Mr. Karl Brooks Page Two

Thank you for your attention to this matter. If you have any questions regarding this submittal, please contact Wendy Vit, Missouri Department of Natural Resources' Air Pollution Control Program at P.O. Box 176, Jefferson City, MO 65102 or by phone at (573) 751-4817. E-mail inquiries may be forwarded to wendy.vit@dnr.mo.gov.

Sincerely,

AIR POLLUTION CONTROL PROGRAM

# ~r;;~ Director

KLM:jwc

Enclosures: Copy of Plan Copy of commission signature page certifying Missouri Air Conservation
Commission adoption Copies of public hearing notices Copy of public hearing transcript introductory statement Copy of "Summary of Comments & Responses and Recommendation for Adoption"

c: Missouri Air Conservation Commission

## Section 128 Declaration:
Missouri Air Conservation Commission Representation and Conflicts of Interest
Provisions

________________



## A Missouri State Implementation Plan Revision

Adoption July 25, 2012

Division of Environmental Quality Air Pollution Control Program
P.O. Box 176
1659 East Elm Street Jefferson City, Missouri 65101 Telephone (573) 751-4817This document certifies that the State of Missour i, as represented by the Missouri Air Conservation Commission (MACC), complies with Section 128 of the federal Clean Air Act Amendments of 1990 (CAA). Section 128 of the CAA provides that each state implementation plan (SIP) shall contain requirements respecting conflicts of interest and providing for representa tion of the public interest by the applicable state board. Furthermore, this section of the CAA allows st ates to adopt provisions which are more stringent than these requirement s. The State of Missouri hereby pres ents this SIP revision to satisfy these requirements as detailed below.



### 1. MACC Representation

Section 128(a)(1) of the C AA requires that any board or body which approves permits or enforcement orders under the CAA must have at least a majority of members who represent the public inte rest and do not derive any significant portion of their income from persons subject to permits or enforcement orders
under the CAA.

In general, the intent of Section 128, is re flected by Section 643.030 RSMo of the Missouri Air Conservation Law ( http://www.moga.mo.gov/statutes/C643.HTM ):

It is the intent and purpose of th is chapter to maintain purity of the air resources of the state to protect the health, general welfare and physical property of the people...

Section 643.040 RSMo creates the Air Conservation Commission and provides that the commission shall consist of seven (7) members appointed by the gove rnor, with the advice and consent of the senate.

More specifically, 643.040.2 RSMo dire ctly addresses the majority / public interest representation

concerns:

All members shall be representative of the ge neral interest of the public and shall have an interest in and knowledge of ai r conservation and the ef fects and control of air contaminants. At least three of such members shall represent agricultural, industrial and labor interests, respectively. The governor shall not appoint any other person who has a substantial interest as defined in section 105.450 [ http://www.moga.mo.gov/statutes/C100-199/1050000450.HTM ] in any business entity regulated under this chapter or any business entity wh ich would be regulated under this chapter if located in Missouri.

Section 104.450 RSMo is being proffered for inclusi on into the SIP in part 2 of this document. Therefore, to satisfy the requirements of Section 128(a)(1), the State of Missouri hereby presents 643.040.2 RSMo 2011, for incorporation into th e Missouri State Implementation Plan.



### 2. Conflicts of Interest

Section 128(a)(2) of the CAA requi res that “any potential conflicts of interest by members of such board or the head of an executive agency w ith similar powers be adequately disclosed.”

By statute, Missouri is more stri ngent than this requirement by pr oviding for recusal, not merely
disclosure. Per 643.040.2 RSMo–The commission shall establish rules of proce dure which specify when members shall exempt themselves from participating in and voting on issues before the commission due to potential conflict of interest.

The implementation of this statue is reflected in Title 10, Division 10 of the Missouri Code of State Regulations (CSR) regarding the Air Conservation Commission. Fi rst, Section (1) of 10 CSR 10-1.020 Commission Voting and Meeting Procedures ( http://sos.mo.gov/adrules/csr/current/10csr/10c10-1.pdf )
addresses the disclosure of conflicts of interest:

(1) Prior to discussion and/or vote on any rule , variance, appeal or order, all members of the Missouri Air Conservation Commission shall disclose when they – (A) May have a conflict of interest as defined under sections 105.450-105.482 RSMo;

Then Section (2) of this rule goes on to detail the recusal pr ocess required by the statute:

(2) The member shall be excluded from voting on the matter at issue unless such member fully advises the commission of the interest and receive s a determination from the commission that the
interest is not so substantial as to be deemed likely to affect the integrity of the services which the state expects from commission members. Fully ad vises means explains in detail in a signed, written statement available for public inspection.

