- State of -

North Dakota 

Office of the Governor 

Jack Dalrymple 

Governor 

Lisa P. Jackson, Administrator 

May 25,2012 

c/o James Martin, Regional Administrator (8RA) 

U.S. EPA, Region 8 

1595 Wynkoop Street 

Denver, CO 80202-1129 

RE: ND State Implementation Plan for 1997 PM2.s NAAQS and 2008 Lead 

AAQS 

Dear Administrator Jackson: 

The North Dakota Department of Health has reviewed its State 

Implementation Plan (SIP) for the control of air pollution to determine if the 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 "conflict of interest" requirements under 

the Clean Air Act§ 128. The Department of Health has committed to revise the State 

Implementation Plan by May 31, 2013 to address the requirements of§ 128. 

If yo u have any questions regarding the submittal, please contact Mr. Terry 

O'Clair, Director, Division of Air Quality, North Dakota Department of Health at 

701-328-5188. 

Sincerely, 

C: David Glatt, Chief, Environmental Health Section 

Terry O'Clair, Director, Division of Air 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 Lead NAAQS 

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 of the 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 other related matters. 

The North Dakota Air Pollution Control Rules (NDAC 33-15) establishes control requirements 

for lead (Pb) indirectly through the control of particulate 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 of all air pollution control rules. The chapter provides that all 

excess emissions, including emission during startup/shutdown and malfunction, 

are subject to enforcement action. 

Ambient Air Quality Standards 

This chapter establishes a state ambient air quality standard (SAAQS) for lead 

that is identical to the NAAQS. 

Restriction of Emission of Visible Air Contaminants 

The chapter establishes visible emissions standards for both point and area 

sources, including sources of lead emissions. 

Open Burning Restrictions 

The chapter prohibits the open burning unless specifically authorized. 

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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 of Particulate Matter Restricted 

The chapter establishes PM emission limits for fuel burning and industrial 

process type sources. 

Standards of Performance for New Stationary Sources 

The chapter incorporates by reference the standards in 40 CFR 60. 

Emission Standards for Hazardous Air Pollutants 

The chapter incorporates the standards in 40 CFR 61. 

Designated Air Contaminant Sources, Permit to Construct, Minor 

Source Permit to Operate, Title V Permit to Operate 

The chapter provides a preconstruction permitting program for both major and 

minor sources, a federally enforceable state operating permit program (FESOP) 

for minor sources, and a Title V Permit to Operate program for major sources. 

Prevention of Significant Deterioration of Air Quality 

The chapter incorporates by reference the PSD requirements in 40 CFR 52.21. 

Restriction of Fugitive Emissions 

The chapter establishes criteria for the control of fugitive emissions (including 

lead emissions). 

Stack Heights 

The chapter prohibits dispersion of air contaminants through the use of stacks that 

exceed good engineering practice (GEP). 

Visibility Protection 

The chapter establishes requirements for the review of major 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 of 40 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 Air Pollutants for Source Categories 

This chapter incorporates by reference the standards in 40 CFR 63. 

Regional Haze Requirements 

The chapter provides for the application of Best Available Retrofit Technology 

(BART) to affected sources. 

A copy of these 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 that the Department shall: 

NDCC 23-25-03.6- 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. 

NDCC 23-25-03. 7 - Establish ambient air quality standards for the state which may vmy 

according to appropriate areas. 

NDCC 23-25-03.8 - 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. 

Ambient air gualitv monitoring/data system: Section 110(a)(2)(B) of the 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 of 40 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 that the Department shall: 

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NDCC 23-25-03.2 - Determine by scientifically oriented field studies and sampling the 

degree of air pollution in the state and the several parts thereof 

NDCC 23-25-03.10 - 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. 

Ambient monitoring is covered in Chapter 6 of the North Dakota SIP. It provides fon the design 

and operation of a monitoring network, reporting of data obtained from the monitors, and annual 

network review including notification to EPA of any changes, and public notification of 

exceedances ofNAAQS. 

Program for enforcement of control measures: Section 110(a)(2)(C) requires SIPs to include 

a program providing for enforcement of all SIP measures and the regulation of construction of 

new or modified stationary sources as necessary to assure that the NAAQS are achieved, 

including a permit program 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 of the NDAPCR. 

The following regulations within the NDAPCR and the North Dakota SIP provide for the 

permitting of sources of lead: 

NDAC 33-15-14-02 

NDAC 33-15-14-03 

NDAC 33-15-14-06 

NDAC 33-15-15 

Permit to Construct 

Minor Source Permit to Operate 

Title V Permit to Operate 

Prevention of Significant Deterioration 

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 of a SIP revision to be 

submitted separately in 2012. NDAC 33-15-14-02 and 33-15-14-03 provide a preconstruction 

and operating permit program for minor sources of lead emissions. 

Authority for the permitting programs is found in NDCC 23-25-03 which states that the 

Department shall: 

NDCC 23-25-03.6- 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 standard, and require that prior to 

commencing construction or modification of any such source, the owner or operator 

4 
I . 

thereof shall submit such information as may be necessary to permit the Department to 

make such determination. 

and 

NDCC 23-25-04.1- Permits and Registration 

I. ljo 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 

necessa1y. 

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 or 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. 

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 of the 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 of Significant Deterioration 

Visibility Protection 

Regional Haze Requirements 

5 
SIP Section 7.8 

SIP 

Interstate Transport of Air Pollution 

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 of any 

new direct or indirect air containment source or modification of any existing direct or 

indirect air containment 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. 

A. Significant Contribution Requirement of Section 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 of the 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 a portion of Dakota 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 or interfere with maintenance on that state1

• 

North Dakota has few sources of lead located within 2 miles of the Minnesota border. 

The following sources emit lead, or lead compounds, due to the combustion of coal and 

include the following: 

2010 Approximate Distance to 

Lead Emissions Nearest Nonattainment 

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 Ambient Air Quality Standards (NAAQS); October, 2011. 

6 
2010 Approximate Distance to 

Lead Emissions Nearest Nonattainment 

Source (tons)* Area (miles) 

University ofNorth Dakota 0.010 285 

North Dakota State 0.007 225 

University 

Minn-Dak Farmers Coop. 0.031 200 

ND State School of Science 0.001 200 

Sanford Medical Center < 0.0001 225 

*Based on AP-42 emission factors 

The small quantity of lead 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 of lead within 2 miles of the border with South 

Dakota and Montana than have emissions greater than 0.001 tons per year. 

B. Interfere with Maintenance Requirement of Section 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 of the NAAQS in any other state. States' submission must address this 

independent requirement of the statute. This provision requires evaluation of impacts 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, if so, address the 

impact. 

North Dakota has no significant sources of lead ~ 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 determination program 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 (RA VI) 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 Transport Provisions: 

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) of the Clean Air Act (CAA) requires each SIP to include 

provisions to notify neighboring states of potential impacts from a new 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-

0 1.2( q)(2)( d) states: 

NDAC-33-15-15-0l.(q)(2)(d)- Send a copy of the notice required in subparagraph c to 

the applicant, the United States environmental protection agency administrator, and to 

officials and agencies having cognizance over the location where the source or 

modification will be situated as follows: the chief executive of the city and county where 

the source or modification would be located; any comprehensive regional land use 

planning agency; and any state, federal land manager, or Indian governing body whose 

lands may be significantly affected by emissions from the source or modification. 

Similar notification requirements are provided for minor sources under NDAC 33-15-14-

02.6.b(4). 

Adequate personnel, funding and authority: Section 11 O(a)(2)(E) of the 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 of the SIP is found in NDCC 23-

25-03 which states: 

23-25-03. Power and duties to the Department. The Department shall: 

8 
• Encourage the voluntary cooperation of persons or affected groups to achieve the 

purposes of this chapter. 

• Determine by scientifically oriented field studies and sampling the degree of air 

pollution in the state and the several parts thereof 

• Encourage and conduct studies, investigations, and research relating to air 

pollution and its causes, effects, prevention, abatement and control. 

• Advise, counsel, and cooperate with other public agencies and with affected 

groups and industries. 

• Issue such orders as may be necessary to effectuate the purposes of this chapter 

and enforce the same by all appropriate administrative and judicial procedures. 

• 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 containment source which the Department determines will prevent the 

attainment or maintenance of any ambient air quality standards, 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. 

• Establish ambient air quality standards for the state which may vary according to 

appropriate areas. 

• Formulate and promulgate emzsszon control requirements for the prevention, 

abatement, and control of air pollution in the state including achievement of 

ambient air quality standards. 

• Hold hearings relating to any aspect or matter in the administration of this 

chapter, and in connection therewith, compel the attendance of witnesses and the 

production of evidence. 

