A bit more about Senate Bill 10. Both the Clean Air Act and the Clean Water Act have conflict of interest standards for members of state boards and commissions with authority to issue federal permits. To have — and keep — delegated permitting authority, North Carolina must meet those standards. North Carolina law gives the Environmental Management Commission (EMC) authority to issue federal water quality and air quality permits. Although the EMC has delegated much of its permitting authority to Department of Environment and Natural Resources (DENR) staff, the EMC still makes decisions on major variances, declaratory rulings, civil penalty remission requests and final decisions in some administrative appeals.
Senate Bill 10 removes language in N.C. General Statute 143B-283(c) that has allowed the EMC to meet federal conflict of interest standards. The sentence to be repealed closely tracks Clean Air Act language requiring any state commission that approves permits or enforcement orders to have a majority of members who “represent the public interest and do not derive any significant portion of their income from persons subject to permits or enforcement orders under [the delegated air quality permitting program]”. Under G.S. 143B-283(c), at least nine Environmental Management Commission members must not “derive any significant portion of their income from persons subject to permits or enforcement orders under [the water and air quality statutes]”. (When it was adopted, nine members represented a majority of the EMC; more about that below.) Although the Clean Water Act’s conflict of interest language is worded differently, EPA has also accepted G.S. 143B-283(c) as meeting requirements for delegation of water quality permitting authority.
Since the EMC expanded from 17 members to 19 members in 2001, nine no longer represents a majority of the commission. EPA picked up on the math problem more than a year ago and began questioning whether North Carolina’s delegated permitting programs still met federal conflict of interest standards. The question first came up in connection with the air quality program and DENR’s Division of Air Quality has addressed the issue in recent implementation plans for federal air quality standards. DENR seems to have satisfied EPA by making sure that permit-related decisions go to EMC committees that have a “public interest” majority at the committee level.
Complete repeal of the EMC conflict of interest language would force EPA to look at the issue again under circumstances that make inconsistency with federal standards more difficult to resolve. The EMC appointment criteria in Senate Bill 10 no longer assure that even EMC committees could have a “public interest” majority.