Similarly, the Missouri Air Conser vation Commission Operation Policies manual ( www.dnr.mo.gov/env/apcp/MACC_Policy.pdf ) states that–

Commissioners will avoid both actual and perceived conflicts of interest in their quasijudicial role and will avoid ex parte contac t with other parties, including department staff, to pending disputes.

If a commissioner publicly takes or expresse s a position on a specific issue, party or permit that later comes before the commission on an appeal, the commissioner will recuse himself on the record from any disc ussion, deliberation, or decision making on the
issue.

The Operations Policies manual also states that “Commissioners shall comply with all applicable statutory requirements regarding conflict of inte rest, including RSMo Chapter 105.” Section 105.452 RSMo outlines prohibited acts by el ected and appointed public offi cials and employees. Section 105.454 RSMo provides additional prohi bited acts (and exceptions) by elected or appointed public officials and employees. ( http://www.moga.mo.gov/STATUTES/C105.HTM )

The conflict of interest provisions of Section 128(a)(2) pertain to heads of applicable executive agencies as well as the commission. Likewise, Chapter 105 RSMo applies not only to the MACC, but to all employees including the head of the executive agency (i.e. the Directors of th e Missouri Department of
Natural Resources and its Air Po llution Control Program) as well. Specifically, 105.452.1(4) & (5) RSMo state that no appointed or elected state official or employee shall –(4) Favorably act on any matter that is so specifically designed so as to provide a special monetary benefit to such official or his spouse or dependent children, including but not limited to increases in retirement benefits, whether received from the state of Missouri or any third party by reason of such act. For the purposes of this subdivision, "special m onetary benefit" means being materially affected in a substantially different manner or degree than the manner or degree in which the public in general will be affe cted or, if the matter affects only a special class of persons, then affected in a substantially diff erent manner or degree than the manner or degree in which such class will be affe cted. In all such matters such o fficials must recuse themselves from acting, except that such official may ac t on increases in compen sation subject to the restrictions of section 13 of article VII of the Mi ssouri Constitution; or

(5) Use his decision-making author ity for the purpose of obtai ning a financial gain which materially enriches himself, his spouse or depe ndent children by acting or refraining from acting for the purpose of coercing or extorting from another anything of actual pecuniary value.

Lastly, the department’s Administ rative Policies and Procedures ma nual states that no department employee should–

...engage in any personal, business, or professional activity or receive or retain any direct or indirect financial interest that places them in a position of co nflict between their private interests and the public interests of the depa rtment related to the duties and re sponsibilities of their jobs.

Thus, the provisions of Section 128(a)(2) are satisfied by 643.040.2 RSM o, the relevant sections of Chapter 105 RSMo and 10 CSR 10-1.020(1)&(2). Pa rt 1 of this document already proffers 643.040.2
RSMo for inclusion into the SIP. Section 105.450 RSMo 2011 defines certain terms and is hereby submitted for incorporation into the Missouri State Implementation Plan only insofar as the terms, defined therein, relate to the other sections of Chapter 105 RSMo that ar e also to be included in to the SIP through this document. In addition, only cer tain Sections of 105.452-105.482 RSMO, referred to in part 2 of this document, are app licable to the MACC, the Director s of the Missouri Department of
Natural Resources & its Air Pollution Contro l Program, and/or to Section 128 of the CAA. Therefore, the State of Missouri hereby pres ents Sections 105.452, 105.454, 105.462, 104.463, 105.466 & 105.472 RSMo 2011, and Sections (1) & (2) of 10 CSR 10-1.020, effective July 30, 1998, fo r incorporation into the Missouri State Implementation Plan.



### 3. Conclusion

Through this revision to the Missouri State Implemen tation Plan, the State meets the requirements of Section 128 of the Clean Air Act, re lating to representation on state boa rds and conflicts of interest by
members of such boards and th e heads of executive agencies.

