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UNITED STATES ENV,IRON MENTAL

WASHINGTON. D.C.

PROTECTION AGENCY

20156

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MAR 2 r978

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c€NeF^L COufi:t€L

!,18}lORANDT'M

SUBJECT:

FROM:

TO:

Guidance to states for Meeting conf,lict of fnterest Requiflents o{, S.lZa 

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David, o. 

Deputy General "r.*.1*r)affi<M Counsel . (A-l3O)

Regional Air Directors

conflict The of clean interest Air Act Amendments of Lg77 created, new

state require*i"is iJr uremrers of certain board,s and executive agencies whi.crr iie i; i" incorporated 1928- into state rrnprineniiiio" prans by-august 7, secrion L2g of, ttre ect as *"of.i-il1"ii.1".n". all srps shallr at a ninirnr:n, _requir- that a majority of

or 

the members of any sratt board, ;;-b;dy approving perurirs enforcement ord,ers rrnd,er irr.-a"t-ilpr""ent interest the public and nor d,erivJ Jit "-ii"i'ii"lrrr portion of, rheir i'ncomes from persons srrbject to perm1ts or enforsemenc

agenci.es 

orders - with Arso, all such irembers ina treaas of executive

disclose sirnilar pohTers must be required, io-"a.qr.ately any potential confliets of interest.

attached rhe encl0sed letter and, the suggested, definitions

States ro it are intend,ed, tJ-pt""iil gruidance to the eoncernj.ng. the. possible, giyen fgguirero"iti-oe- SfZe . fnsofar as

suEgested definitions irre di,ffdrences bet!,reen the statutes, the are consisteni-with interest the conflict of regrula$Jns-""a." 

rn view of S3O4 oi-tf,e grVpCA (40 CFR 5124.94). the fact rhar no!f, you may trant T?ny stare regislird;; ir" ,."ri.ns

sussesred definiri.ons to expediti aistrilution of the letter and t6 rhe .il;;;iit.-"'tii.Ti.i,o+itiq".

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the letter severar for issues direct have arisen which are not incruded in corununic"titn-to which you nay need the states r but

corupliance. to r" aware of in counseling states on

Timinq:. section l28.requires ccnr'ffi riJiesr"piJ"iiF;i:!| that all srps include is some question wheti.i gpa elrso"t 7, Ls7s. rhere wiu'tre'prep3Teg regulations ro promurgate by that date fg" "ir-slit." which have nor 3dopted approlabre sip-r",risions ""-i+". nor'rever 

, require adequate The Agency wilr, .""iii"t-'oi rnterest provis in rhe L97g srp ,Jrri"=Gir. ion

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Pernits and enforcelgent ord, by non

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vee4(rtr:'I.ng qUgStiOn

:::ff: Iltl.l.: :3t"?:*1: Fr.ib;;;-enforceable in r

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courts if, rhey aii isJ"ed !i which ;iLlLffi:'ff:"*!,il"li,

absence do of nor meet rhe requ#etd;;; Ji'section r2g. rn rbe Act, t'e Agenc{ Tl-_"p""iiic-irovr"io"-to Eray evenrua*t-t"k"-tt. the contrary in tbe position-that pe*its and eniorcimeni--orae"; such enforceabre. ;""ra1e both approvabre and, --uoweveii-vo" rnighi-w]it- possibilirv thar p"rairi to_ alert- states to the -or enforc.n"rri-oia!"J non-complyins stale board,s^"i!-:!:I"gi;. i"-lo"d by sublect to chalrenge 7 , le7', may be ia, u,a courts. '' I2 rtld, mi

whil e we be ri:::- *" _ :l,rF trevel of strilg:l"v-r"e,lir.A ;.#' Uy-J".tI;" il;uilu l=fi3:i"L:.ffi ;,*

are autrrorized L2g, rhe srares ro laop€ *g". :i"i";;i regrrtarions. states nav wanr some to for sereciion of "oit"ii.:_"9:piiiJ:iuairional provisions

"or.--tt subtnitted by state .or,."r.r"gi""- ttoler of uoaia members fron rists representatives of environmentally i;;il.", by a panel of 60ncernea public groups r or by some similar interest mechanism.

"'r." ffiJ:ng$::S",. ;iit:Yl':-i?:.',r'"i ire-+l ;g;;;-il nesarive rerms.

rf , other problems arise which are not ad,d,ressed, in iFff iBi#;;i . 

it"r;;;";tact Rob.iti-s"ruch or rqr starr

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Model Letter -rom Regional offices to Dcates

Re: Conflict of

. State Boards

Interest Requirements for Certaj.n and Executive Agencies

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The clean Air Act Amendsrents of Lg77 added to the Act

section L28, which sets out neir conflict of interest requirements f,or certain state boards and, executive agencies.

