Supplement to North Carolina Certification for

Clean Air Act Section 110(a)(2)(E)(ii) 1 Section 128(a)(2) Requirements for Administrative Law Judges Ju ly 27 , 2015 

### Supplement to

North Carolina Certification for Clean Air Act Section 110(a)(2)(E)(ii)

By

The North Carolina Department of Environment and Natural Resources Division of Air Quality

On February 5, 2013, the North Carolina Division of Air Quality (DAQ) submitted a certification to the U.S. Environmental Protection Agency (EPA) stating that North Carolina has satisfied Clean Air Act Section 110(a)(2)(E)(ii) infr astructure state implementation plan (SIP) requirements for the 1997 8

- hour ozone national ambient air quality standards 1 . The EPA notified the DAQ that additional information is needed to address Section 128(a)(2) requirements for the board or body that makes the final agency decision on contested permit or enforcement actions. Section 128(a)(2) states that any potential conflicts of interest by members of such board or body be adequately disclosed. The purpose of this SIP supplement is to demonstrate t he means by which disclosure requirements are met for the Chief Administrative Law Judge and the administrative law judges of the Office of Administrative Hearings (OAH) that make the final agency decision.

Chapter 7A of the North Carolina General Statu tes (NCGS) contains provisions related to OAH. §7A

- 754 states the following regarding the qualifications, standards of conduct, and removal of OAH law judges:

“The Chief Administrative Law Judge and the administrative law judges shall comply with the
Mode l Code of Judicial Conduct for State Administrative Law Judges, as adopted by the National Conference of Administrative Law Judges, Judicial Division, American Bar Association, (revised August 1998), as amended from time to time, except that the provisions of this section shall control as to the private practice of law in lieu of Canon 4G, and G.S. 126

- 13 shall control as to political activity in lieu of Canon 5.”

We are requesting that the above paragraph be adopted into the North Carolina SIP. The Model Code of
Judicial Conduct referenced in th is portion of the general statue was initially endorsed by the National Conference of Administrative Law Judges in August 1995, and revised later in August 1998. We believe
the ethical standards for administrative law judges contained in this Code of Conduct satisfies Section 128(a)(2) requirements. The full text of NCGS 7A

- 754 and the model code are provided in Attachment A
as reference material.

In conclusion, we believe adequate provisions are in place to assur e compliance with Section 128(a)(2) for Administrative Law Judges.

1 http://ncair.org/planning/cert/

## ATTACHMENT A

REFERENCED NORTH CAROLINA GENERAL STATUTES AND

MODEL CODE OF JUDICIAL CONUDCT FOR STATE ADMINISTRATIVE LAW JUDGES

### Chapter 7A Judicial Department SUBCHAPTER XII. ADMI NISTRATIVE HEARINGS

Article 60
Office of Administrative Hearings

§ 7A

- 754. Qualifications; standards of conduct; removal. Only persons duly authorized to practice law in the General Court of Justice shall be eligible for appointment as the Director and chief administrative law judge or as an administrative law judge in the Office of Administrative Hearings. The Chief Administ rative Law Judge and the administrative law judges shall comply with the Model Code of Judicial Conduct for State Administrative Law Judges, as adopted by the National Conference of Administrative Law Judges, Judicial Division, American Bar Association, (r evised August 1998), as amended from time to time, except that the provisions of this section shall control as to the private practice of law in lieu of Canon 4G, and G.S. 126

- 13 shall control as to political activity in lieu of

Canon 5. Failure to comply with the applicable provisions of the Model Code may constitute just cause for disciplinary action under Chapter 126 of the General Statutes and grounds for removal from office. Neither the chief administrative law judge nor any administrative law judge ma y engage in the private practice of
law as defined in G.S. 84

- 2.1 while in office; violation of this provision shall constitute just cause for disciplinary action under Chapter 126 of the General Statutes and shall be grounds for removal from office.
Each administrative law judge shall take the oaths required by Chapter 11 of the General Statutes. An administrative law judge may be removed from office by the Director of the Office of Administrative Hearings for just cause, as that term is used in G.S. 126

- 3 5 and this section. (1985, c. 746, s. 2; 1985 (Reg. Sess., 1986), c. 1022, s. 6(1), 6(3); 1991, c. 103, s. 1; 2000

- 190, s. 3.)Chapter 126
North Carolina Human Resources Act

Article 5 Political Activity of Employees

§ 126

- 13. Appropriate political ac tivity of State employees defined. (a) As an individual, each State employee retains all the rights and obligations of citizenship provided
in the Constitution and laws of the State of North Carolina and the Constitution and laws of the United

State s of America; however, no State employee subject to the North Carolina Human Resources Act or temporary State employee shall:

(1) Take any active part in managing a campaign, or campaign for political office or otherwise engage in political activity while on duty or within any period of time during which he is expected to perform services for which he receives compensation from the State; (2) Otherwise use the authority of his position, or utilize State funds, supplies or vehicles

to secure su pport for or oppose any candidate, party, or issue in an election involving candidates for office or party nominations, or affect the results thereof. (b) No head of any State department, agency, or institution or other State employee exercising

sup ervisory authority shall make, issue, or enforce any rule or policy the effect of which is to interfere with the right of any State employee as an individual to engage in political activity while not on duty or at times during which he is not performing se rvices for which he receives compensation from the State. A State employee who is or may be expected to perform his duties on a twenty

- four hour per day basis shall not be prevented from engaging in political activity except during regularly scheduled work ing hours or at other times when he is actually performing the duties of his office. The willful violation of this subdivision shall be
a Class 1 misdemeanor. (1967, c. 821, s. 1; 1985, c. 469, s. 1; c. 617, s. 5; 1993, c. 539, s. 930; 1994, Ex. Sess., c. 24, s. 14(c); 2013

- 382, s. 9.1(c).)

## ATTACHMENT B

PUBLIC NOTICE REP ORT, COMME NTS
RECEIVED AND RESPONSES

### (This page intentionally left blank)Public Notice Report, Comments Received and Responses 1

Supplement to North Carolina Certification for Clean Air Act Section 110(a)(2)(E)(ii) Attachment B Section 128(a)(2) Requirements for Administrative Law Judges July 27 , 2015 

## Public Notice Report
For the

Supplement to North Carolina Certification for

Clean A ir Act Section 110(a)(2)(E)(ii )

Introduction

On June 19 , 201 5 , a pre

- hearing version of the “ Supplement to 1997 8

- hour Ozone 110(a) Infrastructure Certification of Element 110(a)(2)(E)(ii) ” was released for public comment. A request for public hearing, in accordance with 40 CFR 51.10 2, and the public comment period

were p osted on the North Caro lina Division of Air Quality ( DAQ) website, as well as being
distributed via email to stak e holder lists managed by the DAQ . The public comment period was open from June 19 , 2015 through July 20 , 2015 . No requests for a public hearing were received. The public comment peri od elicited comments from the United States Environmental Protection Agency (EPA)

.



## Background

See narrative.


## Summary of Public Comment Period

EPA comment: We have complete d our review of the prehearing submittal and offer no
comments at this time.

DAQ response: The DAQ acknowledges this comment. No revisions are required.



## Attachments to Public Notice Report

1) Written comments from R. Scott Davis, Chief of the Air Plann ing and Implementation Branch, EPA , dated June 29 , 201 5

.

3) Public Notice Announcement by the North Carolina Department of Environment and
Natural Resources.