### 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-astructureState Implementation Plan (SIP) submittal for the Clean Air Act (CAA) Section 11 O(a)(2)(E)(ii). North Carolina commits to revise the 1997 8-hour ozone standard infrastructure SIP to address the requirements for Section 1lO(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 128of 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 eliminatethe interest that constitutesthe 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 ofthe 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 1FAX 919-715-0718 I Internet: www.ncair.org 

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## NorthCarolina 

# flaturally

An Equal OpportunitylAffirrnative Action EmployerMs. 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 Carolinaenacted legislation in 201 1 (Session Law 2011-398)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 relieffrom the decision through judicial review at the Superior Court level. Because of the implications to federalprograms, the law requires OAH to seek approval fiom EPA in how it will administerthe final agency decision authority. OAH missed the legislative deadline of December 3 1,2011 for submitting such a request for approval so it is unknown at this time whether the federal programs will be approved for continued implementationin North Carolina. If the issue is not resolved by June 15,2012, then EPA may consider the federalpermits contested under the unapproved process as void and subjectto 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 decisionsrelated to air quality permits and enforcement orders, including: the North CarolinaAdministrative Code (NCAC) rules that currently delegate air qualitypermitting authorityfiom the EMC to DENR (15ANCAC 02A.0105); state statutes giving enforcement authority for the air qualityprogram 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 ofthe North Carolina State Government Ethics Act (General Statutes, ch. 138A)that relate to Section 128(a)(2)regardingthe disclosure and resolution of any potential conflict of interestby the EMC or the Secretary of DENR and those officials within the Departmentdelegated his authority. The SIP revision may also include materials developedby OAH describing its role, if any, in the final agency decisionprocess. 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 

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If you shouldhave any questionsregarding this SIP revision commitment, please contact Laura Boothe ofmy staff at 

### (9l9)707-872 1.

Sincerely,

Sheila C. Holman

cc: Michael Abraczinskas Laura Boothe Scott Davis Lynorae Benjamin