Technical Support Document: 

EPA Evaluation of Arizona Provisions for 

Section 110(a)(2)(E)(ii)/Section 128 

Conflict of Interest Requirements 

Air Division 

U.S. EPA Region 9 

July 2, 2012 
 
For information on this technical support document, please contact: 

Rory Mays 

Office of Air Planning 

U.S. Environmental Protection Agency – Region 9 

75 Hawthorne Street 

San Francisco, California 94105 

(415) 972-3227 

mays.rory@epa.gov

Noah Smith 

Office of Regional Counsel 

U.S. Environmental Protection Agency – Region 9 

75 Hawthorne Street 

San Francisco, California 94105 

(415) 947-4243 

smith.noah@epa.gov
1 

Background

This technical support document (TSD) summarizes the U.S. Environmental Protection Agency’s (EPA) 

review of revisions to the Arizona State Implementation Plan (SIP) submitted by the Arizona 

Department of Environmental Quality (ADEQ) to address the requirements of Clean Air Act (CAA) 

sections 110(a)(2)(E)(ii) and 128 for the 1997 8-Hour Ozone, and 1997 and 2006 PM2.5 National 

Ambient Air Quality Standards (NAAQS). 

CAA Section 128 Requirements

CAA section 110(a)(2)(E)(ii) refers to the requirements of CAA section 128, which addresses potential 

conflicts of interest with respect to boards, bodies and heads of executive agencies that approve permits 

and enforcement orders issued under the CAA. In 1978, EPA issued a guidance memorandum 

recommending ways States could meet the requirements of section 128 (“1978 Guidance”), including 

suggested interpretations of certain terms in section 128.1 EPA has not issued further guidance or 

regulations of general applicability on the subject since that time. However, as part of our proposals on 

other recent infrastructure actions, EPA has proposed certain interpretations of section 128 and invited 

comment on these interpretations. See, e.g., EPA’s proposed rule on infrastructure SIP requirements for 

Hawaii (77 FR 21913, April 12, 2012). We are now proposing these same interpretations in relation to 

the Arizona infrastructure SIP. 

2

Congress added section 128 of the CAA in the 1977 amendments as the result of a conference 

agreement. Titled “State boards,” section 128 provides in relevant part: 

(a) Not later than the date one year after August 7, 1977, each applicable implementation plan 

shall contain requirements that— 

(1) any board or body which approves permits or enforcement orders under [this Act] shall 

have at least a majority of members who represent the public interest and do not derive any 

significant portion of their income from persons subject to permits or enforcement orders 

under [this Act], and 

(2) any potential conflicts of interest by members of such board or body or the head of an 

executive agency with similar powers be adequately disclosed. 

We first note that, in the conference report, the committee stated: “It is the responsibility of each State to 

determine the specific requirements to meet the general requirements of [section 128].”3 We think that 

this legislative history indicates that Congress intended states to have some latitude in the specifics of 

implementing section 128, so long as the implementation is consistent with the plain text of the section. 

We also note that Congress explicitly provided in section 128 that States could adopt more stringent 

requirements. As a result, we propose four important considerations for implementing section 128. 

 

1

See Memorandum from David O. Bickart to Regional Air Directors, “Guidance to States for Meeting Conflict of Interest 

Requirements of Section 128,” Suggested Definitions, March 2, 1978. 

2

If EPA finalizes this action, the proposed interpretations will supersede (to the extent that they are inconsistent with) 

interpretations suggested in the 1978 guidance, at least for Arizona’s SIP.

3 A Legislative History of the Clean Air Act Amendments of 1977, 95th Congress 2d Session, Volume 3 at 526-527 (August 

1978). 
2 

First, section 128 must be implemented through SIP-approved, federally enforceable provisions. Section 

128 explicitly mandates that each SIP “shall contain requirements” that satisfy subsections 128(a)(1) and 

128(a)(2). A mere narrative description of state statutes or rules, or of a state’s current or past practice in 

constituting a board or body and in disclosing potential conflicts of interest, is not a requirement 

contained in the SIP and therefore does not satisfy the plain text of section 128. 