Seetion L2B is somewhat similar ro 5304 (i) (2) (D) of the

Federal firater pollution control Act (FgfpcAr €ls anend,ed,

December 28, L977 ) and is generarly ained at assuring that

decisions to issue pamits or enforcement orders neither be

nor appear to be influenced by the private interests of

individual decision makers

More specifically, Section L2g provid,es that by

Augrust 7, 1979, arr state rnprementation prans (srps) shalr

require that a majority of the members of any state body

issuing pa:mits or enforcement ord,ers und,er the clean Air

A'ct (1) represent the public interest and, (2) not derive any.

significant portion of their incomes from persons subject to

such pomits or ord,ers. In addition, the SIps must require

that all mernbers of such boards and the head,s of executive

agencies with si:uilar powers d,iscl0se any potential conflicts

of interest. Finally, section 12g provides that states may

ad,opt more stringent conflict of interest requirements if

they wish, and that EpA sharr approve any such requirements

if srrbmitted as part of a Sfp.

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' rn many states the composition of state board,s af,fected

by section 128 is determined by statute, and regisrative

action may be required, to comply with the ne,^r reguirenents.

Executive orders nay arso be necessary iJ, some cases. rn

view of the fact that many state regisratures are meeting

nord, EPA is provlding this guidance so that state agencies

and legislatures can begia work irnnediately on any legisla_

tlve or other actions necessary to implenent section l2g.

Attached to trris retter is a set of suggested d,efin_

itions for key phrases appearing in sectj.on l2g. The

suggested definitions are offered, for two purposes: (r) to

assist tlre states in identif,yiog the principar issues that

must be addressed in proposed, srp revisions, and (z) to

suggest provisions that EpA would, view as approvable

elements of a Sfp revision. To the extent possible, the

suggested definitions are consistent with those appearing in

the conflict of interest regurations issued rr,nd,er s3o4 (i) (2)

. (D) of the FT{pcA (40 crn stz 4.94) . Differences berween the

two sets of defi,nitions reflect statutory dif,f erences,

including the more stringent eligibility require'ents of the

water Act and the inciusion of d,isclosure requirements in

the Air Act.

The Agency recogmizes that states have a vari.ety of

procedures and special concerns that may warrant differing

approaches to inplementation of section 12g. Accordingly,

this guidance is not intend,ed, to suggest that all srPs must

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include the suggested definitions verbati-mr or even that

definitions per se must be included in the srps. rn generar,

however, EFA views the substance of the suggested definitions

as representing the ninirnrrm level 0f stringency necessary to

meet the requirenents of Secti,on 12g.

As ind,icated above, any state is free to adopt more

stringent conflict of interest provisions than those

::equired by Section 128. rf you are in doubt as to the

appropriate standards calred, for by your state's particular

scheme, erring on the side of, tigbter rather than looser

controls may avoid, the necessity of srp d,isapproval and, the

imposition of federal requirements that may not be best

suited to the needs of your progrF,n.

rf.you have questions not answered, by this retter,

please do not hesitate to contact

(202-755-0789), Office of the General

quarters in Washington, D.C.

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or Roberta Baruch

Counsel at EpA ilead,-
S rgested Definitions

(a) "Board or body;' includes any individual, agency,

board, r corrmittee 

, council, department, or other state ,

'localr on regional instrr:nrentality authorized to approve

per:nits or enforcement orders r:nder the clean Air Act, in

the first jnstance or on appeal.

(b') "MaJority of members' neans a majority of arr

menbers of a board or body having or sharing authority to

approve pemits or enforcement orders under the clean Air

Act, and, a majority of mernbers making up any panel of fewer

than all rnembers (incruding paners .; a single manher) where

individuar permits or ord,ers are consid,e:ed by such a paner.

(c) "Represent the prrblic interest" means d,oes not

obrn a controrling interest in, have 5* or more of his or

her capital invested in, serve as attorney for, act as

consultant for, serve as officer or director of, or holC

any other official or contractual relationship with any

person subject to Ele:mits or enforcement orders under the

clean'air Act or any trad,e or business assoiiation of which

such a person is a meqrber.

(d) "significant portion of income,, means l0 percent

or more of gross personal income for a calendar year, incruding

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retirement benef,its, consultant fees r BDd stock d,ivid,enCs,

excePt tlrat it shall mean 50 p".."rrfi#TJ""s pdrsonal income

for a calendar year if the recipient is over G0 years of age

and is receiving such portion pursuant, to retirement, pension,

or si-urilar arrangement- For purposes of this section, income

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investnents as to which tlre recipient d,oes not know the

identity of the prj-nary sou:rces of income, shall be considered

part of the recipien't's gross personal income but shall not be

treated, as income d,erived, f,rom persons subject to pe:mits

or enforcement orders under the clean Air Act.

(e) "Persons subject to pomits or enf,orcernent orders

under this Acto includes any individual, corporation,

partnership r or association who holds , is €rn applicant for,

or is sr:bject to any Bermit, or who is or may become srrbject

to any enforcernent order und,er the clean Air Act, exeept

th€It it, does not includ,e (l) €ur ind,ividrial who is or may

becoue subject to an enforeement order sorely by reason of

hi.s or her ownership or operation of a motor vehicrer or (2)

any department or agency of, a state, local r or regional

government.

(f) "potential conflict of interest,' includes (l) any

income from persons sr:bject to permits or enforcement orders

r:nder this Act, and. (2) any interest or relationship that,

would preclude the individual having the interest or

relationship from being considered, one who represents the

public interest.

(g) nAdequately d-isclosed,,, means explained

in a signed written statement prepared, at least

and avaj.lable for public inspection.

in detail

annually

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