COMMISSIONER DOUG GOEHRING NORTH DAKOTA DEPARTMENT OF AGRICULTURE STATE CAPITOL 600 E. BOULEVARD AVE
. - DEPT.602 BISMARCK, ND 58505-0020 ndda@nd.gov www.agdepartment.com



### Revised Summary ofNorth Dakota's Anhydrous Ammonia Regulatory Authority and General Components ofa Proposed RMP Enforcement Program February 25, 2013
Section 11 2(1) ofthe CAA establishes a framework for formal delegation ofRMP enforcement authority to States when a State's program for implementing and enforcing an accident prevention program is at least as stringent as the federal program. According to the February 1998 document, RiskManagement Programs under Clean AirActSection 112(r) Guidance for ImplementingAgencies, EPA can approve a State's request for delegation when: A. The authorities in the State program are adequate to ensure compliance by all sources within the State, 

### B. The State demonstrates that it has adequate authority and adequate resources to implement the program, and C. The State's schedule for implementing the program is sufficiently expeditious. The purpose ofthis document is to summarize North Dakota' s anhydrous regulatory authority and assert our position that we have adequate authority and resources to implement and enforce the RMP provisions ofthe CAA for agricultural anhydrous ammonia sources. The document also discusses additional considerations that will be included in an RMP memo ofunderstanding
. 

### Condition 1: The authorities in theStateprogram are adequate to ensure compliance by

### all sources within the State The North Dakota Agriculture Commissioner is provided regulatory authority over anhydrous ammonia facilities by two Chapters ofthe North Dakota Century Code (N.D.C.C.), namely Chapters 19-20
.2 and 19-20-3
. Copies ofeach ofthese statutes are included with this request. N.D.C.C. 19

-20-2 N
.D.C.C
. 19-20.2 provides general authority for the Agriculture Commissioner to license and regulate anhydrous ammonia storage facilities with a capacity exceeding six thousand gallons and anhydrous ammonia nurse tanks. The Chapter contains a number ofengineering requirements for anhydrous ammonia tanks, valves, fittings, hoses, and other equipment to ensure that anhydrous ammonia tanks and appurtenances are structurally sound and maintained
. The Chapter also includes siting requirements that contain minimum distances between 701-328-2231 FAX 701-328

- 4567 Equal Opportu11ity in Employment and Seruice.r 800-242-7535

### Page2 anhydrous ammonia storage tanks and adjoining property lines, residences, places ofpublic assembly, and institutional residences. N
.D.C.C
. 19-20.2 provides authority for the NDDA enter any public or private premises to inspect equipment and respond to complaints. lfviolations are found, N
.D.C
.C. 19-20

-2 allows the NDDA to issue cease and desist orders, revoke or suspend facility licenses, and issue civil penalties up to $5,000 per violation. Persons violating the Chapter are also subject to criminal penalties and a class A misdemeanor. The authority provided to the NDDA under N.D
.C.C. 19

-20.2 is directly relevant to the RMP requirements for agricultural anhydrous ammonia facilities under Section 112(r) ofthe CAA. First, the federal RMP regulation requires anhydrous ammonia sources of 10,000 pounds or more to comply with the RMP provisions
. All ofthe anhydrous ammonia storage facilities licensed under N.D.C.C
. 19-20.2 would also be covered under Section 112(r) ofthe CAA, meaning that we already have a definitive list ofthe anhydrous sources in the state that need to be regulated under the RMP, including their physical locations. Second, we already have a regulatory relationship with the anhydrous ammonia industry, and this relationship could be easily expanded to include the risk management program. Please note that the threshold tank capacity for regulation under N.D.C
.C. 19

-20
.2 is 6,000 gallons (approximately 30,900 lbs), while the threshold for regulation under the RMP is 10,000 lbs (approximately 1,941 gallons). This may raise questions about NDDA's ability to regulate containers between those two threshold amounts . NDDA would still have authority under the risk management program to regulate those containers from 1,941 gallons to 6,000 gallons. However, based on our knowledge ofagricultural practices, there are no tanks in that size range used in agriculture that fall under the authority ofthe CAA. 

