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<br>combination thereof.
2.
"Air pollution" means the presence in the outdoor atmosphere of one or more air<br>contaminants in such quantities and duration as is or may be injurious to human<br>health, welfare, or property, animal or plant life, or which unreasonably interferes<br>with the enjoyment of life or property.
3.
"Air quality standard" means an established concentration, exposure time, or<br>frequency of occurrence of a contaminant or multiple contaminants in the ambient<br>air which may not be exceeded.
4.
"Ambient air" means the surrounding outside air.
5.
"Asbestos abatement" means any demolition, renovation, salvage, repair, or<br>construction activity which involves the repair, enclosure, encapsulation, removal,<br>handling, or disposal of more than three square feet [0.28 square meter] or three<br>linear feet [0.91 meter] of friable asbestos material.
Asbestos abatement also
means any inspections, preparation of management plans, and abatement project<br>design for both friable and nonfriable asbestos material.
6.
"Asbestos contractor" means any partnership, firm, association, corporation, limited<br>liability company, or sole proprietorship that contracts to perform asbestos<br>abatement for another.
7.
"Asbestos worker" means any person engaged in the abatement of more than three<br>square feet [0.28 square meter] or three linear feet [0.91 meter] of friable asbestos<br>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<br>the ambient air.
10.
"Friable asbestos material" means any material containing more than one percent<br>asbestos that hand pressure or mechanical forces expected to act on the material<br>can crumble, pulverize, or reduce to powder when dry.
11.
"Indirect air contaminant source" means any facility, building, structure, or<br>installation, or any combination thereof, which can reasonably be expected to cause<br>or induce emissions of air contaminants.
12.
"Lead-based paint" means paint or other surface coatings that contain lead equal to<br>or in excess of 1.0 milligram per square centimeter or more than 0.5 percent by<br>weight.
13.
"Person" means any individual, corporation, limited liability company, partnership,<br>firm, association, trust, estate, public or private institution, group, agency, political<br>subdivision of this state, any other state or political subdivision or agency thereof,<br>and any legal successor, representative agency, or agency of the foregoing.
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23-25-01.1. Declaration of public policy and legislative intent. It is hereby declared
to be the public policy of this state and the legislative intent of this chapter to achieve and<br>maintain the best air quality possible, consistent with the best available control technology, to<br>protect human health, welfare, and property, to prevent injury to plant and animal life, to promote<br>the economic and social development of this state, to foster the comfort and convenience of the<br>people, and to facilitate the enjoyment of the natural attractions of this state.
23-25-02. State air pollution control agency - Advisory council.
1.
The state department of health, hereinafter referred to as the department, is hereby<br>designated as the agency to administer and coordinate a statewide program of air<br>pollution control consistent with the provisions of this chapter.
2.
There is hereby established an air pollution control advisory council, hereinafter<br>referred to as the advisory council, of nine members to include the state health<br>officer, the state geologist, the director of the department of transportation, and six<br>other members to be appointed by the governor, one of whom must be a<br>representative of county or municipal government, one a representative of the solid<br>fuels industry, one a representative of the fluid and gas fuels industry, one a<br>representative of the environmental sciences, and two appointed at large.
3.
The term of office for the appointed members of the advisory council must be six<br>years, but of those four first appointed, two shall serve for two years and two for four<br>years, and the lengths of their terms must be designated by the governor at the time<br>of appointment.
4.
The advisory council shall select its own chairman from among its members. The<br>state health officer, state geologist, and director of the department of transportation<br>each may designate a principal deputy or assistant to act in the officer's place and<br>stead. The chief sanitary engineer of the state department of health, or that officer's<br>designated assistant, must be the principal administrative officer of the council.
5.
The advisory council shall hold at least one regular meeting each year, and such<br>additional meetings as the chairman deems necessary, at a time and place to be<br>fixed by the chairman. Special meetings must be called by the chairman on the<br>written request of any three members. Five members constitute a quorum.
6.
