties in the hazard identification, dose-response, and exposure assessment portions ofthe risk assessment. (4) When a risk assessment involves a choice of any significant assumption , inference, or model, the department in preparing the risk assessment shall: (a) Rely only upon environmental protection agency-approved air dispersion models. (b) Identify the assumptions, inferences, and models that materially affect the outcome. (c) Explain the basis for any choices

. (d) Identify any policy decisions or assumptions. (e) Indicate the extent to which any model has been validated by, or conflicts with, empirical data

. (f) Describe the impact of alternative choices of assumptions, inferences, or mathematical models. (5) The range and distribution of exposures and risks derived from the risk assessment. c. The risk assessment and cost-benefit analysis performed by the department must be independently peer reviewed by qualified experts selected by the air pollution control advisory council. 4

. This section applies to any petition submitted to the department pursuant to section 23-01-04.1 that identifies air quality rules or standards affecting coal conversion facilities or petroleum refineries that are more strict than federal rules or standards under the Clean Air Act [42 U.S.C. 7401 et seq.] or for which there are no corresponding federal rules or standards, regardless of whether the department has previously adopted the more strict or additional rules or standards pursuant to section
Page No.523-01-04.1. This section also applies to any petitions filed under section 23-01-04

.1 affecting coal conversion facilities or petroleum refineries that are pending on the effective date ofthis section for which new rules or standards have not been adopted, and the department shall have a reasonable amount of additional time to comply with the more stringent requirements of this section

. To the extent section 23-01-04.1 conflicts with this section, the provisions of this section govern

. This section does not apply, however, to existing rules that set air quality standards for odor, hydrogen sulfide,visible and fugitive emissions, or emission standards for particulate matter and sulfur dioxide, but does apply to any new rules governing such matters.
23-25-04. Classification and reporting of air pollution sources. 1. After consultation with the advisory council the department, by rule or regulation , may classify air contaminant sources according to levels and types of emissions and other criteria which relate to air pollution and may require reporting for any of such class or classes

. Classifications made pursuant to this subsection may apply to the state as a whole or to any designated area ofthe state and must be made with special reference to effects on health, economic, and social factors and physical effects on property

. 2. Any person operating or responsible for the operation of air contaminant sources of any class for which rules and regulations of the department require reporting shall make reports containing information as may be required by the department relevant to air pollution.
23-25-04.1. Permits or registration. 1. No person shall construct, install, modify, use, or operate an air contaminant source designated by regulation , capable of causing or contributing to air pollution , either directly or indirectly, without a permit from the department or in violation of any conditions imposed by such permit. 2

. The department shall provide for the issuance, suspension, revocation , and renewal of any permits which it may require pursuant to this section

. 3. The department may require that applications for such permits shall be accompanied by plans, specifications, and such other information as it deems necessary. 4. Possession of an approved permit or registration certificate does not relieve any person of the responsibility to comply with applicable emission limitations or with any other provision of law or regulations adopted pursuant thereto and does not relieve any person from the requirement that that person possess a valid contractor's license issued under chapter 43-07. 5

. The department by rule or regulation may provide for registration and registration renewal of certain air contaminant sources in lieu of the permit required pursuant to this section. 6

. The department may exempt by rule and regulation certain air contaminant sources from the permit or registration requirements set forth in this section when the department makes a finding that the exemption of such sources of air contaminants will not be contrary to section 23-25-01

.1.
23-25-04.2. Fees - Deposit in operating fund. The department by rule or regulation may prescribe and provide for the payment and collection of reasonable fees for the issuance of permits or registration certificates

. The permit or registration certificate fees must be based on the anticipated cost of filing and processing the application , of taking action on the requested permit or registration certificate, and conducting an inspection program to determine compliance or noncompliance with the permit or registration certificate

. Any moneys collected for permit or registration fees must be deposited in the department operating fund in the state treasury and must be spent subject to appropriation by the legislative assembly.

Page No.623-25-05. Right of onsite inspection. 1

. Any duly authorized officer, employee, or agent of the department may enter and inspect any property, premise, or place on or at which an air contaminant source is located or is being constructed, installed, or established at any reasonable time for the purpose of ascertaining the state of compliance with this chapter and rules and regulations enforced pursuant thereto. If requested, the owner or operator of the premises shall receive a report setting forth all facts found which relate to compliance status

. 2

. The department may conduct tests and take samples of air contaminants, fuel, process material, and other materials which affect or may affect emission of air contaminants from any source, and shall have the power to have access to and copy any records required by department rules or regulations to be maintained, and to inspect monitoring equipment located on the premises. Upon request of the department,the person responsible for the source to be tested shall provide necessary holes in stacks or ducts and such other safe and proper sampling and testing facilities exclusive of instruments and sensing devices as may be necessary for proper determination of the emission of air contaminants. If an authorized representative of the department, during the course of an inspection, obtains a sample of air contaminant, fuel , process material, or other material, that representative shall issue a receipt for the sample obtained to the owner or operator of, or person responsible for, the source tested. 3

. For the purpose of ascertaining the state of compliance with this chapter and any applicable rules, any duly authorized officer, employee, or agent of the department may enter and inspect, at any reasonable time, any property, premises, or place on or at which a lead-based paint remediation activity is ongoing. If requested , the department shall provide to the owner or operator of the premises a report that sets forth all facts found which relate to compliance status.
23-25-06. Confidentiality of records. 1. Any record , report, or information obtained under this chapter must be available to the public, except that upon a showing satisfa

_ ctory to the department that the record, report, or information, or particular part thereof, other than emission data, to which the department has access under this chapter, if made public,would divulge trade secrets, the department shall consider the record , report, or information or particular portion thereof confidential in the administration ofthis chapter. 2

. Nothing herein may be construed to prevent disclosure of any report, or record of information to federal , state, or local agencies when necessary for purposes of administration of any federal , state, or local air pollution control laws, or when relevant in any proceeding under this chapter.
23-25-07. Emission control requirements. Repealed by S.L. 1975, ch. 231 , 

### § 11

. 23-25-08. Administrative procedure and judicial review. Any proceeding under this chapter for: 1. The issuance or modification of rules and regulations including emergency orders relating to control of air pollution; or 2

. Determining compliance with rules and regulations ofthe department, must be conducted in accordance with the provisions of chapter 28-32, and appeals may be taken as therein provided

. When an emergency exists requiring immediate action to protect the public health and safety, the department may, without notice or hearing, issue an order reciting the existence of such emergency and requiring that such action be taken as is necessary to meet this emergency. Notwithstanding any provision of this chapter, such order must be effective immediately, but on application to the department an interested person must be afforded a hearing before the state health council within ten days. On the basis of such hearing,
Page No.7the emergency order must be continued , modified, or revoked within thirty days after such hearing. Except as provided for in this section, notice of any hearing held under this chapter must be issued at least thirty days prior to the date specified for the hearing.
23-25-09. Injunction proceedings. Repealed by S

.L. 1975, ch. 231 , 

### § 11.
23-25-10. Enforcement- Penalties -Injunctions. 1

. Any person who willfully violates this chapter, or any permit condition, rule, order, limitation, or other applicable requirement implementing this chapter, is subject to a fine of not more than ten thousand dollars per day per violation, or by imprisonment for not more than one year, or both. If the conviction is for a violation committed after a first conviction of such person under this subsection, punishment must be by a fine of not more than twenty thousand dollars per day per violation, or by imprisonment for not more than two years, or both. 2. Any person who violates this chapter, or any permit condition , rule, order, limitation, or other applicable requirement implementing this chapter, with criminal negligence as defined by section 12.1-02-02, is subject to a fine of not more than ten thousand dollars per day per violation, or by imprisonment for not more than six months, or both. 3. Any person who knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under this chapter or any permit condition, rule, order, limitation, or other applicable requirement implementing this chapter, or who falsifies, tampers with , or knowingly renders inaccurate any monitoring device or method required to be maintained under this chapter or any permit condition , rule, order, limitation, or other applicable requirement implementing this chapter, upon conviction, is subject to a fine of not more than ten thousand dollars per day per violation, or by imprisonment for not more than six months, or both. 4. Any person who violates this chapter, or any permit condition , rule, order, limitation, or other applicable requirement implementing this chapter, is subject to a civil penalty not to exceed ten thousand dollars per day per violation. 5

. Without prior revocation of any pertinent permits, the department, in accordance with the laws of this state governing injunction or other process, may maintain an action in the name of the state against any person to enjoin any threatened or continuing violation of any provision ofthis chapter or any permit condition , rule, order, limitation, or other applicable requirement implementing this chapter.
23-25-11. Regulation of odors - Rules. 1

. In areas located within a city or the area over which a city has exercised extraterritorial zoning as defined in section 40-47-01

.1 , a person may not discharge into the ambient air any objectionable odorous air contaminant that measures seven odor concentration units or higher outside the property boundary where the discharge is occurring. If an agricultural operation as defined by section 42-04-01 has been in operation for more than one year, as provided by section 42-04-02, and the business or residence making the odor complaint was built or established after the agricultural operation was established, the measurement for compliance with the seven odor concentration units standard must be taken within one hundred feet [30.48 meters] of the subsequently established residence, church , school, business, or public building making the complaint rather than at the property boundary of the agricultural operation. The measurement may not be taken within five hundred feet [

.15 kilometer] ofthe property boundary ofthe agricultural operation. 2. In areas located outside a city or outside the area over which a city has exercised extraterritorial zoning as defined in section 40-47-01

.1 , a person may not discharge into the ambient air any objectionable odorous air contaminant that causes odors that

Page No.8measure seven odor concentration units or higher as measured at any ofthe following locations: a

. Within one hundred feet [30.48 meters) of any residence, church , school, business, or public building, or within a campground or public park

. An odor measurem!3nt may not be taken at the residence of the owner or operator ofthe source of the odor, or at any residence, church, school, business, or public building, or within a campground or public park, that is built or established within one-half mile [

.80 kilometer] ofthe source ofthe odor after the source of the odor has been built or established; b

. At any point located beyond one-half mile [

.80 kilometer] from the source of the odor, except for property owned by the owner or operator of the source of the odor, or over which the owner or operator of the source of the odor has purchased an odor easement; or c. Ifa county or township has zoned or established a setback distance for an animal feeding operation which is greater than one-half mile [

.80 kilometer] under either section 11-33-02

.1 or 58-03-11.1 , or ifthe setback distance under subsection 7 is greater than one-half mile [

.80 kilometer], measurements for compliance with the seven odor concentration units standard must be taken at the setback distance rather than one-half mile [

.80 kilometer] from the facility under subdivision b, except for any residence, church, school, business, public building, park, or campground within the setback distance which was built or established before the animal feeding operation was established, unless the animal feeding operation has obtained an odor easement from the preexisting facility

. 3. An odor measurement may be taken only with a properly maintained scentometer, by an odor panel, or by another instrument or method approved by the state department of health, and only by inspectors certified by the department who have successfully completed a department-sponsored odor certification course and demonstrated the ability to distinguish various odor samples and concentrations. If a certified inspector measures a violation of this section, the department may send a certified letter of apparent noncompliance to the person causing the apparent violation and may negotiate with the owner or operator for the establishment of an odor management plan and best management practices to address the apparent violation. The department shall give the owner or operator at least fifteen days to implement the odor management plan

. If the odor problem persists, the department may proceed with an enforcement action provided at least two certified inspectors at the same time each measure a violation and then confirm the violation by a second odor measurement taken by each certified inspector, at least fifteen minutes, but no more than two hours, afterthe first measurement. 4

. A person is exempt from this section while spreading or applying animal manure or other recycled agricultural material to land in accordance with a nutrient management plan approved by the state department of health

.A person is exempt from this section while spreading or applying animal manure or other recycled agricultural material to land owned or leased by that person in accordance with rules adopted by the department. An owner or operator of a lagoon or waste storage pond permitted by the department is exempt from this section in the spring from the time when the cover of the permitted lagoon or pond begins to melt until fourteen days after all the ice cover on the lagoon or pond has completely melted. Notwithstanding these exemptions, all persons shall manage their property and systems to minimize the impact of odors on their neighbors

. . 5. This section does not apply to chemical compounds that can be individually measured by instruments, other than a scentometer, that have been designed and proven to measure the individual chemical or chemical compound , such as hydrogen sulfide, to a reasonable degree of scientific certainty, and for which the state department of health has established a specific limitation by rule

. 6

. For purposes of this section , a public park is a park established by the federal government, the state, or a political subdivision of the state in the manner prescribed
Page No.9by law. For purposes of this section, a campground is a public or private area of land used exclusively for camping and open to the public for a fee on a regular or seasonal basis

. 7

. a. In a county that does not regulate the nature, scope, and location of an animal feeding operation under section 11-33-02, the department shall require that any new animal feeding operation permitted under chapter 61-28 be set back from any existing residence, church, school, business, public building, park, or campground. (1) If there are fewer than three hundred animal units, there is no minimum setback requirement. (2) If there are at least three hundred animal units but no more than one thousand animal units, the setback for any animal operation is one-half mile [.80 kilometer]. (3) If there are at least one thousand one animal units but no more than two thousand animal units, the setback for a hog operation is three-fourths mile [1

.20 kilometers] and the setback for any other animal operation is one-half mile [.80 kilometer]

. (4) If there are at least two thousand one animal units but no more than five thousand animal units, the setback for a hog operation is one mile [1

.60 kilometers] and the setback for any other animal operation is three-fourths mile [1

.20 kilometers]. (5) If there are five thousand one or more animal units, the setback for a hog operation is one and one-half miles [2.40 kilometers] and the setback for any other animal operation is one mile [1.60 kilometers]

. b. The setbacks set forth in subdivision a do not apply if the owner or operator applying for the permit obtains an odor easement from the preexisting use that is closer

. c

. For purposes ofthis section: (1) One mature dairy cow,whether milking or dry, equals 1

.33 animal units; (2) One dairy cow, heifer or bull, other than an animal described in paragraph 1 equals 1.0 animal unit; (3) One weaned beef animal, whether a calf, heifer, steer, or bull, equals 0.75 animal unit; (4) One cow-calf pair equals 1.0 animal unit; (5) One swine weighing fifty-five pounds [24

.948 kilograms] or more equals 0.4 animal unit; (6) One swine weighing less than fifty-five pounds [24.948 kilograms] equals 0

.1 animal unit; (7) One horse equals 2.0 animal units; (8) One sheep or lamb equals 0.1 animal unit; (9) One turkey equals 0.0182 animal unit; (10) One chicken, other than a laying hen, equals 0.008 animal unit; (11) One laying hen equals 0.012 animal unit; (12) One duck equals 0

.033 animal unit; and (13) Any livestock not listed in paragraphs 1 through 12 equals 1.0 animal unit per each one thousand pounds [453.59 kilograms] whether single or combined animal weight. 8

. A permitted animal feeding operation may expand its permitted capacity by twenty-five percent on one occasion without triggering a higher setback distance. 9. Neither a county nor a township may regulate or through any means impose restrictions or requirements on animal feeding operations or on other agricultural operations except as permitted under sections 11-33-02 and 58-03-11.

Page No

. 10

### CHAPTER 28-32 ADMINISTRATIVE AGENCIES PRACTICE ACT
28-32-01. Definitions. In this chapter, unless the context or subject matter otherwise provides: 1

. "Adjudicative proceeding" means an administrative matter resulting in an agency issuing an order after an opportunity for hearing is provided or required

. An adjudicative proceeding includes administrative matters involving a hearing on a complaint against a specific-named respondent; a hearing on an application seeking a right, privilege, or an authorization from an agency, such as a ratemaking or licensing hearing; or a hearing on an appeal to an agency. An adjudicative proceeding includes reconsideration , rehearing, or reopening

. Once an adjudicative proceeding has begun, the adjudicative proceeding includes any informal disposition of the administrative matter under section 28-32-22 or another specific statute or rule, unless the matter has been specifically converted to another type of proceeding under section 28-32-22

.An adjudicative proceeding does not include a decision or order to file or not to file a complaint, or to initiate an investigation, an adjudicative proceeding, or any other proceeding before the agency, or another agency, or a court

. An adjudicative proceeding does not include a decision or order to issue, reconsider, or reopen an order that precedes an opportunity for hearing or that under another section of this code is not subject to review in an adjudicative proceeding. An adjudicative proceeding does not include rulemaking underthis chapter. 2. "Administrative agency" or "agency" means each board, bureau, commission , department, or other administrative unit of the executive branch of state government, including one or more officers, employees, or other persons directly or indirectly purporting to act on behalf or under authority of the agency. An administrative unit located within or subordinate to an administrative agency must be treated as part o( that agency to the extent it purports to exercise authority subject to this chapter. The term administrative agency does not include: a

. The office of management and budget except with respect to rules made under section 32-12

.2-14, rules relating to conduct on the capitol grounds and in buildings located on the capitol grounds under section 54-21-18, rules relating to the classified service as authorized under section 54-44.3-07, and rules relating to state purchasing practices as required under section 54-44.4-04

. b. The adjutant general with respect to the department ofemergency services. c

. The council on the arts. d. The state auditor

. e

. The department of commerce with respect to the division of economic development and finance. f

. The dairy promotion commission. g

. The education factfinding commission

. h

. The educational technology council. i. The board ofequalization

. j. The board of higher education. k

. The Indian affairs commission

. I. The industrial commission with respect to the activities of the Bank of North Dakota, North Dakota housing finance agency, public finance authority, North Dakota mill and elevator association, North Dakota farm finance agency, the North Dakota transmission authority, and the North Dakota pipeline authority

. m. The department of corrections and rehabilitation except with respect to the activities ofthe division of adult services under chapter 54-23.4. n. The pardon advisory board

. o. The parks and recreation department. p. The parole board. q. The state fair association

.