### Compliant with 643.055 RSMo, the Missouri Air Conservation Commission
has determined that this action is needed to have a U.S. Environmental
Protection Agency approved State Implementation Plan.

The Revision to Section 128 Declaration: Missouri Air Conservation
Commission is hereby adopted by the Missouri Air Conservation
Commission this 25th day of July, 2012.

# rflthll!~1( , Chairman

# ~/**~ ~**  ______ 

# ___ __**(~~I1-L-~** ' Vice Chairman

# ,------=----=,-.~ __ , Member

# wA**---,.<.A=--'----'~"""""'i~\.J-I-)** -+g_c-­

__

# ~~~_-_-_-_ -

___ , lVIember

________________ , Member

________________ , Member

________________ , lVIemberState Plan Actions on Public Notice

- DNR Page 1 of 1

Jay Nixon, Governor Sara Parker Pauley, Director



# Air Pollution Control Program

State Plan Actions

On Public Notice 

### I Proposed for Adoption



### On Public Notice

Notice of Public Hearing

Missouri State Implementation Plan Revision

- Section 128 Declaration: Missouri Air Conservation Commission Representation and Conflicts of Interest Provisions

This plan was developed to demonstrate that the State of Missouri, as represented by the Missouri Air Conservation Commission, complies with Section 128 of the Clean Air Act. Section 128 provides that each
state implementation plan shall contain requirements regarding conflicts of interest and providing for representation of the public interest by the applicable state board. This plan is administrative in nature.

The Missouri Air Conservation Commission will hold a public hearing on Thursday, June 28, 2012 beginning

at 9 a.m. at the Holiday Inn Southwest 

### ft Viking Conference Center, Salon 3, 10709 Watson Road, St. Louis, Missouri. The commission will hear testimony related to the above proposed action.

The Department will accept written or email comments for the record until 5 p.m. on July 5, 2012. Please send written comments to Chief, Air Quality Planning Section, A'ir Pollution Control Program, P.O.
Box 176, Jefferson City, MO 65102-0176. Email comments may be submitted via this web site (below).
All written and email comments and public hearing testimony will be equally considered.

Submit Comments

Back to top

Proposed for Adoption

There are currently no plan actions proposed for adoption.

Back to top

http://www.dnr.mo.gov/env/apcp/stateplanrevisions.htm 5/25/20121 Bechtel, Cheri

From: Bechtel, Cheri Sent: Friday, May 25, 2012 11:15 AM To: Drake, Tiffany Cc: Graf, Wayne Subject: Missouri Air Conservation Commission to hold public hearing on 6/28/2012

Below is a notice for items scheduled for public hearing at the June 28, 2012 Missouri Air Conservation Commission meeting. If you have any questions, please contact Wendy Vit with the Air Pollution Control Program at (573) 751-0572 or wendy.vit@dnr.mo.gov

.

MISSOURI AIR CONSERVATION COMMISSION

WILL HOLD PUBLIC HEARING

JEFFERSON CITY, MO ‐‐ The Missouri Air Conservation Commission will hold a public hearing on Thursday,

June 28, 2012 beginning at 9 a.m. at the Holiday Inn Southwest & Viking Conference Center, Salon 3, 10709

Watson Road, St. Louis, Missouri. The commission will hear testimony related to the following proposed

action:

* Missouri State Implementation Plan Revision ‐ Section 128 Declaration: Missouri Air Conservation

Commission Representation and Conflicts of Interest Provisions

If the Commission adopts this action, it will be the Department’s intention to submit it to the U.S.
Environmental Protection Agency to be included in Missouri’s State Implementation Plan unless otherwise
noted above.

Documents for the above item will be available for review at the Missouri Department of Natural Resources,
Air Pollution Control Program, 1659 Elm Street, Jefferson City, (573) 751

‐ 4817 and in the Public Notices
section of the program web site http://dnr.mo.gov/env/apcp/public

‐ notices.htm

. This information will be
available at least 30 days prior to the public hearing date.

The Department will accept written or email comments for the record until 5 p.m. on July 5, 2012. Please
send written comments to Chief, Air Quality Planning Section, Air Pollution Control Program, P.O. Box 176,
Jefferson City, MO 65102

‐ 0176. Email comments may be submitted via the program web site noted
above. All written and email comments and public hearing testimony will be equally considered.

