Glynn Environmental Coalition
December 29, 2005
P. O. Box 2443
Brunswick, Georgia 31521
Regulatory Development Section
Air Planning Branch
Air, Pesticides and Toxics Management Division
U. S. Environmental Protection Agency Region 4
61 Forsyth Street, SW
Atlanta, Georgia 30303-8960
Re: Comments from the Glynn Environmental Coalition on Environmental
Protection Agency, 40 CFR Part 52, EPA-R04-OAR-2005-GA-0005-0001;
FRL-8003-4, Approval and Promulgation of Implementation Plans; Georgia:
Approval of Revisions to the State Implementation Plan.
Dear Mr. Lakeman,
Enclosed, please find comments from the Glynn Environmental Coalition on
EPA-R04-OAR-2005-GA-0005-0001: FRL-8003-4, Approval and Promulgation of
Implementation Plans; Georgia: Approval of Revisions to the State
Implementation Plan. The Glynn Environmental Coalition is a non-profit
organization located in Brunswick, Georgia. Our mission is a clean
environment and healthy economy for citizens of coastal Georgia. Our goal is
a safe and healthy place to live and raise our families.
Please send correspondence to the attention of Bill Owens, President,
Glynn Environmental Coalition, to the postal or email addresses above.
Thank you for your attention to our comments, and we look forward to your
Bill Owens, GEC President
Comments from the Glynn Environmental Coalition on
Environmental Protection Agency, 40 CFR Part 52,
EPA-R04-OAR-2005-GA-0005-0001; FRL-8003-4, Approval and Promulgation of
Implementation Plans; Georgia: Approval of Revisions to the State
1. Summary of the Glynn Environmental Coalition's Interest in Proposed
The Glynn Environmental Coalition (GEC) petitioned the U.S. Environmental
Protection Agency (EPA) to end the release of hazardous air pollutant listed
in Title 1, Section 112, of the Clean Air Act (CAA) in Brunswick, Georgia,
at levels known to be unhealthy. The purpose of the rule change proposed in
EPA-R04-OAR-2005-GA-0005-0001 is to thwart efforts of the GEC to end
hazardous air releases that are a threat to our children, our health, and
The GEC has sought relief from unhealthy levels of hazardous air
pollutants listed in Title 1, Section 112, of the CAA under Georgia Rule for
Air Quality Control, 391-3-1.02(2)(a)1, which the EPA seeks to remove from
the Georgia State Implementation Plan (SIP). The section the EPA is seeking
to remove from the Georgia SIP through the proposed rule is Georgia Rule for
Air Quality Control, 391-3-1.02(2)(a)1, which states:
"No person owning, leasing, or controlling, the operation of any air
contaminant sources shall willfully, negligently or through failure to
provide necessary equipment or facilities or to take necessary precautions,
cause, permit, or allow the emission from said air contamination source or
sources, of such quantities of air contaminants as will cause, or tend to
cause, by themselves, or in conjunction with other air contaminants,
a condition of air pollution in quantities or characteristics or of a
duration which is injurious or which unreasonably interferes with the
enjoyment of life or use of property in such area of the State as is
affected thereby. Complying with any of the other sections of these rules
and regulations or any subdivisions thereof, shall in no way exempt a person
from this provision."
2. The EPA contends that Georgia Rule for Air Quality Control,
391-3-1.02(2)(a)1 is "...the State’s general 'nuisance' rule."
The EPA contends that Georgia Rule for Air Quality Control,
391-3-1.02(2)(a)1 is "...the State’s general 'nuisance' rule." Georgia Code
Title 41- Nuisance Rule, does not address air pollution or state air
pollution attainment goals. Language in Georgia Rule for Air Quality
Control, 391-3-1.02(2)(a)1 is unique and different from the language in
Georgia Code Title 41- Nuisance Rule. The EPA did not provide any supporting
documentation in the Federal Register to support their contention that
Georgia Rule for Air Quality Control, 391-3-1.02(2)(a)1 is reiterated in
Georgia Code Title 41- Nuisance Rule, or that the same protections from the
release of hazardous air pollutant listed in CAA Title 1, Section 112 can be
obtained under the Georgia Nuisance Rule.
Georgia Rule for Air Quality Control, 391-3-1.02(2)(a)1 does state the
overriding goals and objectives to be obtained under the SIP and achieved
through the Georgia Environmental Protection Division’s (EPD) air permitting
program. Specifically, Georgia Rule for Air Quality Control,
391-3-1.02(2)(a)1, states the goal to be achieved by the SIP and it is to
prevent, "... a condition of air pollution in quantities of
characteristics or of a duration which is injurious or which unreasonably
interferes with the enjoyment of life or use of property." The CAA
similarly states overriding goals and objectives with language very similar
to Georgia Rule for Air Quality Control, 391-3-1.02(2)(a)1.
