[Federal Register Volume 80, Number 163 (Monday, August 24, 2015)]
[Proposed Rules]
[Pages 51167-51170]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-20747]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2015-0440; FRL-9932-88-Region 4]


Air Plan Approval; North Carolina; Conflict of Interest 
Infrastructure Requirements

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve revisions to the North Carolina State Implementation Plan 
(SIP), submitted by the North Carolina Department of Environment and 
Natural Resources, Division of Air Quality (DAQ), on February 5, 2013, 
and supplemented on July 27, 2015. The submissions pertain to conflict 
of interest requirements of the Clean Air Act (CAA or Act) and were 
submitted to satisfy the infrastructure SIP sub-element related to the 
State board for the 2010 Nitrogen Dioxide (NO2) National 
Ambient Air Quality Standards (NAAQS), 2010 Sulfur Dioxide 
(SO2) NAAQS, 2008 8-hour Ozone NAAQS and 2008 Lead NAAQS. 
The CAA requires that each state adopt and submit a SIP for the 
implementation, maintenance, and enforcement of each NAAQS promulgated 
by EPA, commonly referred to as an ``infrastructure'' SIP, which 
includes conflict of interest requirements. EPA is proposing to approve 
the portions of North Carolina's 2010 NO2 infrastructure 
SIP, 2010 SO2 infrastructure SIP, 2008 8-hour ozone 
infrastructure SIP, and 2008 Lead infrastructure SIP as meeting these 
State board requirements. EPA is also proposing to convert conditional 
approvals related to the State board for the 1997 8-hour ozone NAAQS, 
and the 1997 Annual Fine Particulate Matter (PM2.5) and 2006 
24-hour PM2.5 NAAQS to full approval under the CAA. EPA 
notes that all other applicable North Carolina infrastructure SIP 
elements for the above listed NAAQS have been or will be addressed in 
separate rulemakings.

DATES: Written comments must be received on or before September 23, 
2015.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2015-0440, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: [email protected].
    3. Fax: 404-562-9019.
    4. Mail: ``EPA-R04-OAR-2015-0440'' Air Regulatory Management 
Section, Air Planning and Implementation Branch, Air, Pesticides and 
Toxics Management Division, U.S. Environmental Protection Agency, 
Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960.
    5. Hand Delivery or Courier: Lynorae Benjamin, Chief, Air 
Regulatory Management Section, Air Planning and Implementation Branch, 
Air, Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 
30303-8960. Such deliveries are only accepted during the Regional 
Office's normal hours of operation. The Regional Office's official 
hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., 
excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. ``EPA-R04-OAR-
2015-0440''. EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit through 
www.regulations.gov or email, information that you consider to be CBI 
or otherwise protected. The www.regulations.gov Web site is an 
``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an email comment directly to EPA without 
going through www.regulations.gov, your email address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of

