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Memorandum ofUnderstanding Between NorthDakotaDepartment ofAgriculture and U.S. Environmental Protection Agency Region 8

For Clean Air Act Section 112(r) Compliance

This Memorandum ofUnderstanding (MOU) is made and entered into byNorth Dakota Department ofAgriculture and the United States Environmental Protection Agency Region 8. Objectives ofthe MOU include the identification and coordination ofthe Section 112(r)(7) Risk Management Program compliance and enforcement activities, as itpertains 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 orvendor ofanhydrous ammonia, as well as describing bothparties' mutual understanding ofcompliance responsibilities. The purpose ofthis MOU is to leverage the expertise ofbothparties, achieve maximumbenefit and efficiency, as well as avoid replication and duplication ofefforts while discharging the parties' respective duties. This MOU is made under the authority ofthe "Clean Air Act," (CAA) and is intended to implement the parties' roles under the Section 112(r) Risk Management Program (RMP) Rule for Prevention ofAccidental Releases ( 40 CFR 68). Whereas, Section 112(r)(7)provides for certainreporting byfacility owners/operators to EPA; and Whereas, Chapters 19-20.2 and 19-20.3 ofthe North Dakota Century Code and Section 113 ofthe CAAprovide for enforcement and civil orcriminal 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 DakotaDepartment ofAgriculture to determine compliance withthe RMP program requirements set forth in Section 112(r) ofthe CAAby conducting inspections of facilities, obtaining andreviewing risk managementplans, and levying enforcement actions when non-compliance is identified, and Whereas, the need exists for sharing ofinformationbetweenEPA Region 8 andNorthDakota, and coordination ofcompliance, enforcement and outreach activities; Therefore, upon formal delegation ofenforcement authority from EPA, it is hereby agreed between North Dakota and EPA Region 8 that the discharge ofthe duties/roles pursuant to the federal and state acts and in support ofNorth Dakota are designated to the respective agencies as indicated below: I. North Dakota Department ofAgriculture A. North Dakota will inspectregulated agricultural anhydrous ammonia facilities in the state and gather all necessary information to verify compliance withthe 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 ofthe 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 ofthe 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 viatelephone and in writing, and perform other forms ofoutreach 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 Dakotawill provideEPA Region 8 with a copy ofits enforcementresponse 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 permittedby law, in any Region 8 112(r)(7) initiatives (resources permitting). F. By November 30 ofeach 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 onthe 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 informationrelated to the RMP enforcement program. G. North Dakota will assume sole responsibility for implementation ofthe 112(r)program for all agricultural anhydrous anunonia facilities under North Dakota'sjurisdiction and levying enforcement actions for those facilities. H. North Dakota will provide Region 8 with an enforcement targeting scheme atthe beginning ofeach 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. IfEPA desires North Dakota to do so, North Dakota will notify Region 8 ofaccidents 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 ofNorth Dakota's inspectionreports, and offerfeedback to North Dakota onNorth Dakota's RMP regulatory program.B. Region 8 will retain full responsibility for implementation ofthe 112(r) program for all North Dakota facilities that are not agricultural ammonia facilities. C. Region 8 will, upon request and resources permitting, make staffavailable to provide technical assistance to NorthDakota. This includes working with North Dakotato identify training opportunities for North Dakota's RMP inspection staff. D. Region 8will workwithNorth Dakotato identify and select facilities forjointinspections. Thesejointinspections could cover two scenarios, one involving NDDA inspectors observing EPA inspections ofnon-anhydrous facilities, and the other involving an EPA inspector observing North Dakota inspections ofagricultural anhydrous ammonia facilities. In either case, thejointinspections allow the inspectors to ask each other questions, observe investigative techniques, and offer cross-training. E. Region 8 will assist North Dakotaindeveloping and finalizing an RMP inspection form. F. Region 8 will inspect facilities under the General Duty Clause provisions found in Section 112(r)(l) ofthe CAA. Specifically, Region 8 will have General Duty Clause inspection authority onprocesses or sources other than agricultural anhydrous ammonia.

III. Joint Agreements A. The parties agree that the costs ofall services will be borne bythe party providing such. B. Nothing inthis agreement should be construed so as to override, supersede, or change the provisions ofthe North Dakota Century Code concerning the responsibilities ofNorth Dakota. C. The parties agree to share facility and chemical data base information, progress reports, and results ofinspections 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 ofthis MOU each agency agrees to establish a point ofcontact (POC). Each agency shall provide written notice ofits 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, orby mutual written agreement, and is automatically terminated upon the enactment ofa law which is inconflict withthis 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 concernsrelatedto its implementation, andto determine ifthe MOU shouldberenewed, amended or terminated. G. The contacts, designated bythe parties to this MOU agree to communicate informally, ona regular basis, but at least on a semi-annual basis to discuss problems orconcerns that may rise during the duration ofthis MOU. Any modifications to this MOU shall only become valid whenreduced to writing, signed by bothparties and attached to this MOU. H. When North Dakotarecognizes a potential conflict ofinterest orhas exhausted all regulatory authority with unsatisfactory compliance, North Dakotamay refer a case EPA Region 8 for Agency action and consideration. All referrals will bemade inwritingto the POC with a clear description ofthe case history, regulatory action taken to date, or a description ofthe potential conflict ofinterest. 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.

IN WITNESS THEREOF:



### U.S. EPA Region 8 

### By:--------- Title:

_________ _ Date:

_________ _ North Dakota Dept of Agriculture 

### By:--------- Title:

_________ _ Date:

_________ _