North Carolina Certification 1

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### North Carolina Certification For Clean Air Act Section 110(a)( 2 ) (E)(ii)

by The North Carolina Department of Environment and Natural Resources, Division of Air Quality

Under S ections 110(a)(1) and (2) of the Clean Air Act (CAA), States are required to submit plans for the implementation, maintenance, and enforcement of the 8

- hour ozone and PM2.5

standards. States must address basic State Implementation Plan (SIP) requirements, including emissions inventories, monitoring, and modeling to assure attai nment and maintenance of the standards. The element related to “Adequate Resources” ( Section 110(a)(2)(E) ) requires States to provide for adequate personnel, funding, and legal authority under State law to carry out its

SIP and related issues. Specifical ly, Section 110( a )(2)(E)(ii) requires a demonstration “that the State comply with the requirements respecting State boards under Section 128”. Section 128 of

the CAA states:

42 USC § 7428

- State boards

(a) Not later than the date one year after Augus t 7, 1977, each applicable implementation plan shall contain requirements that

— (1) any board or body which approves permits or enforcement orders under this chapter shall 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 e nforcement orders under this chapter, and (2) any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed.

A State may adopt any requirements respecting conflicts of interest for such boards or bodies or heads of executive agencies, or any other entities which are more stringent than the requirements of paragraph (1) and (2), and the Administrator shall approve any such more stringent requirements submitted as part of an implementation plan.

This report serves as the North Carolina Department of Environment and Natural Resources, Division of Air Quality’s demonstration of infrastructure SIP element 110(a)(2)(E)(ii). North Carolina is requesting the attached Section 128 Procedure s and Certification s to be incorporated

into the SIP (Attachment s 1a and 1b ) . Specific requirements for public disclosure of potential conflict of interest and elements representing public interest are addressed in these documents

. North Car olina General Statutes are included as reference material, but should not be adopted as part of North Carolina’s SIP.North Carolina Certification 2

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- hour Ozone NAAQS Attachment 1 Infrastructure SIP Element 110(a)(2)(E)(ii) February 5 , 2013 

### Introduct i on

A Memorandum of Agreement (MOA) between the NC Department of Environment and Natural Resources (DENR) and the Unites States Environmental Protection Agency (USEPA) defines programs administered by the State of North Carolina to comply with the Clean Air Ac t. The authority to issue air quality permits and administrative enforcement actions resides with DENR. Initial permitting and compliance decisions are the responsibility of DENR. Starting October 1,

201 2 , a ny permitting or enforcement decisions that are contested are heard by the North Carolina Office of Administrative Hearings (OAH). The OAH serves as an administrative procedures reviewer, and if the permits and enforcement orders are remanded, DENR would correct the error and redraft the permit or enforcement order.

The authority to issue air quality rules resides with the North Carolina Environmental Management Commission (EMC). Prior to October 1, 201 2 , the authority to make final decision on contested permits or enforcement actions resided w ith the EMC. The following discussion defines the roles of DENR, OAH, and EMC related to implementation of the CAA.

Background

The State of North Carolina, through DENR, administers and enforces certain federal environmental laws, including the Clean Air Act (CAA) pursuant to agreements with the United States Environmental Protection Agency (EPA). Historically, review of DENR decisions (e.g., issuance of permits or penalties) under the CAA was first reviewable by the North Carolina

Office of Administ rative Hearings (OAH), where the matter (called a “contested case”) was heard by an Administrative Law Judge (ALJ) pursuant to the North Carolina Administrative Procedure Act (APA). The ALJ made a decision which was then reviewed by the North Carolina

Envi ronmental Management Commission (EMC). The EMC’s decision was the “final agency decision.” The EMC decision could be appealed by an aggrieved party allegedly injured by the decision to the North Carolina Superior Court.

In 2011, the North Carolina Gener al Assembly changed the process for nearly all OAH contested case decisions, making the ALJ’s decision the “final agency decision” which could then be appealed directly to Superior Court, eliminating the EMC review and decision (Session Law

2011

- 398). That process became effective October 1, 2012 for DENR contested cases under the CAA. On July 19, 2012, DENR and OAH jointly submitted to EPA a letter outlining their view of the new process and suggesting that the existing DENR

- EPA agreements would not have to be amended (see Attachment 1 c ). On August 9, 2012, the EPA concurred that, in view of the July 19 letter, no amendments to the existing agreements would be necessary (see Attachment 1 d ). Accordingly, pursuant to Session Law 2012

- 187, for contested cas es challenging DENR action under the CAA filed on or after October 1, 2012, the ALJ’s decision will not be subject to review by EMC but instead will be reviewable in Superior Court, in accordance with the other provisions of the APA.

The EPA agreed that t he OAH role in contested cases is to provide only a hearing function

– one that will be limited in scope to an Administrative Procedures Act

- type review (i.e., determiningNorth Carolina Certification 3

1997 8

- hour Ozone NAAQS Attachment 1 Infrastructure SIP Element 110(a)(2)(E)(ii) February 5 , 2013 

### whether DENR acted erroneously, failed to use proper procedure, exceeded its authori ty or jurisdiction, acted arbitrarily or capriciously, or failed to act as required by law or rule). The OAH will not undertake the drafting or redrafting of permit terms or conditions (including penalty action terms or conditions) or otherwise correct an y determined error by DENR. Following adverse finding by an ALJ, DENR (if it elects not to appeal the ALJ decision to Superior Court) would correct the error identified and redraft the permit or enforcement order. In its August 9, 2012 letter, EPA agreed that DENR “will remain the permit/enforcement issuing authority for matters arising under the CAA.” Based on this, there are no boards or bodies in North Carolina that approve permit or enforcement orders and compliance with Section 128(a)(2) is limited to executive agency individuals (i.e., DENR Secretary and his/her delegatee) exercising the authority to issue permits or enforcement orders.

Permit /Enforcement Issuing Authority

The EMC has delegated the authority to issue air quality permits to DENR through North Carolina Administrative Code (NCAC) rules (15A NCAC 02A.0105). S tate statute s giv e enforcement authority for the air quality program to DENR ( N.C.G.S. § 143

- 215 .6, 215.110 )

. DENR employees represent the public interest and do not derive any significant portion of their income from persons subject to air quality rules. DENR is an executive agency that is subject is to North Carolina’s State Government Ethics Act (N.C.G.S. §138A).

As of October 1, 201 2 , there are no boards or bodies in North Carolina that approve permit s or enforcement orders. As such, Section 128(a)(1) is not applicable. The authority to issue air permits and enforcement orders is given to DENR; therefore, Section 128(a)(2) applies. North Carolina is submitting the attach ed Section 128 procedure and Certification for DENR (Attachment 1a) . It defines public disclosure of potential conflict of interest and elements representing public interest for the Secretary of DENR and his/her delegate e that approve permits or enforceme nt orders. North Carolina is requesting this procedure and certification to be incorporated into the SIP.

Contested Cases ( As of October 1, 2012)

If a permit or enforcement action issued by DENR is formally contested, the parties appeal to the OAH. The OAH is a quasi

- judicial agency created by statutes, hearing a variety of administrative appeals from a broad spectrum of North Carolina agencies and commissions. The OAH consists of a Chief Administrative Law Judge, appointed by the Chief Ju stice of the North Carolina Supreme Court, a Senior Administrative Law Judge, and other Administrative Law Judges (ALJs) appointed by the Chief Administrative Law Judge. In order to serve, the ALJs must be licensed to practice law, and must comply with th e American Bar Association’s code of

conduct for ALJs. Judicial employee s, including t he D irector and A ssistant D irector of the Administrative Office of the Courts and any other individual designated by the Chief Justice and employed in the Judicial Depar tment , are subject to the requirements of the State Ethics Act (N.C.G.S. §138A).North Carolina Certification 4

1997 8

- hour Ozone NAAQS Attachment 1 Infrastructure SIP Element 110(a)(2)(E)(ii) February 5 , 2013 

### When a contested case is brought before the OAH, an ALJ conducts hearings and compiles an administrative record, which could include new evidence, including expert testimon y. Once that evidence had been heard, the ALJ issues a decision. Under current NC law, this decision is defined as the final agency decision (Session Law 2011

- 398, Senate Bill 781). The ALJ decision is appealable to the North Carolina Superior Court by any party (petitioner, DENR, or intervenor).

In a July 19, 2012 letter to the USEPA, DENR and OAH stated that contested case hearings will be limited in scope to the issues previously enumerated by statute (N.C.G.S. § 150B

- 23(a)), i.e., determining whet her DENR: (1) exceeded its authority or jurisdiction, (2) acted erroneously, (3) failed to use proper procedure, (4) acted arbitrarily or capriciously, or (5) failed to act as required by law or rule. In the letter, OAH clarified that ALJs will not under take the drafting of permit terms. If an ALJ finds that one of the five criteria has been met, the ALJ will not then undertake to correct DENR’s error by redrafting permit terms. Instead, following adverse finding by an ALJ, DENR (if it elects not to app eal the ALJ decision to Superior Court) would correct the error identified and redraft the permit or enforcement order. EPA would have an opportunity in that process to comment upon DENR’s issuance of any redrafted permit or enforcement order, as it

would in any permitting process. EPA’s right to review and objections would then apply to the redrafted permit as it would the initial permit.

In short, the OAH provides a hearing function for aggrieved parties and will not undertake the drafting or redraft ing of permit terms or conditions (including penalty action terms or conditions) or otherwise correct any determined error by DENR. DENR remains as the permit and enforcement issuing agency. The EPA later agreed with DENR’s role in matters arising under

the CAA. DENR’s Section 128 Procedures and Certification discussed earlier is also applicable

in this case.

Contested Cases (Before October 1, 2012)

The EMC makes the final decisions on contested cases filed before October 1, 2012 which challeng e DENR ’s permitting or enforcement action s under the CAA. On January 10, 2013, the EMC passed a resolution that delegated to a Special Air Permit Appeals Committee

, the authority to exercise final agency decision authority with respect to permits and enforcemen t orders for control of sources of air pollution. The resolution recognizes Section 128 provision which impose conflict of interest requirements for members of State Boards and Commissions to assure that decisions to issue permits or enforcement orders ar e not influenced by private interests o r individual decision makers by requiring that a majority of the members of the decision making body represent the public interest and do not derive any significant portion of their income from persons subject to such permits or orders. To assure compliance with Section 128, the EMC Chairman is required to create a Special Air Permit Appeals Committee to be composed of a majority of members meeting the conflict of interest requirements of Section 128.

A selection p rocedure for the committee and a certification form has been developed to assure compliance with Section 128. North Carolina is submitting the attached Special Air Permit Appeals Committee Selection Procedure and Certification (Attachment 1 b ) to address conflict ofNorth Carolina Certification 5

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- hour Ozone NAAQS Attachment 1 Infrastructure SIP Element 110(a)(2)(E)(ii) February 5 , 2013 

### interest and public disclosure requirements for contested permits/enforcement orders heard by the

Committee . North Carolina is requesting this procedure and certification to be incorporated into

the SIP.

Rule Making Authority

The EMC issues air quality rules through the authority given in the North Carolina General Statutes (N.C.G.S. §143B

- 282 and §143B

- 215.3). The EMC is a 19

- member Commission appointed by the Governor and the NC legislature. Thirteen members are appointed b y the Governor and six members are appointed by the Legislative branch (three by the Speaker of the House of Representatives and three by the President Pro Tempore of the Senate). The EMC is responsible for adopting rules for the protection, preservation and enhancement of the state's air and water resources. The EMC oversees and adopts rules for several divisions of the Department of Environment and Natural Resources, including the Division of Air Quality. The EMC generally meets in January, March, May, July, September and November; however, the EMC Chair may call special meetings as necessary. The meetings are open to the public and broadcast as a webinar for those who are unable to attend in person.

The EMC members are chosen to represent various in terests, including the medical profession, agriculture, engineering, fish and wildlife, groundwater, air and water pollution control, municipal or county government and the public at large. The North Carolina General Statutes directs that 9

of the 13 membe rs appointed by the Governor do not derive any significant portion of their income from persons subject to permits or enforcement orders as required in Section 128 of the CAA (§143B

- 283(c)). However, the statute also allows six members to be appointed by the NC General Assembly without any restriction.

Regardless of their appointment, the members selected are subject to North Carolina’s State Government Ethics Act (N.C.G.S. §138A). The State Ethics Act ensures that e lected and appointed State agency of ficials exercise their authority honestly and fairly, free from impropriety, threats, favoritism, and undue influence. The Ethics Commission reviews each
member’s Statement of Economic Interest and determines whether there is a conflict of interest.

With in 30 days of notice of the State Ethics 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 pu blic position (N.C.G.S. § 138A

- 39).

The State Government Ethics Act (N.C.G.S. § 138A

- 15 (e) ) also requires the chair a t the beginning of any meeting , to remind all members of their duty to avoid conflicts of interest. The

chair is required to inquire a s to whether there is any known conflict of interest with respect to any matters coming before the board at that time.

Conclusion

Various entities have a role in the implementation of the CAA in North Carolina. However, DENR is given the authority to i ssue permits and enforcement orders. DENR Secretary or his/her delegatee issue initial permits/enforcement orders and on very few contested cases filedNorth Carolina Certification 6

1997 8

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### after October 1, 201 2 , the agency also issues final permits/enforcement orders following rulings

made b y OAH regarding DENR’s failure to follow one or more of five types of administrative procedures act requirements. Public disclosure of potential conflict of interest for D ENR Secretary and his/her delegatee is satisfied through a certification signed by t hese individuals (see Attachment 1a)

. Contested cases filed before October 1, 201 2 are reviewed by the EMC Special Air Permit Appeals Committee. Section 128(a)(1) and (a)(2) requirements are satisfied through a selection process and certification signed by members of th is C ommittee (see Attachment 1b).

Attachments

1a) DENR Section 128 Procedure and Certification

1b) EMC Special Air Permit Appeals Committee Selection Procedure and Certification

1 c ) DENR/OAH letter to EPA dated July 19, 2012 explaining North Carolina’s revised process on contested permit actions and enforcement orders.

1 d ) EPA response letter to DENR/OAH dated August 9, 2012.

# Attachment 2

North Carolina General Statutes Referenced

in the North Carolina Certification for
Clean Air Act Section 110(a)(2)(E)(ii)

1997 8

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### (This page intentionally left blank)North Carolina General Statutes 3

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- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3 N.C.G.S. § 143B

- 282. Environmental Management Commission

– creation; powers and duties. (a) There is hereby created the Environmental Management Commission of the Department of Environment and Natural Resources with the power and duty to promulgate rules to be followed in the protection, preservation,

and enhancement of the water and air resources of the State.

(1) Within the limitations of G.S. 143

- 215.9 concerning industrial health and safety, the Environmental Management Commission shall have all of the followi ng powers and duties:

a. To grant a permit or temporary permit, to modify or revoke a permit, and to refuse to grant permits pursuant to G.S. 143

- 215.1 and G.S. 143

- 215.108 with regard to controlling sources of air and water pollution.

b. T o issue a special order pursuant to G.S. 143

- 215.2(b) and G.S. 143

- 215.110 to any person whom the Commission finds responsible for causing or contributing to any pollution of water within such watershed or pollution of the air within the area for

which sta ndards have been established.

c. To conduct and direct that investigations be conducted pursuant to G.S. 143

- 215.3 and

G.S. 143

- 215.108(c)(5).

d. To conduct public hearings, institute actions in superior court, and agree upon or enter

into settlements, all pursuant to G.S. 143

- 215.3.

e. To direct the investigation of any killing of fish and wildlife pursuant to G.S.

