### Memorandum ofUnderstanding Between North Dakota Department ofAgriculture and U.S. Environmental Protection Agency Region 8 For Coordination ofthe Clean Air Act Section 112(r) Joint Implementation This Memorandum ofUnderstanding (MOU) is entered into by the North Dakota Department of Agriculture (NDDA) and the United States Environmental Protection Agency, Region 8 (EPA). The purposes ofthis MOU are: • To promote the identification and coordination ofClean 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 ofanhydrous ammonia ("delegated facilities"); • to describe both parties' mutual understanding ofcompliance responsibilities; and, • to avoid replication and duplication ofefforts while discharging the parties' respective duties. This MOU is made under the authority ofthe CAA sections 103 and 112. Whereas:

• North Dakota has requested delegation ofthe 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 ofthe North Dakota Century Code (NDCC) and Section 113 ofthe CAA provide for enforcement and civil penalties for certain actions or omissions; • chapter 19-20.3 ofthe 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) ofthe 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 ofinformation between EPA Region 8 and North Dakota, and coordination ofcompliance, enforcement and outreach activities.NDDA and EPA Region 8 agree that on the effective date ofthis MOU the parties will coordinate regarding theirjoint 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 gatherall necessary information to verify complian ce with the Risk Management Program provisions under Section 112(r)(7) ofthe 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 ofoutreach to increase compJiance with and awareness ofRMP 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 ofits enforcement response policy and will work with EPA to finalize the policy and ensure that it provides adequate regulatory pressure to drive compliance. D
. ByNovember 30 ofeachyear, North Dakotaplans 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 ofviolations identified, notable cases, description ofthe 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 ofeach 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 theNorth Dakota end ofyear report, perform periodic audits ofNorth 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 staffavailable toprovide 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 ofappropriated funds and budget priorities, Region 8 expects to work with North Dakota to identify and select facilities forjoint inspections. Thesejoint inspections could cover two scenarios, one involving NDDA inspectors observing EPA inspections ofnon-delegated facilities, and the other involving an EPA inspector observing North Dakota inspections ofdelegated facilities. In either case, thejoint 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 ofall 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 ofappropriated funds. Nothing in this MOU, in and ofitself, obligates EPA to expend appropria tions orto ent er into any contract, assistance agreement, interagency agreement, or incur other financial obligat ions that would be inconsisten t with Agency budget priorities. Any transaction involving reimbursement or contribution offunds 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 ofthe NDCC concerning the responsibilities ofNorth Dakota, orto override, supersede, orchange any requirements ofthe CAA, applicable federal regulations, or conditions ofthe EPA's delegation ofthe program. C. The parties plan to share facility and chemical database information, progress reports, and results ofinspections 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 thejoint activities described in the MOU, NDDA may need to disclose proprietary information to EPA
. For the purposes ofEPA's treatment ofsuch 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 informa tion 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.
3D. For the purposes ofthis MOU, each agency agrees to establish a point ofcontact (POC). Each agency expects to provide written notice ofits established POC to the other agency within twenty days after this MOU becomes effective. E. Ifthe 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, orby mutual written agreement, and is automatically terminated upon the enactment ofa law which is in conflict with this agreement. The obligations the parties agree to inparagraph C regarding treatment ofconfidential information will continue after other provisions ofthis MOU have been terminated. 

### F
. Provided both parties have signed this MOU, it will become effective onthe effective day ofapproval ofthe delegation ofthe Section 112(r) program. Ifnot terminated under paragraph E, the MOU will expire 24 months after the effective date. Theparties 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 ifthe 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 dura tion ofthis MOU
. Any modifications to this MOU, including renewal, will only become valid when made in writing, signed by bothparties, 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 bemade in writing to the POC with a clear description ofthe 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 ofthe case file along with all supporting documentation. I. This MOU does not create any right or benefit, substantive orprocedural, 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 ofAgricultu re
UNITED STATES ENVIRONMENTAL PROTE TION AGENCY, REGION 8:

orew M. Gaydosh Assistant Regional Administrator Office ofEnforcement, Compliance and

Environmental Justice Date:

Date:**~UG** 

## 8 2013



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