• Require the owner or operator of a 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, and procedures; and provide 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 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 

9 
ambient standards, emzsswn limitations, and other control measures, means, 

techniques, or economic incentives such as fees, marketable permits, and actions 

of emission 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. 

• 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. 

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 the provisions of North Dakota 

Century Code chapter 23-25. 

The provisions of the SIP are carried out by the Department of Health. The only portion of the 

SIP that has been delegated is approval of open 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 of the 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 of emissions emitted. Fees are collected 

annually from both major sources and minor sources. In addition, fees are charged for reviewing 

applications for the construction of new or modified sources. Title V fees are adjusted annually 

to match the change in the consumer price index. 

The Department does not anticipate the construction of any 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 of new or modified sources of air pollution and the enforcement of the air pollution 

control rules. In addition, another 5 people are dedicated to monitoring air quality. 

NDCC 23-25-04.2 provides the statutory authority for collecting fees. 

NDCC 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. 

10 
Resources for the operation of the 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 other control 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 must be disclosed (See attachment 21 ). 

Stationary source monitoring system: Section 11 O(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 of emissions 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 of a 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, and procedures; and provide such other 

information as may be required. 

Source surveillance is also addressed in Chapter 8 of the SIP. This chapter provides for the 

permitting of sources, inspection of the sources and compliance determinations. 

Emergency episodes: Section 110(a)(2)(G) of the CAA requires states to provide for authority 

to address activities causing imminent and substantial endangerment to public health, including 

contingency plans to implement the 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 that the Department shall: 

11 
NDCC 23-25-03.5 - Issue such orders as may be necessary to effectuate the purposes of 

this chapter and enforce the same by all appropriate administrative and judicial 

procedures. 

NDCC 28-32-32 (Appendix B of SIP) 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 

imminent peril to public health, safety or welfare. 

In addition, NDCC 23-25-08 states "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." 

North Dakota does not have any stationary sources that emit a significant amount of lead, 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 of lead that a contingency plan is not required. The Department 

believes the emissions of PM10 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 PM10 in NDAC 33-15-11 which address coal combustion. 

Future SIP revisions: Section 11 O(a)(2)(H) of the CAA requires states to have the authority to 

revise their SIPs in response to changes in the NAAQS, availability of improved 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 and promulgate emission control requirements for the 

prevention, abatement and control of air pollution in this state including achievement of 

ambient air quality standards. 

NDCC 23-25-03.12 - Provide by rules any procedures necessmy 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 of emissions rights as provided 

by the Act. The Department shall develop and implement such as federal programs if the 

Department determines there is a benefit to the state. 

The North Dakota SIP, Section 1.14, commits the Department to 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 implementation plan 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 if the finding of the Administrator is in accordance with the requirements of the 

Federal Clean Air Act." 

Consultation with government officials: Section 110(a)(2)(J) of the 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 33-15-15-0 1.2( q) require notification of the chief executive of the 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 of the SIP. This Chapter of the SIP commits the 

Department to consultation with adjacent state, local government and other state agencies 

whenever a SIP revision is required. 

Public notification: Section 11 O(a)(2)(J) .of the CAA further requires states to notify the public 

if NAAQS 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 of the public, on a 

regular basis, whenever an ambient air quality standard is exceeded. The public will be advised 

of the 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 of Part C related to prevention of significant 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 Department has 

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 

of air quality modeling for predicting effects on air quality of emissions of any NAAQS pollutant 

and the submission of such data to EPA upon request. 

Air quality modeling is addressed in Section 7.7 of the 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 

modeling upon request. 

Modeling for minor sources is addressed in NDAC 33-15-14-02.4 while modeling for major PSD 

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 field studies and sampling the 

degree of air pollution in the state and the several parts thereof 

and 

NDCC 23-25-03-12 - 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 Air Act, as amended, and the authorities and 

responsibilities of which are delegateable to the state by the United States Environmental 

Protection Agency. Such rules may include any and all enforceable ambient standards, 

emissions limitations, and other control measures, means, techniques, or economic 

incentives such as fees, marketable permits, and auctions of emissions 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. 

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 

of a fee program under Title V ofthe Clean Air Act. 

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 in NDCC 23-25-04.2. 

14 
NDCC 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 for the issuance of 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. 

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 

program received full approval from EPA effective August 16, 1999 (64 FR 32433). 

Consultation/participation by affected local entities: Section 11 O(a)(2)(M) requires SIPs to 

provide for consultation and participation in SIP development by local political subdivisions 

affected by the SIP. 

No other state or local entities are responsible for developing the SIP. Implementation and 

enforcement of open burning request approvals has been delegated to several local health units. 

The Department retains responsibility for ensuring adequate implementation of all SIP revisions. 

No other portions of the SIP have been delegated to other organizations. 

The North Dakota SIP, Chapter 10, addresses the consultation process the Department will 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: 

NDCC 23-25-03.4- Advise, consults and cooperates with other public agencies and with 

affected groups and industries. 

Intergovernmental cooperation, Section 10 of North Dakota's SIP, addresses the process for 

sharing information and working with other government 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 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 ofNorth 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 of this 

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 Commitment Letter 

22. Public Participation Documentation 

17 
a. Abbreviated Public Notice 

b. Full Public Notice 

c. Press Release 

d. Website Notice 

e. Affidavit of Publication 

f. Invoice ofPublication 

g. List of Hearing attendees 

h. Hearing transcript 

1. Response to Public Comments 

J. Certification of Hearing 

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 of the 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 of three years, persons 

to take the place of members whose terms on the council are about to expire. The officers of the 

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 of the 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 

of the council. 

Page No.1 
2. 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 of the 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 of the newborns and their families is protected. 

23-01-03.2. Duties of the 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 of the 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 of the 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. 2 
23-01-04. Effect of rules and regulations. 

All rules and regulations promulgated by the health council under the powers granted by 

any provisions of this 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 of the 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 of the filing of the 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 of the department has been adopted in compliance with this section. 

6. The provisions of this 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. 3 
detailed 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 

of the 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 officer who 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 of the state department of health. If the 

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 of the advisory committee coincides 

with the term of the state health officer. A committee member serves at the pleasure of the 

governor. The duties of the 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 of the 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 of the 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 of disease 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.4 
11. 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 a judicial 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 of the 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 of the 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 of whether 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 of the 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 of this 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. 5 
2. 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 

of that 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 of vaccination: 

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 of the date 

of the 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 of their 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 or the 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.6 
a. "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 of the 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 if the 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 if there is no criminal investigation. 

d. To the child fatality review panel if there 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 of the autopsy report to: 

a. The decedent's personal representative and to the decedent's spouse, child, or 

parent, upon proof of the relationship, if there 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 if there 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. 7 
23-01-06. 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 of the program of each of the divisions. 

2. The expenditures of the state department of health. 

3. The expenditures in each county board of health or the 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 of the various divisions of the 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 of the 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 of this 

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 under the supervision of the 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 -

North Dakota 

Office of the Governor 

Jack Dalrymple 

Governor 

Lisa P. Jackson, Administrator 

May 25,2012 

c/o James Martin, Regional Administrator (8RA) 

U.S. EPA, Region 8 

1595 Wynkoop Street 

Denver, CO 80202-1129 

RE: ND State Implementation Plan for 1997 PM2.s NAAQS and 2008 Lead 

AAQS 

Dear Administrator Jackson: 

The North Dakota Department of Health has reviewed its State 

Implementation Plan (SIP) for the control of air pollution to determine if the 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 "conflict of interest" requirements under 

the Clean Air Act§ 128. The Department of Health has committed to revise the State 

Implementation Plan by May 31, 2013 to address the requirements of§ 128. 

If yo u have any questions regarding the submittal, please contact Mr. Terry 

O'Clair, Director, Division of Air Quality, North Dakota Department of Health at 

701-328-5188. 

Sincerely, 

C: David Glatt, Chief, Environmental Health Section 

Terry O'Clair, Director, Division of Air 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 Lead NAAQS 

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 of the 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 other related matters. 

The North Dakota Air Pollution Control Rules (NDAC 33-15) establishes control requirements 

for lead (Pb) indirectly through the control of particulate 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 of all air pollution control rules. The chapter provides that all 

excess emissions, including emission during startup/shutdown and malfunction, 

are subject to enforcement action. 

Ambient Air Quality Standards 

This chapter establishes a state ambient air quality standard (SAAQS) for lead 

that is identical to the NAAQS. 

Restriction of Emission of Visible Air Contaminants 

The chapter establishes visible emissions standards for both point and area 

sources, including sources of lead emissions. 

Open Burning Restrictions 

The chapter prohibits the open burning unless 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 of Particulate Matter Restricted 

The chapter establishes PM emission limits for fuel burning and industrial 

process type sources. 

