North Carolina Certification 1

1997 8-hour Ozone NAAQS Attachment 1

Infrastructure SIP Element 110(a)(2)(E)(ii) February 5, 2013

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 Sections 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 attainment 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. Specifically, 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 August 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 enforcement 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 Procedures and Certifications to be incorporated 

into the SIP (Attachments 1a and 1b). Specific requirements for public disclosure of potential 

conflict of interest and elements representing public interest are addressed in these documents. 

North Carolina General Statutes are included as reference material, but should not be adopted as 

part of North Carolina’s SIP. 
North Carolina Certification 2

1997 8-hour Ozone NAAQS Attachment 1

Infrastructure SIP Element 110(a)(2)(E)(ii) February 5, 2013

Introduction

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 Act. 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, 

2012, any 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, 2012, the authority to make final decision 

on contested permits or enforcement actions resided with 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 Administrative 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 

Environmental 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 General 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 1c). 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 1d). 

Accordingly, pursuant to Session Law 2012-187, for contested cases 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 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-type review (i.e., determining 
North 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 authority 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 any 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). State statutes give

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, 2012, there are no boards or bodies in North Carolina that approve permits 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 attached 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 delegatee that approve 

permits or enforcement 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 Justice 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 the American Bar Association’s code of 

conduct for ALJs. Judicial employees, including the Director and Assistant Director of the 

Administrative Office of the Courts and any other individual designated by the Chief Justice and

employed in the Judicial Department, 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 testimony. 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 whether 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 undertake 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 appeal 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 redrafting 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 

challenge DENR’s permitting or enforcement actions 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 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 issue permits or enforcement orders are not influenced by private interests or

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 procedure 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 1b) to address conflict of 
North Carolina Certification 5

1997 8-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 by 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 interests, 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 members 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 elected and 

appointed State agency officials 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. 

Within 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 public position (N.C.G.S. § 138A-39). 

The State Government Ethics Act (N.C.G.S. § 138A-15 (e)) also requires the chair at the 

beginning of any meeting, to remind all members of their duty to avoid conflicts of interest. The 

chair is required to inquire as 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 issue permits and enforcement orders. DENR Secretary or 

his/her delegatee issue initial permits/enforcement orders and on very few contested cases filed 
North Carolina Certification 6

1997 8-hour Ozone NAAQS Attachment 1

Infrastructure SIP Element 110(a)(2)(E)(ii) February 5, 2013

after October 1, 2012, the agency also issues final permits/enforcement orders following rulings 

made by 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 DENR 

Secretary and his/her delegatee is satisfied through a certification signed by these individuals 

(see Attachment 1a). Contested cases filed before October 1, 2012 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 this Committee (see 

Attachment 1b).

Attachments

1a) DENR Section 128 Procedure and Certification

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

1c) DENR/OAH letter to EPA dated July 19, 2012 explaining North Carolina’s revised process 

on contested permit actions and enforcement orders.

1d) EPA response letter to DENR/OAH dated August 9, 2012.
DENR SIP 128 Procedure 

1997 8-hour Ozone NAAQS Infrastructure SIP Element 110(a)(2)(E)(ii) 

 1  Attachment 1a 

February 5, 2013 
DENR SIP 128 Procedure 

1997 8-hour Ozone NAAQS Infrastructure SIP Element 110(a)(2)(E)(ii) 

 2  Attachment 1a 

February 5, 2013 
DENR SIP 128 Procedure 

1997 8-hour Ozone NAAQS Infrastructure SIP Element 110(a)(2)(E)(ii) 

 3  Attachment 1a 

February 5, 2013 
DENR SIP 128 Procedure 

1997 8-hour Ozone NAAQS Infrastructure SIP Element 110(a)(2)(E)(ii) 

 4  Attachment 1a 

February 5, 2013 
EMC Resolution & Special Permit Appeals Committee Selection Procedure 

1997 8-hour Ozone NAAQS 

Infrastructure SIP Element 110(a)(2)(E)(ii) 

 1 

 Attachment 1b 

 February 5, 2013
EMC Resolution & Special Permit Appeals Committee Selection Procedure 

1997 8-hour Ozone NAAQS Infrastructure SIP Element 110(a)(2)(E)(ii) 

 2  Attachment 1b  February 5, 2013
EMC Resolution & Special Permit Appeals Committee Selection Procedure 

1997 8-hour Ozone NAAQS Infrastructure SIP Element 110(a)(2)(E)(ii) 

 3  Attachment 1b  February 5, 2013
EMC Resolution & Special Permit Appeals Committee Selection Procedure 

1997 8-hour Ozone NAAQS Infrastructure SIP Element 110(a)(2)(E)(ii) 