143

- 215.3.

f. To consult with any person proposing to construct, install, or acquire an air or water pollution source pursuant to G.S. 143

- 215.3 and G.S. 143

- 215.111.

g. To encourage local government units to handle air pollution problems and to provide technical and consultative assistance pursuant to G.S. 143

- 215.3 and G.S.

143

- 215.112.

h. To rev iew and have general oversight and supervision over local air pollution control programs pursuant to G.S. 143

- 215.3 and G.S. 143

- 215.112.

i. To declare an emergency when it finds a generalized dangerous condition of water or air pollution pursuant to G.S. 143

- 215.3. j. To render advice and assistance to local government regarding floodways pursuant to

G.S. 143

- 215.56.

k. To declare and delineate and modify capacity use areas pursuant to G.S. 143

- 215.13.

l. To grant permits for water use within capacity use areas pursuant to G.S. 143

- 215.15.

m. To direct that investigations be conducted when necessary to carry out duties regarding capacity use areas pursuant to G.S. 143

- 215.19.

n. To approve, disapprove and ap prove subject to conditions all applications for dam construction pursuant to G.S. 143

- 215.28; to require construction progress reports pursuant to G.S. 143

- 215.29.

o. To halt dam construction pursuant to G.S. 143

- 215.29.

p. To grant final approval of dam construction work pursuant to G.S. 143

- 215.30.

q. To have jurisdiction and supervision over the maintenance and operation of dams pursuant to G.S. 143

- 215.31.

r. To direct the inspection of dams pursuant to G.S. 143

- 215.32.

s. To modify or revoke any final action previously taken by the Commission pursuant to

G.S. 143

- 214.1 and G.S. 143

- 215.107.

t. To have jurisdiction and supervision over oil pollution and dry

- cleaning solvent use, contamination, and remed iation pursuant to Article 21A of Chapter 143 of the

General Statutes.

u. To administer the State's authority under 33 U.S.C. § 1341 of the federal Clean Water

Act.

v. To approve Coastal Habitat Protection Plans as provided in G.S. 143B

- 279 .8. (2) The Environmental Management Commission shall adopt rules:

a. For air quality standards, emission control standards and classifications for air contaminant sources pursuant to G.S. 143

- 215.107.North Carolina General Statutes 4

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b. For water quality standards and classifications pursuant to G.S. 143

- 214.1 and G.S.

143

- 215.

c. To implement water and air quality reporting pursuant to Part 7 of Article 21 of Chapter 143 of the General Statutes.

d. To be applied in capacity use areas pursuant to G.S . 143

- 215.14.

e. To implement the issuance of permits for water use within capacity use areas pursuant

to G.S. 143

- 215.15 and G.S. 143

- 215.16.

f. Repealed by Session Laws 1983, c. 222, s. 3.

g. For the protection of the land and th e waters over which this State has jurisdiction from pollution by oil, oil products and oil by

- products pursuant to Article 21A of Chapter 143.

h. Governing underground tanks used for the storage of oil or hazardous substances pursuant to Articles 21, 21A, or 21B of Chapter 143 of the General Statutes, including inspection and testing of these tanks and certification of persons who inspect and test tanks.

i. To implement the provisions of Part 2A of Article 21 of Chapter 143 of the General

Statutes. j. To implement the provisions of Part 6 of Article 21A of Chapter 143 of the General

Statutes.

k. To implement basinwide water quality management plans developed pursuant to G.S.

143

- 215.8B. (3) The Commission is authorized to make such rules, not inconsistent with the laws of this State, as may be required by the federal government for grants

- in

- aid for water and air resources purposes which may be made available to the State by the federal government. This sectio n is to be liberally construed in order that the State and its citizens may benefit from such
grants

- in

- aid. (4) The Commission shall make rules consistent with the provisions of this Chapter. All rules adopted by the Commission shall be enforced by the Department of Environment and Natural

Resources. (5) The Environmental Management Commission shall have the power to adopt rules with respect to any State laws administered under its jurisdiction so as to accept evidence of compliance

with corr esponding federal law or regulation in lieu of a State permit, or otherwise modify a requirement for a State permit, upon findings by the Commission, and after public hearings,

that there are:

a. Similar and corresponding or more restrictive federa l laws or regulations which also require an applicant to obtain a federal permit based upon the same general standards or more restrictive standards as the State laws and rules require; and

b. That the enforcement of the State laws and rules would require the applicant to also obtain a State permit in addition to the required federal permit; and

c. That the enforcement of the State laws and rules would be a duplication of effort on the part of the applicant; and

d. Such duplication o f State and federal permit requirements would result in an unreasonable burden not only on the applicant, but also on the citizens and resources

of the State. (6) The Commission may establish a procedure for evaluating renewable energy technologies that are, or are proposed to be, employed as part of a renewable energy facility, as defined in G.S.

62

- 133.8; establish standards to ensure that renewable energy technologies do not harm the environment, natural resources, cultural resources, or public he alth, safety, or welfare of the State; and, to the extent that there is not an environmental regulatory program, establish an environmental regulatory program to implement these protective standards. (b) The Environmental Management Commission shall submit quarterly written reports as to its operation, activities, programs, and progress to the Environmental Review Commission. The Environmental Management Commission shall supplement the written reports required by this subsection with additional writt en and oral reportsNorth Carolina General Statutes 5

1997 8

- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3 as may be requested by the Environmental Review Commission. The Environmental Management Commission shall submit the written reports required by this subsection whether or not the General Assembly is in session at the time the report is due. (c) The Environmental Management Commission shall implement the provisions of subsections (d) and (e) of 33 U.S.C. § 1313 by identifying and prioritizing impaired waters and by developing appropriate total maximum daily loads of pollutants for those impaired waters. The Commission shall incorporate those total maximum daily loads approved by the United States Environmental Protection Agency into its continuing basinwide water quality planning process. (d) The Environmental Management Comm ission may adopt rules setting out strategies necessary for assuring that water quality standards are met by any point or nonpoint source or by any category of point or nonpoint sources that is determined by the Commission to be contributing to the water q uality impairment. These strategies may include, but are not limited to, additional monitoring, effluent limitations, supplemental standards or classifications, best management practices, protective buffers, schedules of compliance, and the establishment o f and delegations to intergovernmental basinwide groups. (e) In appointing the members of the Commission, the appointing authorities shall make every effort to ensure fair geographic representation of the Commission. (1973, c. 1262, s. 19; 1975, c. 512; 1977, c. 771, s. 4; 1983, c. 222, s. 3; 1985, c. 551, s. 1; 1989, c. 652, s. 2; c. 727, s. 218(128); 1989 (Reg. Sess., 1990), c. 1036, s. 1; 1991 (Reg. Sess., 1992), c. 990, s. 1; 1993, c. 348, s. 3; 1996, 2nd Ex. Sess., c. 18, s. 27.4(b); 1997

- 392, s . 2(a), (b);

1997

- 400, s. 3.2; 1997

- 443, s. 11A.119(a); 1997

- 458, ss. 8.4, 8.5; 1997

- 496, s. 16; 1998

- 212, s. 14.9H(f); 1999

- 328, s. 4.13; 2001

- 424, s. 19.13(a); 2002

- 165, s. 1.9; 2007

- 397, s. 2(c).)

§ 143B

- 283. Environmental Management Commission

– memb ers; selection; removal; compensation;

quorum; services. (a) The Environmental Management Commission shall consist of 13 members appointed by the Governor. The Governor shall select the members so that the membership of the Commission shall consist of:

(1) One who shall be a licensed physician with specialized training and experience in the health effects of environmental pollution; (2) One who shall, at the time of appointment, be actively connected with the Commission for

Public Healt h or local board of health or have experience in health sciences; (3) One who shall, at the time of appointment, be actively connected with or have had experience in agriculture; (4) One who shall, at the time of appointment, be a registered engineer with specialized training and experience in water supply or water or air pollution control; (5) One who shall, at the time of appointment, be actively connected with or have had experience

in the fish and wildlife conservation activities of the State; (6) One who shall, at the time of appointment, have special training and scientific expertise in hydrogeology or groundwater hydrology; (7) Three members interested in water and air pollution control, appointed from the public at large; (8) One who shall, at the time of appointment, be actively employed by, or recently retired from, an industrial manufacturing facility and knowledgeable in the field of industrial air and water pollution control; (9) One who shall, at the time of appointment, be actively connected with or have had experience in pollution control problems of municipal or county government; (10) One who shall, at the time of appointment, have special training and scientific expertise in air pollution control and the effects of air pollution; and (11) One who shall, at the time of appointment, have special training and scientific expertise in freshwater, estuarine, marine biological, or ecological sciences. (b) Members appointed by the Governor shall serve terms of office of six years. Any appointment to fill a vacancy on the Commission created by the resignation, dismissal, death or disability of a member shall be for the balance of the unexpired term. The Governor may reappoint a membe r of the Commission to an additional term if, at the time of the reappointment, the member qualifies for membership on the Commission under subsection (a) of this

section.North Carolina General Statutes 6

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- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3 (b1) The Governor shall have the power to remove any member of the Commission f rom office for misfeasance, malfeasance, or nonfeasance in accordance with the provisions of G.S. 143B

- 13 of the Executive Organization Act of 1973. (b2) The members of the Commission shall receive per diem and necessary travel and subsistence expense s in accordance with the provisions of G.S. 138

- 5. (b3) A majority of the Commission shall constitute a quorum for the transaction of business. (b4) All clerical and other services required by the Commission shall be supplied by the Secretary of

Environment and Natural Resources. (c) Nine of the members appointed by the Governor under this section shall be persons who do not derive any significant portion of their income from persons subject to permits or enforcement orders under this Chapt er. The Governor shall require adequate disclosure of potential conflicts of interest by members. The Governor, by executive order, shall promulgate criteria regarding conflicts of interest and disclosure thereof for determining the eligibility of persons under this section, giving due regard to the requirements of federal legislation, and for this purpose may promulgate rules, regulations or guidelines in conformance with those established by any federal agency interpreting and applying provisions of feder al law. (d) In addition to the members designated by subsection (a) of this section, the General Assembly shall appoint six members, three upon the recommendation of the Speaker of the House of Representatives, and three upon the recommendation of th e President Pro Tempore of the Senate. Appointments by the General Assembly shall

be made in accordance with G.S. 120

- 121, and vacancies in those appointments shall be filled in accordance with

G.S. 120

- 122. Members appointed by the General Assembly shall serve terms of two years. (1973, c. 1262, s. 20; 1977, c. 771, s. 4; 1979, 2nd Sess., c. 1158, ss. 5, 6; 1981 (Reg. Sess., 1982), c. 1191, s. 19; 1989, c. 315; c. 727, s. 218(129); 1995, c. 490, s. 18; 1997

- 381, s. 1; 1997

- 443, s. 11A.119(a); 1998

- 217, s. 17; 2000

- 172, ss. 4.1, 4.2;

2001

- 486, s. 2.16; 2007

- 182, s. 2.)

§ 138A

- 15 (e) At the beginning of any meeting of a board, the chair shall remind all members of their duty to avoid
conflicts of interest under this Chapter. The chair also shall inquire as t o whether there is any known conflict of
interest with respect to any matters coming before the board at that time.North Carolina General Statutes 7

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‐ 215.3. General powers of Commission and Department; auxiliary powers.

(a) Additional Powers.

– In addition to the specific powers prescribed elsewhere in this Article, and
for the purpose of carrying out its duties, the Commission shall have the power:
(1) To make rules implementing Articles 21, 21A, 21B, or 38 of this Chapter.
(1a) To adopt fee schedules and colle ct fees for the following:
a. Processing of applications for permits or registrations issued under Article 21, other than
Parts 1 and 1A, Articles 21A, 21B, and 38 of this Chapter;
b. Administering permits or registrations issued under Article 21, other than Parts 1 and 1A,
Articles 21A, 21B, and 38 of this Chapter including monitoring compliance with the terms of
those permits; and
c. Reviewing, processing, and publicizing applications for construction grant awards under

the Fed eral Water Pollution Control Act.
No fee may be charged under this provision, however, to a farmer who submits an
application that pertains to his farming operations.
(1b) The fee to be charged pursuant to G.S. 143

‐ 215.3(a)(1a) for process ing an application for a

permit under G.S. 143

‐ 215.108 and G.S. 143

‐ 215.109 of Article 21B of this Chapter may not exceed five
hundred dollars ($500.00). The fee to be charged pursuant to G.S. 143

‐ 215.3(a)(1a) for processing a
registration under Part 2A of this Article or Article 38 of this Chapter may not exceed fifty dollars ($50.00) for any single registration. An additional fee of twenty percent (20%) of the registration
processing fee may be assessed for a late registration under Article 38 of this Cha pter. The fee for
administering and compliance monitoring under Article 21, other than Parts 1 and 1A, and G.S.

143

‐ 215.108 and G.S. 143

‐ 215.109 of Article 21B shall be charged on an annual basis for each year of
the permit term and may not exceed one thou sand five hundred dollars ($1,500) per year. Fees for
processing all permits under Article 21A and all other sections of Article 21B shall not exceed one hundred dollars ($100.00) for any single permit. The total payment for fees that are set by the

Commis sion under this subsection for all permits for any single facility shall not exceed seven thousand five hundred dollars ($7,500) per year, which amount shall include all application fees and fees for
administration and compliance monitoring. A single facil ity is defined to be any contiguous area under
one ownership and in which permitted activities occur. For all permits issued under these Articles where a
fee schedule is not specified in the statutes, the Commission, or other commission specified by statut e shall adopt a fee schedule in a rule following the procedures established by the Administrative Procedure
Act. Fee schedules shall be established to reflect the size of the emission or discharge, the potential
impact on the environment, the staff costs i nvolved, relative costs of the issuance of new permits and the
reissuance of existing permits, and shall include adequate safeguards to prevent unusual fee assessments
which would result in serious economic burden on an individual applicant. A system shall be considered
to allow consolidated annual payments for persons with multiple permits. In its rulemaking to establish
fee schedules, the Commission is also directed to consider a method of rewarding facilities which achieve
full compliance with administra tive and self

‐ monitoring reporting requirements, and to consider, in those
cases where the cost of renewal or amendment of a permit is less than for the original permit, a lower fee

for the renewal or amendment.
(1c) Moneys collected pursuant to G.S. 143

‐ 215.3(a)(1a) shall be used to:North Carolina General Statutes 8

1997 8

- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3 a. Eliminate, insofar as possible, backlogs of permit applications awaiting agency action;

b. Improve the quality of permits issued;
c. Improve the rate of compliance of permitted activities with environmental standards; and
d. Decrease the length of the processing period for permit applications.
(1d) The Commission may adopt and implement a graduated fee schedule sufficient to cover all direct
and indirect costs required for the State to develop and administer a permit program which meets the
requirements of Title V. The provisions of subdivision (1b) of this subsection do not apply to the adoption
of a fee schedule under this subdivision. In adopting and implementing a fee schedule, th e Commission
shall require that the owner or operator of all air contaminant sources subject to the requirement to obtain
a permit under Title V to pay an annual fee, or the equivalent over some other period, sufficient to cover
costs as provided in sectio n 502(b)(3)(A) of Title V. The fee schedule shall be adopted according to the
procedures set out in Chapter 150B of the General Statutes.
a. The total amount of fees collected under the fee schedule adopted pursuant to this

subdivision shall confor m to the requirements of section 502(b)(3)(B) of Title V. No fee shall be
collected for more than 4,000 tons per year of any individual regulated pollutant, as defined in
section 502(b)(3)(B)(ii) of Title V, emitted by any source. Fees collected pursuant t o this

subdivision shall be credited to the Title V Account.
b. The Commission may reduce any permit fee required under this section to take into
account the financial resources of small business stationary sources as defined under Title V and

regu lations promulgated by the United States Environmental Protection Agency.
c. When funds in the Title V Account exceed the total amount necessary to cover the cost of
the Title V program for the next fiscal year, the Secretary shall reduce the amoun t billed for the
next fiscal year so that the excess funds are used to supplement the cost of administering the Title
V permit program in that fiscal year.
(1e) The Commission shall collect the application, annual, and project fees for processing and
administering permits, certificates of coverage under general permits, and certifications issued under Parts
1 and 1A of this Article and for compliance monitoring under Parts 1 and 1A of this Article as provided

in G.S. 143

‐ 215.3D and G.S. 143

‐ 215.10G.