Page No.1r. The attorney general with respect to activities of the state toxicologist and the state crime laboratory. s

. The board of university and school lands except with respect to activities under chapter 47-30.1. 

### t. The administrative committee on veterans' affairs except with respect to rules relating to the supervision and government of the veterans' home and the implementation of programs or services provided by the veterans' home. u. The industrial commission with respect to the lignite research fund except as required under section 57-61-01.5. v. The attorney general with respect to guidelines adopted under section 12

.1-32-15 for the risk assessment of sexual offenders, the risk level review process, and public disclosure of information under section 12.1-32-15. w. The commission on legal counsel for indigents. x. The attorney general with respect to twenty-four seven sobriety program guidelines and program fees

. 3

. "Agency head" means an individual or body of individuals in whom the ultimate legal authority ofthe agency is vested by law

. 4. "Complainant" means any person who files a complaint before an administrative agency pursuant to section 28-32-21 and any administrative agency that, when authorized by law,files such a complaint before such agency or any other agency. 5. "Hearing officer" means any agency head or one or more members of the agency head when presiding in an administrative proceeding, or, unless prohibited by law, one or more other persons designated by the agency head to preside in an administrative proceeding, an administrative law judge from the office of administrative hearings, or any other person duly assigned, appointed, or designated to preside in an administrative proceeding pursuant to statute or rule

. 6. "License" means a franchise, permit, certification, approval, registration, charter, or similarform of authorization required by law. 7

. "Order" means any agency action of particular applicability which determines the legal rights, duties, privileges, immunities, or other legal interests of one or more specific persons

.The term does not include an executive order issued by the governor. 8

. "Party" means each person named or admitted as a party or properly seeking and entitled as of right to be admitted as a party

.An administrative agency may be a party

. In a hearing for the suspension , revocation , or disqualification of an operator's license under title 39, the term may include each city and each county in which the alleged conduct occurred, but the city or county may not appeal the decision of the hearing officer

. 9. "Person" includes an individual, association , partnership, corporation , limited liability company, state governmental agency or governmental subdivision, or an agency of such governmental subdivision. 10

. "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the administrative action more probable or less probable than it would be without the evidence

. 11

. "Rule" means the whole or a part ofan agency statement ofgeneral applicability which implements or prescribes law or policy or the organization , procedure, or practice requirements of the agency

. The term includes the adoption of new rules and the amendment, repeal, or suspension of an existing rule

.The term does not include: a

. A rule concerning only the internal management of an agency which does not directly or substantially affect the substantive or procedural rights or duties of any segment ofthe public. b. A rule that sets forth criteria or guidelines to be used by the staff of an agency in the performance of audits, investigations, inspections, and settling commercial disputes or negotiating commercial arrangements, or in the defense, prosecution , or settlement of cases, ifthe disclosure ofthe statement would : (1 ) Enable law violators to avoid detection; (2) Facilitate disregard of requirements imposed by law; or
Page No.2(3) Give a clearly improper advantage to persons who are in an adverse position to the state. c

. A rule establishing specific prices to be charged for particular goods or services sold by an agency. d. A rule concerning only the**physics:~!** servicing, maintenance, or care of agency-owned or agency-operated facilities or property. e. A rule relating only to the use of a particular facility or property owned, operated, or maintained by the state or any of its subdivisions, ifthe substance ofthe rule is adequately indicated by means of signs or signals to persons who use the facility or property. f. A rule concerning only inmates of a correctional or detention facility, students enrolled in an educational institution, or patients admitted to a hospital, if adopted by that facility, institution, or hospital. g. A form whose contents or substantive requirements are prescribed by rule or statute or are instructions for the execution or use ofthe form. h. An agency budget. i. An opinion ofthe attorney general. j. A rule adopted by an agency selection committee under section 54-44.7-03. k. Any material, including a guideline, interpretive statement, statement of general policy, manual, brochure, or pamphlet, which is explanatory and not intended to have the force and effect of law

. 28-32-02. Rulemaking power ofagency -Organizational rule. 1

. The authority of an administrative agency to adopt administrative rules is authority delegated by the legislative assembly

. As part of that delegation, the legislative assembly reserves to itself the authority to determine when and if rules of administrative agencies are effective

. Every administrative agency may adopt, amend, or repeal reasonable rules in conformity with this chapter and any statute administered or enforced by the agency

. 2. In addition to other rulemaking requirements imposed by law, each agency may include in its rules a description ofthat portion of its organization and functions subject to this chapter and may include a statement of the general course and method of its operations and how the public may obtain information or make submissions or requests.
28-32-03. Emergency rules. 1

. If the agency, with the approval of the governor, finds that emergency rulemaking is necessary, the agency may declare the proposed rule to be an interim final rule effective on a date no earlier than the date of filing with the legislative council of the notice required by section 28-32-10. 2

. A proposed rule may be given effect on an emergency basis under this section if any ofthe following grounds exists regarding that rule: a

. Imminent peril threatens public health, safety, or welfare, which would be abated by emergency effectiveness; b

. A delay in the effective date of the rule is likely to cause a loss of funds appropriated to support a duty imposed by law upon the agency; c

. Emergency effectiveness is reasonably necessary to avoid a delay in implementing an appropriations measure; or d

. Emergency effectiveness is necessary to meet a mandate offederal law. 3

. A final rule adopted after consideration of all written and oral submissions respecting the interim final rule, which is substantially similar to the interim final rule, is effective as ofthe declared effective date ofthe interim final rule

. 4. The agency's finding, and a brief statement of the agency's reasons for the finding , must be filed with the legislative council with the final adopted emergency rule. 5

. The agency shall attempt to make interim final rules known to persons who the agency can reasonably be expected to believe may have a substantial interest in them. As
Page No

. 3used in this subsection, "substantial interest" means an interest in the effect of the rules which surpasses the common interest of all citizens. An agency adopting emergency rules shall comply with the notice requirements of section 28-32-10 which relate to emergency rules and shall provide notice to the chairman of the administrative rules committee of the emergency status, declared effective date, and grounds for emergency status of the rules under subsection 2

. When notice of emergency rule adoption is received , the legislative council shall publish the notice and emergency rules on its website

. 6

. An interim final rule is ineffective one hundred eighty days after its declared effective date unless first adopted as a final rule.
28-32-04. Repeal or waiver of rules from federal guidelines. 1

. An agency shall repeal or amend any existing rule that was adopted from federal guidelines and which is not relevant to state regulatory programs. 2. An agency may not adopt rules from federal guidelines which are not relevant to state regulatory programs when developing or modifying programs. 3

. An agency shall seek a waiver from the appropriate United States agency when the United States agency is evaluating current programs or delegating or modifying programs to relieve the agency from complying with or adopting rules that are not relevant to state regulatory programs.
28-32-05. Adoption by reference of certain rules. 1

. When adopting rules, an agency shall adopt by reference any applicable existing permit or procedural rules that may be adapted for use in a new or existing program

. 2

. An agency shall seek authorization from the appropriate United States agency to adopt by reference applicable existing permit or procedural rules that may be adapted for use in a new or existing program when the United States agency is delegating or modifying a program.
28-32-06. Force and effect of rules. Upon becoming effective, rules have the force and effect of law until amended or repealed by the agency, declared invalid by a final court decision, suspended or found to be void by the administrative rules committee, or determined repealed by the legislative council because the authority for adoption ofthe rules is repealed ortransferred to another agency

. 28-32-07. Deadline for rules to implement statutory change. Any rule change, including a creation, amendment, or repeal, made to implement a statutory change must be adopted and filed with the legislative council within nine months ofthe effective date of the statutory change

. Ifan agency needs additional time for the rule change, a request for additional time must be made to the legislative council. The legislative council may extend the time within which the agency must adopt the rule change if the request by the agency is supported by evidence that the agency needs more time through no deliberate fault of its own

. 28-32-08. Regulatory analysis. 1

. An agency shall issue a regulatory analysis of a proposed rule if: a

. Within twenty days after the last published notice date ofa proposed rule hearing, a written request for the analysis is filed by the governor or a member of the legislative assembly; or b

. The proposed rule is expected to have an impact on the regulated community in excess of fifty thousand dollars. The analysis under this subdivision must be available on or before the first date of public notice as provided for in section 28-32-10

. 2

. The regulatory analysis must contain:

Page No.4a. A description of the classes of persons who probably will be affected by the proposed rule, including classes that will bear the costs of the proposed rule and classes that will benefit from the proposed rule; b. A description of the probable impact, including economic impact, ofthe proposed rule; c. The probable costs to the agency of the implementation and enforcement of the proposed rule and any anticipated effect on state revenues; and d. A description of any alternative methods for achieving the purpose of the proposed rule that were seriously considered by the agency and the reasons why the methods were rejected in favor ofthe proposed rule. 3

. Each regulatory analysis must include quantification of the data to the extent practicable

. 4

. The agency shall mail or deliver a copy of the regulatory analysis to any person who requests a copy ofthe regulatory analysis. The agency may charge a fee for a copy of the regulatory analysis as allowed under section 44-04-18. 5

. If required under subsection 1 ,the preparation and issuance ofa regulatory analysis is a mandatory duty of the agency proposing a rule. Errors in a regulatory analysis, including erroneous determinations concerning the impact ofthe proposed rule on the regulated community, are not a ground upon which the invalidity of a rule may be asserted or declared.
28-32-08.1. Rules affecting small entities - Analysis - Economic impact statements
- Judicial review. 1

. As used in this section: a

. "Small business" means a business entity, including its affiliates,which: (1) Is independently owned and operated; and (2) Employs fewer than twenty-five full-time employees or has gross annual sales of less than two million five hundred thousand dollars; b

. "Small entity" includes small business, small organization , and small political subdivision; c. "Small organization" means any not-for-profit enterprise that is independently owned and operated and is not dominant in its field; and d. "Small political subdivision" means a political subdivision with a population of less than five thousand

. 2

. Before adoption of any proposed rule, the adopting agency shall prepare a regulatory analysis in which, consistent with public health, safety, and welfare, the agency considers utilizing regulatory methods that will accomplish the objectives of applicable statutes while minimizing adverse impact on small entities

. The agency shall consider each of the following methods of reducing impact of the proposed rule on small entities: a. Establishment of less stringent compliance or reporting requirements for small entities; b. Establishment of less stringent schedules or deadlines for compliance or reporting requirements for small entities; c. Consolidation or simplification of compliance or reporting requirements for small entities; d

. Establishment of performance standards for small entities to replace design or operational standards required in the proposed rule; and e. Exemption of small entities from all or any part of the requirements contained in the proposed rule

. 3. Before adoption of any proposed rule that may have an adverse impact on small entities, the adopting agency shall prepare an economic impact statement that includes consideration of: a. The small entities subject to the proposed rule; b. The administrative and other costs required for compliance with the proposed rule; Page No.5c. The probable cost and benefit to private persons and consumers who are affected by the proposed rule; d

. The probable effect ofthe proposed rule on state revenues; and e. Any less intrusive or less costly alternative methods of achieving the purpose of the proposed rule. 4

. For any rule subject to this section, a small entity that is adversely affected or aggrieved by final agency action is entitled to judicial review of agency compliance with the requirements of this section

. A small entity seeking judicial review under this section must file a petition for judicial review within one year from the date of final agency action

. 5

. This section does not apply to any agency that is an occupational or professional licensing authority, nor does this section apply to the following agencies or divisions of agencies: a

. Council on the arts. b

. Beef commission

. c. Dairy promotion commission

. d

. Dry bean council. e. Highway patrolmen's retirement board. f. Indian affairs commission

. g. Board for Indian scholarships

. h

. State personnel board. i. Potato council. j. Board of public school education. k. Real estate trust account committee. I. Seed commission. m

. Soil conservation committee

. n

. Oilseed council. o. Wheat commission. p

. State seed arbitration board. q

. North Dakota lottery. 6

. This section does not apply to rules mandated by federal law. 7

. The adopting agency shall provide the administrative rules committee copies of any regulatory analysis or economic impact statement, or both, prepared under this section when the committee is considering the associated rules

. 28-32-08.2. Fiscal notes for administrative rules. When an agency presents rules for administrative rules committee consideration, the agency shall provide a fiscal note or a statement in its testimony that the rules have no fiscal effect. A fiscal note must reflect the effect of the rules changes on s l ate revenues and expenditures, including any effect on funds controlled by the agency

. 28-32-09. Takings assessment. 1

. An agency shall prepare a written assessment ofthe constitutional takings implications of a proposed rule that may limit the use of private real property

. The agency's assessment must: a

. Assess the likelihood that the proposed rule may result in a taking or regulatory taking

. b. Clearly and specifically identify the purpose ofthe proposed rule

. c

. Explain why the proposed rule is necessary to substantially advance that purpose and why no alternative action is available that would achieve the agency's goals while reducing the impact on private property owners

. d

. Estimate the potential cost to the government if a court determines that the proposed rule constitutes a taking or regulatory taking

. e. Identify the source of payment within the agency's budget for any compensation that may be ordered

.

Page No.6f. Certify that the benefits ofthe proposed rule exceed the estimated compensation costs. 2

. Any private landowner who is or may be affected by a rule that limits the use of the landowner's private real property may request in writing that the agency reconsider the application or need for the rule. Within thirty days of receiving the request, the agency shall consider the request and shall in writing inform the landowner whether the agency intends to keep the rule in place, modify application of the rule, or repeal the rule. 3

. In an agency's analysis of the takings implications of a proposed rule, "taking" means the taking of private real property, as defined in section 47-01-03, by government action which requires compensation to the owner of that property by the fifth or fourteenth amendment to the Constitution ofthe United States or section 16 of article I of the Constitution of North Dakota. "Regulatory taking" means a taking of real property through the exercise of the police and regulatory powers of the state which reduces the value of the real property by more than fifty percent. However, the exercise of a police or regulatory power does not effect a taking if it substantially advances legitimate state interests, does not deny an owner economically viable use ofthe owner's land, or is in accordance with applicable state or federal law.
28-32-10. Notice of rulemaking- Hearing date. 1

. An agency shall prepare a full notice and an abbreviated notice of rulemaking

. a. The agency's full notice ofthe proposed adoption, amendment, or repeal of a rule must include a short, specific explanation ofthe proposed rule and the purpose of the proposed rule, identify the emergency status and declared effective date of any emergency rules, include a determination of whether the proposed rulemaking is expected to have an impact on the regulated community in excess of fifty thousand dollars, identify at least one location where interested persons may review the text of the proposed rule, provide the address to which written comments concerning the proposed rule may be sent, provide the deadline for submission of written comments, provide a telephone number and post-office or electronic mail address at which a copy ofthe rules and regulatory analysis may be requested , and, in the case of a substantive rule, provide the time and place set for each oral hearing

. The agency's full notice must be filed with the legislative council, and the agency shall request publication of an abbreviated newspaper publication notice at least once in each official county newspaper published in this state

. The notice filed with the legislative council must be accompanied by a copy ofthe proposed rules. b. The abbreviated newspaper publication of notice must be in a display-type format with a minimum width of one column of approximately two inches [5.08 centimeters] and a depth of from three inches [7

.62 centimeters] to four inches [1 0

.16 centimeters] with a headline describing the general topic of the proposed rules. The notice must also include the telephone number or address to use to obtain a copy ofthe proposed rules, identification ofthe emergency status and declared effective date of any emergency rules, the address to use and the deadline to submit written comments, and the location, date, and time of the public hearing on the rules. 2

. The agency shall mail or deliver a copy ofthe agency's full notice to each member of the legislative assembly whose name appeared as a sponsor or cosponsor of legislation enacted during the most recent session ofthe legislative assembly which is being implemented by the proposed rule and to each person who has made a timely request to the agency for a copy of the notice

. The agency may mail or otherwise provide a copy of the agency's full notice to any person who is likely to be an interested person. The agency shall mail or deliver a copy ofthe rules to each member of the legislative assembly whose name appeared as a sponsor or cosponsor of legislation enacted during the most recent session ofthe

- legislative assembly which is being implemented by the proposed rule and to any person requesting a copy

. The
Page No.7agency may charge persons who are not members ofthe legislative assembly fees for copies ofthe proposed rule as allowed under section 44-04-18. 3. In addition to the other notice requirements of this subsection , the superintendent of public instruction shall provide notice of any proposed rulemaking by the superintendent of public instruction to each association with statewide membership whose primary focus is elementary and secondary education issues which has requested to receive notice from the superintendent under this subsection and to the superintendent ofeach public school district in this state, or the president ofthe school board for school districts that have no superintendent, at least twenty days before the date of the hearing described in the notice. Notice provided by the superintendent of public instruction under this section must be by first-class mail. However, upon request of a group or person entitled to notice under this section , the superintendent of public instruction shall provide the group or person notice by electronic mail. 4. The legislative council shall establish standard procedures for all agencies to follow in complying with the provisions of this section and a procedure to allow any person to request and receive mailed copies of all filings made by agencies pursuant to this section

