# Title 23.1 — Environmental Quality

## Chapter 23.1-06 — Air Pollution Control

### § 23.1-06-01. Definitions.

For purposes of this chapter:
1. "Air contaminant" means any solid, liquid, gas, or odorous substance, or any
combination of solid, liquid, gas, or odorous substance.
2. "Air pollution" means the presence in the outdoor atmosphere of one or more air
contaminants in such quantities and duration as 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 person that contracts to perform asbestos
abatement for another.
7. "Asbestos worker" means any individual 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. "Department" means the department of environmental quality.
9. "Emission" means a release of air contaminants into the ambient air.
10. "Emission standard" means a limitation on the release of any air contaminant into the
ambient air.
11. "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.
12. "Indirect air contaminant source" means any facility, building, structure, or installation,
or any combination that can reasonably be expected to cause or induce emissions of
air contaminants.
13. "Lead-based paint" means paint or other surface coatings that contain lead equal to or
in excess of one milligram per square centimeter or more than one-half percent by
weight.
### § 23.1-06-02. Declaration of public policy and legislative intent.

It is the public policy of this state and the legislative intent of this chapter to achieve and
maintain the best air quality possible, consistent with the best available control technology, to
protect human health, welfare, and property, to prevent injury to plant and animal life, to
promote the economic and social development of this state, to foster the comfort and
convenience of the people, and to facilitate the enjoyment of the natural attractions of this state.
### § 23.1-06-03. Environmental review advisory council - Public hearing and rule

recommendations.
Repealed by S.L. 2019, ch. 216, § 5.
### § 23.1-06-04. Power and duties of the department.

1. The department shall develop and coordinate a statewide program of air pollution
control. To accomplish this, the department shall:

a. Encourage the voluntary cooperation of persons to achieve the purposes of this
chapter.
b. Determine by scientifically oriented field studies and sampling the degree of air
pollution in the state and the several parts thereof.
c. Encourage and conduct studies, investigations, and research relating to air
pollution and its causes, effects, prevention, abatement, and control.
d. Advise, consult, and cooperate with other public agencies and with affected
groups and industries.
e. Issue orders necessary to effectuate the purposes of this chapter and enforce the
orders by all appropriate administrative and judicial procedures.
f. Provide rules relating to the construction of any new direct or indirect air
contaminant source or modification of any existing direct or indirect air
contaminant source which the department determines will prevent the attainment
or maintenance of any ambient air quality standard, and require that before
commencing construction or modification of any such source, the owner or
operator shall submit the information necessary to permit the department to make
this determination.
g. Establish ambient air quality standards for the state which may vary according to
appropriate areas.
h. Formulate and adopt emission control requirements for the prevention,
abatement, and control of air pollution in this state including achievement of
ambient air quality standards.
i. Hold hearings relating to the administration of this chapter, and compel the
attendance of witnesses and the production of evidence.
j. Require the owner or operator of a regulated air contaminant source to establish
and maintain records; make reports; install, use, and maintain monitoring
equipment or methods; sample emissions in accordance with those methods at
designated locations and intervals, and using designated procedures; and
provide other information as may be required.
k. Provide by rules a procedure for handling applications for a variance for any
person that owns or is in control of any plant, establishment, process, or
equipment. The granting of a variance is not a right of the applicant but must be
in the discretion of the department.
l. 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 [42 U.S.C. 7401 et seq.], as amended,
the authorities and responsibilities of which are delegatable to the state by the
United States environmental protection agency. The rules may include
enforceable ambient standards, emission limitations, and other control measures,
means, techniques, or economic incentives, including fees, marketable permits,
and auctions of emissions rights, as provided by the Act. The department shall
develop and implement the federal programs if the department determines that
doing so benefits the state.
m. 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.
2. After consultation with the advisory council, the department may adopt, amend, and
repeal rules under this chapter.
### § 23.1-06-05. Licensing of asbestos and lead-based paint contractors and certification

of asbestos and lead-based paint workers.
1. The department shall administer and enforce a licensing program for asbestos
contractors and lead-based paint contractors and a certification program for asbestos
workers and lead-based paint workers. To do so, the department shall:

a. Require training of, and to examine, asbestos workers and lead-based paint
workers.
b. 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 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 [42 U.S.C. 7401 et seq.], as amended.
c. Establish standards and procedures for licensing contractors and certifying
lead-based paint workers engaging in the abatement of lead-based paint, and
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.
d. Issue certificates to all applicants who satisfy the requirements for certification
under this section and any rules under this section, renew certificates, and
suspend or revoke certificates for cause after notice and opportunity for hearing.
e. 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 establish examination fees for asbestos and lead-based paint
workers under section 23.1-06-10. The annual, renewal, and examination fees for
lead-based contractors and workers may not exceed those charged to asbestos
contractors and workers.
f. Establish indoor environmental nonoccupational air quality standards for
asbestos.
g. Adopt and enforce rules as necessary for the implementation of this section.
2. 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.
### § 23.1-06-06. Sulfur dioxide ambient air quality standards more strict than federal

standards prohibited.
The department may not adopt ambient air quality rules or standards for sulfur dioxide that
affect coal conversion facilities or petroleum refineries that are more strict than federal rules or
standards under the federal 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 federal Clean Air Act, or for which there are no
corresponding federal rules or standards, are void as to coal conversion facilities and petroleum
refineries. However, the department may adopt rules for dealing with exposures of less than one
hour to sulfur dioxide emissions on a source-by-source basis pursuant to any regulatory
program for dealing with short-term exposures to sulfur dioxide that may be established under
the federal Clean Air Act. Any intervention levels or standards set forth in the rules may not be
more strict than federal levels or standards recommended or adopted under the federal
program. In adopting the rules, the department shall follow all other provisions of state law
governing the department's adoption of ambient air quality rules when there are no mandatory
corresponding federal rules or standards.

### § 23.1-06-07. 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, coal-
fueled electric generating units, petroleum refineries, or oil and gas production and
processing facilities which are more strict than federal rules or standards under the
federal 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 the department intends to rely upon any studies, opinions, risk
assessments, cost-benefit analyses, or other information 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 before the hearing which 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 of the benefits and costs of the rule and of the
reasonable alternatives to the rule. The analysis must include a
quantification or numerical estimate of the quantifiable benefits and costs.
The quantification or numerical estimate must use comparable assumptions,
including time periods, specify the ranges of predictions, and explain the
margins of error involved in the quantification methods and estimates being
used. The costs that must be considered include the social, environmental,
and economic costs that are expected to result directly or indirectly from
implementation or compliance with the proposed rule.
(2) A reasonable determination whether as a whole the benefits of the rule
justify the costs of the rule and that the rule will achieve the rulemaking
objectives in a more cost-effective manner than other reasonable
alternatives, including the alternative of no government action. In evaluating
and comparing the costs and benefits, the department may not rely on cost,
benefit, or risk assessment information that is not accompanied by data,
analysis, or supporting materials that would enable the department and
other persons interested in the rulemaking to assess the accuracy, reliability,
and uncertainty factors applicable to the information.
b. "Risk assessment" means both the process used by the department to identify
and quantify the degree of toxicity, exposure, or other risk posed for the exposed
individuals, populations, or resources, and the written document containing an
explanation of how the assessment process has been applied to an individual
substance, activity, or condition. The risk assessment must include a discussion
that characterizes the risks being assessed. The risk characterization must
include the following elements:

(1) A description of the exposure scenarios used, the natural resources or
subpopulations being exposed, and the likelihood of these exposure
scenarios expressed in terms of probability.
(2) A hazard identification that demonstrates whether exposure to the
substance, activity, or condition identified is causally linked to an adverse
effect.
(3) The major sources of uncertainties in the hazard identification, dose-
response, and exposure assessment portions of the risk assessment.
(4) When a risk assessment involves a choice of any significant assumption,
inference, or model, the department, in preparing the risk assessment, shall:
(a) Rely only upon environmental protection agency-approved air
dispersion models.
(b) Identify the assumptions, inferences, and models that materially affect
the outcome.
(c) Explain the basis for any choices.
(d) Identify any policy decisions or assumptions.
(e) Indicate the extent to which any model has been validated by, or
conflicts with, empirical data.
(f) Describe the impact of alternative choices of assumptions, inferences,
or mathematical models.
(5) The range and distribution of exposures and risks derived from the risk
assessment.
c. The risk assessment and cost-benefit analysis performed by the department must
be independently peer reviewed by qualified experts selected by the
environmental review advisory council.
4. This section applies to any petition submitted to the department under section
facilities, coal-fueled electric generating units, or petroleum refineries that are more
strict than federal rules or standards under the federal 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 23.1-01-04. This section also applies to any petitions
filed under section 23.1-01-04 affecting coal conversion facilities, coal-fueled electric
generating units, 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 23.1-01-04.1 conflicts with this
section, the provisions of this section govern. This section does not apply 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 new rules governing those standards.
### § 23.1-06-08. Classification and reporting of air pollution sources.

