§ 23.1-06-07 — Requirements for adoption of air quality rules more strict than federal standards

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
23.1-01-04 which identifies air quality rules or standards affecting coal conversion
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.