# -- ENVIRONMENTAL HEALTH SECTION Gold Seal Center, 918 E. Divide Ave. 

### NORTH DAKOTA Bismarck, ND 58501-1947 DEPARTMENT

### of HEALTH 701.328.5200 (fax) www.ndhealth.gov 

### April 9, 2009

Ms. Carol Rushin Acting Regional Administrator U.S. EPA, Region 8 1595 Wynkoop Street Denver, CO 80202-1129 Re: SIP Revision DearMs. Rushin: Accompanying this letter is a letter from Governor Hoeven to Administrator Jackson formally submitting revisions to the North Dakota State Implementation Plan (SIP) for the control ofair pollution. The SIP revision addresses Interstate Transport relating to the 1997 8-hour ozone and PM25 NAAQS, implementation ofthe current NAAQS for PM 10 •

### PM25 and ozone as well as revisions to several chapters ofthe North Dakota Air Pollution Control Rules that are part ofthe SIP. The specific changes are addressed in the attached summary. Ifyour staffhas any questions about the revisions, please have them contact Tom Bachman of my staffat (701)328-5188. Sincerely,

Terry 

### L. O'Clair, P.E. Director Division ofAir Quality 

# RECEIVED TLO/TB:saj xc: Amy Platt, EPA, Region 8, 8P-AR Domenico Mastrangelo, EPA, Region 8, 8P-AR 

# 'USEPAMSOFFICE

Environmental Health Division of Division of Division of Division of Section Chief's Office Air Quality Municipal Facilities Waste Management Water Quality 701.328.5150 701.328.5188 701.328.5211 701.328.5166 701.328.5210 Printedon recycledpaper.

# State of 

# NorthDakota Office of the Governor 

### John Hoeven Governor

April 6, 2009 LisaJackson, Administrator c/o Ms. Carol Rushin Acting Regional Administrator U.S. EPA, Region 8 1595 Wynkoop Street Denver, CO 80202-1129 DearAdministratorJackson: I am submitting to the Environmental Protection Agency five copies of revisions to the State Implementation Plan for the Control of Air Pollution for the State of North Dakota. The State Health Department held a hearing on October 7, 2008 to receive testimony concerning amendments to the Air Pollution Control Rules and changes to the State Implementation Plan. Consideration has been given to the testimony as well as written comments received during the public commentperiod. A copy ofthe hearing record is incorporatedwith the revisions. Ifyou have any questions concerning the revisions, please feel free to contact the Division ofAir Quality ofthe Health Department at (701)328-5188.



# -

Ene: C: Dave Glatt, EHS Chief Terry O'Clair, Director

- Air Quality 38:63:59

600 E BoulevardAve. Bismarck, ND58505-0001 Phone: 701.328.2200

Fax: 701.328.2205

www.nd.gov,1- 

### Summary ofSIP Changes 4/09 A. InterstateTransport for the 1997 8-hourozone and PM25 NAAQS. Subsection 7.8.1: Entirelynew subsection
B. Implementation ofthe PMIO, PM2.5 and OzoneNAAQS.
Subsection 1.1.4: Revisionsto the Implementation Plan

- entirelynew subsection
Subsection 2.1.5: Respecting Boards

- entirely new subsection
Section 6.8: Annual Network Review

- replaces previous Section 6.8
Section 6.11: Deleted
Subsection 6.11.1:

Subsection 6.11.2:

Subsection 6.11.3: Air Quality Surveillance ParticulateMatter (PM2.5)

- replacement subsection
Air Quality SurveillanceParticulate Matter (PM!o)

- replacement subsection
Air Quality Surveillance Ozone

- replacement subsection
Section 7.7: Air QualityModeling

- new section
Section 7.8: Interstate Transport ofAirPollution

- new section Chapter9: Resources

- replaces previous Chapter9
C. Air Pollution Control Rules Chapter 33-15-01: General Provisions Section 33-15-01-04

-replacement 

# ,'­ Section 33-15-01-05

-replacement

### Section 33-15-01-13

- replacement Chapter 33-15-02: Ambient Air Quality Standards Table 1 ­ Revision to PM IO, 

### PM2.5 and Ozone Standards Chapter 33-15-05: Emissions ofParticulate Matter Restricted Subdivision 33-15-05-03.2.2.d

­ deleted Chapter 33-15-14: Subsection 33-15-14-01.14

- revised Chapter 33-15-15: Prevention ofSignificant Deterioration ofAir Quality Section 33-15-15-01.2

- Revised Chapter 33-15-23: Fees Subsection 33-15-23-03: Revised

### FINAL Revisions to Implementation Plan for the Control ofAirPollution and The AirPollution Control Rules

ofthe State ofNorth Dakota

North DakotaDepartment ofHealth Division ofAir Quality Air Pollution Control Program 918 E DivideAvenue Bismarck, NorthDakota 58501-1947 April 2009

### TABLE OF CONTENTS
Revisions to the Implementation Plan for the Control ofAir Pollution for the State ofNorth Dakota Section I Hearing Record Section II State Laws.. Section 

### III Revisions to the AirPollution Control Rules ofthe State of North Dakota......................................................................................................... Section IV Legal Opinion ofthe Attorney General.................................................................................................................. SectionV

### SECTION I FINAL REVISION TOTHE IMPLEMENTATION PLAN FORTHE CONTROLOF AIR POLLUTION

FOR THE STATE OFNORTH DAKOTA

CHAPTER 1

- SUBSECTION 1.1.4 (New), REVISIONS TOTHEIMPLEMENTATION PLAN CHAPTER2

- SECTION 2.15 (New), RESPECTING BOARDS CHAPTER 6

- SECTION 6.8 (Replacement), ANNUALNETWORKREVIEW

- SUBSECTION 6.11.1 (Replacement), AIR QUALITY SURVEILLANCE: PARTICULATE MATTER (PM2.s)

- SUBSECTION 6.11.2 (Replacement), AIR QUALITY SURVEILLANCE: PARTICULATE MATTER (PMIO)



### - SUBSECTION 6.11.3 (Replacement), AIR QUALITY SURVEILLANCE: OZONE CHAPTER7

- SECTION 7.7 (New), AIR QUALITY MODELING

- SECTION 7.8 (New), INTERSTATE TRANSPORT OF AIR POLLUTION

- SUBSECTION 7.8.1 (New), INTERSTATETRANSPORT RELATING TOTHE 1997 8-HOUR OZONEAND PM2.s NATIONAL AMBIENTAIR QUALITY STANDARDS CHAPTER 9: RESOURCES (Replacement)

### (New section) 1.14. 

### REVISIONS TO THE IMPLEMENTATION PLAN

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 standards. The Department will also revise the implementation plan whenever the Administrator of the United States Environmental Protection finds, on the basis of information available to the Administrator, that the plan is substantially inadequate to attain the National Ambient Air Quality Standard 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 1S 

### in accordance with the requirements of the Federal .Clean Air Act.

### (New section) 2.15. RESPECTING· BOARDS



### Section 110(a) (2) (E) (ii) of the Federal Clean Air Act requires compliance with the requirements respecting state boards under Section 128. Section 128 requires each implementation plan to contain requirements that:
(1) any board or body which approves permits or enforcement orders under this Act shall have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to permits or enforcement orders under this Act, and
(2) any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed.

A state may adopt any requirements respecting conflicts of interest for such boards or bodies or heads of executive agencies,
or any other entities which are more stringent than the requirements of paragraphs (1) and (2), and the Administrator shall approve any such more stringent requirements submitted as part of

.,......... 

### an implementation plan.

### North Dakota has no boards that approves permits or enforcement orders; therefore, this section of the Act is not applicable
.



## •

### (Section 6.8 is deleted and replaced with the following) 6.8. ANNUAL NETWORK REVIEW
Commencing on 0anuary 1 of each year, the ambient air quality monitoring network will be reviewed to determine if additional monitoring is needed or if existing stations are no longer necessary. The review process will take into account the network design criteria established In 40 

### CFR Part 58.10. 

### A report of the findings will be submitted to EPA by July 1 of each year, along with a schedule to implement those revisions deemed necessary.•. 

### (Section 6.11 is deleted and replaced with the following) 6.11.1. AIR QUALITY SURVEILLANCE: PARTICULATE MATTER (PM2 . 5 )



### The State of North Dakota will maintain a PM2 . 5 

### network as long
as the need for PM2 .5 

### data exists. The number and location of samplers will be determined by the State's need in accordance with Section 6.8. The current installed network (October 2008) lS 

### listed in the following table and displayed in Map 1. As revisions
are made to the monitoring network, an updated description of the network will be available from the Department.

PM2 . 5 

### Sites

Site Name Sampler Type Beulah-North Manual 

### & Continuous Bismarck Residential Manual 

### & Continuous Dunn Center Continuous Fargo NW Manual 

### & Continuous Hannover Continuous Lostwood NWR Continuous

TRNP

- NU Manual 

### & Continuous *TRNP

- SU Manual 

### & Continuous 

### * TRNP-SU is a National Park Service site operated by the Department .

# __ PM 2.5 

## Monitoring Sites

® Dunn Center

Bismarck

# L,------',------~---J

# "-------~_~**--------'L-~_~_~~~L** Map 1**6~11.2** 

### Air Quality Surveillance: Particulate Matter (PM10 )



### The State of North Dakota will maintain a PM10 

### network as long
as the need for PM10 

### data exists. The number and location of samplers will be determined by the State's need in accordance with Section 6.8. The current installed network (October 2008) is listed in the following table and displayed in Map 2. As revisions
are made to the monitoring network, an updated description of the network will be available from the Department.

### PM10 

### Sites

Site Name Sampler Type Bismarck Residential Continuous Dunn Center Continuous Fargo NW Continuous Lostwood Continuous TRNP

- NU 

### Continuous Beulah

- North Continuous



## PM10 

## Monitoring Sites

Bismarck @ Fargo 

# * Dunn Center TRNP· NU ®

Map 2

### 6.11.3 Air Quality Surveillance: Ozone

The State of North Dakota will maintain an ozone network as long as the need for ozone data exists. The number and location of samplers will be determined by the State's need in accordance with Section 6.8. 

### The current installed network (October 2008) 

### is listed in the following table and displayed in Map 3. As revisions
are made to the monitoring network, an updated description of the network will be available from the Department.

Ozone Sites

Bismarck Residential Beulah-North Dunn Center Fargo NW 

### Hannover Lostwood NWR 

### TRNP

- NU *TRNP

- SU 

### * TRNP-SU is a National Park Service site operated by the Department.

## OzoneMonitoring Sites

### (New Section) 7.7 AIR QUALITY MODELING

The Department will perform such air quality modeling as necessary for the purpose of predicting the effect on ambient air quality of any emissions of any air contaminant for which a State
or National Ambient Air Quality Standard has been established. The Department will submit, upon request, data related to the air quality modeling to the Administrator of the Environmental Protection Agency. Air quality modeling for new or modified
sources will be conducted in accordance with Subsection 33-15-14­ 02.4 and Section 33-15-15-01.2 of the North Dakota Administrative Code (NDAC) Public comment and transmittal of modeling data to EPA for new or modified sources will be in accordance with NDAC 33­ 15-14-02.6 and 33-15-15-01.2.

### (New Section) 7.8 INTERSTATE TRANSPORT OF AIR POLLUTION

Section 110(a) (2) (D) (i) of the Federal Clean Air Act requires State Implementation Plans to contain adequate provisions prohibiting any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will:
(1) Contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any such national primary or secondary ambient air quality standard, or
(2) Interfere with measures required to be included ln the applicable implementation plan for any other state under Part C to prevent significant deterioration of air quality or to protect visibility.

In the review process for new or modified stationary sources,
or other types of emissions activities, the Department will assess the impact on neighboring states. When emissions are reasonably suspected of contributing significantly to the ambient air quality concentration in neighboring states, receptors for any dispersion modeling analysis will be placed in the neighboring state and the compliance status with respect to the National Ambient Air Quality Standards and Prevention of Significant Deterioration increments

### will be determined. With respect to visibility, an assessment of the impact on PSD Class I area's visibility will be made when a significant impact is suspected. The analysis will be conducted in accordance with Chapters 33-15-14, 33-15-15, and 33-15-19 of the Air Pollution Control Rules.

7.8.1 Interstate Transport Relating to the 1997 8-hour Ozone and PM2 .5 

### National Ambient Air Quality Standards.1 

### Section 7.8.1 Interstate Transport Relating to the 1997 8-hour Ozone and PM2 . S 

### National Ambient Air Quality Standards
A. Overview Section 110 (a) (2) (D) (I) of the Clean Air Act states that each State must submit a State Implementation Plan (SIP) that contains adequate provisions: (i) prohibiting, consistent with the provisions of this title, any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will (I) contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any such national primary or secondary ambient air**qual~ty** 

### standard, or (II) interfere with measures required to be included in the applicable implementation plan under Part C to prevent significant deterioration of air quality or to protect visibility. B. 

### Nonattainment and Maintenance Area Impact To demonstrate that emissions from North Dakota do not significantly contribute to nonattainment or interfere with maintenance of compliance with the National Ambient Air Quality Standards for ozone or particulate matter with an aerodynamic diameter of less than or equal to 2.5 micrometers (PM2 . S )' 

### North Dakota relies on the modeling conducted by the 

### u.S. Environmental Protection Agency during the development of the Clean Air Interstate Rule (CAIR) and on monitoring data and attainment status for the appropriate upwind and down wind areas. Supporting data and analysis for PM2 . S 

### and ozone follows. North Dakota, as reported in the May 12, 2005 Federal Register Final Rule notice, was one of the 37 states that were evaluated for impact on nonattainment areas (70 CFR 25188, May 12, 2005). The results of EPA's modeling analysis, which determined the maximum contribution from each upwind state to downwind PM2 . S 

### nonattainment, indicate that the maximum North Dakota contribution to downwind states was well below the interstate transport threshold of 0.2 Ug/mJ (70 FR 25247, Table VI-7, May 12, 2005).2 

### The closest nonattainment area for PM2 . 5 

### is at Libby, Montana, which is approximately 450 miles from the western most border of North Dakota. This nonattainment area is generally upwind of North Dakota and is influenced by local factors including topography and meteorology. Because the nonattainment area is generally upwind of North Dakota emission sources and the large distance between these sources and the nonattainment area, it is unlikely that North Dakota sources significantly contribute to nonattainment. To determine which of the initial 37 states contributed significantly to ozone interstate transport, in its Proposed and Final CAIR Federal Register notices EPA adopted modeling domains that excluded large parts of six states, one of which is North Dakota (69 FR 4584 and 4600, January 30, 2004; 70 FR 25246, May 15, 2005). North Dakota uses available monitoring and nonattainment information to demonstrate that it is unlikely that the State contributes significantly to ozone nonattainment or interferes with ozone maintenance in downwind states. The closest nonattainment area for the 8-hour ozone standard is located in Colorado (Fort Collins, Boulder, Denver area)
. The northern border of this area is located approximately 325 miles south-southwest of the southwestern most point of North Dakota. The next closest nonattainment area is located along the eastern edge of Wisconsin, approximately 400 miles from the eastern border of North Dakota. The Wisconsin area is generally located downwind of North Dakota emission sources while the Colorado area is not. Monitoring data gathered by the states and reported by the EPA Air Quality System indicates that during the years 2004-2006 none of the monitors in the State of North Dakota showed exceedances for the 8-hour ozone standard. During the same three-year period the monitors in Iowa and Minnesota, the closest and most likely to be affected among the downwind states, measured 8-hour ozone exceedances on less than 0.5 percent of the days. Iowa monitors monitored 8-hour exceedances on two days, and Minnesota monitors on three days. The absence of 8-hour ozone exceedances in North Dakota combined with the rare occurrence of exceedances in Iowa and Minnesota make it unlikely that the State of North Dakota contributes significantly to ozone transport affecting attainment or interfering with maintenance of NAAQS standards in downwind states.

# - 3 

### Based on the conclusions drawn above about the unlikely occurrence of significant interstate transport of ozone from North Dakota to Minnesota or Iowa, it would follow that such a transport would be even less likely from North Dakota to the Wisconsin nonattainrnent area, which lies significantly further east than Minnesota. Based on the results of the EPA's modeling in the development of the CAIR rule, the relative distance of North Dakota to downwind nonattainrnent areas, and analysis of monitoring data, the State of North Dakota concludes that emissions from North Dakota do not significantly affect nonattainrnent or maintenance areas in other states. C. Impact on Prevention of Significant Deterioration (PSD) EPA guidance 1 

### indicates that states with State Implementation Plans (SIP's) addressing Prevention of Significant Deterioration (PSD) and Nonattainrnent New Source Review (NNSR) have adequately demonstrated that they do not affect PSD implementation in other states. EPA guidance 1 

### states: 1 )**~For** 

### 8-hour ozone, each state dnly needs to make a SIP submission confirming that major sources in the State are currently subject to PSD and NNSR permitting programs that implement the 8-hour ozone standard and that SIPapproved states are on track to meet the June 15, 2007 deadline for SIP submissions adopting the requirements of the Phase II ozone implementation rule." 2 ) 

### "For PM2 .s , 

### states need only provide a SIP submission confirming that major sources in the state are subject to PSD and NNSR permitting programs implemented in accordance with EPA's interim guidance calling for use of PM10 

### as a surrogate for PM2 .s 

### in the PSD and NNSR programs." North Dakota has a SIP approved PSD program. Since North Dakota has no nonattainrnent areas, there is no NNSR program. North Dakota's PSD SIP was updated effective February 1, 2005,
lEPA, August 15, 2006. Guidance for State Implementation Plan Submissions to Meet Current Outstanding Obligations Under Section 110(a) (2) (D) (I) for the 8-Hour Ozone and PM2 . S 

### National Ambient Air Quality Standards. (page 8)4 

### to conform with the federal NSR Reform rules. These changes have been submitted to EPA and were approved effective August 20, 2007. North Dakota will implement the current rules in accordance with EPA's interim guidance using PM10 

### as a surrogate for PM25 

### in the PSD program. The 8-hour ozone standard is applied to all major sources in the state that are subject to PSD review. Based on the conclusions stated by EPA in their August 15, 2006 guidance 1
, 

### the State of North Dakota concludes that its implementation of its PSD SIP ensures that North Dakota emission sources do not interfere with PSD implementation in other states. D. Protection of Visibility The August 15, 2006 guidanceJ 

### states: "At this point in time, EPA has made no determination that emissions from any State interfere with measures required to be included in a plan to address reasonably attributable visibility impairment. Further, EPA is not aware of any certification of existing reasonably attributable impairment of visibility by a Federal Land Manager that has not already been resolved. The EPA accordingly believes that States should be able to make a relatively simple SIP submission verifying that no source within the State emits pollutants that interfere with measures included in the visibility SIPs under the 1980 regulations." Based on the conclusions stated by EPA, the State of North Dakota concludes there are no North Dakota sources of emissions that interfere with implementation of visibility SIP under the 1980 regulations. The State of North Dakota is working with the Western Regional Air Partnership, including associated States and stakeholders, to prepare a SIP to address the EPA Regional Haze regulation (40 CFR 51.308). Until regional haze SIPs are submitted and approved, North Dakota believes it is not possible at this

I

### EPA, August 15, 2006. Guidance for State Implementation Plan Submissions to Meet Current Outstanding Obligations Under Section 110 (a) (2) (D) (I) 

### for the 8-Hour Ozone and PM2 . 5 

### National Ambient Air Quality Standards. (page 8)

2

### Ibid. (page 9)5 

### time to assess whether there is any interference with measures in the applicable SIP for another state for regional haze.

### (Chapter 9 is deleted and replaced with the following) 9. RESOURCES

Section 110(a) (2) (E) (i) of the Clean Air Act requires adequate funding and personnel to carry out the provisions of the State Implementation Plan. The Health Department must provide for adequate resources at the present date and into the future.

The organizational structure of the Department of Health and Environmental Health Section are shown in Figures 3 and 4. The Air Pollution Control Program of the Department of Health is under the Division of Air Quality. The organizational structure of the Division of Air Quality is shown in Figure 5.

The Department of Health commits to maintaining adequate funding and personnel to carry out the provisions of the State Implementation Plan. Work activities and resources committed to those activities are negotiated with EPA on a biennial basis through the Performance Partnership Agreement process. The Health Department commits to review biennially the amount of resources dedicated to carrying out the State Implementation Plan provisions and making adjustments as necessary.

# I FiW·
...,e 3 

### ) NorthDakota

# .,~rtment ofHealth

State Health Council

### ~, Dennis Wolf, M.D., Chainnan
...........................
HealthyNorthDakota 

# I MelissaOlson 

# I ResearchEpiCenter StephenPickard, M.D. 

# I

I Community Health Leadership Team'" 

# I**Tob~cco** Preventionand Control

# I Karalee Halper 

# -I CancerPrevention andControl 

# I Mary Ann Foss 

# l Injury Prevention and Control 

# I MaryDasovick 

# H FamilyHealth Kim Senn 

# I 

# l Chronic Disease Sherri Paxon 

# I
Nutrition and PhysicalActivity·' ColleenPearce -'

"­ PublicHealth

TrainingCenter 

### StateHealth Officer

- TerryDwelle, M.D. DeputyStateHealth Officer

- Arvy Smith 

### I 

# I I Accounting. 

# r KathyAlbin 

# I Public Information 

# I

........··..··..· ..·

.... LoreetaCanton 

# I InformationTechnology DarinMeschke

Emergency Preparedness and Response TimWiedrich

Special Populations

JohnBaird, M.D.
Children's SpecialHealth Services Tammy Gallup-Millner

Elimination ofHealth Disparities PhyllisHoward 

### Organizational Chart 

### May 2008

Medical Services CraigLambrecht, M.D. 

# I

FieldMedical Officers Craig Lambrecht, M.D. 1 StateForensic Examiner 1 WilliamMassello III, M.D. Disease Control

Kirby Kruger 

# I

°The six divisiondirector.; shareresponsibility for management ofthe Community Health Section. 