Second, subsection 128(a)(1) applies only to states that have a board or body that is composed of 

multiple individuals and that, among its duties, approves permits or enforcement orders under the CAA. 

It does not apply in states that have no such multi-member board or body, and where instead a single 

head of an agency approves permits or enforcement orders under the CAA. This flows from the text of 

section 128 itself, for two reasons. First, as section 128(a)(1) refers to a majority of members in the 

plural, we think it reasonable to read section 128(a)(1) as not creating any requirements for an individual 

with sole authority for approving a permit or enforcement order under the CAA. Second, subsection 

128(a)(2) explicitly applies to the head of an executive agency with “similar powers” to a board or body 

that approves permits or enforcement orders under the CAA, while subsection 128(a)(1) omits any 

reference to heads of executive agencies. We infer that subsection 128(a)(1) should not apply to heads of 

executive agencies who approve permits or enforcement orders. 

Third, subsection 128(a)(2) applies to all states, regardless of whether the state has a multi-member 

board or body that approves permits or enforcement orders under the CAA. Although the title of section 

128 is “State boards,” the language of section 128(a)(2) explicitly applies where the head of an 

executive agency, rather than a board or body, approves permits or enforcement orders. In instances 

where the head of an executive agency delegates his or her power to approve permits or enforcement 

orders, or where statutory authority to approve permits or enforcement orders is nominally vested in 

another state official, the requirement to disclose adequately potential conflicts of interest still applies. In 

other words, EPA thinks that SIPs for all states, regardless of whether a state board or body approves 

permits or enforcement orders under the CAA, must contain adequate provisions for disclosure of 

potential conflicts of interest. We note that many states have general disclosure provisions, applicable to 

all state employees, that may be adequate, if submitted for adoption into the SIP, to satisfy the 

requirements of subsection 128(a)(2). 

Finally, a state may satisfy the requirements of section 128 by submitting for adoption into the SIP a 

provision of state law that closely tracks or mirrors the language of the applicable provisions of section 

128. A state may do so in two ways. First, the state may adopt the language of subsections 128(a)(1) and 

128(a)(2) verbatim. Under this approach, the state will be able to meet the continuing requirements of 

section 128 without any additional, future SIP revisions, even if the state adds or removes authority, 

either at the state level or local level, to individuals or to boards or bodies to approve permits or 

enforcement orders under the CAA. Second, the state may modify the language of subsections 128(a)(1) 

(if applicable) and 128(a)(2) to name the particular board, body, or individual official with approval 

authority. In this case, if the state subsequently modifies that authority, the state may have to submit a 

corresponding SIP revision to meet the continuing requirements of section 128. While either approach 

would meet the minimum requirements of section 128, we note that the statute explicitly permits states 

to adopt more stringent requirements, for example through providing more detailed definitions of the 

terms in subsections 128(a)(1) and 128(a)(2), such as those suggested in the 1978 guidance 

memorandum. This approach gives states flexibility in implementing section 128, while still ensuring 

consistency with the statute. 
3 

Although they are not binding, both the 1978 Guidance and the interpretations we are currently 

proposing have informed our evaluation of the Arizona SIP in relation to the requirements of section 

128. 

Arizona’s Infrastructure SIP Submittals Addressing CAA Section 110(a)(2)(E)(ii) 

On October 14, 2009, ADEQ submitted the “Arizona State Implementation Plan Revision under Clean 

Air Act Section 110(a)(1) and (2); 2006 PM2.5 NAAQS, 1997 PM2.5 NAAQS and 1997 8-hour Ozone 

NAAQS,” to address all of the CAA section 110(a)(2) requirements for these NAAQS except for section 

110(a)(2)(G)4 (“2009 Infrastructure Submittal”). Section 2.5 of this submittal stated the following with 

respect to section 110(a)(2)(E)(ii): 

Permit approval and enforcement orders are provided by the ADEQ Director and county control 

officers. Arizona law, applicable to “all public officers and employees of incorporated cities or 

towns, of political subdivisions and of the state and any of its departments, commissions, 

agencies, bodies or boards,” contains provisions for adequate disclosure of any conflict of 

interest. To meet the conflict of interest requirements under Section 110(a)(2)(E)(ii), ADEQ is 

currently submitting as a revision to the SIP ARS Title 38, Chapter 3, Article 8, Conflict of 

Interest of Officers and Employees (see Appendix C). 

