North Carolina Department of Environment and Natural Resources 

Division of Air Quality 

Beverly Eaves Perdue Sheila C. Holman 

Governor Director 

Dee Freeman 

Secretary 

January 11,2012 

Gwendolyn Keyes Fleming 

Regional Administrator 

USEPA, Region 4 

Sam Nunn Federal Center 

61 Forsyth Street, S W 

Atlanta, Georgia 30303-8960 

Dear Ms. Fleming: 

This letter is to address the conditional approval for 1997 8-hour ozone standard 

infi-astructure State Implementation Plan (SIP) submittal for the Clean Air Act (CAA) Section 

1 1 O(a)(2)(E)(ii). North Carolina commits to revise the 1997 8-hour ozone standard infrastructure 

SIP to address the requirements for Section 1 lO(a)(2)(E)(ii) regarding State boards under 

Section128 of the CAA. 

The authority to issue permits and administrative enforcement actions resides with the 

North Carolina Department of Environment and Natural Resources (DENR). If a permit or 

enforcement action is formally contested, the parties will go before the North Carolina Office of 

Administrative Hearing (OAH). The OAH decision is brought before the North Carolina 

Environmental Management Commission (EMC) and the EMC makes the final decision before the 

controversy may be appealed to the General Courts of Justice. 

The North Carolina General Statutes (§ 143B-283) define the membership of the EMC and 

direct that 9 of the 13 members appointed by the Governor shall be persons who do not derive any 

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

required by Section 128 of the CAA. However, the statute also allows 6 members to be appointed 

by the NC General Assembly without any restriction. Regardless of the appointment, the members 

selected are subject to North Carolina's State Government Ethics Act (General Statutes, ch. 138A). 

In the State Government Ethics Act, the Ethics Commission reviews each member's Statement of 

Economic Interest and determines whether there is a conflict of interest. Within 30 days of notice 

of the Commission's determination that a public servant has a disqualifying conflict of interest, the 

public servant must eliminate the interest that constitutes the disqualifying conflict of interest or 

resign from the public position. See N.C. Gen. Stat. 5 138A-39. So, although § 143B-283 no longer 

defines a majority of the members appointed as persons who do not derive any significant portion 

of their income from persons subject to permits and enforcement orders, DENR believes that the 

EMC has always met the intent of Section 128 of the CAA through the requirements of the State 

Government Ethics Act. 

1641 Mail Service Center, Raleigh, North Carolina 27699-1641 

217 West Jones Street, Raleigh, NC 27603 

Phone: 919-707-8401 1 FAX 919-715-0718 I Internet: www.ncair.org 

One North Carolina 

flaturally 

An Equal OpportunitylAffirrnative Action Employer 
Ms. Fleming 

January 11,2012 

Page 2 

In addition, changes in administrative law may eliminate the EMC's role in the 

adjudication of permitting and enforcement cases. North Carolina enacted legislation in 201 1 

(Session Law 201 1-398) that will remove final decision authority fiom the EMC for administrative 

cases commenced no later than June 15,2012. Under the new law, OAH - not the EMC - will 

make the final decision and parties may seek relief from the decision through judicial review at the 

Superior Court level. Because of the implications to federal programs, the law requires OAH to 

seek approval fiom EPA in how it will administer the final agency decision authority. OAH 

missed the legislative deadline of December 3 1,201 1 for submitting such a request for approval so 

it is unknown at this time whether the federal programs will be approved for continued 

implementation in North Carolina. If the issue is not resolved by June 15,2012, then EPA may 

consider the federal permits contested under the unapproved process as void and subject to federal 

enforcement. If OAH seeks approval to implement the federal programs, then each Administrative 

Law Judge must meet the federal conflict of interest standards. 

Therefore, the SIP revision will include the State statutes and rules that govern commission 

participation in decisions related to air quality permits and enforcement orders, including: the 

North Carolina Administrative Code (NCAC) rules that currently delegate air quality permitting 

authority fiom the EMC to DENR (15A NCAC 02A.0105); state statutes giving enforcement 

authority for the air quality program to DENR (N.C. Gen. Stat. 5 143-21 5.1 14A); and Session Law 

201 1-398, which will eliminate the EMC's role in issuing final decisions regarding permits and 

edorcement actions for cases commenced no later than June 15,2012. Additionally, theTIP 

revision will include the portions of the North Carolina State Government Ethics Act (General 

Statutes, ch. 138A) that relate to Section 128(a)(2) regarding the disclosure and resolution of any 

potential conflict of interest by the EMC or the Secretary of DENR and those officials within the 

Department delegated his authority. The SIP revision may also include materials developed by 

OAH describing its role, if any, in the final agency decision process. The schedule for the SIP 

revision is as follows: 

SIP revision out for public comment 

Address comments received 

Submit final SIP revision for approval 

By July 20 12 

AugusYSeptember 20 12 

September 20 12 

If you should have any questions regarding this SIP revision commitment, please contact Laura 

Boothe of my staff at (9 l9)707-872 1. 

Sincerely, 

Sheila C. Holman 

cc: Michael Abraczinskas 

Laura Boothe 

Scott Davis 

Lynorae Benjamin