. The legislative council may charge an annual fee as established by the administrative rules committee for providing copies ofthe filings. 5. At least twenty days must elapse between the date ofthe publication ofthe notice and the date ofthe hearing. Within fifteen business days after receipt of a notice under this section , a copy of the notice must be mailed by the legislative council to any person who has paid the annual fee established under subsection 4.
28-32-11. Conduct of hearings - Notice of administrative rules committee consideration - Consideration and written record of comments. The agency shall adopt a procedure whereby all interested persons are afforded reasonable opportunity to submit data, views, or arguments, orally or in writing, concerning the proposed rule, including data respecting the impact of the proposed rule

. The agency shall adopt a procedure to allow interested parties to request and receive notice from the agency of the date and place the rule will be reviewed by the administrative rules committee

. In case of substantive rules, the agency shall conduct an oral hearing. The agency shall consider fully all written and oral submissions respecting a proposed rule prior to the adoption , amendment, or repeal of any rule not of an emergency nature

. The agency shall make a written record of its consideration of all written and oral submissions contained in the rulemaking record respecting a proposed rule.
28-32-12. Comment period. The agency shall allow, after the conclusion of any rulemaking hearing, a comment period of at least ten days during which data,views, or arguments concerning the proposed rulemaking will be received by the agency and made a part of the rulemaking record to be considered by the agency. 28-32-13. Substantial compliance with rulemaking procedure. A rule is invalid unless adopted in substantial compliance with this chapter. However, inadvertent failure to supply any person with a notice required by section 28-32-10 does not invalidate a rule. Notwithstanding subsection 2 of section 28-32-42, an action to contest the validity of a rule on the grounds of noncompliance with this chapter may not be commenced more than two years afterthe effective date ofthe rule

. 28-32-14. Attorney general review of rules. Every rule proposed by any administrative agency must be submitted to the attorney general for an opinion as to its legality before final adoption , and the attorney general promptly shall furnish each such opinion. The attorney general may not approve any rule as to legality when the rule exceeds the statutory authority ofthe agency or is written in a manner that is not concise or easily understandable or when the procedural requirements for adoption ofthe rule in

Page No

. 8this chapter are not substantially met. The attorney general shall advise an agency of any revision or rewording of a rule necessary to correct objections as to legality

. 28-32-15. Filing of rules for publication - Effective date of rules. 1. A copy of each rule adopted by an administrative agency, a copy of each written comment and a written summary of each oral comment on the rule, and the attorney general's opinion on the rule must be filed by the adopting agency with the legislative council for publication ofthe rule in the North Dakota Administrative Code. 2

. a

. Nonemergency rules approved by the attorney general as to legality, adopted by an administrative agency, and filed with the legislative council and not voided or held for consideration by the administrative rules committee become effective according to the following schedule: (1) Rules filed with the legislative council from August second through November first become effective on the immediately succeeding January first. (2) Rules filed with the legislative council from November second through February first become effective on the immediately succeeding April first. (3) Rules filed with the legislative council from February second through May first become effective on the immediately succeeding July first. (4) Rules filed with the legislative council from May second through August first become effective on the immediately succeeding October first. b. If publication is delayed for any reason other than action of the administrative rules committee, nonemergency rules, unless otherwise provided, become effective when publication would have occurred but for the delay

. c

. A rule held for consideration by the administrative rules committee becomes effective on the first effective date of rules under the schedule in subdivision a following the meeting at which that rule is reconsidered by the committee.
28-32-16. Petition for reconsideration of rule- Hearing by agency. Any person substantially interested in the effect of a rule adopted by an administrative agency may petition such agency for a reconsideration of any such rule or for an amendment or repeal thereof. Such petition must state clearly and concisely the petitioners' alleged grounds for such reconsideration or for the proposed repeal or amendment of such rule

. The agency may grant the petitioner a public hearing upon such terms and conditions as the agency may prescribe

. 28-32-17. Administrative rules committee objection. If the legislative management's administrative rules committee objects to all or any portion of a rule because the committee deems it to be unreasonable, arbitrary, capricious, or beyond the authority delegated to the adopting agency, the committee may file that objection in certified form with the legislative council. The filed objection must contain a concise statement of the committee's reasons for its action. 1

. The legislative council shall attach to each objection a certification ofthe time and date of its filing and, as soon as possible, shall transmit a copy of the objection and the certification to the agency adopting the rule in question

. The legislative council also shall maintain a permanent register ofall committee objections. 2

. The legislative council shall publish an objection filed pursuant to this section in the next issue of the code supplement. In case of a filed committee objection to a rule subject to the exceptions of the definition of rule in section 28-32-01 , the agency shall indicate the existence of that objection adjacent to the rule in any compilation containing that rule

. 3. Within fourteen days after the filing of a committee objection to a rule, the adopting agency shall respond in writing to the committee

. After receipt of the response, the committee may withdraw or modify its objection.

Page No.94

. After the filing of a committee objection, the burden of persuasion is upon the agency in any action for judicial review or for enforcement of the rule to establish that the whole or portion thereof objected to is within the procedural and substantive authority delegated to the agency

. Ifthe agency fails to meet its burden of persuasion, the court shall declare the whole or portion ofthe rule objected to invalid and judgment must be rendered against the agency for court costs. These court costs must include a reasonable attorney's fee and must be payable from the appropriation of the agency which adopted the rule in question.
28-32-18. Administrative rules committee may void rule - Grounds - Amendment by agreement ofagency and committee. 1. The legislative management's administrative rules committee may find that all or any portion of a rule is void ifthat rule is initially considered by the committee not later than the fifteenth day ofthe month before the date ofthe administrative code supplement in which the rule change is scheduled to appear. The administrative rules committee may find a rule or portion of a rule void ifthe committee makes the specific finding that, with regard to that rule or portion of a rule, there is: a. An absence of statutory authority. b

. An emergency relating to public health, safety, or welfare. c

. A failure to comply with express legislative intent or to substantially meet the procedural requirements ofthis chapter for adoption ofthe rule. d. A conflict with state law. e. Arbitrariness and capriciousness. f

. A failure to make a written record of its consideration of written and oral submissions respecting the rule under section 28-32-11. 2. The administrative rules committee may find a rule void at the meeting at which the rule is initially considered by the committee or may hold consideration of that rule for one subsequent meeting. If no representative of the agency appears before the administrative rules committee when rules are scheduled for committee consideration, those rules are held over for consideration at the next subsequent committee meeting. Rules are not considered initially considered by the committee under this subsection until a representative ofthe agency appears before the administrative rules committee when the rules are scheduled for committee consideration. If no representative of the agency appears before the administrative rules committee meeting to which rules are held over for consideration, the rules are void ifthe rules were adopted as emergency rules and for rules not adopted as emergency rules the administrative rules committee may void the rules, allow the rules to become effective, or hold over consideration of the rules to the next subsequent committee meeting. Within three business days after the administrative rules committee finds that a rule is void, the legislative council shall provide written notice of that finding and the committee's specific finding under subdivisions a through f of subsection 1to the adopting agency and to the chairman of the legislative management. Within fourteen days after receipt of the notice, the adopting agency may file a petition with the chairman of the legislative management for review by the legislative management of the decision of the administrative rules committee. Ifthe adopting agency does not file a petition for review, the rule becomes void on the fifteenth day after the notice from the legislative council to the adopting agency. If within sixty days after receipt of the petition from the adopting agency the legislative management has not disapproved by motion the finding of the administrative rules committee, the rule is void. 3. An agency may amend or repeal a rule or create a related rule if, after consideration of rules by the administrative rules committee, the agency and committee agree that the rule amendment, repeal , or creation is necessary to address any of the considerations under subsection 1. A rule amended, repealed, or created under this subsection is not subject to the other requirements of this chapter relating to adoption of administrative rules and may be published by the legislative council as amended, repealed, or created. If requested by the agency or any interested party, a rule amended, repealed , Page No

. 10or created under this subsection must be reconsidered by the administrative rules committee at a subsequent meeting at which public comment on the agreed rule change must be allowed

. 28-32-18.1. Administrative rules committee review ofexisting administrative rules. 1. Upon request by the administrative rules committee, an administrative agency shall brief the committee on its existing administrative rules and point out any provisions that appear to be obsolete and any areas in which statutory authority has changed or been repealed since the rules were adopted or amended

. 2. An agency may amend or repeal a rule without complying with the other requirements of this chapter relating to adoption of administrative rules and may resubmit the change to the legislative council for publication provided: a

. The agency initiates the request to the administrative rules committee for consideration ofthe amendment or repeal; b. The agency provides notice to the regulated community, in a manner reasonably calculated to provide notice to those persons interested in the rule, of the time and place the administrative rules committee will consider the request for amendment or repeal ofthe rule; and c. The agency and the administrative rules committee agree the rule amendment or repeal eliminates a provision that is obsolete or no longer in compliance with law and that no detriment would result to the substantive rights of the regulated community from the amendment or repeal.
28-32-19. Publication ofadministrative code and code supplement. 1. The legislative council shall compile, index, and publish all rules filed pursuant to this chapter in a publication which must be known as the North Dakota Administrative Code, in this chapter referred to as the code

.The code also must contain all objections filed with the legislative council by the administrative rules committee pursuant to section 28-32-17. The legislative council shall revise all or part ofthe code as often as the legislative council determines necessary

. 2. The legislative council may prescribe a format, style, and arrangement for rules which are to be published in the code and may refuse to accept the filing of any rule that is not in substantial compliance therewith. In arranging rules for publication, the legislative council may make such corrections in spelling, grammatical construction , format, and punctuation ofthe rules as determined proper

. The legislative council shall keep and maintain a permanent code of all rules filed, including superseded and repealed rules,which must be open to public inspection during office hours. 3. The legislative council shall compile and publish the North Dakota Administrative Code supplement according to the schedule ofeffective dates of rules in section 28-32-15

. a

. The code supplement must contain all rules that have been filed with the legislative council or which have become effective since the compilation and publication ofthe preceding issue ofthe code supplement. b. The code supplement must contain all objections filed with the legislative council by the administrative rules committee pursuant to section 28-32-17. 4

. The legislative council, with the consent of the adopting agency, may omit from the code or code supplement any rule the publication of which would be unduly cumbersome, expensive, or otherwise inexpedient, if the rule in printed or duplicated form is made available on application to the agency, and if the code or code supplement contains a notice stating the general subject matter ofthe omitted rule and stating how a copy may be obtained. 5

. The code must be arranged, indexed, and printed or duplicated in a manner to permit separate publication of portions thereof relating to individual agencies

.An agency may print as many copies of such separate portions of the code as it may require. If the legislative council does not publish the code supplement due to technological problems or lack of funds, the agency whose rules would have been published in the

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. 11code supplement shall provide a copy of the rules to any person upon request. The agency may charge a fee for a copy ofthe rules as allowed under section 44-04-18.
28-32-20
. Printing, sales, and distribution of code and code supplement. 1

. The secretary of state shall distribute the code and code supplement and shall distribute copies ofthe code, revisions, and the code supplement without charge to the following : a. Governor, one copy. b. Attorney general, one copy. c

. Each supreme courtjudge, one copy

. d

. Each district courtjudge, one copy. e

. Each county auditor of this state, for the use of county officials and the public, one copy. f

. Supreme court library, one copy. g

. State library, one copy

. h

. Law library ofthe university of North Dakota, one copy. i. Each ofthe five depository libraries in this state, one copy, upon request. j

. Secretary ofstate, one copy. k

. Legislative council,four copies. 

### I. Each member ofthe legislative assembly, one copy, upon request. 2. The legislative council, each county auditor in the state, and the librarians for the supreme court library, the state library, the university of North Dakota law library, and the five depository libraries as designated according to subsection 1 and section 54-24-09 shall maintain a complete, current set of the code, including revisions and the code supplement. 3. The secretary of state shall make copies of and subscriptions to the code and code supplement available to any person upon payment ofthe appropriate subscription fee

. 4

. The legislative council shall determine the appropriate fee for subscribing to the code and code supplement. 5

. All fees collected by the secretary of state must be deposited in the general fund ofthe state treasury

. 6. If applicable, the administrative code, revisions to the administrative code, and the code supplement must be considered sixth-class printing under sections 46-02-04 and 46-02-09.
28-32-21. Adjudicative proceedings - Procedures. Administrative agencies shall comply with the following procedures in all adjudicative proceedings: 1

. 

### a
.

b

.



### c. For adjudicative proceedings involving a hearing on a complaint against a specific-named respondent, a complainant shall prepare and file a clear and concise complaint with the agency having subject matter jurisdiction of the proceeding

. The complaint shall contain a concise statement of the claims or charges upon which the complainant relies, including reference to the statute or rule alleged to be violated , and the relief sought. After a complaint is filed ,the appropriate administrative agency shall serve a copy of the complaint upon the respondent in the manner allowed for the service of process under the North Dakota Rules of Civil Procedure at least forty-five days before the hearing on the complaint. The administrative agency shall designate the time and place for the hearing and shall serve a copy of the notice of hearing upon the respondent in the manner allowed for service under the North Dakota Rules of Civil Procedure, at least twenty days before the hearing on the complaint. Service ofthe notice of hearing may be waived in writing by the respondent, or the parties may agree on a definite time and place for hearing with the consent of the agency having jurisdiction

.

Page No

. 12d. A complaint may be served less than forty-five days before the time specified for a hearing on the complaint and a notice of hearing on a complaint may be served less than twenty days before the time specified for hearing if otherwise authorized by statute

. However, an administrative hearing regarding the renewal, suspension, or revocation of a license may not be held fewer than ten days after the licensee has been served, personally or by certified mail, with a copy of a notice for hearing with an affidavit, complaint, specification of issues, or other document alleging violations upon which the license hearing is based. e

. A complaint may inform the respondent that an answer to the complaint must be served upon the complainant and the agency with which the complaint is filed within twenty days after service of the complaint, or the agency may deem the complaint to be admitted

. If the respondent fails to answer as required within twenty days after service of the complaint, the agency may enter an order in default as the facts and law may warrant. Answers must be served in the manner allowed for service under the North Dakota Rules ofCivil Procedure. f

. Service is complete upon compliance with the provisions of the North Dakota Rules of Civil Procedure. Proof of service may be made as provided in the North Dakota Rules of Civil Procedure. g. A respondent may be given less than twenty days to answer the complaint, pursuant to another statute, but no respondent may be required to answer a complaint in less than five days and an answer must be served on the complainant and the agency with which the complaint is filed at least two days before the hearing on the complaint. h. Amended and supplemental pleadings may be served and filed with the agency in the manner allowed for amended and supplemental pleadings under the North Dakota Rules of Civil Procedure. 2. At any hearing in an adjudicative proceeding, the parties shall be afforded opportunity to present evidence and to examine and cross-examine witnesses as is permitted under sections 28-32-24 and 28-32-35. 3. a. Ifthe adjudicative proceeding does not involve a hearing on a complaint against a specific-named respondent, the provisions of subsection 1 do not apply

. Unless otherwise provided by law,the provisions of subdivisions bthrough d apply. b. The administrative agency shall designate the time and place for the hearing and shall serve a copy of the notice of hearing upon all the parties in the manner allowed for service under the North Dakota Rules of Civil Procedure at least twenty days before the hearing. Service ofthe notice of hearing may be waived in writing by the parties, or the parties may agree on a definite time and place for the hearing with the consent ofthe agency having jurisdiction. c. A hearing under this subsection may not be held unless the parties have been properly served with a copy of the notice of hearing as well as a written specification of issues for hearing or other document indicating the issues to be considered and determined at the hearing. In lieu of, or in addition to, a specification of issues or other document, an explanation about the nature of the hearing and the issues to be considered and determined at the hearing may be contained in the notice. d. Service is complete upon compliance with the provisions of the North Dakota Rules of Civil Procedure

. Proof of service may be made as provided in the North Dakota Rules of Civil Procedure

. 28-32-22. Informal disposition. Unless otherwise prohibited by specific statute or rule, informal disposition may be made of any adjudicative proceeding, or any part or issue thereof, by stipulation, settlement, waiver of hearing, consent order, default, alternative dispute resolution , or other informal disposition, subject to agency approval. Any administrative agency may adopt rules of practice or procedure for informal disposition if such rules do not substantially prejudice the rights of any party. Such

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. 13rules may establish procedures for converting an administrative matter from one type of proceeding to anothertype of proceeding