(2 ) To direct that such investigation be conducted as it may reasonably deem necessary to carry out
its duties as prescribed by this Article or Article 21A or Article 21B of this Chapter, and for this purpose
to enter at reasonable times upon any prop erty, public or private, for the purpose of investigating the
condition of any waters and the discharge therein of any sewage, industrial waste, or other waste or for
the purpose of investigating the condition of the air, air pollution, air contaminant sou rces, emissions, or
the installation and operation of any air

‐ cleaning devices, and to require written statements or the filing of

reports under oath, with respect to pertinent questions relating to the operation of any air

‐ cleaning device,
sewer system, d isposal system, or treatment works. In the case of effluent or emission data, any records,
reports, or information obtained under this Article or Article 21A or Article 21B of this Chapter shall be
related to any applicable effluent or emission limitations or toxic, pretreatment, or new source
performance standards. No person shall refuse entry or access to any authorized representative of the
Commission or Department who requests entry for purposes of inspection, and who presents appropriateNorth Carolina General Statutes 9

1997 8

- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3 credentials, n or shall any person obstruct, hamper or interfere with any such representative while in the
process of carrying out his official duties.
(3) To conduct public hearings and to delegate the power to conduct public hearings in accordance
with the proce dures prescribed by this Article or by Article 21B of this Chapter.
(4) To delegate such of the powers of the Commission as the Commission deems necessary to one or
more of its members, to the Secretary or any other qualified employee of the Departm ent. The
Commission shall not delegate to persons other than its own members and the designated employees of
the Department the power to conduct hearings with respect to the classification of waters, the assignment
of classifications, air quality standards , air contaminant source classifications, emission control standards,
or the issuance of any special order except in the case of an emergency under subdivision (12) of this
subsection for the abatement of existing water or air pollution. Any employee of th e Department to whom
a delegation of power is made to conduct a hearing shall report the hearing with its evidence and record to

the Commission.
(5) To institute such actions in the superior court of any county in which a violation of this Article,
Article 21B of this Chapter, or the rules of the Commission has occurred, or, in the discretion of the
Commission, in the superior court of the county in which any defendant resides, or has his or its principal
place of business, as the Commission may deem necessary for the enforcement of any of the provisions of
this Article, Article 21B of this Chapter, or of any official action of the Commission, including
proceedings to enforce subpoenas or for the punishment of contempt of the Commission.
(6) To agree upon or enter into any settlements or compromises of any actions and to prosecute any
appeals or other proceedings.
(7) To direct the investigation of any killing of fish and wildlife which, in the opinion of the
Commission, is of sufficient magnitude to justify investigation and is known or believed to have resulted
from the pollution of the waters or air as defined in this Article, and whenever any person, whether or not
he shall have been issued a certificate of approval, permit or other do cument of approval authorized by
this or any other State law, has negligently, or carelessly or unlawfully, or willfully and unlawfully,
caused pollution of the waters or air as defined in this Article, in such quantity, concentration or manner

that fish o r wildlife are killed as the result thereof, the Commission, may recover, in the name of the State,
damages from such person. The measure of damages shall be the amount determined by the Department
and the North Carolina Wildlife Resources Commission, whic hever has jurisdiction over the fish and
wildlife destroyed to be the replacement cost thereof plus the cost of all reasonable and necessary
investigations made or caused to be made by the State in connection therewith. Upon receipt of the

estimate of dama ges caused, the Department shall notify the persons responsible for the destruction of the
fish or wildlife in question and may effect such settlement as the Commission may deem proper and
reasonable, and if no settlement is reached within a reasonable tim e, the Commission shall bring a civil
action to recover such damages in the superior court in the county in which the discharge took place.
Upon such action being brought the superior court shall have jurisdiction to hear and determine all issues
or questi ons of law or fact, arising on the pleadings, including issues of liability and the amount of
damages. On such hearing, the estimate of the replacement costs of the fish or wildlife destroyed shall be
prima facie evidence of the actual replacement costs of such fish or wildlife. In arriving at such estimate,
any reasonably accurate method may be used and it shall not be necessary for any agent of the WildlifeNorth Carolina General Statutes 10

1997 8

- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3 Resources Commission or the Department to collect, handle or weigh numerous specimens of dead fish or
wildlife.

The State of North Carolina shall be deemed the owner of the fish or wildlife killed and all
actions for recovery shall be brought by the Commission on behalf of the State as the owner of the fish or

wildlife. The fact that the person or persons alleged to be responsible for the pollution which killed the
fish or wildlife holds or has held a certificate of approval, permit or other document of approval
authorized by this Article or any other law of the State shall not bar any suc h action. The proceeds of any
recovery, less the cost of investigation, shall be used to replace, insofar as and as promptly as possible, the
fish and wildlife killed, or in cases where replacement is not practicable, the proceeds shall be used in

whatever manner the responsible agency deems proper for improving the fish and wildlife habitat in
question. Any such funds received are hereby appropriated for these designated purposes. Nothing in this
paragraph shall be construed in any way to limit or prevent any other action which is now authorized by

this Article.
(8) After issuance of an appropriate order, to withhold the granting of any permit or permits pursuant

to G.S. 143

‐ 215.1 or G.S. 143

‐ 215.108 for the construction or operation of any new or ad ditional

disposal system or systems or air

‐ cleaning device or devices in any area of the State. Such order may be
issued only upon determination by the Commission, after public hearing, that the permitting of any new

or additional source or sources of wate r or air pollution will result in a generalized condition of water or
air pollution within the area contrary to the public interest, detrimental to the public health, safety, and
welfare, and contrary to the policy and intent declared in this Article or Ar ticle 21B of this Chapter. The
Commission may make reasonable distinctions among the various sources of water and air pollution and
may direct that its order shall apply only to those sources which it determines will result in a generalized

condition of wa ter or air pollution.
The determination of the Commission shall be supported by detailed findings of fact and conclusions set
forth in the order and based upon competent evidence of record. The order shall describe the geographical

area of the State affec ted thereby with particularity and shall prohibit the issuance of permits pending a
determination by the Commission that the generalized condition of water or air pollution has ceased.
Notice of hearing shall be given in accordance with the provisions of G.S. 150B

‐ 21.2.
A person aggrieved by an order of the Commission under this subdivision may seek judicial review of
the order under Article 4 of Chapter 150B of the General Statutes without first commencing a contested
case. An order may not be stayed while it is being reviewed.
(9) If an investigation conducted pursuant to this Article or Article 21B of this Chapter reveals a
violation of any rules, standards, or limitations adopted by the Commission pursuant to this Article or

Article 21B of th is Chapter, or a violation of any terms or conditions of any permit issued pursuant to

G.S. 143

‐ 215.1 or 143

‐ 215.108, or special order or other document issued pursuant to G.S. 143

‐ 215.2 or

G.S. 143

‐ 215.110, the Commission may assess the reasonable costs o f any investigation, inspection or
monitoring survey which revealed the violation against the person responsible therefor. If the violation
resulted in an unauthorized discharge to the waters or atmosphere of the State, the Commission may also
assess the p erson responsible for the violation for any actual and necessary costs incurred by the State in
removing, correcting or abating any adverse effects upon the water or air resulting from the unauthorized
discharge. If the person responsible for the violation refuses or fails within a reasonable time to pay any
sums assessed, the Commission may institute a civil action in the superior court of the county in whichNorth Carolina General Statutes 11

1997 8

- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3 the violation occurred or, in the Commission's discretion, in the superior court of the county in which
such person resides or has his or its principal place of business, to recover such sums.
(10) To require a laboratory facility that performs any tests, analyses, measurements, or monitoring
required under this Article or Article 21B of this Chap ter to be certified annually by the Department, to
establish standards that a laboratory facility and its employees must meet and maintain in order for the
laboratory facility to be certified, and to charge a laboratory facility a fee for certification. Fe es collected

under this subdivision shall be credited to the Water and Air Account and used to administer this
subdivision. These fees shall be applied to the cost of certifying commercial, industrial, and municipal
laboratory facilities.
(11) Repeale d by Session Laws 1983, c. 296, s. 6.
(12) To declare an emergency when it finds that a generalized condition of water or air pollution which
is causing imminent danger to the health or safety of the public. Regardless of any other provisions of

law, if the Department finds that such a condition of water or air pollution exists and that it creates an
emergency requiring immediate action to protect the public health and safety or to protect fish and
wildlife, the Secretary of the Department with the con currence of the Governor, shall order persons
causing or contributing to the water or air pollution in question to reduce or discontinue immediately the
emission of air contaminants or the discharge of wastes. Immediately after the issuance of such order, the
chairman of the Commission shall fix a place and time for a hearing before the Commission to be held
within 24 hours after issuance of such order, and within 24 hours after the commencement of such
hearing, and without adjournment thereof, the Commissi on shall either affirm, modify or set aside the

order.
In the absence of a generalized condition of air or water pollution of the type referred to above, if the
Secretary finds that the emissions from one or more air contaminant sources or the discharge o f wastes
from one or more sources of water pollution is causing imminent danger to human health and safety or to
fish and wildlife, he may with the concurrence of the Governor order the person or persons responsible
for the operation or operations in quest ion to immediately reduce or discontinue the emissions of air
contaminants or the discharge of wastes or to take such other measures as are, in his judgment, necessary,
without regard to any other provisions of this Article or Article 21B of this Chapter. In such event, the
requirements for hearing and affirmance, modification or setting aside of such orders set forth in the
preceding paragraph of this subdivision shall apply.
(13) Repealed by Session Laws 1983, c. 296, s. 6.
(14) To certify and approve, by appropriate delegations and conditions in permits required by G.S.

143

‐ 215.1, requests by publicly owned treatment works to implement, administer and enforce a
pretreatment program for the control of pollutants which pass through or interfere w ith treatment
processes in such treatment works; and to require such programs to be developed where necessary to
comply with the Federal Water Pollution Control Act and the Resource Conservation and Recovery Act,
including the addition of conditions and co mpliance schedules in permits required by G.S. 143

‐ 215.1.
Pretreatment programs submitted by publicly owned treatment works shall include, at a minimum, the
adoption of pretreatment standards, a permit or equally effective system for the control of polluta nts contributed to the treatment works, and the ability to effectively enforce compliance with the program.North Carolina General Statutes 12

1997 8

- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3 (15) To adopt rules for the prevention of pollution from underground tanks containing petroleum,
petroleum products, or hazardous substances. R ules adopted under this section may incorporate standards
and restrictions which exceed and are more comprehensive than comparable federal regulations.
(16) To adopt rules limiting the manufacture, storage, sale, distribution or use of cleaning agents
containing phosphorus pursuant to G.S. 143

‐ 214.4(e), and to adopt rules limiting the manufacture,
storage, sale, distribution or use of cleaning agents containing nitrilotriacetic acid.
(17) To adopt rules to implement Part 2A of Article 21A of Chapt er 143.
(b) Research Functions.

– The Department shall have the power to conduct scientific experiments,
research, and investigations to discover economical and practical corrective methods for air pollution and
waste disposal problems. To this end, the Department may cooperate with any public or private agency or
agencies in the conduct of such experiments, research, and investigations, and may, when funds permit,
establish research studies in any North Carolina educational institution, with the con sent of such
institution. In addition, the Department shall have the power to cooperate and enter into contracts with
technical divisions of State agencies, institutions and with municipalities, industries, and other persons in
the execution of such survey s, studies, and research as it may deem necessary in fulfilling its functions
under this Article or Article 21B of this Chapter. All State departments shall advise with and cooperate
with the Department on matters of mutual interest.
(c) Relation wi th the Federal Government.

– The Commission as official water and air pollution
control agency for the State is delegated to act in local administration of all matters covered by any
existing federal statutes and future legislation by Congress relating to water and air quality control. In
order for the State of North Carolina to effectively participate in programs administered by federal
agencies for the regulation and abatement of water and air pollution, the Department is authorized to
accept and administ er funds provided by federal agencies for water and air pollution programs and to
enter into contracts with federal agencies regarding the use of such funds.
(d) Relations with Other States.

– The Commission or the Department may, with the approval o f the
Governor, consult with qualified representatives of adjoining states relative to the establishment of
regulations for the protection of waters and air of mutual interest, but the approval of the General
Assembly shall be required to make any regulati ons binding.

(e) Variances.

– Any person subject to the provisions of G.S. 143

‐ 215.1 or 143

‐ 215.108 may apply
to the Commission for a variance from rules, standards, or limitations established pursuant to G.S.

143

‐ 214.1, 143

‐ 215, or 143

‐ 215.107. The Commission may grant such variance, for fixed or indefinite
periods after public hearing on due notice, or where it is found that circumstances so require, for a period
not to exceed 90 days without prior hearing and notice. Prior to granting a variance h ereunder, the

Commission shall find that:
(1) The discharge of waste or the emission of air contaminants occurring or proposed to occur do not
endanger human health or safety; and
(2) Compliance with the rules, standards, or limitations from which variance is sought cannot be
achieved by application of best available technology found to be economically reasonable at the time of
application for such variances, and would produce serious hardship without equal or greater benefits to
the public, p rovided that such variances shall be consistent with the provisions of the Federal Water
Pollution Control Act as amended or the Clean Air Act as amended; and provided further, that any person

who would otherwise be entitled to a variance or modification u nder the Federal Water Pollution ControlNorth Carolina General Statutes 13

1997 8

- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3 Act as amended or the Clean Air Act as amended shall also be entitled to the same variance from or
modification in rules, standards, or limitations established pursuant to G.S. 143

‐ 214.1, 143

‐ 215, and

143

‐ 215.107, r espectively.

(f) Notification of Completed Remedial Action.