Standards of Performance for New Stationary Sources 

The chapter incorporates by reference the standards in 40 CFR 60. 

Emission Standards for Hazardous Air Pollutants 

The chapter incorporates the standards in 40 CFR 61. 

Designated Air Contaminant Sources, Permit to Construct, Minor 

Source Permit to Operate, Title V Permit to Operate 

The chapter provides a preconstruction permitting program for both major and 

minor sources, a federally enforceable state operating permit program (FESOP) 

for minor sources, and a Title V Permit to Operate program for major sources. 

Prevention of Significant Deterioration of Air Quality 

The chapter incorporates by reference the PSD requirements in 40 CFR 52.21. 

Restriction of Fugitive Emissions 

The chapter establishes criteria for the control of fugitive emissions (including 

lead emissions). 

Stack Heights 

The chapter prohibits dispersion of air contaminants through the use of stacks that 

exceed good engineering practice (GEP). 

Visibility Protection 

The chapter establishes requirements for the review of major 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 of 40 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 Air Pollutants for Source Categories 

This chapter incorporates by reference the standards in 40 CFR 63. 

Regional Haze Requirements 

The chapter provides for the application of Best Available Retrofit Technology 

(BART) to affected sources. 

A copy of these 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 that the Department shall: 

NDCC 23-25-03.6- 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. 

NDCC 23-25-03. 7 - Establish ambient air quality standards for the state which may vmy 

according to appropriate areas. 

NDCC 23-25-03.8 - 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. 

Ambient air gualitv monitoring/data system: Section 110(a)(2)(B) of the 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 of 40 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 that the Department shall: 

3 
NDCC 23-25-03.2 - Determine by scientifically oriented field studies and sampling the 

degree of air pollution in the state and the several parts thereof 

NDCC 23-25-03.10 - 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. 

Ambient monitoring is covered in Chapter 6 of the North Dakota SIP. It provides fon the design 

and operation of a monitoring network, reporting of data obtained from the monitors, and annual 

network review including notification to EPA of any changes, and public notification of 

exceedances ofNAAQS. 

Program for enforcement of control measures: Section 110(a)(2)(C) requires SIPs to include 

a program providing for enforcement of all SIP measures and the regulation of construction of 

new or modified stationary sources as necessary to assure that the NAAQS are achieved, 

including a permit program 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 of the NDAPCR. 

The following regulations within the NDAPCR and the North Dakota SIP provide for the 

permitting of sources of lead: 

NDAC 33-15-14-02 

NDAC 33-15-14-03 

NDAC 33-15-14-06 

NDAC 33-15-15 

Permit to Construct 

Minor Source Permit to Operate 

Title V Permit to Operate 

Prevention of Significant Deterioration 

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 of a SIP revision to be 

submitted separately in 2012. NDAC 33-15-14-02 and 33-15-14-03 provide a preconstruction 

and operating permit program for minor sources of lead emissions. 

Authority for the permitting programs is found in NDCC 23-25-03 which states that the 

Department shall: 

NDCC 23-25-03.6- 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 standard, and require that prior to 

commencing construction or modification of any such source, the owner or operator 

4 
I . 

thereof shall submit such information as may be necessary to permit the Department to 

make such determination. 

and 

NDCC 23-25-04.1- Permits and Registration 

I. ljo 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 

necessa1y. 

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 or 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. 

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 of the 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 of Significant Deterioration 

Visibility Protection 

Regional Haze Requirements 

5 
SIP Section 7.8 

SIP 

Interstate Transport of Air Pollution 

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 of any 

new direct or indirect air containment source or modification of any existing direct or 

indirect air containment 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. 

A. Significant Contribution Requirement of Section 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 of the 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 a portion of Dakota 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 or interfere with maintenance on that state1

• 

North Dakota has few sources of lead located within 2 miles of the Minnesota border. 

The following sources emit lead, or lead compounds, due to the combustion of coal and 

include the following: 

2010 Approximate Distance to 

Lead Emissions Nearest Nonattainment 

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 Ambient Air Quality Standards (NAAQS); October, 2011. 

6 
2010 Approximate Distance to 

Lead Emissions Nearest Nonattainment 

Source (tons)* Area (miles) 

University ofNorth Dakota 0.010 285 

North Dakota State 0.007 225 

University 

Minn-Dak Farmers Coop. 0.031 200 

ND State School of Science 0.001 200 

Sanford Medical Center < 0.0001 225 

*Based on AP-42 emission factors 

The small quantity of lead 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 of lead within 2 miles of the border with South 

Dakota and Montana than have emissions greater than 0.001 tons per year. 

B. Interfere with Maintenance Requirement of Section 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 of the NAAQS in any other state. States' submission must address this 

independent requirement of the statute. This provision requires evaluation of impacts 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, if so, address the 

impact. 

North Dakota has no significant sources of lead ~ 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 determination program 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 (RA VI) 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 Transport Provisions: 

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) of the Clean Air Act (CAA) requires each SIP to include 

provisions to notify neighboring states of potential impacts from a new 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-

0 1.2( q)(2)( d) states: 

NDAC-33-15-15-0l.(q)(2)(d)- Send a copy of the notice required in subparagraph c to 

the applicant, the United States environmental protection agency administrator, and to 

officials and agencies having cognizance over the location where the source or 

modification will be situated as follows: the chief executive of the city and county where 

the source or modification would be located; any comprehensive regional land use 

planning agency; and any state, federal land manager, or Indian governing body whose 

lands may be significantly affected by emissions from the source or modification. 

Similar notification requirements are provided for minor sources under NDAC 33-15-14-

02.6.b(4). 

Adequate personnel, funding and authority: Section 11 O(a)(2)(E) of the 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 of the SIP is found in NDCC 23-

25-03 which states: 

23-25-03. Power and duties to the Department. The Department shall: 

8 
• Encourage the voluntary cooperation of persons or affected groups to achieve the 

purposes of this chapter. 

• Determine by scientifically oriented field studies and sampling the degree of air 

pollution in the state and the several parts thereof 

• Encourage and conduct studies, investigations, and research relating to air 

pollution and its causes, effects, prevention, abatement and control. 

• Advise, counsel, and cooperate with other public agencies and with affected 

groups and industries. 

• Issue such orders as may be necessary to effectuate the purposes of this chapter 

and enforce the same by all appropriate administrative and judicial procedures. 

• 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 containment source which the Department determines will prevent the 

attainment or maintenance of any ambient air quality standards, 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. 

• Establish ambient air quality standards for the state which may vary according to 

appropriate areas. 

• Formulate and promulgate emzsszon control requirements for the prevention, 

abatement, and control of air pollution in the state including achievement of 

ambient air quality standards. 

• Hold hearings relating to any aspect or matter in the administration of this 

chapter, and in connection therewith, compel the attendance of witnesses and the 

production of evidence. 

• Require the owner or operator of a 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, and procedures; and provide 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 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 

9 
ambient standards, emzsswn limitations, and other control measures, means, 

techniques, or economic incentives such as fees, marketable permits, and actions 

of emission 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. 

• 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. 

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 the provisions of North Dakota 

Century Code chapter 23-25. 

The provisions of the SIP are carried out by the Department of Health. The only portion of the 

SIP that has been delegated is approval of open 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 of the 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 of emissions emitted. Fees are collected 

annually from both major sources and minor sources. In addition, fees are charged for reviewing 

applications for the construction of new or modified sources. Title V fees are adjusted annually 

to match the change in the consumer price index. 

The Department does not anticipate the construction of any 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 of new or modified sources of air pollution and the enforcement of the air pollution 

control rules. In addition, another 5 people are dedicated to monitoring air quality. 

NDCC 23-25-04.2 provides the statutory authority for collecting fees. 

NDCC 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. 

10 
Resources for the operation of the 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 other control 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 must be disclosed (See attachment 21 ). 

Stationary source monitoring system: Section 11 O(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 of emissions 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 of a 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, and procedures; and provide such other 

information as may be required. 

Source surveillance is also addressed in Chapter 8 of the SIP. This chapter provides for the 

permitting of sources, inspection of the sources and compliance determinations. 

Emergency episodes: Section 110(a)(2)(G) of the CAA requires states to provide for authority 

to address activities causing imminent and substantial endangerment to public health, including 

contingency plans to implement the 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 that the Department shall: 

11 
NDCC 23-25-03.5 - Issue such orders as may be necessary to effectuate the purposes of 

this chapter and enforce the same by all appropriate administrative and judicial 

procedures. 

NDCC 28-32-32 (Appendix B of SIP) 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 

imminent peril to public health, safety or welfare. 

