STATE O F N O RTH DAKOTA "-'._
._'I e , 

### OFF ICE OF ATTOR NEY GENERAL

Wayne Stenehjem ATIORNEY GENERAL

Howard Cantor Administrator US EPA, Region 8 1595 Wynkoop Street Denver, CO 80202-1129 ST ATE CAPITOL 600 E B OU LEVARD AVE DEPT 125 B I SMARCK, ND 58505-0040 (701} 328-2210 FAX (70 1 } 328-2226 www.ag.nd.gov
February 26 , 2013

Dear Region Administrator Cantor: NATURAL RESOURCES 500 NORTH 9 TH STREET BISMARC K, ND 5850 1-4509 (701) 328-3640 FAX (70 1) 328-4300

This letter will serve to supplement and amend the correspondence sent to you dated September 11, 2012. The amendments and supplements outli ned herein are meant to answer specific questions and concerns raised thus far in the delegation process . Partial Delegation
. North Dakota Department of Agriculture (NDDA) is hereby amending its request to a partial delegation of the portion of the Clean Air Act Section 112(r)'s risk management program that applies to agricultural anhydrous ammonia facilities. NDDA is requesting a partial delegation , rather than the previously requested full delegation, because NDDA does not have the criminal enforcement authority required by 40 USC 70 .1 (a)(3)(ii) and (iii) , and therefore does not request delegation of any criminal enforcement authority
. Rule Making Authority and Status of proposed Rules
. The NDDA is given broad rule making authority under North Dakota Century Code Chapter 28-32-02 to adopt ru les in conformity with any statute administered or enforced by the agency . NDDA is in the process of adopting ru les to im plement its authority to administer the risk management program for agricultural anhydrous ammonia facilities under NDCC 19-20.3
. The proposed rules have been subjected to a public hearing and are awa iting approval from the Legislature's Administrative Rules Committee
. Revised Proposalg} Satisfaction of 40 C
. F
.R. 63
.95 (b)(3) and (b)(4)
. The Summary of North Dakota 's Anhydrous Ammonia Regulatory Authority and General Components of a Proposed RMP Enforcement Program (" Proposal") has been revised to include a summary of the procedures that NDDA will use for reviewing the RMPs subm itted by sources and how technical advice wi ll be provided to the sources in compliance with 40 C.F. R. 63
.95 (b)(3). TheHoward Cantor February 26 , 2013 Page 2 Summary has also been revised to include the actual form NDDA intends to use to audit sources according to 40 CFR 63.95 (b)(4). Q} Critical Elements removed from MOU and inserted in Proposal. Various components of the proposal that were previously included in an MOU have been r emoved from that document and inserted into NDDA's proposal for delegation of the program. This was done to alleviate concerns that the MOU could be terminated or breached thereby leaving critical elements out of the proposal. Certification. If adopted in substantially the same format as proposed , I hereby certify that the rules, together with North Dakota Century Code Chapter 19-20
.3, would provide adequate civil authority to (1) carry out the "no less stringent" technical requirements submitted by the NDDA , (2) adequately enforce compliance with such program , and (3) regulate, at a minimum , the same chemical accident prevention universe as the Federal program . 

### I also certify, to the best of my knowledge , that the amended and supplemented application submitted by the NDDA is legally accurate. This certification is pursuant to my authority as Assistant Attorney General and in accordance with sections 112(1) and 112(r) of the Clean Air Act, as amended , and 40 C.F.R. Part 68
. The NDDA has enclosed its amended and supplemented application packet, a copy of the relevant statutes, which are lawfully adopted at the time this statement is signed and which will be effective when the program is approved , and a copy of the proposed rules. Please contact me at (701) 328-3646 if you have any questions relating to this certification
.

djc

# zz**~** Ann M. Schaibley

# ~ Assistant Attorney

# Gea

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