The advisory council shall hold a public hearing to consider and recommend the<br>adoption, amendment, or repeal of rules, regulations, and standards as provided in<br>this chapter. Notice of such public hearing or hearings must be given by publication<br>of a notice of such hearing or hearings in each of the official county newspapers<br>within the state of North Dakota by at least two publications, one week apart, the last<br>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<br>present witnesses and other evidence pertinent and relevant to proposed rules,<br>regulations, and standards. The advisory council shall consider any other matters<br>related to the purposes of this chapter and may make recommendations on its own<br>initiative to the department concerning the administration of this chapter.
23-25-03. Power and duties of the department. The department shall:
1.
Encourage the voluntary cooperation of persons or affected groups to achieve the<br>purposes of this chapter.
2.
Determine by scientifically oriented field studies and sampling the degree of air<br>pollution in the state and the several parts thereof.
3.
Encourage and conduct studies, investigations, and research relating to air pollution<br>and its causes, effects, prevention, abatement, and control.
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4.
Advise, consult, and cooperate with other public agencies and with affected groups<br>and industries.
5.
Issue such orders as may be necessary to effectuate the purposes of this chapter<br>and enforce the same by all appropriate administrative and judicial procedures.
6.
Provide rules and regulations relating to the construction of any new direct or indirect<br>air contaminant source or modification of any existing direct or indirect air<br>contaminant source which the department determines will prevent the attainment or<br>maintenance of any ambient air quality standard, and require that prior to<br>commencing construction or modification of any such source, the owner or operator<br>thereof shall submit such information as may be necessary to permit the department<br>to make such determination.
7.
Establish ambient air quality standards for the state which may vary according to<br>appropriate areas.
8.
Formulate and promulgate emission control requirements for the prevention,<br>abatement, and control of air pollution in this state including achievement of ambient<br>air quality standards.
9.
Hold hearings relating to any aspect or matter in the administration of this chapter,<br>and in connection therewith, compel the attendance of witnesses and the production<br>of evidence.
10.
Require the owner or operator of a regulated air contaminant source to establish and<br>maintain such records; make such reports; install, use, and maintain such<br>monitoring equipment or methods; sample such emissions in accordance with such<br>methods, at such locations, intervals, and procedures; and provide such other<br>information as may be required.
11.
Provide by rules and regulations a procedure for the handling of applications for the<br>granting of a variance to any person who owns or is in control of any plant,<br>establishment, process, or equipment. The granting of a variance is not a right of<br>the applicant but must be in the discretion of the department.
12.
Provide by rules any procedures necessary and appropriate to develop, implement,<br>and enforce any air pollution prevention and control program established by the<br>Federal Clean Air Act, as amended, and the authorities and responsibilities of which<br>are delegatable to the state by the United States environmental protection agency.<br>Such rules may include any and all enforceable ambient standards, emission<br>limitations, and other control measures, means, techniques, or economic incentives<br>such as fees, marketable permits, and auctions of emissions rights as provided by<br>the Act. The department shall develop and implement such federal programs if the<br>department determines there is a benefit to the state.
13.
Provide by rules a program for implementing lead-based paint remediation training,<br>certification, and performance requirements in accordance with title 40, Code of<br>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<br>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<br>responsibility of administering and enforcing a licensing program for asbestos contractors and<br>lead-based paint contractors and a certification program for asbestos workers and lead-based<br>paint workers and is given and charged with the following powers and duties:
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1.
To require training of, and to examine, asbestos workers and lead-based paint<br>workers.
2.
To establish standards and procedures for the licensing of contractors, and the<br>certification of asbestos workers engaging in the abatement of friable asbestos<br>materials or nonfriable asbestos materials that become friable during abatement,<br>and to establish performance standards for asbestos abatement. The performance<br>standards will be as stringent as those standards adopted by the United States<br>environmental protection agency pursuant to section 112 of the Federal Clean Air<br>Act, as amended.
3.
To establish standards and procedures for the licensing of contractors and the<br>certification of lead-based paint workers engaging in the abatement of lead-based<br>paint and to establish performance standards for lead-based paint abatement in<br>accordance with title 40, Code of Federal Regulations, part 745, sections 220, 223,<br>225, 226, 227, and 233.
4.
To issue certificates to all applicants who satisfy the requirements for certification<br>under this section and any rules under this section, to renew certificates, and to<br>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<br>lead-based paint contractors and certifying asbestos and lead-based paint workers<br>and to establish examination fees for asbestos and lead-based paint workers under<br>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<br>workers.