"CAA Section 101. (a) The Congress finds -
(1) that the predominant part of the Nation's population is located in
its rapidly expanding metropolitan and other urban areas, which generally
cross the boundary lines of local jurisdictions and often extend into two or
(2) that the growth in the amount and complexity of air pollution brought
about by urbanization, industrial development, and the increasing use of
motor vehicles, has resulted in mounting dangers to the public health and
welfare, including injury to agricultural crops and livestock, damage
to and the deterioration of property, and hazards to air and ground
(3) that air pollution prevention (that is, the reduction or elimination,
through any measures, of the amount of pollutants produced or created at the
source) and air pollution control at its source is the primary
responsibility of States and local governments; and
(4) that Federal financial assistance and leadership is essential for the
development of cooperative Federal, State, regional, and local programs to
prevent and control air pollution.
(b) The purposes of this title are -
(1) to protect and enhance the quality of the Nation's air resources
so as to promote the public health and welfare and the productive capacity
of its population;
(2) to initiate and accelerate a national research and development
program to achieve the prevention and control of air pollution;
(3) to provide technical and financial assistance to State and local
governments in connection with the development and execution of their air
pollution prevention and control programs; and
(4) to encourage and assist the development and operation of regional air
pollution prevention and control programs.
(c) Pollution Prevention.- A primary goal of this Act is to encourage
or otherwise promote reasonable Federal, State, and local governmental
actions, consistent with the provisions of this Act, for pollution
prevention." (emphasis added)
The EPA argument that language in Georgia Rule for Air Quality Control,
391-3-1.02(2)(a)1 is merely a statement of a general nuisance provision is
as applicable to CCA Section 101. The stated purpose and goals to be
obtained through the SIP are distinctly different from the goal and
objectives of the general nuisance provisions in Georgia Title 41- Nuisance
Rule. The Georgia Board of Natural Resources established Georgia Rule for
Air Quality Control, 391-3-1.02(2)(a)1, as the overriding priority of the
SIP program, and noted, "Complying with any of the other sections of
these rules and regulations or any subdivisions thereof, shall in no way
exempt a person from this provision." Obviously, the State put great
importance in the Rule, and wanted the Rule to guide air permitting
Furthermore, the EPA provides States latitude to implement rules and
regulations that provide greater pollution control and human health
protections than provided for in the CAA. As noted in the CAA: "Section.
116. Except as otherwise provided in sections 119 (c), (e), and (f)(as in
effect before the date of the enactment of the Clean Air Act Amendments of
1977), 209, 211(c)(4), and 233 (preempting certain State regulation of
moving sources) nothing in this Act shall preclude or deny the right of any
State or political subdivision thereof to adopt or enforce (1) any standard
or limitation respecting emissions of air pollutants or (2) any requirement
respecting control or abatement of air pollution; except that if an emission
standard or limitation is in effect under an applicable implementation plan
or under section 111 or 112, such State or political subdivision may not
adopt or enforce any emission standard or limitation which is less stringent
than the standard or limitation under such plan or section. [42 U.S.C.
7416]" Similar language can be found throughout the CAA, including
Sections 110 and 112. Clearly, the intent of the CAA was to provide States
flexibility in creating their SIP —including provisions more stringent than
the CAA— as long as the State's rules and regulations were at least as
stringent as the CAA. The proposed rule seeks to overturn Georgia Rule for
Air Quality Control, 391-3-1.02(2)(a)1, which could be interpreted,
according to the situation, to be more protective of human health than
provisions in the CAA. Furthermore, the EPA is overstepping its authority
when proposing a rule change without a vote from the governing body, the
Georgia Board of Natural Resources, which would also include the public
participation provisions in CAA Section 110.
The EPA should support and encourage SIPs to contain sections like
Georgia Rule for Air Quality Control, 391-3-1.02(2)(a)1 since they provide
stated objectives and goals to be reached that are consistent with those in
CCA Section 101, and, above all, provide flexibility to State SIP permitting
programs. When issuing multiple air permits in a small geographical area
like Brunswick, Georgia, 391-3-1.02(2)(a)1 provides the permitting agency an
opportunity to assess the cumulative effects from all permits allowing
emissions of hazardous air pollutant listed in Title 1, Section 112, of the
CAA, and make adjustments to air permits to end unhealthy conditions.
