ADEQ

ARK A N S A S

Department of Environmental Quality

January 19,2012

Dear Mr. Donaldson:

RECEIVED - 6POL

AIR PLANNING SEC.

12 JAN 23 PH 2: 55

Per discussions with Mr. Jeff Riley of your staff, the Arkansas Department of

Environmental Quality (ADEQ) understands that EPA is working to approve Arkansas's SIP

submittals dated March 28, 2008, and September 16, 2009, as meeting the requirements of

Section 11O(a)(1) and (2) of the CAA. This letter serves as a supplemental certification for the

purposes of amending and clarifying the State of Arkansas's prior letters of certification

regarding the Clean Air Act Section 11O(a)(1) and (2) requirements for the 1997 ozone and

PM2.5 National Ambient Air Quality Standards (NAAQS).

Section 11O(a)(2)(E)(ii) - CAA Section 128

By letters dated March 28, 2008, and September 16, 2009, the state of Arkansas

addressed the requirements of Section 11O(a)(2)(E)(ii) as being not applicable to Arkansas's

Section 110 infrastructure SIPs, because permit and enforcement orders are issued directly by

ADEQ, not state boards or commissions. The requirements of Section llO(a)(2)(E)(ii), as stated

by the then Arkansas Department of Pollution Control and Ecology (ADPCE) in a May 4, 1982,

rulemaking (47 FR 19135), were applicable to ADEQ (formerly ADPCE) and the Arkansas

Pollution Control and Ecology Commission "APC&EC" or "Commission." EPA has previously

addressed and approved these requirements in Arkansas's original Section 110 infrastructure SIP

at 40 CFR §52.200(c)(18).

Arkansas law, relative to the roles of ADEQ and the Commission, and the makc-up of the

Commission has been thoroughly modified since the above referenced 1982 rulemaking. Smec

1982, Arkansas laws have changed to further separate the powers and duties of the Commission.

Permits and enforcement orders are issued directly by ADEQ, not by state boards or

commissions, The Commission's role in permit and enforcement matters is now as an appellate

body for purposes of reviewing ADEQ's actions. See Arkansas Code Annotated §§ 8-4-104, 8-1-

202, and 8-1-203,

Additional Arkansas law applicable to Section llO(a)(2)(E)(ii) is as follows: (a) under

the APC&EC Regulation 8.202, the Director or the Director's delegate shall issue all permi!s

with nothing in APC&EC Regulation 8 being construed to authorize the Commission [0 issue a

permit, including the power to reverse or affirm a permitting decision by the Director; (b) the

APC&EC Regulation 8, Chapter 4, highlights that the Commission does not playa leading role

in approving enforcement actions; (c) under Arkansas Code Annotated §21-8-IOO1, no member

of a state board or commission or board member of an entity receiving state funds shall

participate in, vote on, influence or attempt to influence an official decision if the member has a

pecuniary interest in the matter under consideration by the board, commission, or entity. In

addition, no member of a state board or commission or board member of an entity receiving S!ale

funds shall participate in any discussion or vote on a rule or regulation that exclusively benefits

the member.

ARKANSAS DEPARTMENT OF ENVIRONMENTAL QUALITY

5301 NORTHSHORE DRIVE / NORTH UTILE ROCK / ARKANSAS 72118·5317 / TELEPHONE 501·682·0744/ FAX 501-682·0880

www.adeq.state.or.us
This c0Tespondence clarifies and certifies that the requirements of Section

llO(a)(2)(E)(ii) were addressed and approved by EPA in a May 4,1982, rulemaking (47 FR

19135). This letter additionally clarifies and certifies that current Arkansas law (as revised since

the 1982 filing), specifically the provisions listed above, satisfies the requirements of Section

IIO(a)(2)(E)(ii) to accommodate the current permit and enforcement order system for Arkansas.

Ozone and PM2.5

By letter dated March 28, 2008, the state of Arkansas, on behalf of ADEQ certified that

its existing SIP for implementation of the 1997 ozone and 2006 PM2.5 NAAQS included all of

the requirements set forth in Section llO(a)(l) and (2) of the CAA. This mention of the 2006

PM2.5 NAAQS is a typographical error; the certification letter for the 2006 PM2.5 NAAQS was

submitted to EPA on September 16, 2009.

This correspondence clarifies and certifies that the State's March 28, 2008, submittal

addresses the 1997 ozone and 1997 PM2.5 NAAQS meeting the requirements of Section

110(a)(l) and (2) of the CAA.

If you have any questions concerning this supplemental certification and clarification,

please contact Mike Bates, Air Division Chief, at (501) 682-0750 or bates@adeq.state.ar.us.

Thank you for your consideration of ADEQ's submission.

Teresa Marks

Director
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8-4-1 04.Arkansas Pollution Control and Ecology Commission - Members.

(a)There is created and established an Arkansas Pollution Control and Ecology Commission.

(b)The Arkansas Pollution Control and Ecology Commission shall be composed ofthirteen (13)

members:

(I)(A)The Governor, by and with the advice and consent ofthe Senate, shall appoint seven (7)

members.