– The definitions set out in G.S. 130A

‐ 310.31(b)
apply to this subsection. Any person may submit a written request to the Department for a determination
that groundwater has been remediated to meet the standards and classifications established under this
Part. A request for a determination that groundwater has been remediated to meet the standards and
classifications established under this Part shall be accompanied by the fee required by G.S

. 130A

‐ 310.39(a)(2). If the Department determines that groundwater has been remediated to established
standards and classifications, the Department shall issue a written notification that no further remediation
of the groundwater will be required. The noti fication shall state that no further remediation of the
groundwater will be required unless the Department later determines, based on new information or
information not previously provided to the Department, that the groundwater has not been remediated to
established standards and classifications or that the Department was provided with false or incomplete
information. Under any of those circumstances, the Department may withdraw the notification and
require responsible parties to remediate the groundwater to established standards and classifications.
(1951, c. 606; 1957, c. 1267, s. 3; 1959, c. 779, s. 8; 1963, c. 1086; 1967, c. 892, s. 1; 1969, c. 538; 1971,

c. 1167, ss. 7, 8; 1973, c. 698, ss. 1

‐ 7, 9, 17; c. 712, s. 1; c. 1262, ss. 23, 86; c. 1331, s. 3; 1975, c. 583, ss.

5, 6; c. 655, s. 3; 1977, c. 771, s. 4; 1979, c. 633, ss. 6

‐ 8; 1979, 2nd Sess., c. 1158, ss. 1, 3, 4; 1983, c.

296, ss. 5

‐ 8; 1985, c. 551, s. 2; 1987, c. 111, s. 2; c. 767, s. 1; c. 827, ss. 1, 154, 161, 266; 1987 (Reg.

Sess., 1988), c. 1 035, s. 2; 1989, c. 500, s. 122; c. 652, s. 1; 1991, c. 552, ss. 2, 11; c. 712, s. 2; 1991 (Reg.
Sess., 1992), c. 890, s. 16; c. 1039, ss. 14, 20.1; 1993, c. 344, s. 2; c. 400, ss. 1(c), 2, 3, 15; c. 496, s. 4;
1993 (Reg. Sess., 1994), c. 694, s. 1; 1995, c. 484, s. 5; 1997

‐ 357, s. 6; 1997

‐ 496, s. 4; 1998

‐ 212, s.

29A.11(b).)North Carolina General Statutes 14

1997 8

- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3 15A NCAC 02A .0105 DELEGATIONS OF AUTHO RITY (a) The N.C. Environmental Management Commission therefore resolves that: (1) Whenever in these resolutions and rules there exists a delegation of authority to the Director, Office of Water and Air Resources (now the Division of Environmental Management), it shall become and read as a delegation of authority to the Secretary of the Department of Environment, Health, and N atural Resources to act on behalf of the N.C. Environmental Management Commission; and (2) The Secretary of the Department of Environment, Health, and Natural Resources, in addition to the delegations mentioned in Paragraph (a)(1) of this Rule, i s hereby delegated the authority to issue permits for the Environmental Management Commission as provided in N.C. General

Statutes 143

- 215.1, 143

- 215.108, 143

- 215.109, 143

- 215.15, 143

- 215.28, and 87

- 88, and to approve the use of chemicals or other dispersa nts or treatment materials as provided in G.S.

143

- 215.84(a), and the Secretary or his delegate shall report all such issuances or approvals to the Commission; and (3) The Secretary of the Department of Environment, Health, and Natural Resources may delegate such of these authorities to any qualified employee of the Department of Environment, Health, and Natural Resources upon a finding by the Secretary of necessity in order to effectively and efficiently administer and enforce the rules of the N. C. Environmental Management Commission. (b) Power to Enter Operational Agreements. The Commission authorizes the Secretary, on behalf of the Commission, to enter into any future operational agreements among the Commission, the developer of a condominium p roject or projects, and the condominium homeowners' association. The purpose of the operational agreement is to provide for an orderly transfer of permits issued to condominium project developers by the Commission; to identify the party to whom the develo per will transfer the permit; and to guarantee that transferee homeowners' associations will comply with conditions of permits issued developers. (c) Therefore, the Environmental Management Commission hereby resolves that: The Secretary, Department of

En vironment, Health, and Natural Resources is authorized to: (1) determine eligibility of applicants in accordance with Rule .0201, State Grants, found in Subchapter 2F of this Title; (2) give public notice of each eligible application as required in Rule .0201, State Grants, found in Subchapter 2F of this Title; (3) notify the applicant of the Commissions' recommended grant award as required in Rule .0201, State Grants, found in Subchapter 2F of this Title; (4) notify the applicant of a determination by the Commission of failure to qualify for a grant award as required in Rule .0201, State Grants, found in Subchapter 2F of this Title; (5) forward to the Department of Administration a Certificate of Eligibility for each grant award as required in Rule .0201, State Grants, found in Subchapter 2F of this Title; (6) prepare and file the annual report as required in Rule .0201, State Grants, found in Subchapter 2F of this Title; (7) redelegate any or all of the above duties to employees of the Division of Environmental Management.

History Note: Authority G.S. 143

- 215.3(a)(1); 143

- 215.3(a)(4);

Eff. February 1, 1976; Amended Eff. March 1, 1993; July 1, 1988; November 1, 1978.North Carolina General Statutes 15

1997 8

- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3 N.C.G.S. § 138A. State Government Ethics Act. (select portions)

Article 1.

General Provisions § 138A

- 2. Purpose. The purpose of this Chapter is to ensure that elected and appointed State agency officials exercise their authority honestly and fairly, free from impropriety, threats, favoritism, and undue influence. To this end, it is the intent of the General Assembly in this Chapter to ensure that standards of ethical conduct and standards regarding conflicts of interest are clearly established for elected and appointed State agency officials, that the State continually

educates these officials on matters of ethical co nduct and conflicts of interest, that potential and actual conflicts of interests are identified and resolved, and that violations of standards of ethical conduct and conflicts of interest are investigated and properly addressed. (2006

- 201, s. 1.)

§ 138A

- 3. Definitions. The following definitions apply in this Chapter: (1) Blind trust.

– A trust established by or for the benefit of a covered person or a member of the covered person's immediate family for divestiture of all control and knowledge of a ssets. A trust qualifies as a blind trust under this subdivision if the covered person or a member of the covered person's immediate family has no knowledge of the holdings and sources of income of the trust, the trustee of the trust is independent of and not associated with or employed by the covered person or a member of the covered person's immediate family and is not a member of the covered person's extended family, and the trustee has sole discretion as to the management of the trust assets. (1c) Board.

– Any State board, commission, council, committee, task force, authority, or similar public body, however denominated, created by statute or executive order, as determined and designated by the Commission, except for those public bodies that

have on ly advisory authority. (2) Business.

– Any of the following organized for profit:

a. Association.

b. Business trust.

c. Corporation.

d. Enterprise.

e. Joint venture.

f. Organization.

g. Partne rship.

h. Proprietorship.

i. Vested trust. j. Every other business interest, including ownership or use of land for income. (3) Business with which associated.

– A business in which the covered person or filing

person or an y member of that covered person's or filing person's immediate family does any of the following:

a. Is an employee.

b. Holds a position as a director, officer, partner, proprietor, or member or manager of a limited liability company, irrespective of the amount of compensation received or the amount of the interest owned.

c. Owns a legal, equitable, or beneficial interest of ten thousand dollars ($10,000) or more in the business or five percent (5%) of the business,

whichever is less, other than as a trustee on a deed of trust.

d. Is a lobbyist registered under Chapter 120C of the General Statutes.North Carolina General Statutes 16

1997 8

- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3 For purposes of this subdivision, the term "business" shall not include a widely held investment fund, including a mutual fun d, regulated investment company, or pension or deferred compensation plan, if all of the following apply:

1. The covered person, filing person, or a member of the covered person's or filing person's immediate family neither exercises nor has

the ab ility to exercise control over the financial interests held by the

fund.

2. The fund is publicly traded, or the fund's assets are widely diversified. (4) Commission.

– The State Ethics Commission. (5) Committee.

– The Legislative Ethi cs Committee as created in Part 3 of Article 14 of Chapter 120 of the General Statutes. (6) Compensation.

– Any money, thing of value, or economic benefit conferred on or received by any covered person or filing person in return for services rendere d or to be rendered by that covered person or filing person or another. This term does not include campaign contributions properly received and, reported as required by Article 22A of Chapter 163 of the General Statutes. (7) Confidential information

. – Information defined as confidential by the law. (8) Constitutional officers of the State.

– Officers whose offices are established by

Article III of the North Carolina Constitution. (9) Contract.

– Any agreement, including sales and conve yances of real and personal property, and agreements for the performance of services. (10) Covered person.

– A legislator, public servant, or judicial officer, as identified by the

Commission under G.S. 138A

- 11. (11) Repealed by Session Laws 2008

- 213, s. 84(c), effective August 15, 2008. (12) Employing entity.

– For public servants, any of the following bodies of State government of which the public servant is an employee or a member, or over which the public servant exercises supervision: a gencies, authorities, boards, commissions, committees, councils, departments, offices, institutions and their subdivisions, and constitutional offices of the State. For legislators, it is the house of which the legislator is a member. For legislative emplo yees, it is the authority that hired the individual. For judicial employees, it is the Chief Justice. (13) Extended family.

– Spouse, lineal descendant, lineal ascendant, sibling, spouse's lineal descendant, spouse's lineal ascendant, spouse's sibling , and the spouse of any

of these individuals. (14) Filing person.

– An individual required to file a statement of economic interest under

G.S. 138A

- 22. (14a), (14b) Reserved for future codification purposes. (14c) Financial benefit.

– A direct pe cuniary gain or loss to the legislator, the public servant, or a person with which the legislator or public servant is associated, or a direct pecuniary loss to a business competitor of the legislator, the public servant, or a person with which the legisla tor or public servant is associated. (15) Gift.

– Anything of monetary value given or received without valuable consideration by or from a lobbyist, lobbyist principal, liaison personnel, or a person described

under G.S. 138A

- 32(d)(1), (2), or (3). The following shall not be considered gifts

under this subdivision:

a. Anything for which fair market value, or face value if shown, is paid by the covered person or legislative employee.North Carolina General Statutes 17

1997 8

- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3

b. Commercially available loans made on terms not mo re favorable than generally available to the general public in the normal course of business if not made for lobbying.

c. Contractual arrangements or commercial relationships or arrangements made

in the normal course of business if not made for lob bying.

d. Academic or athletic scholarships based on the same criteria as applied to the public.

e. Anything of value properly reported as required under Article 22A of Chapter

163 of the General Statutes.

f. Expressions of condole nce related to a death of an individual, sent within a reasonable time of the death, if the expression is one of the following:

1. A sympathy card, letter, or note.

2. Flowers.

3. Food or beverages for immediate consumption.

4. Donations to a religious organization, charity, the State or a political subdivision of the State, not to exceed a total of two hundred dollars ($200.00) per death per donor. (15a) through (15c) Reserved for future codification purposes. (15d) Gov ernmental unit.

– A political subdivision of the State, and any other entity or organization created by a political subdivision of the State. (16) Honorarium.

– Payment for services for which fees are not legally or traditionally required. (17) I mmediate family.

– An unemancipated child of the covered person residing in the household and the covered person's spouse, if not legally separated. A member of a covered person's extended family shall also be considered a member of the immediate family if actually residing in the covered person's household. (18) Judicial employee.

– The director and assistant director of the Administrative Office of the Courts and any other individual, designated by the Chief Justice, employed in the Judicial Departme nt whose annual compensation from the State is sixty thousand dollars ($60,000) or more. (19) Judicial officer.

– Justice or judge of the General Court of Justice, district attorney, clerk of court, or any individual elected or appointed to any of the se positions prior to taking office. (20) Legislative action.

– As the term is defined in G.S. 120C

- 100. (21) Legislative employee.

– As the term is defined in G.S. 120C

- 100. (22) Legislator.

– A member or presiding officer of the General As sembly, or an individual elected or appointed a member or presiding officer of the General Assembly before taking office. (23) Lobbying.

– As the term is defined in G.S. 120C

- 100. (24) Nonprofit corporation or organization with which associated.

– Any not for profit corporation, organization, or association, incorporated or otherwise, that is organized or operating in the State primarily for religious, charitable, scientific, literary, public health and safety, or educational purposes and of which the covered person, filing person, or any member of the covered person's or filing person's immediate family is a director, officer, governing board member, employee, lobbyist registered under Chapter 120C of the General Statutes, or independent contracto r. Nonprofit corporation or organization with which associated shall not include any board, entity,North Carolina General Statutes 18

1997 8

- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3

or other organization created by this State or by any political subdivision of this

State. (25) Official action.

– Any decision, including administration, approval, disapproval, preparation, recommendation, the rendering of advice, and investigation, made or contemplated in any proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, inve stigation, charge, or rule making. (26) Participate.

– To take part in, influence, or attempt to influence, including acting through an agent or proxy. (26c) Permanent designee.

– An individual designated by a public servant to serve and vote

in th e absence of the public servant on a regular basis on a board on which the public

servant serves. (27) Person.

– Any individual, firm, partnership, committee, association, corporation, business, or any other organization or group of persons acting tog ether. The term "person" does not include the State, a political subdivision of the State, a board, or any other entity or organization created by the State or a political subdivision of the

State. (27a), (27b) Reserved for future codification purposes. (27c) Person with which the legislator is associated.

– Any of the following:

a. A member of the legislator's extended family.

b. A client of the legislator.

c. A business with which the legislator or a member of the legislator's immediate family is associated.

d. A nonprofit corporation or association with which the legislator or a member of the legislator's immediate family is associated.

e. The State, a political subdivision of the State, a board, or any other e ntity or organization created by the State or a political subdivision of the State that employs the legislator or a member of the legislator's immediate family. (27d) Person with which the public servant is associated.

– Any of the following:

a. A member of the public servant's extended family.

b. A client of the public servant.

c. A business with which the public servant or a member of the public servant's immediate family is associated.

d. A nonprofit corporation or assoc iation with which the public servant or a member of the public servant's immediate family is associated.

e. The State, a political subdivision of the State, a board, or any other entity or organization created by the State or a political subdivisio n of the State that employs the public servant or a member of the public servant's immediate family. (28) Political party.

– Either of the two largest political parties in the State based on statewide voter registration at the applicable time. (29) Repealed by Session Laws 2008

- 213, s. 49, effective August 15, 2008. (30) Public servants.

– All of the following:

a. Constitutional officers of the State and individuals elected or appointed as constitutional officers of the State prior to taking office.

b. Employees of the Office of the Governor.

c. Heads of all principal State departments, as set forth in G.S. 143B

- 6, who are appointed by the Governor.North Carolina General Statutes 19

1997 8

- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3

d. The chief deputy and chief administrative assistant of each individual designated under sub

- subdivision a. or c. of this subdivision.

e. Confidential assistants and secretaries as defined in G.S. 126

- 5(c)(2), to individuals designated under sub

- subdivision a., c., or d. of this subdivision.

f. Employees in exempt positions designated in accordance with G.S.