Citizens wishing to speak at the public hearing should notify the secretary to the Missouri Air Conservation Commission, Missouri Department of Natural Resources, Air Pollution Control Program, P.O. Box 176,
Jefferson City, Missouri 65102

‐ 0176, or telephone (573) 526

‐ 3420. The Department requests persons intending to give verbal presentations also provide a written copy of their testimony to the commission
secretary at the time of the public hearing.

Persons with disabilities requiring special services or accommodations to attend the meeting can make
arrangements by calling the Program directly at (573) 751

‐ 4817, the Division of Environmental Quality's toll
free number at (800) 361

‐ 4827, or by writing two weeks in advance of the meeting to: Missouri Department of Natural Resources, Air Conservation Commission Secretary, P.O. Box 176, Jefferson City,
MO 65102. Hearing impaired persons may contact the program through Relay Missouri, (800) 735

‐ 2966.

Thank you,2 

## Cheri Bechtel

Air Pollution Control Program
573-751-8308 cheri.bechtel@dnr.mo.gov

### PUBLIC HEARING 6/28/2012

www.midwestlitigation.com Phone: 1.800.280.3376 Fax: 314.644.1334 MIDWEST LITIGATION SERVICES Page 1

BEFORE THE AIR CONSERVATION COMMISSION
STATE OF MISSOURI

JUNE 28, 2012

MISSOURI AIR CONSERVATION COMMISSION
PUBLIC HEARING Holiday Inn Southwest & Viking Conference Center
Salon 3

10709 Watson Road

St. Louis, MO 63127

June 28, 2012

9:00 a.m.

BEFORE:

David Zimmerman, Chairman

Mark Garnett

Ron Boyer

Jack Baker

(Starting time of the public hearing: 9:39 a.m.)

The Court Reporter:

Suzanne Zes

Midwest Litigation Services

711 North Eleventh Street

St. Louis, MO 63101

314.644.2191

314.644.1334

### PUBLIC HEARING 6/28/2012

www.midwestlitigation.com Phone: 1.800.280.3376 Fax: 314.644.1334 

### MIDWEST LITIGATION SERVICES Page 2

1 P R O C E E D I N G S

2 CHAIRMAN ZIMMERMAN: I will now call the

3 public hearing to order. Let the record show the

4 following Commissioners are present: David Zimmerman,

5 Ron Boyer, Jack Baker, Mark Garnett.

6 The Air Conservation Commission of the State

7 of Missouri has called this public hearing pursuant to

8 Section 643.070 Revised Statutes of Missouri, EPA

9 promulgated rule 40CFR 51.102 for the purpose of

10 hearing testimony relating to the Missouri State

11 Implementation Plan Revision, Section 128 Declaration,

12 Missouri Air Conservation Commission Representation

13 and Conflicts of Interest Provisions.

14 The hearing record will close at 5 p.m. on

15 July 5th, 2012. Anyone who has not been scheduled to

16 appear but who wishes to be heard should indicate that

17 you wish to speak on the sign-in sheets available at

18 the door.

19 Section 643.100 of the Missouri Statutes

20 provides that all oral testimony be given under oath.

21 Accordingly, when you are called to testify, please

22 present yourself to the court reporter first to be

23 sworn in. When you testify, please state your name,

24 business address and your occupation or affiliation.

25 If have you a prepared statement, it will helpful if

### PUBLIC HEARING 6/28/2012

www.midwestlitigation.com Phone: 1.800.280.3376 Fax: 314.644.1334 

### MIDWEST LITIGATION SERVICES Page 3

1 you will provide a copy to the staff director, court

2 reporter and members of the Commission. Ms. Kyra

3 Moore.

4 (MS. MOORE WAS SWORN.)

5 MS. MOORE: Chairman, members of Commission,

6 my name is Kyra Moore. I am the Director of the Air

7 Pollution Control Program within the Department of

8 Natural Resources for the Air Conservation Commission.

9 I work at 1659 East Elm Street in Jefferson City,

10 Missouri. The Air Program posted the proposed State

11 Implementation Plan for public review and comment on

12 the Department of Natural Resources' website.

13 In addition to making the proposed State

14 Implementation Plan available for reviewing and

15 comment, the Air Program distributed the public

16 hearing notice to approximately 300 citizens,

17 organizations, corporations, associations and elected

18 officials. Finally, we notified the Kansas City, St.