In addition, NDCC 23-25-08 states "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." 

North Dakota does not have any stationary sources that emit a significant amount of lead, 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 of lead that a contingency plan is not required. The Department 

believes the emissions of PM10 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 PM10 in NDAC 33-15-11 which address coal combustion. 

Future SIP revisions: Section 11 O(a)(2)(H) of the CAA requires states to have the authority to 

revise their SIPs in response to changes in the NAAQS, availability of improved 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 and promulgate emission control requirements for the 

prevention, abatement and control of air pollution in this state including achievement of 

ambient air quality standards. 

NDCC 23-25-03.12 - Provide by rules any procedures necessmy 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 of emissions rights as provided 

by the Act. The Department shall develop and implement such as federal programs if the 

Department determines there is a benefit to the state. 

The North Dakota SIP, Section 1.14, commits the Department to 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 implementation plan 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 if the finding of the Administrator is in accordance with the requirements of the 

Federal Clean Air Act." 

Consultation with government officials: Section 110(a)(2)(J) of the 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 33-15-15-0 1.2( q) require notification of the chief executive of the 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 of the SIP. This Chapter of the SIP commits the 

Department to consultation with adjacent state, local government and other state agencies 

whenever a SIP revision is required. 

Public notification: Section 11 O(a)(2)(J) .of the CAA further requires states to notify the public 

if NAAQS 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 of the public, on a 

regular basis, whenever an ambient air quality standard is exceeded. The public will be advised 

of the 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 of Part C related to prevention of significant 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 Department has 

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 

of air quality modeling for predicting effects on air quality of emissions of any NAAQS pollutant 

and the submission of such data to EPA upon request. 

Air quality modeling is addressed in Section 7.7 of the 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 

modeling upon request. 

Modeling for minor sources is addressed in NDAC 33-15-14-02.4 while modeling for major PSD 

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 field studies and sampling the 

degree of air pollution in the state and the several parts thereof 

and 

NDCC 23-25-03-12 - 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 Air Act, as amended, and the authorities and 

responsibilities of which are delegateable to the state by the United States Environmental 

Protection Agency. Such rules may include any and all enforceable ambient standards, 

emissions limitations, and other control measures, means, techniques, or economic 

incentives such as fees, marketable permits, and auctions of emissions 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. 

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 

of a fee program under Title V ofthe Clean Air Act. 

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 in NDCC 23-25-04.2. 

14 
NDCC 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 for the issuance of 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. 

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 

program received full approval from EPA effective August 16, 1999 (64 FR 32433). 

Consultation/participation by affected local entities: Section 11 O(a)(2)(M) requires SIPs to 

provide for consultation and participation in SIP development by local political subdivisions 

affected by the SIP. 

No other state or local entities are responsible for developing the SIP. Implementation and 

enforcement of open burning request approvals has been delegated to several local health units. 

The Department retains responsibility for ensuring adequate implementation of all SIP revisions. 

No other portions of the SIP have been delegated to other organizations. 

The North Dakota SIP, Chapter 10, addresses the consultation process the Department will 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: 

NDCC 23-25-03.4- Advise, consults and cooperates with other public agencies and with 

affected groups and industries. 

Intergovernmental cooperation, Section 10 of North Dakota's SIP, addresses the process for 

sharing information and working with other government 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 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 ofNorth 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 of this 

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 Commitment Letter 

22. Public Participation Documentation 

17 
a. Abbreviated Public Notice 

b. Full Public Notice 

c. Press Release 

d. Website Notice 

e. Affidavit of Publication 

f. Invoice ofPublication 

g. List of Hearing attendees 

h. Hearing transcript 

1. Response to Public Comments 

J. Certification of Hearing 

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 of the 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 of three years, persons 

to take the place of members whose terms on the council are about to expire. The officers of the 

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 of the 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 

of the council. 

Page No.1 
2. 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 of the 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 of the newborns and their families is protected. 

23-01-03.2. Duties of the 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 of the 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 of the 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. 2 
23-01-04. Effect of rules and regulations. 

All rules and regulations promulgated by the health council under the powers granted by 

any provisions of this 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 of the 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 of the filing of the 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 of the department has been adopted in compliance with this section. 

6. The provisions of this 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. 3 
detailed 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 

of the 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 officer who 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 of the state department of health. If the 

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 of the advisory committee coincides 

with the term of the state health officer. A committee member serves at the pleasure of the 

governor. The duties of the 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 of the 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 of the 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 of disease 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.4 
11. 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 a judicial 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 of the 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 of the 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 of whether 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 of the 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 of this 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. 5 
2. 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 

of that 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 of vaccination: 

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 of the date 

of the 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 of their 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 or the 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.6 
a. "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 of the 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 if the 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 if there is no criminal investigation. 

d. To the child fatality review panel if there 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 of the autopsy report to: 

a. The decedent's personal representative and to the decedent's spouse, child, or 

parent, upon proof of the relationship, if there 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 if there 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. 7 
23-01-06. 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 of the program of each of the divisions. 

2. The expenditures of the state department of health. 

3. The expenditures in each county board of health or the 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 of the various divisions of the 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 of the 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 of this 

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 under the supervision of the 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 
person. 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 of this 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 of the 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 of the 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. 9 
23-01-18. 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 of traumatic 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 of the 

operating procedure and conditions of the 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 23-29-1 0 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 of the 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. If a facility begins operation after July first of 

any year, the owner or operator of the 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 

. 
health 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 of volunteer 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 of the program; 

4. Provision of appropriate administrative and technical support to the program; and 

5. Submission of an 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 or joint 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 of this 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. 11 
system 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 

of a 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 of children with special health care needs. 

Page No. 12 
23-01-35. 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 of this 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 if the facility provides body piercing that is limited 

to the piercing of the noncartilaginous perimeter or lobe of the ear and the facility do·es 

not provide tattooing, branding, scarification, or subdermal implants. A person is 

exempt from regulation under subsection 2 if the 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. If a 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 of the 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. 13 
permit 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 of the prior authorization request. For purposes of this 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 of the centers for disease control and prevention. 

Page No. 14 
f. "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 

Security Act [42 U.S.C. 1396s]. 

2. As part of the North Dakota immunization program: 

a. The department shall implement a provider choice system as part of the state's 

implementation of the 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 administer the 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 of this 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 of air 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 powder when 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 of air 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 of this state, any other state or political subdivision or agency thereof, and 

any legal successor, representative agency, or agency of the 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 of this chapter. 

Page No. 1 
2. 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 of the 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 of their 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 of the 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 of any 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 of this chapter. 

23-25-03. Power and duties of the department. 

The department shall: 

1. Encourage the voluntary cooperation of persons or affected groups to achieve the 

purposes of this 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 of this 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. 2 
9. Hold hearings relating to any aspect or matter in the administration of this 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 of the 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 of emissions 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 Air Act, 

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. 3 
6. To establish indoor environmental nonoccupational air quality standards for asbestos. 

7. To adopt and enforce rules as necessary for the implementation of this 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 Air Act [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 Air Act, 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 if the 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 of the benefits and costs of the rule and of the 

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 of the 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.5 
23-01-04.1. 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 of this 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 of the 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.6 
23-25-05. 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 of this 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 of the 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.7 
the 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 of this 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] of the property 

boundary of the 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.8 
measure seven odor concentration units or higher as measured at any of the 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 of the 

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] of the source of the 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. If a 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 if the 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, 

after the 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.9 
by 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 of this 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; 

(1 0) 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 under this 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 of emergency 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 of equalization. 

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 of the 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.1 
r. 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 of the 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 

similar form 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. 

1 0. "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 of an agency statement of general 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 of the 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, if the disclosure of the 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, if the substance of the 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 of the form. 

h. An agency budget. 

i. An opinion of the 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 of agency -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 of that 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 

of the 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 of federal 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 of the declared effective date of the 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. 3 
used 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 of the rules is repealed or transferred 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 of the 

effective date of the statutory change. If an 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 of a 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.4 
a. 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, of the 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 of the 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 of the 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 of a regulatory analysis is 

a mandatory duty of the agency proposing a rule. Errors in a regulatory analysis, 

including erroneous determinations concerning the impact of the 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.5 
c. The probable cost and benefit to private persons and consumers who are 

affected by the proposed rule; 

d. The probable effect of the 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 sl 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 of the 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 of the 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.6 
f. Certify that the benefits of the 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 of the 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 

of the 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 of the proposed adoption, amendment, or repeal of a rule 

must include a short, specific explanation of the 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 of the 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 

of the 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 of the proposed rules, identification of the 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 of the 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 of the 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 of the rules to each member 

of the legislative assembly whose name appeared as a sponsor or cosponsor of 

legislation enacted during the most recent session of the -legislative assembly which is 

being implemented by the proposed rule and to any person requesting a copy. The 

Page No.7 
agency may charge persons who are not members of the legislative assembly fees for 

copies of the 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 of each public school district in this state, or the president of the 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 of the filings. 