Instead of asking for specific limitations of Section 112 pollutants in
specific air permits, the GEC has asked that under Georgia Rule
391-3-1.02(2)(a)1, the Georgia Environmental Protection Division make the
necessary permit adjustments to meet SIP goals and end unhealthy conditions
that have resulted from air permitting decisions. The purpose of proposed
rule EPA-R04-OAR-2005-GA-0005-0001 is to remove the provision in the Georgia
SIP under which the GEC has petitioned the EPA to enforce the SIP so
unhealthy releases of Section 112 hazardous air pollutants can be addressed
while leaving flexibility for the Georgia Environmental Protection Division
to make adjustments through permit modifications. The GEC believes the SIP
program, and specifically the Georgia air-permitting program, should be the
means of ending unhealthy air releases. Unfortunately, the SIP as
implemented has resulted in unhealthy air in Brunswick, Georgia, and the
EPA, through the proposed rule, is seeking to frustrate efforts to bring
resolution to the current situation.
3. Executive Order 12898 - Environmental Justice - Is Violated by the
Brunswick, Georgia, is 60% minority, 28% live below the poverty level,
and the EPA has listed Brunswick as an Environmental Justice community under
Executive Order 12898 - Environmental Justice. The rule change proposed in
EPA-R04-OAR-2005-GA-0005-0001 is intended to circumvent agency
responsibilities under Executive Order 12898.
1-101. Agency Responsibilities
To the greatest extent practicable and permitted by law, and consistent
with the principles set forth in the report on the National Performance
Review, each Federal agency shall make achieving environmental justice part
of its mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or environmental effects of
its programs, policies, and activities on minority populations and
low-income populations in the United States and its territories and
possessions, the District of Columbia, the Commonwealth of Puerto Rico, and
the Commonwealth of the Mariana Islands.
Executive Order 12898 sets forth strategies the EPA should use in
Environmental Justice communities. The rule change proposed in
EPA-R04-OAR-2005-GA-0005-0001 is intended to circumvent agency
responsibility to implement strategies to address disproportionately high
and adverse human health and environmental effects of its programs,
policies, and activities on minority populations and low-income population
in Brunswick, Georgia. The proposed rule change works in direct opposition
to the strategy of promoting enforcement of all health and environmental
statutes in an area with minority populations and low-income populations,
and is intended to frustrate community efforts to end the release of
unhealthy levels of hazardous air pollutant listed in Title 1, Section 112,
of the CAA.
The EPA has not, but should, consider the economic and social implication
of the proposed rule. The intent of EPA-R04-OAR-2005-GA-0005-0001 is to
frustrate the efforts of an Environmental Justice community to seek relief
from the unhealthy levels of toxic chemicals listed in Title 1, Section 112,
of the CAA.
The purpose of EPA-R04-OAR-2005-GA-0005-0001 is to thwart public
participation in the decision-making process, which is in direct opposition
to the strategy of "ensure greater public participation" in
Executive Order 12898. Section 110 of the CAA, Plan Revisions,
states: "Each revision to an implementation plan submitted by a State
under this Act shall be adopted by such State after reasonable notice and
public hearing. (emphasis added) The proposed rule is intended to
circumvent public participation provisions of the CAA. Furthermore, The
Georgia Environmental Protection Division amended Rules for Air Quality
Control Chapter 391-3-1 on June 28, 2005, which became effective on July 20,
2005, and retained Georgia Rule for Air Quality Control, 391-3-1.02(2)(a)1.
If the governing body, the Georgia Board of Natural Resources, wanted to
proposes changes to Georgia environmental rules, the changes would have been
made known publicly, public hearing held per CAA Section 110, voted upon,
and a proposed SIP change submitted to the EPA.
The EPA should withdraw the proposed rule and implement the strategies in
Executive Order 12898, Section 1-103 - Development of Agency Strategies, to
address the documented unhealthy release in Brunswick, Georgia, of hazardous
air pollutants listed in CAA Section 112.
Executive Order 12898 - Environmental Justice states:
1-103. Development of Agency Strategies
Except as provided in section 6- 605 of this order, each Federal
agency shall develop an agency-wide environmental justice strategy, as
set forth in subsections (b)-(e) of this section that identifies and
addresses disproportionately high and adverse human health or
environmental effects of its programs, policies, and activities on
minority populations and low-income populations. The environmental
justice strategy shall list programs, policies, planning and public
participation processes, enforcement, and/or rulemakings related to
human health or the environment that should be revised to, at a minimum:
1. promote enforcement of all health and environmental statutes
in areas with minority populations and low-income populations;
2. ensure greater public participation;
3. improve research and data collection relating to the health of
and environment of minority populations and low-income populations;
4. identify differential patterns of consumption of natural
resources among minority populations and low-income populations. In
addition, the environmental justice strategy shall include, where
appropriate, a timetable for undertaking identified revisions and
consideration of economic and social implications of the revisions.