6.
To establish indoor environmental nonoccupational air quality standards for<br>asbestos.
7.
To adopt and enforce rules as necessary for the implementation of this section.
For nonpublic employees performing asbestos abatement in facilities or on facility components<br>owned or leased by their employer, only the provisions of rules adopted in accordance with the<br>federal Asbestos Hazard Emergency Response Act of 1986 [Pub. L. 99-519; 100 Stat. 2970; 15<br>U.S.C. 2641 et seq.], as amended, or the federal Clean Air Act [Pub. L. 95-95; 91 Stat. 685; 42<br>U.S.C. 7401 et seq.], as amended, apply to this section. This does not include ownership that<br>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<br>sulfur dioxide that affect coal conversion facilities or petroleum refineries that are more strict than<br>federal rules or standards under the Clean Air Act [42 U.S.C. 7401 et seq.], nor may the<br>department adopt ambient air quality rules or standards for sulfur dioxide that affect these<br>facilities and refineries when there are no corresponding federal rules or standards. Any ambient<br>air quality standards that have been adopted by the department for sulfur dioxide that are more<br>strict than federal rules or standards under the Clean Air Act, or for which there are no<br>corresponding federal rules or standards, are void as to coal conversion facilities and petroleum<br>refineries. However, the department may adopt rules for dealing with exposures of less than one<br>hour to sulfur dioxide emissions on a source-by-source basis pursuant to any regulatory program<br>for dealing with short-term exposures to sulfur dioxide that may be established under the Clean<br>Air Act. Any intervention levels or standards set forth in the rules, however, may not be more<br>strict than federal levels or standards recommended or adopted under the federal program. In<br>adopting the rules, the department shall follow all other provisions of state law governing the<br>department's adoption of ambient air quality rules when there are no mandatory corresponding<br>federal rules or standards.
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23-25-03.3. Requirements for adoption of air quality rules more strict than federal
standards.
1.
Notwithstanding any other provisions of this title, the department may not adopt air<br>quality rules or standards affecting coal conversion and associated facilities,<br>petroleum refineries, or oil and gas production and processing facilities which are<br>more strict than federal rules or standards under the Clean Air Act [42 U.S.C. 7401<br>et seq.], nor may the department adopt air quality rules or standards affecting such<br>facilities when there are no corresponding federal rules or standards, unless the<br>more strict or additional rules or standards are based on a risk assessment that<br>demonstrates a substantial probability of significant impacts to public health or<br>property, a cost-benefit analysis that affirmatively demonstrates that the benefits of<br>the more stringent or additional state rules and standards will exceed the anticipated<br>costs, and the independent peer reviews required by this section.
2.
The department shall hold a hearing on any rules or standards proposed for<br>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<br>the department and must state that the studies, risk assessment, and cost-benefit<br>analysis that support the proposed rules or standards are available at the<br>department for inspection and copying. If at any time the department intends to rely<br>upon any studies, opinions, risk assessments, cost-benefit analyses, or other<br>information that were not available from the department when it gave its notice of<br>hearing, the department shall give a new notice of hearing not less than ninety days<br>prior to the hearing that clearly identifies the additional or amended studies,<br>analyses, opinions, data, or information upon which the department intends to rely<br>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<br>contains:
(1)
A description and comparison of the benefits and costs of the rule and of<br>the reasonable alternatives to the rule.
The analysis must include a
quantification or numerical estimate of the quantifiable benefits and<br>costs. The quantification or numerical estimate must use comparable<br>assumptions including time periods, specify the ranges of predictions,<br>and explain the margins of error involved in the quantification methods<br>and estimates being used. The costs that must be considered include<br>the social, environmental, and economic costs that are expected to result<br>directly or indirectly from implementation or compliance with the<br>proposed rule.
(2)
A reasonable determination whether as a whole the benefits of the rule<br>justify the costs of the rule and that the rule will achieve the rulemaking<br>objectives in a more cost-effective manner than other reasonable<br>alternatives, including the alternative of no government action.
