Memorandum of Understanding 

Between 

North Dakota Department of Agriculture and 

U.S. Environmental Protection Agency Region 8 

For Coordination of the Clean Air Act Section 112(r) Joint Implementation 

This Memorandum of Understanding (MOU) is entered into by the North Dakota Department of 

Agriculture (NDDA) and the United States Environmental Protection Agency, Region 8 (EPA). 

The purposes of this MOU are: 

• To promote the identification and coordination of Clean Air Act (CAA) Section 112(r)(7) 

Risk Management Program compliance and enforcement activities pertaining to 

agricultural bulk anhydrous ammonia facilities (NAICS Code 42491) with capacity 

exceeding 10,000 pounds ( 4536 kilograms) that ~e owned or operated by users or vendors 

of anhydrous ammonia ("delegated facilities"); 

• to describe both parties' mutual understanding of compliance responsibilities; and, 

• to avoid replication and duplication of efforts while discharging the parties' respective 

duties. 

This MOU is made under the authority of the CAA sections 103 and 112. 

Whereas: 

• North Dakota has requested delegation of the Risk Management Program from the EPA for 

the facilities described above; 

• CAA Section 112(r)(7) and its implementing regulations in 40 CFR part 68 provide for 

reporting to EPA by facility owners and/or operators, including the submission of "risk 

management plans" (RMPs); 

• chapters 19-20.2 and 19-20.3 of the North Dakota Century Code (NDCC) and Section 113 

of the CAA provide for enforcement and civil penalties for certain actions or omissions; 

• chapter 19-20.3 of the NDCC was recently enacted to provide authority for the NDDA to 

determine compliance with the Risk Management Program requirements set forth in 

Section 112(r) of the CAA and its implementing regulations by conducting inspections of 

facilities, obtaining and reviewing risk management plans, and levying enforcement 

actions when non-compliance is identified, and, 

• the need exists for sharing of information between EPA Region 8 and North Dakota, and 

coordination of compliance, enforcement and outreach activities. 
NDDA and EPA Region 8 agree that on the effective date of this MOU the parties will coordinate 

regarding their joint roles in implementing the Risk Management Program as indicated below: 

I. NDDA 

A. North Dakota intends to inspect regulated agricultural anhydrous ammonia facilities in the 

State and gather all necessary information to verify compliance with the Risk Management 

Program provisions under Section 112(r)(7) of the CAA. 

B. North Dakota intends to expand and develop existing capabilities (resources permitting) in 

order to 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 compJiance 

with and awareness of RMP requirements. 

C. When violations are identified, North Dakota plans to 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 intends to 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. 

D. By November 30 of each year, North Dakota plans to provide EPA Region 8 with an end of 

year report that summarizes North Dakota's RMP regulatory activities for the previous 

federal fiscal year. The report is expected to include information on the number ofRMP 

inspections conducted, number and types of violations identified, notable cases, 

description of the enforcement actions taken, number and description ofRMP compliance 

assistance activities, and other information related to the RMP enforcement program. 

E. North Dakota plans to provide Region 8 with an enforcement targeting scheme at the 

begiJming of each federal fiscal year. The targeting scheme is expected to identify facilities 

scheduled for initial or follow up inspection for the upcoming federal fiscal year and 

priority areas for regulation. North Dakota agrees to work with Region 8 to amend the 

targeting scheme as needed. 

F. North Dakota intends to notify Region 8 of accidents at regulated facilities that cause 

environmental damage, personal injury, property damage, or involve releases of 100 

pounds or more. 

II. EPA Region 8 

A. Region 8 plans to perform state program oversight functions, review the North Dakota end 

of year report, perform periodic audits of North Dakota's inspection reports, and offer 

feedback to North Dakota on North Dakota's RMP regulatory program. 

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B. Region 8 expects to, upon request and resources permitting, make staff available to provide 

technical assistance to North Dakota. This includes working with North Dakota to identify 

training opportunities for North Dakota's RMP inspection staff. 

C. Subject to the availability of appropriated funds and budget priorities, Region 8 expects to 

work with North Dakota to identify and select facilities for joint inspections. These joint 

inspections could cover two scenarios, one involving NDDA inspectors observing EPA 

inspections of non-delegated facilities, and the other involving an EPA inspector observing 

North Dakota inspections of delegated facilities. In either case, the joint inspections allow 

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

cross-training. 