. 28-32-23. Adjudicative proceedings - Exceptions - Rules of procedure. Notwithstanding the requirements for standardization of procedures in adjudicative proceedings under this chapter, an administrative agency may adopt specific agency rules of procedure not inconsistent with this chapter. An administrative agency may also adopt specific agency rules of procedure when necessary to comply with requirements found elsewhere in this code or when necessary to comply with the requirements of federal statutes, rules, or standards.
28-32-24. Evidence to be considered by agency - Official notice. 1. The admissibility of evidence in any adjudicative proceeding before an administrative agency shall be determined in accordance with the North Dakota Rules of Evidence. An administrative agency, or any person conducting proceedings for it, may waive application ofthe North Dakota Rules of Evidence if a waiver is necessary to ascertain the substantial rights of a party to the proceeding, but only relevant evidence shall be admitted

.The waiver must be specifically stated, orally or in writing, either prior to or at a hearing or other proceeding

. 2. All objections offered to evidence shall be noted in the record of the proceeding

. No information or evidence except that which has been offered, admitted, and made a part of the official record of the proceeding shall be considered by the administrative agency, except as otherwise provided in this chapter. 3. Upon proper objection, evidence that is irrelevant, immaterial, unduly repetitious, or excludable on constitutional or statutory grounds, or on the basis of evidentiary privilege recognized in the courts of this state, may be excluded. In the absence of proper objection, the agency, or any person conducting a proceeding for it, may exclude objectionable evidence. 4. The North Dakota Rules of Evidence in regard to privileges apply at all stages of an administrative proceeding under this chapter. 5. All testimony must be made under oath or affirmation. Relevant statements presented by nonparties may be received as evidence if all parties are given an opportunity to cross-examine the nonparty witness or to otherwise challenge or rebut the statements

. Nonparties may not examine or cross-examine witnesses except pursuant to a grant of intervention

. 6. Evidence may be received in written form if doing so will expedite the proceeding without substantial prejudice to the interests of any party. 7

. Official notice may be taken of any facts that could be judicially noticed in the courts of this state. Additionally, official notice may be taken of any facts as authorized in agency rules.
28-32-25. Adjudicative proceedings- Consideration of information not presented at a hearing. In any adjudicative proceeding, an administrative agency may avail itself of competent and relevant information or evidence in its possession or furnished by members of its staff, or secured from any person in the course of an independent investigation conducted by the agency, in addition to the evidence presented at the hearing

. It may do so after first transmitting a copy of the information or evidence or an abstract thereof to each party of record in the proceeding. The agency must afford each party, upon written request, an opportunity to examine the information or evidence and to present its own information or evidence and to cross-examine the person furnishing the information or evidence. Any further testimony that is necessary shall be taken at a hearing to be called and held, giving at least ten days' notice. Notice must be served upon the parties in the manner allowed for service under the North Dakota Rules of Civil Procedure. This section also applies to information officially noticed after

Page No

. 14the hearing when the issuance of any initial or final order is based in whole or in part on the facts or material noticed.
28-32-26. Costs of investigation. An agency may assess the costs of an investigation to a person found to be in violation of a statute or rule as a result of an adjudicative proceeding or informal disposition. The total costs assessed and any civil penalty that may be imposed as a result ofviolation may not exceed the statutorily authorized civil penalty for the violation. For the purposes ofthis section , costs mean reasonable out-of-pocket agency costs, not including any attorney's fees, actually incurred in conducting the investigation for which they may be assessed. Any such costs paid must be paid into the general fund and are appropriated as a refund to the agency for the purposes of defraying the costs of undertaking the investigation.
28-32-27. Hearing officer- Disqualification -Substitution. 1

. Any person or persons presiding for the agency in an administrative proceeding must be referred to individually or collectively as hearing officer

.Any person from the office of administrative hearings presiding for the agency as a hearing officer in an administrative proceeding must be referred to as an administrative lawjudge. 2. Any hearing officer is subject to disqualification for good cause shown

. 3. Any party may petition for the disqualification of any person presiding as a hearing officer upon discovering facts establishing grounds for disqualification. 4

. A person whose disqualification is requested shall determine whether to grant the petition , stating facts and reasons for the determination. 5. If a substitute is required for a person who is disqualified or becomes unavailable for any other reason,the substitute may be appointed by: a

. The attorney general, if the disqualified or unavailable person is an assistant attorney general; b

. The agency head, if the disqualified or unavailable person is one or more members of the agency head or one or more other persons designated by the agency head; c. A supervising hearing officer, ifthe disqualified or unavailable person is a hearing officer designated from an office, pool, panel, or division of hearing officers; or d

. The governor, in all other cases. 6. Any action taken by a duly appointed substitute for a disqualified or unavailable person is as effective as iftaken by the disqualified or unavailable person

. 7

. Any hearing officer in an administrative proceeding, from the time of appointment or designation, may exercise any authority granted by law or rule. A hearing officer may be designated to preside over the entire administrative proceeding and may issue orders accordingly

.A procedural hearing officer may only issue orders in regard to the course and conduct of the hearing under statute or rule and to otherwise effect an orderly hearing. If a procedural hearing officer is designated,the agency head must be present at the hearing and the agency head shall issue findings of fact and conclusions of law, as well as any order resulting from the hearing.
28-32-28. Intervention. An administrative agency may grant intervention in an adjudicative proceeding to promote the interests of justice if intervention will not impair the orderly and prompt conduct of the proceeding and if the petitioning intervenor demonstrates that the petitioner's legal rights, duties, privileges, immunities, or other legal interests may be substantially affected by the proceeding or that the petitioner qualifies as an intervenor under any provision ofstatute or rule. The agency may impose conditions and limitations upon intervention. The agency shall give reasonable notice of the intervention to all parties. An administrative agency may adopt rules relating to intervention in an adjudicative proceeding

.

Page No. 1528-32-29. Prehearing conference. Before a hearing, an administrative agency may conduct a prehearing conference after giving reasonable notice to all parties and other interested persons

. A prehearing conference may be conducted in total or in part by making use of telephone, facsimile services, television, or other electronic means, as long as such use does not substantially prejudice or infringe on the rights and interests of any party

. An administrative agency may adopt rules regarding the availability of, notice of, and procedures for prehearing conferences

. 28-32-30. Default. 1. If a party fails to attend or participate in a prehearing conference, hearing, or other stage of an adjudicative proceeding, the agency may enter and serve upon all parties written notice of default and a default order, including a statement of the grounds for default. 2. Within seven days after service of the default notice, order, and grounds, the party against whom default was ordered may file a written motion requesting that the default order be vacated and stating the grounds relied upon. During the time within which a party may file a written motion under this section, or at the time of issuing notice and the default order, the agency may adjourn the proceedings or conduct them without the participation of the party against whom a default order was issued, having due regard for the interests of justice and the orderly and prompt conduct of the proceedings. If an agency conducts further proceedings necessary to complete the administrative action without the participation of a party in default, it shall determine all the issues involved, including those affecting the defaulting party.
28-32-31. Duties of hearing officers. All hearing officers shall: 1. Assure that proper notice has been given as required by law. 2

. Conduct only hearings and related proceedings for which proper notice has been given. 3. Assure that all hearings and related proceedings are conducted in a fair and impartial manner. 4. Make recommended findings offact and conclusions of law and issue a recommended order,when appropriate. 5. Conduct the hearing only and perform such other functions of the proceeding as requested, when an agency requests a hearing officer to preside only as a procedural hearing officer. If the hearing officer is presiding only as a procedural hearing officer, the agency head must be present at the hearing and the agency head shall make findings of fact and conclusions of law and issue a final order

. The agency shall give proper notice as required by law

. The procedural hearing officer may issue orders in regard to the conduct ofthe hearing pursuant to statute or rule and to otherwise effect an orderly and prompt disposition ofthe proceedings. 6. Make findings of fact and conclusions of law and issue a final order, if required by statute or requested by an agency

. 7. Function only as a procedural hearing officer, when an agency requests a hearing officer to preside for a rulemaking hearing. The agency head need not be present. The agency shall give proper notice as required by law

. 8

. Perform any and all other functions required by law, assigned by the director of administrative hearings, or delegated to the hearing officer by the agency.
28-32-32. Emergency adjudicative proceedings. An administrative agency may use an emergency adjudicative proceeding, in its discretion, in an emergency situation involving imminent peril to the public health, safety, or welfare. 1

. In an emergency, the administrative agency may take action pursuant to a specific statute as is necessary to prevent or avoid imminent peril to the public health, safety, or welfare

.
Page No. 162

. In an emergency, in the absence of a specific statute, an administrative agency may serve a complaint fewer than forty-five days before the hearing and give notice of a hearing on the complaint by giving less than twenty days' notice as is necessary to prevent or avoid imminent peril to the public health, safety, or welfare. But, every party to the emergency adjudicative proceeding must be given a reasonable time within which to serve an answer and to prepare for the hearing, which may be extended by the agency upon good cause being shown. 3

. In an emergency, in the absence of a specific statute, in an adjudicative proceeding that does not involve a complaint against a specific-named respondent, an administrative agency may give notice of a hearing by giving less than twenty days' notice as is necessary to prevent or avoid imminent peril to the public health, safety, or welfare. But, every party to the emergency adjudicative proceeding shall be given a reasonable time to prepare for the hearing, which may be extended by the agency upon good cause being shown

. 4

. As a result of the emergency adjudicative proceeding, in the absence of a specific statute requiring other administrative action, the administrative agency shall issue an order. The order must include a brief statement of the reasons justifying the determination of imminent peril to the public health, safety, or welfare and requiring an emergency adjudicative proceeding to prevent or avoid the imminent peril. 5. After issuing an order pursuant to this section ,the administrative agency shall proceed as soon as possible to complete any other proceedings related to the emergency adjudicative proceeding that do not involve imminent peril to the public health, safety, or welfare

. 28-32-33. Adjudicative proceedings -Subpoenas - Discovery - Protective orders. 1. In an adjudicative proceeding, discovery may be obtained in accordance with the North Dakota Rules of Civil Procedure. 2. In any adjudicative proceeding, upon the request or motion of any party to the proceeding or upon the hearing officer's own motion on behalf ofthe agency, a hearing officer may issue subpoenas, discovery orders, and protective orders in accordance with the North Dakota Rules of Civil Procedure

. A motion to quash or modify, or any other motion relating to subpoenas, discovery, or protective orders must be made to the hearing officer. The hearing officer's rulings on these motions may be appealed under section 28-32-42 after issuance of the final order by the agency

. The cost of issuing and serving a subpoena in any adjudicative proceeding must be paid by the person or agency requesting it. 3. Any witness who is subpoenaed under the provisions ofthis section and who appears at a hearing or other part of an adjudicative proceeding, or whose deposition is taken, shall receive the same fees and mileage as a witness in a civil case in the district court. Witness fees and mileage shall be paid by the party or agency at whose instance the witness appears

. Any hearing officer may order the payment of witness fees or mileage by the appropriate party or agency. 4

. Subpoenas, discovery orders, protective orders, and other orders issued under this section may be enforced by applying to any judge of the district court for an order requiring the attendance of a witness, the production of all documents and objects described in the subpoena, or otherwise enforcing an order

. Failure of a witness or other person to comply with the order ofthe district court is contempt of court which is punishable by the district court, upon application

. Thejudge may award attorney's fees to the prevailing party in an application under this subsection

. 28-32-34. Administration of oaths - Parties to be advised of perjury provisions. Any hearing officer in an administrative proceeding has the power to examine witnesses and records and to administer oaths to witnesses. At the time the person presiding administers the oath to a witness, the person shall advise the witness of the provisions of subsection 1 of section 12.1-11-01 and ofthe maximum penalty for perjury

.

Page No

. 1728-32-35. Procedure at hearing. The person presiding at a hearing shall regulate the course ofthe hearing in conformity with this chapter and any rules adopted under this chapter by an administrative agency, any other applicable laws, and any prehearing order. To the extent necessary for full disclosure of all relevant facts and issues,the person presiding at the hearing shall afford to all parties and other persons allowed to participate the opportunity to respond, present evidence and argument, conduct cross-examination , and submit rebuttal evidence, except as restricted or conditioned by a grant of intervention or by a prehearing order

.A hearing may be conducted in total or in part by making use of telephone, television, facsimile services, or other electronic means if each participant in the hearing has an opportunity to participate in, to hear, and, if practicable, to see the entire proceeding while it is taking place, and if such use does not substantially prejudice or infringe on the rights and interests of any party.
28-32-36. Agency to make record. An administrative agency shall make a record of all testimony, written statements, documents, exhibits, and other evidence presented at any adjudicative proceeding or other administrative proceeding heard by it. Oral testimony may be taken by a court reporter, by a stenographer, or by use of an electronic recording device. All evidence presented at any proceeding before the administrative agency shall be filed with the agency. A copy ofthe record of any proceeding before an administrative agency, or a part thereof, must be furnished to any party to the proceeding and to any other person allowed to participate in the proceeding, upon written request submitted to the agency and upon payment of a uniform charge to be set by the agency

.Any fee paid to an administrative agency for the record , or a part thereof, shall be paid into the general fund and is appropriated as a refund to the agency for the purposes ofdefraying the costs of preparing the record. An agency may contract with any person or another agency to prepare a record, or a part thereof, of any proceeding before the agency

. 28-32-37. Ex parte communications. 1. Except as provided in subsections 2 and 4 or unless required for the disposition of ex parte matters specifically authorized by another statute, an agency head or hearing officer in an adjudicative proceeding may not communicate, directly or indirectly, regarding any issue in the proceeding, while the proceeding is pending,with any party, with any person who has a direct or indirect interest in the outcome ofthe proceeding, with any other person allowed to participate in the proceeding, or with any person who presided at a previous stage of the proceeding, without notice and opportunity for all parties to participate in the communication. 2

. When more than one person is the hearing officer in an adjudicative proceeding,those persons may communicate with each other regarding a matter pending before the panel. An agency head or hearing officer may communicate with or receive aid from staff assistants if the assistants do not furnish , augment, diminish, or modify the evidence in the record. 3

. Except as provided in subsection 4 or unless required for the disposition of ex parte matters specifically authorized by statute, no party to an adjudicative proceeding, no person who has a direct or indirect interest in the outcome of the proceeding, no person allowed to participate in the proceeding, and no person who presided at a previous stage in the proceeding may communicate directly or indirectly in connection with any issue in that proceeding, while the proceeding is pending, with any agency head or hearing officer in the proceeding without notice and opportunity for all parties to participate in the communication. 4

. In an adjudicative proceeding conducted by a hearing officer other than the agency head, counsel for the administrative agency and the agency head, without notice and opportunity for all parties to participate, may communicate and consult regarding the status of the adjudicative proceeding, discovery, settlement, litigation decisions, and other matters commonly communicated between attorney and client, to permit the agency head to make informed decisions. This subsection does not apply after recommended findings of fact, conclusions of law, and orders have been issued,
Page No

. 18except counsel for the administrative agency and the agency head may communicate regarding settlement and negotiation after recommended findings offact, conclusions of law, and orders have been issued

. 5

. If, before being assigned, designated, or appointed to preside in an adjudicative proceeding, a person receives an ex parte communication of a type that could not properly be received while presiding, the person, promptly after being assigned, designated, or appointed, shall disclose the communication in the manner prescribed in subsection 6. 6. An agency head or hearing officer in an adjudicative proceeding who receives an ex parte communication in violation of this section shall place on the record of the pending matter all written communications received , all written responses to the communications, or a memorandum stating the substance of all oral communications received, all responses made, and the identity of each person from whom the person received an ex parte oral communication , and shall advise all parties, interested persons, and other persons allowed to participate that these matters have been placed on the record

. Any person desiring to rebut the ex parte communication must be allowed to do so, upon requesting the opportunity for rebuttal. A request for rebuttal must be made within ten days after notice ofthe communication

. 7. If necessary to eliminate the effect of an ex parte communication received in violation of this section, an agency head or hearing officer in an adjudicative proceeding who receives the communication may be disqualified, upon good cause being shown in writing to the hearing officer or to the agency. The portions ofthe record pertaining to the communication may be sealed by protective order issued by the agency

. 8

. The agency shall, and any party may, report any willful violation of this section to the appropriate authorities for any disciplinary proceedings provided by law. In addition, an administrative agency may, by rule, provide for appropriate sanctions, including default, for any violations ofthis section. 9

. Nothing in this section prohibits a member ofthe general public, not acting on behalf or at the request of any party, from communicating with an agency in cases of general interest. The agency shall disclose such written communications in adjudicative proceedings.
28-32-38. Separation offunctions. 1

. No person who has served as investigator, prosecutor, or advocate in the investigatory or prehearing stage ofan adjudicative proceeding may serve as hearing officer. 2. No person who is subject to the direct authority of one who has served as an investigator, prosecutor, or advocate in the investigatory or prehearing stage of an adjudicative proceeding may serve as hearing officer

. 3. Any other person may serve as hearing officer in an adjudicative proceeding, unless a party demonstrates grounds for disqualification

. 4

. Any person may serve as hearing officer at successive stages of the same adjudicative proceeding, unless a party demonstrates grounds for disqualification.
28-32-39. Adjudicative proceedings - Findings of fact, conclusions of law, and order of agency - Notice. 1

. In an adjudicative proceeding an administrative agency shall make and state concisely and explicitly its findings of fact and its separate conclusions of law and the order of the agency based upon its findings and conclusions. 2

. If the agency head, or another person authorized by the agency head or by law to issue a final order, is presiding, the order issued is the final order. The agency shall serve a copy ofthe final order and the findings offact and conclusions of law on which it is based upon all the parties to the proceeding within thirty days after the evidence has been received, briefs filed, and arguments closed , or as soon thereafter as possible, in the manner allowed for service under the North Dakota Rules of Givil Procedure

.