## I 

## I AdministrativeSupport ArvySmith 

# I

Vital Records DarinMeschke 

# I

HumanResources KenyOlson 

# I

EducationTechnology TimWiedrich 

# I
Local Public Health KellyNagel 

# I 

# I I

. llealthResources Environmental Health Darleen**Bartz~** Ph.D. EmergencyMedical Services

# I
Tim Meyer Food and Lodging

Kenan Bullinger 

# -1 I
HealthFacilities BrucePritschet 

# I CommunityAssistance GaryGarland 

# I 

# --1 Dave Glatt 

# I

Air Quality TenyO'Clair 

# I
Laboratory Services Myra Kosse 

# I Municipal Facilities Wayne Kern 

# I

Waste Management Scott Radig 

# I
Water Quality Dennis Fewless 

# IFigure 

### 4 

### North Dakota Department of Health Environmental Health Section

Section

Chief 701.328.5150 L. David Glatt
Assistant Attorney General

701.328.5151 or ­

701.328.3646

Dean Haas 

# I 

# I Laboratory

Services 701.328.6140+ 701.328.6272++

Myra Kosse Air Quality Division 701.328.5188 TerryO'Clair

-Organics Analysis

Jim Quarnstrom-+ -Inorganics Analysis

Jim Quarnstrom-+
-QualityAssurance!

Quality Control &

. LabCertification

Errol Erickson+ -Bacteriology, MycoBact., Dairy,Water, Parasit. & Molecular lisaWell H -Special Projects Coordinator Tom Bachman -AirQuality

Permitting & Compliance Jim Semerad '-Air Quality

Impact Analysis Steve Weber
I-AirQuality

Monitoring Justin Mayer -Immunology, Virology,**~adiation** &

Rabies, Arbovirus, IndoorAir & Molecular Dan Harman Mike Trythall H

. -Bioterrorism Program Jan Trythalr+ -IT, Clinical lab Improve­

MentAmmendment. Quality Assurance, QualityControl Eric Hieb H Municipal Facilities Division 701.328.5211 D. Wayne Kern

-Clean Water State

Revolving'Fund Jeff Hauge­ '-DrinkingWater

State Revolving Fund Program David Bruschwein -Drinking Water

Program LarryThelen 

# I Waste Management Division 701.328.5166

Scott Radig

I-SolidWaste

Program Steven TillotsonHazardousWaste & PCB Program Curtis Erickson -Unde·rgound

Storage Tank& L.U.S.T. Program GaryBerreth 

# I Water Quality Division 701.328.5210 Dennis Fewless

f-Special Projects

Coordinator Michael Sauer Permits Program Gary Bracht
SurfaceWater Management Program Michael Ell LGround Water

Program Carl Anderson

-Assistant Director 'Chemlstry Division ++Microbiology Division June 2008Figure,_S 

### NORTH DAKOTA 

### DEPN**~ENT** 

### OF HEALTH 

### ) 

## 1 DIVISION OF AtK QUALITY

DIRECTOR T6.rr'j OClair

SECRETARIAL SERVICES Sherri Jahraus H

Connie Gaitan --...--1­

-Kelsie Seiler II SPECIAL PROJECTS COORD!NATOR

Tom Bachman**r--------------¥---~ .-.---.~-----,..-----.-.-.--_**  .. ! ,-_._---_ _--------_.- -_.._-------_ .. !

NR QUALITY RADIATlON AND INDOOR AIR AIR QUALITY I/vlPACTANAlYSIS A1H QUALITY MONITORING PERMITTING/COMPLIANCE StellaWeber Justin Mayer Datl Harman Jim Semerad
Lavns Dandy Ban Gress --Keith Hinnenkamp -JessicaKellar --Gary Kline -Casey Mutzenberger --Todd Peterson

# ~Nid< Pmm"

, Kyta Schneider i**~Craig** Thorstenson ---RobertV</hit€< f-.-Emie Erickson --Ron Patch 

# I=RyanMiIIS Greg Ulberg Mark Dihle f-Warren Freier -Jane Kangas I--Jam&S Lawson i f----Justin Otto --Louise Roahricl /--J Rondeau r L_ Sandi Wahek



### 11/17/2008

### Chapter 11 Section 11.22 Regulation Revisions Public Hearing October 7,2008 Chapter 23-25 ofthe North Dakota Century Code provides the legal authoritythat empowers the NorthDakotaStateDepartmentofHealthto implementtheAirPollutionControl Law for the State ofNorthDakota. Article 33-15 "AirPollutionControl" oftheNorthDakotaAdministrativeCode containstherules and regulations implementedto control airpollution in the State. Article 33-15 consists of25 chapters numbered from 33-15-01 through 33-15-25. There are several different processes by which EPA delegates authority to the State to manage and protect the air quality resources of the State. Historically, the State has gained such authority through the State Implementation Plan process. Two other processes are also used. The first is through direct delegationprocedures and the second involvesrules that deal with TitleV authorities in the Clean Air Act. Onlythe changes to the State Implementation Plan are presented in this document. Changes to the following sections are being submitted as revisions to the State Implementation Plan: 33-15-01 General Provisions • Section 33-15-01-04. Definitions • 33-15-01-05. Abbreviations • Subdivision 33-15-01-13.1.f • Subsection 33-15-01-13.2. Malfunctions • Subsection 33-15-01-13.3. Continuous emissionmonitoring system failures 33-15-02 Ambient Air Quality Standards • Table I. Ambient Air Quality Standards 33-15-05 Emissions ofParticulateMatter Restricted • Subdivision 33-15-05-03.2.2.d. Malfunctions (deleted) 33-15-14 Designated Air Contaminant Sources, Permit to Construct, Minor Source Permitto Operate, Title V Permitto Operate • Subsection 33-15-14-01.14 • Subdivision 33-15-14-02.4.a. Submission of Plans

­ Deficiencies in Application • Paragraph 33-15-14-02.4.b.(2) • Subdivision 33-15-14-02.6.c • Subdivision 33-15-14-02.13.0 33-15-15 Prevention ofSignificantDeterioration ofAir Quality • Section 33-15-15-01.2. Scope A "Revision Summary" is presentedwhich shows all ofthe changesmadeto theNorth DakotaAir Pollution Control Rules. However, only the previously listed sections are revisions to the State

### Implementation Plan. The revised sections are included as Appendix C of this State ImplementationPlanrevision.

### SUMMARY OF PROCEEDINGS The North Dakota Department of Health, prior to revising the Implementation Plan and Air Pollution Control Rules, conducted apublichearingon the plan and rules. Reasonable notice as required byTitle40 ofthe Code ofFederal Regulations, Section 51.102, Public Hearings, and as required by the North Dakota Century Code, Chapter 23-25 was given. Notice of the public hearingwasprovided bytwo publicationsin each ofthe official countynewspapers in the State on or before September 6, 2008. The last publication occurred 30 days prior to the hearing. The hearing was held October7, 2008, at the Health Department's office located in Bismarck. In additionto the official public notice, apressrelease announcingthehearingwas made available in the State's majornewspapers approximatelyone weekbeforethehearing. The Administrator of the Environmental Protection Agency, the Directors of the Minnesota Pollution Control Agency; the Natural Resources Program Administrator for the State ofSouth Dakota; the Chief of the Air Quality Bureau, Montana State Department of Environmental Quality; Indian governing bodies within North Dakota; Federal Land Managers ofClass I areas withinNorthDakota; the BureauofNational Affairs andmanyinterestedparties listed onthe State Department ofHealth AirPollution Control mailing list, were notified ofthe publichearing. Therevisions to the Implementation Plan and the amendments to the Air Pollution Control Rules were made available for publicinspection-30 days prior to the public hearing. TheNorth DakotaDepartment ofHealth submitted a "DRAFT" copyoftheproposedrule changes to the Environmental Protection Agency. Copies ofthe record ofthe hearing were furnished to the public uponrequest. Copies ofthe notice ofpublic hearing and certification that the hearing was held in accordance with the notice as required by Section 51.102, Public Hearings, Title 40 ofthe Code ofFederal Regulations, are included in Appendix A ofthis document. As required by the North Dakota CenturyCode, Chapter23-25,therevisionsto therules werereviewedbytheAirPollution Control Advisory Council and any recommendations considered by the North Dakota State Health Council. Following review and consideration by the State Health Department, the rules were considered and adoptedbytheNorth Dakota State Health Council. Thelegal opinion oftheState Attorney General that the amendments are legal, valid and have the force and effect oflaw was obtainedbefore final adoptionoftherules. Thelegal opinion oftheAttorney General is included in Section V ofthis document and will 

### be included in Appendix D ofthe original SIP document maintained in the Departmentoffices.

### SECTION II HEARING RECORD

Appendix A ofthe Plan

### HEARING RECORD AirPollution Control Rules Revisions and State ImplementationPlan Amendments

North DakotaDepartmentofHealth AirPollution Control Program

Hearing Date: October7, 2008

..,........

### HEARING RECORD TABLE OF CONTENTS

Revision Summary Hearing Notice Press Release Affidavit ofPublication Invoice ofPublication Registration List ofAttendees HearingTranscript Certification ofHearing Response to PublicComments**-,~**02/20109


### Amendments to North DakotaAir Pollution Control Rules Revision Summary

Thefollowing summarizestheproposed changestotheNorthDakotaAirPollution Control Rules. Chapter33-15-01 - General Provisions Section33-15-01-04.2

- Textwas added to further define "aircontaminant" as that which is emitted to the ambient air. Section 33-15-01-04.10

- This section was added to define the term "excess emissions." The subsequent sections were renumbered. Section 33-15-01-04.32

- This section was added to define the term "PM2.5." The subsequent sections were renumbered. Section 33-15-01-04.52

- Thebaseline date for incorporation byreference was updated to March 1, 2008. Section 33-15-01-05

- The abbreviations for "PM" and "PM2 .5" were added. Section 33-l5-01-13.1.f

- This section was added to state that the excess emissions are not authorized. Section 33-15-01-13.2.a - A portion ofthis section was deleted to preclude the possible perception that the Department might authorize the release ofemissions in excess ofa limit. Section33-15-01-13.2.c

- This sectionwas added to address excessemissions as aresultof an unavoidablemalfunction. Section 33-15-01-13.3

- Text was both deleted and added to revise the requirements for alternative emissions monitoring in the event of failure of a continuous emission monitoring system. Chapter33-15-02 - AmbientAir Quality Standards Table 1 - Two ambient air quality standards were amended (PMIO 

### and ozone) and one was added (PM2.5) to reflect revisions to the federal standards.

### Chapter33-15-05

- Emissions ofParticulateMatter Restricted Section 33-15-05-03.2.2.d

- This section which discussed operator actions to be taken in the event ofan incinerator malfunction was deleted. Chapter33-15-12

- Standards ofPerformance for New StationarySources Section 33-15-12-01.1

- The baseline date for incorporation by reference was updated to March 1, 2008. Section 33-15-12-02, Subpart Da - A sentence was added to reflect the deletion from this subpartofrequirements for mercury. Section 33-15-12-02, Subpart HHHH

- This subpart was deleted to reflect vacatur ofthe federal rule concerning coal-fired electric steam generating units. Section 33-15-12-02, Subpart

### KKKK

-This subpartwas added to reflect an addition to the federal rule concerning stationarycombustion turbines. Chapter33-15-13

- Emission Standards for Hazardous Air Pollutants Section 33-15-13-01.1

- The baseline date for incorporation by reference was updated to March 1, 2008. Chapter 33-15-14

- Designated Air Contaminant Sources, Permit to Construct, Minor Sourcepermitto Operate,TitleV Permitto Operate Section 33-15-14-01.14

- The field ofapplicable sources was limited to major sources. Section 33-15-14-02.4.a

- Thetext was revised to reflect the current name ofthe Division ofAir Quality. Section 33-15-14-02.4.b(2)

- The text was revised to reflect the current ZIP code of Research Triangle Park. Section 33-15-14-02.6.c

- The reference to the location of the text concerning public participation was revised. Section 33-15-14-02.13.0 - A reference was revised. Section 33-15-14-06.1.c

- An 

### incorrect reference to title VI was corrected to refer to title IV. Chapter33-15-15

- Prevention ofSignificantDeteriorationofAir Quality Section 33-15-15-01.2

- The baseline date for incorporation by reference was updated to August 1, 2007, and paragraphs referenced were updated.

### Section 33-15-15-01.2,40CFR 52.21(b)(2)(a)

-Thereferenceto the provisions for routine maintenance, repair and replacement in Section (cc) is beingdeleted. Section 33-15-15-01.2,40CFR 52.21(b)(58)

- The paragraph is beingdeleted. Section 33-15-15-01.2, 40CFR 52,21(i)(5)(ii) - A correctionto areference is beingmade. Section 33-15-15-01.2, 40 CFR 52.21(1)(1)

- The date ofappendix W of40 CFR 51 was revised. Section 33-15-15-01.2, 40 CFR 52.21(q)

- The letter designation of paragraph q was corrected. Section 33-15-15-01.2,40 CFR 52,21(q)(2)

- The paragraph is being clarified to indicate the Department must make a preliminarydetermination in one year. Section 33-15-15-01.2, 40 CFR 52.21(q)(2)(t)

- The length of time allowed for an applicant's responseto publiccomments was extended and procedures were addedto allow for an additional extension. Section 33-15-15-01.2, 40 CFR 52.21(r)(6)

- The word "reasonable" is being deleted. Section 33-15-15-01.2, 40 CFR 52.21(y)(3)(ii), (y)(7), and (z)(5)

- Text previously substituted for the federal rule was deleted. Chapter33-15-21 - Acid Rain Program Section 33-15-21-08.1

- The baseline date for incorporation by reference was updated to March 1, 2008. Section 33-15-21-10

- The baseline date for incorporation by reference was updated to March 1, 2008. Chapter33-15-22 - Emission Standards for Hazardous Air Pollutants for Source Categories Section 33-15-22-01

- The baseline date for incorporation by reference was updated to March 1, 2008. Section 33-15-22-03, Subpart HH - A statement was added to indicate that only major source requirements are adopted. Section 33-15-22-03, SubpartDDDDD

- This section was deleted becausethe subpart was· vacated.Section 33-15-22-03, Subpart JJJJJ

- This section was deleted because the subpart was vacated. 

### Chapter33-15-23 - Fees Section33-15-23-03.1

- Thedefinitionofa "designated" sourcewas simplified. TheState government fee rate was expanded to include local government. Section 33-15-23-03.4 and Section 33-15-23-04.11

- Thedatethe annual permit fee is due is being defined as sixty days following the date ofthe billing letter to provide a more preciseduedate.

### Public Notice Abbreviated Notice of Intent to Adopt and Amend Administrative Rules Relating to Air Pollution Control

Take notice that the North Dakota Department of Health along with the North Dakota Air Pollution Advisory Council will hold a public hearing to address proposed changes to the North Dakota Administrative Code Article 33-15. The hearing will be at 9:00 4th 

### a.m. CDT on Tuesday, October 7, 2008, in the floor conference
room of the Gold Seal Center- located at 918 E Divide Avenue, Bismarck, North Dakota. The public hearing will address proposed rules that reflect changes to the New Source Performance Standards, the National Emissions Standards for Hazardous Air Pollutants for Source Categories, Prevention of Significant Deterioration, and startup/shutdown rules. The Department is also seeking comments on changes to the State Implementation Plan that address interstate transport of air pollution and implementation of the new ambient air quality standards for PM10 

### and ozone.

The rules may be viewed at the Department's website at: www.health. state.nd.us/EHS/PublicNotices.aspx. A copy of the proposed rules may be obtained by writing to the North Dakota Department of 2nd 

### Health, Division of Air Quality, 918 E Divide Avenue, Floor, Bismarck, ND 58501-1947 or calling (701)328-5188. Written comments may be submitted to the above-address from September 15, 2008

,-.......... 

### through October 18, 2008.

### If you plan to attend the public hearing and will need special facilities or assistance relating to a disability, please contact the Department of Health at the above-address at least seven days prior to the public hearing.

Dated this**·~1=3~t_h** 

### _ day of August 2008
Terry L. O'Clair, P.E. Director, Division of Air QualityABBREVIATED NOTICE OF INTENTTOAMEND ADMINISTRATIVE RULES relating toAir Pollution Control. 

## NorthDakota

Department



## ofHealth will hold a public hearing to address proposed changes to the N.D. Admin. Code Article 33-15 and the State Implementation Plan (SIP)forthe control of air pollution.

4th Floor Conference Rm. Gold Seal Center 918 

### E. DivideAve. Bismarck, NO Tues., Oct. 7, 2008 9:00a.m. COT A copy of the proposed rules and SIP revisions may be viewed at the Department's website at: www.health.state.nd.us/EH51 PublicNotices.aspx. A copy of the proposed rules and SIP revisions may be obtained by writing to the North Dakota Department of Health, Division ofAir Quality, 918 E. Divide Ave., 2nd Floor, Bismarck, NO 58501-1947 or calling (701) 328-5188. Written comments may be submitted to the above-address from September 15, 2008 through October 18, 2008. Ifyou plan to attend the hearing and will need special facilities or assistance relating to a disability, please contact the Department of Health at the above telephone number or address at least seven days prior to the hearing. Dated this 13th day ofAugust, 2008. Terry L. O'Clair, P.E. Director, Division ofAir QualityNorth DakotaAir Quality Home Page·MicrosoftInternet Eleplorer Fle Edt View Favorites Tools He'p (,}Back •**r:J~** 

# .

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orrh Dakota nd.gov OIfcool Portal'or I Nt"rth**oakO~3** St.ne**G:Dve+"lt"Jl~ml** 

# .J Search] "

## ~"~**.~** 

## NORTH

## DJ\~.9TA DEPARTMENTaf HEALTH
..,..,

,Horne

All' Quality Rules AIrQuality Forms Air Permitting

·Air Toxles

Open Burmng**S~usiness** • C .IS Wells

· Emission Testing

Emlssignlnventory • Ambient Monitoring

· Dispersion Modeling • Regional Haze

·Training

Links Contact Us Air Quality 

### Public Notices and Hearing Dockets Some documents (pdf) en this page require the Adobe Acrobat Reader in order to be viewed. Ali pdf documents wiil open in a new window, Rule and State Implementation Plan Revisions

• Public Notice • Rule Revision Summary • ChapteI' 33-15-01

- Chapter 33-15-02

- Chapter 33-15-05

- Chapter 33-15-12

- Chapter 33-15-13

- Chapter 33-15-14

- Chapter 33-15-15

- Chapter 33-15-21

- Chapter 33-15-22

- Chapter 33-15-23 - 2008

• Interstate Transport of Ozone and PM25-SIP Revision • Ozone and PM25 NMQS Implementation SIP Revision Minnkota Power Cooperative
- Preliminary BACT Determination for NOx

• Extension of Public Comment Period • Public Notice

### NORTH DAKOTA DEPARTMENToF HEALTH 

# NEWSRELEASE

ForImmediate Release: ForMore Information, Contact: Oct. 2, 2008 Tom Bachman, Environmental Engineer North DakotaDepartmentofHealth Division ofAir Quality Phone: 701.328.5188 E-mail: tbachman(cu,nd.gov Air Pollution Control Advisory CouncilSchedules Public Hearing BISMARCK, N.D.

- The North Dakota Air Pollution Control Air Advisory Council and the North DakotaDepartment ofHealth have scheduled a public hearing to address proposed changes to the North Dakota AirPollution Control Rules and State Implementation Plan for the control ofair pollution. The public hearing will be held Oct. 7,2008, at 9 a.m. in the Fourth



# - Floor Conference Room ofthe Gold Seal Center, 918 E. Divide Ave., Bismarck, N.D
.

. The primary amendments to the North DakotaAirPollution Control Rules include: • Requirements for demonstration ofunavoidable malfunctions. • Prevention ofsignificantdeterioration. • Ambient air quality standards. The public also may submit written comments about the changes by Oct. 18, 2008. The public is invited to direct their comments to Tom Bachman, Division ofAir Quality, North Dakota Department ofHealth, 918 E. Divide Ave., Bismarck, ND 58501-1947. The AirPollution Control Advisory Council is a nine-member panel that considers and makes recommendations regarding the adoption, amendment orrepeal ofrules and standards pertaining to North Dakota air quality. Formore information, contactTom Bachman, North DakotaDepartment ofHealth, at 701.328.5188.

-- 30

-­ Pleasenote: To access archivednews releases andotherinformation. visit the North Dakota Departmentof Health Press Room at lV1HI'.nddof!press/"()o/ll. gOY.

600 E. BoulevardAve. Dept. 301, Bismarck, North Dakota 58505-0200 Phone: 701.328.2372 Fax: 701.328.4727 E-mail:**hcalth(u.~nd.g()"**
Visit thehealth department homepageat wfIJ1v.ndhealtl1.gOJ).

# Affidavit of Publication

__---'C'-"""1;....;;(..:.....( eevl-=.,;;,----'--_+t'-O-_·'---(_K---30...- 

### "beingdulysworn, state as follows: 1. I am the designated agent, underthe provisions and for the purposes of, Section 31-04-06, NDCC, for the newspapers listed on the attached exhibits. 2. The newspapers listed on the exhibits published the advertisement of: 

# O'')**~h IY?V~e0-1**  

# As,**~Hl.Ltio" (~c)I**  _ 

# 2 time(s) as required by laworordinance. 3. All ofthelisted newspapers are legal newspapers in the State ofNorth Dakota and, underthe provisions ofSection46-05-01, NDCC, are qualified to publish any public noticeorany matter required by laworordinance to be printed or pUblished in a newspaper in North Dakota.

State of 

# u1I() County of 

# . Bugi?/9J-t
Subscribed and sworn to before methis

# /1fIL day of

# hr 20!Ji
.



# .iudd-.

LINDA J. JUDD Notary Public State of North Dakota My Commission Expires JUly 9, 2014Concert Friday, Sept. 5, 20( 8:00 p.m. LaMoure County Memo ParkAUditorium Grand Rapids, ND Admission: $10 atthe d. 

