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 ofNatural 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 

Director 

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KLM:jwc 

Enclosures: Copy of Plan 

Copy of commission signature page certifying Missouri Air Conservation 

Commission adoption 

Copies ofpublic hearing notices 

Copy ofpublic hearing transcript introductory statement 

Copy of "Summary ofComments & 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) 751-4817 
 

This document certifies that the State of Missouri, 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 representation of the public interest by the 

applicable state board. Furthermore, this section of the CAA allows states to adopt provisions which are 

more stringent than these requirements. The State of Missouri hereby presents this SIP revision to satisfy 

these requirements as detailed below. 

1. MACC Representation

Section 128(a)(1) of the CAA 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 interest 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 reflected 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 this 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 governor, with the advice and consent of the senate. 

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

concerns: 

All members shall be representative of the general interest of the public and shall have an 

interest in and knowledge of air conservation and the effects 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 which would be regulated 

under this chapter if located in Missouri. 

Section 104.450 RSMo is being proffered for inclusion 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 the Missouri State Implementation Plan. 

2. Conflicts of Interest

Section 128(a)(2) of the CAA requires that “any potential conflicts of interest by members of such 

board or the head of an executive agency with similar powers be adequately disclosed.” 

By statute, Missouri is more stringent than this requirement by providing for recusal, not merely 

disclosure. Per 643.040.2 RSMo– 
 

The commission shall establish rules of procedure 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. First, 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 process 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 receives 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 advises means explains in detail in a signed, 

written statement available for public inspection. 

Similarly, the Missouri Air Conservation 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 contact with other parties, including department 

staff, to pending disputes. 

If a commissioner publicly takes or expresses 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 discussion, 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 interest, including RSMo Chapter 105.” Section 105.452 

RSMo outlines prohibited acts by elected and appointed public officials and employees. Section 

105.454 RSMo provides additional prohibited 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 the Missouri Department of 

Natural Resources and its Air Pollution 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 monetary 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 affected or, if the matter affects only a special class 

of persons, then affected in a substantially different manner or degree than the manner or degree 

in which such class will be affected. In all such matters such officials must recuse themselves 

from acting, except that such official may act on increases in compensation subject to the 

restrictions of section 13 of article VII of the Missouri Constitution; or 

(5) Use his decision-making authority for the purpose of obtaining a financial gain which 

materially enriches himself, his spouse or dependent 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 Administrative Policies and Procedures manual 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 conflict between their private interests 

and the public interests of the department related to the duties and responsibilities of their jobs. 

Thus, the provisions of Section 128(a)(2) are satisfied by 643.040.2 RSMo, the relevant sections of 

Chapter 105 RSMo and 10 CSR 10-1.020(1)&(2). Part 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 are also to be included in to the 

SIP through this document. In addition, only certain Sections of 105.452-105.482 RSMO, referred to in 

part 2 of this document, are applicable to the MACC, the Directors of the Missouri Department of 

Natural Resources & its Air Pollution Control Program, and/or to Section 128 of the CAA. Therefore, 

the State of Missouri hereby presents 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, for incorporation into 

the Missouri State Implementation Plan. 

3. Conclusion

Through this revision to the Missouri State Implementation Plan, the State meets the requirements of 

Section 128 of the Clean Air Act, relating to representation on state boards and conflicts of interest by 

members of such boards and the 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 

wA,------=----=,-.~__,Member

---,.<.A=--'----'~"""""'i~\.J-I-)-+g_c-­ __~~~_-_-_-_-___,lVIember 

________________, Member 

________________, Member 

________________, lVIember 
State 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 5/25/2012 
1

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 all
COMMENTS 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 Commission held a public hearing concerning 

the proposed revision to the State Implementation Plan (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 contain provisions respecting conflicts of interest 

and providing for representation of the public interest 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 regulations. One comment was received concerning this 

proposed plan during the public comment period. Revisions were made to the plan as a result of 

this public comment. 

The complete document, as amended, has been reprinted below. It is also available online at 

http://www.dnr.mo.gov/env/apcp/stateplanrevisions.htm

The Missouri Department of Natural Resources’ Air Pollution Control Program recommends the 

commission adopt the plan action as amended. If the commission adopts this plan action, it will 

be the department’s intention to submit this plan to the U.S. Environmental Protection 

Agency (EPA) for inclusion in the Missouri State Implementation Plan. 

SUMMARY OF COMMENTS: The department received one comment from EPA. 

COMMENT #1: EPA commented that the plan presents Sections 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 or the Missouri Air Conservation Commission 

(which are the specific actions addressed by CAA Section 128), EPA recommends that the 

department review these sections and only include those 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 document. 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 paragraph 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.