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Memorandum of Understanding 

Between 

North Dakota Department of Agriculture and 

U.S. Environmental Protection Agency Region 8 

For Clean Air Act Section 112(r) Compliance 

This Memorandum of Understanding (MOU) is made and entered into by North Dakota 

Department of Agriculture and the United States Environmental Protection Agency Region 8. 

Objectives of the MOU include the identification and coordination of the Section 112(r)(7) Risk 

Management Program compliance and enforcement activities, as it pertains to a agricultural bulk 

anhydrous ammonia storage facility with a capacity exceeding ten thousand pounds [4536 

kilograms] which is owned or operated by a user or vendor of anhydrous ammonia, as well as 

describing both parties' mutual understanding of compliance responsibilities. The purpose of this 

MOU is to leverage the expertise of both parties, achieve maximum benefit and efficiency, as well 

as avoid replication and duplication of efforts while discharging the parties' respective duties. 

This MOU is made under the authority of the "Clean Air Act," (CAA) and is intended to 

implement the parties' roles under the Section 112(r) Risk Management Program (RMP) Rule for 

Prevention of Accidental Releases ( 40 CFR 68). 

Whereas, Section 112(r)(7) provides for certain reporting by facility owners/operators to EPA; and 

Whereas, Chapters 19-20.2 and 19-20.3 of the North Dakota Century Code and Section 113 of the 

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

Whereas, Chapter 19-20.3 ofthe North Dakota Century Code was recently enacted to provide 

authority for the North Dakota Department of Agriculture to determine compliance with the RMP 

program requirements set forth in Section 112(r) of the CAA by conducting inspections of 

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

non-compliance is identified, and 

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

coordination of compliance, enforcement and outreach activities; 

Therefore, upon formal delegation of enforcement authority from EPA, it is hereby agreed 

between North Dakota and EPA Region 8 that the discharge of the duties/roles pursuant to the 

federal and state acts and in support of North Dakota are designated to the respective agencies as 

indicated below: 

I. North Dakota Department of Agriculture 

A. North Dakota 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) ofthe CAA. 
B. North Dakota will obtain and review risk management plans from regulated entities to 

ensure compliance with RMP provisions of the CAA. North Dakota will also assist 

facilities in developing and implementing risk management plans. 

C. North Dakota, in its sole discretion, will expand and develop existing capabilities 

(resources permitting) 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 ofRMP requirements. 

D. When violations are identified, North Dakota 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. 

E. North Dakota, in its sole discretion, agrees to cooperate, to the extent necessary and 

permitted by law, in any Region 8 112(r)(7) initiatives (resources permitting). 

F. By November 30 of each year, North Dakota will 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 will include information on the number of RMP 

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. 

G. North Dakota will assume sole responsibility for implementation of the 112(r) program for 

all agricultural anhydrous anunonia facilities under North Dakota's jurisdiction and 

levying enforcement actions for those facilities. 

H. North Dakota will provide Region 8 with an enforcement targeting scheme at the 

beginning of each federal fiscal year. The targeting scheme will 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. 

I. If EPA desires North Dakota to do so, North Dakota will notify Region 8 of accidents at 

regulated facilities that cause environmental damage, personal injury, property damage, or 

involve releases of 100 lbs or more. 

II. EPA Region 8 

A. Region 8 will perform state program oversight functions, review the North Dakota end of 

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

to North Dakota on North Dakota's RMP regulatory program. 
B. Region 8 will retain full responsibility for implementation of the 112(r) program for all 

North Dakota facilities that are not agricultural ammonia facilities. 

C. Region 8 will, 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. 

D. Region 8 will 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-anhydrous facilities, and the other involving an EPA 

inspector observing North Dakota 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 cross-training. 

E. Region 8 will assist North Dakota in developing and finalizing an RMP inspection form. 

F. Region 8 will inspect facilities under the General Duty Clause provisions found in Section 

112(r)(l) of the CAA. Specifically, Region 8 will have General Duty Clause inspection 

authority on processes or sources other than agricultural anhydrous ammonia. 

III. Joint Agreements 

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

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

provisions of the North Dakota Century Code concerning the responsibilities of North 

Dakota. 

C. The parties agree to share facility and chemical data base information, progress reports, 

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

confidential data shared between the parties shall be safeguarded and maintained in 

accordance with existing law. 

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

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

twenty days after this MOU becomes effective. 

E. This MOU may be terminated by either party by providing written notice at least thirty 

days prior to 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. 

F. This MOU shall become effective upon the date oflast signing by the parties' 

representatives and shall expire twenty four (24) months thereafter. The parties agree to 

meet at least thirty days prior to 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 

terminated. 

G. The contacts, 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 shall only become 

valid when reduced to writing, signed by both parties and attached to this MOU. 

H. When North Dakota recognizes a potential conflict of interest or has exhausted all 

regulatory authority with unsatisfactory compliance, North Dakota may refer a case EPA 

Region 8 for Agency action and consideration. All referrals will be made in writing to the 

POC with a clear description of the case history, regulatory action taken to date, or a 

description of the potential conflict of interest. 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. 

IN WITNESS THEREOF: 

U.S. EPA Region 8 

By:---------

Title: _________ _ 

Date: _________ _ 

North Dakota Dept of Agriculture 

By:---------

Title: _________ _ 

Date: _________ _