In
evaluating and comparing the costs and benefits, the department shall<br>not rely on cost, benefit, or risk assessment information that is not<br>accompanied by data, analysis, or supporting materials that would<br>enable the department and other persons interested in the rulemaking to<br>assess the accuracy, reliability, and uncertainty factors applicable to the<br>information.
b.
"Risk assessment" means both the process used by the department to identify<br>and quantify the degree of toxicity, exposure, or other risk posed for the<br>exposed individuals, populations, or resources and the written document<br>containing an explanation of how the assessment process has been applied to
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an individual substance, activity, or condition.
The risk assessment must
include a discussion that characterizes the risks being assessed.
The risk
characterization must include the following elements:
(1)
A description of the exposure scenarios used, the natural resources or<br>subpopulations being exposed, and the likelihood of these exposure<br>scenarios expressed in terms of probability.
(2)
A hazard identification that demonstrates whether exposure to the<br>substance, activity, or condition identified is causally linked to an adverse<br>effect.
(3)
The major sources of uncertainties in the hazard identification,<br>dose-response,
and
exposure
assessment
portions
of
the
risk
assessment.
(4)
When a risk assessment involves a choice of any significant assumption,<br>inference, or model, the department in preparing the risk assessment<br>shall:
(a)
Rely only upon environmental protection agency-approved air<br>dispersion models.
(b)
Identify the assumptions, inferences, and models that materially<br>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<br>conflicts with, empirical data.
(f)
Describe the impact of alternative choices of assumptions,<br>inferences, or mathematical models.
(5)
The range and distribution of exposures and risks derived from the risk<br>assessment.
c.
The risk assessment and cost-benefit analysis performed by the department<br>must be independently peer reviewed by qualified experts selected by the air<br>pollution control advisory council.
4.
This section applies to any petition submitted to the department pursuant to section<br>23-01-04.1 that identifies air quality rules or standards affecting coal conversion<br>facilities or petroleum refineries that are more strict than federal rules or standards<br>under the Clean Air Act [42 U.S.C. 7401 et seq.] or for which there are no<br>corresponding federal rules or standards, regardless of whether the department has<br>previously adopted the more strict or additional rules or standards pursuant to<br>section 23-01-04.1. This section also applies to any petitions filed under section<br>23-01-04.1 affecting coal conversion facilities or petroleum refineries that are<br>pending on the effective date of this section for which new rules or standards have<br>not been adopted, and the department shall have a reasonable amount of additional<br>time to comply with the more stringent requirements of this section. To the extent<br>section 23-01-04.1 conflicts with this section, the provisions of this section govern.<br>This section does not apply, however, to existing rules that set air quality standards<br>for odor, hydrogen sulfide, visible and fugitive emissions, or emission standards for<br>particulate matter and sulfur dioxide, but does apply to any new rules governing<br>such matters.
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23-25-04. Classification and reporting of air pollution sources.
1.
After consultation with the advisory council the department, by rule or regulation,<br>may classify air contaminant sources according to levels and types of emissions and<br>other criteria which relate to air pollution and may require reporting for any of such<br>class or classes. Classifications made pursuant to this subsection may apply to the<br>state as a whole or to any designated area of the state and must be made with<br>special reference to effects on health, economic, and social factors and physical<br>effects on property.
2.
Any person operating or responsible for the operation of air contaminant sources of<br>any class for which rules and regulations of the department require reporting shall<br>make reports containing information as may be required by the department relevant<br>to air pollution.
23-25-04.1. Permits or registration.
1.
No person shall construct, install, modify, use, or operate an air contaminant source<br>designated by regulation, capable of causing or contributing to air pollution, either<br>directly or indirectly, without a permit from the department or in violation of any<br>conditions imposed by such permit.
2.
The department shall provide for the issuance, suspension, revocation, and renewal<br>of any permits which it may require pursuant to this section.
3.
The department may require that applications for such permits shall be<br>accompanied by plans, specifications, and such other information as it deems<br>necessary.
4.
Possession of an approved permit or registration certificate does not relieve any<br>person of the responsibility to comply with applicable emission limitations or with any<br>other provision of law or regulations adopted pursuant thereto and does not relieve<br>any person from the requirement that that person possess a valid contractor's<br>license issued under chapter 43-07.
5.