5. At least twenty days must elapse between the date of the publication of the notice and 

the date of the 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 after the effective date of the 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 of the agency or is written in a manner that is not 

concise or easily understandable or when the procedural requirements for adoption of the rule in 

Page No. 8 
this 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 of the 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 of the 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 of all 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.9 
4. 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. If the agency fails to meet its burden of persuasion, the court 

shall declare the whole or portion of the 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 of agency and committee. 

1. The legislative management's administrative rules committee may find that all or any 

portion of a rule is void if that rule is initially considered by the committee not later than 

the fifteenth day of the month before the date of the 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 if the 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 of this chapter for adoption of the 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 of the 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 if the 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 1 to 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. If the 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. 10 
or 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 of existing 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 of the 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 of the 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 of administrative 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 of the 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 of the 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 of effective 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 of the preceding issue of the 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 of the 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 

Page No. 11 
code supplement shall provide a copy of the rules to any person upon request. The 

agency may charge a fee for a copy of the 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 of the code, revisions, and the code supplement without charge to the 

following : 

a. Governor, one copy. 

b. Attorney general, one copy. 

c. Each supreme court judge, one copy. 

d. Each district court judge, 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 of the university of North Dakota, one copy. 

i. Each of the five depository libraries in this state, one copy, upon request. 

j. Secretary of state, one copy. 

k. Legislative council, four copies. 

I. Each member of the 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 of the 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 of the 

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 of the 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. 12 
d. 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 of Civil 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. If the 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 b through 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 of the 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 of the 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. 13 
rules may establish procedures for converting an administrative matter from one type of 

proceeding to another type 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 of the 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. 14 
the 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 of violation may not exceed the 

statutorily authorized civil penalty for the violation. For the purposes of this 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 law judge. 

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, if the 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 if taken 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 of statute 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. 15 
28-32-29. 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 of fact 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 of the hearing pursuant to statute or rule and to otherwise effect 

an orderly and prompt disposition of the 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. 16 
2. 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 of the 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 of this 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 of the district court is contempt of court which is 

punishable by the district court, upon application. The judge 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 of the maximum penalty for perjury. 

Page No. 17 
28-32-35. Procedure at hearing. 

The person presiding at a hearing shall regulate the course of the 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 of the 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 of defraying 

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 of the 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. 18 
except counsel for the administrative agency and the agency head may communicate 

regarding settlement and negotiation after recommended findings of fact, 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 of the 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 of the 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 of this section. 

9. Nothing in this section prohibits a member of the 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 of functions. 

1. No person who has served as investigator, prosecutor, or advocate in the investigatory 

or prehearing stage of an 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 of the final order and the findings of fact 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. 19 
3. 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 of fact 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 of the 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 of the 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 of the 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 of the final order. This section does not preclude 

Page No. 20 
an 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 of the 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 after the date of publication in the North Dakota Administrative 

Code of the 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 of the 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 of the 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 of the 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 a jury at 

such time as the court shall determine. 

Page No. 21 
28-32-44. 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 of the district court in which the appeal is pending the 

original or a certified copy of the 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. If the 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 of any 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 of the 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 rul ings 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 of fact and conclusions of law, or 

findings of fact 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 of an 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 of the proposed rule upon which written and oral submissions were made. 

c. A copy of the 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. 22 
e. A copy of any interim rule and the agency's findings and statement of the 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 document that 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. If the notice of appeal specifies that no exception or objection is made to the agency's 

findings of fact, 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 of fact, conclusions of law, and order and 

shall file with the court a transcript of the additional evidence with its new or amended findings 

of fact, conclusions of law, and order, if any, which constitute a part of the 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 of the agency unless it finds that any of the following are present 

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

2. The order is in violation of the constitutional rights of the appellant. 

3. The provisions of this chapter have not been complied with in the proceedings before 

the agency. 

4. The rules or procedure of the agency have not afforded the appellant a fair hearing. 

5. The findings of fact made by the agency are not supported by a preponderance of the 

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 of the agency do not sufficiently explain the agency's 

rationale for not adopting any contrary recommendations by a hearing officer or an 

administrative law judge. 

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 of the court. 

Page No. 23 
28-32-47. 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 of the 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 of the 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 of an 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 of judgment 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. If an appeal from the judgment of the 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 of the 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 

of which was reviewed by the court. The court may withhold all or part of the attorney's 

fees from any award if the 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 of all or a portion .of the attorney's fees unjust. 

Page No. 24 
4. 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 of the 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 if the court finds in favor of that 

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 if the 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's jurisdiction. 

Page No. 25 
- State of -

North Dakota 

Office of the Governor 

Jack Dalrymple 

Governor 

Lisa P. Jackson, Administrator 

May 25,2012 

c/o James Martin, Regional Administrator (8RA) 

U.S. EPA, Region 8 

1595 Wynkoop Street 

Denver, CO 80202-1129 

RE: ND State Implementation Plan for 1997 PM2.s NAAQS and 2008 Lead 

AAQS 

Dear Administrator Jackson: 

The North Dakota Department of Health has reviewed its State 

Implementation Plan (SIP) for the control of air pollution to determine if the 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 "conflict of interest" requirements under 

the Clean Air Act§ 128. The Department of Health has committed to revise the State 

Implementation Plan by May 31, 2013 to address the requirements of§ 128. 

If yo u have any questions regarding the submittal, please contact Mr. Terry 

O'Clair, Director, Division of Air Quality, North Dakota Department of Health at 

701-328-5188. 

Sincerely, 

C: David Glatt, Chief, Environmental Health Section 

Terry O'Clair, Director, Division of Air 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 Lead NAAQS 

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 of the 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 other related matters. 

The North Dakota Air Pollution Control Rules (NDAC 33-15) establishes control requirements 

for lead (Pb) indirectly through the control of particulate 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 of all air pollution control rules. The chapter provides that all 

excess emissions, including emission during startup/shutdown and malfunction, 

are subject to enforcement action. 

Ambient Air Quality Standards 

This chapter establishes a state ambient air quality standard (SAAQS) for lead 

that is identical to the NAAQS. 

Restriction of Emission of Visible Air Contaminants 

The chapter establishes visible emissions standards for both point and area 

sources, including sources of lead emissions. 

Open Burning Restrictions 

The chapter prohibits the open burning unless 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 of Particulate Matter Restricted 

The chapter establishes PM emission limits for fuel burning and industrial 

process type sources. 

Standards of Performance for New Stationary Sources 

The chapter incorporates by reference the standards in 40 CFR 60. 

Emission Standards for Hazardous Air Pollutants 

The chapter incorporates the standards in 40 CFR 61. 

Designated Air Contaminant Sources, Permit to Construct, Minor 

Source Permit to Operate, Title V Permit to Operate 

The chapter provides a preconstruction permitting program for both major and 

minor sources, a federally enforceable state operating permit program (FESOP) 

for minor sources, and a Title V Permit to Operate program for major sources. 

Prevention of Significant Deterioration of Air Quality 

The chapter incorporates by reference the PSD requirements in 40 CFR 52.21. 

Restriction of Fugitive Emissions 

The chapter establishes criteria for the control of fugitive emissions (including 

lead emissions). 

Stack Heights 

The chapter prohibits dispersion of air contaminants through the use of stacks that 

exceed good engineering practice (GEP). 

Visibility Protection 

The chapter establishes requirements for the review of major 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 of 40 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 Air Pollutants for Source Categories 

This chapter incorporates by reference the standards in 40 CFR 63. 

Regional Haze Requirements 

The chapter provides for the application of Best Available Retrofit Technology 

(BART) to affected sources. 

A copy of these 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 that the Department shall: 

NDCC 23-25-03.6- 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. 

NDCC 23-25-03. 7 - Establish ambient air quality standards for the state which may vmy 

according to appropriate areas. 

NDCC 23-25-03.8 - 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. 

Ambient air gualitv monitoring/data system: Section 110(a)(2)(B) of the 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 of 40 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 that the Department shall: 

3 
NDCC 23-25-03.2 - Determine by scientifically oriented field studies and sampling the 

degree of air pollution in the state and the several parts thereof 

NDCC 23-25-03.10 - 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. 

Ambient monitoring is covered in Chapter 6 of the North Dakota SIP. It provides fon the design 

and operation of a monitoring network, reporting of data obtained from the monitors, and annual 

network review including notification to EPA of any changes, and public notification of 

exceedances ofNAAQS. 