On June 1, 2012, ADEQ submitted the “Proposed Supplement to the Arizona State Implementation Plan 

under Clean Air Act Section 110(a)(1) and (2): Implementation of [1997 PM2.5 and 8-hour ozone 

NAAQS and 2006 PM2.5 NAAQS], Parallel Processing Version” (“2012 Supplement”). Section 5.5 of 

this submittal stated the following with respect to section 110(a)(2)(E)(ii): 

The purpose of 110 (a)(2)(E)(ii) is to provide necessary assurances that any board which 

approves permits or enforcement orders represents the public interest and any conflict of interest 

by board members or an executive agency head be adequately disclosed. 

Permit approval and enforcement orders are provided by the ADEQ Director and county control 

officers. Arizona law, which is applicable to "all public officers and employees of incorporated 

cities or towns, of political subdivisions and of the state and any of its departments, commissions, 

agencies, bodies or boards," contains provisions for adequate disclosure of any conflict of 

interest. In the October 14, 2009 revision to the SIP, ADEQ submitted ARS Title 38, Chapter 3, 

Article 8, Conflict of Interest of Officers and Employees, in order to meet the conflict of interest 

requirements under Section 110(a)(2)(E)(ii). ADEQ commits to sending the certified copies of 

those statutes with the final submission. 

Relevant sections of Arizona Revised Statutes for State and County Programs: 

38-101 Definitions 

Title 38, Chapter 3, Article 8, Conflict of Interest of Officers and Employees 

 

4

In separate rulemakings, EPA proposed to fully approve Arizona’s SIP to address the requirements regarding air pollution 

emergency episodes in CAA section 110(a)(2)(G) for the 1997 8-hour ozone NAAQS (see 77 FR 21911, April 12, 2012) and 

1997 PM2.5 and 2006 PM2.5 NAAQS (see 77 FR 38239, June 27, 2012). 
4 

Applicability of Section 128 

The first step in our analysis consists of identifying boards, bodies and persons responsible for 

approving permits and enforcement orders and determining the applicability of the section 128 

requirements to these entities. Arizona has four heads of executive agencies that approve permits and 

enforcement orders under the Clean Air Act: the Director of Arizona Department of Environmental 

Quality (ADEQ), and the Control Officer of each of the following three agencies: Maricopa County Air 

Quality Department (AQD), Pima County Department of Environmental Quality (DEQ), and Pinal 

County Air Quality Control District (AQCD). Permit and enforcement order appeals at the state level are 

heard by an administrative law judge in Arizona’s Office of Administrative Hearings, while those at the 

county level are heard by an Air Quality Hearing Board in each respective county (Maricopa, Pima, and 

Pinal). The bases for these authorities and the provisions that govern conflict of interest for each entity 

are described below. The applicability of section 128 to each of these entities is summarized in Table 1. 

Table 1: Applicability of Section 128

Jurisdiction Entity Subject to 128(a)(1) for: Subject to 128(a)(2) for: 

ADEQ Statewide (except 

Maricopa, Pima, and 

Pinal counties) 

ADEQ Director n/a Permits & enforcement orders

Administrative Law Judge, 

Office of Administrative 

Hearings - appeals 

n/a Permits & enforcement orders

Maricopa, Pima, and 

Pinal Counties 

Control Officer n/a Permits & enforcement orders

Air Quality Hearing Board 

in each County – appeals 

Permits & enforcement 

orders 

Permits & enforcement orders

a. State Level 

At the State level, ARS 49-402(A) establishes ADEQ’s original jurisdiction over specific categories of 

“sources, permits, and violations” and, within ADEQ, the Director is granted authority to approve 

permits and enforcement orders. For example, ARS 49-426 establishes the Director’s authority to issue 

permits and ARS 49-461 establishes the Director’s authority to issue abatement orders. The Director’s 

decisions on permits and enforcement orders can be appealed to the state-wide Office of Administrative 

Hearings. See, e.g., ARS 49-422 (for both permits and enforcement orders), ARS 49-428 (for permits), 

and ARS 49-435 (for enforcement orders). Within the Office of Administrative Hearings, an 

administrative law judge will issue a written decision that is sent to the relevant entity (the Director of 

ADEQ in this case), pursuant to ARS 41-1092.08.A. The Director of ADEQ may accept, reject, or 

modify the decision within 30 days, as per ARS 41-1092.08.B. If the Director of ADEQ does not do so, 

then the Office of Administrative Hearings will certify the decision as the final administrative decision, 

as per ARS 41-1092.08(D). 