126

- 5(d)(1), (2), or (2a) and confidential secretaries to these individuals.

g. Any other employees or appointees in the principal State departments as may be designated by the Govern or to the extent that the designation does not

conflict with the State Personnel Act.

h. Judicial employees.

i. All voting members of boards, including ex officio members, permanent designees of any voting member, and members serving by ex ecutive, legislative, or judicial branch appointment. j. For The University of North Carolina, the voting members of the Board of Governors of The University of North Carolina, the president, the

vice

- presidents, and the chancellors, the vice

- chan cellors, and voting

members of the boards of trustees of the constituent institutions.

k. For the Community College System, the voting members of the State Board of Community Colleges, the President and the chief financial officer of the Community College System, the president, chief financial officer, and chief administrative officer of each community college, and voting members of the boards of trustees of each community college.

l. Members of the Commission, the executive director, and t he assistant

executive director of the Commission.

m. Individuals under contract with the State working in or against a position

included under this subdivision.

n. The director of the Office of State Personnel.

o. The State Controll er.

p. The chief information officer, deputy chief information officers, chief financial officers, and general counsel of the Office of Information Technology Services.

q. The director of the State Museum of Art.

r. The executive d irector of the Agency for Public Telecommunications.

s. The Commissioner of Motor Vehicles.

t. The Commissioner of Banks and the chief deputy commissioners of the Banking Commission.

u. The executive director of the North Carolina Housing Finance Agency.

v. The executive director, chief financial officer, and chief operating officer of the North Carolina Turnpike Authority. (30a) through (30j) Reserved for future codification purposes. (30k) State agency.

– An agency in the executive branch of the government of this State, including the Governor's Office, a board, a department, a division, and any other unit of government in the executive branch. (31) Vested trust.

– A trust, annuity, or other funds held by a trus tee or other third party for the benefit of the covered person or a member of the covered person's immediate family, except a blind trust. A vested trust shall not include a widely held investment fund, including a mutual fund, regulated investment company , or pension or deferred compensation plan, if:North Carolina General Statutes 20

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- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3

a. The covered person or a member of the covered person's immediate family neither exercises nor has the ability to exercise control over the financial interests held by the fund; and

b. The f

und is publicly traded, or the fund's assets are widely diversified. (2006

- 201, s. 1; 2007

- 347, ss. 7, 8; 2007

- 348, ss. 19

- 26; 2008

- 187, s. 44;

2008

- 213, ss. 40

- 54, 84(c); 2010

- 169, ss. 10, 17(n), (o); 2010

- 170, s. 14.)

§ 138A

- 14. Ethics education program. (a) The Commission shall develop and implement an ethics education and awareness program designed to instill in all covered persons and their immediate staffs, and legislative employees, a keen and continuing awareness of their ethical obligations a nd a sensitivity to situations that might result in real or potential conflicts of interest. (b) The Commission shall offer basic ethics education and awareness presentations to all public servants and their immediate staffs, upon their election, ap pointment, or employment, and shall offer periodic refresher presentations as the Commission deems appropriate. Every public servant shall participate in an ethics presentation approved by the Commission within six months of the public servant's election, reelection, appointment, or employment, and shall attend refresher ethics education presentations at least every two years thereafter in a manner as the Commission deems appropriate. (b1) A public servant appointed to a board determined and designated as nonadvisory under G.S.

138A

- 10(a)(3) shall attend an ethics presentation approved by the Commission within six months of notification of the designation by the Commission and at least every two years thereafter in a manner as the Commission deems appro priate. (c) The Commission, jointly with the Committee, shall make basic ethics education and awareness presentations to all legislators and legislative employees upon their election, reelection, appointment, or employment and shall offer periodic r efresher presentations as the Commission and the Committee deem appropriate. Every legislator shall participate in an ethics presentation approved by the Commission and Committee within two months of either the convening of the General Assembly to

which th e legislator is elected or within two months of the legislator's appointment, whichever is later. Every legislative employee shall participate in an ethics presentation approved by the Commission and Committee within three months of employment, and shall a ttend refresher ethics education presentations at least every two years thereafter, in a manner as the Commission and Committee deem appropriate. (d) Upon request, the Commission shall assist each agency in developing in

- house education programs and procedures necessary or desirable to meet the agency's particular needs for ethics education, conflict identification, and conflict avoidance. (e) Each agency head shall designate an ethics liaison who shall maintain active communication

with the Co mmission on all agency ethical issues. The ethics liaison shall attend ethics education and awareness programs as provided under this section and lobbying education and awareness programs as provided under G.S. 120C

- 103 and continuously assess and advise t he Commission of any issues or conduct which might reasonably be expected to result in a conflict of interest and seek advice and rulings from the Commission as to their appropriate resolution. (f) The Commission shall publish a newsletter containin g summaries of the Commission's opinions, policies, procedures, and interpretive bulletins as issued from time to time. The newsletter shall be distributed to all covered persons and legislative employees. Publication under this subsection may be

done elec tronically. (g) The Commission shall assemble and maintain a collection of relevant State laws, rules, and regulations that set forth ethical standards applicable to covered persons. This collection shall be made available electronically as resource material to public servants, and ethics liaisons, upon request. (h) Repealed by Session Laws 2009

- 549, s. 12, effective August 28, 2009.North Carolina General Statutes 21

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- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3 (i) This section shall not apply to judicial officers. (2006

- 201, s. 1; 2007

- 347, s. 9(a); 2008

- 213,

s s. 59, 60; 2009

- 10, s. 4; 2009

- 549, s. 12; 2010

- 169, s. 22(a).)

§ 138A

- 15. Duties of heads of State agencies. (a) The head of each State agency, including the chair of each board subject to this Chapter, shall take an active role in furthering et hics in public service and ensuring compliance with this Chapter. The head of each State agency and the chair of each board shall make a conscientious, good

- faith effort to assist public servants within the agency or on the board in monitoring their person al, financial, and professional affairs to avoid taking any action that results in a conflict of interest. (b) The head of each State agency, including the chair of each board subject to this Chapter, shall maintain familiarity with and stay knowled geable of the reports, opinions, newsletters, and other communications from the Commission regarding ethics in general and the interpretation and enforcement of this Chapter. The head of each State agency and the chair of each board shall also maintain fam iliarity with and stay knowledgeable of the Commission's reports, evaluations, opinions, or findings regarding individual public servants in that individual's agency or on that individual's board, or under that individual's supervision or control, includin g all reports, evaluations, opinions, or findings pertaining to actual or potential conflicts of interest. (c) When an actual or potential conflict of interest is cited by the Commission under G.S.

138A

- 24(e) with regard to a public servant sitting on a board, the conflict shall be recorded in the minutes of the applicable board and duly brought to the attention of the membership by the board's chair as often as necessary to remind all members of the conflict and to help ensure compliance with this C hapter. (d) The head of each State agency, including the chair of each board subject to this Chapter, shall periodically remind public servants under that individual's authority of the public servant's duties to the public under the ethical standards and rules of conduct in this Chapter, including the duty of each public servant to continually monitor, evaluate, and manage the public servant's personal, financial, and professional affairs to ensure the absence of conflicts of interest. (e) At t he beginning of any meeting of a board, the chair shall remind all members of their duty to avoid conflicts of interest under this Chapter. The chair also shall inquire as to whether there is any known conflict of interest with respect to any matters comin g before the board at that time. (f) The head of each State agency, including the chair of each board subject to this Chapter, shall ensure that legal counsel employed by or assigned to their agency or board are familiar with the provisions of this Chapter, including the Ethical Standards for Covered Persons set forth in Article 4 of this Chapter, and are available to advise public servants on the ethical considerations involved in carrying out their public duties in the best interest of the public. Legal counsel so engaged may consult with the Commission, seek the Commission's assistance or advice, and refer public servants and others to the Commission as appropriate. (g) Taking into consideration the individual autonomy, needs, and circumstan ces of each agency and board, the head of each State agency, including the chair of each board subject to this Chapter, shall consider the need for the development and implementation of in

- house educational programs, procedures, or policies tailored to mee t the agency's or board's particular needs for ethics education, conflict identification, and conflict avoidance. This includes the periodic presentation to all agency heads, their chief deputies or assistants, other public servants under their supervision or control, and members of boards, of the basic ethics education and awareness presentation outlined in G.S. 138A

- 14 and any other workshop or seminar program the agency head or board chair deems necessary in implementing this Chapter. Agency heads and bo ard chairs may request reasonable assistance from the Commission in complying with the requirements of this subsection. (h) As soon as reasonably practicable after the designation, hiring, or promotion of their chief deputies, assistants, or other p ublic servants under their supervision or control, or learning of theNorth Carolina General Statutes 22

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- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3 appointment or election of other public servants to a board covered under this Chapter, all agency heads and board chairs shall (i) notify the Commission of such designation, hiring, pro motion, appointment, or election and (ii) provide these public servants with copies of this Chapter and all applicable financial disclosure forms, if these materials and forms have not been previously provided to these public servants

in connection with th eir designation, hiring, promotion, appointment, or election. In order to avoid duplication of effort, agency heads and board chairs shall coordinate this effort with the Commission's

staff. (2006

- 201, s. 1; 2007

- 347, s. 9(b); 2008

- 213, ss. 61, 62.)

Article 3.

Public Disclosure of Economic Interests. § 138A

- 21. Purpose. The purpose of disclosure of the financial and personal interests by covered persons is to assist covered persons and those who appoint, elect, hire, supervise, or advise them identif y and avoid conflicts of interest and potential conflicts of interest between the covered person's private interests and the covered person's public duties. It is critical to this process that current and prospective covered persons examine, evaluate, and disclose those personal and financial interests that could be or cause a conflict of interest or potential conflict of interest between the covered person's private interests and the covered person's public duties. Covered persons must take an active, thor ough, and conscientious role in the disclosure and review process, including having a complete knowledge of how the covered person's public position or duties might impact the covered person's private interests. Covered persons have an affirmative duty to provide any and all information that a reasonable person would conclude is necessary to carry out the purposes of this Chapter and to fully disclose any conflict of interest or potential conflict of interest between the covered person's public and private interests, but the disclosure, review, and evaluation process is not intended to result in the disclosure of unnecessary or irrelevant personal

information. (2006

- 201, s. 1; 2008

- 213, s. 63.)

§ 138A

- 22. Statement of economic interest; filing required. (a) Every covered person subject to this Chapter who is elected, appointed, or employed, including one appointed to fill a vacancy in elective office, except for public servants (i) included under

G.S. 138A

- 3(30)b., e., f., or g. whose annual compen sation from the State is less than sixty thousand dollars ($60,000), or (ii) who are ex officio student members under Chapters 115D and 116 of the General Statutes, shall file a statement of economic interest with the Commission prior to the covered person 's initial appointment, election, or employment and no later than April 15 of every year thereafter, except as otherwise filed under subsections (c1) and (d) of this section. A prospective covered person required to file a statement under this Chapter shal l not be appointed, employed, or receive a certificate of election, prior to submission by the Commission of the Commission's evaluation of the statement in accordance with this Article. The requirement for an annual filing under this subsection also shall apply to covered persons whose terms have expired but who continue to serve until the covered person's replacement is appointed. Once a statement of economic interest is properly completed and filed under this Article, the

statement of economic interest d oes not need to be supplemented or refiled prior to the next due date set

forth in this subsection. (b) Notwithstanding subsection (a) of this section, individuals hired by, and appointees of, constitutional officers of the State may file a statemen t of economic interest within 30 days after their appointments or employment when the appointment or employment is made during the first 60 days of

the constitutional officer's initial term in that constitutional office. (c) Notwithstanding subsecti on (a) of this section, public servants, under G.S. 138A

- 3(30)j. and k., who have submitted a statement of economic interest under subsection (a) of this section, may beNorth Carolina General Statutes 23

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- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3 hired, appointed, or elected provisionally prior to submission by the Commission of th e Commission's evaluation of the statement in accordance with this Article, subject to dismissal or removal based on the

Commission's evaluation. (c1) A public servant reappointed to a board between January 1 and April 15 shall file a current

statemen t of economic interest prior to the reappointment. (c2) A public servant appointed to a board determined and designated as nonadvisory under G.S.

138A

- 10(a)(3) shall file the initial statement of economic interest within 60 days of notification of the designation by the Commission and as provided in this section thereafter. (d) A candidate for an office subject to this Article shall file the statement of economic interest at the same place and in the same manner as the notice of candidacy for tha t office is required to be filed

under G.S. 163

- 106 or G.S. 163

- 323 within 10 days of the filing deadline for the office the candidate

seeks. An individual who is nominated under G.S. 163

- 114 after the primary and before the general election, and an indivi dual who qualifies under G.S. 163

- 122 as an unaffiliated candidate in a general election, shall file a statement of economic interest with the county board of elections of each county in the senatorial or representative district. An individual nominated un der G.S. 163

- 114 shall file the statement within three days following the individual's nomination, or not later than the day preceding the general election, whichever occurs first. An individual seeking to qualify as an unaffiliated candidate

under G.S. 16 3

- 122 shall file the statement of economic interest with the petition filed under that section. An individual seeking to have write

- in votes counted for that individual in a general election shall file a

statement of economic interest at the same time the candidate files a declaration of intent under G.S.

163

- 123. A candidate of a new party chosen by convention shall file a statement of economic interest at the same time that the president of the convention certifies the names of its candidates to the State Board

of Elections under G.S. 163

- 98. (d1) In addition to subsections (a) and (d) of this section, a covered person holding elected office or a former covered person who held elected office subject to this Article shall file a statement of economic

in terest in all of the following instances, as specified:

(1) Filed on or before April 15 of the year following the year a covered person or former covered person does not file a notice of candidacy or petition for election, or does not

receive a cert ificate of election, to the position making that individual a covered person, with all information provided in the statement of economic interest current as of the last day of December of the preceding year. (2) Filed on or before April 15 of the ye ar following the year the covered person or former covered person resigns from the position making that individual a covered person, with all information provided in the statement of economic interest current as of the last day in the position. (e) The State Board of Elections shall provide for notification of the statement of economic interest requirements of this Article to be given to any candidate filing for nomination or election to those offices subject to this Article at the time of the filing of candidacy. (f) Within 10 days of the filing deadline for office of a covered person, the executive director of

the State Board of Elections shall send to the State Ethics Commission a list of the names and addresses

of each candidate who have fi led as a candidate for office as a covered person. A county board of election shall forward any statements of economic interest filed with the board under this section to the State

Board of Elections. The executive director of the State Board of Elections shall forward a certified copy of the statements of economic interest to the Commission for evaluation upon its filing with the State

Board of Elections under this section. (g) The Commission shall issue forms to be used for the statement of economi c interest and shall revise the forms from time to time as necessary to carry out the purposes of this Chapter. Except as

otherwise set forth in this section and in G.S. 138A

- 15(h), upon notification by the employing entity, theNorth Carolina General Statutes 24

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- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3 Commission shall furnish to all other covered persons the appropriate forms needed to comply with this

Article. (2006

- 201, s. 1; 2007

- 29, s. 2; 2007

- 348, ss. 32, 33; 2008

- 213, s. 64; 2009

- 549, s. 13; 2010

- 169, ss. 12, 22(b).)

§ 138A

- 23. Statements of economic interest as public records. (a) The statements of economic interest filed by prospective public servants under this Article for appointed or employed positions and written evaluations by the Commission of these statements are not public records until the prospective p ublic servant is appointed or employed by the State. All other statements of economic interest and all other written evaluations by the Commission of those statements are public records. (b) The statements of economic interest filed by prospective p ublic servants, and the written evaluations by the Commission of those statements, for individuals elected by the General Assembly shall be provided to the chair of the standing committee handling the legislation regarding the election and

made available t o all members of the General Assembly. The statements of economic interest filed by public servants elected to positions by the General Assembly, and written evaluations by the Commission of those statements, are not public records until the prospective pu blic servant is sworn into office. (c) The statements of economic interest filed by prospective public servants, and the written evaluations by the Commission of those statements, for individuals confirmed for appointment as a public servant by the General Assembly shall be provided to the chair of the standing committee handling the legislation regarding the appointment. The statements of economic interest filed by prospective public servants for confirmation for appointment by the General Assembly, and written evaluations by the Commission of those statements, are public records at the time of the announcement of the appointment. (2006

- 201, s. 1; 2007

- 347, s. 10; 2008

- 213, ss. 65, 66.)