4. Executive Order 13045--Protection of Children From Environmental
Health Risks and Safety Risks - Is Violated by the Proposed Rule
The intent of EPA-R04-OAR-2005-GA-0005-0001 is to circumvent Executive
Order 13045--Protection of Children From Environmental Health Risks and
Safety Risks. The GEC has petitioned the EPA to take action under Georgia
Rule for Air Quality Control, 391-3-1.02(2)(a)1, and specifically to address
our concerns over impacts to our children’s health and ability to learn due
to release of CAA Section 112 hazardous air pollutants.
Children attending two elementary schools in the areas most impacted by
the air release of CAA Section 112 hazardous pollutants were tested. The
average first grades Intelligence Quotient (IQ) at the two schools were 87
and 89. When children were tested in the fifth grade, IQs were found to have
risen. IQ does not change throughout life, which suggests that environmental
conditions could be a significant factor in the low IQ testing scores
observed. CAA Section 112 hazardous pollutants include potent central
nervous system toxicants and suppressants, many of which are released close
to Brunswick’s elementary schools with low first grade IQ scores, which
could reduce the ability to learn or influence test taking ability. Failure
to learn or suppressed learning potential during the first few years of
school can have significant impacts later in life. Brunswick’s schools have
a very high dropout rate, which could be attributable in part to
environmental conditions that damaged or suppress learning ability and
potential during elementary school.
Economic potential of our community is harmed when significant numbers of
students do not receive at least a high school education. Critical to the
economic future of Brunswick are environmental conditions in schools that
foster and support learning potential. Seven schools are located in areas
with unhealthy levels of CAA Section 112 hazardous pollutants, and many of
the schools are located closer to emission sources than the State air
Executive Order 13045 recognizes that the conditions that exist in
Brunswick can have significant impacts to children’s health and learning
ability, and makes specific recommendations.
Executive Order 13045—Protection of Children From Environmental Health
Risks and Safety Risks states:
"Section 1. Policy. 1-101. A growing body of scientific knowledge
demonstrates that children may suffer disproportionately from environmental
health risks and safety risks. These risks arise because: children’s
neurological, immunological, digestive, and other bodily systems are still
developing; children eat more food, drink more fluids, and breathe more air
in proportion to their body weight than adults; children’s size and weight
may diminish their protection from standard safety features; and children’s
behavior patterns may make them more susceptible to accidents because they
are less able to protect themselves. Therefore, to the extent permitted by
law and appropriate, and consistent with the agency’s mission, each Federal
(a) shall make it a high priority to identify and assess environmental
health risks and safety risks that may disproportionately affect children;
and (b) shall ensure that its policies, programs, activities, and standards
address disproportionate risks to children that result from environmental
health risks or safety risks. (Emphasis added)
1-102. Each independent regulatory agency is encouraged to participate in
the implementation of this order and comply with its provisions."
5. Executive Order 12866 - Regulatory Planning and Review - Is Violated
by the Proposed Rule
The intent of proposed rule EPA-R04-OAR-2005-GA-0005-0001 is to
circumvent Executive Order 12866 Regulatory Planning and Review. The
proposed rule EPA-R04-OAR-2005-GA-0005-0001 is an example of the regulatory
system working against the American people, and not for them, which
Executive Order 12866 sought to prevent and rectify.
Executive Order 12866 instructs each agency to provide the public with
meaningful participation in the regulatory process. In particular, before
issuing a notice of proposed rulemaking, and each agency should seek the
involvement of those who are intended to benefit from and those expected to
be burdened by any regulation. In addition, each agency should afford the
public a meaningful opportunity to comment on any proposed regulation, which
in most cases should include a comment period of not less than 60 days.
The timing of the November 29, 2005, Federal Register notice of proposed
rule EPA-R04-OAR-2005-GA-0005-0001, and the short comment period that ends
December 29, 2005, are intended to frustrate, prevent, and discourage a
meaningful public opportunity to comment on the proposed regulation. The
Executive Order recommends a comment period of not less than 60 days.
The GEC is requesting that the comment period on
R04-OAR-2005-GA-0005-0001 be extended 60 days from the date the EPA formally
notified our legal council of the proposed rule, which was on December 15,
2005. This would extend the comment period to February 14, 2006, and allow
time for public review and a meaningful opportunity to comment on the
Executive Order 12866 - Regulatory Planning and Review states:
"The American people deserve a regulatory system that works for them, not
against them: a regulatory system that protects and improves their health,
safety, environment, and well-being and improves the performance of the
economy without imposing unacceptable or unreasonable costs on society;
regulatory policies that recognize that the private sector and private
markets are the best engine for economic growth; regulatory approaches that
respect the role of State, local, and tribal governments; and regulations
that are effective, consistent, sensible, and understandable. We do not have
such a regulatory system today.