# REQUEST**FORBI·D~** Zion lutheranChurch ofAshleyis.advertisingforbids to replacethe existing / church heating.**system~'** 

# . 

# Call 701-288-3062 ABBREVIATED NOnCE OF INTENTTOAMEND· ADMfNISTRATIVE RULES relating toAirPoliution Control. 

## NorthDakota

Department

ofHealth will hold a pUblic hearing to address proposed changes tothe N.D.Admin. CodeArticle 33-15and the state Implementation Plan (SIP)forthe controlofair**pollutio~.** 4th FloorConference Rm. Gold Seal Center 918

### E. DivideAve.

Bismarck, ND Tues., Oct7, 2008 9:00a.m. CDT A copy ofthe proposed rules and SIP revisions may be viewed at the Department's website' at: www.he-alth.state.nd.us/EHS/ PublicNotices'.aspx. A copy of the

...**pt~posedrules** .and SIP revisions

.may be obtained by writing tei the

. North Dakota Department of**Hea~h,**

Division ofAir Qualijy; 918 E. Divide Ave., 2nd Floor, Bismarck, NO.

. 58501-1947 orcalting (701) 328­

5188. Written comments may be. submittedtotheabove-addressfrom September 15, 2008 thrQ.ugh 0cl0ber18,2008./fyouplantoattend the hearing and will need special facilities or assistance relating to a disability, please contact' the Department of Health at the above telephone number or address at leastsevendays priortothe hearing. 

### BeefBarbecueSupper•5:00p.m.·Ad TICKETS AVAILABLE FROM: ELLENDALE· STARION FIN'

- DAKOTA PLAINS CREDIT UNION; KULM •TASTY**TR~** MEAT MARKET; WHBHS**DIRECTOJ(~j** AND ON SITE ON SEPT.7 •Advance Tiq are en • Tues., Sept. 2 - Hot dogs, baked beans, nachos, fruit, cinnamon roll

• Wed.• Sept. 3 - Spaghetti w/meat sauce, garlic toast, green beans. fruit 

# WhitestoneHillBattlefieldStateHistoricalSite**'su~day** 

# Program,September7,**200&;/~;3"Q'P'J!l~** t::.p·.·:.··z,:.,:.• •DeanPodoll

-MemberofCivilWarRoundtable**ofOmalia~N** .

. -**;:::::::::::~:;::::::t-::::~:~;,:** .;::::::::;.: "The2nd NebraskaCaYalry & the Battleof
.....,........ •Music: "From thePrairietotheBunkhouse"fea theLarsenBrothers & "The011five &Dime I. cheese sticks. v, crunchy cranberry

:h Menu for the**~mber** 3 is as foltacos, vegetable, ;heese, seasoned w/"'-"'t sauce, } ik w/onions and IS, fruit cocktail <ing w/wheat biscuit, perfection salad mu for August 27 ­

Dated this 13th day ofAugust, 2008. Terry l. O'CIair', P.E. Director,. DiVision of Air Qua 

# EARLY DEADLINE for the . CHUCK SUCHY SongwliterfFarmerlStory1



## for specs and information
.. Bids

### will be opened September2,2008

.. 

## ,Thecongregationhas

# theright10·



## acceptorrejectanvorallbids.

ABBREVIATED NOTICE ABBREVIATED NOll OFINTENTTOAMEND OF INTENTTOAM.E AOMINISTRATIVE RULES· ADMINISTRATIVE RU

relatingtoTemporaryAssistance relatingtoTemporaryAssist

forNeedyFamiliesProgram. forNeedyFamiliesProgral



## NorthDakota NorthDakot:

Department Department ofHumanServices ofHumanServi will hold a public hearingto address will hold apublic**hea~ng** to ad proposed changes to the N.D. proposed changes to the Admin.Code Chapter75-02-01.2. Admin. Code**Chapler~.(** Pioneer Room, Rm. G-15 PioneerRoom;Rnt t Ground Floor Ground· FloorJudicialWing JudicialYVing State Capitol, Bismarck State Capitol, Bismi

Mon., Sept. 22, 2008 Mon., Sept. 22,20 

### 3:30p.lli. CT 

### 3:30p.m.CT A copy of the proposed rules are A exipy ofthe proposed rule available for review atcounty social avaiialjefor reyiewatcounty , services offices and human service services oflicesand human 51 centers. Copies of the proposed centers. Copies of the**pro~** rules and the regulatory analysis rules and the regulatory an;

lating to these rules may be relating to these rules me; requested bytelephoning (701)328­**req~** bytelephonitlg(701. 2311. I/Ihitten or oral data. views, or 2311. 'Millenororal data, vie\ arguments may be entered at the arguments may be entered i hearing or sent to: Rules hearing or sent to: F Administrator, North Dakota Administrator, North Dc Department of. Human Services, Department of Human Sen SlateGaptol-Judicial'Mng,600East sateGaptol-JudiciaIVtAng,ro: Boulevard Ave., Dept 325, Boulevard Ave., Dept. BiSmarck, NO585Q5..025O, andinust Bismarck, ND585CED250,and be received no laterthan 5:00 p.rn. be received no laterthan 5:OC

.....n**r),..+,...~,.'"** ')('V')Q If u .............,,-. ..... Ie. Court plan. ed this 29th day of July, A copy of the proposed plans is available' for review in Deloris Diegel the office at theabove address. 1eyA. Gross .Any person interested may Imeyfor Estate

. appear at the· hearing and be t publication on the 20th

. heard. August, 2008, with sub­ nl**p~ations** on Ming Elhard. t 21 September 3, Executive Director NOTICE OF REGULAR PUBLIC NOTICE MONTHLY MEETING OFTHE 'OTICE OF HEARING MCINTOSH COUNTY nCINTOSH**~OUNTY** COMMISSION DUSING AUTHORITY The regular monthly meeting of the Mcintosh Courity ce is hereby given that Commissioners will be :Intosh COl!nty Housing Thursday, September 4, 2008, ity will conduct a public. at 8:00 a.m. in the commission 1 irithe office at th.e room at the courthouse. the courthouse located 112 Water Resource Board will Street atAshley, NO on meet·onThursday, September nber 18th, 2008 from 4, 200Blit 9:00 a.m. in the 1M to 12:00 Noon to dis-courthouse,

. . 1195 year'and the'annual

..., 

# NnNN& NorthDakota NewspaperAssociation 1435 Interstate Loop Bismarck, ND 58503-0567 Ph (701) 223-6397'Fax (701) 223-8185 

## INVOICE 

# vt\l't 

# {5

Order

### 25403-08091NDO Invoice#

### 420 ""'''''''''' 17,2008

# ~/f Attn: TERRYL. O'CLAIR ND HEALTH DEPARTMENT 600 EBOULEVARD AVE. DEPT.301 BISMARCK, ND 58505-0200 Voice: 328-4619 Fax: 328-4727 Advertiser: Division ofAirQuality P.O.#: AmountDue $3,359.70 Amount Paid

Please detach andreturn thisportion withyour payment

Page RunDate

08/27/08
09/03/08
08/21/08 08/28/08
08122/08 08129/08
08/26/08
09/02108
08127/08
09/03/08
08122108
08129/08
08123/08
08130/08
08125/08
09/01/08Divi3ion ofAirQuality Invoice# 25403-08091NDO-420 AdSize Rate Type Rate Total Discount (%) Caption Page RunDate ,,"""""" COUNTY Carson Press (Elgin NO) 5.50 SPR1 5.25 28.88 0.00 Air Pollution 08127/08 Carson Press (Elgin NO) 5.50 SPR1 5.25 28.88 0.00 Air Pollution 09103108 Cavalier Chronicle (Cavalier NO) 5;50 SPR1 5.25 28.88 0.00 Air Pollution 08127/08 Cavalier Chronicle (Cavalier NO) 5.50 SPR1 5.25 28.88 0.00 Air Pollution 09/03/08 Center Republican (Hazen NO) 5.50 SPR1 5.25 28.88 0.00 Air Pollution 08121/08 Center Republican (Hazen NO) 5.50 SPR1 5.25 28.88 0.00 Air Pollution 08128108 Cooperstown GriggsCounty Courier(Cooperstown NO) 5.50 SPR1 5.25 28.88 0.00 Air Pollution 08122/08 Cooperstown GriggsCounty Courier (Cooperstown NO) 5.50 SPR1 5.25 28.88 0.00 Air Pollution 08129/08 CrosbyThe Journal (Crosby NO) 5,50 SPR1 5.25 28.88 0.00 Air Pollution 08127/08 CrosbyThe Journal (Crosby NO) 5.50 SPR1 5.25 28.88 0.00 Air Pollution 09/03/08 Oevils Lake OailyJournal (Oevils Lake NO) 5.50 SPR1 7.14 39.27 0.00 Air Pollution 08125108**,<;IiI~** Oevils Lake OallyJournal (Oevils Lake NO) 5.50 SPR1 7.14 39.27 0.00 Air Pollution 09101/08 Oickinson Press (Olcklnson NO) 5.50 SPR1 7.14 39.28 0.00 Air Pollution 08122/08 Oickinson Press (DIckinson NO) 5.50 SPR1 7.14 39.28 0.00 Air Pollution 08129/08 Elgin GrantCounty News (Elgin NO) 5.50 SPR1 5.25 28.88 0.00 Air Pollution 08127/08 Elgin GrantCounty News (Elgin NO) 5.50 SPR1 5.25 28.88 0;00 Air Pollution 09/03/08 Ellendale Oickey Co Leader (Ellendale NO) 5.50 SPR1 5.25 28.88 0.00 Air Pollution 08121/08 Ellendale OickeyCoLeader (Ellendale NO) 5.50 SPR1 5.25 28.88 0.00 Air Pollution 08128108 Fargo, The Forum (Fargo NO) 5.50 SPR1 10.51 57.81 0.00 Air Pollution 08125/08 Fargo, The Forum (Fargo NO) 5.50 SPR1 10.51 57.81 0.00 Air POllution 09/01/08 Finley Steele CountyPress (Finley NO) 5.50 SPR1 5.25 28.88 0.00 Air Pollution 08122/08 FinleySteele County Press (Finley NO) 5.50 SPR1 5.25 28.88 0.00 Air Pollution 08129108 Garrison McLean Co Independent (Garrison NO) 5.50 SPR1 5.25 28.88 0.00 Air Pollution 08121/08**,,,.~** Garrison McLean Co Independent (Garrison NO) 5.50 SPR1 5.25 28.88 0.00 Air Pollution 08128108 Grafton·Walsh County Record (Grafton NO) 5.50 SPR1 5.25 28.88 0.00 Air Pollution 08127/08**Divis~on** ofAirQuality Invoice# 25403-08091 NDO-420 AdSize Rate Type Rate Total Discount ("Ai) Caption Page Run Date 

### COUNTY Grafton*Walsh County Record (Grafton NO) 5.50 SPR1 5.25 28.88 0.00 Air Pollution 09/03/08 Grand Forks Herald (Grand Forks NO) 5.50 SPR1 10.51 57.81 0.00 Air Pollution 08123108 Grand Forks Herald (Grand Forks NO) 5.50 SPR1 10.51 57.81 0.00 Air Pollution 08130/08 HarveyThe Herald-Press (Harvey NO) 5.50 SPRl 5.25 28.88 0.00 Air Pollution 08123(08 HarveyThe Herald-Press (Harvey NO) 5.50 SPRl 5.25 28.88 0.00 Air Pollution 08130/08 Hazen Star (Hazen NO) 5.50 SPRl 5.25 28.88 0.00· Air Pollution 08121/08 Hazen Star (Hazen NO) 5.50 SPR1 5.25 28.88 0.00 Air Pollution 08128108 HettingerAdams Co Record (Hettinger NO) .5.50 SPR1 5.25 28.88 0.00 Air Pollution 08122108 HettingerAdams Co Record (Hettinger NO) 5.50 SPR1 5.25 28.88 0.00 Air Pollution 08129108 JamestownSun (Jamestown NO) 5.50 SPR1 7.14 39.27 0.00 Air Pollution 08125/08 Jamestown Sun (Jamestown NO) 5.50 SPR1 7.14 39.27 0.00 Air Pollution 09/01/08 Killdeer Dunn County Herald (Killdeer NO) 5:50 SPR1 5.25 28.88 0.00 Air Pollution 08122108 Killdeer Dunn CountyHerald (Killdeer NO) 5.50 SPR1 5.25 28.88 0.00 Air Pollution 08129/08 Lakota American (Lakota NO) 5.50 SPRl 5.25 28.88 0.00 Air Pollution 08127/08 Lakota American (Lakota NO) 5.50 SPR1 5.25 28.88 0.00 Air Pollution 09/03/08 LaMoure Chronicle (LaMoure NO) 5.50 SPR1 5.25 28.88 0.00 Air Pollution 08127/08 LaMoureChronicle (LaMoure NO) 5.50 SPRl

. 5.25 28.88 0.00 Air Pollution 09/03/08 Langdon CavalierCo Republican (Langdon NO) 5.50 SPR1 5.25 28.88 0.00 Air Pollution 08125/08 Langdon CavalierCo Republican (Langdon NO) 5.50 SPR1 5.25 28.88 0.00 Air Pollution 09/01/08 Linton Emmons County Record (Linton NO) 5.50 SPR1 5.25 28.88 0.00 Air Pollution 08121108 Linton Emmons County Record (Linton NO) 5.50 SPRl 5.25 28.88 0.00 Air Pollution 08128108 Lisbon Ransom CountyGazette (Lisbon NO) 5.50 SPR1 5.25 28.88 0.00 Air Pollution 08125/08 Lisbon Ransom CountyGazette (Lisbon NO) 5.50 SPR1 5.25 28.88 0.00 Air Pollution 09/01/08 Mandan News (Bismarck NO) 

# .­ 5.50 SPR1 5.25 28.88 0.00 Air Pollution 08122108 Mandan News (Bismarck NO) 5.50 SPR1 5.25 28.88 0.00 Air Pollution 08129/08Division ofAirQuality Invoice# 25403-08091NDO-420 AdSize Rate Type Rate Total Discount ("/0)
.H."

....., COUNTY Mayville· Traill CountyTribune (Mayville NO) 5.50 $PRI 5.25 28.88 0.00 Mayville• Traill CountyTribune (Mayville NO) 5.50 SPRI 5.25 28.88 0.00 McCluskyGazette (McClusky NO) 5.50 SPRI 5.25 28.88 0.00 McCluskyGazette (McClusky NO) 5.50 SPRI 5.25 28.88 0.00 Medora Billings County Pioneer (Beach NO) 5.50 SPRI 5.25 28.88 0.00 Medora Billings County Pioneer (Beach NO) 5.50 SPRI 5.25 28.88 0.00 MilnorSargentCountyTeller (Milnor NO) 5.50 SPRI 5.25 28.88 0.00 Milnor SargentCountyTeller (Milnor NO) 5.50 SPRI 5.25 28.88 0.00 Minnewaukan Benson Co Farmers Press (Minnewaukan NO) 5.50 SPRI 5.25 28.88 0.00 Minnewaukan Benson Co Farmers Press (Minnewaukan NO) 5.50 SPRI 5.25 28.88 0.00 Minot Dally News (Minot NO) 5.50 SPRI 10.51 57.81 0.00 Minot Daily News (Minot NO)

.........-.. 5.50 SPRI 10.51 57.81 0.00 Mohilll Renville County Farmer (Mohall NO) SPR1 5.50 5.25 28.88 0.00 Mohall Renville County Farmer (Mohall NO) 5.50 SPRI 5.25 28.88 0.00 Napoleon Homestead (Napoleon NO) 5.50 SPRI 5.25 28.88 0.00 Napoleon Homestead (Napoleon NO) 5.50 SPRI 5.25 28.88 0.00 New EnglandThe Herald (New England NO) 5.50 SPRI 5.25 28.88 0.00 New England The Herald (New England NO) 5.50 SPRI 5.25 28.88 0.00 New Rockford Transcript(New Rockford NO) 5.50 SPR1 5.25 28.88 0.00 New Rockford Transcript(New Rockford NO) 5.50 SPR1 5.25 28.88 0.00 Rolla Turtle Mountain Star (Rolla NO) 5.50 SPR1 5.25 28.88 0.00 Rolla Turtle Mountain Star (Rolla NO) SPR1 5.50 5.25 28.88 0.00 Rugby Pierce CountyTribune (Rugby NO) 5.50 SPRI 5.25 28.88 0.00 Rugby Pierce CountyTribune (Rugby NO) 5.50 SPRI 5.25 28.88 0.00 lanley Mountrail Co Promoter (Stanley NO) 5.50 SPRI 5.25 28.88 0.00 Caption Page Run Date

Nr Pollution 08123/08
Air Pollution 08130/08
Nr Pollution 08121/08
Air Pollution 08128108
Nr Pollution 08121/08
Air Pollution 08128108
Air Pollution 08122/08
NrPollution 08129/08
Air Pollution 08127/08
Air Pollution 09/03/08
Air Pollution 08125/08
NrPollution 09/01/08
Air Pollution 08127/08
NrPollution 09/03/08
Air Pollution 08127/08
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Air Pollution 08/27/08Division ofAirQuality Invoice # 25403-08091NDO-420 AdSize Rate Type Rate Total Discount ('/0) Caption Page Run Date**".~ ,~**  Stanley Mountrail Co Promoter (Stanley NO) 5.50 SPRl 5.25 Steele Ozone & Kidder Co. Press (Steele NO) 5.50 SPRl 5.25 Steele Ozone & Kidder Co. Press (Steele NO) 5.50 SPRl 5.25 Towner Mouse RiverJournal (Towner NO) 5.50 SPR1 5.25 Towner Mouse RiverJournal (Towner NO) 5.50 SPR1 5.25 Valley CityTimes-Record (ValleyCity NO) 5.50 SPR1 7.14 ValleyCityTImes-Record (ValleyCity NO) 5.50 SPR1 7.14 Wahpeton Daily News (Wahpeton NO) 5.50 SPR1 7.14 Wahpeton Daily News (Wahpeton NO) 5.50 SPR1 7.14 Watford CIty McKenzie Co Farmer (Watford City NO) 5.50 SPR1 5.25 Watford City McKenzie Co Farmer (Watford City NO) 5.50 SPR1 5.25 Williston Herald (Williston NO) 5.50 SPR1 7.14 Williston Herald (Williston NO) 5.50 SPR1 7.14 COUNTY 28.88 0.00 28.88 0.00 28.88 0.00 28.88 0.00 28.88 0.00 39.27 0.00 39.27 0.00 39.28 0.00 39.28 0.00 28.88 0.00 28.88 0.00 39.28 0.00 39.28 0.00 Air Pollution
Air Pollution
Air Pollution
Air Pollution
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Air Pollution
Air Pollution
Air Pollution
Air Poilulion
Air Pollution
Air Pollution
Air Poilulion 09/03108
08127/08
09/03108
08127/08
09/03108
08125108
09/02108
08122108 08129108 08127/08
09/03108 08/25108 09/02108
Gross Advertising 3,359.70 Total Mise 0.00 Amount Paid 0.00 Agency Discount Tax 0.00 Adjustments 0.00

Other Discount 0.00 Total Billed Unbilled 3,359.70 0.00 Payment Date Balance Due 3,359.70 Service Charge 0.00

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### REGISTRATION

## JD/7/0~ ,EASE PRINT CHECK HERE 

### TO TESTIFY ADDRESS REPRESENTING**~AME**



## ('I'D 

# D If ;VI>

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# x

/ IPublic Hearing Air Pollution Control Rules October 7, 2008 9:00 a.m. CDT - Gold Seal Center



### I am David Schaaf and I will be acting as hearing officer for this public hearing. It is now 9:00 am on October**7~,** 

### in the Gold Seal Center so at this time, I open this hearing. This public hearing has been called for the purpose of allowing all interested individuals an opportunity to submit information concerning proposed amendments to N.D. Administrative Code Article 33-15 and revisions to the State Implementation Plan for the control of air pollution. Information gathered at this hearing will be transmitted to the Health Department for its deliberation and final decision. The Health Department will not be responding to comments at this hearing. The comments received at this hearing will be considered with any written comments that are received and the Health Department will present its consideration of all the comments in writing. You may request a copy of the written response and one will be provided to you. This hearing is being taped and we ask everyone to use the podium so

..- that the tape will be of good quality for transcribing purposes. Please identify yourself for the record before you speak. Everyone present will be given the opportunity to speak. If you have a prepared statement, a written copy of your statement is appreciated and will be helpful. A registration sheet has been placed next to the doors. I ask that everyone present please sign this sheet before they leave. At this point, I calIon Tom Bachman of the Health Department to provide a summary of the proposed changes. Tom Bachman presents the revisions to the Air Pollution Control Rules affect several chapters including: Chapter 33-15-01 General Provisions: Within this chapter new definitions are proposed for "excess emissions" and "PM2 . S "' 

### Modifications were made to the existing definition of "air contaminant" and "volatile organic compounds." Subsection 1 of Section 13 was modified by adding. a paragraph indicating excess emissions are not authorized. A new subdivision was added to specify the criteria necessary to show that a malfunction was unavoidable. The subdivision also allows the Department discretion whether to take enforcement action when a malfunction is unavoidable. The requirements for alternative monitoring in the event of failure of a continuous emissions monitoring system were also amended.

### In Chapter 33-15-02, Ambient Air Quality Standards, the existing standards for PM10 

### and ozone are being am€nded to match the current Federal standards and new standards for PM2 . 5 

### are being added which are also the same as the Federal standards. The proposed change to Chapter 33-15-05, Emissions of Particulate Matter Restricted, deletes requirements for existing trash incinerators when a malfunction occurs. In Chapter 33-15-12, Standards of Performance for New Stationary Sources, the Department proposes deletion of the mercury requirements in Subpart Da and Subpart HHHH since these requirements were vacated by the Circuit Court of Appeals for the· District of Columbia. Subpart KKKK for combustion turbines will be added. The only change to Chapter 33-15-13, Emission Standards for Hazardous Air pollutants, changes the date for incorporation by reference of the various subparts. The proposed changes to Chapter 33-15-14, Designated Air Contaminant Sources, Permit to Construct,Minor Permit to Operate, Title V Permit to Operate, limit the designated source category for sources subject to MACT standards to only those that are major sources. Other changes are administrative updates. Chapter 33-15-15, Prevention of Significant Deterioration, is being updated to incorporate changes made by EPA through August 1, 2007. The changes to Chapter 33-15-21, Acid Rain Program, updates the rules to be the same as EPA's rules as of March 1, 2008. In Chapter 33-15-22, Emission Standards for Hazardous Air Pollutants for Source Categories, the date for incorporation by reference is updated to March 1, 2008, and Subpart DDDDD and JJJJJ 

### are being deleted since the D.C. Circuit Court vacated the rules. In addition, it is being clarified that only the requirements for major sources under Subpart HH are being adopted. The final chapter is 33-15-23, Fees. 