III. Joint Agreements 

A. The parties agree that the costs of all services will be borne by the party providing such. As 

required by the Antideficiency Act, 31 U.S.C. §§ 1341 and 1342, all commitments made by 

EPA in this MOU are subject to the availability of appropriated funds. Nothing in this 

MOU, in and of itself, obligates EPA to expend appropriations or to enter into any contract, 

assistance agreement, interagency agreement, or incur other financial obligations that 

would be inconsistent with Agency budget priorities. Any transaction involving 

reimbursement or contribution of funds between the parties to this MOU will be handled in 

accordance with applicable laws, regulations, and procedures under separate written 

agreements. 

B. Nothing in this agreement should be construed so as to override, supersede, or change the 

provisions of the NDCC concerning the responsibilities of North Dakota, or to override, 

supersede, or change any requirements of the CAA, applicable federal regulations, or 

conditions of the EPA's delegation of the program. 

C. The parties plan to share facility and chemical database information, progress reports, and 

results of inspections to the extent that the information is not confidential. Any confidential 

data shared between the parties will be safeguarded and maintained in accordance with 

existing law. To carry out the joint activities described in the MOU, NDDA may need to 

disclose proprietary information to EPA. For the purposes of EPA's treatment of such 

information, proprietary information is defined as information that an affected business 

claims to be confidential and is not otherwise available to the public. NDDA agrees to 

clearly identify confidential business information disclosed to EPA in writing; and to 

clearly memorialize in writing, within a reasonable time, any confidential information 

initially disclosed orally. EPA agrees not to disclose, copy, reproduce or otherwise make 

available in any form whatsoever to any other person, firm, corporation, partnership, 

association or other entity information designated as proprietary or confidential 

information without consent ofNDDA except as such information may be subject to 

disclosure under the Freedom oflnformation Act (5 U.S.C. 552), and EPA's regulations 40 

C.F .R. Ch. I, Subch. A, Part 2, or as otherwise authorized by law. 

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D. For the purposes of this MOU, each agency agrees to establish a point of contact (POC). 

Each agency expects to provide written notice of its established POC to the other agency 

within twenty days after this MOU becomes effective. 

E. If the delegation is terminated, the MOU will therefore be terminated. This MOU may be 

terminated by either party by providing written notice at least thirty days before the 

termination date, or by mutual written agreement, and is automatically terminated upon the 

enactment of a law which is in conflict with this agreement. The obligations the parties 

agree to in paragraph C regarding treatment of confidential information will continue after 

other provisions of this MOU have been terminated. 

F. Provided both parties have signed this MOU, it will become effective on the effective day 

of approval of the delegation of the Section 112(r) program. If not terminated under 

paragraph E, the MOU will expire 24 months after the effective date. The parties agree to 

meet at least 30 days before the expiration date to discuss the MOU and any concerns 

related to its implementation, and to determine if the MOU should be renewed, amended, 

or allowed to expire. 

G. The POCs, designated by the parties to this MOU, agree to communicate informally on a 

regular basis, but at least on a semi-annual basis, to discuss problems or concerns that may 

rise during the duration of this MOU. Any modifications to this MOU, including renewal, 

will only become valid when made in writing, signed by both parties, and attached to this 

MOU. 

H. North Dakota may refer a case to EPA Region 8 for Agency action and consideration. All 

referrals are expected to be made in writing to the POC with a clear description of the case 

history and regulatory action taken to date. When cases are referred to Region 8, North 

Dakota agrees to provide Region 8 with a copy of the case file along with all supporting 

documentation. 

I. This MOU does not create any right or benefit, substantive or procedural, enforceable by 

law or equity, by persons who are not party to this MOU, against NDDA or the EPA, their 

officers or employees, or any other person. This MOU does not direct or apply to any 

person outside ofNDDA and EPA. 

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IV. Signatures 

STATE OF NORTH DAKOTA: 

Tom Bodine 

Deputy Agriculture Commissioner 

North Dakota Department of Agriculture 

UNITED STATES ENVIRONMENTAL 

PROTE TION AGENCY, REGION 8: 

orew M. Gaydosh 

Assistant Regional Administrator 

Office of Enforcement, Compliance and 

Environmental Justice 

Date: 

Date: ~UG 8 2013 

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