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encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information may not be publicly available, i.e., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either electronically in 
www.regulations.gov or in hard copy at the Air Regulatory Management 
Section, Air Planning and Implementation Branch, Air, Pesticides and 
Toxics Management Division, U.S. Environmental Protection Agency, 
Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. EPA 
requests that if at all possible, you contact the person listed in the 
FOR FURTHER INFORMATION CONTACT section to schedule your inspection. 
The Regional Office's official hours of business are Monday through 
Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Sean Lakeman, Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 
30303-8960. The telephone number is (404) 562-9043. Mr. Lakeman can be 
reached via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    By statute, SIPs meeting the requirements of sections 110(a)(1) and 
(2) of the CAA are to be submitted by states within three years after 
promulgation of a new or revised NAAQS. Sections 110(a)(1) and (2) 
require states to address basic SIP requirements, including emissions 
inventories, monitoring, and modeling to assure attainment and 
maintenance of the NAAQS.
    More specifically, section 110(a)(1) provides the procedural and 
timing requirements for SIPs. Section 110(a)(2) lists specific elements 
that states must meet for ``infrastructure'' SIP requirements related 
to a newly established or revised NAAQS. As mentioned above, these 
requirements include SIP infrastructure elements such as modeling, 
monitoring, and emissions inventories that are designed to assure 
attainment and maintenance of the NAAQS. EPA is proposing to approve: 
(1) North Carolina's February 5, 2013, and July 27, 2015, submissions 
as satisfying the requirements of 128 of the CAA; and (2) the 
infrastructure SIP sub-element for section 110(a)(2)(E)(ii) related to 
the State board for the 2010 NO2 NAAQS, 2010 SO2 
NAAQS, 2008 8-hour Ozone NAAQS and 2008 Lead NAAQS.\1\
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    \1\ Sub-element 110(a)(2)(E)(ii) was previously submitted by 
North Carolina DAQ to EPA to satisfy the state board requirements 
for the referenced NAAQS. EPA is proposing through today's 
rulemaking that the February 5, 2013, and July 27, 2015, final 
submissions in conjunction with the previously submissions for the 
2010 NO2 NAAQS (August 23, 2013), 2010 SO2 
NAAQS (March 18, 2014), 2008 8-hour Ozone NAAQS (November 2, 2012), 
and 2008 Lead NAAQS (July 20, 2012) satisfy the state board 
requirements for this sub-element.
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    Additionally, North Carolina's February 5, 2013, and July 27, 2015, 
submissions satisfy EPA's multiple conditional approvals of sub-element 
110(a)(2)(E)(ii) published on February 6, 2012 (77 FR 5703), and 
October 16, 2012 (77 FR 63234), for the 1997 8-hour ozone NAAQS, and 
1997 annual and 2006 24-hour PM2.5 NAAQS, respectively.\2\ 
As a result of today's proposed action related to the State's 
submissions meeting section 128 of the CAA, EPA is proposing to convert 
the aforementioned conditional approvals to full approvals regarding 
North Carolina's infrastructure requirements for section 
110(a)(2)(E)(ii) for the 1997 8-hour ozone NAAQS, and 1997 annual and 
2006 24-hour PM2.5 NAAQS.
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    \2\ Sub-element 110(a)(2)(E)(ii) was previously submitted by 
North Carolina DAQ to EPA to satisfy the state board requirements 
for the referenced NAAQS. EPA is proposing through today's 
rulemaking that the February 5, 2013, and July 27, 2015, final 
submissions in conjunction with the previous conditional approvals 
for the 1997 8-hour ozone NAAQS and 1997 annual and 2006 24-hour 
PM2.5 NAAQS satisfy the state board requirements for this 
sub-element.
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II. Requirements of Section 110(a)(2)(E)(ii)--Adequate Resources

    Sub-element 110(a)(2)(E)(ii) provides that each State ``comply with 
the requirements respecting State boards under section [128 of the CAA] 
. . . .'' Section 128 provides that each SIP shall contain requirements 
that: (1) Any board or body which approves permits or enforcement 
orders under the CAA shall have at least a majority of members who 
represent the public interest and do not derive a significant portion 
of their income from persons subject to permits or enforcement orders 
under the Act (hereafter ``section 128(a)(1) requirements''); 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 (hereafter ``section 128(a)(2) requirements.'').

III. Requirements of Section 128

    Section 128 of the CAA requires that each state's SIP contain 
provisions to address conflicts of interest for state boards or bodies 
that oversee CAA permits and enforcement orders and disclosure of 
conflict of interest requirements. Specifically, CAA section 128(a)(1) 
necessitates that each SIP require that at least a majority of any 
board or body which approves permits or enforcement orders represent 
the public interest and meet income restrictions. Subsection 128(a)(2) 
requires that the members of 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. Furthermore, section 128 affords the 
Administrator of EPA the authority to incorporate conflict of interest 
provisions that go beyond those required by the CAA into the SIP when 
such provisions are submitted by a state as part of its implementation 
plan.