Each agency shall (consistent with its own rules, regulations, or
procedures) provide the public with meaningful participation in the
regulatory process. In particular, before issuing a notice of proposed
rulemaking, each agency should, where appropriate, seek the involvement of
those who are intended to benefit from and those expected to be burdened by
any regulation (including, specifically, State, local, and tribal
officials). In addition, each agency should afford the public a meaningful
opportunity to comment on any proposed regulation, which in most cases
should include a comment period of not less than 60 days. Each agency also
is directed to explore and, where appropriate, use consensual mechanisms for
developing regulations, including negotiated rulemaking."
6. EPA Plain English Guide to the Clean Air Act
The EPA has provided the American people a Plain English Guide to the
Clean Air Act in which they provided information about the effects of
unhealthy air pollution and actions citizens can take when the State or EPA
do not enforce the CAA or SIP. The physical symptoms of air pollution and
health effects described by the EPA exist in Brunswick, Georgia, and have
been documented many times in Georgia Environmental Protection Division
complaint records. "Air pollution can make you sick. It can cause burning
eyes and nose and an itchy, irritated throat, as well as trouble in
breathing. Some chemicals found in polluted air cause cancer, birth defects,
brain and nerve damage and long-term injury to the lungs and breathing
passages. Some air pollutants are so dangerous that accidental releases can
cause serious injury or even death."
The suffering our community endures from hazardous air releases has been
documented in Georgia Environmental Protection Division’s (EPD) air
complaints received from citizens, school principals, health department,
Georgia EPD staff, and business owners in Brunswick, Georgia. The following
are examples from the Georgia EPD complaint records.
Air Complaints to the Georgia Environmental Protection Division,
Brunswick, Glynn County, Georgia.
1915 Goodyear Avenue
|Brown dust noted over past month that
causes irratation (sic) to breathing. Also, has a smell like an
electrical fire, burns the eyes, leaves a taste in mouth.
2610 Fourth Street
|Hercules has been emitting a strong,
pungent odor around 10:00 every night. The odor seems to settle in
around her neighborhood and stays there for quite a while.
109 Redfern Drive
St. Simons Island
|Claims husband a patient in S.E. Ga. Med.
Center (local Hospital) Monday January 17, 2005. While visiting husband,
eyes became irritated, as well as patient. Hospital maintenance crew
advised common occurrence, allegedly from ambient air emissions from
Hercules, enter hospital, causes such symptoms.
1 Conservation Way
|Air smells sour on Hwy. 17 at the Torras
213 Brockington Drive
St. Simons Island
|Horrible odor coming from Hercules
801 Union Street
|Offensive odor noted at house and area of
St. Simons causeway near US 17
||Saroyi Morris, Glynn County Health
||Odor like sulfur at Burroughs-Molette
107 Grand Oaks Lane
St. Simons Isl, GA 31522
|Foul odor coming from Hercules, Inc
12 Brooklyn Homes
|Caller reports that she is having breathing
difficulties due to the odors emanating from Hercules Corporation.
|Relating to the incident of the previous
few days were (sic) Hercules has released Dowtherm. It has resulted in
stinging throat and lungs and a bloody nose in one person. Caller very
concerned it will happen again.
||Smoke and steam from Hercules. Hercules
reports blown pressure release valve on DowTherm Boiler.
||Foul odor in hospital area.
reports bleach pump at CST failed.
1311 Union Street
|Smell from Hercules started about 09:30 AM
and is now making complainant sick.
||Bad odor in air…or chemical release to DDO
06:15 occurred 05:40
||Horrible odors, methyl mercaptan, dimethyl
||Strong odor for the last two days.
||Odors on 10-14/15/16/17-00.
|Terrible odor. NOTE: EPD employee
Vararsdale also reports foul odor in Brunswick.
||John W. Knox
2819 Sherwood Drive
|Smelly air. Lives behind Goodyear School on
||John Fourtuna, Georgia Department of
Natural Resources, Coastal Resources Division
||Smell at Hercules. Driving by Hercules
highway 17 wind to north. Happened at 12:25 PM.
(EPD records note this was
one of five similar calls)
|She says she could smell something possibly
coming from Hercules. The chemical immediately made her sick.
||Saroyi Chandler, Health Department.
||Dark smoke from stacks.
101 St. Catherine Isl. Lane
|Hercules periodically releases enough smoke
at night to trip smoke alarms. This has been a problem for the last 2 ˝
711 Prince Street
|A bad odor from the Hercules Plant.
||Saroyi Chandler, Glynn County Health
||Black smoke from Hercules.
||Recent resident upset over Hercules Inc.
strong chemical odors, white smoke.
||Nauseating odor at Jane Macon Middle
School. Picked up sick child.
||Dark smoke from Hercules.
||Dark smoke from Hercules.
