AG Opinion - Demonstration of Adequate Legal Authority to Carry Out Part 70 Requirements
70.4(b)(3)
paragraph
Attorney General Statement Requirement
AG Statement
section
NDCC
NDAC
i
Issue permits and assure compliance with each applicable requirement and requirement of this part by all part 70 sources.
I.
23.1-06.04(1)(f), (h), (l);
23.1-06-09
33.1-15-14-06(4)(a);
33.1-15-14-06(5)(a)(1)
33.1-15-14-06(5)(a)(2)
33.1-15-14-06(6)(b)
ii
Incorporate monitoring, recordkeeping, reporting, and compliance certification requirements into part 70 permits consistent with §70.6.
VI.
23.1-06-04(1)(f), (j), (l)
23.1-06-09
33.1-15-14-06(5)(a)(3)(a)(2), (5)(c)(1) and (5)
iii
Issue permits for a fixed term of 5 years in the case of permits with acid rain provisions and issue all other permits for a period not to exceed 5 years, except for permits issued for solid waste incineration units combusting municipal waste subject to standards under section 129(e) of the Act.
V.
23.1-06-04(1)(l);
23.1-06-09

33.1-15-14-06(5)(a)(2)
iv
Issue permits for solid waste incineration units combusting municipal waste subject to standards under section 129(e) of the Act for a period not to exceed 12 years and review such permits at least every 5 years. No permit for a solid waste incineration unit may be issued by an agency, instrumentality or person that is also responsible, in whole or in part, for the design and construction or operation of the unit.
I.;




III.;


V.
23.1-06.04(1)(f), (h), (l);
23.1-06-09;



23.1-01-01;
see chs. 12.1-12 and 13

23.1-06-04(1)(l);
23.1-06-09

33.1-15-14-06(4)(a);
33.1-15-14-06(5)(a)(1);
33.1-15-14-06(5)(a)(2);
33.1-15-14-06(6)(b);




33.1-15-14-06(5)(a)(2)
v
Incorporate into permits all applicable requirements and requirements of this part.
I.;
VIII.
23.1-06.04(1)(f), (h), (l);
23.1-06-09;

33.1-15-14-06(4)(a);
33.1-15-14-06(5)(a)(1);
33.1-15-14-06(5)(a)(2);
33.1-15-14-06(6)(b);

vi
Terminate, modify, or revoke and reissue permits for cause.
IX.
23.1-06-04(1)(j) and (l);
23.1-06-09
33.1-15-14-06(5)(a)(6)(c)
vii
Enforce permits, permit fee requirements, and the requirement to obtain a permit, as specified in §70.11.
XIV.
23.1-06-14
33.1-15-14-06(9)
viii
Make available to the public any permit application, compliance plan, permit, and monitoring and compliance, certification report pursuant to section 503(e) of the Act, except for information entitled to confidential treatment pursuant to section 114(c) of the Act. The contents of a part 70 permit shall not be entitled to protection under section 115(c) of the Act.
XIII.
23.1-06-12
33.1-15-01-16
ix
Not issue a permit if the Administrator timely objects to its issuance pursuant to §70.8(c) of this part or, if the permit has not already been issued, to §70.8(d) of this part.
XVI.

33.1-15-14-06(7)(c) and (d)
x
Provide an opportunity for judicial review in State court of the final permit action by the applicant, any person who participated in the public participation process provided pursuant to §70.7(h) of this part, and any other person who could obtain judicial review of such actions under State laws.
XIX
23.1-01-11
28-32-42
33.1-15-14-06(8)
xi
Provide that, solely for the purposes of obtaining judicial review in State court for failure to take final action, final permit action shall include the failure of the permitting authority to take final action on an application for a permit, permit renewal, or permit revision within the time specified in the State program. If the State program allows sources to make changes subject to post hoc review [as set forth in §§70.7(e)(2) and (3) of this part], the permitting authority's failure to take final action within 90 days of receipt of an application requesting minor permit modification procedures (or 180 days for modifications subject to group processing requirements) must be subject to judicial review in State court.
XVII.
23.1-06-04(1)(l)
23.1-06-09
33.1-15-14-06(8)
xii
Provide that the opportunity for judicial review described in paragraph (b)(3)(x) of this section shall be the exclusive means for obtaining judicial review of the terms and conditions of permits, and require that such petitions for judicial review must be filed no later than 90 days after the final permit action, or such shorter time as the State shall designate. Notwithstanding the preceding requirement, petitions for judicial review of final permit actions can be filed after the deadline designated by the State, only if they are based solely on grounds arising after the deadline for judicial review. Such petitions shall be filed no later than 90 days after the new grounds for review arise or such shorter time as the State shall designate. If the final permit action being challenged is the permitting authority's failure to take final action, a petition for judicial review may be filed any time before the permitting authority denies the permit or issues the final permit.
XX.
23.1-01-11
28-32-42
33.1-15-14-06(8)
xiii
Ensure that the authority of the State/local permitting Agency is not used to modify the acid rain program requirements.
XXI.
23.1-06-04(1)(l)
33.1-15-21