IV. What is EPA's analysis of how North Carolina addressed the section 
110(a)(2)(E)(ii) infrastructure requirement?

    For purposes of section 128(a)(1), as of October 1, 2012, North 
Carolina has no boards or bodies with authority over air pollution 
permits or enforcement actions. The authority to approve CAA permits or 
enforcement orders are instead delegated to the Secretary of the 
Department of Environment and Natural Resources (DENR) and his/her 
delegatee. As such, a ``board or body'' is not responsible for 
approving permits or enforcement orders in North Carolina, and the 
requirements of section 128(a)(1) are not applicable.
    For purposes of section 128(a)(2), EPA is proposing to approve 
North Carolina's revisions submitted by DAQ, on February 5, 2013, and 
amended on July 27, 2015. Section 128(a)(2) requires that any potential 
conflicts of interest by members of a board or body that approves 
permits or enforcement orders under the CAA, or head of executive 
agency with similar powers, be adequately disclosed. Subsection 
128(a)(2) applies to all states, regardless of whether the state has a 
multi-member board or body that approves permits or enforcement orders 
under the CAA. In instances where the head of an executive agency 
delegates his or her power to approve permits or enforcement orders, or 
where the

[[Page 51169]]

statutory authority to approve permits or enforcement orders is 
nominally vested in another state official, the requirement to 
adequately disclose potential conflicts of interest still applies. As 
noted above, the Secretary of DENR and his/her delegatees have the 
authority to issue CAA permits and enforcement orders in North Carolina 
and are subject to conflict of interest disclosure procedures. Under 
these procedures, such individuals are required to file a certification 
disclosing sources of income and relationships that constitute a 
potential conflict of interest each year, which are subject to public 
inspection. If circumstances change such that the certification is no 
longer complete or accurate, they are required to promptly file a new 
certification. In addition, disclosure of potential conflicts of 
interest are required for each final decision, which may merit recusal 
from the particular matter. If recusal is determined not to be 
necessary, the disclosure of potential conflict of interest is made 
part of the public record. North Carolina's revision would incorporate 
these conflict of interest disclosure procedures and a certification 
form into its SIP to address section 128(a)(2) requirements.
    On October 1, 2012, North Carolina's enacted state law that 
involved changes to how contested DENR cases are handled. Previously 
these matters where heard on appeal by an Administrative Law Judge 
(ALJ) in the State's Office of Administrative Hearings (Administrative 
Procedures Act-type review). The ALJ would render a decision that would 
then go before the State's Environmental Management Commission (EMC) 
for a final agency decision. Under the new state law, the EMC's role is 
eliminated and instead the ALJ decision constitutes the final agency 
action which could then be appealed by either party to state superior 
court. The Director of the Office of Administrative Hearings appoints 
an ALJ to preside over contested matters such as appeals of CAA permits 
and enforcement orders. The Office of Administrative Hearings is an 
executive agency with quasi-judicial functions.
    In 1978, following the adoption of the section 128 provisions, EPA 
published a guidance to the states providing suggested definitions that 
the Agency viewed as representing the ``minimum level of stringency 
necessary to meet the requirements of section 128.'' The guidance 
defined ``Board or body'' as including instrumentalities ``authorized 
to approve permits or enforcement orders under the CAA, in the first 
instance or on appeal.'' Because section 128(a)(2) applies to boards or 
bodies, or the heads of executive agencies with similar powers, EPA 
interprets the inclusion of appeals within the definition of board or 
bodies in the 1978 guidance as likewise applying to appeals of matters 
handled initially by the head of an executive agency. Further, as 
stated above, if the statutory scheme vests final approval authority 
for CAA permits and orders with a state official other than the head of 
an executive agency, EPA interprets section 128(a)(2) as applying to 
that state official as well because they are functionally equivalent.
    North Carolina's July 27, 2015, supplement addresses the section 
128(a)(2) conflict of interest disclosure requirements for ALJs through 
Chapter 7A section 754 of the North Carolina General Statues, which 
contains provisions related to the Office of Administrative Hearings 
addressing these requirements for the ALJ. Specifically, North Carolina 
is requesting that the following paragraph of 7A-754 stating ``The 
Chief Administrative Law Judge and the administrative law judges shall 
comply with the Model Code of Judicial Conduct for State Administrative 
Law Judges, as adopted by the National Conference of Administrative Law 
Judges, Judicial Division, American Bar Association, (revised August 
1998), as amended from time to time, except that the provisions of this 
section shall control as to the private practice of law in lieu of 
Canon 4G, and G.S. 126-13 shall control as to political activity in 
lieu of Canon 5.'' be adopted into the SIP. The Model Code of Judicial 
Conduct for State Administrative Law Judges, as adopted by the National 
Conference of Administrative Law Judges, Judicial Division, American 
Bar Association, (revised August 1998), requires ALJs to act 
impartially, which broadly includes financial considerations, 
relationships, and other associations. ALJs are prohibited from 
participating in any matter in which the ALJs impartiality might 
reasonably be questioned or the ALJ must disclose the potential 
conflict of interest on the record in the proceeding. In the case of 
such disclosures, the parties to the matter must agree that the 
disclosed conflict of interest is immaterial before the ALJ may 
continue to participate in the matter. EPA has determined that the 
provision of Chapter 7A section 754 of the North Carolina General 
Statutes submitted for incorporation in the SIP provides for adequate 
disclosure of potential conflicts of interest for any ALJ that will 
make final decisions on CAA permits and enforcement orders. Therefore, 
EPA is proposing to approve the North Carolina SIP revision related to 
section 128(a)(2). EPA is also proposing to approve the portions of 
North Carolina's 2010 NO2 infrastructure SIP (submitted on 
August 23, 2013), 2010 SO2 infrastructure SIP (submitted on 
March 18, 2014), 2008 8-hour ozone infrastructure SIP (submitted on 
November 2, 2012), and 2008 Lead infrastructure SIP (submitted on July 
20, 2012) related to 110(a)(2)(E)(ii).
    Additionally, as mentioned above, EPA conditionally approved North 
Carolina's infrastructure submissions for the 1997 8-hour ozone NAAQS, 
1997 annual PM2.5 NAAQS and the 2006 24-hour 
PM2.5 NAAQS as they related to 110(a)(2)(E)(ii) because 
provisions related to CAA 128 were not included in North Carolina's 
SIP. As a result of EPA's proposed approval of North Carolina's 
February 5, 2013, and July 27, 2015, submittals, EPA is also proposing 
to convert EPA's previous conditional approval of North Carolina's 
infrastructure submissions for the 1997 8-hour ozone NAAQS, 1997 annual 
PM2.5 NAAQS and the 2006 24-hour PM2.5 NAAQS as 
they relate to 110(a)(2)(E)(ii) to full approval.