Program for enforcement of control measures: Section 110(a)(2)(C) requires SIPs to include 

a program providing for enforcement of all SIP measures and the regulation of construction of 

new or modified stationary sources as necessary to assure that the NAAQS are achieved, 

including a permit program 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 of the NDAPCR. 

The following regulations within the NDAPCR and the North Dakota SIP provide for the 

permitting of sources of lead: 

NDAC 33-15-14-02 

NDAC 33-15-14-03 

NDAC 33-15-14-06 

NDAC 33-15-15 

Permit to Construct 

Minor Source Permit to Operate 

Title V Permit to Operate 

Prevention of Significant Deterioration 

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 of a SIP revision to be 

submitted separately in 2012. NDAC 33-15-14-02 and 33-15-14-03 provide a preconstruction 

and operating permit program for minor sources of lead emissions. 

Authority for the permitting programs is found in NDCC 23-25-03 which states that the 

Department shall: 

NDCC 23-25-03.6- 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 standard, and require that prior to 

commencing construction or modification of any such source, the owner or operator 

4 
I . 

thereof shall submit such information as may be necessary to permit the Department to 

make such determination. 

and 

NDCC 23-25-04.1- Permits and Registration 

I. ljo 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 

necessa1y. 

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 or 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. 

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 of the 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 of Significant Deterioration 

Visibility Protection 

Regional Haze Requirements 

5 
SIP Section 7.8 

SIP 

Interstate Transport of Air Pollution 

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 of any 

new direct or indirect air containment source or modification of any existing direct or 

indirect air containment 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. 

A. Significant Contribution Requirement of Section 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 of the 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 a portion of Dakota 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 or interfere with maintenance on that state1

• 

North Dakota has few sources of lead located within 2 miles of the Minnesota border. 

The following sources emit lead, or lead compounds, due to the combustion of coal and 

include the following: 

2010 Approximate Distance to 

Lead Emissions Nearest Nonattainment 

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 Ambient Air Quality Standards (NAAQS); October, 2011. 

6 
2010 Approximate Distance to 

Lead Emissions Nearest Nonattainment 

Source (tons)* Area (miles) 

University ofNorth Dakota 0.010 285 

North Dakota State 0.007 225 

University 

Minn-Dak Farmers Coop. 0.031 200 

ND State School of Science 0.001 200 

Sanford Medical Center < 0.0001 225 

*Based on AP-42 emission factors 

The small quantity of lead 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 of lead within 2 miles of the border with South 

Dakota and Montana than have emissions greater than 0.001 tons per year. 

B. Interfere with Maintenance Requirement of Section 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 of the NAAQS in any other state. States' submission must address this 

independent requirement of the statute. This provision requires evaluation of impacts 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, if so, address the 

impact. 

North Dakota has no significant sources of lead ~ 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 determination program 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 (RA VI) 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 Transport Provisions: 

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) of the Clean Air Act (CAA) requires each SIP to include 

provisions to notify neighboring states of potential impacts from a new 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-

0 1.2( q)(2)( d) states: 

NDAC-33-15-15-0l.(q)(2)(d)- Send a copy of the notice required in subparagraph c to 

the applicant, the United States environmental protection agency administrator, and to 

officials and agencies having cognizance over the location where the source or 

modification will be situated as follows: the chief executive of the city and county where 

the source or modification would be located; any comprehensive regional land use 

planning agency; and any state, federal land manager, or Indian governing body whose 

lands may be significantly affected by emissions from the source or modification. 

Similar notification requirements are provided for minor sources under NDAC 33-15-14-

02.6.b(4). 

Adequate personnel, funding and authority: Section 11 O(a)(2)(E) of the 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 of the SIP is found in NDCC 23-

25-03 which states: 

23-25-03. Power and duties to the Department. The Department shall: 

8 
• Encourage the voluntary cooperation of persons or affected groups to achieve the 

purposes of this chapter. 

• Determine by scientifically oriented field studies and sampling the degree of air 

pollution in the state and the several parts thereof 

• Encourage and conduct studies, investigations, and research relating to air 

pollution and its causes, effects, prevention, abatement and control. 

• Advise, counsel, and cooperate with other public agencies and with affected 

groups and industries. 

• Issue such orders as may be necessary to effectuate the purposes of this chapter 

and enforce the same by all appropriate administrative and judicial procedures. 

• 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 containment source which the Department determines will prevent the 

attainment or maintenance of any ambient air quality standards, 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. 

• Establish ambient air quality standards for the state which may vary according to 

appropriate areas. 

• Formulate and promulgate emzsszon control requirements for the prevention, 

abatement, and control of air pollution in the state including achievement of 

ambient air quality standards. 

• Hold hearings relating to any aspect or matter in the administration of this 

chapter, and in connection therewith, compel the attendance of witnesses and the 

production of evidence. 

• Require the owner or operator of a 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, and procedures; and provide 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 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 

9 
ambient standards, emzsswn limitations, and other control measures, means, 

techniques, or economic incentives such as fees, marketable permits, and actions 

of emission 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. 

• 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. 

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 the provisions of North Dakota 

Century Code chapter 23-25. 

The provisions of the SIP are carried out by the Department of Health. The only portion of the 

SIP that has been delegated is approval of open 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 of the 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 of emissions emitted. Fees are collected 

annually from both major sources and minor sources. In addition, fees are charged for reviewing 

applications for the construction of new or modified sources. Title V fees are adjusted annually 

to match the change in the consumer price index. 

The Department does not anticipate the construction of any 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 of new or modified sources of air pollution and the enforcement of the air pollution 

control rules. In addition, another 5 people are dedicated to monitoring air quality. 

NDCC 23-25-04.2 provides the statutory authority for collecting fees. 

NDCC 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. 

10 
Resources for the operation of the 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 other control 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 must be disclosed (See attachment 21 ). 

Stationary source monitoring system: Section 11 O(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 of emissions 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 of a 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, and procedures; and provide such other 

information as may be required. 

Source surveillance is also addressed in Chapter 8 of the SIP. This chapter provides for the 

permitting of sources, inspection of the sources and compliance determinations. 

Emergency episodes: Section 110(a)(2)(G) of the CAA requires states to provide for authority 

to address activities causing imminent and substantial endangerment to public health, including 

contingency plans to implement the 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 that the Department shall: 

11 
NDCC 23-25-03.5 - Issue such orders as may be necessary to effectuate the purposes of 

this chapter and enforce the same by all appropriate administrative and judicial 

procedures. 

NDCC 28-32-32 (Appendix B of SIP) 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 

imminent peril to public health, safety or welfare. 

In addition, NDCC 23-25-08 states "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." 

North Dakota does not have any stationary sources that emit a significant amount of lead, 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 of lead that a contingency plan is not required. The Department 

believes the emissions of PM10 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 PM10 in NDAC 33-15-11 which address coal combustion. 

Future SIP revisions: Section 11 O(a)(2)(H) of the CAA requires states to have the authority to 

revise their SIPs in response to changes in the NAAQS, availability of improved 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 and promulgate emission control requirements for the 

prevention, abatement and control of air pollution in this state including achievement of 

ambient air quality standards. 

NDCC 23-25-03.12 - Provide by rules any procedures necessmy 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 of emissions rights as provided 

by the Act. The Department shall develop and implement such as federal programs if the 

Department determines there is a benefit to the state. 

The North Dakota SIP, Section 1.14, commits the Department to 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 implementation plan 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 if the finding of the Administrator is in accordance with the requirements of the 

Federal Clean Air Act." 

Consultation with government officials: Section 110(a)(2)(J) of the 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 33-15-15-0 1.2( q) require notification of the chief executive of the 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 of the SIP. This Chapter of the SIP commits the 

Department to consultation with adjacent state, local government and other state agencies 

whenever a SIP revision is required. 

Public notification: Section 11 O(a)(2)(J) .of the CAA further requires states to notify the public 

if NAAQS 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 of the public, on a 

regular basis, whenever an ambient air quality standard is exceeded. The public will be advised 

of the 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 of Part C related to prevention of significant 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 Department has 

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 

of air quality modeling for predicting effects on air quality of emissions of any NAAQS pollutant 

and the submission of such data to EPA upon request. 

Air quality modeling is addressed in Section 7.7 of the 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 

modeling upon request. 

Modeling for minor sources is addressed in NDAC 33-15-14-02.4 while modeling for major PSD 

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 field studies and sampling the 

degree of air pollution in the state and the several parts thereof 

and 

NDCC 23-25-03-12 - 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 Air Act, as amended, and the authorities and 

responsibilities of which are delegateable to the state by the United States Environmental 

Protection Agency. Such rules may include any and all enforceable ambient standards, 

emissions limitations, and other control measures, means, techniques, or economic 

incentives such as fees, marketable permits, and auctions of emissions 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. 

