Scope

The provisions of title 40 Code of Federal Regulations part 52, section 21, paragraphs (a)(2) through (e), (h) through (r), (v), (w), (aa), and (bb) as they exist on July 1, 2019, are incorporated by reference into this chapter. This includes revisions to the rules that were published as a final rule in the Federal Register by this date but had not been published in the Code of Federal Regulations yet. Any changes or additions to the provisions are listed below the affected paragraph. For purposes of this chapter, administrator means the department except for those duties that cannot be delegated by the United States environmental protection agency. For those duties listed below, or any others that cannot be delegated, administrator means the administrator of the United States environmental protection agency or the administrator's authorized representative: (b)(17) - Definition of federally enforceable. (b)(37)(i) - Definition of repowering. (b)(43) - Definition of prevention of significant deterioration. (b)(48)(ii)(c) - Definition of baseline actual emissions. (b)(50)(i) - Definition of regulated NSR pollutant. (1)(2) - Air quality models. (p)(2) - Consultation with the federal land manager. For purposes of this chapter, permit or approval to construct means a permit to construct. The procedures for obtaining a permit to construct are specified in section 33.1-15-14-02 and this chapter. When there is a conflict in the requirements between this chapter and section 33.1-15-14-02, the requirements of this chapter shall apply. For purposes of this chapter, the term "40 CFR 52.21" is replaced with "this chapter". 40 CFR The following is added: 52.21(b)(1) For purposes of this definition, regulated NSR pollutant does not include greenhouse gases as defined in 40 CFR 86.1818-12(a). 40 CFR 52.21(b)(2) The following is added: For purposes of this definition, regulated NSR pollutant does not include greenhouse gases as defined in 40 CFR 86.1818-12(a). 40 CFR 52.21(b) (2)(iii)(a) The following is deleted: Routine maintenance, repair and replacement shall include, but not be limited to, any activity(s) that meets the requirements of the equipment replacement provisions contained in paragraph (cc). 40 CFR 52.21(b) (3)(iii)(a) The words "the administrator or other reviewing authority" are replaced with "the department or the administrator of the United States environmental protection agency". 40 CFR 52.21(b) (14) The following is added: (v) The department shall provide a list of baseline dates for each contaminant for each baseline area. 40 CFR 52.21(b) (15) The following is added: (iv) North Dakota is divided into two intrastate areas under section 107(d)(1)(D) or (E) of the Federal Clean Air Act [Pub. L. 95-95]: the Cass County portion of region no. 130, the metropolitan Fargo-Moorhead interstate air quality control region; and region no. 172, the North Dakota intrastate air quality control region (the remaining fifty-two counties). 40 CFR 52.21(b) (23)(i) The following is added: Greenhouse gases: 75,000 tpy CO2 equivalent. 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. 40 CFR 52.21(b) (30) The term section 51.100(s) of this chapter is deleted and replaced with "40 CFR 51.100(s)". 40 CFR 52.21(b) (43) The paragraph is deleted in its entirety and replaced with the following: Prevention of significant deterioration (PSD) program means a major source preconstruction permit program administered by the department that has been approved by the administrator of the United States environmental protection agency and incorporated into the state implementation plan pursuant to 40 CFR 51.166 to implement the requirements of that section. Any permit issued by the department under the program is a major NSR permit. 40 CFR 52.21(b) (48)(ii) The following words are deleted: "by the administrator for a permit required under this section or". 40 CFR 52.21(b) (49) The following words are deleted "administrator in subchapter C of this chapter" and replaced with the following: Administrator of the United States environmental protection agency in title 40, Code of Federal Regulations, chapter I subchapter C. 40 CFR 52.21(b) (49)(i) "§ 86.181-12(a) of this chapter" is deleted and replaced with: 40 CFR 86.1818-12(a). 40 CFR 52.21(b) (49)(ii)(a) "Table A-1 to subpart A of part 98 of this chapter" is deleted and replaced with the following: 40 CFR 98, subpart A, table A-1. The following is deleted: For purposes of this paragraph, prior to July 21, 2014, the mass of the greenhouse gas carbon dioxide shall not include carbon dioxide emissions resulting from the combustion or decomposition of nonfossilized and biodegradable organic material originating from plants, animals, or micro-organisms (including products, byproducts, residues and waste from agriculture, forestry and related industries as well as the nonfossilized and biodegradable organic fractions of industrial and municipal wastes, including gases and liquids recovered from the decomposition of nonfossilized and biodegradable organic material). 40 CFR 52.21(b) (50)(i)(c) This paragraph is deleted in its entirety and replaced with the following: Nitrogen oxides are a precursor to PM2.5 in all attainment and unclassifiable areas. 40 CFR 52.21(b) (50)(i)(d) This paragraph is deleted in its entirety and replaced with the following: Volatile organic compounds are not a precursor to PM2.5 in any attainment or unclassifiable areas. 40 CFR 52.21(b) (51) The paragraph is deleted in its entirety and replaced with the following: Reviewing authority means the department. 40 CFR 52.21(b) (53) 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. 40 CFR 52.21(b) (54) 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(o) which is incorporated by reference. 40 CFR 52.21(b) (58) This paragraph is deleted in its entirety. 40 CFR 52.21(d) The paragraph is deleted and replaced with the following: No concentration of a contaminant shall exceed: (1) The concentration permitted under the national primary and secondary ambient air quality standards. (2) The concentration permitted by the ambient air quality standards in chapter 33.1-15-02. 40 CFR 52.21(e) The following is added: (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. 40 CFR 52.21(h) 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 33.1-15-18. 