[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
[[Page 51168]]
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]
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