### An exemption is provided from the minor source Permit to Operate fees for local governments. For Title V fees, the rule is modified to indicate that the fees are due 60 days after the date of the billing letter. This concludes the summary of the proposed rule change. David Schaaf opened the hearing for public comment. Ken Wangler with MDU stated that it may be helpful if the Department would provide some examples of what might be inadequate maintenance with regard to 33-15-01-13.2. To help industry understand what is
2expected or what things might be unacceptable if a malfunction would to occur, the Department should provide guidance on inadequate maintenance or define what inadequate maintenance might be. Ken also talked about a memorandum from the Department dated February 10, 2006. On page 4 the memorandum states that malfunctions are not considered violations. Ken stated that memorandum may contradict this new rule change and suggested that the Department take a look at that. Ken stated that in 40 CFR 52.21(r) (6) the reference to the Department's regulation indicates the word "reasonable" is deleted. Ken stated that he thought he looked at a current copy of that particular section of the Federal Regulation and agreed with circumstances where there is a reasonable possibility. He stated that if "reasonable" got deleted out of that section it appears that it does correlate to the Federal Regulation. David Schaaf asked if anyone else would like to provide testimony or comments. Hearing no requests for further co'mments David thanked everyone for coming. All of the information gathered at this hearing will be provided to the Health Department, which is the decisionmaking body. The record will be held open for written comment through October 18. 2008. At this point. I will close the hearing on the proposed amendments to the North Dakota Administrative Code, Article 33-15 and revisions to the State Implementation Plan for the control of air pollution. 

# ;es:271Y**~~ed,** Terry L. O/Clair Administrative Officer TLO:saj

3ENVIRONMENTAL HEALTH SECTIOI\I Gold Seal Center, 918 E. Divide Ave. 

### NORTH DAKOTA Bismarck, ND 58501-1947 DEPARTMENT

### oj HEALTH 701.328.5200 (fax) www.ndhealth.gov

Certification of Public Hearing

Re: Implementation Plan for the Control of Air Pollution for the State of North Dakota Certification: The undersigned certifies that the public hearing held by the North Dakota Department of Health on October 7, 2008, for the purpose of receiving and considering testimony and evidence bearing on the proposed revisions to the Implementation Plan for the Control of Air Pollution for the State of North Dakota was held in accordance with the notice required by Section 51.102 Public Hearings of the Requirements for Preparation, Adoption, and Submittal of Implementation Plans, Code of Federal Regulations, Title 40, Chapter I, Subchapter C, Part 51.
Date: October 7, 2008
Affidavit: State of North Dakota County of Burleigh On the 7 th day of October 2008 before me personally appeared Tom Bachman, who having been duly sworn, stated that to the best of his knowledge and belief the statements in the foregoing certification are true.
Subscribed and sworn to before me Sherri A. Jahraus Type, Print or Stamp Name

Notary Public County North
...**~~~""""""'ll.oIl~l!taritI""""""""** My CO**~~J~~~AUS** 

### NOtarylFu0 Iir:-----e---­ State of North Dakota My Commission Expires Oct. 18,2008

Environmental Health Division of Division of Division of Division of Section Chiefs Office Air Quality Municipal Facilities Waste Management Water Quality 701.328.5150 701.328.5188 701.328.5211 701.328.5166 701.328.5210 Printedon recycledpaper

### Response to Public Comments on Proposed Revisions to The Air Pollution Control Rules of the State of North Dakota

Public Comment Period September 15

- October 18, 2008

North Dakota Department of Health Division of Air Quality 2nd 

### 918 E. Divide Avenue, Floor Bismarck, ND 58501-1947

### Table of Contents 

### Title Listof Acronyms
. Summary of Comments and Responses 1. Oral Comments. 2. Written Comments on Rules 3. Written Comments on State Implementation Plan Revisions Tesoro Refining and Marketing Co. Comments Plains Justice Comments Environmental Protection Agency Comments

and Department's Response Martin R. Schock Comments . 1

2

### List of Acronyms


### EPA Environmental Protection Agency NAAQS National Ambient Air Quality Standards MDU 

### Montana-Dakota Utilities PSD Prevention of Significant Deterioration SIP State Implementation Plan SSM Startup/Shutdown/Malfunction

1

### Summary of Oral Comments There was only one person who provided oral comments at the public hearing on October 7, 2008.

No. Commentor Section of Rules Affected Comment Department Response

1 MDU 33-15-01-13.2.c(2) MDU indicated it would be helpful if the Department provided guidance on inadequate maintenance or unacceptable maintenance. The Department cannot provide guidance on maintenance for every type of source regulated under the Air Pollution Control Rules. The Department will base its determination of whether maintenance was adequate by looking at standard maintenance for the industry or source type in question. 2 MDU 33-15-01-13.2.c(2) MDU indicated that the revised rule may conflict with a February 10, 2006 memorandum on malfunction and the memorandum be revised accordingly. The Department has the memorandum and determined that no are necessary. reviewed changes

3 MDU 33-15-15-01.2 (40 CFR 52.21(r) (6)) MDU believes the word "reasonable" should not be deleted from the section of the Federal rules that are being incorporated by reference. This section refers to keeping records and reporting when a modification could have a "reasonable" possibility of being a major modification. The use of the word "reasonable" was remanded back to EPA by the Court of Appeals for the D.C. Circuit (2005, New York v. EPA 413 F. 3d3, 82-9). EPA subsequently finalized a rule to address the D.C. Circuit Court's concerns (F.R. Vol. 72, No. 245, Dec. 21, 2007). However, this rule was challenged by the state of New Jersey on February 19, 2008. Until all legal challenges are exhausted on this rule, the Department believes it is prudent to delete the word "reasonable". When all legal challenges to EPA's rule defining "reasonable" are exhausted, the Department will adopt the EPA rule.

2

### Summary of Written Comments and Responses

No. Commentor Section of Affected Rules Comment Department Response 1. Tesoro Refining & Marketing Co. 33-15-01-13.2.c(2) Tesoro suggested that words "or adequate design" be removed. the Paragraph 33-15-01-13.2(c} (2) was revised to eliminate "adequate design" and state "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." 2. Tesoro Refining & Marketing Co. 33-15-01-13 .2 Tesoro suggested revising this section with simplified language taken from their Consent Decree which states: malfunction is defined as "any sudden, infrequent, and not reasonably preventable failure of air pollution control equipment, process equipment, or a process to operate in a. normal or usual manner. Failures that are caused in part by poor maintenance or careless operations are not malfunctions." The Department has added language to 33-15-01-13.c(1) to address the sudden and unavoidable failure of technology (i.e. air pollution control or process equipment) as suggested by Tesoro.

3. Plains Justice 33-15-15-01.2 Plains Justice is asking the Department to fully implement the PM,., requirements instead of using PM" as a surrogate. The comment does not affect the language in the rule that is being adopted. Plains Justice's comment is in relation to the implementation of the rule. EPA has indicated that PM" can be used as a surrogate for PM,., unti 1 July 15, 2011 or urrtil the Department revises it rules to include PM,.,. The Department believes that emission factors, stack testing methods and modeling techniques need to be refined before implementing the PM,., requirements. The Department has not adopted the PM,., requirements published in the Federal Register on May 16, 2008. When the Department adopts the rule, we will fully implement the PM,., requirements.

3No. Commentor 4. U.S. EPA (No.

U.S. II

EPA 5. (No.

U.S. 2 )

EPA 6. (No.

U.S. 3 )

EPA 7. (No.

U.S. 4 )

EPA 8. (No.

U.S. 5 )

EPA 9. (No.

U.S. 6 )

EPA 10. (No.

U.S. 7)

EPA ll. (No.

U.S. 8)

EPA 12. (No. 9 ) Section of Rules Affected 33-15-01-04. 10

33-l5-0l-l3.2Ic)

33-15-01-13.3

33-15-02-07.4 33-l5-05-0l.2{a) (1) 33-15-20-04.6

33-15-01-14.2

33-15-01-07

33-15-02 Table 1

33-l5-05-03.2Id) 33-l5-05-0l.2(a) (1)

33-15-05 Comment EPA suggests the following be added to the definition of excess emissions, "or actions inconsistent with an applicable requirement specified in this article or a permit issued pursuant to this article" .
EPA suggested that we clarify the language and shorten the time for the written report claiming a malfunction was unavoidable. EPA believes we are incorporating a "Director's discretion" to replace another one.

EPA identified additional sections of the rules they believe need revision to eliminate a "director's discretion".
EPA suggested removing the "Director's discretion" in this section. EPA indicated this section should be removed.

EPA asked the Department to clarify if it was adopting the 0.08 pm or 0.075 ppm standard.

EPA identified additional sections of the rules they believe need revision due to a "director's discretion"
.
EPA indicated that sections identified as needing revisions due to "Director's discretion" should not be submitted with the revised rules for final approval.
4 Department Response Based on discussions with EPA, the definition was revised to: "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." The rule was revised to require quarterly reporting.

The affected language was replaced with "The owner or operator of a source that uses an alternative method shall have the burden of demonstrating that the alternative method is accurate. " These sections of the rules were not proposed for revision. The Department will evaluate these sections and make any necessary changes at a later date. The proposed revision has been withdrawn.

This section of the rules was not proposed for revision. The Department will evaluate the rule and make any necessary changes at a later date. The Department has proposed the 0.075 standard for adoption as indicated in Table l. The rule was revised to correct the inconsistency. These sections of the rules were not proposed for revision. The Department will evaluate these sections and make any necessary changes at a later date. Agreed.No. Commentor 13. U.S. EPA (No.

U.S. 10)

EPA 14. (No.

U.S. ll)

EPA 15. (No.

U.S. 12)

EPA 16. (No.

U.S. 13)

EPA 17. (No.

U.S. 14)

EPA 18. (No. 14) Section of Rules Affected 33-15-12

33-15-12 Appendices A-I

33-15-14-01.14

33-15-14-02.6.c

33-15-14-06.1.c

33-15-14-02.13.n. 33-15-14-02.19 & 33-14-14-03.16 Comment EPA asked that the Department confirm that Subparts Eb, L, M, N, Na, P, Q, R, S, BB, EEEE, IIlI and JJJJ will not be adopted. EPA pointed out that the appendices may have been inadvertently marked for de1"etion. EPA indicated the change will require a demonstration that the NAAQS and PSD increments will not be adversely affected.

EPA indicated they could not approve it because of a lack of Federal rule on approvability of the entire subsection. EPA pointed out that the revision to this subdivision should ndt be submitted as a SIP revision. EPA identified these rules as containing a "Director's discretion" that should be removed. Department Response The Department is not intending to adopt these subparts and will confirm this with the EPA.

The deletion was not intended and the appendices were added back into the chapter.
The change only affects sources of hazardous air pollutants and only the permitting requirements for those sources. It does not affect any emission limitations. Since there are no NAAQS or PSD increments for hazardous air pollution, and no relaxation of emission limits, the demonstration is not required. This has been verified with EPA. The Department understands that until EPA finishes rulemaking, the housekeeping change will not be approved. Agreed.

These sections were not proposed for revision. The Department will evaluate the referenced sections and make any necessary changes at a later date.

53. 

### State Implementation Plan Comments (Not Rule Related)

No.
1.

2.
3.

4.

5.

6.

7.

8.

9.

10. Commentor
Martin Schock

U.S. (No. U.S. (No. EPA 17) EPA 18)
U.S. (No. EPA 19)
U.S. (No. EPA 20)
U.S. (No. EPA 21)

U.S. (No. EPA 22)

U.S. (No. EPA 23)

U.S. (No. EPA 24)

U.S. (No. EPA 24) Chapter or Section of SIP Affected 7.7

7.8
7.8

7.8.1

6.8

6.11.1 6.11.2 6.11.3
5

9 Comment

Mr. Schock recommended deleting the second paragraph to eliminate any conflict between Section 7.7 and NDAC 33-15-14-02.4. EPA suggested adding the word adequate to the second line. EPA suggested replacing the word "and" with "or" in the second paragraph, Line 3. EPA suggested adding the date "1997" to the subsection. EPA suggested be updated to 58.10. title of the
that Section 6.8 reference 40 CFR
EPA noted some inconsistencies in the naming the monitoring sites for PM", PM,., and ozone. EPA indicated that PM,., should be added to the list of pollutants for emergency episode provisions. Also, the Department should establish priority levels and contingency plans under 40 CFR 51.150. EPA could not find the section of the SIP that addresses notification of the public of exceedances of the NAAQS. EPA could not find the section of the SIP which requires the State to provide for consultation and participation in SIP development by political subdivisions affected by the SIP. EPA wants the Department to clarify that this chapter is replaced in its entirety. Department Response Agreed

Agreed. Agreed.
Agreed.
Agreed.
Agreed

- the names have been changed to be consistent.

EPA has not adopted emergency episode levels for PM"
. Since the Department cannot be more stringent than Federal requirements, we cannot adopt limits for PM,.,
.

The notification requirements are found in Section 6.9.

These requirements are included in Chapter 10 of the SIP.

Agreed.

6

### October 16, 2008 File51.275 

## TESORO 

# •

Tesoro Refining and Marketing Company 

### Mr. Terry O'Clair,P.E. Northern Great Plains Region 900 Old Red Trial Northeast 

### North DakotaDepartment ofHealth Mandan, North Dakota 58554-1589 

### 918 EastDivideAvenue 7016672400 701 667 2448 Fax 

### Bismarck, ND 58501-1947 Comments on Proposed Changes to the North Dakota Air Pollution Control Rules DearMr. O'Clair: Thank you for the opportunityto comment on the proposed changes to theNorthDakota AirPollution Control Rules. Tesoro is providing comments specifically on Section 33­ 15-01-13, "Shutdownand malfunction ofan installation

- Requirement for notification". Tesoro suggests that the words "oradequate design" be removed from theproposed changes to 33-15-01-13.2.c.(2). Theproposed language currentlyreads: "[requires the facility to provide evidence that] the excess emissions could not havebeen avoided by betteroperation, maintenance or adequatedesign ofthemalfunctioning component." The EPAhas already addressed what theybelieve constitutes an unavoidablemalfunction viathe various consent decrees, and it would be logical fortheNorthDakotaRules to align with how EPAis interpreting "malfunctions". In

### the BP (Tesoro) Consent Decree, malfunction is defined as "any sudden, infrequent, and not reasonablypreventable failure ofairpollutioncontrol equipment, process equipment, oraprocess to operate in anormal orusual manner. Failures that are caused inpartbypoormaintenanceorcareless operation are not malfunctions." The change suggested byTesoro lines up withthe EPA interpretation, and is areasonable standard. Tesoro agrees withproviding information about design issues in ourreports/ investigations about malfunctions, and we believe that issue is effectivelyaddressed in l3-l5-01-13.2.c.(6). Tesoro appreciates the opportunitytoparticipate inthis rule makingprocess. Ifyouhave anyquestions regarding Tesoro's comments, please call David Schaafat 667-2485.

# Sin~f/~ Ronald W. Day Manager, Health, Safety and Environment DPS/sms

### www.plainsjustice.org

October 10, 2008 

### Terry O'Clair,Director Air QualityBureau

. North DakotaDepartmentofHealth

9i8E. DivideAvenue, 2nd 

### Floor Bismarck, North Dakota58501-1947 

### Re: Commentsto NorthDakota's StateImplementationPlanRevisions DearMr. O'Clair: DakotaResource Council,DacotahChapterofSierraClub, and Plains Justicerespectfully submit these comments on the North DakotaDepartment ofHealth's amendments to North Dakota's State Implementation Plan (SIP). We urge NDDH to require information from airpermit applicants that will enable full compliancewith the New SourceReview requirements for particulate matter less than 2.5 

### micrometers in diameter (PM2.;). 

### As setforth below, the means exist now to model PM2.5 

### impacts on airquality and to set "best available control technology" (BACT) limits for PM2.5. 

### Taking this step now will safeguard the health ofvulnerableNorth Dakotans, such as children and theelderly, and protect the state's outstandingquality oflife. I. 

### PM2.5 

### emissions threaten North Dakota's public health The PM2.5 

### fraction ofparticulate matteris agreaterpublic health concern than the coarser fraction referred to as PMlO, 

### as the smallerparticles pose the "largesthealth risks,"! Federal regulations have declared PM2.5 

### a causal factor in premature death, in addition to: aggravation ofrespiratory and cardiovascular disease (as indicated by increased hospital admissions, emergency room visits, absences from school or work, and restricted activity days), changes in lung function and increased respiratory symptoms, as well as new evidence for more subtle indicators ofcardiovascularhealth. 2

1EPA, "PM2.5 NAAQS Implementation," available athttp://www.epa.gov/ttnnaaqs/pm/pm25_index.html; seealso EPA OfficeofAir Quality Planning and Standards, "Review ofthe National Ambient Air Quality Standards for Particulate Matter: Policy Assessment ofScientific and Technical Information," StaffPaper (July 1996), V-58 to V77, available athttp://www.epa.gov/tnnlnaaqs/standardslpm/s_pm_1997_sp.html (discussing health studies offine versus coarse particles). 2Clean AirFineParticle ImplementationRule, 72 Fed. Reg. 20,586,20,586-20,587 (April 25, 2007) (codified at 40 c.F.R. Part 51). 100First Street SW, Suite 201, Cedar Rapids, IA 52404 Phone: (319) 3622120 Fax: (866) 462 3053 P. O. Box 251, Vermillion, SD 57069 Phone: (612) 462 3053Page 2 of9



### EPA has also identifiedlung cancerdeaths, infant mortality, and developmentalproblems (such as low birth weightin children) as possibly linked to PM2.5.3 

### According to the American Academy ofPediatrics, children andinfants are the most susceptible to PM2.5 

### emissions.4 

### Among children, there have been higher asthma-relatedhospitalization rates, more severe asthma attacks, and slowed lung function growth. 5 

### Children also have increasedexposureto particulate pollutioncompared with adults becauseofhigher minute ventilation and higherlevels ofphysical activity. Olderadults are also particularly susceptible to PM2.5

### becauseoftheir weakerlungs and hearts. Studies suggestthat serious health effects, such as prematuremortality, are greater among oldergroups ofindividuals.6 

### Additionally, older adults are also more likely than youngerones to have preexistingrespiratory and/or cardiovascularconditions that become aggravated with exposure to PM2.5.7 

### North Dakotans are seeing an increase in asthma diagnoses. In 2005, twelve percentofNorth Dakotachildren were ever diagnosed with asthma (called lifetime asthma), and eight percent11,000 children-currentlyhave it (diagnosed within the calendar year).8 In 2004, more adult North Dakotans had asthma than everbefore, nearly 37,000.9 

### Indeed, the asthmarates are increasing at such arate that the North Dakota legislatureidentified the disease as a state priority, creating a special workgroup whose sole function is to improve the health ofNorth Dakotans living with asthma. 10
. 

### II. NDDHhas aduty to ensureprotection ofNorth Dakota's air quality NDDHhas aduty underthe Clean Air Act and parallel state"laws and regulations to ensure the health ofNorth Dakotans by directly and stringently limiting fine particle pollution. The North Dakotalegislature, through the enactmentofthe AirPollution Control Rules, declared: [T]he public policy of this state and the legislative intent of this chapter [is] 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

3 National Ambient Air Quality Standards for ParticulateMatter, 71 Fed. Reg. 2620,2627 (proposed Jan. 17,2006). 4 See also AmericanLung Association, "ParticlePollution Fact Sheet,"available at http://www.1ungusa.orglsitelpp.asp?c=dvLUK900E&b=50324. 5I

d. 6 National AmbientAir Quality Standards for ParticulateMatter, 71 Fed. Reg. 2620, 2637 (proposed Jan. 17,2006). 7I

d. 8 North Dakota2005 Fact Sheet, "TheBurden ofChildhood Asthma," available at http:// www.ndhealth.gov/chronicdisease/factsheets!AsthmaInChildrenFactSheel.pdf. 9 North Dakota2005 Fact Sheet, "TheBurden ofAsthma," available at http://www.ndhealth.gov/chronicdisease/factsheets/AsthmaFactSheel.pdf. 10 North Dakota State Asthma Workgroup, available at http://www.ndhealth.gov/asthmal.

# -- Page 3 of9


### this state, to foster the comfort and convenience of the people, and to facilitate the enjoyment ofthe natural attractions ofthis state. lI 

### The SIPis the state'sroadmap for delivering the "best airquality possible," as guaranteed to every North Dakotaresident by state law.

a. NDDHmust ensureenforcement ofthe National Ambient AirQualityStandard (NAAQS) for PM2 .5 

### The Clean AirAct requires EPA to establish ambient airquality standards at a level that protects public health, including the health ofsusceptible populations, with an "adequatemargin of safety.,,12 The airquality standards mustbe based solely on the health effects ofthepollutant, and may not takeinto consideration otherfactors such as cost ofachieving the standard. 13 

### In 

### 1997,EPA promulgated new annual and 24-hourNAAQS forPM2 . 5. 14 

### EPA's bases for regulatingPMlO 

### and PM2.5 

### separately under distinct NAAQS were and remain the differences in people'sexposure, where the particles lodge in the body (PM2 .5 

### penetrates deeper into the lungs), and the health effects associated with each. 15 

### EPA later tightened the PM2 . 5 

### 24-hour standard from 65 microgramspercubic meter (Jlg/m3) 

### to 35 Jlg/m3

, 

### but left the annual standard unchanged.16 NDDH, in its SIPrevisions, is adoptingboth standards in accordance with the Clean AirAct. b. ThePrevention ofSignificantDeterioration (PSD) programrequires compliance with NAAQS and PSD increments, as well as application ofBACT In orderto protect air qualityin areas that are'currently meeting thePM2 . 5

### NAAQS (all ofNorth Dakota), thePSD section ofthe New SourceReview programrequires a construction permit with "bestavailable control technology" limits for new sources ofair pollution. Section 165 prohibits construction ofa major emitting facility in an attainment area unless the

owner or operator
... demonstrates
... that emissions from the

.construction or operation of the facility will not cause, or contribute to, air pollution in excess of 

### any . . . maximum allowable increaseor maximum allowable concentration
... [or] national ambient airquality standard. 17

11 N.D. CENT. CODE, § 23-25-01.1 (2008); seealso N.D. ADMIN. CODE § 33-15-02-03 ("In keeping with the purpose ofthese ambient air quality standards, the quality should be such that: (1) Thepublic health will be protected including sensitive or susceptible segments ofthe population."). 12 See42 U.S.c. § 7409(b)(I). 13 Whitman v. Am. TruckingAss'n, 531 U.S. 457, 471 (2001). 14See National Ambient Air Quality Standards for Particulate Matter, 62Fed. Reg. 38,652 (July 18, 1997);40 C.P.R. § 50.7.