Page No

. 193

. If the agency head, or another person authorized by the agency head or by law to issue a final order, is not presiding, then the person presiding shall issue recommended findings offact and conclusions of law and a recommended order within thirty days after the evidence has been received, briefs filed , and arguments closed , or as soon thereafter as possible. The recommended findings of fact and conclusions of law and the recommended order become final unless specifically amended or rejected by the agency head

. The agency head may adopt the recommended findings of fact and conclusions of law and the recommended order as final. The agency may allow petitions for review of a recommended order and may allow oral argument pending issuance of a final order. An administrative agency may adopt rules regarding the review of recommended orders and other procedures for issuance of a final order by the agency

. If a recommended order is issued, the agency must serve a copy of any final order issued and the findings of fact and conclusions of law on which it is based upon all the parties to the proceeding within sixty days after the evidence has been received, briefs filed, and arguments closed , or as soon thereafter as possible, in the manner allowed for service under the North Dakota Rules of Civil Procedure.
28-32-40. Petition for reconsideration. 1

. Any party before an administrative agency who is aggrieved by the final order of the agency, including the administrative agency when the hearing officer is not the agency head or one or more members ofthe agency head, within fifteen days after notice has been given as required by section 28-32-39, may file a petition for reconsideration with the agency. Filing ofthe petition is not a prerequisite for seeking judicial review. If the agency's hearing officer issues the agency's final order, the petition for reconsideration must be addressed to the hearing officer, who may grant or deny the petition under subsection 4. 2. Any party, including workforce safety and insurance, that appears before workforce safety and insurance may file a petition for reconsideration within thirty days after notice has been given as required by section 28-32-39. 3

. The party must submit with the petition for reconsideration a statement ofthe specific grounds upon which relief is requested or a statement of any further showing to be made in the proceeding. The petition must also state whether a rehearing is requested. The petition and any statement shall be considered a part of the record in the proceeding

. 4. The administrative agency may deny the petition for reconsideration or may grant the petition on such terms as it may prescribe. If a rehearing is granted, the agency may allow a new hearing or limit the hearing as appropriate. The agency may dissolve or amend the final order and set the matter for further hearing

. The petition is deemed to have been denied if the agency does not dispose of it within thirty days after the filing of the petition. Any rehearing must be presided over by the same person or persons presiding previously at the hearing, if available. Any amended findings, conclusions, and orders must be issued by the same person or persons who issued the previous recommended or final orders, if available. Within thirty days after the close of proceedings upon reconsideration , or as soon thereafter as possible, the agency shall issue and give notice of its order upon reconsideration as required in subsection 3 of section 28-32-39

. 5. This section does not limit the right of any agency to reopen any proceeding or rehear any matter under any continuing jurisdiction which is granted to the agency by statute

. 28-32-41. Effectiveness of orders. Unless a later date is stated in the order, a final order of an administrative agency is effective immediately, but a party may not be required to comply with a final order unless it has been served upon the party and notice is deemed given pursuant to section 28-32-39 or the party has actual knowledge of the final order. A nonparty may not be required to comply with a final order unless the agency has made the final order available for public inspection and copying or the nonparty has actual knowledge ofthe final order

. This section does not preclude
Page No

. 20an agency from taking emergency action to protect the public health, safety, or welfare as authorized by statute

. 28-32-42. Appeal from determination of agency - Time to appeal - How appeal taken. 1

. Any party to any proceeding heard by an administrative agency, except when the order of the administrative agency is declared final by any other statute, may appeal from the order within thirty days after notice of the order has been given as required by section 28-32-39

. If a reconsideration has been requested as provided in section 28-32-40, the party may appeal within thirty days after notice ofthe final determination upon reconsideration has been given as required by sections 28-32-39 and 28-32-40. If an agency does not dispose of a petition for reconsideration within thirty days after the filing of the petition , the agency is deemed to have made a final determination upon which an appeal may be taken. 2

. Any interested person who has participated in the rulemaking process of an administrative agency may appeal the agency's rulemaking action if the appeal is taken within ninety days afterthe date of publication in the North Dakota Administrative Code ofthe rule resulting from the agency rulemaking action. 3

. a. The appeal of an order may be taken to the district court designated by law, and if none is designated, then to the district court ofthe county in which the hearing or a part thereof was held

. If the administrative proceeding was disposed of informally, or for some other reason no hearing was held, an appeal may be taken to the district court of Burleigh County. Only final orders are appealable

.A procedural order made by an administrative agency while a proceeding is pending before it is not a final order. b. The appeal of an agency's rulemaking action may be taken to the district court of Burleigh County, 4

. An appeal shall be taken by serving a notice of appeal and specifications of error specifying the grounds on which the appeal is taken , upon the administrative agency concerned, upon the attorney general or an assistant attorney general, and upon all the parties to the proceeding before the administrative agency, and by filing the notice of appeal and specifications of error together with proof of service of the notice of appeal, and the undertaking required by this section, with the clerk ofthe district court to which the appeal is taken

. In an appeal of an agency's rulemaking action , only the administrative agency concerned, the attorney general, or an assistant attorney general, as well as the legislative council , need to be notified. 5

. The notice of appeal must specify the parties taking the appeal as appellants. The agency and all other parties of record who are not designated as appellants must be named as appellees. A notice of appeal of agency rulemaking actions need not name all persons participating in the rulemaking proceeding as appellees. The agency and all parties of record have the right to participate in the appeal. In the appeal of agency rulemaking action , any person who has participated in the rulemaking process has the right to participate in the appeal. 6. A bond or other undertaking for costs on appeal must be filed by the appellant as is required by appellants for costs on appeal in civil cases under the rules of appellate procedure. The bond or other undertaking must be filed with the clerk of the district court with the notice of appeal , must be made to the state of North Dakota, and may be enforced by the agency concerned for and on behalf ofthe state as obligee

.A bond or other undertaking is not required when filing fees have been waived by a district court pursuant to section 27-01-07 or when the costs of preparation and filing of the record of administrative agency proceedings have been waived by a district court pursuant to subsection 3 of section 28-32-44.
28-32-43. Docketing of appeals. Appeals taken in accordance with this chapter must be docketed as other cases pending in the district court are docketed and must be heard and determined by the court without ajury at such time as the court shall determine.
Page No

. 2128-32-44. Agency to maintain and certify record on appeal. 1. An administrative agency shall maintain an official record of each adjudicative proceeding or other administrative proceeding heard by it. 2

. Within thirty days, or a longer time as the court by order may direct, after an appeal has been taken to the district court as provided in this chapter, and after payment by the appellant of the estimated cost of preparation and filing of the entire record of the proceedings before the agency, the administrative agency concerned shall prepare and file in the office of the clerk ofthe district court in which the appeal is pending the original or a certified copy ofthe entire record of proceedings before the agency, or an abstract of the record as may be agreed upon and stipulated by the parties

. Upon receiving a copy of the notice of appeal and specifications of error pursuant to subsection 4 of section 28-32-42 and unless the agency is appealing, the administrative agency shall notify the party appealing of the estimated costs of preparation and filing of the record

. Thereafter, unless the agency is appealing, the party appealing shall pay the administrative agency the estimated costs required by this subsection

. If the actual costs of preparation and filing of the entire record of the proceedings is greater than the estimated costs, the party appealing shall pay to the agency the difference. Ifthe actual costs are less than the estimated costs,the agency shall pay to the party appealing the difference

. Any payment for the costs of preparation and filing of the record must be paid into the insurance recovery fund and is appropriated as a refund to the agency for the purposes of defraying the costs of preparing and filing the record. An agency may contract with any person or another agency to prepare and file the record ofany proceeding before the agency. 3

. The cost of preparation and filing of the record may be waived by the district court upon application by an appellant, showing that the appellant is a low-income person unable to afford these costs

. When a waiver is granted, the costs of preparation and filing ofthe record must be paid by the administrative agency

. 4

. The agency record of the proceedings, as applicable, may consist of only the following:
. a

. The complaint, answer, and other initial pleadings or documents. b

. Notices of all proceedings

. c

. Any prehearing notices,transcripts, documents, or orders. d

. Any motions, pleadings, briefs, petitions, requests, and intermediate rulings

. e

. A statement of matters officially noticed

. f

. Offers of proof and objections and rulings thereon

. g

. Proposed findings, requested orders, and exceptions. h

. The transcript of the hearing prepared for the person presiding at the hearing, including all testimony taken , and any written statements, exhibits, reports, memoranda, documents, or other information or evidence considered before final disposition of proceedings

. i. Any recommended or proposed order, recommended or proposed findings of fact and conclusions of law, final order,final findings offact and conclusions of law, or findings offact and conclusions of law or orders on reconsideration

. j. Any information considered pursuant to section 28-32-25

. k

. Matters placed on the record after an ex parte communication

. 5

. Except to the extent that this chapter or another statute provides otherwise, the agency record constitutes the exclusive basis for administrative agency action and judicial review ofan administrative agency action

. 6

. The record on review of agency rulemaking action, as applicable, may consist of only the following : a. All agency notices concerning proposed rulemaking. b

. A copy ofthe proposed rule upon which written and oral submissions were made

. c

. A copy ofthe rule as submitted for publication

. d

. Any opinion letters by the attorney general as to a rule's legality or the legality of the agency's rulemaking action.

Page No

. 22e

. A copy ofany interim rule and the agency's findings and statement ofthe reasons for an interim rule

. f

. The regulatory analysis of a proposed rule

. g

. The transcript of any oral hearing on a proposed rule. h

. All written submissions made to the agency on a proposed rule. i. Any staff memoranda or data prepared for agency consideration in regard to the proposed rule. j

. Any other documentthat the agency believes is relevant to the appeal. k. Any other document that is not privileged and which is a public record that the appellant requests the agency to include in the record , if relevant to the appeal. 7

. Ifthe notice of appeal specifies that no exception or objection is made to the agency's findings offact, and that the appeal is concerned only with the agency's conclusions of law based on the facts found by it, the agency may submit an abstract of the record along with such portions of the record as the agency deems necessary, to be supplemented by those portions of the record requested to be submitted by the appellant or by the other party when the agency is appealing. 8

. The court may permit amendments or additions to the record filed by the administrative agency in order to complete the record

. 28-32-45. Consideration of additional or excluded evidence. If an application for leave to offer additional testimony, written statements, documents, exhibits, or other evidence is made to the court in which an appeal from a determination of an administrative agency is pending, and it is shown to the satisfaction of the court that the additional evidence is relevant and material and that there were reasonable grounds for the failure to offer the evidence in the hearing or proceeding, or that the evidence is relevant and material to the issues involved and was rejected or excluded by the agency, the court may order that the additional evidence be taken , heard, and considered by the agency on terms and conditions as the court may deem proper. After considering the additional evidence, the administrative agency may amend or reject its findings offact, conclusions of law, and order and shall file with the court a transcript of the additional evidence with its new or amended findings offact, conclusions of law, and order, if any,which constitute a part ofthe record with the court.
28-32-46. Scope of and procedure on appeal from determination of administrative agency. A judge of the district court must review an appeal from the determination of an administrative agency based only on the record filed with the court

.After a hearing, the filing of briefs, or other disposition of the matter as the judge may reasonably require, the court must affirm the order ofthe agency unless it finds that any ofthe following are present 1

. The order is not in accordance with the law. 2

. The order is in violation ofthe constitutional rights ofthe appellant. 3

. The provisions ofthis chapter have not been complied with in the proceedings before the agency. 4. The rules or procedure ofthe agency have not afforded the appellant a fair hearing

. 5

. The findings offact made by the agency are not supported by a preponderance ofthe evidence. 6. The conclusions of law and order of the agency are not supported by its findings of fact. 7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant. 8. The conclusions of law and order ofthe agency do not sufficiently explain the agency's rationale for not adopting any contrary recommendations by a hearing officer or an administrative lawjudge. If the order of the agency is not affirmed by the court, it must be modified or reversed, and the case shall be remanded to the agency for disposition in accordance with the order ofthe court

.

Page No. 2328-32-47. Scope of and procedure on appeal from agency rulemaking. A judge of the district court shall review an appeal from an administrative agency's rulemaking action based only on the record filed with the court. If an appellant requests documents to be included in the record but the agency does not include them, the court, upon application by the appellant, may compel their inclusion

. After a hearing, the filing of briefs, or other disposition of the matter as the judge may reasonably require, the court shall affirm the agency's rulemaking action unless it finds that any ofthe following are present: 1. The provisions of this chapter have not been substantially complied with in the agency's rulemaking actions. 2. A rule published as a result of the rulemaking action appealed is unconstitutional on the face ofthe language adopted

. 3

. A rule published as a result of the rulemaking action appealed is beyond the scope of the agency's authority to adopt. 4

. A rule published as a result of the rulemaking action appealed is on the face of the language adopted an arbitrary or capricious application of authority granted by statute

. If the rulemaking action of the agency is not affirmed by the court, it must be remanded to the agency for disposition in accordance with the order of the court, or the rule or a portion of the rule resulting from the rulemaking action of the agency must be declared invalid for reasons stated by the court

. 28-32-48. Appeal -Stay of proceedings. An appeal from an order or the rulemaking action of an administrative agency does not stay the enforcement of the order or the effect of a published rule unless the court to which the appeal is taken , upon application and after a hearing or the submission of briefs, orders a stay. The court may impose terms and conditions for a stay of the enforcement of the order or for a stay in the effect of a published rule. This section does not prohibit the operation of an automatic stay upon the enforcement ofan administrative order as may be required by another statute.
28-32-49. Review in supreme court. The judgment of the district court in an appeal from an order or rulemaking action of an administrative agency may be reviewed in the supreme court on appeal in the same manner as 'provided in section 28-32-46 or 28-32-47, except that the appeal to the supreme court must be taken within sixty days after the service of the notice of entry ofjudgment in the district court. Any party of record, including the agency, may take an appeal from the final judgment of the district court to the supreme court. Ifan appeal from the judgment ofthe district court is taken by an agency, the agency may not be required to pay a docket fee or file a bond for costs or equivalent security.
28-32-50. Actions against administrative agencies -Attorney's fees and costs. 1

. In any civil judicial proceeding involving as adverse parties an administrative agency and a party not an administrative agency or an agent of an administrative agency, the court must award the party not an administrative agency reasonable attorney's fees and costs if the court finds in favor of that party and, in the case of a final agency order, determines that the administrative agency acted without substantial justification. 2. This section applies to an administrative or civil judicial proceeding brought by a party not an administrative agency against an administrative agency for judicial review of a final agency order, or for judicial review pursuant to this chapter of the legality of agency rulemaking action or a rule adopted by an agency as a result ofthe rulemaking action being appealed. 3

. Any attorney's fees and costs awarded pursuant to this section must be paid from funds available to the administrative agency the final order, rulemaking action , or rule ofwhich was reviewed by the court. The court may withhold all or part ofthe attorney's fees from any award ifthe court finds the administrative agency's action, in the case of a final agency order, was substantially justified or that special circumstances exist which make the award ofall or a portion

. ofthe attorney's fees unjust.

Page No. 244

. This section does not alter the rights of a party to collect any fees under other applicable law. 5. In any civil judicial proceeding involving adverse parties to an appeal or enforcement action involving an environmental permit issued under chapter 23-20.3, 23-25, 23-29, or 61-28 in which two or more ofthe adverse parties are not an administrative agency or an agent of an administrative agency, the court may award the prevailing nonagency party reasonable attorney's fees and costs ifthe court finds in favor ofthat party and determines that the nonprevailing nonagency party acted without substantial justification, or on the basis of claims or allegations that are factually unsupported

. The court shall award reasonable attorney's fees and costs ifthe court determines that the nonprevailing nonagency party's claims or allegations are frivolous as provided in section 28-26-01. If the appeal or civil judicial proceeding covered by this subsection involves multiple claims or allegations, the court may apportion attorney's fees and costs in proportion to the time reasonably spent by a prevailing party relating to claims pursued by the nonprevailing party that were frivolous, factually unsupported, or without substantial justification

. 28-32-51. Witnesses -Immunity. If any person objects to testifying or producing evidence, documentary or otherwise, at any proceeding before an administrative agency, claiming a privilege against self-incrimination, but is directed to testify or produce evidence pursuant to the written approval of the attorney general, that person must comply with the direction but no testimony or evidence compelled from that person, after a valid claim of privilege against self-incrimination has been made, may be used against that person in any criminal proceeding subjecting that person to a penalty or forfeiture

. No person testifying at any proceeding before an administrative agency may be exempted from prosecution and punishment for perjury or giving a false statement, or for contempt committed in answering, or failing to answer, or in producing, or in failing to produce, evidence pursuant to direction given under this section.
28-32-52. Elected official authority. This chapter does not prohibit an elected official from presiding at that agency's cases, nor from deciding cases within that agency'sjurisdiction.