Thus, for purposes of CAA section 128 at the state level, the Director of ADEQ and the administrative 

law judges of the Office of Administrative Hearings may approve permits and enforcement orders and 

are subject to the requirements of section 128. Because the board membership requirements of section 

128(a)(1) do not apply to the head of an executive agency, the Director of ADEQ and the administrative 

law judges are subject only to the disclosure requirements of section 128(a)(2). 
5 

a. County Level 

For county purposes, ARS 49-107 allows the Director of ADEQ to delegate state authority (including 

the authority to approve permits and enforcement orders) to local environmental agencies. The Director 

of ADEQ has delegated such authority to Maricopa, Pima, and Pinal counties. Notwithstanding this 

delegation, ADEQ retains sole authority to issue permits for certain types of sources, as per ARS 49-

402.A. In carrying out the requirements of ARS 49-473, the Board of Supervisors for each of these 

counties has designated the following agencies, respectively, to serve as the local environmental 

agencies: Maricopa County AQD, Pima County DEQ, and Pinal County AQCD. Within each agency, 

the Control Officer has been granted authority to approve permits and enforcement orders. The Control 

Officer’s decisions on permits and enforcement orders can be appealed to each county’s Air Quality 

Hearing Board. For example, ARS 49-482 establishes the Hearing Board’s authority to “sustain, modify 

or reverse the action of the control officer” with respect to permits and ARS 49-490 establishes the 

Hearing Board’s authority to “affirm or modify the order for abatement” with respect to enforcement 

orders. 

Thus, for purposes of CAA section 128 at the county level, the Control Officers of Maricopa County 

AQD, Pima County DEQ, and Pinal County AQCD, and the Air Quality Hearing Board for each of 

these three counties (Maricopa, Pima, and Pinal) may approve permits and enforcement orders, and are 

therefore subject to the requirements of section 128. The Control Officers are subject only to the 

disclosure requirements of section 128(a)(2), while the hearing boards are subject to both the 

compositional requirements 128(a)(1) and the disclosure requirements of 128(a)(2). 

Evaluation of Provisions Governing Board Membership for CAA Section 128(a)(1) 

The 2009 Infrastructure Submittal and 2012 Supplement did not specifically address the board 

membership requirements of 128(a)(1) with respect to the counties’ appeals boards. However, as 

described in the section above, the only boards in Arizona that approve permits and enforcement orders 

are the Air Quality Hearing Boards in Maricopa, Pima, and Pinal Counties, which may hear permit and 

enforcement order appeals and take actions to sustain, modify, or reverse (for permits) or affirm or 

modify (for enforcement orders) the actions of each county’s respective Control Officer. These boards 

are subject to the board membership requirements of section 128(a)(1). Provisions applicable to the 

Pima County Air Quality Hearing Board would satisfy these requirements, but the relevant local 

regulation has not been submitted for incorporation into the SIP. Provisions applicable to the Air Quality 

Hearing Boards in Maricopa and Pinal counties have narrow deficiencies with respect to interests in 

persons subject to enforcement order. For these respective reasons, Arizona’s SIP does not satisfy the 

section 128(a)(1) board membership requirements. The analysis leading to these conclusions appears 

below. 

i. Representing the Public Interest 

ARS 49-478(B) establishes the compositional requirements of the county Air Quality Hearing Boards, 

namely that they consist of five members and that “[a]t least three members shall not have a substantial 

interest, as defined in section 38-502, in any person required to obtain a permit pursuant to [Title 49, 

Chapter 3 (“Air Quality”), Article 3 (“County Air Pollution Control”)].” It is important to note that 

while this statute explicitly addresses interests in persons required to obtain permits, it does not address 

“substantial interest” with respect to interests in persons subject to enforcement orders. 
6 

Pima County Code 17.04.190 (“Composition”) generally mirrors the language or ARS 49-478 but also 

includes the following requirement in subsection B: “At least a majority of the hearing board members 

shall not individually have a substantial interest in an emission source subject to permits or enforcement 

orders issued pursuant to this title. Substantial interest means any interest other than a remote interest as 

defined in ARS 38-502, paragraph 10.” (emphasis added) Thus, this local regulation extends the 

majority membership requirement of ARS 49-478 to interests in persons subject to enforcement orders. 