V. Proposed Action

    As described above, EPA is proposing to approve North Carolina's 
February 5, 2013, and July 27, 2015, submissions concerning conflict of 
interest requirements related to CAA section 128(a)(2). Specifically, 
today, EPA is proposing to approve North Carolina's 110(a)(2)(E)(ii) 
submission as it relates to the Secretary of the DENR and his/her 
delegatee that approve permit or enforcement orders described at 
section 110(a)(2) of the CAA. EPA is also proposing to approve North 
Carolina's July 27, 2015, 110(a)(2)(E)(ii) submission as it relates to 
appealed matters decided by ALJs. Additionally, EPA is proposing to 
approve the portions of North Carolina's 2010 NO2 
infrastructure SIP, 2010 SO2 infrastructure SIP, 2008 8-hour 
ozone infrastructure SIP, and 2008 Lead infrastructure SIP related to 
110(a)(2)(E)(ii). EPA is also proposing to convert previous conditional 
approvals for North Carolina's infrastructure submissions for the 1997 
8-hour ozone NAAQS, 1997 annual and 2006 24-hour PM2.5 NAAQS 
addressing CAA section 110(a)(2)(E)(ii) requirements to approval.

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VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely proposes to approve state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. In those areas of Indian country, the rule does 
not have tribal implications as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Authority:  42 U.S.C. 7401 et seq.

    Dated: August 12, 2015.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2015-20747 Filed 8-21-15; 8:45 am]
 BILLING CODE 6560-50-P