§ 23.1-01-04 — Rulemaking authority - Limitations

North Dakota § 23.1-01-04

• Jurisdiction: North Dakota
• Title 23.1: Environmental Quality
• Ch. 23.1-01: Department of Environmental Quality

Text

1. Except as provided in subsection 2, the department of environmental quality may not
adopt any rule for the purpose of the state administering a program under the federal
Clean Air Act [42 U.S.C. 7401 et seq.]; federal Clean Water Act [33 U.S.C. 1251 et
seq.]; federal Safe Drinking Water Act [42 U.S.C. 300 et seq.]; federal Resource
Conservation and Recovery Act [42 U.S.C. 6901 et seq.]; federal Comprehensive
Environmental Response, Compensation, and Liability Act [42 U.S.C. 9601 et seq.];
federal Emergency Planning and Community Right to Know Act of 1986 [42 U.S.C.
11001 et seq.]; federal Toxic Substances Control Act [42 U.S.C. 2601 et seq.]; or
federal Atomic Energy Act of 1954 [42 U.S.C. 2011 et seq.]; which is more stringent
than corresponding federal regulations that address the same circumstances. In
adopting the rules, the department may incorporate by reference corresponding
federal regulations.
2. The department may adopt rules more stringent than corresponding federal
regulations or adopt rules where there are no corresponding federal regulations, for
the purposes described in subsection 1, only if the department makes a written finding
after public comment and hearing and based upon evidence in the record, that
corresponding federal regulations are not adequate to protect the public health and the
environment of the state. Those findings must be supported by an opinion of the
department referring to and evaluating the public health and environmental information
and studies contained in the record which form the basis for the department's
conclusions.
3. If the department, upon petition by any person affected by a rule of the department,
identifies rules more stringent than federal regulations or rules where there are no
corresponding federal regulations, the department shall review and revise those rules
to comply with this section within nine months of the filing of the petition.
4. Any person issued a notice of violation, or a denial of a permit or other approval,
based upon a rule of the department which is more stringent than a corresponding
federal regulation or where there is no corresponding federal regulation, may assert a
partial defense to that notice, or a partial challenge to that denial, on the basis and to
the extent the department's rule violates this section by imposing requirements more
stringent than corresponding federal regulations, unless the more stringent rule of the
department has been adopted in compliance with this section.