§ 138A

- 24. Contents of statement. (a) Any statement o f economic interest filed under this Article shall be on a form prescribed by the Commission. Answers must be provided to all questions. The form shall include the following information about the filing person and the filing person's immediate family:

(1) Except as otherwise provided in this subdivision, the name, current mailing address, occupation, employer, and business of the filing person. Any individual holding or seeking elected office for which residence is a qualification for office shall in clude a home address. A judicial officer may use a current mailing address instead of the home address on the form required in this subsection. The filing person may also use the initials instead of the name of any unemancipated child of the filing person who also resides in the household of the filing person. If the filing person provides the initials of an unemancipated child, the filing person shall concurrently provide the name of the unemancipated child to the Commission. The name of an unemancipated

c hild provided by the filing person to the Commission shall not be a public record under Chapter 132 of the General Statutes and is privileged and confidential. (2) A list of each asset and liability included in this subdivision of whatever nature (i ncluding legal, equitable, or beneficial interest) with a value of at least ten thousand dollars ($10,000) owned by the filing person and the filing person's immediate family, except assets or liabilities held in a blind trust. This list shall include the following:

a. All real estate located in the State owned wholly or in part by the filing person or the filing person's immediate family, including descriptions adequate to determine the location by city and county of each parcel.

b. Real es tate that is currently leased or rented to or from the State.North Carolina General Statutes 25

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- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3

c. Personal property sold to or bought from the State within the preceding two

years. d. Personal property currently leased or rented to or from the State.

e. The name of each publicly owned company. For purposes of this

sub

- subdivision, the term "publicly owned company" shall not include a widely held investment fund, including a mutual fund, regulated investment company, or pension or deferred compensation plan, if all o f the following apply:

1. The filing person or a member of the filing person's immediate family neither exercises nor has the ability to exercise control over the financial interests held by the fund.

2. The fund is publicly traded, or the fund's assets are widely diversified.

f. The name of each nonpublicly owned company or business entity, including interests in sole proprietorships, partnerships, limited partnerships, joint ventures, limited liability companies, limited liability partnerships, and closely held corporations.

g. For each company or business entity listed under sub

- subdivision f. of this subdivision, if known, a list of any other companies or business entities in which the company or business entity owns secu rities or equity interests exceeding a value of ten thousand dollars ($10,000).

h. Repealed by Session Laws 2010

- 169, s. 13(a), effective January 1, 2011, and applicable to statements of economic interest filed on or after that date.

i. Re codified as subdivision (a)(16) by Session Laws 2010

- 169, s. 13(c), effective January 1, 2011, and applicable to statements of economic interest

filed on or after that date. j. For a vested trust created, established, or controlled by the filing p erson of which the filing person or the members of the filing person's immediate family are the beneficiaries, excluding a blind trust, the name and address of the trustee, a description of the trust, and the filing person's relationship to

the trust.

k. A list of all liabilities, excluding indebtedness on the filing person's primary personal residence, by type of creditor and debtor.

l. Repealed by Session Laws 2007

- 348, s. 34. See Editor's note for effective

date.

m. A list of all stock options in a company or business not otherwise disclosed on

this statement. (3) The name of each source (not specific amounts) of income of more than five thousand dollars ($5,000) received during the previous year by business or industry

type , if that source is not listed under subdivision (2) of this subsection. Income shall include salary, wages, professional fees, honoraria, interest, dividends, rental income, and business income from any source other than capital gains, federal government retirement, military retirement, or social security income. (4) If the filing person is a practicing attorney, an indication of whether the filing person, or the law firm with which the filing person is affiliated, earned legal fees during the
past year in excess of ten thousand dollars ($10,000) from any of the following categories of legal representation:

a. Administrative law.

b. Admiralty law.North Carolina General Statutes 26

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- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3

c. Corporate law.

d. Criminal law.

e. Decedents' estates law.

f. Environmental law.

g. Insurance law.

h. Labor law.

i. Local government law. j. Negligence or other tort litigation law.

k. Real property law.

l. Securities law.

m. Taxation law.

n. Utilities regulation law. (5) Except for a filing person in compliance under subdivision (4) of this subsection, if the filing person is a licensed professional or provides consulting services, either individually or as a member of a professional a ssociation, a list of categories of business and the nature of services rendered, for which payment for services were charged or paid during the past year in excess of ten thousand dollars ($10,000). (6) An indication of whether the filing person, t he filing person's employer, a member of the filing person's immediate family, or the immediate family member's employer is licensed or regulated by, or has a business relationship with, the board or employing entity with which the filing person is or will be associated. This subdivision does not apply to a legislator, a judicial officer, or that legislator's or judicial officer's immediate family. (7) A list of societies, organizations, or advocacy groups, pertaining to subject matter

areas over whi ch the public servant's agency or board may have jurisdiction, in which the public servant or a member of the public servant's immediate family is a director, officer, or governing board member. This subdivision does not apply to a legislator, a judicial o fficer, or that legislator's or judicial officer's immediate family. (8) A list of all things with a total value of over two hundred dollars ($200.00) per calendar quarter given and received without valuable consideration and under

circumstances tha t a reasonable person would conclude that the thing was given for lobbying, if such things were given by a person not required to report under Chapter 120C of the General Statutes, excluding things given by a member of the filing person's extended family. The list shall include only those things received during the 12 months preceding the reporting period under subsection (d) of this section, and shall include the source of those things. The list required by this subdivision shall not apply to things of mon etary value received by the filing person prior to the time the filing person filed or was nominated as a candidate for office, as described in G.S.

138A

- 22, or was appointed or employed as a covered person. (9) A list of any felony convictions of t he filing person, excluding any felony convictions for which a pardon of innocence or order of expungement has been granted. (10) Any other information that the filing person believes may assist the Commission in advising the filing person with regard s to compliance with this Chapter. (11) A list of any nonprofit corporation or organization with which associated during the preceding calendar year, including a list of which of those nonprofit corporations or organizations with which associated do b usiness with the State or receive State funds and a brief description of the nature of the business, if known or with which due diligence could reasonably be known.North Carolina General Statutes 27

1997 8

- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3

(12) A statement of whether the filing person or the filing person's immediate family is or has been a lobbyist or lobbyist principal registered under Chapter 120C of the General Statutes within the preceding 12 months. (13) A list of all contributions as defined in G.S. 163

- 278.6(6) with a cumulative total of

more than one thousand do llars ($1,000) made by the filing person only, during the preceding calendar year, to the candidate or candidate campaign committee of the covered person as defined in G.S. 138A

- 3(30)a. appointing the filing person to the

covered board. (14) A stateme nt indicating "Yes" or "No" as to whether the filing person engaged in each of the following activities during the preceding calendar year, with respect to or on the behalf of the candidate or candidate campaign committee of the covered person as

defined i n G.S. 138A

- 3(30)a. appointing the filing person: (i) collected contributions from multiple contributors, took possession of such multiple contributions, and transferred or delivered those collected multiple contributions, (ii) hosted a

fund

- raiser in the filing person's residence or place of business, or (iii) volunteered for campaign

- related activity. This subdivision only applies to filing persons in the following categories:

a. A public servant, or a prospective appointee to, as defined in G.S.

138A

- 3(30)c.

b. A judicial officer that serves on, or a prospective appointee to, the Supreme Court, the Court of Appeals, the superior court, or the district court.

c. A covered person serving on, or a prospective appointee to, one of the following panels or boards:

1. Alcoholic Beverage Control Commission.

2. Coastal Resources Commission.

3. State Board of Education.

4. State Board of Elections.

5. Division of Employment Security.

6. Environm ental Management Commission.

7. Industrial Commission.

8. State Personnel Commission.

9. Rules Review Commission.

10. Board of Transportation.

11. Board of Governors of the University of North Carolina.

12. Utilities Commission.

13. Wildlife Resources Commission. (15) The name of each business with which associated that the filing person or a member of the filing person's immediate family is an employee, director, officer, partner, proprietor, or m ember or manager. (16) For any company or business entity listed under subdivision (15) of this subsection

and sub

- subdivisions f. and g. of subdivision (2) of this subsection, if known, a statement whether that company or business entity has any mate rial business dealings or business contracts with the State, or is regulated by the State, including a brief description of the business activity. (b) The Supreme Court, the Committee, constitutional officers of the State, heads of principal departm ents, the Board of Governors of The University of North Carolina, the State Board of Community Colleges, other boards, and the appointing authority or employing entity may require a filing person to file supplemental information in conjunction with the fil ing of that filing person's statement of economicNorth Carolina General Statutes 28

1997 8

- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3 interest. These supplemental filings requirements shall be filed with the Commission and included on the forms to be filed with the Commission. The Commission shall evaluate the supplemental forms as part o f the statement of economic interest. The failure to file supplemental forms shall be subject to the provisions of G.S. 138A

- 25. (c) Each statement of economic interest shall contain a certification by the filing person that the filing person has re ad the statement and that, to the best of the filing person's knowledge and belief, the statement is true, correct, and complete. The filing person's certification also shall provide that the filing person has not transferred, and will not transfer, any as set, interest, or other property with the intent to conceal it from disclosure while retaining an equitable interest therein. (c1) Reserved for future codification purposes. (c2) Recodified as G.S. 138A

- 22(c2) by Session Laws 2010

- 169, s. 22(b), effective August 2,

2010. (d) All information provided in the statement of economic interest shall be current as of the last day of December of the year preceding the date the statement of economic interest was due. (e) The Commission shall pr epare a written evaluation of each statement of economic interest relative to conflicts of interest and potential conflicts of interest. This subsection does not apply to statements of economic interest of legislators and judicial officers. The Commission shall submit the evaluation to all of the following:

(1) The filing person who submitted the statement. (2) The head of the agency in which the filing person serves. (3) The Governor for gubernatorial appointees and employees in agenci es under the Governor's authority. (4) Repealed by Session Laws 2008

- 213, s. 74, effective August 15, 2008. (5) The appointing or hiring authority for those public servants not under the Governor's authority. (6) The State Board of Ele ctions for those filing persons who are elected. (7) Repealed by Session Laws 2008

- 213, s. 74, effective August 15, 2008. (f) The Commission shall prepare a written evaluation of each statement of economic interest for

nominees of the Board of Governors of The University of North Carolina elected pursuant to G.S. 116

- 6, and nominees of the State Board of Community Colleges elected pursuant to G.S. 115D

- 2.1 within seven days of the submission of the completed statement of economic interest to the Commission. (2006

- 201, s. 1; 2007

- 29, s. 1; 2007

- 348, s. 34; 2008

- 187, s. 32; 2008

- 213, ss. 67

- 72(a), 73, 74, 74.5, 91; 2009

- 549, s. 14; 2009

- 570, s. 45; 2010

- 169, ss. 13(a)

- (d), 17(q), 22(b); 2011

- 401, s. 3.18.)

§ 138A

- 25. Failure to file. (a) Within 30 days after the date due under G.S. 138A

- 22, the Commission shall notify filing persons who have failed to file or filing persons whose statement has been deemed incomplete. For a filing person currently serving as a covered person, the Commis sion shall notify the filing person and the ethics liaison that if the statement of economic interest is not filed or completed within 30 days of receipt of the notice of failure to file or complete, the filing person shall be subject to a fine as provided for in

this section. (b) Any filing person who fails to file or complete a statement of economic interest within 30 days of the receipt of the notice, required under subsection (a) of this section, shall be subject to a fine of two hundred fifty do llars ($250.00), to be imposed by the Commission. (c) Failure by any filing person to file or complete a statement of economic interest within 60 days of the receipt of the notice, required under subsection (a) of this section, shall be deemed to be a violation of this Chapter and shall be grounds for disciplinary action under G.S. 138A

- 45. (2006

- 201, s. 1; 2008

- 213, s. 75; 2009

- 549, s. 15.)North Carolina General Statutes 29

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- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3 § 138A

- 26. Concealing or failing to disclose material information. A filing person who knowingly conceals or knowingly fails to disclose information that is required to be disclosed on a statement of economic interest under this Article shall be guilty of a Class 1 misdemeanor and shall be subject to disciplinary action under G.S. 138A

- 45. (2006

- 201, s. 1.)

§ 138A

- 27. Penalty for false information. A filing person who provides false information on a statement of economic interest as required under this Article knowing that the information is false is guilty of a Class H felony and shall be subject to discipl inary action under G.S. 138A

- 45. (2006

- 201, s. 1.)

Article 4.

Ethical Standards for Covered Persons. § 138A

- 35. Other rules of conduct. (a) A public servant shall make a due and diligent effort before taking any action, including voting or partic ipating in discussions with other public servants on a board on which the public servant also serves, to determine whether the public servant has a conflict of interest. If the public servant is unable to determine whether or not a conflict of interest may exist, the public servant has a duty to inquire

of the Commission as to that conflict. (b) A public servant shall continually monitor, evaluate, and manage the public servant's personal, financial, and professional affairs to ensure the absence of conflicts of interest. (c) A public servant shall obey all other civil laws, administrative requirements, and criminal statutes governing conduct of State government applicable to appointees and employees. (2006

- 201, s. 1.)

§ 138A

- 39. Disqualifica tion to serve. (a) Within 30 days of notice of the Commission's determination that a public servant has a disqualifying conflict of interest, the public servant shall eliminate the interest that constitutes the disqualifying conflict of interest or resign from the public position. (b) Failure by a public servant to comply with subsection (a) of this section is a violation of this Chapter for purposes of G.S. 138A

- 45. (c) A decision under this section shall be considered a final decision for contested case purposes under Article 3 of Chapter 150B of the General Statutes. (d) As used in this section, a disqualifying conflict of interest is a conflict of interest of such significance that the conflict of interest would prevent a publi c servant from fulfilling a substantial function or portion of the public servant's public duties. (2006

- 201, s. 1.)North Carolina General Statutes 30

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- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3 § 143

- 215.6A. Enforcement procedures: civil penalties. (a) A civil penalty of not more than twenty

- five thousand dollars ($25,000) may be assessed by the Secretary against any person who:

(1) Violates any classification, standard, limitation, or management practice established pursuant to G.S. 143

- 214.1, 143

- 214.2, or 143

- 215. (2) Is required but fails to apply for or to secure a permit required by G.S. 143

- 215.1, or who violates or fails to act in accordance with the terms, conditions, or requirements of such permit or any other permit or certification issued pursuant to authority conferred by this Part, includ ing pretreatment permits issued by local governments and laboratory certifications. (3) Violates or fails to act in accordance with the terms, conditions, or requirements of any special order or other appropriate document issued pursuant to G.S. 143

- 215.2. (4) Fails to file, submit, or make available, as the case may be, any documents, data, or reports required by this Article or G.S. 143

- 355(k) relating to water use information. (5) Refuses access to the Commission or its duly designat ed representative to any premises for the purpose of conducting a lawful inspection provided for in this

Article. (6) Violates a rule of the Commission implementing this Part, Part 2A of this Article, or

G.S. 143

- 355(k). (7) Violates or fails to act in accordance with the statewide minimum water supply watershed management requirements adopted pursuant to G.S. 143

- 214.5, whether enforced by the Commission or a local government. (8) Violates the offenses set out in G.S. 143

- 215.6B. (9) Is required, but fails, to apply for or to secure a certificate required by G.S.