1. After consultation with the environmental review advisory council the department, by
rule, may classify air contaminant sources according to levels and types of emissions
and other criteria that relate to air pollution, and may require reporting for any class.
Classifications made under 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. A person operating or responsible for the operation of air contaminant sources of any
class for which reporting is required shall make reports containing information the
department deems relevant to air pollution.
### § 23.1-06-09. Permits or registration.

1. A person may not 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 the permit.
2. The department shall provide for the issuance, suspension, revocation, and renewal of
permits that it requires under this section.
3. The department may require applications for permits to be accompanied by plans,
specifications, and other information it deems necessary.
4. Possession of an approved permit or registration certificate does not relieve any
person of the responsibility to comply with applicable emission limitations or with any
other law or rule, and does not relieve any person from the requirement to possess a
valid contractor's license issued under chapter 43-07.
5. The department by rule may provide for registration and registration renewal of certain
air contaminant sources in lieu of a permit.
6. The department may exempt by rule certain air contaminant sources from the permit
or registration requirements in this section when the department makes a finding the
exemption will not be contrary to section 23.1-06-02.
### § 23.1-06-10. Fees - Deposit in operating fund.

The department by rule may prescribe and provide for the payment and collection of
reasonable fees for permits and registration certificates. The fees must be based on the
anticipated cost of filing and processing the application, 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.
### § 23.1-06-11. 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 related rules. If
requested, the owner or operator of the premises must 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 that may affect emission of air contaminants
from any source, and may have access to and copy any records required by
department rules to be maintained, and may 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 other safe and
proper sampling, and testing facilities exclusive of instruments and sensing devices
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, the
representative shall issue a receipt for the sample obtained to the owner or operator
of, or person responsible for, the source tested.
3. To ascertain the state of compliance with this chapter and any applicable rules, a duly
authorized officer, employee, or agent of the department may enter and inspect, at any
reasonable time, any property, premises, or place on or at which a lead-based paint
remediation activity is ongoing. If requested, the department shall provide to the owner
or operator of the premises a report that sets forth all facts found which relate to
compliance status.
### § 23.1-06-12. Confidentiality of records.

1. Any record, report, or information obtained under this chapter must be available to the
public. However, upon a showing satisfactory to the department that disclosure to the
public of a part of the record, report, or information, other than emission data, to which

the department has access under this chapter, would divulge trade secrets, the
department shall consider that part of the record, report, or information confidential.
2. This section may not prevent disclosure of any report, or record of information to
federal, state, or local agencies when necessary for purposes of administration of any
federal, state, or local air pollution control laws, or when relevant in any proceeding
under this chapter.
### § 23.1-06-13. Administrative procedure and judicial review.

Any proceeding under this chapter for the issuance or modification of rules and regulations,
including emergency orders relating to control of air pollution, or determining compliance with
rules and regulations of the department, must be conducted in accordance with chapter 28-32.
Appeals from the proceeding may be taken under chapter 28-32. When an emergency exists
requiring immediate action to protect the public health and safety, the department may, without
notice or hearing, issue an order reciting the existence of the emergency and requiring action be
taken as necessary to meet the emergency. Notwithstanding any provision of this chapter, the
order must be effective immediately, but on application to the department an interested person
must be afforded a hearing before the environmental review advisory council within ten days.
On the basis of the hearing, the emergency order must be continued, modified, or revoked
within thirty days after the hearing. Except as provided for in this section, notice of any hearing
held under this chapter must be issued at least thirty days before the date specified for the
hearing.
### § 23.1-06-14. Enforcement - Penalties - Injunctions.