The department by rule or regulation may provide for registration and registration<br>renewal of certain air contaminant sources in lieu of the permit required pursuant to<br>this section.
6.
The department may exempt by rule and regulation certain air contaminant sources<br>from the permit or registration requirements set forth in this section when the<br>department makes a finding that the exemption of such sources of air contaminants<br>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<br>permits or registration certificates. The permit or registration certificate fees must be based on<br>the anticipated cost of filing and processing the application, of taking action on the requested<br>permit or registration certificate, and conducting an inspection program to determine compliance<br>or noncompliance with the permit or registration certificate. Any moneys collected for permit or<br>registration fees must be deposited in the department operating fund in the state treasury and<br>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<br>inspect any property, premise, or place on or at which an air contaminant source is<br>located or is being constructed, installed, or established at any reasonable time for<br>the purpose of ascertaining the state of compliance with this chapter and rules and
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regulations enforced pursuant thereto. If requested, the owner or operator of the<br>premises shall receive a report setting forth all facts found which relate to<br>compliance status.
2.
The department may conduct tests and take samples of air contaminants, fuel,<br>process material, and other materials which affect or may affect emission of air<br>contaminants from any source, and shall have the power to have access to and copy<br>any records required by department rules or regulations to be maintained, and to<br>inspect monitoring equipment located on the premises.
Upon request of the
department, the person responsible for the source to be tested shall provide<br>necessary holes in stacks or ducts and such other safe and proper sampling and<br>testing facilities exclusive of instruments and sensing devices as may be necessary<br>for proper determination of the emission of air contaminants.
If an authorized
representative of the department, during the course of an inspection, obtains a<br>sample of air contaminant, fuel, process material, or other material, that<br>representative shall issue a receipt for the sample obtained to the owner or operator<br>of, or person responsible for, the source tested.
3.
For the purpose of ascertaining the state of compliance with this chapter and any<br>applicable rules, any duly authorized officer, employee, or agent of the department<br>may enter and inspect, at any reasonable time, any property, premises, or place on<br>or at which a lead-based paint remediation activity is ongoing. If requested, the<br>department shall provide to the owner or operator of the premises a report that sets<br>forth all facts found which relate to compliance status.
23-25-06. Confidentiality of records.
1.
Any record, report, or information obtained under this chapter must be available to<br>the public, except that upon a showing satisfactory to the department that the record,<br>report, or information, or particular part thereof, other than emission data, to which<br>the department has access under this chapter, if made public, would divulge trade<br>secrets, the department shall consider the record, report, or information or particular<br>portion thereof confidential in the administration of this chapter.
2.
Nothing herein may be construed to prevent disclosure of any report, or record of<br>information to federal, state, or local agencies when necessary for purposes of<br>administration of any federal, state, or local air pollution control laws, or when<br>relevant in any proceeding under this chapter.
23-25-07. Emission control requirements. Repealed by S.L. 1975, ch. 231, § 11.
23-25-08. Administrative procedure and judicial review. Any proceeding under this
chapter for:
1.
The issuance or modification of rules and regulations including emergency orders<br>relating to control of air pollution; or
2.
Determining compliance with rules and regulations of the department,
must be conducted in accordance with the provisions of chapter 28-32, and appeals may be<br>taken as therein provided. When an emergency exists requiring immediate action to protect the<br>public health and safety, the department may, without notice or hearing, issue an order reciting<br>the existence of such emergency and requiring that such action be taken as is necessary to meet<br>this emergency. Notwithstanding any provision of this chapter, such order must be effective<br>immediately, but on application to the department an interested person must be afforded a<br>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.<br>Except as provided for in this section, notice of any hearing held under this chapter must be<br>issued at least thirty days prior to the date specified for the hearing.
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23-25-09. Injunction proceedings. Repealed by S.L. 1975, ch. 231, § 11.
23-25-10. Enforcement - Penalties - Injunctions.
1.
Any person who willfully violates this chapter, or any permit condition, rule, order,<br>limitation, or other applicable requirement implementing this chapter, is subject to a<br>fine of not more than ten thousand dollars per day per violation, or by imprisonment<br>for not more than one year, or both. If the conviction is for a violation committed<br>after a first conviction of such person under this subsection, punishment must be by<br>a fine of not more than twenty thousand dollars per day per violation, or by<br>imprisonment for not more than two years, or both.