258 Alabama Avenue
|Very strong odor. Making people sick. Whole
neighborhood is complaining.
||Black smoke at night and on weekends.
||Georgia Environmental Protection Division –
Letter of Non-Compliance
||Strong odors off property... Impact on the
public living and working near the plant.
||Willa Mae Lewis
1502 Monck Street
|Odor in air late Monday around 5 P. M. She
became very ill, dizzy, vomiting, could not breath. Went to fire
station. They had to give her oxygen. Fire department said it was from
||Releases on weekends and during cloud
||Bob Boyne (County Commissioner) Allstate
Player St. at end of
Brunswick, GA 31520
|Terrible odor, burns his eyes. (North side
||Last Thursday (11-2) and today, daughter
has been getting sick from odors from industries near her school. The
child had to be taken out of school again today, (she has allergies) and
other children were sick also. Mrs. Parkhurst noticed terrible odors
when she picked up the child today.
2909 Evergreen Rd.
Brunswick, GA 31520
|Very bad smell causing eyes and nose to
3502 Dolphin St.
Brunswick, GA 31520
|Very bad smell causing eyes and nose to
4144 St. Catherine Lane
Brunswick, GA 31520
||G. Foisy & J. Morris
Parkwood Avenue and
Risley Middle School, and 2 near hospital.
|Awful odor. Hercules reports distillation
of DMS (dimethyl sulfide).
||Tony Ethridge, Assist. Principal,
Burroughs-Molette Elementary School
|Obnoxious odor, several teachers report
stomach illness, afraid special needs children will get sick (some of
which are non-verbal).
||Hercules is emitting white smoke (not
steam). Eyes water and causes great breathing problems.
||White material released from Hercules that
is tearing his eyes and burning his nose.
Lanier Plaza, Express
Brunswick, GA 31520
|Burning eyes and lungs.
The EPA Plain English Guide to the Clean Air Act (Guide) states that, "Public
participation is a very important part of the 1990 Clean Air Act," but
proposed rule R04-OAR-2005-GA-0005-0001 is meant to frustrate the very
public participation venues that the Guide goes on to recommend. "Throughout
the Act, the public is given opportunities to take part in determining how
the law will be carried out. For instance, you can take part in hearings
on the state and local plans for cleaning up air pollution. You can sue the
government or a source's owner or operator to get action when EPA or your
state has not enforced the Act. You can request action by the state or
EPA against violators." (emphasis added)
The GEC participated in public hearings on Title V permits issued in
Brunswick, and requested that the Georgia EPD include limits on CAA Section
112 hazardous pollutants to correct unhealthy air conditions documented
through the State air monitoring station located in Brunswick, Georgia. The
Georgia EPD responded that our request was outside the scope of the Title V
Air Permitting Program administered under the SIP. The GEC disagrees with
the Georgia EPD. The GEC believes the SIP and air-permitting program are the
venue through which to limit release of toxic chemicals to the air in
unhealthy amounts. Due to inaction of the Georgia EPD, the GEC petitioned
the EPA to take the actions necessary to prevent release of CAA Section 112
hazardous pollutants through enforcement of the Georgia SIP provision,
Georgia Rule for Air Quality Control, 391-3-1.02(2)(a)1.
EPA Region 4 refused to respond to our petition, requiring the GEC to
seek an EPA response through the courts. The EPA’s action though proposed
rule R04-OAR-2005-GA-0005-0001, which is intended to mute our petition and
our pleas for relief from CAA Section 112 hazardous air pollutants at
unhealthful levels, is a shameful continuation of EPA efforts to prevent
meaningful relief from hazardous air pollution for the citizens of
7. Federal Register Notice Does Not Provide Supporting Documentation for
the EPA Decision-making Process That Led to the Proposed Rule
Proposed rule R04-OAR-2005-GA-0005-0001 is not supported by documentation
of EPA's determination that the rule, Georgia Rule for Air Quality Control,
391-3-1.02(2)(a)1, was erroneously incorporated into the Georgia SIP. To the
contrary, "...EPA’s conclusion that Georgia Air Quality Control Rule
391-3-1-.02(2)(a)1 is an applicable requirement that must be included in the
title V permit issued to the Hercules Incorporated Brunswick facility."
Sean Lakeman, the EPA Region 4 representative designated as the contact
for documentation for the proposed rule change, was requested to send all
supporting documentation. The documentation provided was only one page with
The only documentation in support of proposed rule
R04-OAR-2005-GA-0005-0001 was a two sentence, October 31, 2005, email from
Ron Methier, Georgia EPD, to Dick Schutt, EPA Region 4. The email stated,
"In review of our Georgia Air Quality Control Rules and state implementation
plan submittals we have concluded that our "nuisance rule",
391-3-1-.02(2)(a)1 has never been relied on or attributed to in any such
plan." The email implies that a review was performed by the Georgia EPD
and a conclusion was reached, but no review was provided by the Georgia EPD
for inclusion as documentation for the proposed rule change. The email also
implies that the EPA requested the Georgia EPD to respond to a question or
conduct a review, but no documentation was provided to explain why the
Georgia EPD sent the email to the EPA.