40 CFR 52.21(i) The following subparagraphs are added: (11) The class I area increment limitations of the Theodore Roosevelt Elkhorn Ranch Site of the Theodore Roosevelt National Park shall apply to sources or modifications for which complete applications were filed after July 1, 1982. The impact of emissions from sources or modifications for which permits under this chapter have been issued or complete applications have already been filed will be counted against the increments after July 1, 1982. (12) Provided that all necessary requirements of this article have been met, permits will be issued on a first-come, first-served basis as determined by the completion date of the applications. 40 CFR 52.21(k) (1) This subparagraph is deleted and replaced with the following: (i) Any national ambient air quality standard or any standard in chapter 33.1-15-02. 40 CFR 52.21(l) (1) This subparagraph is deleted and replaced with the following: All estimates of ambient concentrations required under this chapter shall be based on applicable air quality models, technical data bases (including quality assured air quality monitoring results), and other requirements specified in appendix W of 40 CFR 51 ("guideline on air quality models" as it exists on July 1, 2018). 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 technical 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 of this chapter" is replaced with 40 CFR 58, appendix B. 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 of the United States environmental protection agency through the region VIII regional administrator a copy of each permit application relating to a major stationary source or major modification received by the department and provide notice to the administrator of every action related to the consideration of such permit. 40 CFR 52.21(q) This paragraph is deleted and replaced with the following: q. Public participation. (1) Within thirty days after receipt of an application to construct a source or modification subject to this chapter, or any addition to such application, the department shall advise the applicant as to the completeness of the application or of any deficiency in the application or information submitted. In the event of such a deficiency, the date of receipt of the application, for the purpose of this chapter, shall be the date on which all required information to form a complete application is received by the department. (2) With respect to a completed application, the department shall: (a) Within one year after receipt, make a preliminary determination whether the source should be approved, approved with conditions, or disapproved pursuant to the requirements of this chapter. (b) Make available, in at least one location in each region in which the proposed source or modification would be constructed or on the department's website, 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 and by a notice on the department's website, of the application, the preliminary determination, draft permit to construct, the degree of increment consumption that is expected from the source or modification, and the opportunity for comment at a public hearing as well as written public comment on the information submitted by the owner or operator and the department's preliminary determination on the approvability of the source. The department shall allow at least thirty days for public comment. (d) Send a copy of the notice required in subparagraph c to the applicant, the United States environmental protection agency administrator, and to officials and agencies having cognizance over the location where the source or modification will be situated as follows: the chief executive of the city and county where the source or modification would be located; any comprehensive regional land use planning agency; and any state, federal land manager, or Indian governing body whose lands may be significantly affected by emissions from the source or modification. (e) Hold a public hearing whenever, on the basis of written requests, a significant degree of public interest exists or at its discretion when issues involved in the permit decision need to be clarified. A public hearing would be held during the public comment period for interested persons, including representatives of the United States environmental protection agency administrator, to appear and submit written or oral comments on the air quality impact of the source or modification, alternatives to the source or modification, the control technology required, and other appropriate considerations. (f) Consider all public comments submitted in writing within a time specified in the public notice required in subparagraph c and all comments received at any public hearing conducted pursuant to subparagraph e in making its final decision on the approvability of the application. No later than thirty days after the close of the public comment period, the applicant may submit a written response to any comments submitted by the public. The department may extend the time to respond to comments based on a written request by the applicant. The department shall consider the applicant's response in making its final decision. All comments must be made available for public inspection in the same locations where the department made available preconstruction information relating to the source or modification. (g) Make a final determination whether the source should be approved, approved with conditions, or disapproved pursuant to the requirements of this chapter. (h) Notify the applicant in writing of the department's final determination. The notification must be made available for public inspection in the same locations where the department made available preconstruction information and public comments relating to the source or modification. 40 CFR 52.21(r)(2) 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. 40 CFR 52.21(v)(1) 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. 40 CFR 52.21(v)(2)(iv) (a) This subitem is deleted and replaced with the following: (a) Cause or contribute to a violation of an applicable national ambient air quality standard or any ambient air quality standard in chapter 33.1-15-02; or 40 CFR 52.21(aa)(15) This paragraph is deleted in its entirety.