 4  Attachment 1b  February 5, 2013
EMC Resolution & Special Permit Appeals Committee Selection Procedure 

1997 8-hour Ozone NAAQS Infrastructure SIP Element 110(a)(2)(E)(ii) 

 5  Attachment 1b  February 5, 2013
July 19, 2012 DENR and OAH Letter to EPA 

1997 8-hour Ozone NAAQS Infrastructure SIP Element 110(a)(2)(E)(ii) 

 1  Attachment 1c 

February 5, 2013
July 19, 2012 DENR and OAH Letter to EPA 

1997 8-hour Ozone NAAQS Infrastructure SIP Element 110(a)(2)(E)(ii) 

 2  Attachment 1c 

February 5, 2013
July 19, 2012 DENR and OAH Letter to EPA 

1997 8-hour Ozone NAAQS Infrastructure SIP Element 110(a)(2)(E)(ii) 

 3  Attachment 1c 

February 5, 2013
July 19, 2012 DENR and OAH Letter to EPA 

1997 8-hour Ozone NAAQS Infrastructure SIP Element 110(a)(2)(E)(ii) 

 4  Attachment 1c 

February 5, 2013
August 9, 2012 EPA Letter to DENR and OAH 

1997 8-hour Ozone NAAQS Infrastructure SIP Element 110(a)(2)(E)(ii) 

 1  Attachment 1d February 5, 2013 
August 9, 2012 EPA Letter to DENR and OAH 

1997 8-hour Ozone NAAQS Infrastructure SIP Element 110(a)(2)(E)(ii) 

 2  Attachment 1d February 5, 2013 
Attachment 2

North Carolina General Statutes Referenced 

in the North Carolina Certification for

Clean Air Act Section 110(a)(2)(E)(ii)

1997 8-hour Ozone Requirements
(This page intentionally left blank)
North Carolina General Statutes 3

1997 8-hour Ozone NAAQS Attachment 2

Infrastructure SIP Element 110(a)(2)(E)(ii) February 4, 2013

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 following 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. To 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 standards 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 review 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 approve 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 remediation 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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Infrastructure SIP Element 110(a)(2)(E)(ii) February 4, 2013

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 the 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 section 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 corresponding 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 federal 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 of 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 health, 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 written and oral reports 
North Carolina General Statutes 5

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Infrastructure SIP Element 110(a)(2)(E)(ii) February 4, 2013

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 Commission 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 quality 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 of 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 – members; 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 Health 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 member 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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Infrastructure SIP Element 110(a)(2)(E)(ii) February 4, 2013

(b1) The Governor shall have the power to remove any member of the Commission from 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 expenses 

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 Chapter. 

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 federal 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 the 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 to whether there is any known conflict of 

interest with respect to any matters coming before the board at that time.
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§ 143‐215.3. 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 collect 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 Federal 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 processing 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 Chapter. 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 thousand 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 

Commission 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 facility 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 statute 

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 involved, 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 administrative 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:
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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, the 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 section 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 conform 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 to 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 

regulations 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 amount 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 property, 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 sources, 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, disposal 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 appropriate 
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credentials, nor 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 procedures 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 Department. 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 the 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 document 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 or 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, whichever 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 damages 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 time, 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 questions 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 Wildlife 
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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 such 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 additional 

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 water 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 Article 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 water 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 affected 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 this 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 of 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 person 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 which 
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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 Chapter 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. Fees 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) Repealed 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 concurrence 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 Commission 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 of 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 question 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 with 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 compliance 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 pollutants 

contributed to the treatment works, and the ability to effectively enforce compliance with the program.
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(15) To adopt rules for the prevention of pollution from underground tanks containing petroleum, 

petroleum products, or hazardous substances. Rules 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 Chapter 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 consent 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 surveys, 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 with 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 administer 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 of 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 regulations 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 hereunder, 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, provided 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 under the Federal Water Pollution Control 
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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, respectively.

(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 notification 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. 1035, 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).)
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15A NCAC 02A .0105 DELEGATIONS OF AUTHORITY

(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 Natural 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, is 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 dispersants 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 project 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 developer 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 

Environment, 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.
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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 conduct 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 assets. 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 only 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. Partnership.

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 any 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.
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For purposes of this subdivision, the term "business" shall not include a 

widely held investment fund, including a mutual fund, 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 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.

(4) Commission. – The State Ethics Commission.

(5) Committee. – The Legislative Ethics 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 rendered 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 conveyances 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: agencies, 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 employees, 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 pecuniary 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 legislator 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.
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b. Commercially available loans made on terms not more 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 lobbying.

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 condolence 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) Governmental 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) Immediate 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 Department 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 these 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 Assembly, 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 contractor. Nonprofit 

corporation or organization with which associated shall not include any board, entity, 
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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, investigation, 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 the 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 together. 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 entity 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 association 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 subdivision 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.
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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 Governor 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 executive, 

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-chancellors, 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 the 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 Controller.