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 

of a fee program under Title V ofthe Clean Air Act. 

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 in NDCC 23-25-04.2. 

14 
NDCC 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 for the issuance of 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. 

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 

program received full approval from EPA effective August 16, 1999 (64 FR 32433). 

Consultation/participation by affected local entities: Section 11 O(a)(2)(M) requires SIPs to 

provide for consultation and participation in SIP development by local political subdivisions 

affected by the SIP. 

No other state or local entities are responsible for developing the SIP. Implementation and 

enforcement of open burning request approvals has been delegated to several local health units. 

The Department retains responsibility for ensuring adequate implementation of all SIP revisions. 

No other portions of the SIP have been delegated to other organizations. 

The North Dakota SIP, Chapter 10, addresses the consultation process the Department will 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: 

NDCC 23-25-03.4- Advise, consults and cooperates with other public agencies and with 

affected groups and industries. 

Intergovernmental cooperation, Section 10 of North Dakota's SIP, addresses the process for 

sharing information and working with other government 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 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 ofNorth 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 of this 

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 Commitment Letter 

22. Public Participation Documentation 

17 
a. Abbreviated Public Notice 

b. Full Public Notice 

c. Press Release 

d. Website Notice 

e. Affidavit of Publication 

f. Invoice ofPublication 

g. List of Hearing attendees 

h. Hearing transcript 

1. Response to Public Comments 

J. Certification of Hearing 

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 of the 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 of three years, persons 

to take the place of members whose terms on the council are about to expire. The officers of the 

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 of the 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 

of the council. 

Page No.1 
2. 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 of the 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 of the newborns and their families is protected. 

23-01-03.2. Duties of the 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 of the 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 of the 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. 2 
23-01-04. Effect of rules and regulations. 

All rules and regulations promulgated by the health council under the powers granted by 

any provisions of this 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 of the 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 of the filing of the 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 of the department has been adopted in compliance with this section. 

6. The provisions of this 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. 3 
detailed 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 

of the 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 officer who 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 of the state department of health. If the 

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 of the advisory committee coincides 

with the term of the state health officer. A committee member serves at the pleasure of the 

governor. The duties of the 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 of the 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 of the 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 of disease 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.4 
11. 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 a judicial 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 of the 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 of the 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 of whether 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 of the 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 of this 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. 5 
2. 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 

of that 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 of vaccination: 

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 of the date 

of the 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 of their 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 or the 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.6 
a. "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 of the 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 if the 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 if there is no criminal investigation. 

d. To the child fatality review panel if there 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 of the autopsy report to: 

a. The decedent's personal representative and to the decedent's spouse, child, or 

parent, upon proof of the relationship, if there 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 if there 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. 7 
23-01-06. 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 of the program of each of the divisions. 

2. The expenditures of the state department of health. 

3. The expenditures in each county board of health or the 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 of the various divisions of the 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 of the 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 of this 

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 under the supervision of the 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 
person. 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 of this 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 of the 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 of the 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. 9 
23-01-18. 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 of traumatic 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 of the 

operating procedure and conditions of the 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 23-29-1 0 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 of the 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. If a facility begins operation after July first of 

any year, the owner or operator of the 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 

. 
health 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 of volunteer 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 of the program; 

4. Provision of appropriate administrative and technical support to the program; and 

5. Submission of an 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 or joint 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 of this 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. 11 
system 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 

of a 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 of children with special health care needs. 

Page No. 12 
23-01-35. 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 of this 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 if the facility provides body piercing that is limited 

to the piercing of the noncartilaginous perimeter or lobe of the ear and the facility do·es 

not provide tattooing, branding, scarification, or subdermal implants. A person is 

exempt from regulation under subsection 2 if the 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. If a 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 of the 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. 13 
permit 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 of the prior authorization request. For purposes of this 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 of the centers for disease control and prevention. 

Page No. 14 
f. "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 

Security Act [42 U.S.C. 1396s]. 

2. As part of the North Dakota immunization program: 

a. The department shall implement a provider choice system as part of the state's 

implementation of the 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 administer the 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 of this 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 of air 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 powder when 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 of air 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 of this state, any other state or political subdivision or agency thereof, and 

any legal successor, representative agency, or agency of the 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 of this chapter. 

Page No. 1 
2. 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 of the 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 of their 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 of the 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 of any 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 of this chapter. 

23-25-03. Power and duties of the department. 

The department shall: 

1. Encourage the voluntary cooperation of persons or affected groups to achieve the 

purposes of this 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 of this 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. 2 
9. Hold hearings relating to any aspect or matter in the administration of this 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 of the 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 of emissions 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 Air Act, 

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. 3 
6. To establish indoor environmental nonoccupational air quality standards for asbestos. 

7. To adopt and enforce rules as necessary for the implementation of this 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 Air Act [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 Air Act, 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 if the 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 of the benefits and costs of the rule and of the 

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 of the 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.5 
23-01-04.1. 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 of this 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 of the 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.6 
23-25-05. 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 of this 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 of the 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.7 
the 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 of this 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] of the property 

boundary of the 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.8 
measure seven odor concentration units or higher as measured at any of the 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 of the 

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] of the source of the 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. If a 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 if the 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, 

after the 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.9 
by 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 of this 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; 

(1 0) 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 under this 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 of emergency 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 of equalization. 

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 of the 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.1 
r. 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 of the 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 

similar form 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. 

1 0. "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 of an agency statement of general 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 of the 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, if the disclosure of the 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, if the substance of the 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 of the form. 

h. An agency budget. 

i. An opinion of the 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 of agency -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 of that 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 

of the 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 of federal 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 of the declared effective date of the 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. 3 
used 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 of the rules is repealed or transferred 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 of the 

effective date of the statutory change. If an 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 of a 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.4 
a. 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, of the 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 of the 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 of the 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 of a regulatory analysis is 

a mandatory duty of the agency proposing a rule. Errors in a regulatory analysis, 

including erroneous determinations concerning the impact of the 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.5 
c. The probable cost and benefit to private persons and consumers who are 

affected by the proposed rule; 

d. The probable effect of the 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 sl 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 of the 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 of the 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.6 
f. Certify that the benefits of the 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 of the 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 

of the 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 of the proposed adoption, amendment, or repeal of a rule 

must include a short, specific explanation of the 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 of the 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 

of the 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 of the proposed rules, identification of the 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 of the 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 of the 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 of the rules to each member 

of the legislative assembly whose name appeared as a sponsor or cosponsor of 

legislation enacted during the most recent session of the -legislative assembly which is 

being implemented by the proposed rule and to any person requesting a copy. The 

Page No.7 
agency may charge persons who are not members of the legislative assembly fees for 

copies of the 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 of each public school district in this state, or the president of the 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 of the filings. 

5. At least twenty days must elapse between the date of the publication of the notice and 

the date of the 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 after the effective date of the 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 of the agency or is written in a manner that is not 

concise or easily understandable or when the procedural requirements for adoption of the rule in 

Page No. 8 
this 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 of the 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 of the 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 of all 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.9 
4. 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. If the agency fails to meet its burden of persuasion, the court 

shall declare the whole or portion of the 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 of agency and committee. 

1. The legislative management's administrative rules committee may find that all or any 

portion of a rule is void if that rule is initially considered by the committee not later than 

the fifteenth day of the month before the date of the 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 if the 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 of this chapter for adoption of the 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 of the 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 if the 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 1 to 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. If the 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. 10 
or 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 of existing 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 of the 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 of the 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 of administrative 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 of the 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 of the 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 of effective 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 of the preceding issue of the 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 of the 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 

Page No. 11 
code supplement shall provide a copy of the rules to any person upon request. The 

agency may charge a fee for a copy of the 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 of the code, revisions, and the code supplement without charge to the 

following : 

a. Governor, one copy. 

b. Attorney general, one copy. 

c. Each supreme court judge, one copy. 

d. Each district court judge, 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 of the university of North Dakota, one copy. 

i. Each of the five depository libraries in this state, one copy, upon request. 

j. Secretary of state, one copy. 

k. Legislative council, four copies. 

I. Each member of the 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 of the 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 of the 

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 of the 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. 12 
d. 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 of Civil 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. If the 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 b through 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 of the 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 of the 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. 13 
rules may establish procedures for converting an administrative matter from one type of 

proceeding to another type 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 of the 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. 14 
the 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 of violation may not exceed the 

statutorily authorized civil penalty for the violation. For the purposes of this 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 law judge. 