- 15 National AmbientAir Quality Standards for Particulate Matter, 71 Fed. Reg. 61,144,61,147 (Oct. 17,2006). 16 [d. The annual standard for PM2.5 is 15 p.g/m3

. 17 42 U.S.c. § 7475(a)(3)(B) (emphasis added).Page4 of9
. 

### Section 

### 165 also prohibits construction ofa major sourceunless "theproposedfacility is subject to the best available control technology for each pollutant subject to regulation under [the Clean Air Act] emittedfrom, orwhich results from, such facility.,,18 In 

### otherwords, NDDH must ensure that any proposed source will not lead to a violation ofany PSDincrementorNAAQS, andrequire strictcontrol ofemissions ofeach pollutant subject to regulation. According to EPA, the promulgation ofa NAAQS for PM2 .5on July 18, 1997 triggeredthe duty to apply these PSDrequirements to fine particles.19 Therefore, aproposed source cannotbe
. constructed until thereis a demonstration that the PM2 .5NAAQS will notbe violated and the construction permit has a BACTlimit for PM2 .5. 

### With the adoption ofthe PM2 .5NAAQS, NDDH mustensure that all new sources in North Dakotawill meet these two requirements. The roles require thatno new source ofair pollution in NorthDakotamayemit airpollution that "causes orcontributes to a violation in the ambient air
... [quality] standards.,,2o Furthermore, "anyair contaminant which exceeds these [NAAQS] limits is hereby declared to be unacceptable andrequires air pollution control measures.,,21 

### III. UsingPMIO 

### as a surrogatefor PM2 .5is unacceptable as a matter oflaw Despiteclearbases for requiring direct regulation ofPM2 .5, EPA has allowed state permitting authorities to regulate PMIO 

### only. A guidancememorandum was issuedright afterthe PM2 .5 NAAQS werepromulgatedthat suggestedpermittingauthorities use PMIO 

### as a surrogatefor PM2 .5because ofdifficulties in monitoring, estimating, and modelingPM2.5 emissions.22

a. The Clean Air Actprohibits the use ofthe surrogacy approach TheClean Air Act andits implementingregulations require directcontrol ofPM2 .5. 

### The legal distinction between PM2 .5and PMIO precludes the use ofPMIO 

### as a surrogate. There is no way a determination ofBACT for PMIO

### can qualify as the required determination ofBACT for the separate anddistinct pollutantknown as PM2 .5?3 

### Theconclusion that a proposed source will not cause orcontributeto a violation ofthe PMIO 

### NAAQS does not satisfy NDDH's legal duty to evaluate whether a proposed source wouldcause orcontribute to a violation ofthe PM2 . 5 · 

### NAAQS. In the interveningeleven years, EPA has declared that the basis for the 1997.¥uidance,
. "significanttechnical difficulties" with measuring PM2

### .5, has been resolved. 2 

### Any assertions

18 [d. at (4) (emphasis added). 19 Proposed Rule to Implement the FineParticle National Ambient Air Quality Standards, 70Fed. Reg. 65,984, 66,043 (Nov. 1,2005)(obligation to implementPSD for PM2.5 was triggered on the effectivedatefor the NAAQS); see also 42U.S.C. §7475(a)(I)-(4). 

### w .

N.D. ADMIN. CODE § 33-15-02-07 (2007); see also N.D. CENT. CODE § 23-25-04.1(1). 21 N.D. ADMIN. CODE § 33-15-02-04 (2007). 22 Memorandum from John S. Seitz, Director, Office ofAir QualityPlanning Standards, to Regional Air Directors, Interim Implementation ofNew SourceReview for PM2.5 (Oct. 23, 1997). 23 See National Ambient Air Quality Standards for Particulate Matter, 62 Fed. Reg. 38,652 (July 18, 1997); National Ambient Air Quality Standards for ParticulateMatter, 71 Fed. Reg. 61,144, 61,147 (Oct. 17,2006). 

# .- 24 Final PM2.5 Rule, at 28,340; see also PreventionofSignificant Deterioration (PSD) for ParticulateMatter Less Than 2.5 Micrometers (PM[2.5])--Increments, Significant ImpactLevels (SILs) and Significant Monitoring Concentration (SMC), 72 Fed. Reg. 54,112 (Sept. 21, 2007).Page 5 of9



### -- regarding technical limitations relative to PM25 

### are outdated. Technical capabilities for modeling PM25 

### do exist.25 

### EPA has identified available models to analyze the impacts of PM2.5?6 

### Appendix W to 40 

### C.ER. Part 51 "addresses the regulatory application ofair quality models for assessing criteriapollutants under the Clean AirAct.'.27 TheGuidelineprovides for modeling ofPM2.5

### using both the ISC and AERMOD models. EPA has also approved two

. methods, CTM-039 and CTM-040, for measuring PM2.5?8 

### b. OtherStates are requiring PM2 . 5 

### regulation Numerous experts have demonstratedthat the technical concerns behind the surrogacy approach have been resolved. State adjudicative bodies faced with the surrogacy approach in New Source Review permittingchallenges haverejected it on the basis that sufficient technical grounds exist to comply directly with PM2 . 5 

### requirements. Montana's BoardofEnvironmental Review has found that settingBACTemission limits for PM2 . 5 

### emissionsfrom a boileris feasible using existing test methods, emissions estimates from boilermanufacturers, and "design alternative equipment, work practices oroperational standards to reduce emissions ofPM2 . 5 

### to the maximum extent.',29 As the Boardfurther noted, any legitimateremaining issues with the measurement of PM2.5do not remove the duty to include PM2.5-specific BACTlimits in a new source permit.30

.The definition ofBACT allows the use of"adesign, equipment,workpractice, operational

standard orcombination thereof'to be used with anumeric estimate Of 

### the emissions level to be achieved when measurement problems exist.3l

_ .Similarly, a state court has accepted aPM2 . 5 

### modeling demonstration showing a violation ofthe

.PM2 . 5 

### NAAQS.32 The court found that when faced with such ademonstration, a state agency could not rest on PMlO modeling alone.33 These' states are rightfullyrefusing to accept lax analyses ofan inappropriate surrogatein place ofthe mostprotective analyses that are feasible in practice and required underthe law.

25 Revision to the Guidelineon Air Quality Models: Adoption ofaPreferred General Purpose (Flat and Complex Terrain) DispersionModel and OtherRevisions, 70Fed. Reg. 68,218,68,234-68,235 (Nov. 9, 2005);40C.F.R. Part 51 Appendix W, 5.1(e), (t), (h), 5.2.2.1. 26 40 C.F.R. Part 51 Appendix W (prescribing modeling requirements for PM2.5); 40C.F.R. §52.21(1); Requirements for Preparation, Adoption, and Submittal ofImplementationPlans. 61 Fed. Reg. 41,838,41,850 (Aug. 12,1996);40C.F.R. Part51 Appendix W 7.2.2(c) (showing that historically. "ISC [was] recommended for point sources ofsmall particles
... "). 27 Revision to the Guidelineon Air QualityModels: Adoption ofa Preferred General Purpose (Flatand Complex Terrain) Dispersion Model and OtherRevisions. 70Fed. Reg. 68,218 (Nov. 9,2005).
. 28 Clean Air FineParticleImplementation Rule,'nFed. Reg. 20,586,20,653 (April 27, 2007). 29 Board ofEnvironmental Review ofthe StateofMontana, "Findings ofFact, Conclusions ofLawand Order on ClaimsofPetitioners that the DepartmentofEnvironmental QualityFailed to Comply with Permitting Requirements Applicable to PM2.5 and Ruling on RegulationofCO2 for BACTPurposes," In theMatterof' Southern Montana Electric GenerationandTransmission Cooperative-HighwoodGenerating Station, Case No. BER2007-07 AQ, 27­ 28 and 36 (May 30, 2008) (Highwood Order). 30 ld. 31 40 C.F.R. §§ 51.166(b)(12) and 52.21(b)(12).

_.- 32 Friends of the Chattahoochee v. Couch, in the Superior CourtofFulton County, StateofGeorgia, Docket No. 2008CV146398, Final Order (June 30, 2008), at9-12. 33 ld.Page 6 of9 

### Additionally, at least one facilityfaced with a surrogacy challenge has agreed to install PM2y 

### specific controls, submit PM2.5 

### reports, propose PM2y

### specific numeric emission limits, and install PM CEMS as acondition ofa settlement agreement. 34 

### This agreement shows that direct PM2.5 

### control is feasible.

c. NDDH should not rely on the Final PM2.5 

### Rule's attempt to codify the surrogacy guidance EPA'srecent attempt to codify its earlierguidanceon PMIO 

### surrogacyretroactively is also unlawful. In itsFinal PM2.5 

### Rule, EPA impermissibly waived the existing Clean AirAct requirements described above for sources with applications deemedcompleteprior to July 15, 2008.35 

### In doing so, EPA purports to give the force oflaw to a guidance memorandum th?t was never adopted through notice-and-commentrulemaking. 36 

### ByEPA's own admission, this guidance was neverlegally binding on state permitting authorities. 37 

### EPA memorandado not supersede the authority ofthe Clean AirAct's implementingregulations. EPA does not have the powerto repeal a federal statutory requirement. States must ensure that emissions from a given facility will notresult in the violation ofNAAQS forany pollutant,period. 38 

### EPA promulgated NAAQS for PM2.5, 

### making it a pollutantfor which modelingmust be done to ensure that the standard will not be violated.39 

### EPA cannotrepeal the regulation with a guidance memorandum. North Dakota woulddo well to abstain from following an optional componentofyet another faulty Clean AirActrule. On numerous occasions, the D.C. Circuit and the Supreme Court have overturnedEPA's recent failures to follow the plain language ofthe Clean AirAct in its rulemakings. Thecases and overturnedrules include:

• Massachusetts v. EPA, 549 U.S. 497 (2007), in which EPAerroneously decreed that the Clean AirAct does notgiveEPA authority to regulate greenhouse gases. In the related State of New York v. EPA, No. 06-1322 (D.C. Cir.), the court remanded the casebased on EPA'srefusal to regulate greenhouse gases in its New SourcePerfonnance Standards for powerplants. • ,NortheastMaryland Waste DisposalAuthorityv. EPA, 358 F.3d 936 (D.C. Cir. 2004), in which EPAfailed to evaluate arequired factor when it issuedemissions standards for small municipal waste combustors. • Mossville EnvironmentalActionNow v. EPA, 370 F.3d 1232 (D.C. Cir. 2004), in which EPAfailed to issueemissions standards for each listed hazardous airpollutant emitted from PVC plants.

34 SettlementAgreementofMarch lO, 2008 among U.S. Steel Corporation, GatewayEnergy & CokeCompany, LLC, American BottomConservancy, andSierraClub. The facility is located in Illinois. 35 See Final PM2.5Rule at28349; 40C.F.R. § 52.21(i)(l)(xi) (allows use ofsurrogate approach for applications complete as ofJuly 15,2008 with respect to usingPMIOinstead ofPM2.5)' 36 Highwood Order, at 25.
. 37 Memorandum from John S. Seitz, Director, OfficeofAir Quality Planning Standards, to Regional Air Directors, Interim Implementation ofNew SourceReview for PM2.5 (Oct. 23, 1997). 38 42 U.S.c. § 741O(a)(2)(D)(i)(1). 39 40 c.F.R. §§ 51.166(k)(1); 52.21(k)(I).Page7 of9



### • New York v. EPA, 

### 413 F.3d 3 (D.C. Cir. 2005) (New Yorkf), 

### in which EPApromulgated a New Source Review rule impermissibly allowing the agency to evaluate emissions increases without measuring actual emissions from majorpollution sources. • New York v. EPA, 

### 443 F.3d 880 (D.C. Cir. 2006) (New YorkIf), 

### in which EPA promulgated arule impermissiblyexempting plant process unit modifications valued at less than 20% ofthe process unit from triggeredNew SourceReview. • SCAQMD v. EPA, 

### 472 F.3d 882 (D.C. Cir. 2006), in which EPA unlawfullyevaded more protective and prescriptive measures intended by Congress to govern areas thatfail to meet the Clean AirAct's ground-level ozone standard. • Sierra Club v. EPA, 

### 479 F.3d 875 (D.C. Cir. 2007), in which EPA promulgated hazardous airpollution standards for brick and cementkilns that failed to heed statutory requirements for minimum stringency. • NRDCv. EPA, 

### 489F.3d 1250 (D.C. Cir. 2007) (NDRCf), 

### in which EPA promulgated rules covering hazardous airpollutants from commerciallindustrial boilers and solid waste incinerators that employed unlawfully narrOw definitions ofthe sources subject to the standards. • NRDCv. EPA, 

### 489 F.3d 1364 (D.C. Cir. 2007) (NRDC If), 

### in which EPA unlawfully attempted to exempt an allegedly "lowrisk" subcategory ofplywood and composite woodproductmanufacturing facilities from Clean Air Act standards limiting emissions ofhazardous airpollutants. • NewJersey v. EPA, 

### No. 05-1097 (Feb. 8, 2008), in which EPApromulgated the Clean AirMercury Rule without making the required public health findings beforereversing a previous finding that regulation ofhazardous airpollutants from electric generating units underSection 112 is "appropriate and necessary." • North Carolina v. EPA, 

### No. 05-1244 (July 11,2008),in which EPA promulgatedthe Clean AirInterstate Rule basedon numerous impermissible factors. • Sierra Club v. Environmental ProtectionAgency, 

### No. 04-1243 (August 19,2008), in which EPA promulgated arule that prohibitedpermitting authorities from including monitoring sufficient to assure complianceunderTitle V permits, in violation ofthe

."statutorydirective thateach permit must include adequate monitoringrequirements." EPA is attempting, through the Final PM2.5 

### Rule, to undermine the Clean AirAct. Federal courts rejected similarattempts in all ofthe cases listed above.4o Given this poorrecord, North Dakota would act prudently by declining to follow a voluntary aspect ofthe Final PM2.5 

### Rule that is rife with legalproblems and makes sense, in the words ofthe U.S. CourtofAppeals for the D.C. Circuit, only "in aHumptyDumpty world.,,41 It

### is critical for NDDH to keep in mind that even ifthe Final PM2.5 

### Rule is valid (which it is not), the Rule does not foreclose'the state from protecting the health ofits citizens byregulatingPM2.5 

### directly (a discussion ofNorth DakotaCentury Code Section 23-25-03.3(1) is below). Itis EPA's longstanding policy that permitting authoritiesretain broad discretion to consideroptions and alternatives, both underBACTprovisions andthe "alternatives" analysis required under

40 An appeal ofthe Final PM2.5 Rule has been filed in the United States CourtofAppeals for the District of Columbia. See Natural Resources Defense Council andSierra Club v. U.S. EPA, No. 08-1250 (filed July 15,2008). 41 New York II, 443F.3d at 887.Page8 of9


### Section 110.42 

### Such considerations include establishingBACTlimits for PMZ.5 

### directly,_rather than relying on EPA's flawed surrogacy approach. In fact, the Final PMZ.5

### Rule specifically notes that States may go beyond theprovisions ofthe Rule. Forexample, while theFinal PM2.5 

### Rule improperly allows permitting agencies to avoid PMZ.5

### condensables until 2011, the Rule state, "priorto this date, States are not prohibited from establishing limits in [New Source Review] permits that include the condensable fraction ofPM2

### .5 emission. ,,43 

### Therefore, NDDH need not follow EPA's (mis-) application ofthe Clean AirAct to PMz.5, but insteadretains "the discretion to engage in a broader analysis" ifit so desires.44 

### IV. Conclusion While the North Dakota Century Code does preventNDDHfrom adopting standards and regulations that are more stringentthan the Clean AirAct, such is not the casehere.45 

### We are not asking NDDHto go beyond the requirements and standards promulgated by EPAin the Final PMz .5 Rule. To the contrary, we are asking NDDHto implement all the standards for PMZ5, 

### both the NAAQS (which NDDHis proposing to adoftin this revision) and the significantemissions rate for PMZ.5

### defined in the Final PMZ.5 

### Ru1e.4 

### We are also asking NDDH to rejectthe surrogacy approach for PM2

### .5 regulation and to address condensable PMemissions immediately. These are regulations NDDH will eventually have to adopt in North Dakota's SIP. The Final PM2.5 

### Rule only requires adoption ofthe 10 tons per year significant emissions rate.47 

### The use ofPMIQ as a surrogate for PMZ.5

### is EPA's rule for dealing with PMZ.5 

### emissions in the three-yeartransitional period before States are required to adopt theFinal PMz.5 Rule. All "SIPApproved States" will haveto revise its PSD rulesto add the significantemissions rate for PMZ.5• 

### Therefore, as NDDH is revising North Dakota's SIPnow, the department should make all necessary revisions to comeinto compliance with the Clean AirAct. To delay basedon voluntary EPA guidance is risky both legally andforthe tens ofthousands ofNorth Dakotans living with asthma every day. Eleven years afterEPArecognized the needto regulate PMz.5, NDDH's proposal to use PMlO 

### as a surrogate for PMZ.5

### threatens North Dakotans' health and quality oflife. EPA and other states recognize that the tools existnowfor conducting airquality modeling andBACT analyses for PMz.5. NDDH should not wait for a separaterulemaking forPMz.5 butapply existing state and. federal regulations to air permit applications. Relying on the surrogacy approach-put forth in a legally erroneous, outdated and technically unjustifiedguidance memorandum andcodified only as an 

### opinion in atenuous federal rule-willresult in harmful levels ofPMz .5 pollution for

42 See 42 V.S.c. §7410. 43 Final PM2.5Rule at 28,334-28,335. 44 Prairie State, slip op. at 29 n. 22, 40; In re KnaufFiberglass, PSD Appeal Nos. 98-3 through 98-20, 8E.A.D. 121, 136 (E.A.B. Feb. 4, 1999). 45 N.D. CENT. CODE § 23-25-03.3(1)(2008) states: [T]he department may not adopt air quality rules or standards
.. , which are more strict than federal rules or standards under the Clean Air Act, nor may the department adopt air quality rules

._ or standards
... when there are nO corresponding federal rules or standards. 46 The significantemissions rate for PM2.5 is defined as 10 tons per year. Final PM2.5 Rule, at 28,332. 47 Ed.Page9 of9**,~-** 

### decades to come. North Dakotacannot afford this heavy burden to fall on the most vulnerable: ourelders andchildren. Thank you for your consideration. Sincerely,

# 111~~ Nicole Shalla StaffAttorney
Cc: MarkTrechock MaryMitchell Michael Lukes KoraDockterUNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 8 1595Wynkoop Street DENVER, CO 80202-1129 Phone 800-227-8917 http://www.epa.gov/region08 

## OCT - 72008 Ref: 8P-AR

Terry L. 

### O'Clair, Director Division ofAir Quality Environmental Health Section North DakotaDepartment ofHealth 918 E. Divide Ave. Bismarck,ND 58501-1947 RE: EPA Region 8 Comments for October7,2008 Public Hearing on Proposed Revisions to theNorth DakotaAirPollution Control Rules and State Implementation Plan DearTerry: EPAhas completed a preliminary review ofthe draft revisions to the North Dakota State ImplementationPlan (SIP) and Air Pollution Control Rules, as submitted by you with a letter dated August 19, 2008. Our comments and questions for the October7, 2008 publichearing are detailed in the attachment to this letter. In addition and as we have donepreviously, we also included comments onproblematic Director's discretion concerns in the chapters noticed for the upcoming hearing. In the eventthat your final submittal to EPA includes these chapters in their entirety, you will need to revise the existingproblematic language. As you are aware, there are several proposedrevisions that arc not appropriatefor incorporationinto the North Dakota SIP for various reasons. These reasons are listed below along with the proposedNorth Dakotaprovisionsthat fall into each category. 1. Programs for which EPA should delegate authority to the Stateinstead ofincorporating them into the SIP: Chapter 33-15-12 Standards for Perfonnance for NewStationary Sources (New Source Performance Standards

- NSPS) and any related emission guideline plans, Chapter 33-15-13 Emission Standards for Hazardous Air Pollutants (40 CFRPart 61 National Emission Standards for Hazardous Air Pollutants

- Part 61 NESHAPs), and Chapter 33-15-22 Emission Standards for Hazardolis Air Pollutants for Source Categories

### (40 CFR Part 63 National Emission Standards for Hazardous Air Pollutants

- Part 63 NESHAPs); and 2. Programs which EPA has already approved at the State level and which should notbe approved as a SIP revision: Chapter 33-15-14-06 TitleV Permit to Operate (approval effective 8/16/99), including the related fees in Chapter 33-15-23-04 MajorSourcePermit to OperateFees, and 33-15-21 Acid Rain Program (approved 10111/95). Any comments onthe above-proposedrevisions will behandled separately, with the exception ofourcomments onChapter 33-15-12 Standards ofPerformance for New Stationary Sources, which are included below. As areminder, a writtenresponse to EPA'scomments, and all othercommentsreceived, is required to meet the completeness criteria outlined in 40 CFR Part 51 Appendix V and mustbe included in the formal Governor's submittal oftheserevisions to the SIP once they are finalized. Weemphasizethat we will onlycome to a final conclusionregarding the adequacyofthese NorthDakota SIP revisions whenweact onthem through ourownpublicnotice and comment rulemaking. We appreciate theopportunityto provide comments for yourpublichearing. Ifyou have any questions on EPA's comments, please call me at 303-312-6434, orhaveyour staffcall Amy Platt at 303-312-6449.