2.
Any person who violates this chapter, or any permit condition, rule, order, limitation,<br>or other applicable requirement implementing this chapter, with criminal negligence<br>as defined by section 12.1-02-02, is subject to a fine of not more than ten thousand<br>dollars per day per violation, or by imprisonment for not more than six months, or<br>both.
3.
Any person who knowingly makes any false statement, representation, or<br>certification in any application, record, report, plan, or other document filed or<br>required to be maintained under this chapter or any permit condition, rule, order,<br>limitation, or other applicable requirement implementing this chapter, or who<br>falsifies, tampers with, or knowingly renders inaccurate any monitoring device or<br>method required to be maintained under this chapter or any permit condition, rule,<br>order, limitation, or other applicable requirement implementing this chapter, upon<br>conviction, is subject to a fine of not more than ten thousand dollars per day per<br>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,<br>or other applicable requirement implementing this chapter, is subject to a civil<br>penalty not to exceed ten thousand dollars per day per violation.
5.
Without prior revocation of any pertinent permits, the department, in accordance with<br>the laws of this state governing injunction or other process, may maintain an action<br>in the name of the state against any person to enjoin any threatened or continuing<br>violation of any provision of this chapter or any permit condition, rule, order,<br>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<br>extraterritorial zoning as defined in section 40-47-01.1, a person may not discharge<br>into the ambient air any objectionable odorous air contaminant that measures seven<br>odor concentration units or higher outside the property boundary where the<br>discharge is occurring. If an agricultural operation as defined by section 42-04-01<br>has been in operation for more than one year, as provided by section 42-04-02, and<br>the business or residence making the odor complaint was built or established after<br>the agricultural operation was established, the measurement for compliance with the<br>seven odor concentration units standard must be taken within one hundred feet<br>[30.48 meters] of the subsequently established residence, church, school, business,<br>or public building making the complaint rather than at the property boundary of the<br>agricultural operation. The measurement may not be taken within five hundred feet<br>[.15 kilometer] of the property boundary of the agricultural operation.
2.
In areas located outside a city or outside the area over which a city has exercised<br>extraterritorial zoning as defined in section 40-47-01.1, a person may not discharge<br>into the ambient air any objectionable odorous air contaminant that causes odors<br>that measure seven odor concentration units or higher as measured at any of the<br>following locations:
Page No. 9
a.
Within one hundred feet [30.48 meters] of any residence, church, school,<br>business, or public building, or within a campground or public park. An odor<br>measurement may not be taken at the residence of the owner or operator of the<br>source of the odor, or at any residence, church, school, business, or public<br>building, or within a campground or public park, that is built or established<br>within one-half mile [.80 kilometer] of the source of the odor after the source of<br>the odor has been built or established;
b.
At any point located beyond one-half mile [.80 kilometer] from the source of the<br>odor, except for property owned by the owner or operator of the source of the<br>odor, or over which the owner or operator of the source of the odor has<br>purchased an odor easement; or
c.
If a county or township has zoned or established a setback distance for an<br>animal feeding operation which is greater than one-half mile [.80 kilometer]<br>under either section 11-33-02.1 or 58-03-11.1, or if the setback distance under<br>subsection 7 is greater than one-half mile [.80 kilometer], measurements for<br>compliance with the seven odor concentration units standard must be taken at<br>the setback distance rather than one-half mile [.80 kilometer] from the facility<br>under subdivision b, except for any residence, church, school, business, public<br>building, park, or campground within the setback distance which was built or<br>established before the animal feeding operation was established, unless the<br>animal feeding operation has obtained an odor easement from the preexisting<br>facility.
3.