Despite both the U.S. EPA and the Georgia EPD both accepting that the
Rule in question was an applicable requirement in the Hercules' Permit, and
both parties even arguing that the requirement was met because of two
citations to the rule in the permit, the EPA, without any documentation
whatsoever has determined that the rule has never been used in any
permitting decision to further the goals and requirements of NAAQS. The
record is wholly deficient of any finding that no air quality permit issued
by the Georgia EPD since the adoption of the rule more than a decade ago has
relied on this provision for NAAQS. Indeed, such a finding is inconsistent
with the arguments made by both the U.S. EPA and the Georgia EPD throughout
the Hercules Inc. proceedings. The Georgia EPD even went as far as to argue
that the provision is in place in order to give the agency discretion to
tighten the emission standards if needed to protect public health. The
Georgia EPD never indicated that such discretion had been limited to non-NAAQS
situations, and indeed, no where in the rule does it suggest that it is
limited to non-NAAQS emission standards. Without supporting documentation
that refutes the state agency’s own argument throughout the Hercules Inc.
proceedings, the U.S. EPA’s actions in adopting this rule is arbitrary and
capricious and violates every aspect of the Administrative Procedures Act.
Furthermore, the U.S. EPA has not provided the legal authority under
which it proposes to take the current action. The state agency has not gone
through any formal rulemaking procedures and the U.S. EPA does not have the
authority to simply change state SIPs without a formal rulemaking procedure
at the state level. Even if the U.S. EPA can unilaterally modify a state
SIP, the pathetic three line email from the state agency does not satisfy
any level of formal request from the state agency. Therefore, such as is
arbitrary and capricious and violates every aspect of the Administrative
8. EPA Motion Provides Insight into EPA's Decision-making Process for
Proposed Rule R04-OAR-2005-GA-0005-0001
On December 15, 2005, the EPA filed, Docket No. 05-10375-GG, in the
United States Court of Appeals for the Eleventh Circuit. The Case is titled:
GLYNN ENVIRONMENTAL COALITION, INC., Petitioner,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent,
HERCULES INCORPORATED and ENVIRONMENTAL PROTECTION DIVISION, DEP’T OF
NATURAL RESOURCES, STATE OF GEORGIA, Intervenors.
JOINT MOTION TO STAY PENDING FINAL ACTION ON AN EPA PROPOSED RULE
THAT COULD MOOT THE ISSUES RAISED IN THIS PETITION
The real purposes for proposed rule R04-OAR-2005-GA-0005-0001 are far
different than those represented in the Federal Register. The reasons cited
by the EPA for the proposed rule change, and presented to the 11th Circuit
of Appeals were to:
A. "Pursuant to Federal Rule of Appellate Procedure 27, and Eleventh
Circuit Rule 27-1(d), Respondent United States Environmental Protection
Agency ("EPA") and Intervenor Environmental Protection Division, Department
of Natural Resources, State of Georgia ("EPD"), hereby move this Court for a
stay until February 27, 2006 of all proceedings in the above matter,
including oral argument, which is currently scheduled for January 27, 2006."
Clearly, first and foremost, it was the EPA's intent to delay oral
arguments that were scheduled for January 27, 2006, at which the GEC would
seek relief from CAA Section 112 hazardous air pollutants under Georgia Air
Quality Control Rule 391-3-1-.02(2)(a)1. The Federal Register failed to
mention that the EPA was proposing the rule to stay a case that was due to
be heard by the court on January 27, 2006.
B. "On November 29, 2005, EPA proposed a correction to the Georgia
State Implementation Plan (SIP) that, if finalized as proposed, would moot
The second EPA goal was to moot the GEC case, and frustrate our efforts
to obtain relief from unhealthy levels of CAA Section 112 pollutants. The
Federal Register failed to mention that the EPA wanted to prevent a
community from seeking resolution to decades of unhealthy toxic air
C. "Depending on the number and nature of comments received, EPA
anticipates taking final action on the proposed rule by February 27, 2006."
The third goal of the EPA is to "fast track" the proposed rule change,
most likely to discourage public participation in the decision-making
D. "Staying these proceedings until final action has been taken on the
proposed rule would promote judicial economy and avoid unnecessary
The fourth goal of the EPA is to save money. Heaven forbid that the EPA
has to hear the pleas for relief from unhealthy toxic air pollution from the
poor and predominantly minority community down in Brunswick, Georgia. It is
much easier to just eliminate the law, let the people continue to suffer,
and save the EPA's money.