Callie A. 

### Videtich, Director Air Program Enclosure

cc: TomBachman, NDDH

_

### .. 2

### ENCLOSURE EPA'S COMMENTS FORNORTHDAKOTA'S October 7,2008 PUBLIC HEARING Chapter33-15-01, GeneralProvisions 1.

2.

3.

4.



# _.
5.

6. To ensurethat opacity limits and workpractice standards are also covered, the new paragraph 33-15-01-13.1.f. shouldberevised to read "
...in excessofany emission limit contained inthis article ora permit issuedpursuant to this article, or actions inconsistent with an applicablerequirement specified inthis articleor a permit issuedpursuant to this article." In 33-15.,01-13.2.c., the requirement for report submission "bytheend ofthe next reportingperiod"is unclear and not veryrigorous (we notethatWyoming's provision requires submittal within 14 days ofthe incident). We suggestyou clarifythe language and shortenthereporting time frame. In 33-15-01-13.3, it appears that you'reproposingto exchange a new Director's discretionprovision for the existing one. Wedon'tbelieve this revision will adequately resolveourconcerns. Inprevious discussions regarding concerns withyour shutdown/malfunctionprovisions of 33-15-01-13, we also identified additional problematicmalfunctionprovisions in33-15­ 02-07.4, 33-15-05-01.2a(1), and 33-15-20-04.6 (wenotethat you have addressed the additional concernin 33-15-05-03.2.2.d). These additional malfunction provisions still need to beremoved orcorrected sincemalfunctions should nowbehandled underyour revised malfunction provisions of33-15-01-13 (see below). We note that the revision to 33-15-01-14.2 seems to be largelyhousekeepinginnature; however, problematic Director's discretion is still retained. This wouldbean opportune timeto eliminatethe Director's discretion, especiallyconsidering itis so many years after the compliancedeadline ofJuly 1, 1970, and therevisionwould have to betreatedby EPA as a new, problematicDirector's discretionprovision. Pleasenote that although 33-15-01-07, Variances, is notincluded inthe State's current publichearingprocess, we have commentedpreviouslythat itmustbe removed from the SIP orrevised to include aprovision that no variance shall beeffective until EPA approves it as a SIP revision pursuantto section 110 ofthe CleanAirAct. Ifthe State ultimately adopts theproposed revisions to 33-15-01, the Governor's submittal to EPA shouldnot includethis problematic existingsectionunless ithas been adequatelyrevised orremoved. 

### Chapter33-15-02, AmbientAir Quality Standards 7. Pleaseclarifythe dailymaximum 8-hour average ozone standard inTable 1. Is your intentto use EPA's 1997 standard of0.08 ppm or EPA's 2008 standard of0.075 ppm?

### Chapter 33-15-05 Emissions ofParticulateMatterRestricted 8. We notethat youhave deleted the problematicmalfunctionprovision of33-15-05­ 03.2.2.d, as requested. Inaddition, 33-15-05-01.2a(1) was also identified as a problematic malfunctionprovision. Since theprocess weightrequirements ofthis provisionhaverelevance to themaintenanceofthe I\lAAQS, theexceptionsprovided should beremoved. Malfunctions canbe handled undertherevised malfunction language of33-15-01-13. 9. Please note that there are existingDirector'sdiscretion concerns with 33-15-05 that are notincluded in the State's currentpublic hearingprocess (see 33-15-05-02.2.f., 33-15-05­ 03.2.3.a., 33-15-05-04.1, and 33-15-05-04.1.e.). Ifthe Stateultimatelyadopts the proposedrevisions to 33-15-14-05, theGovernor's submittal to EPA should not include theseproblematic existing sections unless we have had the opportunityto discuss them and theyhavebeenrevised appropriately. 

### Chapter33-15-12, StandardsofPerformance for New Stationary Sources 10. Theproposedrevision updates the datefor incorporationbyreference of40 CFR Part 60 to March 1, 2008, with the exceptionthat the following subparts areomitted: Eb, L, M, N,Na, P, Q, R, S, BB, EEEE, 

## nn, and JJJJ. Pleaseconfinn that itis the State's belief that these omitted subparts arenotrequired to effectivelyoperatethe AirPollution Control Program sinceNorthDakota does nothave sources for whichthese standards would be applicable. Pleasenotethat ifa sourcethat would besubjectto these deleted subparts decides to locate in North Dakota, then the Statewill need to go through the delegationrequestprocess again and, in the meantime, the sourcewill be subjectto Federaljurisdictiononly. 11. It appears thatthe Appendices A-I wereinadvertentlymarked through for deletion. PleaseclaritY. 

### Chapter33-15-14, DesignatedAirContaminantSources, Permitto Construct,Minor Source Permitto Operate,Title VPermitto Operate 12. WhileNorth Dakota's MACTprogram is contained in Chapter 33-15-22 and is notpart of the federally approved SIP, theproposed revision to 33-15-14-01.14, which would limit the field ofapplicable sources to majorsources, is part ofthe federally approved SIP. As such, it appears to bea relaxation and you will need to demonstratethattheNAAQS, PSD increments, and anyotherClean AirActrequirements will notbeadversely impacted bythis revision in orderfor it to be approvable. 13. Althoughtherevision to 33-15-14-02.6.c. is housekeepingin nature, it is in a versionof therulethat we have never acted ondueto approvabilityconcerns. Until ourpreviously discussed concerns with 33-15-14-02.6 are addressed, we will beunable to act on any subsequentrevisions to it. 14. Pleasenote that therevision to 33-15-14-06.1.c should besubmitted under the TitleV

2program since Section 6 is not part ofthe federally approved SIP. 15. Pleasenote that there are existingDirector's discretion concerns with 33-15-14that are not included in the State'scurrentpublichearingprocess (see 33-15-.l4-02.13.n., 33-15­ 14-02.19, and 33-15-14-03.16). Ifthe Stateultimatelyadopts theproposedrevisions to 33-15-14, the Governor's submittal to EPA shouldnot includetheseproblematic existing sectionsunless wehave hadthe opportunityto discuss them and theyhavebeenrevised appropriately. 

### Chapter33-15-23, Fees 16. 

### Itappears that theproposedrevision to section 33-15-23-03, regarding classification of sources for determiningminor sourceannual fees, would reduce fee revenue for the department. Pleaseprovidethe necessary assurances, as requiredunder CleanAir Act Section 110(a)(2)(E), thatthe department will still have adequate resources for implementation and oversight oftheprogram. 

### SIPChapter7, Revisions Regarding InterstateTransportRelatingto the8-hourOzone and PM2.S 

### NationalAmbientAir Quality Standards 17. To avoid anymisinterpretation ofthe provisions, pleaserevisethe second line ofthefirst paragraphin SIP Section 7.8 to read, "
...State ImplementationPlansto containadequate provisions prohibiting
..." 

# - 18. To accuratelyreflect the language ofClean AirAct Section 110(a)(2)(D)(i)(l), please revise SIP Section 7.8, secondparagraph, third line to read"
...primaryor secondary
..." 19. SIP Section 7.8.1: We suggest that the" 1997"datebeinserted so that the titlereads "InterstateTransport Relatingto the 1997 8-Hour Ozone and PM25 National AmbientAir QualityStandards." In addition, you maywantto add the referenceto "1997" as appropriate wheneverthe SIP textrefers to theozone and/orPM25 standards, to clarify that analyses and conclusions for the 8-hourozone andPM2.5 standards refer to the standardspromulgatedbyEPA inJuly 1997. Theinclusion ofthis datewill allow readers to differentiatebetweenthecurrentInterstateTransport SIP, and future Interstate TransportSIPs that will address the same Section 110(a)(2)(D)(i) requirements for new PM2.5 and 8-hourozone standards. 

### SIPRevisions Regarding PMandOzone NAAQS 20. Theproposednew SIP sections for Chapter 6 refer to existing SIP section 6.8. Either section 6.8 shouldbeupdated toreference40 CFRPart 58.10 oryou should includethe following updated languagein theproposedrevisions: "Annual MonitoringNetwork PlanandPeriodicNetworkAssessment: BeginningJuly 1,2007,the State, orwhere applicablelocal, agency shall adopt and submitto the Regional Administratoran annual monitoringnetworkplan which shall provide for theestablishment and maintenanceofan airqualitysurveillance systemthat consists ofa networkofSLAMS monitoring stations includingFRM, FEM, and ARMmonitors that are partofSLAMS, NCorestations, STN stations, State speciation stations, SPM stations, and/or, in serious, severe and extreme 3

### ozonenonattainment areas, PAMS stations, and SPM monitoringstations. Theplan shall include a statement ofpurposes for each monitorand evidence that siting and operation of eachmonitormeets therequirements ofappendices A, C, D, and Eof40 CFR Part 58, where applicable. The annual monitoring network plan mustbemade available for public inspection for at least 30 days priorto submission to EPA. The State, orwhere applicable local, agency shall perform and submitto the EPARegional Administratoran assessment ofthe airquality surveillance system every5 years to determine, at a minimum, ifthe networkmeets the monitoringobjectives defined in appendix D to 40 CFR Part 58, whethernew sites are needed, whether existing sites are no longerneeded and can be terminated, and whether newtechnologies are appropriate for incorporation into the ambient airmonitoring network. Thenetwork assessmentmust considerthe abilityof existing and proposed sites to support airqualitycharacterization for areas withrelatively high populationsofsusceptibleindividuals (e.g., children with asthma), and, for anysites that are beingproposed for discontinuance, the effect on datausers other than the agency itself, such as nearby States and Tribes orhealth effects studies. ForPM2.5, the assessment also must identifyneeded changes to population-oriented sites. The State, or where applicable local, agencymust submit a copyofthis 5-yearassessment, along with a revised annual network plan, to theRegional Administrator. The first assessment is due July 1,2010." 21. The proposed new sections for SIP Chapter 6 include someinconsistencies in site names and samplertypes from your AQS sitedescriptions. ForPM2.5, 

### Fargo NW is listed as having a STN monitorin addition to manual and continuous samplers, TRNP-NU does nothave a manual sampler, and there is no TRNP-SU site. ForPM IO, 

### Bismarck Residential does not include amanual sampler, and there is an additional site at BeulahNorth with a continuous sampler. Forozone, there is not a TRNP-SU site, and there is an additional site atBismarckResidential. In general, site names are somewhatdifferent, 

### e.g., Beulah-North, Bismarck Residential, Fargo-NW, and Lostwood NWR. Please clarifywhatthe correct sitename and samplerinformation shouldbe for eachpollutant to avoid confusion with anypastorfuture sites. 22. In orderto morefully address the requirements ofClean Air Act Section 11O(a)(2)(G), whichrequires states to providefor authorityto implement the emergency episode provisions in their SIPs and specificallyto include PM2.5,

### PM2.5 

### shouldbe added to Table 6 ofN.D.A.C., 33-15-11, Prevention ofAirPollution EmergencyEpisodes. Also, the State should self-determineprioritylevels under40CFR 51.150, Classification.of Regions for Episode Plans, SubpartH - Prevention ofAir Pollution EmergencyEpisodes, and determine whethera contingencyplan is required. 23. Clean AirAct Sections 110(a)(2)(J) and 127 require, among otherthings, States to notify the publicifNAAQS are exceeded in an area and to enhancepublic awareness of measures that canbe taken to preventexceedances. Sincethe proposed SIP revisions do not address these requirements, werecommend addingprovisions to do so oridentifying existingprovisions elsewherein the SIP that address the requirements. 24. Clean AirAct Section 110(a)(2)(M) requires States to provide for consultation and participation in SIP developmentbylocalpolitical subdivisions affected bythe SIP. Sincetheproposed SIP revisions do not address this requirement, werecommend adding revisions to do so oridentifying existing SIP provisions that address therequirement. 4

### 25. It 

### appears that theproposed revisions to SIP Chapter 9, Resources, are intended to completelyreplace the existing, federally approved version ofthe chapter. Ifso, please ensure that the Governor's submittal ofthe final revisions requests that action.

5ENVIRONMENTAL HEALTH SECTION Gold Seal Center, 918 E. DivideAve. 

### NORTH DAKOTA Bismarck, ND 58501-1947 DEPARTMENT

### of HEALTH 701.328.5200 (fax) www.ndhealth.gov


### November 17, 2008

Ms. Callie Videtich Director, Air Program 

# F\LE

U.S. EPA, Region 

### 8 1595 Wynkoop Street Denver, CO 80202-1129 Re: Comments on North Dakota's Proposed Rule 

### & SIP Revisions Dear

# M~h:a/j:e This letter is in response to your, October 7, 2008 comments on our proposed rule and State Implementation Plan (SIP) revisions that were the subject of a hearing on October 7, 2008. We have reviewed your comments and our response follows the numbering in your letter. 1. It was suggested that the following language be added to the proposed definition of excess emissions: "or any actions inconsistent with an applicable requirement specified in this article." The suggested language is inconsistent with the definition of "excess emissions" in 40 CFR 51.100(bb) which states: "Excess emissions means of an air pollutant in excess of an emission standard. It. 

### The suggested addition would greatly expand the types of actions that are considered excess emissions. For example, under the suggested language, failure to conduct monitoring would be considered an "excess emission" even if the control equipment was operating perfectly. We would consider this a deviation from the permit and not an excess emission. We have revised the definition, after discussion with our staff, to: "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
. 

# -

.

Environmental Health Division of Division of Division of Division of Section Chiefs Office Air Quality Municipal Facilities Waste Management Water Quality 701.328.5150 701.328.5188 701.328.5211 701.328.5166 701.328.5210 Printedon recycledpaper.

### Ms. Videtich 2 

### November 17, 2008

2. The comment stated that the time for a written report (i.e. by the end of the next reporting period) on unavoidable malfunctions was "unclear and not very rigorous". The reporting time in the Department's rule was based on Colorado's rule which was supplied to the Department by EPA as an ,example. We have reevaluated the rule and changed the reporting period to quarterly. 3 . 

### The language has been changed to: "The owner or operator of a source that uses an alternative method shall have the burden of demonstrating that ,the alternative method is accurate." 4. We have not proposed changes to Sections 33-15-02-07.4 and 33­ 15-05-01.2.a(1). We will review the sections and address them at another time. With regard to Section 33-15-20-04.6, this section only covers reporting of malfunctions and clearly states that it does not obviate the sources responsibility to comply with the remainder of the chapter or article (i.e. all other rules). With the changes to 33-15-01-13, we believe 33-15-20-04.6 should be acceptable. 5. We have withdrawn the proposed changes. 6. Section 33-15-01-07 will not be submitted for approval. 7. The Department is adopting the 0.075 ppm standard. The reference to the 0.08 ppm standard has been changed to 0.075 ppm. 8. Section 33-15-05-01.2.a(1) was not proposed for revision. We will evaluate this section and address it at a later date. 

### 9. The Department will not submit the referenced sections with the SIP revision. 10. The Department has intentionally omitted the referenced subparts of 40 CFR 60 since there are no affected sources in North Dakota. 11. Appendices A-L were inadvertently deleted. They will be reinstated. 12. The MACT standards only address the emission of hazardous 

### alr pollutants, not pollutants for which a National Ambient Air 

# - Quality Standard or a PSD increment has been promulgated. In addition, the permitting exemption does not affect any

### Ms. Videtich 3 

### November 17, 2008

emission limits or other requirements that would affect the amount of emissions or ambient concentrations. We believe an analysis to demonstrate that the NAAQS and PSD increments will not be adversely affected should not be required. 13. The revisions to Section 33-15-14-02.6.c will not be submitted for approval. 14. Agreed 15. The referenced sections will not be included in the Governor's submittal. 16. The proposed revision to 33-15-23-03 simply codifies an exemption from permitting fees for local governments. The Department has not collected these fees in the past. If they had been collected, it would amount to less than $2,500 per year or less than 0.2% of the fees collected. The proposed rule will not affect the Department's ability to implement the requirements of the Clean Air Act. 17. Agreed 18. Agreed 19. The ti tIe of the section will be Ozone and PM2 .5 

### National Ambient Airmodified Quality to Sta "1997 ndards." 8-Hour
20. Section 6.8 of the SIP will be revi to 40 CFR 58.10. sed to include a reference
21. The names of the monitoring sites have been changed to match the AQS site descriptions. 22. Since EPA has not adopted changes to 40 CFR 51, Subpart H for PM2 .5 , 

### it is extremely difficult for the Department to adopt priority levels and contingency plans for PM2 .5 • 

### The Department cannot be more stringent than Federal requirements unless we can show there is a substantial probability of significant risk to the public and prepare a cost-benefit analysis that shows there is a cost benefit to the rule. Since the rule would cover emergency episodes that are very unlikely to occur in North Dakota, we believe such determinations cannot be made. When EPA adopts changes to 40 CFR 51, Subpart H for PM2 .5 , 

### the Department will incorporate those changes into our SIP. 23. The notification requirements for exceedance of the NAAQS is found in Section 6.9 of our SIP.

### Ms. Videtich 4 

### November 17, 2008

24. Intergovernmental Cooperation requirements are found in Chapter 10 of our SIP. 25. rrhe revisions to Chapter 9, Resources, of the SIP will indicate it is a complete replacement of the existing Chapter 9. 

### If you have any questions, please have your staff contact Tom Bachman of my staff at (701)328-5188. Sincerely,
Terry L. O'C1air, P.E. Director Division of Air Quality TLO/TB:saj xc: Amy Platt, EPA, Region 8

### October7, 2008


### Martin

### R. Schock 1121 

### North29th 

### Street Bismarck, ND 58501 

### Terry 

### L. O'Clair, P.E. Director Division of

### AirQuality NorthDakotaDepartmentofHealth 918

### EastDivide Avenue Bismarck, ND 58501-1947 

### Re: Ruleand StateImplementationPlanRevisions

- 2008


### DearTerry; Pursuantto yournotice ofrule and SIPrevisions, I am providingthecommentthat follows.



# - Section 7.7 titled "AirQualityModeling" ofyour document titled Ozoneand PM2.5 NAAQS Implementation SIPRevision is reproduced on an attached page. Thefirst paragraphofthis section indicates: "Airquality modelingfornewormodified sources will 

### beconductedin accordancewith Subsection 33-15-14-02.4

### oftheNorthDakotaAdministrative Code (NDAC)." (emphasis added) Paragrapha ofSubsection 33-15-14-02.4

### is reproduced on an attached page. This paragraph indicates: "Determinationofthe effectsonambient airqualityas mayberequired under this section mustbebased on theapplicable requirements specified in the "Guideline on

### AirQualityModels (Revised)
... II 

### (emphasis added) Finally, the second paragraph ofSection 7.7 

### ofthe SIP indicates: Subsection 33-15-14-02.4 

### "requiresconformancewith 40

### CFR51 

### Appendix W, Guideline onAirQualityModels,
..." (emphasis added) I recommend removingthe ambiguity betweenthe secondparagraphofSection7.7, the first paragraph ofthis section and paragraph a ofSubsection 33-15-14-2.4 

### by deleting that entire second paragraph. The phrase "requires conformance" is notconsistent with

### otherpublishedpositions oftheDepartmentinrecent years. In

### addition, that second paragraph does not add any information notalready discussed in the SIPorinrule.

Martin R. 

### Schock

### 7.7 AIR QUALITY MODELING

The Department will perform.such air quality modeling as necessary for 

### the purpose of predicting the effect on ambient air quality of any emissions of any air contaminant for which
a State or National Ambient Air Quality Standard has been established. The Department will submit, upon request, data related to the air quality modeling to the Administrator of the Environmental Protection Agency. Air quality modeling for
new or modified sources will be conducted in accordance with Subsection 33-15-14-02.4 of the North Dakota Administrative Code (NDAC). Public comment and transmittal of modeling data to EPA for new or modified sources will be in accordance with 

### NDAC 33-15-14-02.6.

When dispersion modeling is required to demonstrate the impact the source will have on the ambient air quality, the modeling must be done in accordance with Subsection 33-15-14­ 02.4. This subsection requires conformance with 40 CPR 51 Appendix W, Guideline on Air Quality Models, as supplemented by the "North Dakota Guideline for Air Quality Modeling Analysis."

### Paragrapha ofNDAC33-15-14-02.4.


### a. Determination of the effects on ambient air quality as may be required under this section must be based on the applicable requirements specified in the "Guideline on Air Quality Models (Revised)" (United states environmental protection agency, office of air quality planning and standards, Research Triangle Park, North Carolina 27711) as supplemented by the "North Dakota Guideline for Air Quality Modeling Analyses"(North Dakota state department of health, division of environmental engineering air quality). These documents are incorporated by reference.