However, this regulation has not been submitted for incorporation into the Arizona SIP. 

Maricopa County Air Pollution Control Regulation, Rule 100, Section 108 also mirrors the language of 

ARS 49-478 but its majority membership requirement is limited to substantial interests “in any person 

required to obtain an air pollution permit” (i.e., it does not address persons subject to enforcement 

orders). We have not been able to locate comparable regulations for Pinal County and Arizona’s 2009 

Infrastructure Submittal and 2012 Supplement did not cite any such provision. 

Under ARS Title 38, Chapter 3 (“Conduct of Office”), Article 8 (“Conflict of Interest of Officers and 

Employees”), which ADEQ submitted as a revision to the Arizona SIP, ARS 38-502(11) defines 

“substantial interest” as “any pecuniary or proprietary interest, either direct or indirect, other than a 

remote interest.” Because “substantial interest” is defined in the negative, it requires a careful reading of 

ARS 38-502(10), which defines “remote interest.” 

For instance, ARS 38-502(10)(e) defines one kind of “remote interest” as follows: 

The ownership of less than three per cent of the shares of a corporation for profit, provided the 

total annual income from dividends, including the value of stock dividends, from the corporation 

does not exceed five per cent of the total annual income of such officer or employee and any 

other payments made to him by the corporation do not exceed five per cent of his total annual 

income. 

Thus, ownership of three percent or more of a corporation for profit (with the further caveats) would be 

considered a substantial interest. Similarly, a “remote interest” is also “that of a nonsalaried officer of a 

nonprofit corporation,” as per ARS 38-502(10)(a). So, a salaried officer of a nonprofit corporation 

would be considered to have a substantial interest in that nonprofit corporation. ARS 38-502(10)(j) 

defines “remote interest” for a trade, business, etc. in a sense relative to trades, businesses, etc. as a 

whole: 

That of a member of a trade, business, occupation, profession or class of persons consisting of at 

least ten members which is no greater than the interest of the other members of that trade, 

business, occupation, profession or class of persons. 

This provision suggests that a business or trade should not receive preferential treatment relative to other 

members of that business or trade. While the categories of “remote interests” in the Arizona statute do 

not match word-for-word the suggested definition of “represent the public interest” in our 1978 

Guidance, the Arizona statute does bar a number of interests other than derivation of significant income 

from a party before the board and thus serves the same purpose as the suggested definition in the 1978 

Guidance. 
7 

In sum, the provisions of ARS 38-502, including those discussed above (i.e., addressing ownership in a 

company, salaried leadership in a nonprofit, fairness among entities in a given type of business or trade), 

satisfy the CAA section 128(a)(1) requirement that such boards shall have “a majority of members who 

represent the public interest.” 

ii. Significant Income 

With respect to the CAA section 128(a)(1) requirement that such boards have “a majority of members 

who... do not derive any significant portion of their income from persons subject to permits or 

enforcement orders under [this Act],” ARS 38-502 is also relevant. For instance, as cited above, ARS 

38-502(10)(e) defines a kind of “remote interest” as the ownership of less than three percent of a 

corporation for profit provided that annual income from dividends and any other payments from that 

corporation do not exceed five percent of the board member’s annual income.” Thus, a board member 

owning less than three percent of the corporation would have a “substantial interest” in the corporation if 

he or she derived more than five percent of his or her income from the corporation. And a board member 

having no ownership in a corporation would have a “substantial interest” in the corporation if he or she 

received any income from the corporation. Such income prohibitions with respect to corporations for 

profit are echoed in ARS 38-502(10)(a) for non-profit corporations, as discussed above. 