1. A person that 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 the person under this subsection, punishment must be 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. A person that violates this chapter, or any permit condition, rule, order, limitation, or
other applicable requirement implementing this chapter, with criminal negligence, 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. A person that 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 that 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. A person that violates this chapter, or any permit condition, rule, order, limitation, or
other applicable requirement implementing this chapter, is subject to a civil penalty not
to exceed ten thousand dollars per day per violation.
5. Without prior revocation of any pertinent permits, the department, in accordance with
the laws of this state governing injunction or other process, may maintain an action in
the name of the state against any person to enjoin a threatened or continuing violation
of any provision of this chapter or any permit condition, rule, order, limitation, or other
applicable requirement implementing this chapter.
### § 23.1-06-15. 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 person making the odor
complaint was built or established after the agricultural operation was established, the
measurement for compliance with the seven odor concentration units standard must
be taken within one hundred feet [30.48 meters] of the subsequently established
residence, church, school, business, or public building making the complaint rather
than at the property boundary of the agricultural operation. The measurement may not
be taken within five hundred feet [.15 kilometer] of the property boundary of the
agricultural operation.
2. In areas located outside a city or outside the area over which a city has exercised
extraterritorial zoning as defined in section 40-47-01.1, a person may not discharge
into the ambient air any objectionable odorous air contaminant that causes odors that
measure seven odor concentration units or higher as measured at any of the following
locations:
a. Within one hundred feet [30.48 meters] of any residence, church, school,
business, or public building, or within a campground or public park. An odor
measurement may not be taken at the residence of the owner or operator of the
source of the odor, or at any residence, church, school, business, or public
building, or within a campground or public park, that is built or established within
one-half mile [.80 kilometer] of the source of the odor after the source of the odor
has been built or established;
b. At any point located beyond one-half mile [.80 kilometer] from the source of the
odor, except for property owned by the owner or operator of the source of the
odor, or over which the owner or operator of the source of the odor has
purchased an odor easement; or
c. If a county or township has zoned or established a setback distance for an animal
feeding operation which is greater than one-half mile [.80 kilometer] under either
section 11-33-02.1 or 58-03-11.1, or if the setback distance under subsection 7 is
greater than one-half mile [.80 kilometer], measurements for compliance with the
seven odor concentration units standard must be taken at the setback distance
rather than one-half mile [.80 kilometer] from the facility under subdivision b,
except for any residence, church, school, business, public building, park, or
campground within the setback distance which was built or established before the
animal feeding operation was established, unless the animal feeding operation
has obtained an odor easement from the pre-existing facility.
3. An odor measurement may be taken only with a properly maintained scentometer, by
an odor panel, or by another instrument or method approved by the department of
environmental quality, and only by inspectors certified by the department who have
successfully completed a department-sponsored odor certification course and
demonstrated the ability to distinguish various odor samples and concentrations. If a
certified inspector measures a violation of this section, the department may send a
certified letter of apparent noncompliance to the person causing the apparent violation
and may negotiate with the owner or operator for the establishment of an odor
management plan and best management practices to address the apparent violation.
The department shall give the owner or operator at least fifteen days to implement the
odor management plan. If the odor problem persists, the department may proceed with
an enforcement action provided at least two certified inspectors at the same time each
measure a violation and then confirm the violation by a second odor measurement
taken by each certified inspector, at least fifteen minutes, but no more than two hours,
after the first measurement.
4. A person is exempt from this section while spreading or applying animal manure or
other recycled agricultural material to land in accordance with a nutrient management
plan approved by the department of environmental quality. A person is exempt from
this section while spreading or applying animal manure or other recycled agricultural