(B)Each congressional district shall be represented on the Arkansas Pollution Control and Ecology

Commission by at least one (I) member, and no district shall have more than two (2) members ofthe

seven (7) appointees.

(C)(i)The Governor shall not appoint a member to represent any specific or special interest group,

organization, or philosophy.

(ii)However, in making appointments to the Arkansas Pollution Control and Ecology Commission, the

Governor shall appoint individuals who have knowledge or expertise in matters within the jurisdiction

ofthe Arkansas Pollution Control and Ecology Commission, including government, business or

industry, agriculture and livestock, forestry, health, ecology, recreation and tourism, and geology.

(D)Each member appointed by the Governor shall be appointed for a term offour (4) years; and

(2)The other six (6) members ofthe Arkansas Pollution Control and Ecology Commission shall be:

(A)The Director ofthe Department of Health or his or her designee; and

(B)(i)The directors ofthe Arkansas State Game and Fish Commission, the Arkansas Forestry

Commission, the Arkansas Natural Resources Commission, the Oil and Gas Commission, and the

Arkansas Geological Survey.

(ii)Any director specified in subdivision (b)(2)(B)(i) ofthis section may designate the agency's deputy

director or assistant director to serve in lieu ofthe director.

(c)Elected city, county, and state officials shall not serve on the Arkansas Pollution Control and

Ecology Commission after the expiration of any current member's term.

(d)In the event ofa vacancy in the membership ofthe Arkansas Pollution Control and Ecology

Commission, the Governor shall appoint a person to fill the vacancy temporarily who shall serve until

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the next meeting ofthe Senate, when some person shall be appointed by the Governor, by and with

the consent and approval ofthe Senate, to serve the remainder ofthe unexpired term,

(e)(I)The chair and vice chair shall be elected annually.

(2)The members ofthe Arkansas Pollution Control and Ecology Commission representing the state

agencies shall not serve as chair or vice chair.

(f)(I)(A)The Arkansas Pollution Control and Ecology Commission shall hold at least four (4) regular

meetings in each calendar year at times and places to be fixed by the Arkansas Pollution Control and

Ecology Commission and such other meetings as may be necessary.

(B)Special meetings may be called at the discretion ofthe chair, and they shall be called by him or her

upon written request oftwo (2) members ofthe Arkansas Pollution Control and Ecology Commission

by delivery ofwritten notice to each member ofthe Arkansas Pollution Control and Ecology

Commission.

(2)Nine (9) members ofthe Arkansas Pollution Control and Ecology Commission shall constitute a

quorum to transact business in both regular and special meetings.

(g)(I )Each member ofthe Arkansas Pollution Control and Ecology Commission representing state

agencies shall receive no additional salary or per diem for services as a member ofthe Arkansas

Pollution Control and Ecology Commission but may receive expense reimbursement in accordance

with § 25-16-901 et seq.

§ 25-16-901 et seq.

History.Acts 1949, No. 472 [Part 1], § 2; 1953, No. 232, § 1; 1959, No. 211, § 1; 1965, No. 183, §

2; 1985, No. 930, § I; A.S.A. 1947, § 82-1903; Acts 1991, No. 744, § 1; 1997, No. 250, § 44; 2001,

No. 318, § 1; 2005, No. 2224, § 1.

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disclaimers

8-l-202.Powers ofthe Director ofthe Arkansas Department of Environmental Quality.

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(a)The executive head ofthe Arkansas Department of Environmental Quality shall be the Director of

the Arkansas Department of Environmental Quality, who shall be appointed by the Governor with the

consent ofthe Senate. The director shall serve at the pleasure ofthe Governor.

(b)(1 )The director shall be the executive officer and active administrator of all pollution control

activities in the state.

(2)As such, the director's duties shall include:

(A)(i)The administration of permitting, licensing, certification, and grants programs deemed necessary

to protect the environmental integrity ofthe state.

(ii)The director, or his or her delegatee within his or her staff, shall serve as the issuing authority for

the state;

(B)(i)Initiation and settlement of civil or administrative enforcement actions to compel compliance

with laws, orders, and regulations charged to the responsibility ofthe department.

(ii)In this regard, the director may propose the assessment of civil penalties as provided by law and

take all actions necessary to collect such penalties;

(C)Issuance of orders in such circumstances that reasonably require emergency measures to be taken

to protect the environment or the public health and safety, except to the extent that the matter

involved is reserved to the jurisdiction or orders ofthe Arkansas Pollution Control and Ecology

Commission for rulemaking procedures in § 8-4-202;

(D)Day-to-day administration of all activities that the department is empowered by law to perform,

including, but not limited to, the employment and supervision ofsuch technical, legal, and

administrative staff, within approved appropriations, as is necessary to carry out the responsibilities

vested with the department;

(E)Providing technical and legal expertise and assistance in the field of environmental protection to

other agencies and subdivisions ofthe state as appropriate;

(F)Day-to-day administration of environmental programs delegated to the State of Arkansas by the

responsible agencies ofthe federal government; and

(G)Any other power or duty specifically vested with the director or department by the General

Assembly.