### ND
. C.C. 19-20-3 The second Chapter, N.D.C.C. 19

-20

-3, was enacted by the state legislative assembly in early 2011 in anticipation ofNDDA requested delegated authority for the risk management program. This Chapter gives the Agriculture Commissioner authority to determine compliance with the RMP requirements set forth in Section 112 ofthe CAA [42 U.S.C. 7401 et seq.] by allowing the Commissioner authority to: 1. Request information from any person that: a. Sells, stores, or handles anhydrous ammonia for agricultural purposes; and b
. Is required to comply with the risk management program requirements; 2. Conduct inspections ofany person that: a. Sells, stores, or handles anhydrous ammonia for agricultural purposes; and b. Is required to comply with the risk management program requirements; and 3. Obtain and review risk management plans required under 40 Code ofFederal Regulations, part 68, as amended through June 30, 2011, and other records applicable to any person that: a. Sells, stores, or handles anhydrous ammonia for agricultural purposes; and b
. Is required to comply with the risk management program requirements
.

### Page 3 N.D.C.C 19

-20.3 also provides the Agriculture Commissioner with enforcement authority when RMP violations are identified. Specifically, the Chapter states that the Commissioner may: 1. Bring an action to enjoin a violation or a threatened violation; 2. Issue a cease and desist order; and 3
. Impose a civil pena lty through an administrative hearing in an amount not exceeding ten thousand dollars per day for each violation. North Dakota is confident that the authority provided in N.D.C
.C. 19-20.3 is adequate to allow us to conduct inspections and access records necessary to verify compliance with the RMP provisions ofthe CAA. The Chapter also provides legal authority for us to access and review risk management plans from regulated sources. And, ifnon-compliance is identified, N.D.C.C. 19- 20.3 allows us to levy enforcement actions consistent with federal authority. 

### Condition 2: The State demonstrates that it has adequate authority andadequate resources to implement theprogram The legal authority to enforce the RMP requirements for agricultural anhydrous ammonia facilities under the CAA is discussed above. Copies ofN.D.C.C. 19-20.2 and 19-20
.3 are included with this request. We are confident that we have adequate resources to implement a successful RMP regulatory program and establish an effective regulatory presence. Our anhydrous ammonia regulatory program consists offive persons. These are listed in Table 1 below. Table I. NDDA staffinvolvedwith the anhydrous ammonia regulatoryprogram. Title Name Role Pesticide, Feed & Fertilizer Jim Gray General program oversight, budget Director administration Fertilizer Specialist Spencer Wagner
Inspector Darrell Haseleu Inspector Eric Delzer Administrative Assistant Brandy Kiefel Operational program oversight, inspector supervision, case review, facility inspections, outreach Facility inspections, outreach Facility inspection, outreach Administrative support The 2011 legislative assembly appropriated two new inspectors to provide for more effective oversight ofthe anhydrous ammonia industry in North Dakota
. These two inspectors have been hired and are listed in Table 1 above
. The fertilizer specialist and two inspectors will spend the vast majority oftheir time on anhydrous ammonia regulation, including the RMP program ifand when it is delegated to North Dakota. The division director and administrative assistant will contribute to the program in addition to other duties
. N.D
.C
.C
. 19-20.2 requires that all licensed anhydrous ammonia facilities be inspected at least once every five years. There are currently 368 licensed facilities in the state, meaning thatPage4 approximately 70 must be inspected per year; note that there are no restrictions on inspecting those facilities more often than once every five years. Our plan would be to conduct RMP compliance checks and education with those licensed facilities when we are there conducting inspections for the engineering requirements found in N.D
.C
.C
. 19

-20
.2. Almost all ofthe 368 licensed anhydrous facilities in the state will be subject to RMP requirements. Therefore, we would be able to conduct close to 74 RMP inspections per year. In addition, we plan on conducting annual safety and compliance meetings throughout the state each winter when inclement weather prevents stafffrom performing inspections. Itis our opinion that these safety and compliance meetings will be an effective tool in increasing awareness ofthe RMP requirements and improving compliance
. With three employees devoted almost totally to anhydrous ammonia regulation and outreach, it is our opinion that we have ample resources to implement an RMP regulatory program for anhydrous ammonia sources in North Dakota. Condition 3: The State's schedule for implementing theprogram 

### is sufficiently expeditious North Dakota is ready to immediately assume the RMP delegated authority. The two new anhydrous ammonia inspectors have been hired and are currently on staff. The authority created by N.D.C
.C. 19