ARS 38-502(10)(b) and (c) define further “remote interests” as those of a landlord or tenant, or attorney 

of a contracting party, respectively. We do not interpret permits and enforcement orders to be contracts 

between a party and the State or County, so these definitions of “remote interests” fit within the 

significant income requirement of CAA section 128(a)(1). With respect to expense reimbursement, ARS 

38-502(10)(f) would allow a board member to be reimbursed “for his actual and necessary expenses 

incurred in the performance of official duty,” which is an acceptable reimbursement provision. With 

respect to interests with other political subdivisions and their public agencies, ARS 38-502(10)(i) 

establishes another kind of “remote interest” as that of a public officer or employee (or his relative) 

“unless the contract of decision involved would confer a direct economic benefit or detriment upon the 

officer, employee or his relative.” While this subsection discusses interests in public officers or 

employees, EPA’s 1978 guidance suggested a definition of “persons subject to permits or enforcement 

orders” that would exclude “any department or agency of a state, local, or regional government.” Thus, 

to the extent that a board member, or his relative, would receive income from another political 

subdivision of the state, or its agencies, that are subject to permits or enforcement orders, such entities 

would be excluded from the board membership requirements of CAA section 128(a)(1), and are 

therefore permissible. Accordingly, the income prohibitions embodied in ARS 38-502 are a satisfactory 

means of defining “significant income” pursuant to the requirements of CAA section 128(a)(1). 

In conclusion, ARS 49-478 in conjunction with the definitions of “substantial interest” and “remote 

interest” in ARS 38-502, which we propose to approve into the Arizona SIP, satisfy the “public interest” 

and “significant income” requirements of CAA section 128(a)(1), but only with respect to interests in 

persons subject to permits. For enforcement orders, Pima County has a local provision (Code 17.04.190) 

that extends the “substantial interest” requirement of ARS 38-502 to interests in emission sources 

subject to enforcement orders. However, this provision has not been submitted for incorporation into the 

Arizona SIP. We have not found comparable local provisions in Maricopa and Pinal counties to address 

the CAA section 128(a)(1) board membership requirements with respect to interests in persons subject 

to enforcement orders. Nonetheless, Pima County Code 17.04.190 serves as an indication that state law 
8 

may allow Maricopa and Pinal Counties to revise their regulations to extend the existing board 

membership requirements to interests in persons subject to enforcement orders. 

Evaluation of Provisions Governing Disclosure for CAA Section 128(a)(2)

Arizona’s statutes governing disclosure of interests are found in ARS Title 38, Chapter 3, Article 8, 

which ADEQ submitted as a revision to the Arizona SIP. We agree with ADEQ’s assertion that the 

provisions of Article 8 satisfies the disclosure requirements of CAA section 128(a)(2), as explained 

below. 

ARS 38-501(A) addresses the applicability of the conflict of interest provisions in Article 8 and reads as 

follows: 

This article shall apply to all public officers and employees of incorporated cities or towns, of 

political subdivisions and of the state and any of its departments, commissions, agencies, bodies 

or boards. 

ARS 38-502 defines “employee” and “public officer,” respectively, as follows: 

(2) “Employee" means all persons who are not public officers and who are employed on a fulltime, part-time or contract basis by an incorporated city or town, a political subdivision or the 

state or any of its departments, commissions, agencies, bodies or boards for remuneration... 

(8) “Public officer" means all elected and appointed officers of a public agency established by 

charter, ordinance, resolution, state constitution or statute. 

The Director of ADEQ is a public officer of a department of the state since he is an appointed officer of 

a public agency established by state statute. Each administrative law judge of the Office of 

Administrative Hearings is hired by the Director of the Office of Administrative Hearings, as per ARS 

41-1092.01.C.3, and is therefore an employee of a body of the state. Each County’s Air Pollution 

Control Officer (APCO) is a public officer of a political subdivision of the state (a county) and is 

similarly an appointed officer of a public agency established by state statute. Lastly, since the members 

of the Air Quality Hearing Board in each county are appointed by their respective County Board of 

Supervisors, and because the Air Quality Hearing Boards are established by state statute, they too are 

public officers under the definition of Article 8. Thus, the conflict of interest requirements under Article 

8 apply to all those individuals that approve permits and enforcement orders in the first instance or on 

appeal, including the Director of ADEQ, the administrative law judges of the state Office of 

Administrative Hearings, the APCOs of the three relevant counties (Maricopa, Pima, and Pinal), and the 

members of the Air Quality Hearing Boards in each of the three counties. 