### SECTION III

STATE l.;AWS

Appendix B ofthe Plan

### 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 ofair contaminants. 12. "Lead-based paint" means paint or other surface coatings that contain lead equal to or in excess of 1.0 milligram per square centimeter or more than 0.5 percent by weight. 13. "Person" means any individual, corporation, limited liability company, partnership, firm, association, trust, estate, public or private institution, group, agency, political subdivision of this state, any other state or political subdivision or agency thereof, and any legal successor, representative agency, or agency ofthe foregoing.
Page No.123-25-01.1. 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 ofthis state, to foster the comfort and convenience ofthe people, and to facilitate the enjoyment ofthe natural attractions ofthis state. 23-25-02. State air pollution control agency - Advisory council. 1. The state department of health, hereinafter referred to as the department, is hereby designated as the agency to administer and coordinate a statewide program of air pollution control consistent with the provisions ofthis chapter. 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 ofthe 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 ofthose four first appointed, two shall serve for two years and two for four years, and the lengths oftheir terms must be designated by the governor at the time ofappointment. 4. The advisory council shall select its own chairman from among its members. The state health officer, state geologist, and director ofthe department of transportation each may designate a principal deputy or assistant to act in the officer's place and stead. The chief sanitary engineer ofthe state department of health, orthat officer's designated assistant, must be the principal administrative officer ofthe council. 5. The advisory council shall hold at least one regular meeting each year, and such additional meetings as the chairman deems necessary, at a time and place to be fixed by the chairman. Special meetings must be called by the chairman on the written request ofany three members. Five members constitute a quorum. 6. The advisory council shall hold a public hearing to consider and recommend the adoption, amendment, or repeal of rules, regulations, and standards as provided in this chapter. Notice of such public hearing or hearings must be given by publication of a notice of such hearing or hearings in each of the official county newspapers within the state of North Dakota by at leasttwo publications, one week apart, the last publication being at least thirty days prior to the first hearing. The hearing or hearings must be held in the state capitol in Bismarck and interested parties may present witnesses and other evidence pertinent and relevant to proposed rules, regulations, and standards. The advisory council shall consider any other matters related to the purposes of this chapter and may make recommendations on its own initiative to the department concerning the administration ofthis chapter. 23-25-03. Power and duties ofthe department. The department shall: 1. Encourage the voluntary cooperation of persons or affected groups to achieve the purposes ofthis chapter. 2. Determine by scientifically oriented field studies and sampling the degree of air pollution in the state and the several parts thereof. 3. Encourage and conduct studies, investigations, and research relating to air pollution and its causes, effects, prevention, abatement, and control. Page NO.24. 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 ofany newdirect 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 permitthe 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 ofair pollution in this state including achievement of ambient air quality standards. 9. Hold hearings relating to any aspect or matter in the administration of this chapter, and in connection therewith, compel the attendance ofwitnesses and the production ofevidence. 10. Require the owner or operator ofa regulated air contaminant source to establish and maintain such records; make such reports; install, use, and maintain such monitoring equipment or methods; sample such emissions in accordance with such methods, at such locations, intervals, and procedures; and provide such other information as may be required. 11. Provide by rules and regulations a procedure for the handling of applications for the granting of a variance to any person who owns or is in control of any plant, establishment, process, or equipment. The granting of a variance is not a right of the applicant but must be in the discretion ofthe department. 12. Provide by rules any procedures necessary and appropriate to develop, implement, and enforce any air pollution prevention and control program established by the Federal Clean Air Act, as amended, and the authorities and responsibilities ofwhich 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: Page NO.31. 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. 6. To establish indoor environmental nonoccupational air quality standards for asbestos. 7. To adopt and enforce rules as necessaryfor the implementation ofthis section. For nonpublic employees performing asbestos abatement in facilities or on facility components owned or leased by their employer, only the provisions of rules adopted in accordance with the federal Asbestos Hazard Emergency Response Act of 1986 [Pub. L. 99-519; 100 Stat. 2970; 15 U.S.C. 2641 et seq.], as amended, or the federal Clean 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 sulfurdioxide 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 ofless than one hourto sulfurdioxide 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.
Page NO.423-25-03.3. 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: (1) A description and comparison ofthe benefits and costs ofthe rule and of the reasonable alternatives to the rule. The analysis must include a quantification or numerical estimate of the quantifiable benefits and costs. Thequantification 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 Page NO.5an individual substance, activity, or condition. The risk assessment must include a discussion that characterizes the risks being assessed. The risk characterization mustinc\ude 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 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. Page NO.623-25-04. Classification and reporting ofair 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 ofany 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 ofthe 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 chapter43-07. 5. The department by rule or regulation may provide for registration and registration renewal of certain air contaminant sources in lieu ofthe 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. 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 Page No.7regulations 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 ofthe 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 ofthe premises a report that sets forth all facts found which relate to compliance status. 23-25-06. Confidentiality ofrecords. 1. Any record, report, or information obtained under this chapter must be available to the public, except that upon a showing satisfactory 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 thereofconfidential in the administration ofthis chapter. 2. Nothing herein may be construed to prevent disclosure of any report, or record of information to federal, state, or local agencies when necessary for purposes of administration of any federal, state, or local air pollution control laws, or when relevant in any proceeding underthis 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 ofair pollution; or 2. Determining compliance with rules and regulations ofthe department, must be conducted in accordance with the provisions of chapter 28-32, and appeals may be taken as therein provided. When an emergency exists requiring immediate action to protect the public health and safety, the department may, without notice or hearing, issue an order reciting the existence ofsuch 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, 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. Page NO.823-25-09. 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 perviolation. 5. Without prior revocation of any pertinent permits, the department, in accordance with the laws ofthis 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] ofthe subsequently established residence, church, school, business, or public building making the complaint rather than at the property boundary of the agricultural operation. The measurement may not be taken within five hundred feet [.15 kilometer] ofthe property boundary ofthe agricultural operation. 2. In areas located outside a city or outside the area over which a city has exercised extraterritorial zoning as defined in section 40-47-01.1, a person may not discharge into the ambient air any objectionable odorous air contaminant that causes odors that measure seven odor concentration units or higher as measured at any of the following locations: Page NO.9a. 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 measurement may not be taken at the residence ofthe owner or operator ofthe source of the odor, or at any residence, church, school, business, or public building. or within a campground or public park. that is built or established within one-half mile [.80 kilometer] 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 ofthe odor, except for property owned by the owner or operator ofthe 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 estabHshed, unless the animal feeding operation has obtained an odor easement from the preexisting facility. 3. An odor measurement maybe 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 ofthis 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. Ifthe odor problem persists. the department may proceed with an enforcement action provided at least two certified inspectors at the same time each measure a violation and then confirm the violation by a second odor measurement taken by each certified inspector, at least fifteen minutes. but no more than two hours. afterthe first measurement. 4. A person is exempt from this section while spreading or applying animal manure or other recycled agricultural material to land in accordance with a nutrient management plan approved by the state department of health. A person is exempt from this section while spreading or applying animal manure or other recycled agricultural material to land owned or leased by that person in accordance with rules adopted by the department. An owner or operator of a lagoon or waste storage pond permitted by the department is exempt from this section in the spring from the time when the cover of the permitted lagoon or pond begins to melt until fourteen days after all the ice cover on the lagoon or pond has completely melted. Notwithstanding these exemptions, all persons shall manage their property and systems to minimize the impact ofodors 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 ofhealth has established a specific limitation by rule. Page No. 10_ _ _ 6. For purposes of this section, a public park is a park established by the federal government, the state, ora political subdivision ofthe state in the manner prescribed 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) Ifthere 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) Ifthere are five thousand one or more animal units, the setback for a hog operation is one and one-half miles [2.40 kilometers] and the setback for any other animal operation is one mile [1.60 kilometers]. b. The setbacks set forth in subdivision a do not apply if the owner or operator applying for the permit obtains an odor easement from the preexisting use that is closer.
c. For purposes ofthis section: (1) One mature dairy cow, whether milking or dry, equals 1.33 animal units; (2) One dairy cow, heifer or bull, other than an animal described in paragraph 1equals 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; Page No. 11

-_.. ..- .._--_._- .'- -_. .._---_._--_._'"-_.•..**_---~:**(9) One turkey equals 0.0182 animal unit; (10) One chicken, otherthan 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 1through 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. 12

### SECTION IV

REVISIONS TO
THE AIR POLLUTION CONTROL RULES OF THE STATE OF NORTH DAKOTA

Appendix C ofthePlanChapter 

### 33-15-01 33-15-02 33-15-03 33-15-04 33-15-05 33-15-06 33-15-07 33-15-08 33-15-09 33-15-10 33-15-11 33-15-12 33-15-13 33-15-14 33-15-15 33-15-16 33-15-17 33-15-18 33-15-19 33-15-20 33-15-21 33-15-22 33-15-23 33-15-24 33-15-25

Section 

### 33-15-01-01 33-15-01-02 33-15-01-03 33-15-01-04 33-15-01-05 33-15-01-06 33-15-01-07 33-15-01-08 33-15-01-09 33-15-01-10 ARTICLE 33-15 AIR POLLUTION CONTROL
General Provisions Ambient Air Quality Standards Restriction of Emission ofVisible Air Contaminants Open Burning Restrictions Emissions of Particulate Matter Restricted Emissions ofSulfur Compounds Restricted Control ofOrganic Compounds Emissions Control of Air

. Pollution From Vehicles and Other Internal Combustion Engines Emission of Certain Settleable Acids and Alkaline Substances Restricted [Repealed) Control of Pesticides Prevention ofAir Pollution Emergency Episodes Standards of Performance for New Stationary Sources Emission Standards for Hazardous Air Pollutants Designated Air Contaminant Sources, Permit to Construct, Minor

- Source Permit to Operate, Title V Permit to Operate Prevention of Significant Deterioration ofAir Quality Restriction of Odorous Air Contaminants Restriction of Fugitive Emissions Stack Heights Visibility Protection Control of Emissions From Oil and Gas Well Production Facilities Acid Rain Program Emissions Standards for Hazardous Air Pollutants for Source Categories Fees Standards for Lead-Based PaintActivities 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 

### 4/2009

# -- 33-15-01-11 [Reserved] 

# -.- \ 33-15-01-12 Measurement of Emissions ofAir Contaminants 33-15-01-13 Shutdown and Malfunction of an Installation
- Requirement for Notification 33-15-01-14 Time Schedule for Compliance 33-15-01-15 Prohibition ofAir Pollution 33-15-01-16 Confidentiality of Records 33-15-01-17 Enforcement 33-15-01-18 Compliance Certifications 33-15-01-01. Purpose. 

### It is the purpose ofthese air quality standards and emission regulations to state such requirements as shall be required to achieve and maintain the best air quality possible, consistentwith the best available control technology, to protect human health, welfare, and propertyto prevent injuryto plant and animal life, to promote the economic and social development ofthis state, to foster the comfort and convenience for the people, and to facilitate the enjoyment ofthe natural attractions ofthis state. General Authority: NDCC 23-25-03 Law Implemented: NDCC 23-25-01.1 33-15-01-02. Scope. These air quality standards and emission regulations apply to any source or emission existing partially orwholly within North Dakota. 

# J._ General Authority: NDCC 23-25-03**Lawlmp~me~ed: NDCC2~25~3**  33-15-01-03. Authority. The North Dakota state department ofhealth has been authorized to provide and administerthis article underthe provisions ofNorth 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 orwhen 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. "Aircontaminant" means any solid, liquid, gas, orodoroussubstance or any combination thereofemitted to the ambient air. 3. "Air pollution" means the presence in the outdooratmosphere ofone or more air contaminants in such quantities and duration as is or may be injurious to human health, welfare, or property oranimal or plant life, or which unreasonably interferes with the enjoyment oflife or property.
4/2009 

### -2

### 4. "Ambient air" means the surrounding outside air. 5. "ASME" means the American society of mechanical engineers. 6. "Coal conversion facility" means any ofthe following:
a. An electrical generating plant, and all additions thereto, which processes or converts coal from its natural form into electrical power and which has at least one single electrical energy generation unitwith a generator nameplate capacity oftwenty-five megawatts or more. b. A plant, and all additionsthereto, which processes orconverts coal from its natural form into a form substantially different in chemical or physical properties, including coal gasification, coal liquefaction, and the manufactureoffertilizerand otherproducts and which uses or is designed to use over five hundred thousand tons of coal per year.
c. A coal beneficiation plant, and all additions thereto, which improve the physical. environmental, orcombustion qualitiesofcoal and are built in conjunction with afacility 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 departmentofhealth. 9. "Emission" means a release ofair contaminants into the ambient air. 10. "Excess emissions" means the release of an air contaminant into the ambient air in excess of an applicable emission limit or emission standard specified in this article or a permit issued pursuant to this article. 11. "Existing" means equipment. machines, devices, articles, contrivances, or installations which are in being on or before July 1. 1970, unless specifically designated within this article; except that any existing equipment, machine, device, contrivance, or installation which is altered. repaired, or rebuilt after july 1, 1970. must be reclassified as "new" if such alteration. rebuilding, or repair results in the emission of an additional or greater amount ofair 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 4/2009Federal 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 issued under such program. 

### 13. "Fuel burning equipment" means any furnace, boiler apparatus, stack, or appurtenances thereto used in the process of burning fuel or other combustible materialforthe primary purpose ofproducing heatorpower by indirect heat transfer. 

### 14. "Fugitive emissions" means solid airborne particulate matter, fumes, gases, mist, smoke, odorous matter, vapors, orany combination thereof generated incidental to an operation process procedure or emitted from any source other than through a well-defined stack or chimney. 15. "Garbage" means putrescible animal and vegetable wastes resulting from the handling, preparation, cooking, and consumption of food, including wastes from markets, storage facilities, handling, and sale of produce and other food products. 

### 16. "Hazardous waste" has the same meaning as given by chapter 33-24-02. 17. "Heat input" means the aggregate heat content of all fuels whose products ofcombustion pass through a stack orstacks. 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, orotherwastes by burning orto 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. "Inhalable particulate matter" means particulate matter with an aerodynamic diameter less than orequal 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.


### 4/2009 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 refractorywalls, interconnected by gas passage ports or ducts and employing adequate parameters necessary for maximum combustion ofthe material to be burned. 23. "Municipal waste" means solid waste that includes garbage, refuse, and trash generated by households, motels, hotels, and recreation facilities, by pUblic and private facilities, and by commercial, wholesale, and private and retail businesses. The term does not include special waste or industrial waste. 24. "New" means equipment, machines, devices, articles, contrivances, or installations builtor installed on or afterJuly 1, 1970, unless specifically designated within this article, and installations existing at said stated time which are later altered, repaired, or rebuilt and result in the emission ofan additional or greater amount ofair contaminants. 25. "Opacity" means the degree to which emissions reduce the transmission of light and obscure the view of an object in the background. 26. "Open burning" means the burning of any matter in such a manner that the products ofcombustion resulting from the burning are emitted directly into the ambient airwithout passing through an adequate stack, duct, or chimney. 27. "Particulate matter" means any airborne finely divided solid or liquid material with an aerodynamic diameter smaller than one hundred micrometers. 28. "Particulate matter emissions" means all finely divided solid or liquid material, other than uncombined water, emitted to the ambient air. 29. "Person" means any individual, corporation, partnership, firm, association, trust, estate, pUblic or private institution, group, agency, political subdivision 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 4/2009department may declare to be a pest, exceptthose bacteria, fungi, protozoa, or viruses on or in living man or other animals; b. Any agent, substance, or mixture of substances intended to be used as a plant regulator, defoliant, or desiccant; and
c. Any other similar substance so designated by the department, including herbicides, insecticides, fungicides, nematocides, molluscacides, rodenticides, lampreycides, plant regulators, gametocides, post-harvest decay preventatives, and antioxidants. 31. "Petroleum refinery" means an installation that is engaged in producing gasoline, kerosene, distillate fuel oils, residual fuel oils, lubricants, or other products through distillation of petroleum, or through the redistillation, cracking, or reforming ofunfinished petroleum derivatives. 32. "PM2.S" means particulate matter with an aerodynamic diameter less than or equal to a nominal two and five-tenths micrometers. 33. "PM 10" means particulate matter with an aerodynamic diameter less than or equal to a nominal ten micrometers. 34. "PM 10 emissions" means finely divided solid or liquid material with an aerodynamic diameter less than or equal to a nominal ten micrometers emitted to the ambient air. 35. "Pipeline quality natural gas" means natural gas that contains two grains, orless, ofsulfur perone hundred standard cubicfeet [2.83 cubic meters]. 36. "Premises" means any property, piece ofland or real estate, or bUilding. 37. "Process weight" means the total weight ofall materials introduced into any specific process which may cause emissions. Solid fuels charged will be considered as part ofthe process weight, but liquid and gaseous fuels and combustion air will not. 38. "Process weight rate" means the rate established as follows:
a. Forcontinuous orlongrunsteadystate operations, thetotal process weight for the entire period of continuous operation or for a typical portion thereof, divided by the number of hours ofsuch 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 

### 4/2009 

### 6

### interpretation ofthis definition, the interpretation that results in the minimum value for allowable emission shall apply. 

### 39. "Radioactive waste" means solid waste containing radioactive material and subject to the requirements of article 33-10. 40. "Refuse" means any municipal waste, trade waste. rubbish, or garbage, exclusive of industrial waste, special waste, radioactive waste, hazardous waste, and infectious waste. 41. "Rubbish" means nonputrescible solid wastes consisting of both combustible and noncombustible wastes. Combustible rubbish includes paper, rags, cartons, wood, furniture, rubber, plastics, yard trimmings, leaves, and similar materials. Noncombustible rubbish includes glass, crockery, cans, dust, metal furniture, and like materials which will not burn at ordinary incinerator temperatures (one thousand six hundred to one thousand eight hundred degrees Fahrenheit [1144 degrees Kelvin to 1255 degrees Kelvin). 

### 42. "Salvage operation" means any operation conducted in whole or in part for the salvaging or reclaiming ofany product or material. 43. "Smoke" means small gasborne particles resulting from incomplete combustion, consisting predominantly, but not exclusively, of carbon, ash, and other combustible material, thatform avisible plume in the air. 44. "Source" means any property, real or personal, or person contributing to air pollution. 45. "Source operation" means the last operation preceding emission which operation:
a. Results in the separation ofthe air contaminant from the process materials or in the conversion of the process materials into air contaminants, as in the case ofcombustion fuel; and b. Is not an air pollution abatement operation. 46. "Special waste" means solid waste that is not a hazardous waste regulated under North Dakota Century Code 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. "Stackorchimney" means anyflue, conduit, orductarranged to conduct emissions.


### 7 

### 4/2009

### 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 [101.3 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 ofwhich is entirely submerged when the liquid level is one and one-half times the fill pipe diameter in inches [centimeters] above the bottom of the tank. 50. "Trade waste" means solid,' liquid, or gaseous waste material resulting from construction or the conduct of any business, trade, or industry, or any demolition operation, including wood, wood containing preservatives, plastics, cartons, grease, oil, chemicals, and cinders. 51. "Trash" means refuse commonly generated by food warehouses, wholesalers, and retailers which is comprised only of nonrecyclable paper, paper products, cartons, cardboard, wood, wood scraps, and 'f1oor 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 51.100(s) as it exists on March 1, 2008, which is incorporated by reference. 53. "Waste classification" means the seven classifications of waste as defined by the incinerator institute ofAmerica and American society of mechanical engineers. History: Amended effective October 1, 1987; January 1, 1989; June 1, 1990; June 1, 1992; March 1, 1994; December 1, 1994; August 1, 1995; January 1,1996; September 1,1997; September 1,1998; June 1, 2001; March 1, 2003; January 1, 2007; April 1, 2009. 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 4/2009 

### 81'''''''''
...... °C cal CdS cfm CFR cu 

### ft CO CO2 dcf dcm dscf dscm eq of ft g gal 9 eq gr hr Hel Hg H2O H2S H2SO4 

## Hz in. oK k kg 

### I Ipm Ib m3**.~** m 

## - degree Celsius (centigrade)



## - calorie



# - cadmium sulfide



## - cubic feet per minute



## - code offederal regulations



# - cubic feet



# - carbon monoxide



## - carbon dioxide



## - dry cubic feet



## - dry cubic meter



## - dry cubic feet at standard conditions



## - dry cubic meter at standard conditions



## - equivalents



## - degree Fahrenheit



## - feet



## - gram



## - gallon



## - gram equivalents



## - grain



## - hour



## - hydrochloric acid



## - mercury



## - water



## - hydrogen sulfide



## - sulfuric acid



## - hertz inch



# - joule



## - degree Kelvin



## - 1,000



## - kilogram



## - liter



## - liter per minute



## - pound



## - meter



## - cubic meter 9 4/20091'--- meq 

# - milliequivalent min


## - minute mg 

## - milligram
- 10-3 gram Mg 

# - megagram - 106 gram ml 

# - milliliter
- 10-3 liter mm 

## - millimeter
- ,10-3 meter mol 

# - mole mol.wt. 

# - molecular weight mV


## - millivolt N2 

# - nitrogen N


## - newton ng 

# - nanogram - 10-9 gram nm 

## - nanometer - 10-9 meter NO 

# - nitric oxide N02 

## - nitrogen dioxide NOx 

## - nitrogen oxides



## - oxygen °2 Pa


## - pascal PM


## - particulate matter PM2.5 

# - particulate matterwith an aerodynamic diameter less than or equal to a nominal 2.5 micrometers PM 10 

## - particulate matterwith an aerodynamic diameter 10 micrometers ppb


## - parts per billion ppm 

# - parts per million psia pounds per square inch absolute psig pounds per square inch gauge 

### oR



# - degree Rankine s-sec 

## - second scf 

# - cubic feet at standard conditions scfh 

## - cubic feet per hour at standard conditions scm 

## - cubic meters at standard conditions scmh 

# - cubic meters per hour at standard conditions S02 

## - sulfur dioxide S03 

# - sulfur trioxide SOx 

## - sulfur oxides 

# ,,- sq ft


## - square feet
4/2009 10std
- at standard conditions TSP
- total suspended particulate**~g** - microgram
- 10-6 gram V
- volt 

### W


### - watt 

## n
- ohm History: Amended effective January 1, 1989; January 1, 2007; April 1 ,2009. General Authority: NDCC 23-25-03 Law Implemented: NDCC 23-25-03

### 33-15-01-13. Shutdown and malfunction of an installation
­ Requirement for notification.twenty-four hours prior to the planned shutdown provided that the air contaminating source will be operated while the control equipment is not in service. Such prior notice shall include the following:
a. Identification ofthe specificfacility to be taken out ofservice as well as its location and permit number. b. The expected length oftime that the airpollution control equipment will be out ofservice.
c. The nature and estimated quantity of emissions of air pollutants likely to be emitted during the shutdown period. d. Measures such as the use ofoff-shift labor and equipment thatwill be taken to minimize the length ofthe shutdown period.
e. The reasons that itwould be impossible or impractical to shutdown the source operation during the maintenance period. f. Nothing in this subsection shall in any manner be construed as authorizing or legalizing the emission ofaircontaminants in excess ofthe rate allowed by this article or a permit issued pursuantto this article. 