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 director 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 trustee 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:
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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 fund 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 and 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, appointment, 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 appropriate.

(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 refresher 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 the 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 attend 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 Commission 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 the 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 containing 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 electronically.

(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.
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(i) This section shall not apply to judicial officers. (2006-201, s. 1; 2007-347, s. 9(a); 2008-213, 

ss. 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 ethics 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 personal, 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 knowledgeable 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 familiarity 

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, including 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 Chapter.

(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 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 to whether there is any 

known conflict of interest with respect to any matters coming 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 circumstances 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 meet 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 board 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 public servants under their supervision or control, or learning of the 
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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, promotion, 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 their 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 identify 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, thorough, 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 compensation 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 shall 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 does 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 statement 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 subsection (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 be 
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hired, appointed, or elected provisionally prior to submission by the Commission of the 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 

statement 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 that 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 individual 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 under 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. 163-122 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 

interest 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 certificate 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 year 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 filed 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 economic 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, the 
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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 public 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 public 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 to 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 public 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 of 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 include 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 

child 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 

(including 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 estate that is currently leased or rented to or from the State.
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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 of 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 securities 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. Recodified 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 person 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.
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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 association, 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, the 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 which 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 officer, 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 that 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 monetary 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 the 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 regards 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 business 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.
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(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 dollars ($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 statement 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 in 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. Environmental 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 member 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 material 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 

departments, 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 filing of that filing person's statement of economic 
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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 of 

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 read 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 asset, 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 prepare 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 agencies 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 Elections 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 Commission 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 dollars ($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.)
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§ 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 

disciplinary 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 participating 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. Disqualification 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 public servant from fulfilling a substantial 

function or portion of the public servant's public duties. (2006-201, s. 1.)
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§ 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, including 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 designated 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 (c5) 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 Article.

(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 assessed 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 adopt 
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a local water supply watershed protection program as required 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 government 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 penalties 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 not 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 was 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 requests 

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 assessment, 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 after 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. 743, 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 subsection, "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 whenever 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 sensitive 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 

such 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 assessed 
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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 request 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. The 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 Chapter 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 filing 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 penalties.

(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 of 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 

be 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, contractors, 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 environmental 
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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 Department 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, inadvertent, 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 occasional, 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 this 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 of 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 other 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 hundred 

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 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 other appropriate document issued 

pursuant to G.S. 143-215.2; and any person who knowingly fails to apply for or to 
North Carolina General Statutes 34

1997 8-hour Ozone NAAQS Attachment 2

Infrastructure SIP Element 110(a)(2)(E)(ii) February 4, 2013

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 defendant 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 

conduct 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 

application, 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 this 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 investigation 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 Investigation 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, 2013

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 the 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 institution 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

1997 8-hour Ozone NAAQS Attachment 2

Infrastructure SIP Element 110(a)(2)(E)(ii) February 4, 2013

§ 143-215.110. Special orders.

(a) Issuance. – The Commission is hereby empowered, after the effective date of standards and 

classifications 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 necessary 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 of 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 issued 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 Commission 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 

writing 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, the 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 notices 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 later 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, 2013

(b) Procedure to Contest Certain Orders. – A special order that is issued without the consent of the 

person affected 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 review.

(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 conditions 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, rendered 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 such 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 

document 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 time 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 ensure 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 such 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 compliance 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 forfeited 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 Report, Comments 

Received and Responses
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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)

Requirements

For the 1997 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 averaging period 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 Implementation 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 modeling 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 with 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, 2008. 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. Specifically, Section 

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 Section (a)(2) that 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 letter 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 conditional 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-Hour Ozone 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 offices 
Public 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 consistent 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 

Summary (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 

Attachment 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 incorporated 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 these attachments. 

The DENR procedure and certification are based 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 1c). 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 authority 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 orders.

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 (Attachments 1c and 1d), 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-type 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 redrafting of permit terms or conditions (including penalty action terms or 
Public 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 October 1, 2012 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 

issue 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 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 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 comments, and is requesting that 

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

requirements for the 1997 8-hour Ozone Standards.

Attachments to Public Notice Report

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

December 21, 2012.

3b) Public notice language dated November 19, 2012.
EPA Comment Letter 

1997 8-hour Ozone NAAQS Infrastructure SIP Element 110(a)(2)(E)(ii) 

 1  Attachment 3a February 5, 2013 
110(a)(2)(E)(ii) Public Notice 

1997 8-hour Ozone NAAQS Infrastructure SIP Element 110(a)(2)(E)(ii) 

 1  Attachment 3b February 5, 2013