ARS 38-503 is the heart of the disclosure provisions in Article 8. In particular, ARS 38-503(B) reads as 

follows: 

Any public officer or employee who has, or whose relative has, a substantial interest in any 

decision of a public agency shall make known such interest in the official records of such public 

agency and shall refrain from participating in any manner as an officer or employee in such 

decision. 
9 

We interpret “any decision of a public agency” to include both permit and enforcement order approvals. 

ARS 38-502(3) defines “make known” as filing a paper or a copy of relevant meeting minutes that fully 

discloses a substantial interest and such filings must be maintained in a special file open to public 

inspection pursuant to ARS 38-509. 

As noted above in our evaluation of Arizona’s provisions for the CAA section 128(a)(1) requirements, 

“substantial interest” is defined in the negative and requires a careful reading of ARS 38-502(10), which 

defines “remote interest.” The disclosure of “a substantial interest in any decision of a public agency” 

covers a wide array of potential conflicts, because “remote interest” is narrowly defined, and Article 8 

applies to all individuals that approve permits and enforcement orders under the CAA. Thus, upon 

Article 8 being approved into the Arizona SIP, the State and counties of Arizona will meet the CAA 

section 128(a)(2) requirement that “any potential conflicts of interest... be adequately disclosed.” 

Conclusions 

We recommend proposing approval of the following provisions from Arizona’s 2009 Infrastructure 

Submittal and 2012 Supplement into the Arizona SIP as they strengthen the SIP and address 128 

requirements: 

• ARS Title 38, Chapter 3, Article 8 (“Conflict of Interest of Officers and Employees”) 

• ARS 49-435 (“Hearings on orders of abatement”) 

• ARS 49-461 (“Violations; order of abatement”) 

• ARS 49-478 (“Hearing board”) 

• ARS 49-482 (“Appeals to hearing board”) 

• ARS 49-490 (“Hearings on orders of abatement”) 

EPA has already proposed approving the following provisions into the Arizona SIP (see 77 FR 38239, 

June 27, 2012): 

• ARS 49-107 (“Local delegation of state authority.”) 

• ARS 49-422 (“Powers and duties”) 

• ARS 49-473 (“Board of supervisors”) 

On the basis of these provisions being incorporated into the SIP, as relied upon in the analysis above, the 

Arizona SIP will meet the board membership requirements of CAA section 128(a)(1) with respect to 

interests in persons subject to permits. However, the Arizona SIP will not meet the board membership 

requirements of section 128(a)(1) with respect to interests in persons subject to enforcement orders, due 

to the narrow deficiencies in the provisions governing the Air Quality Hearing Boards in Maricopa, 

Pima, and Pinal counties. 

By incorporating these provisions into the SIP, particularly by virtue of the applicability and 

requirements of ARS Title 38, Chapter 3, Article 8, the Arizona SIP will meet the disclosure 

requirements of CAA section 128(a)(2). 

For infrastructure SIP purposes for section 110(a)(2)(E)(ii), contingent on the approval of the provisions 

cited above into the Arizona SIP, and due to the narrow deficiencies in the Arizona SIP with respect to 

the Air Quality Hearing Boards in Maricopa, Pima, and Pinal Counties, we propose the following with 
10 

respect to Arizona’s 2009 Infrastructure Submittal and 2012 Supplement for the 1997 ozone, 1997 

PM2.5, and 2006 PM2.5 NAAQS: 

• Approve the ADEQ portion of the SIP as meeting the requirements of section 128(a)(1) and 

128(a)(2), 

• Disapprove the Maricopa, Pima, and Pinal Counties portions of the SIP for the requirements of 

section 128(a)(1), and 

• Approve the Maricopa, Pima, and Pinal Counties portions of the SIP as meeting the requirements 

of section 128(a)(2).