An odor measurement may be taken only with a properly maintained scentometer,<br>by an odor panel, or by another instrument or method approved by the state<br>department of health, and only by inspectors certified by the department who have<br>successfully completed a department-sponsored odor certification course and<br>demonstrated the ability to distinguish various odor samples and concentrations. If a<br>certified inspector measures a violation of this section, the department may send a<br>certified letter of apparent noncompliance to the person causing the apparent<br>violation and may negotiate with the owner or operator for the establishment of an<br>odor management plan and best management practices to address the apparent<br>violation. The department shall give the owner or operator at least fifteen days to<br>implement the odor management plan. If the odor problem persists, the department<br>may proceed with an enforcement action provided at least two certified inspectors at<br>the same time each measure a violation and then confirm the violation by a second<br>odor measurement taken by each certified inspector, at least fifteen minutes, but no<br>more than two hours, after the first measurement.
4.
A person is exempt from this section while spreading or applying animal manure or<br>other recycled agricultural material to land in accordance with a nutrient<br>management plan approved by the state department of health. A person is exempt<br>from this section while spreading or applying animal manure or other recycled<br>agricultural material to land owned or leased by that person in accordance with rules<br>adopted by the department. An owner or operator of a lagoon or waste storage<br>pond permitted by the department is exempt from this section in the spring from the<br>time when the cover of the permitted lagoon or pond begins to melt until fourteen<br>days after all the ice cover on the lagoon or pond has completely melted.<br>Notwithstanding these exemptions, all persons shall manage their property and<br>systems to minimize the impact of odors on their neighbors.
5.
This section does not apply to chemical compounds that can be individually<br>measured by instruments, other than a scentometer, that have been designed and<br>proven to measure the individual chemical or chemical compound, such as<br>hydrogen sulfide, to a reasonable degree of scientific certainty, and for which the<br>state department of health has established a specific limitation by rule.
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6.
For purposes of this section, a public park is a park established by the federal<br>government, the state, or a political subdivision of the state in the manner prescribed<br>by law. For purposes of this section, a campground is a public or private area of<br>land used exclusively for camping and open to the public for a fee on a regular or<br>seasonal basis.
7.
a.
In a county that does not regulate the nature, scope, and location of an animal<br>feeding operation under section 11-33-02, the department shall require that any<br>new animal feeding operation permitted under chapter 61-28 be set back from<br>any existing residence, church, school, business, public building, park, or<br>campground.
(1)
If there are fewer than three hundred animal units, there is no minimum<br>setback requirement.
(2)
If there are at least three hundred animal units but no more than one<br>thousand animal units, the setback for any animal operation is one-half<br>mile [.80 kilometer].
(3)
If there are at least one thousand one animal units but no more than two<br>thousand animal units, the setback for a hog operation is three-fourths<br>mile [1.20 kilometers] and the setback for any other animal operation is<br>one-half mile [.80 kilometer].
(4)
If there are at least two thousand one animal units but no more than five<br>thousand animal units, the setback for a hog operation is one mile [1.60<br>kilometers] and the setback for any other animal operation is<br>three-fourths mile [1.20 kilometers].
(5)
If there are five thousand one or more animal units, the setback for a hog<br>operation is one and one-half miles [2.40 kilometers] and the setback for<br>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<br>applying for the permit obtains an odor easement from the preexisting use that<br>is closer.
c.
For purposes of this section:
(1)
One mature dairy cow, whether milking or dry, equals 1.33 animal units;
(2)
One dairy cow, heifer or bull, other than an animal described in<br>paragraph 1 equals 1.0 animal unit;
(3)
One weaned beef animal, whether a calf, heifer, steer, or bull, equals<br>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<br>0.4 animal unit;
(6)
One swine weighing less than fifty-five pounds [24.948 kilograms] equals<br>0.1 animal unit;
(7)
One horse equals 2.0 animal units;
(8)
One sheep or lamb equals 0.1 animal unit;
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(9)
One turkey equals 0.0182 animal unit;
(10)
One chicken, other than a laying hen, equals 0.008 animal unit;
(11)
One laying hen equals 0.012 animal unit;
(12)
One duck equals 0.033 animal unit; and
(13)
Any livestock not listed in paragraphs 1 through 12 equals 1.0 animal unit<br>per each one thousand pounds [453.59 kilograms] whether single or<br>combined animal weight.
8.
A permitted animal feeding operation may expand its permitted capacity by<br>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<br>restrictions or requirements on animal feeding operations or on other agricultural<br>operations except as permitted under sections 11-33-02 and 58-03-11.
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Document Outline
chapter 23-25 air pollution control
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