### 2. Malfunctions.
a. When a malfunction in any installation occurs that can be expected to last longer than twenty-four hours and cause the emission ofair contaminants in violation ofthis article orotherapplicable 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: 4/2009 14-!.- 

### (1) The excess emiSSions 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 eventthat 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 ofa written request by the department, whichever is sooner. The burden of proof is on the owner or operator ofthe 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. The owner or operator of a source that uses an alternative method shall have the burden of demonstrating that the



### 15 4/2009method is accurate. Timely repair ofthe 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



# -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 CHAPTER 33-15-02 AMBIENT AIR QUALITY STANDARDS Scope Purpose Air Quality Guidelines Ambient Air Quality Standards Methods ofSampling and Analysis Reference Conditions Concentrations of Air Contaminants in the Ambient Air RestrictedTable 1. AMBIENT AIR QUALITY STANDARDS Standards Air Contaminants (Maximum Permissible Concentrations) Particulates 150 micrograms per cubic meter, 24-hour average Inhalable concentration. The standard is attained when the Particulate expected number of days per calendar year with a PM 10 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 0.023 parts per million (60 micrograms per cubic meter of Dioxide air), maximum annual arithmetic mean concentration 0.099 parts per million (260 micrograms per cubic meter of

......... air), maximum 24-hour average concentration 0.273 parts per million (715 micrograms per cubic meter of air), maximum 1-hour average concentration 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 notto be exceeded more than once per year 0.02 parts per million (28 micrograms per cubic meter ofair), maximum arithmetic mean concentration averaged over three consecutive months Carbon 9 parts per million (10 milligrams per cubic meter of air), Monoxide maximum 8-hour concentration not to be exceeded more than once per year 35 parts per million (40 milligrams per cubic meter ofair), maximum 1-hour concentration not to be exceeded more than once per year**,~,** 

### 4/2009 4Ozone 0.075 parts per rnillion (147 rnicrograms 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. Nitrogen Dioxide 0.053 parts per million (100 micrograms per cubic meter of air), maximum annual arithmetic mean Lead 1.5 micrograms per cubic meter of air, maximum arithmetic mean averaged over a calendar quarter History: Amended effective December 1, 1994; April 1, 2009. Table2. NATIONAL AMBIENT AIR QUALITY STANDARDS Air Contaminant Standards (Maximum Permissible Concentrations) Sulfur oxides 0.030 parts per million (80 micrograms per cubic (sulfur dioxide) 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 0.5 parts per million (1300 micrograms per cubic meter of air) maximum 3-hour concentration, not to be exceeded more than once per calendar year History: Amended effective September 1, 1998.



### 5CHAPTER 33-15-05 EMISSIONS OF PARTICULATE MATTER RESTRICTED Section 

### 33-15-05-01 33-15-05-02 33-15-05-03 33-15-05-03.1 33-15-05-03.2 33-15-05-03.3 33-15-05-04 Restriction of Emission of Particulate Matter From Industrial Processes Maximum Allowable Emission of Particulate Matter From Fuel Burning Equipment Used for Indirect Heating Incinerators [Repealed) Infectious Waste Incinerators [Repealed] Refuse Incinerators Other Waste Incinerators Methods of Measurement33-15-05-03.2. Refuse incinerators.

### 2. Existing trash incinerators. 

### This subsection applies to any owner or operator of an incinerator for trash of any design capacity existing on August 1, 1995.
a. Prohibited waste. No infectious waste, radioactive waste, hazardous waste, special waste, industrial waste, or any other solid waste may be burned in an incinerator designed for trash unless the incinerator's performance, design, and operating standards for those solid wastes are also met. b. Operatortraining. The owner oroperatorofan incineratorfortrash shall provide both written and oral instructions for each operator in the proper operation ofthe incinerator.
c. Recordkeeping and reporting. (1) The owner or operator of an incinerator for trash shall keep a log' indicating the dates and approximate quantities of waste received from an onsite source, and from each offsite source, including the transporter. The log shall be kept and maintained for a minimum period of three years from the date waste is received. (2) An owner or operator of an incinerator for trash shall record in the log any operational error or failure of one-hour or more duration of combustion equipment, emission control equipment, waste charging equipment, or monitoring equipment. (3) When requested by the department, the owneror operatorof an incinerator for trash shall provide a summary ofthe daily burning and hours of operation.CHAPTER 33-15-14 DESIGNATED AIR CONTAMINANT SOURCES, PERMIT TO CONSTRUCT, MINOR SOURCE PERMIT TO OPERATE, TITLE V PERMITTO OPERATE Section 33-15-14-01 Designated Air Contaminant Sources 33-15-14-01.1 Definitions 33-15-14-02 Permit to Construct 33-15-14-03 Minor Source Permit to Operate 33-15-14-04 Permit Fees [Repealed] 33-15-14-05 Common Provisions Applicable to Both Permit to Construct and Permit to Operate [Repealed] 33-15-14-06 33-15-14-07 Title V Permit to Operate Source· Exclusions From Title Requirements V Permit to Operate
33-15-14-01. Designated air contaminant sources. Pursuant to subsection 1 of North Dakota Century Code section 23-25-04, stationary sources within the following source categories are designated as air contaminant sources**c~pable** ofcausing or contributing to air pollution, either directly or indirectly.10. Any source which emits a contaminant subject to a national emission standard for hazardous air pollutants (40 CFR 61). 11. Any source which is subject to review under federal prevention of significant deterioration ofair qualityregulations (40 CFR 51.166). 12. Any source which is determined bythe department to have an emission which affects state ambient air quality standards or the otherprovisions ofchapter 33-15-02. 13. Any source subject to title V permitting requirements in section 33-15­

, 14-06. 14. Any major source to which a national emission standard for hazardous airpollutants for source,categories (40 CFR 63) would apply. 15. Other sources subject to a standard or requirement under the Federal Clean Air Act 

### as amended. History; Amended effective October I" 1987; March I, 1994; August 1, 1995; April 1, 2009. General Authority: NDCC 23-25-03, 23-25-04, 23-25-04.1 Law Implemented: NDCC 23-25-04, 23-25-04.1

-\CHAPTER 33-15-15 PREVENTION OF SIGNIFICANT DETERIORATION OF AIR QUALITY Section 33-15-15-01 General Provisions [Repealed] 33-15-15-01.1 Purpose 33-15-15-01.2 Scope 33-15-15-02 Reclassification 33-15-15-01. General provisions. Repealed effective February 1, 2005. 33-15-15-01.1. Purpose. The purpose of this chapter is to adopt by reference federal provisions for the prevention ofsignificant deterioration program in North Dakota. The department will continue to implement the prevention of significant deterioration program as part ofthe state implementation plan. History: Effective February 1, 2005. General Authority: NDCC 23-25-03, 23-25-04.1 Law Implemented: NDCC 23-25-03, 23-25-04.1 33-15-15-01.2. Scope. The provisions of40 Code of Federal Regulations part 52, section 21, paragraphs·(a)(2) through (e), (h) through (r), (v), (w). (aa), and (bb) as they exist on August 1. 2007, are incorporated by reference into this chapter. This includes revisions to the rules that were effective by this date but had not been published in the Code ofFederal Regulations-yet. Any changes or additions to the provisions are listed below the affected paragraph. For purposes of this chapter, administrator means the department except for those duties that cannot be delegated by the United States environmental protection agency. For those duties listed below, or any others that cannot be delegated, administrator means the administrator of the United States environmental protection agency: (b)(17)
- Definition offederally enforceable. (b)(37)(i)
- Definition of repowering. (b)(42)
- Definition ofclean unit. (b)(43)
- Definition ofprevention ofsignificant deterioration. (b)(48)(ii)(c)
- Definition of baseline actual emissions. (b)(50)(i)
- Definition of regulated NSR pollutant. (1)(2)
- Air quality models. (p)(2)
- Consultation with the federal land manager.


### 1 4/2009(y)(4)(i)
- First sentence only
- Comparison to previous BACT and LAER determinations. For purposes ofthis chapter, permitorapproval to construct means a permit to construct. The procedures for obtaining a permit to construct are specified in section 33-15-14-02 and this chapter. When there is a conflict in the requirements between this chapter and section 33-15-14-02, the requirements of this chapter shall apply. For purposes ofthis chapter, the term "40 CFR 52.21" is replaced with "this chapter".

40 CFR 52.21(b)(2)(a) The following is deleted: Routine maintenance, repair and replacement shall include, but not be limited to, any activity(s) that meets the requirements ofthe equipment replacement provisions contained in paragraph (cc). 40 CFR 52.21(b)(3)(iii)(a) The words "the administrator or other-reviewtf.lg authority" are replaced with "the department or the administrator ofthe United States environmental protection agency". 40 CFR 52.21 (b)(14) The following is added: (v) The department shall provide a list of baseline dates for each contaminant for each baseline area. 40 CFR 52.21 (b)(15) The following is added: (iv) North Dakota is divided into two intrastate areas under section 107(d)(1)(0) or (E) ofthe Federal Clean Air Act [Pub. 

### L. 95-95]: the Cass County portion of region no. 130, the metropolitan Fargo-Moorhead interstate air quality control region; and region no. 172, the North Dakota intrastate air quality control region (the remaining fifty-two counties). 40 CFR 52.21(b)(22) The following is added: Designating an application complete for purposes of permit processing does not preclude the department from requesting or accepting any additional information. 40 CFR 52.21 (b)(29) The following is added: This term does not include effects on integral vistas.

4/2009 

### 240 CFR 52.21 (b)(30) 40 CFR 52.21 (b)(43)

40 CFR 52.21 (b)(48)(ii) 40 CFR 52.21(b)(51)
40 CFR 52.21 (b)(53)

40 CFR 52.21 (b)(54)

40 CFR 52.21 (b)(58) 40 CFR 52.21 (d)

40 CFR 52.21(e) The term section 51.1OO(s) ofthis chapter is deleted and replaced with "40 CFR 51.1OO(s)". The paragraph is deleted in its entirety and replaced with the following: Prevention of significant deterioration (PSD) program means a major source preconstruction permit program administered by the department that has been approved by the administrator ofthe United States environmental protection agency and incorporated into the state implementation plan pursuant to 40 CFR 51.166 to implement the requirements ofthat section. Any permit issued by the department under the program is a major NSR permit. The following words are deleted: "by the administrator for a permit required under this section or". The paragraph is deleted in its entirety and replaced with the following: Reviewing authority means the department. This paragraph is deleted in its entirety and replaced with the following: Lowest achievable emission rate (LAER) has the meaning given in 40 CFR 51.165(a)(1)(xiii) which is incorporated by reference. This paragraph is deleted in its entirety and replaced with the following: Reasonably available control technology (RACT) has the meaning given in 40 CFR 51.100(0) which is incorporated by reference. This paragraph is deleted in its entirety. The paragraph is deleted and replaced with the following: No concentration ofa contaminant shall exceed the ambient air quality standards in chapter 33-15-02 for those areas subject to regulation under this article and the national ambient air quality standards in all other areas ofthe United States. The following is added:



### 3 4/200940 CFR 52.21 (h)

40 CFR 52.21 (i)(5)(ii) 40 CFR 52.21 (i)

40 CFR 52.21 (k)(1)

40 CFR 52.21(1)(1)

4/2009 (5) The class I areas in North Dakota are the Theodore Roosevelt National Park
- north and south units and the Theodore Roosevelt Elkhorn Ranch Site in Billings County
- and the Lostwood National Wilderness Area in Burke County. The paragraph is deleted and replaced with the following: The stack height of any source subject to this chapter must meet the requirements of chapter 33-15-18. In this paragraph the reference to paragraph (i)(8)(i) is replaced with (i)(5)(i). The following subparagraphs are added: (11) The class I area increment limitations ofthe Theodore Roosevelt Elkhorn Ranch Site of the Theodore Roosevelt National Park shall apply to sources or modifications for which complete applications were filed after July 1, 1982. The impact ofemissions from sources or modifications for which permits under this chapter have been issued or complete applications have already been filed will be counted against the increments after July 1, 1982. (12) Provided that all necessary requirements ofthis article have been met, permits will be issued on a first-come, first-served basis as determined by the completion date ofthe applications. This subparagraph is deleted and replaced with the following: (1) Any ambient air quality standard in chapter 33-15-02 for those areas subject to regulation under this article and the national ambient air quality standards in all other areas ofthe United States; or This subparagraph is deleted and replaced with the following: All estimates ofambient concentrations required underthis chapter shall be based on applicable air quality models, technical data bases (including quality assured air quality monitoring results), and other requirements specified in appendix w of40 CFR 51 ("guideline on air quality models" as it exists on July 1, 2007) as supplemented by the "North Dakota guideline for air quality modeling analyses". These documents are incorporated by reference. Technical inputs for these models shall be based upon credible technical data approved in advance by the department. In making such determinations, the department shall review such 4technical data to determine whether it is representative of actual source, meteorological, topographical, or local air quality circumstances. 40 CFR 52.21 (m)(3) "Appendix B to part 58 ofthis chapter" is replaced with 40 CFR 58, appendix B. 40 CFR 52.21(0)(1) The following is added: The visibility analysis shall be prepared in accordance with chapter 33-15-19. 40 CFR 52.21(p)(6) "paragraph (q)(4)" is replaced with "paragraph (p)(4)" and "(q)(7)" is replaced with "(p)(7)". 40 CFR 52.21 (p)(7) "paragraph (q)(7)" is replaced with "paragraph (p)(7)". 40 CFR 52.21(p)(8) "paragraphs (q)(5) or (6)" is replaced with "paragraphs (p)(5) or (6)". 40 CFR 52.21 (p) The following is added: (9) Notice to the United States environmental protection agency. The department shall transmit to the administrator ofthe United States environmental protection agency through the region VIII regional administrator a copy ofeach permit application relating to a majorstationary source or major modification received by the departmentand provide notice to the administrator ofevery action related to the consideration ofsuch permit. 40 CFR 52.21 (q) This paragraph is deleted and replaced with the following:
q. Public participation. (1) Within thirty days after receipt ofan application to constructa source or modification subjectto this chapter, orany addition to such application, the departmentshall advise the applicant as to the completeness ofthe application orofany deficiency in the application or information submitted. In the event of such a deficiency, the dateofreceipt ofthe application, forthe purposeofthis chapter, shall bethedateonwhich all required information to form a complete application is received by the department. (2) With respectto a completed application, thedepartmentshall: (a) Within one year after receipt, make a preliminary determinationwhether the source should be approved, 

### 5 4/2009

### ",­ approved with conditions, or disapproved pursuant to the requirements ofthis chapter. (b) Make available, in at least one location in each region in which the proposed source or modification would be constructed, a copy of all materials submitted by the applicant, a copy of the department's preliminary determination, and a copy or summary of other materials, if any, considered by the department in making a preliminary determination. (c) Notify the public, by prominent advertisement in newspapers of general circulation in each region in which the proposed source or modification would be constructed, of the application, the preliminary determination, the degree of increment consumption that is expected from the source ormodification, and the opportunity for comment at a public hearing as well as written publiccomment on the information submitted by the owneror operator and the department's preliminary

.determination on the approvability of the source. The department shall allow at least thirty days for pUblic comment. (d) Send a copy of the notice required in subparagraph c to the applicant, the United States environmental protection agency administrator, and to officials and agencies having cognizance over the location where the source or modification will be situated as follows: the chief executive of the city and county where the source or modification would be located; any comprehensive regional land use planning agency; and any state, federal land manager, or Indian governing body whose lands may be significantly affected by emissions from the source or modification. (e) Hold a pUblic hearing whenever, on the basis ofwritten requests, a significant degree of public interest exists or at its discretion when issues involved in the permit decision need to be clarified. A public hearing would be held during the public comment period for interested persons, including representatives ofthe United States environmental protection agency administrator, to appear and submit written or oral comments on the air quality impact ofthesource or modification, alternatives to the source or modification, the control technology required, and other appropriate considerations.

4/2009 

### 640 CFR 52.21 (r)(2)

40 CFR 52.21 (r)(6) 40 CFR 52.21 (v)(1)

40 CFR 52.21 (v)(2)(iv)(a) 

### (f) Consider all public comments submitted in writing within a time specified in the public notice required in subparagraph c and all comments received at any pUblic hearing conducted pursuant to subparagraph e in making its final decision on the approvability of the application. No later than thirty days after the close ofthe public comment period, the applicant may submit a written response to any comments submitted by the public. The department may extend the time to respond to comments based on a written request by the applicant. The department shall consider the applicant's response in making its final decision. All comments must be made available for public inspection in the same locations where the department made available preconstruction information relating to the source or modification. (g) Make a final determination whether the source should be approved, approved with conditions, ordisapproved pursuant to the requirements ofthis chapter. (h) Notify the applicant in writing of the department's final determination. The notification must be made available for public inspection in the same locations where the department made available preconstruction information and public comments relating to the source or modification. The following is added: In cases of major construction projects involving long lead times and substantial financial commitments, the department may provide by a condition to the permit to construct a time period greater than eighteen months when such time extension is supported by sufficient documentation by the applicant. The word "reasonable" is deleted. This sUbparagraph is deleted and replaced with the following: (1) An owner or operator of any proposed major stationary source or major modification may request the department to approve a system of innovative control technology. This subitem is deleted and replaced with the following:



### 7 4/2009(a) Cause or contribute to aviolation ofan applicable ambient air quality standard in chapter 33-15-02 for those areas subject to regulation under this article and the national ambient air quality standards in all other areas ofthe United States; or 40 CFR 52.21(w)(1) This subparagraph is deleted and replaced with the following: (1) Any permit issued underthis chapter or a priorversion ofthis chapter shall remain in effect, unless and until it expires under 40 CFR 52.21(r) or is rescinded. 40 CFR 52.21(aa)(15) This paragraph is deleted in its entirety and replaced with the following: (i) The department shall not issue a PAL that does not comply with the requirements in paragraphs (aa)(1) through (15) of this section after the administrator ofthe environmental protection agency has approved regulations incorporating these requirements into the state implementation plan. (ii) The department may supersede any PAL whichwas established prior to the date of approval ofthe state implementation plan by the administrator ofthe United States environmental protection agency with a PAL that complies with the requirements of paragraphs (aa)(1) through (15) ofthis section. History: Effective February 1, 2005; amended effective April 1, 2009. General Authority: NDCC 23-25-03, 23-25-04.1 Law Implemented: NDCC 23-25-03, 23-25-04.1Section 33-15-23-01 33-15-23-02 33-15-23-03 33-15-23-04 33-15-23-05 CHAPTER 33-15-23 FEES
Definitions Permit to Construct Fees Minor Source Permit to Operate Fees Major Source Permit to Operate Fees Phase I Substitution Units

### 33-15-23-03. Minorsource permitto operate fees. 1. The owner or operator of each installation subject to a permit issued undersection 33-15-14-03 shall pay an annual permitfee based on the following table: Classification Annual Fee ($) Designated 300 Monitor (CEMS orAmbient Site) BOO/CEMS or Site Other 100 State and local government 

## o Exempt 

## o The following criteria are used to classify sources for determining minor source annual fees:

4/2009 

### 2Designated: A source that is designated for scheduled inspections. Monitor: A charge in addition to the annual fee for any source operating a continuous emission monitor system (CEMS) or an ambient monitoring site. Other: As designated by the department. State and local Any installation owned by the state of North government: Dakota or a local government. Exempt: As designated by the department. 2. The following activities conducted by the department are not included in the annual costs and will be charged to affected sources based on the actual costs incurred by the department:
a. Observation ofsource or performance specificationtesting, orboth. b. Audits ofsource operated ambient air monitoring networks. An accounting ofthe actual costs incurred under this subsection must accompany the notice ofthe annual permit fee. 3. Annual emissions are derived using representative source test data, "compilation of air pollution emission factors (AP-42)" or other reliable data. 4. The classification of "other" and "exempt" shall be designated by the department on a case-by-case basis. 5. The departmentshall send anotice, identifying the amountofthe annual permit fee, to the owneror operator ofeach affected source. The fee is due within sixty days following the date ofsuch notice. History: Effective August 1, 1995; amended effective April 1, 2009. General Authority: NDCC 23-25-03, 23-25-04.2 Law Implemented: NDCC 23-25-04.2

### SECTION V
LEGAL OPINION OF THEATTORNEY GENERAL

Appendix D ofthe PlanSTATE OF NORTH DAKOTA 

### OFFICE OF ATTORNEY GENERAL STATE CAPITOL 600 E BOULEVARD AVE DEPT 125 BISMARCK, ND 58505-0040 (701) 328-2210 FAX (701) 328-2226 Wayne Stenehjem www.ag.nd.gov ATIORNEY GENERAL


### OPINION February 2, 2009
Mr. L. 

### David Glatt, P.E. Chief, Environmental Health Section North Dakota Department of Health 918 E Divide Ave Bismarck, NO 58501-1947 Dear Mr. Glatt: The Office of Attorney General has examined the proposed amendments to N.D.AC. art. 33-15 concerning air pollution control, along with the notice of the proposed rules, -,- the publication of that notice, and the filing of that notice with the Legislative Council. This office has also determined that 1) a written record ofthe agency's consideration of any comments to the proposed rules was made, 2) a regulatory analysis was issued, 3) a takings assessment was prepared, 4) a small entity regulatory analysis and an economic impact statement were not prepared because these rules are mandated by federal law or will not affect any small entities, 5) a stringency determination and justification was prepared pursuant to N.D.C.C. 

### § 23-01-04.1, 6) an analysis concerning rules more strict than federal standards under N.D.C.C. 

### § 23-25-03.3 was prepared, and 7) the proposed rules are within the agency's statutory authority. These administrative rules are in compliance with N.D.C.C. ch. 28-32 and are hereby approved as to their legality. Upon final adoption, these rules may be filed with the Legislative Council.

. Sincerely,

# ~~ehjem Attorney General eee/vkk cc: John Walstad, Legislative Council