19 Louis County and Springfield local air pollution

20 control agencies, the U.S. Environmental Protection

21 Agency, and the states of Illinois and Kansas of this

22 public hearing. Chairman, that concludes my

23 testimony. Thank you.

24 MR. ZIMMERMAN: Joe?

25 (MR. WINKELMANN SWORN IN.)

### PUBLIC HEARING 6/28/2012

www.midwestlitigation.com Phone: 1.800.280.3376 Fax: 314.644.1334 

### MIDWEST LITIGATION SERVICES Page 4

1 MR. WINKELMANN: Chairman, members of the

2 Commission, my name is Joe Winkelmann. I am employed

3 as an environmental engineer with the Air Pollution

4 Control Program located at 1659 East Elm Street,

5 Jefferson City, Missouri. I am here today to present

6 testimony for a proposed revision to the State

7 Implementation Plan or SIP, for the Section 128

8 Declaration regarding the Missouri Air Conservation

9 Commission representation and conflicts of interest

10 provisions. The plan revision starts on page 75 of

11 your briefing document.

12 The purpose of this revision is to satisfy

13 the requirements of Section 128 of the federal Clean

14 Air Act Amendments of 1990. Section 128 asserts that

15 each SIP shall contain provisions respecting conflicts

16 of interest and providing for representation of the

17 public interest by the applicable state board. This

18 plan is administrative in nature and addresses the

19 Section 128 requirements via the referencing of

20 specific corresponding state statutes and regulations.

21 In particular, Section 643.040 of the Revised Statutes

22 of the State of Missouri, which creates the Air

23 Conservation Commission, also addresses public

24 interest representation and conflicts of interest

25 concerns. For example, this statute states that allCOMMENTS AND RESPONSES
AND
RECOMMENDATION FOR ADOPTION

PROPOSED REVISION TO
THE MISSOURI STATE IMPLEMENTATION PLAN —

SECTION 128 DECLARATION:
MISSOURI AIR CONSERVATION COMMISSION
REPRESENTATION AND CONFLICTS OF INTEREST PROVISIONS

On June 28, 2012 the Missouri Air Conservation Comm ission held a public hearing concerning the proposed revision to the State Implementation P lan (SIP) for the Section 128 Declaration regarding the Missouri Air Conservation Commission representation and conflicts of interest provisions. This plan was developed to demonstrate that the State of Missouri, as represented by the Missouri Air Conservation Commission, complies with Section 128 of the Clean Air Act. (CAA). Section 128 asserts that each SIP shall con tain provisions respecting conflicts of interest and providing for representation of the public inte rest by the applicable state board. This plan is
administrative in nature and addresses the Section 128 requirements via the referencing of specific corresponding state statutes and regulatio ns. One comment was received concerning this proposed plan during the public comment period. Re visions were made to the plan as a result of this public comment.

The complete document, as amended, has been reprint ed below. It is also available online at http://www.dnr.mo.gov/env/apcp/stateplanrevisions.h tm

The Missouri Department of Natural Resources’ Air P ollution Control Program recommends the commission adopt the plan action as amended. If th e commission adopts this plan action, it will be the department’s intention to submit this plan t o the U.S. Environmental Protection Agency (EPA) for inclusion in the Missouri State Im plementation Plan.

SUMMARY OF COMMENTS: The department received one c omment from EPA.

COMMENT #1: EPA commented that the plan presents Se ctions 105.450 through 105.482 of the Missouri Revised Statutes (RSMo) for inclusion into the SIP. Because several of these sections do not appear to govern actions by the department o r the Missouri Air Conservation Commission (which are the specific actions addressed by CAA Se ction 128), EPA recommends that the department review these sections and only include t hose provisions that are specifically pertinent to meeting the requirements of CAA Section 128. In addition, EPA made a suggestion to correct a minor editing error. RESPONSE AND EXPLANATION OF CHANGE: The department appreciates EPA’s cooperation in the development of this plan documen t. The department has reviewed the RSMo sections quoted by the state regulation referred to in part 2 of the plan document as EPA suggested and has determined that certain sections are indeed not pertinent to the nature of this plan. As a result of EPA’s comment, the last parag raph of part 2 of the document has been revised to incorporate only the applicable sections of State statute and two insubstantial editing
corrections were made.