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, if the 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 if taken 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 of statute 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. 15 
28-32-29. 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 of fact 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 of the hearing pursuant to statute or rule and to otherwise effect 

an orderly and prompt disposition of the 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. 16 
2. 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 of the 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 of this 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 of the district court is contempt of court which is 

punishable by the district court, upon application. The judge 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 of the maximum penalty for perjury. 

Page No. 17 
28-32-35. Procedure at hearing. 

The person presiding at a hearing shall regulate the course of the 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 of the 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 of defraying 

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 of the 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. 18 
except counsel for the administrative agency and the agency head may communicate 

regarding settlement and negotiation after recommended findings of fact, 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 of the 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 of the 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 of this section. 

9. Nothing in this section prohibits a member of the 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 of functions. 

1. No person who has served as investigator, prosecutor, or advocate in the investigatory 

or prehearing stage of an 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 of the final order and the findings of fact 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. 19 
3. 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 of fact 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 of the 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 of the 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 of the 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 of the final order. This section does not preclude 

Page No. 20 
an 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 of the 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 after the date of publication in the North Dakota Administrative 

Code of the 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 of the 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 of the 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 of the 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 a jury at 

such time as the court shall determine. 

Page No. 21 
28-32-44. 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 of the district court in which the appeal is pending the 

original or a certified copy of the 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. If the 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 of any 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 of the 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 rul ings 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 of fact and conclusions of law, or 

findings of fact 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 of an 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 of the proposed rule upon which written and oral submissions were made. 

c. A copy of the 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. 22 
e. A copy of any interim rule and the agency's findings and statement of the 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 document that 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. If the notice of appeal specifies that no exception or objection is made to the agency's 

findings of fact, 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 of fact, conclusions of law, and order and 

shall file with the court a transcript of the additional evidence with its new or amended findings 

of fact, conclusions of law, and order, if any, which constitute a part of the 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 of the agency unless it finds that any of the following are present 

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

2. The order is in violation of the constitutional rights of the appellant. 

3. The provisions of this chapter have not been complied with in the proceedings before 

the agency. 

4. The rules or procedure of the agency have not afforded the appellant a fair hearing. 

5. The findings of fact made by the agency are not supported by a preponderance of the 

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 of the agency do not sufficiently explain the agency's 

rationale for not adopting any contrary recommendations by a hearing officer or an 

administrative law judge. 

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 of the court. 

Page No. 23 
28-32-47. 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 of the 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 of the 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 of an 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 of judgment 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. If an appeal from the judgment of the 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 of the 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 

of which was reviewed by the court. The court may withhold all or part of the attorney's 

fees from any award if the 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 of all or a portion .of the attorney's fees unjust. 

Page No. 24 
4. 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 of the 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 if the court finds in favor of that 

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 if the 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's jurisdiction. 

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 of Visible 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 of Air 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 of Air 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 of Air Contaminants 

Shutdown and Malfunction of an Installation - Requirement 

for Notification 

Time Schedule for Compliance 

Prohibition of Air Pollution 

Confidentiality of Records 

Enforcement 

Compliance Certifications 

33-15-01-01. Purpose. It is the purpose of these air quality standards and 

emission regulations to state such requirements as shall be required 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 for the people, and to facilitate the enjoyment 

of the natural attractions of this 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 administer this article under the 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 of one 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 of the 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 of twenty-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 of fertilizer 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, or combustion qualities of coal 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 of air 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 material for the primary purpose of producing heat or power 

by indirect heat transfer. 

14. "Fugitive emissions" means solid airborne particulate matter, fumes , 

gases, mist, smoke, odorous matter, vapors, or any 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 of a structure used for the destruction of 

garbage, rubbish , or other wastes 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 of creating 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 of two or more refractory lined combustion furnaces 

in series physically separated by refractory walls, interconnected by gas 

passage ports or ducts and employing adequate parameters necessary 

for maximum combustion of the 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 after July 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 of an additional or greater amount of air 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 air without 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 of this 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 of unfinished 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. "PM10" means particulate matter with an aerodynamic diameter less 

than or equal to a nominal ten micrometers. 

34. "PM10 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, of sulfur per one hundred standard cubic feet [2.83 cubic 

meters]. 

36. "Premises" means any property, piece of land or real estate, or building. 

37. "Process weight" means the total weight of all materials introduced into 

any specific process which may cause emissions. Solid fuels charged 

will be considered as part of the process weight, but liquid and gaseous 

fuels and combustion air will not. 

38. "Process weight rate" means the rate established as follows: 

a. For continuous or longrun steady state operations, the total process 

weight for the entire period of continuous 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 of this 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 of any 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, that form a visible 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 of combustion 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 or chimney" means any flue, conduit, or duct arranged 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 any fill pipe the discharge opening 

of which 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 of America 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 

OF - degree Fahrenheit 

ft - feet 

g - gram 

gal - gallon 

g eq - gram equivalents 

gr - grain 

hr - hour 

HCI - hydrochloric acid 

Hg - mercury 

H20 - water 

H2S - hydrogen sulfide 

H2S04 - sulfuric acid 

Hz hertz 

in. inch 

joule 

OK - 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 

psi a 

psig 

OR 

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 matter with an aerodynamic diameter~ 1 0 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 of the 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 of air 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 of this 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 of this 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 of emissions 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 of the 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 of any tests of emissions of air contaminants 

required by the department. Advanced notification for all other testing 

will be consistent with the requirements of the appropriate regulations 

but in no case will be less than thirty calendar days. If the 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 

of emissions of air contaminants from any source. 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. 

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 of the specific facility to be taken out of service as well 

as its location and permit number. 

b. The expected length of time that the 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 of off-shift labor and equipment that will 

be taken to minimize the length of the shutdown period. 

e. The reasons that it would 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 of air contaminants in excess 

of the rate allowed by this article or a permit issued pursuant to this 

article. 

2. Malfunctions. 

a. When a malfunction in any installation occurs that can be expected 

to last longer than twenty-four hours and cause the emission of air 

contaminants in violation of this article or other 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 of the 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 of the 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 of a 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 of going into 

continuous routine operation for its intended purpose. 

2. Existing installations. Every existing installation shall be in 

compliance as of July 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 of confidentiality under this subsection; and 

(3) An index to and summary of the 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 of the 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 

of that determination. If the 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 of the 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 of this 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 of confidentiality. 

4/2011 18 
9. Relationship to issuance of permits. The department may not 

process any application for a permit to construct or operate pursuant to 

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 of this article. 

a. Information from the use of the following methods is presumptively 

credible evidence of whether a violation has occurred at a source: 

(1) A compliance assurance monitoring protocol approved for the 

source pursuant to subsection 1 0 of section 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 a false 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 knowingly falsify, tamper with, 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 of section 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 of these 

ambient air quality standards, the quality should be such that: 

1. The public health will be protected including sensitive or susceptible 

segments of the 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 that would be injurious to human health 

or well-being or unreasonably interfere with the enjoyment of property 

or that would 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 of the 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 a violation in the ambient air of those standards stated 

in section 33-15-02-04. 

2. Nothing in any other part or section of this article may in any manner be 

construed as authorizing or legalizing the emission of air 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 

PM1o 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 of the annual 99th percentile 

of the 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 of air), 

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 4 
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 of the 

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 of the annual 98th percentile 

of the 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 

of air) 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 

of the designation for the one-hour sulfur dioxide standard pursuant to 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 6 
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 applicable to new 

installations shall comply with 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 of the 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 of emission 

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 air from any single source of emission whatsoever any 

air contaminant which exhibits an opacity greater than twenty percent except that 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 

of an 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. Where fugitive 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 of Appendix 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 

3 
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 of a 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 if the 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 under this 

section does not exempt or excuse a person from the consequences, damages, or 

injuries that may result therefrom. 

1. The following types of burning are specifically authorized but are subject 

to the conditions listed in subsection 2 as well as any condition included 

as part of this subsection: 

a. Fires purposely set for the instruction and training of public and 

industrial firefighting personnel. 

b. Fires set for the elimination of a 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 of disposal 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 other fires used solely for recreational purposes, for 

ceremonial occasions, or for outdoor preparation of food. 

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 estimates the number 

of acres burned, the fuel loading, and the amount of emissions. 

f. The burning of trees, brush, grass, wood , and other vegetable 

matter in the clearing of land, right-of-way maintenance operations, 

and agricultural crop burning. 

g. The burning of refuse and other combustible materials generated 

in the operation of a domestic household if the 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 of liquid hydrocarbons that 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 

of oil exploration, development, production, refining , or processing 

operations if the 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 by the 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 of dirt on the material 

being burned and the material must be dry enough to burn cleanly. 

2 
d. Oils, rubber, and other materials that produce unreasonable 

amounts of air 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 of such area is adversely impacted. 

i. Except in an emergency, the visibility of any 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 

3