Page No

. 25

### Chapter 33-15-01 33-15-02 33-15-03 33-15-04 33-15-05 33-15-06 33-15-07 33-15-08
33-15-09
33-15-10 33-15-11 33-15-12 33-15-13 33-15-14
33-15-15 33-15-16 33-15-17 33-15-18 33-15-19 33-15-20 33-15-21 33-15-22
33-15-23 33-15-24 33-15-25

Section 33-15-01-01 33-15-01-02 33-15-01-03 33-15-01-04 33-15-01-05 33-15-01-06 33-15-01-07 33-15-01-08 33-15-01-09 33-15-01-10 

### ARTICLE 33-15
AIR POLLUTION CONTROL

General Provisions Ambient Air Quality Standards Restriction of Emission ofVisible Air Contaminants Open Burning Restrictions Emissions of Particulate Matter Restricted Emissions of Sulfur Compounds Restricted Control of Organic Compounds Emissions Control of Air Pollution From Vehicles and Other Internal Combustion Engines Emission of Certain Settleable Acids and Alkaline Substances Restricted [Repealed] Control of Pesticides Prevention ofAir Pollution Emergency Episodes Standards of Performance for New Stationary Sources Emission Standards for Hazardous Air Pollutants Designated Air Contaminant Sources, Permit to Construct, Minor Source Permit to Operate, Title V Permit to Operate Prevention of Significant Deterioration ofAir Quality Restriction of Odorous Air Contaminants Restriction of Fugitive Emissions Stack Heights Visibility Protection Control of Emissions From Oil and Gas Well Production Facilities Acid Rain Program Emissions Standards for Hazardous Air Pollutants for Source Categories Fees Standards for Lead-Based Paint Activities Regional Haze Requirements 

### CHAPTER 33-15-01 GENERAL PROVISIONS

Purpose Scope Authority Definitions Abbreviations Entry Onto Premises

- Authority Variances Circumvention Severability Land Use Plans and Zoning Regulations
1 4/2011

### 33-15-01-11 33-15-01-12 33-15-01-13
33-15-01-14 33-15-01-15 33-15-01-16 33-15-01-17 33-1 5-01-18 [Reserved] Measurement of Emissions ofAir Contaminants Shutdown and Malfunction of an Installation

- Requirement for Notification Time Schedule for Compliance Prohibition ofAir Pollution Confidentiality of Records Enforcement Compliance Certifications
33-15-01-01. Purpose. It is the purpose ofthese air quality standards and emission regulations to state such requirements as shall be required to achieve and maintain the best air quality possible, consistentwith the best available control technology,to protect human health ,welfare, and property to prevent injuryto plant and animal life, to promote the economic and social development ofthis state, to foster the comfort and convenience for the people, and to facilitate the enjoyment of the natural attractions ofthis state. General Authority: NDCC 23-25-03 Law Implemented: NDCC 23-25-01.1
33-15-01-02. Scope. These air quality standards and emission regulations apply to any source or emission existing partially or wholly within North Dakota.
General Authority: NDCC 23-25-03 Law Implemented: NDCC 23-25-03
33-15-01-03. Authority. The North Dakota state department of health has been authorized to provide and administerthis article underthe provisions of North Dakota Century Code chapter 23-25. History: Amended effective September 1 , 1997. General Authority: NDCC 23-25-02 Law Implemented: NDCC 23-25-02
33-15-01-04. Definitions. As used in this article, except as otherwise specifically provided or when the context indicates otherwise, the following words shall have the meanings ascribed to them in this section : 1. "Act" means North Dakota Century Code chapter 23-25.
2. "Air contaminant" means any solid , liquid,gas, or odorous substance or any combination thereof emitted to the ambient air

. 3

. "Air pollution" means the presence in the outdoor atmosphere ofone or more air contaminants in such quantities and duration as is or may be injurious to human health ,welfare, or property or animal or plant life, or which unreasonably interferes with the enjoyment of life or property

.

4/2011 2

### 4. "Ambient air" means the surrounding outside air.
5

. "ASME" means the American society of mechanical engineers.
6

. "Coal conversion facility" means any ofthe following :

a. An electrical generating plant, and all additions thereto, which processes or converts coal from its natural form into electrical power and which has at least one single electrical energy generation unit with a generator nameplate capacity oftwenty-five megawatts or more. b. A plant,and all additions thereto,which processes or converts coal from its natural form into a form substantially different in chemical or physical properties, including coal gasification ,coal liquefaction , and the manufacture offertilizer and other products and which uses or is designed to use over five hundred thousand tons of coal per year.

c. A coal beneficiation plant, and all additions thereto,which improve the physical,environmental,orcombustion qualities ofcoal and are built in conjunction with a facility defined in subdivision a or b

. 7. "Control equipment" means any device or contrivance which prevents or reduces emissions.
8

. "Department" means the North Dakota state department of health.
9

. "Emission" means a release ofair contaminants into the ambient air.
10

. "Excess emissions" means the release of an air contaminant into the ambient air in excess of an applicable emission limit or emission standard specified in this article or a permit issued pursuant to this article.
11

. "Existing" means equipment, machines,devices,articles,contrivances, or installations which are in being on or before July 1 , 1970, unless specifically designated within this article; except that any existing equipment, machine, device, contrivance, or installation which is altered, repaired , or rebuilt after July 1 , 1970, must be reclassified as "new" if such alteration , rebuilding , or repair results in the emission of an additional or greater amount of air contaminants

. 12. "Federally enforceable" means all limitations and conditions which are enforceable by the administrator of the United States environmental protection agency, including those requirements developed pursuant to title 40, Code of Federal Regulations, parts 60 and 61 , requirements within any applicable state implementation plan, any permit requirements established pursuant to title 40, Code of 

### 3 4/2011

### Federal Regulations, 52.21 or under regulations approved pursuant to title 40, Code of Federal Regulations, part 51 , subpart I, including operating permits issued under a United States environmental protection agency-approved program that is incorporated into the state implementation plan and expressly requires adherence to any permit is"

sued under such program. 13

. "Fuel burning equipment" means any furnace, boiler apparatus, stack, or appurtenances thereto used in the process of burning fuel or other combustible materialforthe primary purpose ofproducing heat or power by indirect heat transfer.
14. "Fugitive emissions" means solid airborne particulate matter, fumes, gases,mist,smoke,odorous matter,vapors,orany combination thereof generated incidental to an operation process procedure or emitted from any source other than through a well-defined stack or chimney

. 15. "Garbage" means putrescible animal and vegetable wastes resulting from the handling, preparation , cooking, and consumption of food , including wastes from markets, storage facilities, handling, and sale of produce and other food products.
16. "Hazardous waste" has the same meaning as given by chapter 33-24-02.
17. "Heat input" means the aggregate heat content of all fuels whose products of combustion pass through a stack or stacks. The heat input value to be used shall be the equipment manufacturer's or designer's guaranteed maximum input,whichever is greater.
18. "Incinerator" means any article, machine, equipment, device, contrivance, structure, or part ofa structure used for the destruction of garbage, rubbish ,or otherwastes by burning or to process salvageable material by burning.
19. "Industrial waste" means solid waste that is not a hazardous waste regulated under North Dakota Century Code chapter 23-20.3, generated from the combustion or gasification of municipal waste and from industrial and manufacturing processes. The term does not include municipal waste or special waste.
20. "lnhalable particulate matter" means particulate matter with an aerodynamic diameter less than or equal to a nominal ten micrometers.
21. "Installation" means any property, real or personal, including, but not limited to, processing equipment, manufacturing equipment, fuel burning equipment, incinerators, or any other equipment, or construction, capable ofcreating or causing emissions.

4/2011 4

### 22

. "Multiple chamber incinerator" means any article, machine,equipment, contrivance, structure, or part of a structure used to burn combustible refuse, consisting oftwo or more refractory lined combustion furnaces in series physically separated by refractorywalls, interconnected by gas passage ports or ducts and employing adequate parameters necessary for maximum combustion ofthe material to be burned.
23. "Municipal waste" means solid waste that includes garbage, refuse, and trash generated by households, motels, hotels, and recreation facilities, by public and private facilities, and by commercial ,wholesale, and private and retail businesses. The term does not include special waste or industrial waste.
24. "New" means equipment, machines, devices, articles, contrivances, or installations built or installed on or afterJuly 1 , 1970, unless specifically designated within this article, and installations existing at said stated time which are later altered, repaired, or rebuilt and result in the emission ofan additional or greater amount ofair contaminants.
25. "Opacity" means the degree to which emissions reduce the transmission of light and obscure the view of an object in the background

. 26. "Open burning" means the burning of any matter in such a manner that the products of combustion resulting from the burning are emitted directly into the ambient airwithout passing through an adequate stack, duct, or chimney

. 27. "Particulate matter" means any airborne finely divided solid or liquid material with an aerodynamic diameter smaller than one hundred micrometers

. 28. "Particulate matter emissions" means all finely divided solid or liquid material, other than uncombined water, emitted to the ambient air.
29

. "Person" means any individual, corporation, partnership, firm , association , trust, estate, public or private institution , group, agency, political subdivision ofthis state, any other state or political subdivision or agency thereof and any legal successor, representative agent, or agency of the foregoing.
30. "Pesticide" includes:

a. Any agent, substance, or mixture of substances intended to prevent,destroy, control , or mitigate any insect, rodent, nematode, predatory animal, snail, slug , bacterium, weed, and any other form of plant or animal life, fungus, or virus, that may infect or be detrimental to persons, vegetation , crops, animals, structures, or households or be present in any environment or which the
5 

### 4/2011

### department may declare to be a pest,except those bacteria,fungi, protozoa, or viruses on or in living man or other animals; b. Any agent, substance, or mixture of substances intended to be used as a plant regulator, defoliant, or desiccant; and

c. Any other similar substance so designated by the department, including herbicides, insecticides, fungicides, nematocides, molluscacides, rodenticides, lampreycides, plant regulators, gametocides, post-harvest decay preventatives, and antioxidants.
31. "Petroleum refinery" means an installation that is engaged in producing gasoline, kerosene, distillate fuel oils, residual fuel oils, lubricants, or other products through distillation of petroleum , or through the redistillation ,cracking ,or reforming ofunfinished petroleum derivatives.
32. "PM2.5" 

### means particulate matter with an aerodynamic diameter less than or equal to a nominal two and five-tenths micrometers.
33. "PM 10" 

### means particulate matter with an aerodynamic diameter less than or equal to a nominal ten micrometers.
34. "PM 10 

### emissions" means finely divided solid or liquid material with an aerodynamic diameter less than or equal to a nominal ten micrometers emitted to the ambient air.
35

. "Pipeline quality natural gas" means natural gas that contains two grains,or less, ofsulfur per one hundred standard cubicfeet [2.83 cubic meters].
36. "Premises" means any property, piece ofland or real estate,or building.
37. "Process weight" means the total weight ofall materials introduced into any specific process which may cause emissions

. Solid fuels charged will be considered as part ofthe process weight, but liquid and gaseous fuels and combustion air will not.
38. "Process weight rate" means the rate established as follows:

a. Forcontinuous or longrun steady state operations,the total process weight for the entire period ofcontinuous operation or for a typical portion thereof, divided by the number of hours of such period or portion thereof.
b

. For cyclical or batch operations, the total process weight for a period that covers a complete operation or an integral number of cycles, divided by the hours of actual process operation during such a period. If the nature of any process or operation or the design of any equipment is such as to permit more than one 4/2011 6

### interpretation ofthis definition,the interpretation that results in the minimum value for allowable emission shall apply.
39. "Radioactive waste" means solid waste containing radioactive material and subject to the requirements of article 33-10.
40. "Refuse" means any municipal waste, trade waste, rubbish , or garbage, exclusive of industrial waste, special waste, radioactive waste, hazardous waste, and infectious waste

. 41. "Rubbish" means nonputrescible solid wastes consisting of both combustible and noncombustible wastes. Combustible rubbish includes paper, rags, cartons, wood , furniture, rubber, plastics, yard trimmings, leaves, and similar materials. Noncombustible rubbish includes glass, crockery, cans, dust, metal furniture, and like materials which will not burn at ordinary incinerator temperatures (one thousand six hundred to one thousand eight hundred degrees Fahrenheit [1144 degrees Kelvin to 1255 degrees Kelvin]).
42. "Salvage operation" means any operation conducted in whole or in part for the salvaging or reclaiming ofany product or material.
43

. "Smoke" means small gasborne particles resulting from incomplete combustion , consisting predominantly, but not exclusively, of carbon , ash, and other combustible material,thatform avisible plume in the air.
44. "Source" means any property, real or personal, or person contributing to air pollution.
45. "Source operation" means the last operation preceding emission which operation:

a. Results in the separation of the air contaminant from the process materials or in the conversion of the process materials into air contaminants, as in the case ofcombustion fuel ; and
b. Is not an air pollution abatement operation

. 46

. "Special waste" means solid waste that is not a hazardous waste regulated under North Dakota Century Gode chapter 23-20

.3 and includes waste generated from energy conversion facilities; waste from crude oil and natural gas exploration and production; waste from mineral and or mining, beneficiation, and extraction ; and waste generated by surface coal mining operations. The term does not include municipal waste or industrial waste

. 47. "Stack orchimney" means anyflue,conduit,orductarranged to conduct emissions

.



### 7 4/2011

### 48. "Standard conditions" means a dry gas temperature of sixty-eight degrees Fahrenheit [293 degrees Kelvin] and a gas pressure of fourteen and seven-tenths pounds per square inch absolute [1 01.3 kilopascals].
49. "Submerged fill pipe" means any fill pipe the discharge opening of which is entirely submerged when the liquid level is six inches [15.24 centimeters] above the bottom of the tank; or when applied to a tank which is loaded from the side, means anyfill pipethe discharge opening ofwhich is entirely submerged when the liquid level is one and one-half times the fill pipe diameter in inches [centimeters] above the bottom of the tank.
50. "Trade waste" means solid, liquid, or gaseous waste material resulting from construction or the conduct of any business, trade, or industry, or any demolition operation, including wood ,wood containing preservatives, plastics, cartons, grease, oil, chemicals, and cinders.
51. "Trash" means refuse commonly generated by food warehouses, wholesalers, and retailers which is comprised only of nonrecyclable paper, paper products, cartons, cardboard , wood, wood scraps, and floor sweepings and other similar materials

. Trash may not contain more than five percent by volume of each of the following : plastics, animal and vegetable materials, or rubber and rubber scraps. Trash must be free of grease, oil, pesticides, yard waste, scrap tires, infectious waste, and similar substances.
52. "Volatile organic compounds" means the definition of volatile organic compounds in 40 Code of Federal Regulations 51

.1 OO(s) as it exists on July 2, 2010,which is incorporated by reference.
53

. "Waste classification" means the seven classifications of waste as defined by the incinerator institute ofAmerica and American society of mechanical engineers

. History: 

### Amended effective October 1 , 1987; January 1 , 1989; June 1 , 1990; June 1 , 1992; March 1 , 1994; December 1 , 1994; August 1 , 1995; January 1 , 1996; September 1 , 1997; September 1 , 1998;June 1 , 2001 ; March 1 , 2003; January 1 , 2007; April 1 , 2009; April1 , 2011. General Authority: 

### NDCC 23-25-03 Law Implemented: 

### NDCC 23-25-03
33-15-01-05. Abbreviations. 

### The abbreviations used in this article have the following meanings:

A

- ampere A.S.T.M.