material to land owned or leased by that person in accordance with rules adopted by
the department. An owner or operator of a lagoon or waste storage pond permitted by
the department is exempt from this section in the spring from the time when the cover
of the permitted lagoon or pond begins to melt until fourteen days after all the ice cover
on the lagoon or pond has completely melted. Notwithstanding these exemptions, all
persons shall manage their property and systems to minimize the impact of odors on
their neighbors.
5. This section does not apply to chemical compounds that can be individually measured
by instruments, other than a scentometer, that have been designed and proven to
measure the individual chemical or chemical compound, such as hydrogen sulfide, to
a reasonable degree of scientific certainty, and for which the department of
environmental quality has established a specific limitation by rule.
6. For purposes of this section:
a. "Business" means a commercial building used primarily to carry on a for-profit or
nonprofit business which is not residential and not used primarily to manufacture
or produce raw materials, products, or agricultural commodities;
b. "Campground" means 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;
c. "Church" means a building owned by a religious organization and used primarily
for religious purposes;
d. "Park" means a park established by the federal government, the state, or a
political subdivision of the state in the manner prescribed by law;
e. "Public building" means a building owned by a county, city, township, school
district, park district, or other unit of local government; the state; or an agency,
industry, institution, board, or department of the state; and
f. "School" means a public school or nonprofit, private school approved by the
superintendent of public instruction.
7. a. In a county or township that does not regulate the nature, scope, or location of an
animal feeding operation under section 11-33-02.1 or section 58-03-11.1, the
department shall require that any new animal feeding operation permitted under
chapter 61-28 be set back from any existing residence, church, school, business,
public building, park, or campground.
(1) If there are fewer than three hundred animal units, there is no minimum
setback requirement.
(2) If there are at least three hundred animal units but no more than one
thousand animal units, the setback for any animal operation is one-half mile
[.80 kilometer].
(3) If there are at least one thousand one animal units but no more than two
thousand animal units, the setback for a hog operation is three-fourths mile
[1.20 kilometers], and the setback for any other animal operation is one-half
mile [.80 kilometer].
(4) If there are at least two thousand one animal units but no more than five
thousand animal units, the setback for a hog operation is one mile [1.60
kilometers], and the setback for any other animal operation is three-fourths
mile [1.20 kilometers].
(5) If there are five thousand one or more animal units, the setback for a hog
operation is one and one-half miles [2.40 kilometers], and the setback for
any other animal operation is one mile [1.60 kilometers].
b. The setbacks set forth in subdivision a do not apply if the owner or operator
applying for the permit obtains an odor easement from the pre-existing use that is
closer.
c. For purposes of this section:
(1) One mature dairy cow, whether milking or dry, equals 1.33 animal units;
(2) One dairy cow, heifer or bull, other than an animal described in paragraph 1
equals 1.0 animal unit;

(3) One weaned beef animal, whether a calf, heifer, steer, or bull, equals
0.75 animal unit;
(4) One cow-calf pair equals 1.0 animal unit;
(5) One swine weighing fifty-five pounds [24.948 kilograms] or more equals
0.4 animal unit;
(6) One weaned 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 weaned lamb equals 0.1 animal unit;
(9) One turkey equals 0.0182 animal unit;
(10) One chicken equals 0.01 animal unit;
(11) One duck or goose equals 0.2 animal unit; and
(12) Any weaned livestock not listed in paragraphs 1 through 11 equals 1.0
animal unit per each one thousand pounds [453.59 kilograms], whether
single or combined animal weight.
d. In a county or township that regulates the nature, scope, or location of an animal
feeding operation under section 11-33-02.1 or 58-03-11.1, an applicant for an
animal feeding operation permit shall submit to the department with the permit
application the zoning determination made by the county or township under
subsection 9 of section 11-33-02.1 or subsection 9 of section 58-03-11.1, unless
the animal feeding operation is in existence by January 1, 2019, and there is no
change in animals or animal units which would result in an increase in the
setbacks provided for in this section. The department may not impose additional
odor setback requirements.
e. An animal feeding operation is not subject to zoning regulations adopted by a
county or township after the date an application for the animal feeding operation
is submitted to the department, provided construction of the animal feeding
operation commences within three years from the date the application is
submitted. Unless there is a change to the location of the proposed animal
feeding operation, this exemption remains in effect if the department requires the
applicant to submit a revised application.
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. A county or township may not regulate or impose restrictions or requirements on
animal feeding operations or other agricultural operations except as permitted under
sections 11-33-02.1 and 58-03-11.1.
### § 23.1-06-16. Implementation of federal regional haze program requirements.

1. Consistent with the federal Clean Air Act [42 U.S.C. 7401 et seq.] and the regulations
adopted under the Clean Air Act, the department shall develop and implement a state
regional haze plan in accordance with this section.
2. The state regional haze plan must include an analysis of the natural and international
causes of visibility impairment.
3. In developing a periodic comprehensive revision of the state implementation plan, the
department shall consider whether additional measures are necessary to make
reasonable progress toward meeting the national goal of visibility improvement, as
required by the federal Clean Air Act [42 U.S.C. 7401 et seq.] and further defined by
the United States environmental protection agency to be natural visibility conditions by
2064. The department may not require controls the department has determined serve
only to increase total costs with little corresponding visibility benefit.
4. If the environmental protection agency disapproves the state regional haze plan, the
department may develop and submit as expeditiously as possible a revised plan to
address the reasons for the disapproval in accordance with the requirements of this
section.
5. Any new control measures mandated by the state regional haze plan are effective only
upon final approval by the environmental protection agency.

6. If federal laws, a federal court, or a final federal agency action renders any control
measures included in the state plan unenforceable by the environmental protection
agency, the requirement to implement the measures may not be enforced under state
law to the same extent the measures are unenforceable under federal law.
