COMMISSIONER DOUG GOEHRING

NORTH DAKOTA DEPARTMENT OFAGRICULTURE STATE CAPITOL 600 E. BOULEVARDAVE.

- DEPT.602 BISMARCK, ND 58505-0020 ndda@nd.gov www.agdepartment.com



### Summary ofNorth Dakota'sAnhydrous Ammonia Regulatory Authority and General Components ofa Proposed RMPEnforcementProgram August 1, 2012

Section '112(1) ofthe CAA establishes a framework for formal delegation ofRMPenforcement authority to States when a State's program for implementing and enforcing an accident preventionprogram is at least as stringent as the federal program. According to the February 1998 document, 

### RiskManagementPrograms under CleanAirActSection II2(r) Guidance for ImplementingAgencies, EPA can approve a State'srequest 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 ithas adequate authority and adequate resources to implementthe program, and C. The State's schedule for implementingthe program is sufficiently expeditious. Thepurpose ofthis document is to summarize North Dakota's anhydrous regulatory authority and assert ourpositionthat 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 inan RMP memo ofunderstanding.



### Condition I: The authorities in theStateprogram are adequate to ensurecompliance by

### all sources within theState The North DakotaAgriculture Commissioner is provided regulatory authority over anhydrous ammonia facilities bytwo Chapters oftheNorth 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. 

### ND.C.C. I9-20-2 N.D.C.C. 19-20.2 provides general authority for the Agriculture Commissionerto 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 equipmentto ensure that anhydrous ammoniatanks 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 Opportunity in Employment and Services 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 orprivate premises to inspect equipment and respond to complaints. Ifviolations are found, N.D.C.C. I9-20-2 allows the NDDA to issue cease and desist orders, revoke or suspend facility licenses, and issue civil penalties up to $5,000 perviolation. Persons violating the Chapter are also subjectto criminal penalties and a class A misdemeanor. The authority providedto the NDDA under N.D.C.C. I9-20.2 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 underN.D.C.C. 19-20.2 would also be coveredunder 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 withthe anhydrous ammoniaindustry, and this relationship could be easily expanded to include the risk managementprogram. Please note thatthe threshold tank capacity for regulation under N.D.C.C. 19-20.2 is 6,000 gallons (approximately 30,900 Ibs), while the threshold for regulation under the RMP is 10,000 lbs (approximately 1,941 gallons). This may raise questions aboutNDDA'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 I,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 ofNDDArequested delegated authority for the risk managementprogram. 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, orhandles anhydrous ammonia for agricultural purposes; and b. Is required to comply with the risk managementprogram requirements; 2. Conduct inspections ofany personthat: a. Sells, stores, orhandles anhydrous ammoniafor agricultural purposes; and b. Is required to comply with the risk managementprogram requirements; and 3. Obtain andreviewrisk managementplans 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, orhandles anhydrous ammonia for agricultural purposes; and b. Is required to comply with the risk management program requirements.Page3 N.D.C.C J9-20.3 also provides the Agriculture Commissionerwith enforcement authority when RMP violations are identified. Specifically, the Chapter states thatthe Commissionermay: I. Bring an action to enjoin a violation or a threatened violation; 2. Issue a cease and desist order; and 3. Impose a civil penalty through an administrative hearing in an amount not exceeding tenthousand dollars per day for each violation. North Dakota is confidentthat 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 managementplans 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: TheState demonstrates that it

### has adequate authority andadequate resources to implementtheprogram 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 confidentthat we have adequate resources to implement a successful RMP regulatory program and establish an effective regulatory presence. Our anhydrous ammoniaregulatory program consists offive persons. These are listed in Table I below. Table 1. NDDA staff involvedwith the anhydrous ammonia regulatoryprogram. Title Name Role Pesticide, Feed & Fertilizer Jim Gray General program oversight, budget Director administration Fertilizer Specialist

Inspector Inspector Administrative Assistant SpencerWagner

Darrell Haseleu Eric Delzer Brandy Kiefel Operational program oversight, inspector supervision, case review, facility inspections, outreach Facility inspections, outreach Facility inspection, outreach Administrative support The 20II legislative assembly appropriated two new inspectors to provide for more effective oversight ofthe anhydrous ammonia industry inNorth Dakota. These two inspectors have been hired and are listed in Table I 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 NorthDakota. 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 that

### Page 4 approximately 70 must be inspectedper year; note that there are no restrictions on inspecting those facilities more oftenthan once every five years. Ourplan 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 peryear. In addition, we plan on conducting annual safety and compliance meetings throughout the state each winter when inclement weather prevents stafffrom performing inspections. It is our opinionthat 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 ammoniaregulation and outreach, it is our opinionthat we have ample resources to implement an RMP regulatory program for anhydrous ammonia sources in North Dakota. 

### Condition 3: The State's schedule for implementingtheprogram 

### is sufficiently expeditious NorthDakotais ready to immediately assume the RMP delegated authority. The two new anhydrous ammonia inspectors havebeenhired 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 betweenthe 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 supportthe following provisions be included in a memo of understanding (MOU)betweenthe EPA and NDDA: 

### EOYreports A reporting function would be useful to allowthe NDDA to summarize its RMP regulatory activities for a given time period, discuss program successes and challenges, and identify relevant issues. Similarto what is done with the FIFRAprogram, NDDA would support submission ofan end-of-yearreport to EPA Region 8 atthe end ofeach federal fiscal year. The report should include information onthe number ofRMP inspections conducted, number and description ofRMP compliance assistance activities, types ofviolations identified, notable cases, description ofenforcement actions taken, and other informationrelated 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 ammoniaregulatory authority underN.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 coveredunder the RMP regulation, we would envision conducting RMP inspections and compliance assistance with eachPage5 facility when we conduct the engineering inspection under N.D.C.C. 19-20.2. This would ensure that each facility have an RMP inspection at least once every five years. We would also target non-compliant facilities for repeat inspections to verify compliance. NDDA supports making ourtargeting scheme available to EPA Region 8 atthe beginning ofeach federal fiscal year. EnfOrcement response strategy NDDA envisions using a combination ofcompliance assistance and regulatorypressure to gain compliance withthe RMP provisions ofthe CAA. As with any regulatoryprogram, the regulatory response must be fair and consistent. An enforcementresponse policy will be developed that considers several factors when determining an appropriate penalty. These factors will include suchthings as: a. the willfulness ofthe violation, b. the gravity ofthe violation, includingthe risk to humanhealth orthe environment, c. an entity'sregulatory history, d. the number ofviolations identified, e. the economic benefit gained by the person who allowed orcommittedthe violation, f. the person's level ofcooperationwith regulators, and g. the effectthepenalty will have onthe person's ability to continue in business.

A draft enforcementresponse policy is included with RMP delegationrequest. 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.

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 inNorth Dakota for regulated facilities otherthan agricultural anhydrous ammonia facilities. To allow for cross-training and collaboration, we would welcome periodicjoint inspections with NDDA and EPA inspectors. Thesejointinspections would be voluntary and could covertwo scenarios, 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 eithercase, thejointinspections allowthe inspectors to ask each other questions, observe investigative techniques, and offer constructive feedback. The MOU should include a description ofhowthe agencies will select facilities for jointinspections, and the frequency at whichthosejointinspections may occur. Accidentreporting Accidents may occur atregulated facilities. NDDA will investigate these accidental releases, but also recognizes the need to inform EPA. IfEPA desires NDDA to do so, we would notify Region 8 ofaccidents that cause environmental damage, personal injury, propertydamage, or involve releases of 100 lbs ormore., 

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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 criteriato be used to identify which cases are to be referred.