143

- 215.22L, or who violates or fails to act in accordance with the terms, conditions, or requirements of the certificate. (10) Violates subsections (c1) through (c 5) of G.S. 143

- 215.1 or a rule adopted pursuant to subsections (c1) through (c5) of G.S. 143

- 215.1. (11) Violates or fails to act in accordance with G.S. 143

- 214.7(d1). (a1) For purposes of this section, the term "Part" includes Part 1A of this A rticle. (b) If any action or failure to act for which a penalty may be assessed under this section is continuous, the Secretary may assess a penalty not to exceed twenty

- five thousand dollars ($25,000) per day for so long as the violation continues, unless otherwise stipulated. (b1) The Secretary may assess a civil penalty of more than ten thousand dollars ($10,000) or, in the case of a continuing violation, more than ten thousand dollars ($10,000) per day, against a violator only if a civil penalty has been imposed against the violator within the five years preceding the violation. The Secretary may assess a civil penalty of more than ten thousand dollars ($10,000) or, in the case of a continuing violation, more than ten thousand dollars ($10 ,000) per day for so long as the violation continues, for a violation of subdivision (4) of subsection (a) of this section only if the Secretary

determines that the violation is intentional. (c) In determining the amount of the penalty the Secretary shall consider the factors set out in

G.S. 143B

- 282.1(b). The procedures set out in G.S. 143B

- 282.1 shall apply to civil penalty assessments that are presented to the Commission for final agency decision. (d) The Secretary shall notify any person as sessed a civil penalty of the assessment and the specific reasons therefor by registered or certified mail, or by any means authorized by G.S. 1A

- 1, Rule 4. Contested case petitions shall be filed within 30 days of receipt of the notice of assessment. (e) Consistent with G.S. 143B

- 282.1, a civil penalty of not more than ten thousand dollars ($10,000) per month may be assessed by the Commission against any local government that fails to adoptNorth Carolina General Statutes 31

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- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3 a local water supply watershed protection program as requir ed by G.S. 143

- 214.5, or willfully fails to

administer or enforce the provisions of its program in substantial compliance with the minimum statewide water supply watershed management requirements. No such penalty shall be imposed against a local governmen t until the Commission has assumed the responsibility for administering and enforcing the local water supply watershed protection program. Civil penalties shall be imposed pursuant to a uniform schedule adopted by the Commission. The schedule of civil pena lties shall be based on acreage and other relevant cost factors and shall be designed to recoup the costs of administration and

enforcement. (f) Requests for remission of civil penalties shall be filed with the Secretary. Remission requests

shall no t be considered unless made within 30 days of receipt of the notice of assessment. Remission requests must be accompanied by a waiver of the right to a contested case hearing pursuant to Chapter 150B and a stipulation of the facts on which the assessment w as based. Consistent with the limitations in

G.S. 143B

- 282.1(c) and (d), remission requests may be resolved by the Secretary and the violator. If the Secretary and the violator are unable to resolve the request, the Secretary shall deliver remission reques ts and his recommended action to the Committee on Civil Penalty Remissions of the Environmental Management Commission appointed pursuant to G.S. 143B

- 282.1(c). (g) If any civil penalty has not been paid within 30 days after notice of assessment has been served on the violator, the Secretary shall request the Attorney General to institute a civil action in the Superior Court of any county in which the violator resides or has his or its principal place of business to

recover the amount of the assessmen t, unless the violator contests the assessment as provided in subsection (d) of this section, or requests remission of the assessment in whole or in part as provided in subsection (f) of this section. If any civil penalty has not been paid within 30 days a fter the final agency decision or court order has been served on the violator, the Secretary shall request the Attorney General to institute a civil action in the Superior Court of any county in which the violator resides or has his or its principal place of business to recover the amount of the assessment. Such civil actions must be filed within three years of the date the final agency decision or court order was served on the violator. (h) Repealed by Session Laws 1995 (Regular Session, 1996), c. 7 43, s. 14. (h1) The clear proceeds of civil penalties assessed by the Secretary or the Commission pursuant to this section shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S.

115C

- 457.2. (i) As used in this subse ction, "municipality" refers to any unit of local government which operates a wastewater treatment plant. As used in this subsection, "unit of local government" has the same meaning as in G.S. 130A

- 290. The provisions of this subsection shall apply wheneve r a municipality that operates a wastewater treatment plant with an influent bypass diversion structure and with a permitted discharge of 10 million gallons per day or more into any of the surface waters of the State that have been

classified as nutrient s ensitive waters (NSW) under rules adopted by the Commission is subject to a court order which specifies (i) a schedule of activities with respect to the treatment of wastewater by the municipality; (ii) deadlines for the completion of scheduled activities; and (iii) stipulated penalties for failure to meet such deadlines. A municipality as specified herein that violates any provision of such order for which a penalty is stipulated shall pay the full amount of such penalty as provided in the order unless

suc h penalty is modified, remitted, or reduced by the court. (j) Local governments certified and approved by the Commission to administer and enforce pretreatment programs pursuant to G.S. 143

- 215.3(a)(14), stormwater programs pursuant to G.S.

143

- 214 .7, or riparian buffer protection programs pursuant to G.S. 143

- 214.23 may assess civil penalties for violations of their respective programs in accordance with the powers conferred upon the Commission and the Secretary in this section, except that actions for collection of unpaid civil penalties shall be referred to the attorney representing the assessing local government. The total of the civil penalty assessedNorth Carolina General Statutes 32

1997 8

- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3 by a local government and the civil penalty assessed by the Secretary for any violation may not exceed the maximum civil penalty for such violation under this section. (k) A person who has been assessed a civil penalty by a local government as provided by subsection (j) of this section may request a review of the assessment by filing a reques t for review with the local government within 30 days of the date the notice of assessment is received. If a local ordinance provides for a local administrative hearing, the hearing shall afford minimum due process including an unbiased hearing official. T he local government shall make a final decision on the request for review within 90 days of the date the request for review is filed. The final decision on a request for review shall be subject to review by the superior court pursuant to Article 27 of Chap ter 1 of the General Statutes. If the local ordinance does not provide for a local administrative hearing, a person who has been assessed a civil penalty by a local government as provided by subsection (j) of this section may contest the assessment by fili ng a civil action in superior court within 60 days of the date the notice of assessment is received. (1951, c. 606; 1967, c. 892, s. 1; 1973, c. 698, s. 12; c. 712, s. 2; c. 1262, s. 23; c. 1331, s. 3; 1975, c. 583, s. 7; c. 842, ss. 6, 7; 1977, c. 771, s. 4; 1979, c. 633, ss. 9

- 11; 1981, c. 514, s. 1; c. 585, s. 13; 1987, c. 271; c. 827, ss. 154, 164; 1989, c. 426, s. 4; 1989 (Reg. Sess., 1990), c. 951, s. 1; c. 1036, s. 3; c. 1045, s. 1; c. 1075, s. 6; 1991, c. 579, s. 2; c. 725, s. 3; 1993, c. 348, s. 2; 1995 (Reg. Sess., 1996), c. 743, s. 14; 1997

- 458, s. 6.2; 1998

- 215, s. 63; 1999

- 329, ss. 5.1, 5.3, 5.5, 5.7; 2004

- 124, s. 6.29(b); 2006

- 250, s. 6; 2007

- 484, s. 43.7C; 2007

- 518, s. 5; 2007

- 536, s. 3.)

§ 143

- 215.6B. Enforcement procedures: criminal penal ties. (a) For purposes of this section, the term "person" shall mean, in addition to the definition

contained in G.S. 143

- 212, any responsible corporate or public officer or employee; provided, however, that where a vote of the people is required to effectuate the intent and purpose of this Article by a county, city, town, or other political subdivision of the State, and the vote on the referendum is against the means or machinery for carrying said intent and purpose into effect, then, and only then, this section shall not apply to elected officials or to any responsible appointed officials or employees of such county, city, town, or political subdivision. (a1) For purposes of this section, the term "Part" includes Part 1A of this Article. (b) No proceeding shall be brought or continued under this section for or on account of a violation by any person who has previously been convicted of a federal violation based upon the same set

of facts. (c) In proving the defendant's possession o f actual knowledge, circumstantial evidence may be used, including evidence that the defendant took affirmative steps to shield himself from relevant information. Consistent with the principles of common law, the subjective mental state of defendants may

b e inferred from their conduct. (d) For the purposes of the felony provisions of this section, a person's state of mind shall not be found "knowingly and willfully" or "knowingly" if the conduct that is the subject of the prosecution is the

result of any of the following occurrences or circumstances:

(1) A natural disaster or other act of God which could not have been prevented or avoided by the exercise of due care or foresight. (2) An act of third parties other than agents, employees, c ontractors, or subcontractors of

the defendant. (3) An act done in reliance on the written advice or emergency on

- site direction of an employee of the Department. In emergencies, oral advice may be relied upon if

written confirmation is delivered to the employee as soon as practicable after receiving and relying on the advice. (4) An act causing no significant harm to the environment or risk to the public health, safety, or welfare and done in compliance with other conflicting environmentalNorth Carolina General Statutes 33

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- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3

requirements or other constraints imposed in writing by environmental agencies or officials after written notice is delivered to all relevant agencies that the conflict

exists and will cause a violation of the identified standard. (5) Violations of permit limitations causing no significant harm to the environment or risk to the public health, safety, or welfare for which no enforcement action or civil penalty could have been imposed under any written civil enforcement guidelines in use by the Departm ent at the time, including but not limited to, guidelines for the pretreatment permit civil penalties. This subdivision shall not be construed to require the Department to develop or use written civil enforcement guidelines. (6) Occasional, inadvert ent, short

- term violations of permit limitations causing no significant harm to the environment or risk to the public health, safety, or welfare. If the violation occurs within 30 days of a prior violation or lasts for more than 24 hours, it is not an occa sional, short

- term violation. (e) All general defenses, affirmative defenses, and bars to prosecution that may apply with respect to other criminal offenses under State criminal offenses may apply to prosecutions brought under

this section or other criminal statutes that refer to this section and shall be determined by the courts of this State according to the principles of common law as they may be applied in the light of reason and experience. Concepts of justification and excuse applicable under t his section may be developed in the light of reason and experience. (f) Any person who negligently violates any: (i) classification, standard, or limitation established in rules adopted by the Commission pursuant to G.S. 143

- 214.1, 143

- 214.2, or 143

- 215; (ii) term, condition, or requirement of a permit issued pursuant to this Part, including permits issued pursuant to

G.S. 143

- 215.1, pretreatment permits issued by local governments, and laboratory certifications; (iii) term, condition, or requirement of a special order or other appropriate document issued pursuant to G.S.

143

- 215.2; or (iv) rule of the Commission implementing this Part; and any person who negligently fails to apply for or to secure a permit required by G.S. 143

- 215.1 shall be guilty o f a Class 2 misdemeanor which may include a fine not to exceed fifteen thousand dollars ($15,000) per day of violation, provided that such fine shall not exceed a cumulative total of two hundred thousand dollars ($200,000) for each period of 30 days during which a violation continues. (g) Any person who knowingly and willfully violates any (i) classification, standard, or limitation established in rules adopted by the Commission pursuant to G.S. 143

- 214.1, 143

- 214.2, or 143

- 215; (ii) term, condition, or requirement of a permit issued pursuant to this Part, including permits issued pursuant

to G.S. 143

- 215.1, pretreatment permits issued by local governments, and laboratory certifications; or (iii) term, condition, or requirement of a special order or o ther appropriate document issued pursuant to G.S.

143

- 215.2; and any person who knowingly and willfully fails to apply for or to secure a permit required by G.S. 143

- 215.1 shall be guilty of a Class I felony, which may include a fine not to exceed one hund red thousand dollars ($100,000) per day of violation, provided that this fine shall not exceed a cumulative total of five hundred thousand dollars ($500,000) for each period of 30 days during which a violation continues. For the purposes of this subsection , the phrase "knowingly and willfully" shall mean intentionally and consciously as the courts of this State, according to the principles of common law interpret the phrase in the light of reason and experience. (h) (1) Any person who knowingly violates any: (i) classification, standard, or limitation

established in rules adopted by the Commission pursuant to G.S. 143

- 214.1,

143

- 214.2, 143

- 215; (ii) term, condition, or requirement of a permit issued pursuant to this Part, including permits issue d pursuant to G.S. 143

- 215.1, pretreatment permits issued by local governments, and laboratory certifications; or (iii) term, condition, or requirement of a special order or other appropriate document issued pursuant to G.S. 143

- 215.2; and any person who k nowingly fails to apply for or toNorth Carolina General Statutes 34

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- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3

secure a permit required by G.S. 143

- 215.1 and who knows at that time that he thereby places another person in imminent danger of death or serious bodily injury shall be guilty of a Class C felony, which may include a fine not to exceed two hundred fifty thousand dollars ($250,000) per day of violation, provided that this fine shall not exceed a cumulative total of one million dollars ($1,000,000) for each period of 30 days during which a violation continues. (2) For the purposes of this subsection, a person's state of mind is knowing with respect

to:

a. His conduct, if he is aware of the nature of his conduct;

b. An existing circumstance, if he is aware or believes that the circumstance exists; or

c. A result of his conduct, if he is aware or believes that his conduct is substantially certain to cause danger of death or serious bodily injury. (3) Under this subsection, in determining whether a defendant who is a natural person

knew that his conduct placed another person in imminent danger of death or serious bodily injury:

a. The person is responsible only for actual awareness or actual belief that he possessed; and

b. Knowledge possessed by a person other than the defenda nt but not by the defendant himself may not be attributed to the defendant. (4) It is an affirmative defense to a prosecution under this subsection that the conduct charged was conduct consented to by the person endangered and that the danger and

co nduct charged were reasonably foreseeable hazards of an occupation, a business, or a profession; or of medical treatment or medical or scientific experimentation conducted by professionally approved methods and such other person had been made

aware of the risks involved prior to giving consent. The defendant may establish an affirmative defense under this subdivision by a preponderance of the evidence. (i) Any person who knowingly makes any false statement, representation, or certification in any

ap plication, record, report, plan, or other document filed or required to be maintained under this Article or a rule implementing this Article; or who knowingly makes a false statement of a material fact in a rulemaking proceeding or contested case under thi s Article; or who falsifies, tampers with, or knowingly renders inaccurate any recording or monitoring device or method required to be operated or maintained under this Article or rules of the Commission implementing this Article shall be guilty of a Class 2 misdemeanor which may include a fine not to exceed ten thousand dollars ($10,000). (j) Repealed by Session Laws 1993, c. 539, s. 1315. (k) The Secretary shall refer to the State Bureau of Investigation for review any discharge of waste by any person or facility in any manner that violates this Article or rules adopted pursuant to this Article that involves the possible commission of a felony. Upon receipt of a referral under this section, the State Bureau of Investigation may conduct an in vestigation and, if appropriate, refer the matter to the district attorney in whose jurisdiction any criminal offense has occurred. This subsection shall not be construed to limit the authority of the Secretary to refer any matter to the State Bureau of In vestigation for review. (1951, c. 606; 1967, c. 892, s. 1; 1973, c. 698, s. 12; c. 712, s. 2; c. 1262, s. 23; c. 1331, s. 3; 1975, c. 583, s. 7; c. 842, ss. 6, 7; 1977, c. 771, s. 4; 1979, c. 633, ss. 9

- 11; 1981, c. 514, s. 1; c. 585, s. 13; 1987, c. 271; c. 827, ss. 154, 164; 1989, c. 426, s. 4; 1989 (Reg. Sess., 1990), c. 1004, s. 48; c. 1045, s. 2; 1991, c. 725, s. 4; 1993, c. 539, ss. 1018, 1019, 1313

- 1315; 1994, Ex. Sess., c. 24, s. 14(c); 1997

- 458, s. 11.1; 2007

- 536, s. 4.)

