CO M M I S S I O N E R

DO U G GO E H R I N G

NORTH DAKOTA

DEPARTMENT OF AGRICULTURE

STATE CAPITOL

600 E. BOULEVARD AVE. – DEPT. 602 

BISMARCK, ND 58505-0020

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ndda@nd.gov 

www.agdepartment.com

Revised Summary of North Dakota’s Anhydrous Ammonia Regulatory Authority and 

General Components of a Proposed RMP Enforcement Program 

April 18, 2013 

Section 112(l) of the CAA establishes a framework for formal delegation of RMP 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, Risk Management Programs under Clean Air Act Section 112(r) Guidance for 

Implementing Agencies, 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 of this 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 of the CAA for agricultural anhydrous ammonia sources. The document 

also discusses additional considerations that will be included in an RMP memo of understanding. 

Condition 1: The authorities in the State program 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 of the North Dakota Century Code (N.D.C.C.), namely 

Chapters 19-20.2 and 19-20-3. Copies of each of these 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 of engineering 

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 
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anhydrous ammonia storage tanks and adjoining property lines, residences, places of public 

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. If violations 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) of the CAA. 

First, the federal RMP regulation requires anhydrous ammonia sources of 10,000 pounds or more 

to comply with the RMP provisions. All of the anhydrous ammonia storage facilities licensed 

under N.D.C.C. 19-20.2 would also be covered under Section 112(r) of the CAA, meaning that 

we already have a definitive list of the 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 of agricultural practices, there are no tanks in that size range 

used in agriculture that fall under the authority of the CAA. 

N.D.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 of NDDA 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 of the 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 of 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; and 

3. Obtain and review risk management plans required under 40 Code of Federal 

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. 
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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 penalty 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 of the CAA. The Chapter also provides legal authority for us to access and review risk 

management plans from regulated sources. And, if non-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 and adequate resources to 

implement the program 

The legal authority to enforce the RMP requirements for agricultural anhydrous ammonia 

facilities under the CAA is discussed above. Copies of N.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 of five persons. These are listed in Table 1 below. 

Table 1. NDDA staff involved with the anhydrous ammonia regulatory program. 

Title Name Role 

Pesticide, Feed & Fertilizer 

Director 

Jim Gray General program oversight, budget 

administration 

Fertilizer Specialist Spencer Wagner Operational program oversight, 

inspector supervision, case review, 

facility inspections, outreach 

Inspector Darrell Haseleu Facility inspections, outreach 

Inspector Eric Delzer Facility inspection, outreach

Administrative Assistant Brandy Kiefel Administrative support 

The 2011 legislative assembly appropriated two new inspectors to provide for more effective 

oversight of the 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 of their time on anhydrous ammonia regulation, including the RMP program if and 

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 that 
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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 of the 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 staff from performing inspections. It is our 

opinion that these safety and compliance meetings will be an effective tool in increasing 

awareness of the 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 the program 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 of the RMP program. 

Other considerations 

We recognize the need to ensure a smooth transition between the EPA and NDDA for 

implementation and enforcement of the RMP provisions for agricultural anhydrous ammonia 

sources. We also recognize the need for appropriate oversight of the 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: 

EOY reports

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 of an end-of-year report to EPA Region 8 at the end of each federal fiscal year. The 

report should include information on the number of RMP inspections conducted, number and 

description of RMP compliance assistance activities, types of violations identified, notable cases, 

description of enforcement actions taken, and other information related to the RMP program. 

Targeting scheme

The effectiveness of any 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 of these facilities would also be covered under the RMP 

regulation, we would envision conducting RMP inspections and compliance assistance with each 
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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. 

Upon formal delegation of enforcement 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 in the state and gather 

all necessary information to verify compliance with the RMP provisions under Section 

112(r) of the 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 of the 

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 of the 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 of outreach to increase compliance with and awareness of RMP 

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 of its enforcement 

response policy and will work with EPA to finalize the policy and ensure that it provides 

adequate regulatory pressure to drive compliance. 

Enforcement response strategy

NDDA envisions using a combination of compliance assistance and regulatory pressure to gain 

compliance with the RMP provisions of the 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 of the violation, 

 b. the gravity of the violation, including the risk to human health or the environment, 

 c. an entity’s regulatory history, 

 d. the number of violations identified, 

 e. the economic benefit gained by the person who allowed or committed the violation, 

 f. the person’s level of cooperation 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. 
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Compliance Tracking

Tracking enforcement activities and compliance will be essential to identify compliance trends, 

areas for regulatory focus, and to measure success. Upon delegation of the RMP program, 

NDDA will develop a compliance tracking database to manage data associated with inspections 

and compliance audits. The database will capture key data fields, such as contact information for 

the inspected entity, violations that were identified, our regulatory response, and follow up 

information once violations are corrected. The database will allow the NDDA to search for past 

inspection activities at a given location, identify types of violations across the industry, and allow

for data queries and reporting to identify trends. We envision that the database will have a GIS 

component to allow us to express inspection activities and regulated entities in a map-based 

format to ensure consistent regulatory oversight. 

Joint inspections

NDDA recognizes that EPA Region 8 has expertise and experience in conducting RMP 

inspections. We also recognize that EPA staff members 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 periodic joint 

inspections with NDDA and EPA inspectors. These joint inspections would be voluntary and 

could cover two scenarios, one involving NDDA inspectors observing EPA inspections of nonanhydrous facilities, and the other involving an EPA inspector observing NDDA inspections of 

agricultural anhydrous ammonia facilities. In either case, the joint inspections allow the 

inspectors to ask each other questions, observe investigative techniques, and offer constructive 

feedback. The MOU should include a description of how the agencies will select facilities for 

joint inspections, and the frequency at which those joint inspections may occur. 

Accident reporting

Accidents may occur at regulated facilities. NDDA will investigate these accidental releases, but 

also recognizes the need to inform EPA. If EPA desires NDDA to do so, we would notify 

Region 8 of accidents that cause environmental damage, personal injury, property damage, or 

involve releases of 100 lbs or more. 

Referral process

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 of interest with a regulated facility based on a variety of factors. 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.