- American Society for Testing and Materials Btu

- British thermal unit
4/2011 

### 8

# oc

- degree Celsius (centigrade) cal


### - calorie CdS



### - cadmium sulfide cfm


### - cubic feet per minute CFR



### - code of federal regulations
cu ft


### - cubic feet 

# co

- carbon monoxide C02 

### - carbon dioxide dcf


### - dry cubic feet dcm



### - dry cubic meter dscf


### - dry cubic feet at standard conditions dscm



### - dry cubic meter at standard conditions eq 

### - equivalents O

F



### - degree Fahrenheit ft


### - feet g 

### - gram gal



### - gallon g eq 

### - gram equivalents gr 

### - grain hr



### - hour HCI



### - hydrochloric acid Hg



### - mercury H2

### 0


### - water H2

### S



### - hydrogen sulfide H2

### S04 

### - sulfuric acid Hz hertz in. inch joule O

K



### - degree Kelvin k



### - 1 ,000 kg



### - kilogram I



### - liter lpm



### - liter per minute lb



### - pound
m 

### - meter m3



### - cubic meter


### 9 4/2011

### meq min mg Mg ml
mm mol mol.wt. mV 

### N2 N ng nm 

### NO 

### N02 

### NOX 

### 02 Pa 

### PM PM2

.5
PM1o ppb ppm psia psig 

## O

R

s-sec scf seth
scm scmh 

## so2 

## so3 

## sox sq ft



### 4/2011 - milliequivalent minute

- milligram

- 1

## o-3 

### gram

- megagram - 106 

### gram

- milliliter

- 1

## o3 

### liter

- millimeter

- 1

## o-3 

### meter

- mole

- molecular weight

- millivolt

- nitrogen

- newton

- nanogram - 

### 1

## o9 

### gram

- nanometer
- 

### 1

## o-9 

### meter

- nitric oxide

- nitrogen dioxide

- nitrogen oxides

- oxygen

- pascal particulate matter

- particulate matter with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers

- particulate matterwith an aerodynamic**diameter~** 

### 10 micrometers

- parts per billion

- parts per million pounds per square inch absolute pounds per square inch gauge

- degree Rankine

- second

- cubic feet at standard conditions

- cubic feet per hour at standard conditions

- cubic meters at standard conditions

- cubic meters per hour at standard conditions

- sulfur dioxide

- sulfur trioxide

- sulfur oxides

- square feet

10

### std

- at standard conditions TSP

- total suspended particulate j.Jg microgram - 1

## o6 

### gram V - 

### volt W

- watt 

## n - ohm History: 

### Amended effective January 1 , 1989; January 1 ,2007;Apri11 , 2009. General Authority: 

### NDCC 23-25-03 Law Implemented: 

### NDCC 23-25-03
33-15-01-06. Entry onto premises - Authority. 

### Entry onto premises and onsite inspection shall be made pursuant to North Dakota Century Code section 23-25-05.
General Authority: 

### NDCC 23-25-03 Law Implemented: 

### NDCC 23-25-05
33-15-01-07. Variances.


### 1

. Where upon written application of the responsible person or persons the department finds that by reason of exceptional circumstances strict conformity with any provisions of this article would cause undue hardship, would be unreasonable, impractical, or not feasible under the circumstances, the department may permit a variance from this article upon such conditions and within such time limitations as it may prescribe for prevention , control , or abatement of air pollution in harmony with the intent ofthe state and any applicable federal laws.
2

. No variance may permit or authorize the creation or continuation of a public nuisance, or a danger to public health or safety

. History: 

### Amended effective June 1 , 1990

. General Authority: 

### NDCC 23-25-03 Law Implemented: 

### NDCC 23-25-03
33-15-01-08. Circumvention. 

### No person shall cause or permit the installation or use of any device or a· ny means which conceals or dilutes an emission ofair contaminant which would otherwise violate this article. History: 

### Amended effective June 1 , 1990. General Authority: 

### NDCC 23-25-03 Law Implemented: 

### NDCC 23-25-03
33-15-01-09. Severability. 

### If any provision ofthis article or the application thereof to any person or circumstances is held to be invalid, such invalidity shall not affect other provisions or application of any other part ofthis article which can 11 4/2011

### be given effect without the invalid provision or application , and to this end the provisions of this article and the various applications thereof are declared to be severable.


### General Authority: NDCC 23-25-03 

### Law Implemented: NDCC 23-25-03


### 33-15-01-10. Land use plans and zoning regulations.
1. 

### Planning agency land use plans.

a. The department will provide to planning agencies, for use in preparing land use plans, information concerning : (1) 

### Air quality. 

## (2) Air pollutant emissions. (3) Air pollutant meteorology. (4) Air quality goals

. 

## (5) Air pollution effects.
b

. The department will review all land use plans and prepare recommendations for consideration in the plan adoption process.
2. 

### Zoning agency regulations.

a. The department will provide to zoning control agencies, for use in preparing regulations, information concerning: (1) 

### Air quality

. (2) Air pollutant emissions. (3) 

### Air pollution meteorology. 

## (4) Air quality goals. (5) Air pollution effects

. b. The department will review all zoning regulations and prepare recommendations for consideration in the regulation adoption process. 

### General Authority: NDCC 23-25-03 

### Law Implemented: NDCC 23-25-03

4/2011 12

### 33-15-01-11. [Reserved]
33-15-01-12. Measurement ofemissions of air contaminants.


### 1. Sampling and testing. 

### The department may reasonably require any person responsible for·emission of air contaminants to make or have made tests, at a reasonable time or interval, to determine the emission of air contaminants from any source, for the purpose of determining whether the person is in violation of any standard under this article or to satisfy other requirements under the North Dakota Century Code chapter 23-25. All tests shall be made and the results calculated in accordance with test procedures approved or specified by the department. All tests shall be conducted by reputable, qualified personnel. The department shall be given a copy ofthe test results in writing and signed by the person responsible for the tests. The owner or operator of a source shall notify the department using forms supplied by the department, or its equivalent, at least thirty calendar days in advance ofany tests ofemissions ofair contaminants required by the department. Advanced notification for all other testing will be consistent with the requirements ofthe appropriate regulations but in no case will be less than thirty calendar days. Ifthe owner or operator of a source is unable to conduct the performance test on the scheduled date, the owner or operator of a source shall notify the department as soon as practicable when conditions warrant and shall coordinate a new test date with the department.
Failure to give the proper notification may prevent the department from observing the test. If the department is unable to observe the test because of improper notification,the test results may be rejected.
2. The department may make tests. 

### The department may conduct tests ofemissions of air contaminants from any source. Upon request ofthe department, the person responsible for the source to be tested shall provide necessary holes in stacks or ducts and such other safe and proper sampling and testing facilities, exclusive of instruments and sensing devices as may be necessary for proper determination of the emission of air contaminants. History: 

### Amended effective June 1 , 2001. General Authority: 

### NDCC 23-25-03, 23-25-04 Law Implemented: 

### NDCC 23-25-03, 23-25-04
33-15-01-13. Shutdown and malfunction of an installation

- Requirement for notification.


### 1. Maintenance shutdowns. 

### In the case of shutdown of air pollution control equipment for necessary scheduled maintenance, the intent to shut down such equipment shall be reported to the department at least
13 4/2011

### twenty-four hours prior to the planned shutdown provided that the air contaminating source will be operated while the control equipment is not in service. Such prior notice shall include the following :

a. Identification ofthe specificfacility to be taken out ofservice as well as its location and permit number.
b. The expected length oftime thatthe air pollution control equipment will be out of service.

c. The nature and estimated quantity of emissions of air pollutants likely to be emitted during the shutdown period.
d. Measures such as the use ofoff-shift labor and equipment that will be taken to minimize the length ofthe shutdown period.

e. The reasons that itwould be impossible or impractical to shut down the source operation during the maintenance period

. f. Nothing in this subsection shall in any manner be construed as authorizing or legalizing the emission ofair contaminants in excess ofthe rate allowed by this article or a permit issued pursuantto this article.
2. Malfunctions.



### a. When a malfunction in any installation occurs that can be expected to last longerthan twenty-four hours and cause the emission ofair contaminants in violation ofthis article orother applicable rules and regulations,the person responsible for such installation shall notify the department of such malfunction as soon as possible during normal working hours. The notification must contain a statement giving all pertinent facts, including the estimated duration of the breakdown

. The department shall be notified when the condition causing the malfunction has been corrected.
b

. Immediate notification to the department is required for any malfunction that would threaten health or welfare, or pose an imminent danger. During normal working hours the department can be contacted at 701-328-5188. After hours the department can be contacted through the twenty-four-hour state radio emergency number 1-800-472-2121. If calling from out of state, the twenty-four-hour number is 701-328-9921.

c

. Unavoidable malfunction. The owner or operator of a source who believes any excess emissions resulted from an unavoidable malfunction shall submit a written report to the department which includes evidence that:
4/2011 14

### (1) 

### The excess em1ss1ons were caused by a sudden, unavoidable breakdown of technology that was beyond the reasonable control ofthe owner or operator. (2) The excess emissions could not have been avoided by better operation and maintenance, did not stem from an activity or event that could have been foreseen and avoided or planned for. (3) To the extent practicable, the source maintained and operated the air pollution control equipment and process equipment in a manner consistent with good practice for minimizing emissions, including minimizing any bypass emissions. (4) Any necessary repairs were made as quickly as practicable, using off-shift labor and overtime as needed and possible. (5) All practicable steps were taken to minimize the potential impact ofthe excess emissions on ambient air quality. (6) The excess emissions are not part of a recurring pattern that may have been caused by inadequate operation or maintenance or inadequate design of the malfunctioning equipment.
The report shall be submitted within thirty days of the end of the calendar quarter in which the malfunction occurred or within thirty days ofa written request by the department,whichever is sooner. The burden of proof is on the owner or operator of the source to provide sufficient information to demonstrate that an unavoidable equipment malfunction occurred. The department may elect not to pursue enforcement action after considering whether excess emissions resulted from an unavoidable equipment malfunction. The department will evaluate, on a case-by-case basis, the information submitted by the owner or operator to determine whether to pursue enforcement action.
3

. Continuous emission monitoring system failures. 

### When a failure of a continuous emission monitoring system occurs, an alternative method for measuring or estimating emissions must be undertaken as soon as possible. Th.e owner or operator of a source that uses an alternative method shall have the burden of demonstrating that the



### 15 4/2011

### method is accurate

. Timely repair of the emission monitoring system must be made. History: Amended effective October 1 , 1987; January 1 , 1989; June 1 , 1992; September 1 , 1997; January 1 , 2007; April 1 , 2009. General Authority: NDCC 23-25-03, 23-25-04 Law Implemented: NDCC 23-25-03, 23-25-04
33-15-01-14. Time schedule for compliance. Except as otherwise specified, compliance with the provisions of this article shall be according to the following time schedule: 1

. New installations. Every new installation shall comply as ofgoing into continuous routine operation for its intended purpose. 2. Existing installations. Every existing installation shall be in compliance as ofJuly 1 , 1970, unless the owner or person responsible for the operation of the installation shall have submitted to the department in a form and manner satisfactory to it, a program and schedule for achieving compliance, such program and schedule to contain a date on or before which full compliance will be attained , and such other information as the department may require

. If approved by the department, such date will be the date on which the person shall comply

. The department may require persons submitting such program to submit subsequent periodic reports on progress in achieving compliance

. General Authority: NDCC 23-25-03, 23-25-04.1 Law Implemented: NDCC 23

-25-03, 23-25-04.1
33-15-01-15. Prohibition of air pollution.
1

. No person shall permit or cause air pollution , as defined in section 33-15-01-04.
2

. Nothing in any other part of this article concerning emission of air contaminants or any other regulation relating to air pollution shall in any manner be construed as authorizing or legalizing the creation or maintenance of air pollution. History: Amended effective June 1 , 1990; September 1 , 1997; June 1 ,2001. General Authority: NDCC 23-25-03, 23-25-04.1 Law Implemented: NDCC 23-25-03, 23-25-04.1
33-15-01-16. Confidentiality of records.
1. Public inspection. Any record , report, or information obtained or submitted pursuant to this article will be available to the public for inspection and copying

. during normal working hours unless the
4/2011 16

### department certifies that the information is confidential. Anyone requesting department assistance in collecting , copying, certifying , or mailing public information must tender, in advance, the reasonable cost of those services.
2. Information submitted as trade secrets. 

### The department may certify records, reports, or information, or particular part thereof, other than emission data, as confidential upon a showing that the information would, if made public, divulge methods or processes entitled to protection as trade secrets. Any person submitting trade secret information must present the information to the department in a sealed envelope marked "CONFIDENTIAL". Each page of any document claimed confidential must be clearly marked with the word "CONFIDENTIAL". The submission must contain two parts:

a. The material claimed to contain trade secret information; and
b. A request for confidential treatment including: (1) All information for which no claim is being made; (2) An affidavit stating how and why the information fulfills the conditions ofconfidentiality under this subsection; and (3) An index to and summary ofthe information submitted which is suitable for release to the public

. 3. Accepted trade secret claims. 

### All information which meets the test of subsection 2 must be marked by the department as "ACCEPTED" and protected as confidential information

. 4. Rejected trade secret claims. 

### If the department determines that information submitted pursuant to subsection 2 does not meet the criteria of that subsection for confidential treatment, the department shall promptly notify the person submitting the information of that determination. The department shall in that event give that person at least twenty days in which to:

a. Accept the determination ofthe department;
b. Request that the information be returned to the person;

c. Further justify the contention that the information deserves protection as a trade secret; or d. Further limit the scope of information for which a claim of confidentiality is made.



### 17 4/2011

### If the person who submitted the information fails within the time period allowed by the department to demonstrate satisfactorily to the department that the information in the form presented qualifies for confidential treatment,the department shall promptly notify that person ofthat determination

. Ifthe person submitting the information did not request that it be returned , the department shall mark the information "REJECTED" and treat it as public information

. The department's action on a reconsideration constitutes final agency action for purposes of judicial review. Appeal of this action must be to an appropriate district court

. 5. Appeal of nondisclosure claims. 

### Any person who identifies and tenders the reasonable cost of collecting , copying , certifying, and mailing particular information held by the department under subsection 2 may file with the department a petition for reconsideration stating how and why the public's interest would be better served by the release of the requested information than by its retention as confidential by the department. The department shall then reconsider the confidential status ofthe information. The department action on a petition for reconsideration constitutes final agency action for purposes of judicial review

. Appeal of the department's action must be to an appropriate district court

. 6. Retention of confidential information. 

### All information which is accepted by the department as confidential must be stored in locked filing cabinets

. Only those personnel of the department specifically designated by the department shall have access to the information contained therein

. The department may not designate any person to have access to confidential information unless that person requires such access in order to carry out that person's responsibilities and duties. No person may disclose any confidential information except in accordance with the provisions ofthis section. No copies may be made except as strictly necessary for internal department use or as specified in subsection 8.
7

. Maintenance of log. 

### Persons designated by the department to maintain confidential files as herein provided shall maintain a log showing the persons who have had access to the confidential files and the date of such access. 8

. Transmittals of confidential information. 

### As necessary, confidential information acquired by the department under the provisions of the act, or this article, may be transmitted to such federal , state, or local agencies, when necessary for purposes of administration of any federal , state, or local air pollution control laws, which make an adequate showing of need to the department, provided that such transmittal is made under a continuing assurance ofconfidentiality

.



### 4/2011 18

### 9. Relationship to issuance of permits. 

### The department may not process any application for a permitto construct or operate pursuantto chapter 33-15-14 or 33-15-15 until final agency action on confidential trade secret claims has been completed. History: 

### Effective October 1 , 1987. General Authority: 

### NDCC 23-25-03 Law Implemented: 

### NDCC 23-25-03, 23-25-06
33-15-01-17. Enforcement.


### 1. Enforcement action will be consistent with procedures as approved by the United States environmental protection agency. 2. Notwithstanding any other provision in this article,any credible evidence may be used for the purpose of establishing whether a person has violated or is in violation ofthis article

.
a. Information from the use ofthe following methods is presumptively credible evidence ofwhether a violation has occurred at a source: (1) A compliance assurance monitoring protocol approved forthe source pursuant to subsection 10 ofsection 33-15-14-06. (2) A monitoring method approved for the source pursuant to paragraph 3 of subdivision a of subsection 5 of section 33-15-14-06 and incorporated in a federally enforceable title V permit to operate. (3) Compliance test methods specified in this article.
b

. The following testing , monitoring, and information-gathering methods are presumptively credible testing , monitoring, or information-gathering methods: (1) Any federally enforceable monitoring or testing methods, including those under title 40, Code of Federal Regulations, parts 50, 51 , 60, 61 , 63, and 75. (2) Other testing , monitoring, or information-gathering methods that produce information comparable to that produced by any method in paragraph 1 or in subdivision a. 3

. a

. No person may knowingly make afalse statement, representation , or certification in any application , record , report, plan, or other document filed or required under this article.

19 4/2011

### b

. No person may knowinglyfalsify,tamperwith, or provide inaccurate information regarding a monitoring device or method required under this article. History: 

### Effective June 1 , 1990; amended effective December 1 , 1994; September 1 , 1997; March 1 , 2003. General Authority: 

### NDCC 23-25-03 Law Implemented: 

### NDCC 23-25-03
33-15-01-18. Compliance certifications. 

### Notwithstanding any other provision in this article, for the purpose of submission of compliance certifications the owner or operator is not prohibited from using the following in addition to any specified compliance methods:
1. A compliance assurance monitoring protocol approved for the source pursuant to subsection 10 ofsection 33-15-14-06.
2. Any other monitoring method approved for the source under paragraph 3 of subdivision a of subsection 5 of section 33-15-14-06 and incorporated into a federally enforceable title V permit to operate. History: 

### Effective December 1 , 1994; amended effective March 1 , 2003. General Authority: 

### NDCC 23-25-03 Law Implemented: 

### NDCC 23-25-03

4/2011 20

### CHAPTER 33-15-02 AMBIENT AIR QUALITY STANDARDS



### Scope Purpose Air Quality Guidelines Ambient Air Quality Standards Methods of Sampling and Analysis Reference Conditions Section 33-15-02-01 33-15-02-02 33-15-02-03 33-15-02-04 33-15-02-05 33-15-02-06 33-15-02-07 Concentrations of Air Contaminants in the Ambient Air Restricted
33-15-02-01. Scope. 