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History.Acts 1991, No. 1230, § 1; 1993, No. 163, § 6; 1993, No. 165, § 6; 1999, No. 1164, § 8.

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disclaimers

8-1-203 .Powers and responsibilities ofthe Arkansas Pollution Control and Ecology Commission.

(a)The Arkansas Pollution Control and Ecology Commission shall meet regularly in publicly noticed

open meetings to discuss and rule upon matters of environmental concern.

(b)The commission's powers and duties shall be as follows:

(I)(A)Promulgation ofrules and regulations implementing the substantive statutes charged to the

Arkansas Department of Environmental Quality for administration.

(B)In promulgation ofsuch rules and regulations, prior to the submittal to public comment and review

of any rule, regulation, or change to any rule or regulation that is more stringent than the federal

requirements, the commission shall duly consider the economic impact and the environmental benefit

of such rule or regulation on the people ofthe State of Arkansas, including those entities that will be

subject to the regulation.

(C)The commission shall promptly initiate rulemaking proceedings to further implement the analysis

required under subdivision (b)(I)(B) ofthis section.

(D)The extent ofthe analysis required under subdivision (b)(I)(B) ofthis section shall be defmed in

the commission's rulemaking required under subdivision (b)(I)(C) ofthis section. It will include a

written report which shall be available for public review along with the proposed rule in the public

comment period.

(E)Upon completion ofthe public comment period, the commission shall compile a rulemaking record

or response to comments demonstrating a reasoned evaluation ofthe relative impact and benefits of

the more stringent regulation;

(2)Promulgation ofrules, regulations, and procedures not otherwise governed by applicable law that

the commission deems necessary to secure public participation in environmental decision-making

processes;

(3)Promulgation ofrules and regulations governing administrative procedures for challenging or

contesting department actions;

(4)In the case of permitting or grants decisions, providing the right to appeal a permitting or grants

decision rendered by the Director of the Arkansas Department of Environmental Quality or his or her

delegatee;

(5)In the case of an administrative enforcement or emergency action, providing the right to contest

any such action initiated by the director;

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(6)Instruct the director to prepare such reports or perform such studies as will advance the cause of J

environmental protection in the state;

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(7)Make recommendations to the director regarding overall policy and administration ofthe

department. However, the director shall always remain within the plenary authority ofthe Governor;

and

(8)Upon a majority vote, initiate review of any director's decision.

(c)(l)In providing for adjudicatory review as contemplated by subdivisions (b)(4) and (5) ofthis

section, the commission may appoint one (I) or more administrative hearing officers. The

administrative hearing officers shall at all times serve as agents ofthe commission.

(2)In hearings upon appeals of permitting or grants decisions by the director or contested

administrative enforcement or emergency actions initiated by the director, the administrative hearing

officer shall administer the hearing in accordance with procedures adopted by the commission and,

after due deliberation, submit his or her recommended decision to the commission.

(3)(A)(i)Commission review of any appealed or contested matter shall be upon the record compiled by

the administrative hearing officer and his or her recommended decision.

(ii)Commission review shall be de novo. However, no additional evidence need be received unless the

commission so decides in accordance with established administrative procedures.

(B)The commission may afford the opportunity for oral argument to all parties ofthe adjudicatory

hearing.

(C)(i)By the majority vote of a quorum, the commission may affmn, reverse and dismiss, or reverse

and remand to the director.

(ii)If the commission votes to affirm or reverse, such decision shall constitute [mal agency action for

purposes of appeal.

(4)Any party aggrieved by the commission decision may appeal as provided by applicable law.

(d)The chair ofthe Arkansas Pollution Control and Ecology Commission may appoint one (1) or more

committees composed of commission members to act in an advisory capacity to the full commission.

History.Acts 1991, No. 1230, § I; 1993, No. 163, § 7; 1993, No. 165, § 7; 1993, No. 1264, § 2;

1995, No. 117, § I.

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21-8-1001.Conflicts ofinterest.

(a)(I)No member of a state board or commission or board member of an entity receiving state funds

shall participate in, vote on, influence, or attempt to influence an official decision ifthe member has a

pecuniary interest in the matter under consideration by the board, commission, or entity.

(2)A member of a state board or commission or board member of an entity receiving state funds may

participate in, vote on, influence, or attempt to influence an official decision if the only pecuniary

interest that may accrue to the member is incidental to his or her position or accrues to him or her as a

member of a profession, occupation, or large class to no greater extent than the pecuniary interest

could reasonably be foreseen to accrue to all other members ofthe profession, occupation, or large

class.

(b)No member of a state board or commission or board member of an entity receiving state funds shall

participate in any discussion or vote on a rule or regulation that exclusively benefits the member.

History.Acts 1995, No. 1123, § 2; 2001, No. 1244, § 2.

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