-20.3 takes effect immediately upon Agency delegation ofthe RMP program.
Other considerations We recognize the need to ensure a smooth transition between the EPA and NDDA for implementation and enforcement ofthe RMP provisions for agricultural anhydrous ammonia sources. We also recognize the need for appropriate oversight ofthe program by EPA to reassure the Agency and the general public that the NDDA is adequately administering the program. Therefore, we support the following provisions be included in a memo of understanding (MOU) between the EPA and NDDA: EOYreports A reporting function would be useful to allow the NDDA to summarize its RMP regulatory activities for a given time period, discuss program successes and challenges, and identify relevant issues. Similar to what is done with the FIFRA program, NDDA would support submission ofan end-of-year report to EPA Region 8 at the end ofeach federal fiscal year. The report should include information on the number ofRMP inspections conducted, number and description ofRMP compliance assistance activities, types ofviolations identified, notable cases, description ofenforcement actions taken, and other information related to the RMP program. Targeting scheme The effectiveness ofany regulatory program depends on establishing an effective regulatory presence and appropriately allocating resources. Our current anhydrous ammonia regulatory authority under N.D.C.C
. 19-20
.2 requires that each licensed storage facility be inspected at least once every five years. Since almost all ofthese facilities would also be covered under the RMP regulation, we would envision conducting RMP inspections and compliance assistance with each

### Page5 facility when we conduct the engineering inspection underN.D.C.C
. 19

-20.2. This would ensure that each facility have an RMP inspection at least once every five years . Upon formal delegation ofenforcement authority from EPA, the North Dakota Department of Agriculture will implement the RMP inspection/audit program as follows: A. Will inspect regulated agricultural anhydrous ammonia facilities inthe state and gather all necessary information to verify compliance with the RMP provisions under Section 112(r) ofthe CAA. B. Will obtain and review risk management plans from regulated entities, coinciding with the inspection process under A above, to ensure compliance with RMP provisions ofthe CAA. We will also assist facilities in developing and implementing risk management plans. C. Will expand and develop existing capabilities in order to contact and inform affected owners/operators ofthe Section 112(r)(7) program, arrange and/or participate in 112(r)(7) meetings and forums with communities, distribute 112(r)(7) fact sheets and other literature to affected parties, respond to inquiries via telephone and in writing, and perform other forms ofoutreach to increase compliance with and awareness ofRMP requirements. D. When violations are identified, we will take enforcement action consistent with the authority provided by N.D.C.C. 19-20.3 and consistent with its enforcement response policy. North Dakota will provide EPA Region 8 with a copy ofits enforcement response policy and will work with EPA to fmalize the policy and ensure that it provides adequate regulatory pressure to drive compliance. Enforcement response strategy NDDA envisions using a combination ofcompliance assistance and regulatory pressure to gain compliance with the RMP provisions ofthe CAA
. As with any regulatory program, the regulatory response must be fair and consistent. An enforcement response policy will be developed that considers several factors when determining an appropriate penalty. These factors will include such things as: a. the willfulness ofthe violation, b. the gravity ofthe violation, including the risk to human health or the environment, c. an entity's regulatory history, d. the number ofviolations identified, e. the economic benefit gained by the person who allowed or committed the violation, f
. the person's level ofcooperation with regulators, and g. the effect the penalty will have on the person's ability to continue in business. A draft enforcement response policy is included with RMP delegation request. NDDA welcomes the opportunity to work with EPA to finalize the enforcement response policy and develop a framework for regulatory responses that is adequate to drive compliance.

### Page 6

Joint inspections NDDA recognizes that EPA Region 8 has expertise and experience in conducting RMP inspections
. We also recognize that EPA staffmembers will continue conducting RMP inspections in North Dakota for regulated facilities other than agricultural anhydrous ammonia facilities. To allow for cross-training and collaboration, we would welcome periodicjoint inspections with NDDA and EPA inspectors
. Thesejoint inspections would be voluntary and could cover two scenar ios, one involving NDDA inspectors observing EPA inspections ofnonanhydrous facilities, and the other involving an EPA inspector observing NDDA inspections of agricultural anhydrous ammonia facilities. 

### In either case, thejoint inspections allow the inspectors to ask each other questions, observe investigative techniques, and off er constructive feedback. The MOU should include a description ofhow the agencies will select facilities for joint inspections, and the frequency at which thosejoint inspections may occur. Accidentreporting Accidents may occur at regulated facilities. NDDA will investigate these accidental releases, but also recognizes the need to inform EPA. lfEPA desires NDDA to do so, we would notify Region 8 ofaccidents that cause environmental damage, personal injury, property damage, or involve releases of 100 lbs or more.
Referralprocess There may be instances when NDDA fails to bring a regulated facility into compliance, even after exerting its maximum regulatory authority. Or, there may be times in which NDDA identifies a potential conflict ofinterest with a regulated facility based on a variety offactors. 

### In these cases, NDDA would like to have an option available whereby a case could be referred to EPA Region 8 for Agency action and consideration
. The MOU should describe a process for referrals and those criteria to be used to identify which cases are to be referred.