§ 143

- 215.6C. Enforcement procedures; injunctive relief.North Carolina General Statutes 35

1997 8

- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3 Whenever the Department has reasonable cause to believe that any person has violated or is threatening to violate any of the provisions of this Part, any of the terms of any permit issued pursuant to this Part, or a rule implementing this Part, the Department may, either before or after the institution of any other action or proceeding authorized by this Part, request the Attorney General to institute a civil action in the name of the State upon the relation of the Department for injunctive relief to restrain the violation or threatened violation and for such other and further relief in the premises as the court shall deem proper. The Attorney General may institute such action in the superior court of the county in which the violation occurred or may occur or, in his discretion, in the superior court of the county in which the person responsible for the violation or threatened violation resides or has his or its principal place of business. Upon a determination by th e court that the alleged violation of the provisions of this Part or the regulations of the Commission has occurred or is threatened, the court shall grant the relief necessary to prevent or abate the violation or threatened violation. Neither the institut ion of the action nor any of the proceedings thereon shall relieve any party to such proceedings from any penalty prescribed for violation of this Part. For purposes of this section references to "this Part" include Part 1A of this Article and G.S.

143

- 355 (k) relating to water use information. (1951, c. 606; 1967, c. 892, s. 1; 1973, c. 698, s. 12; c. 712, s. 2; c. 1262, s. 23; c. 1331, s. 3; 1975, c. 583, s. 7; c. 842, ss. 6, 7; 1977, c. 771, s. 4; 1979, c. 633, ss.

9

- 11; 1981, c. 514, s. 1; c. 585, s. 13; 1987, c. 217; c. 827, ss. 154, 164; 1989, c. 426, s. 4; 1989 (Reg. Sess., 1990), c. 1045, s. 3; 2007

- 536, s. 5.)North Carolina General Statutes 36

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- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3 § 143

- 215.110. Special orders.

(a) Issuance.

– The Commission is hereby empowered, after the effective date of standards and

classi fications adopted pursuant to G.S. 143

- 215.107, to issue (and from time to time to modify or
revoke) a special order or other appropriate instrument, to any person whom it finds responsible for
causing or contributing to any pollution of the air within the area for which standards have been
established. Such an order or instrument may direct such person to take or refrain from taking such action,
or to achieve such results, within a period of time specified by such special order, as the Commission

deems nec essary and feasible in order to alleviate or eliminate such pollution. The Commission is
authorized to enter into consent special orders, assurances of voluntary compliance or other similar
documents by agreement with the person responsible for pollution o f the air, subject to the provisions of
subsection (a1) of this section regarding proposed orders, and such consent order, when entered into by
the Commission after public review, shall have the same force and effect as a special order of the

Commission is sued pursuant to hearing.

(a1) Public Notice and Review of Consent Orders.

(1) The Commission shall give notice of a proposed consent order to the proper State, interstate, and
federal agencies, to interested persons, and to the public. The Com mission may also provide any other
data it considers appropriate to those notified. The Commission shall prescribe the form and content of
the notice. The notice shall be given at least 45 days prior to any final action regarding the consent order.

Public notice shall be given by publication of the notice one time in a newspaper having general
circulation within the county in which the pollution originates.

(2) Any person who desires a public meeting on any proposed consent order may request one in

w riting to the Commission within 30 days following date of the notice of the proposed consent order. The
Commission shall consider all such requests for meetings. If the Commission determines that there is
significant public interest in holding a meeting, t he Commission shall schedule a meeting and shall give
notice of such meeting at least 30 days in advance to all persons to whom notice of the proposed consent
order was given and to any other person requesting notice. At least 30 days prior to the date of meeting,
the Commission shall also have a copy of the notice of the meeting published at least one time in a
newspaper having general circulation within the county in which the pollution originates. The
Commission shall prescribe the form and content of no tices under this subsection.

(3) The Commission shall prescribe the procedures to be followed in such meetings. If the meeting is
not conducted by the Commission, detailed minutes of the meeting shall be kept and shall be submitted,
along with any other written comment, exhibits or other documents presented at the meeting, to the
Commission for its consideration prior to final action granting or denying the consent order.

(4) The Commission shall take final action on a proposed consent not la ter than 60 days following
notice of the proposed consent order or, if a public meeting is held, within 90 days following such
meeting.North Carolina General Statutes 37

1997 8

- hour Ozone NAAQS Attachment 2 Infrastructure SIP Element 110(a)(2)(E)(ii) February 4 , 201 3 (b) Procedure to Contest Certain Orders.

– A special order that is issued without the consent of the
person affec ted may be contested by that person by filing a petition for a contested case under G.S.

150B

- 23 within 30 days after the order is issued. If the person affected does not file a petition within the
required time, the order is final and is not subject to re view.

(c) Repealed by Session Laws 1987, c. 827, s. 208.

(d) Effect of Compliance.

– Any person who installs an air

- cleaning device for purpose of alleviating
or eliminating air pollution in compliance with the terms of, or as result of the co nditions specified in, a
permit issued pursuant to G.S. 143

- 215.108, or a special order, consent special order, assurance of
voluntary compliance or similar document issued pursuant to this section, or a final decision of the

Commission or a court, rendere d pursuant to either of said sections, shall not be required to take or refrain
from any further action nor be required to achieve any further results under the terms of this or any other
State law relating to the control of air pollution, for a period to be fixed by the Commission or court as it
shall deem fair and reasonable in the light of all the circumstances after the date such special order,
consent special order, assurance of voluntary compliance, other document or decision, or the conditions

of suc h permit become finally effective, if:

(1) The air

- cleaning devices result in the elimination or alleviation of air pollution to the extent
required by such permit, special order, consent special order, assurance of voluntary compliance, or other

do cument or decision and complies with any other terms thereof; and

(2) Such person complies with the terms and conditions of such permit, special order, consent special
order, assurance of voluntary compliance, other document or decision within the t ime limit, if any,
specified therein or as the same may be extended, and thereafter remains in compliance.

(e) Compliance Bonds.

– A special order or other instrument authorized by this section may provide
that a bond or other surety be posted to en sure compliance. In determining the amount of such bond the
Commission shall consider the degree and extent of harm which may result if the person to whom the
special order is directed fails to comply with the terms of the order, the cost of rectifying suc h harm, the
economic consequences to the person to whom the special order is directed if the special order is issued as
compared to the consequences of a denial, suspension, or revocation of the special order or permit, and
the person's history of complian ce with pollution control requirements, other special orders, history of
payment of any penalties which may have been previously assessed by the Commission. In the event of
noncompliance with the special order or other instrument, the bond shall be forfeit ed and the clear
proceeds of the bond shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S.

115C

- 457.2. (1973, c. 821, s. 6; c. 1262, s. 23; 1987, c. 827, ss. 154, 208; 1989, c. 133; c. 766, s. 2;

1998

- 215, s. 72.)

# Attachment 3

Public Notice Rep ort, Comme nts Received and Responses

### (This page intentionally left blank)Public Notice Report, Comments Received and Responses 1

1997 8

- hour Ozone NAAQS Attachment 3 Infrastructure SIP Element 110(a)(2)(E)(ii) February 5

, 2013 

## Public Notice Report

North Carolina Certification of Clean Air Act Section 110(a)( 2 ) (E)(ii)

R equirements

For the 1 997 8

- hour Ozone Standards

Introduction

On July 18, 1997, the United Stated Environmental Protection Agency (USEPA) promulgated a new National Ambient Air Quality Standard (NAAQS) for ozone based on 8

- hour average

concentrations. The 8

- hour aver ag ing pe riod replaced the previous 1

- hour averaging period, and the level of the NAAQS was changed from 0.12 parts per million (ppm) to 0.08 ppm (62 FR 38856). Pursuant to section 110(a)(1) of the Clean Air Act (CAA), states are required to submit State Implement ation Plans (SIPs) meeting the requirements of Section 110(a)(2) within three years after promulgation of a new or revised NAAQS. Section 110(a)(2) requires states to address basic SIP requirements, including emissions inventories, monitoring, and modelin g to
assure attainment and maintenance of the NAAQS. States were required to submit such SIPS for

the 1997 8

- hour ozone NAAQS to USEPA no later than June 2000. However, intervening litigation over this standard created uncertainty about how to proceed wi th the required “infrastructure” SIP submission for newly promulgated NAAQS.

North Carolina provided its infrastructure submission for the 1997 8

- hour ozone NAAQS on December 12, 2007 and clarified it in a subsequent submission submitted on June 20, 200 8. On December 15, 2011, the USEPA proposed to approve North Carolina’s December 12, 2007 infrastructure submission and proposed conditional approval of infrastructure sub

- element 110(a)(2)(E)(ii) pertaining to Section 128 State Board requirements. Speci fically, S ection

128 (a)(1) requires that each SIP shall contain requirements that any board or body which approves permits or enforcement orders be subject to the described public interest and income restrictions. It further requires at S ection (a)(2) tha t any board or body, or the head of an executive agency with similar power to approve permits or enforcement orders under the CAA, shall also be subject to conflict of interest disclosure requirements.

On January 11, 2012, North Carolina submitted a lette r of commitment to USEPA to adopt specific enforceable measures related to both 128(a)(1) and 128(a)(2) to address current deficiencies in the North Carolina SIP, as outlined in EPA’s final action on February 6, 2012 (77 FR 5703). Based on EPA’s condition al approval, North Carolina must adopt the required provisions by February 6, 2013.

On November 19, 2012 , a draft version of the “ North Carolina Certification for Clean Air Act Section 110(a)(1) and (2) 2008 8

- H our O zone Requirements ” was submitted to the USEPA. A public notice announcement was posted on the North Carolina Division of Air Quality (DAQ) website on November 19, 2012 , indicating that the Infrastructure SIP certification documentation was available for public comment until December 21 , 2012

. The Infrastructure SIP documentation was posted on the DAQ’s website and accessible at DAQ’s seven regional officesPublic Notice Report, Comments Received and Responses 2

1997 8

- hour Ozone NAAQS Attachment 3 Infrastructure SIP Element 110(a)(2)(E)(ii) February 5

, 2013 

### for public review. The public notice announcement was sent to a number of distribution lists managed by the DAQ. These distribution lists included numerous stakeholders from industry, environmental groups, and transportation partners. The DAQ believes that sending the public notice announcement to these groups is more effective than publishing the notices in a few local newspapers and is c onsistent with the requirements described in the April 6, 2011, memorandum, “Regional Consistency for the Administrative Requirements of State Implementation Plan Submittals and the Use of Letter Notices.” Additionally, the DAQ website has Rich Site

Summa ry (RSS) feed which regularly delivers changes to the website content to those that have signed up for it. Persons wishing to submit comments or request a public hearing were invited to

do so via email notification.



## Summary of Public Comment Period

The public notice comment period was open from November 19 , 2012 through December 21,

2012 (Attachment 3b)

. There were no requests for a public hearing. No comments were received from the general public. A comment letter was received from the USEPA (see

At tachment 3a) . The USEPA requested DAQ to identify specific provisions or enforceable measures to be incorporated into the SIP to meet the requirements of Section 128 to satisfy the conditional approval of Section 110(a)(2)(E)(ii)

.

In response to USEPA’s comment, North Carolina is submitting Section 128 Procedure and

Certification for the North Carolina Department of Environment and Natural Resources

- DENR and for the Environmental Management Commissions Special Air Permit Appeals Committee to be incorpor ated into the North Carolina SIP (see Attachments 1a and 1b) . Specific requirements for public disclosure of potential conflict of interest and elements representing public interest are

addressed in the se attachments

.

Th e DENR procedure and certificati on are b ased on an August 9, 2012 EPA letter to DENR and the North Carolina Office of Administrative Hearings (OAH)

, where it was agreed that after adoption of North Carolina Session Law 2011

- 398, DENR “ will remain the permit/enforcement issuing authority for matters arising under the CAA ” (see EPA letter in Attachment 1 c ). As such, there are no boards or bodies in North Carolina that approve permit or enforcement orders and compliance with Section 128(a)(2) is limited to individuals exercising the author ity to issue permits or enforcement orders under the CAA. The certification procedures included in

Attachment 1a apply to the Secretary of DENR as the head of North Carolina’s executive agency

and his/her delegatee that approve permits or enforcement orde rs

.

North Carolina asserts that although the OAH Administrative Law Judges (ALJs) handle appeals of contested permits or enforcement orders issued by DENR, DENR agency heads have the authority to revise permits and enforcement actions based on decisions rendered by ALJs. As

stated in letters between DENR/OAH and EPA (Attachment s 1 c and 1 d )

, after October 1, 2012, the OAH role in contested cases is to provide only a hearing function

– one that will be limited in scope to an Administrative Procedures Act

- t ype review (i.e., determining whether DENR acted erroneously, failed to use proper procedure, exceeded its authority or jurisdiction, acted arbitrarily or capriciously, or failed to act as required by law or rule). OAH will not undertake the drafting or r edrafting of permit terms or conditions (including penalty action terms orPublic Notice Report, Comments Received and Responses 3

1997 8

- hour Ozone NAAQS Attachment 3 Infrastructure SIP Element 110(a)(2)(E)(ii) February 5

, 2013 

### conditions) or otherwise correct any determined error by DENR, and DENR will remain the permit/enforcement issuing authority.

Final decisions on contested cases filed before Octo ber 1, 201 2 are made by the North Carolina Environmental Management Commission (EMC). On January 10, 2013, the EMC passed a resolution that delegated to a Special Air Permit Appeals Committee, the authority to exercise final agency decision authority with respect to permits and enforcement orders for control of sources of air pollution. The resolution recognizes Section 128 provision which impose conflict of interest requirements for members of State Boards and Commissions to assure that decisions to

issu e permits or enforcement orders are not influenced by private interests of individual decision makers by requiring that a majority of the members of the decision making body represent the public interest and do not derive any significant portion of their i ncome from persons subject to such permits or orders. To assure compliance with Section 128, the EMC Chairman is required to create a Special Air Permit Appeals Committee to be composed of a majority of members meeting the conflict of interest requirement s of Section 128. A selection procedure for the committee and a certification form has been developed to assure compliance with Section 128,

and is included as Attachment 1b

.



## Conclusion

The DAQ believes it has adequately addressed the USEPA’s comment s, and i s requesting that the USEPA approve the North Carolina Certification of Clean Air Act Section 110(a)(2)(E)(ii)

r equirements for the 1997 8

- hour Ozone Standards.



## Attachments to Public Notice Report

3a) Written comments from R . Scott Davis, Chief o f the Air Planning Branch, USEPA, dated

December 21 , 201 2

.

3b) Public notice language dated November 19 , 2012

.