### The ambient air quality standards as presented in this chapter pertain to the ambient air within the boundaries of North Dakota. History: 

### Amended effective October 1 , 1987

. General Authority: 

### NDCC 23-25-03 Law Implemented: 

### NDCC 23-25-03
33-15-02-02. Purpose. 

### It is the purpose of these air quality standards to set forth levels of air quality for the maintenance of public health and welfare and to provide guidance to governmental and other parties interested in abating air pollution. Since the ambient air in North Dakota is generally cleaner than these standards, the standards are not a permit for the unnecessary degradation of air quality. History: 

### Amended effective October 1, 1987. General Authority: 

### NDCC 23-25-03 Law Implemented: 

### NDCC 23-25-03
33-15-02-03. Air quality guidelines. 

### In keeping with the purpose ofthese ambient air quality standards,the quality should be such that:
1

. The public health will be protected including sensitive or susceptible segments ofthe population.
2. Concentrations of pollutants will not cause public nuisance or annoyance. 3. Agricultural crops, animals,forest, and other plant life will be protected

. 4. Visibility will be protected.
5. Metals or other materials will be protected from abnormal corrosion or damage.
6. Fabrics will not be soiled , deteriorated, or their colors affected.

1 

### 4/2011

### 7. Natural scenery will not be obscured

. 

### History: Amended effective October 1, 1987. 

### General Authority: NDCC 23-25-03 

### Law Implemented: NDCC 23-25-03


### 33-15-02-04. Ambient air quality standards.
1

. 

### Particulates and gases. The standards of ambient air quality listed in table 1 and table 2 define the limits of air contamination by particulates and gases. Any air contaminant which exceeds these limits is hereby declared to be unacceptable and requires air pollution control measures. The stated limits include normal background levels of particulates and gases. 2. 

### Radioactive substances. The ambient air shall not contain any radioactive substances exceeding the concentrations specified in article 33-10

. 3. 

### Other air contaminants. The ambient air shall not contain air contaminants in concentrations thatwould be injurious to human health or well-being or unreasonably interfere with the enjoyment of property orthatwould injure plant or animal life. The department may establish, on a case-by-case basis, specific limits of concentration for these contaminants

. 

### History: Amended effective October 1 , 1987; January 1 , 1989; September 1 , 1998; April 1 , 2011. 

### General Authority: NDCC 23-25-03 

### Law Implemented: NDCC 23-25-03


### 33-15-02-05. Methods of sampling and analysis. Air contaminants listed under table 1 shall be measured by the method or methods listed in title 40, Code of Federal Regulations, parts 50 and 53. Hydrogen sulfide sampling equipment and methods must be approved by the department. Hydrogen sulfide analyzers must be designed for use as ambient air quality monitors and must be capable of meeting performance specifications as determined by the department.
The sampling and analytical procedures employed and the number, duration, and location of samples to be taken to measure ambient levels of air contaminants shall be consistent with obtaining results which are precise, accurate, and representative ofthe conditions being evaluated. 

### History: Amended effective October 1 , 1987; December 1 , 1994. 

### General Authority: NDCC 23-25-03 

### Law Implemented: NDCC 23-25-03 

### 33-15-02-06. Reference conditions. The standards of ambient air quality listed in table 1 are corrected to a reference temperature of twenty-five degrees
4/2011 2

### Celsius [298 degrees Kelvin] and a reference pressure of seven hundred sixty millimeters of mercury [101.3 kilopascals].
General Authority: 

### NDCC 23-25-03 Law Implemented: 

### NDCC 23-25-03
33-15-02-07. Concentrations of air contaminants in the ambient air restricted.


### 1

. No person may cause or permit the emission of contaminants to the ambient air from any source in such a manner and amount that causes or contributes to aviolation in the ambient air ofthose standards stated in section 33-15-02-04.
2. Nothing in any other part or section ofthis article may in any manner be construed as authorizing or legalizing the emission ofair contaminants in such manner as prohibited in subsection 1. History: 

### Amended effective October 1 , 1987; September 1 , 1998;April 1 ,2011. General Authority: 

### NDCC 23-25-03 Law Implemented: 

### NDCC 23-25-03



### 3 4/2011

### Table 1. AMBIENT AIR QUALITY STANDARDS
Standards Air Contaminants (Maximum Permissible Concentrations) lnhalable 150 micrograms per cubic meter, 24-hour average Particulates concentration. The standard is attained when the PM 1o expected number of days per calendar year with a 24-hour average concentration above 150 micrograms per cubic meter, as determined in accordance with 40 CFR 50,Appendix K, is equal to or less than one. PM 2

.5 

### 15.0 micrograms per cubic meter annual arithmetic mean concentration. The standard is met when the annual arithmetic mean concentration , as determined in accordance with 40 CFR 50,Appendix N, is less than or equal to 15.0 micrograms per cubic meter. 35 micrograms per cubic meter 24-hour average concentration. The standard is met when the 98th percentile 24-hour concentration , as determined in accordance with 40 CFR 50,Appendix N, is less than or equal to 35 micrograms per cubic meter. Sulfur 0.075 parts per million (196 micrograms per cubic meter) Dioxide 1-hour average concentration. The standard is met when the 3-year average ofthe annual 99th percentile ofthe daily maximum 1-hour average concentration is less than or equal to 0.075 parts per million , as determined in accordance with 40 CFR 50,Appendix T

. 0.5 parts per million (1309 micrograms per cubic meter of air) maximum 3-hour concentration , not to be exceeded more than once per calendar year. Hydrogen 10.0 parts per million (14 milligrams per cubic meter of air), Sulfide maximum instantaneous (ceiling) concentration not to be exceeded 0.20 parts per million (280 micrograms per cubic meter of air) , maximum 1-hour average concentration not to be exceeded more than once per month 0.10 parts per million (140 micrograms per cubic meter of air) , maximum 24-hour average concentration not to be exceeded more than once per year 0.02 parts per million (28 micrograms per cubic meter ofair), maximum arithmetic mean concentration averaged over three consecutive months Carbon 9 parts per million (1 0 milligrams per cubic meter of air) , Monoxide maximum 8-hour concentration not to be exceeded more than once per year

4/2011 

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### Ozone

Nitrogen Dioxide

Lead 35 parts per million (40 milligrams per cubic meter of air), maximum 1-hour concentration not to be exceeded more than once per year 0.075 parts per million (147 micrograms per cubic meter of air) daily maximum 8-hour average concentration. The standard is met when the three-year average ofthe annual fourth-highest daily maximum 8-hour average concentration at an ambient air quality monitoring site is less than or equal to 0

.075 ppm, as determined in accordance with 40 CFR 50,Appendix P. 0.053 parts per million (1 00 micrograms per cubic meter of air), maximum annual arithmetic mean 0.100 parts per million (188 micrograms per cubic meter) 1-hour average concentration. The standard is met when the 3-year average ofthe annual 98th percentile ofthe daily maximum 1-hour average concentration is less than or equal to 0.100 parts per million , as determined in accordance with 40 CFR 50,Appendix S. 0.15 micrograms per cubic meter of air, arithmetic mean averaged over a 3-month rolling period

. The standard is met when the maximum 3-month mean concentration for a 3-year period, as determined in accordance with 40 CFR 50, Appendix R, is less than or equal to 0

.15 micrograms per cubic meter. History: 

### Amended effective December 1 , 1994; April 1 , 2009;April 1 , 2011.
Table 2. NATIONAL AMBIENT AIR QUALITY STANDARDS


### Air Contaminant
Sulfur oxides (sulfur dioxide) Standards (Maximum Permissible Concentrations) 0.030 parts per million (80 micrograms per cubic meter of air) maximum annual arithmetic mean concentration , not to be exceeded in a calendar year 0.14 parts per million (365 micrograms per cubic meter ofair) maximum 24-hour concentration , not to be exceeded more than once per calendar year

5 4/2011

### The standards in Table 2 will remain in effect until one year after the effective date ofthe designation for the one-hour sulfur dioxide standard pursuantto Section 107 of the Federal Clean Air Act except for areas designated nonattainment with respect to the standards in Table 2 and areas not meeting the requirements of a state implementation call with respect to requirements for the national ambient air quality standards in Table 2

. The standards in Table 2 will apply to those areas until that area submits, and the environmental protection agency approves, an implementation plan providing for attainment of the one-hour sulfur dioxide standard. History: 

### Amended effective September 1 , 1998;April 1 , 2011.

4/2011 

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### CHAPTER 33-15-03 RESTRICTION OF EMISSION OF VISIBLE AIR CONTAMINANTS
Section 33-15-03-01 33-15-03-02
33-15-03-03 33-15-03-03.1 33-15-03-04 33-15-03-05 Restrictions Applicable to Existing Installations Restrictions Applicable to New Installations and all Incinerators Restrictions Applicable to Fugitive Emissions Restrictions Applicable to Flares Exceptions Method of Measurement


### 33-15-03-01. Restrictions applicable to existing installations. No person may discharge into the ambient air from any single source of emission whatsoever, with the exception of existing incinerators, any air contaminant which exhibits an opacity greater than forty percent except that a maximum of sixty percent opacity shall be permissible for not more than one six-minute period per hour. Provided, however:
1. In consideration of public health and welfare, when it becomes both technically and economically feasible, the source shall comply with visible air contaminant restrictions as outlined in section 33-15-03-02 when directed by the department.
2. Any existing source which has installed control technology capable of complying with the visible air contaminant restrictions applicableto new installations shall complywith section 33-15-03-02 when directed by the department.
3. If any party is aggrieved by the department's decision as referenced in subsections 1 and 2, that party may request a hearing before the department to review such decision. Such hearing must be conducted according to article 33-22 and North Dakota Century Code chapter 28-32. If a hearing is requested, the requirements of section 33-15-03-02 are not effective until ordered by the department at the conclusion ofthe hearing process. 

### History: Amended effective October 1, 1987. 

### General Authority: NDCC 23-25-03, 28-32-02 

### Law Implemented: NDCC 23-25-03


### 33-15-03-02. Restrictions applicable to new installations and allincinerators. No person may discharge into the ambient air from any single source of emission whatsoever any air contaminant which exhibits an opacity

1

### greater than twenty percent except that a maximum of forty percent opacity is permissible for not more than one six-minute period per hour

. History: Amended effective October 1, 1987. General Authority: NDCC 23-25-03, 28-32-02 Law Implemented: NDCC 23-25-03
33-15-03-03. Restrictions applicable to fugitive emissions. No person may discharge into the ambient air from any source of fugitive emissions, as determined or identified by the department, any air contaminant which exhibits an opacity greater than forty percent for more than one six-minute period per hour. Such visible emissions shall have been visibly transported off the property of emission origination and remains visible to an observer positioned off said property when sighting along a line which does not cross the property ofemission origination. History: Amended effective October 1 , 1987. General Authority: NDCC 23-25-03, 28-32-02 Law Implemented: NDCC 23-25-03
33-15-03-03.1. Restrictions applicable to flares. No person may discharge into the ambient airfrom any single source ofemission whatsoever any air contaminantwhich exhibits an opacity greaterthan twenty percent exceptthat a maximum of sixty percent opacity is permissible for not more than one six-minute period per hour. History: Effective February 1 , 1982; amended effective October 1 , 1987. General Authority: NDCC 23-25-03, 28-32-02 Law Implemented: NDCC 23-25-03
33-15-03-04. Exceptions. The prov1s1ons of sections 33-15-03-01 , 33-15-03-02, 33-15-03-03, and 33-15-03-03.1 shall not apply in the following circumstances:
1 . 

### Where the presence of uncombined water is the only reason for failure ofan emission to meet the requirements

. 2. When smoke is emitted for the purpose of training or research when approved by the department, including training schools for firefighting personnel.
3. Where an applicable opacity standard is established for a specific source. 4

. Where the limits specified in this article cannot be met because of operations or processes such as, but not limited to, oil field service and drilling operations, but only so long as it is not technically feasible to meet said specifications.



### 2

### 5. Wherefugitive emissions are caused by agricultural activities related to the normal operations of a farm. History: Amended effective February 1· , 1982. General Authority: NDCC 23-25-03, 28-32-02 Law Implemented: NDCC 23-25-03
33-15-03-05. Method of measurement. Compliance with visible emission standards in chapter 33-15-03 shall be determined by conducting observations in accordance with Reference Method 9 ofAppendix A to chapter 33-15-12. Per hour for Reference Method 9 means any contiguous sixty-minute time period. When Reference Method 9 opacity readings are not available, continuous opacity monitors may be substituted. Per hour for monitors means any sixty-minute period commencing on the hour. The results of continuous monitoring by transmissometer, which indicate that the opacity at the time visible emissions were taken , were not in excess of the standard, are probative but not conclusive evidence of the actual opacity of an emission; provided, that the source shall meet the burden of proving that the instrument used meets (at the time of the alleged violation) Performance Specification 1 in Appendix B, has been properly maintained and (at the time of the alleged violation) calibrated, and that the resulting data have not been tampered with in any way. History: Amended effective October 1 , 1987. General Authority: NDCC 23-25-03, 28-32-02 Law Implemented: NDCC 23-25-03



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### Section 33-15-04-01 33-15-04-02 

### CHAPTER 33-15-04 OPEN BURNING RESTRICTIONS

Refuse Burning Restrictions Permissible Open Burning


### 33-15-04-01. Refuse burning restrictions. No person may cause, conduct, or permit open burning of refuse, trade waste, or other combustible material, except as provided for in section 33-15-04-02 or 33-15-10-02, and no person may conduct, cause, or permit the conduct ofa salvage operation by open burning

. 

### History: Amended effective October 1, 1987; January 1, 1989; January 1 , 1996; January 1, 2007. 

### General Authority: NDCC 23-25-03, 28-32-02 

### Law Implemented: NDCC 23-25-03


### 33-15-04-02. Permissible open burning. The open burning of refuse or other combustible material may be conducted as specified in this section if the burning is not prohibited by, and is conducted in compliance with, other applicable laws, ordinances, and regulations. Burning is prohibited ifthe fire index is in the extreme category as issued by the national weather service or if a burning ban is declared by state or local officials. The authority to conduct open burning underthis section does not exempt or excuse a person from the consequences, damages,or injuries that may result therefrom.
1. The following types ofburning are specifically authorized butare subject to the conditions listed in subsection 2 as well as any condition included as part ofthis subsection :

a. Fires purposely set for the instruction and training of public and industrial firefighting personnel.
b. Fires set for the elimination ofa fire hazard that cannot be abated by any other means when authorized by the department or its designee

.
c. Fires set for the removal of dangerous or hazardous material, where there is no other practical or lawful method ofdisposal and burning is approved in advance by the department. Where there is imminent danger to human health or safety and where there is no other practical or lawful method of disposal, burning may be initiated without prior notice to the department, provided notice is furnished as soon as practical.
d. Campfires and otherfires used solelyfor recreational purposes,for ceremonial occasions, or for outdoor preparation offood.

1**~-------------------------------**

### e. Fires purposely set to forest or rangelands for a specific reason in the management of forest, rangeland , or game in accordance with practices recommended by state or federal agencies, as appropriate, and the burning is approved in advance by the department. The state or federal agency shall, upon request by the department,submit an annual report that estimatesthe number ofacres burned ,the fuel loading, and the amount ofemissions.
f. The burning of trees, brush , grass, wood , and other vegetable matter in the clearing ofland, right-of-way maintenance operations, and agricultural crop burning.
g

. The burning of refuse and other combustible materials generated in the operation ofa domestic household ifthe following conditions are met: (1) No collection and disposal service is required or directed by a municipality or other government entity. (2) The material to be burned is from a building accommodating no more than one family

. (3) The burning is conducted on the property on which the waste is generated

. h. The burning ofliquid hydrocarbonsthat are spilled or lost as a result of pipeline breaks or other accidents involving the transportation of such materials or which are generated as wastes as the result ofoil exploration , development, production, refining , or processing operations ifthe following conditions are met: (1) The material cannot·be practicably recovered or otherwise lawfully disposed of in some other manner

. (2) The burning must be approved in advance bythe department, except as provided in subdivision c. 2

. The following conditions apply to all types of permissible burning listed in subsection 1

.
a. No public nuisance is or will be created

. b. The burning must not be conducted upwind of, or in proximity to, an occupied building such that the ambient air of such occupied building may be adversely affected by the air contaminants being emitted.

c

. Care must be used to minimize the amount ofdirt on the material being burned and the material must be dry enough to burn cleanly. 

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### d. Oils, rubber, and other materials that produce unreasonable amounts ofair contaminants may not be burned.

e. The burning may be conducted only when meteorological conditions favor smoke dispersion and air mixing.
f. The burning must not be conducted adjacent to any highway or public road so as to create a traffic hazard.
g. The burning must not be conducted adjacent to any operational military,commercial ,county, municipal,or private airport or landing strip in such a manner as to create a hazard.
h

. Except in an emergency, burning may not be conducted in such proximity of any class I area, as defined in chapter 33-15-15, that the ambient air ofsuch area is adversely impacted.
i. Except in an emergency,the visibility ofany class I area cannot be adversely impacted as defined in chapter 33-15-19. j. Burning activities must be attended and supervised at all times burni

.ng is in progress

. k. If state or local fire officials determine conditions to be unsafe for open burning , such burning must cease until conditions are deemed safe by such officials. History: 

### Amended effective October 1 , 1987; January 1 , 1989; January 1 , 1996; January 1 , 2007. General Authority: 

### NDCC 23-25-03, 28-32-02 Law Implemented: 

### NDCC 23-25-03



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