In the Federal Register, the EPA contends, "This proposed action
merely proposes to remove an erroneously approved State rule from the SIP...
." A "reasonable person" could easily find that the EPA blatantly
misrepresented the purpose of the proposed rule change. At a minimum, the
EPA is misusing their powers to propose rule changes in the Federal
Register, and the case might actually be that the information presented in
the Federal Register is fraudulent.
The EPA's Motion follows:
"JOINT MOTION TO STAY PENDING FINAL ACTION ON AN EPA PROPOSED RULE THAT
COULD MOOT THE ISSUES RAISED IN THIS PETITION
Pursuant to Federal Rule of Appellate Procedure 27, and Eleventh Circuit
Rule 27-1(d), Respondent United States Environmental Protection Agency
("EPA") and Intervenor Environmental Protection Division, Department of
Natural Resources, State of Georgia ("EPD"), hereby move this Court for a
stay until February 27, 2006 of all proceedings in the above matter,
including oral argument, which is currently scheduled for January 27, 2006.
On November 29, 2005, EPA proposed a correction to the Georgia State
Implementation Plan (SIP) that, if finalized as proposed, would moot this
case. Depending on the number and nature of comments received, EPA
anticipates taking final action on the proposed rule by February 27, 2006.
Staying these proceedings until final action has been taken on the proposed
rule would promote judicial economy and avoid unnecessary litigation
expense. This matter is fully briefed.
In its petition, Glynn Environmental Coalition ("Petitioner") asserts
that a permit issued pursuant to title V of the Clean Air Act ("CAA") to
Hercules, Inc. by EPD for the Hercules facility in Brunswick, Georgia, does
not comply with Georgia Rule 391-3-1-.02(2)(a)1 (the "Rule" or "Georgia
Rule"). That Rule prohibits the emission of air pollutants from a source or
sources in such a way as to cause a condition of air pollution which is
"injurious or which unreasonably interferes with the enjoyment of life or
use of property." Ga. Comp. R. & Regs. r. 391-3-1-.02(2)(a)1 (1992). Because
this Rule is part of the Georgia SIP, Clean Air Act Title V operating
permits issued in Georgia are required to assure compliance with the Rule.1
See 42 U.S.C. § 7661c(a). Petitioner contends
that the permit does not require Hercules to comply with the Rule and that
EPA was therefore required to object to the permit. EPA responds that the
permit includes sufficient provisions to ensure compliance with the Rule, so
that no objection to the permit was warranted. See EPA Brief.
EPA and EPD seek a stay of the case because on November 29, 2005, EPA
issued a Notice of Proposed Rulemaking, 70 Fed. Reg. 71,446 (attached as Ex.
1), proposing to remove the Georgia Rule from the Georgia SIP. As EPA
explained in the notice, "Since the State’s ‘nuisance’ provision is not
directed at the attainment and maintenance of the NAAQS, EPA has found that
its prior approval of this particular rule (into the SIP) was in error.
Consequently, in order to correct this error, EPA is proposing to remove
Georgia Rule 391–3–1.02(2)(a)1 from the approved Georgia SIP pursuant to
section110(k)(6) of the Act and to codify this deletion by revising the
appropriate paragraph under 40 CFR part 52, subpart L, § 52.570." 70 Fed.
If EPA finalizes the rule as proposed, the Rule will no longer be part of
the Georgia SIP, and would not otherwise constitute an applicable
requirement for the Hercules facility under CAA section 504, 42 USC 7661c,
and 40 C.F.R. 70.2. Accordingly, failure to assure compliance with the Rule
would no longer be a basis for EPA to object to a title V permit issued by
EPD, and the issue raised in this petition would be moot.
The comment period for EPA’s proposed rule closes on December 29, 2005.
EPA will consider and respond to all significant comments before taking
final action. Depending on the number and nature of comments received, EPA
anticipates taking final action on the proposed rule by February 27, 2006.
Counsel for EPA and EPD have attempted to contact Petitioner’s counsel,
but have not been able to speak with him. Counsel for EPA has spoken with
counsel for Intervenor Hercules, Inc., who states that while Hercules does
not concur with or join in EPA's interpretations of the law in all respects,
Hercules concurs in the request for a the stay of this appeal until February
Dated: December 15, 2005 Respectfully submitted,
SUE ELLEN WOOLDRIDGE
Assistant Attorney General"
9. The Georgia Environmental Protection Division Has a History of
Allowing Unregulated and Unpermitted Hazardous Air Releases From the
Hercules Plant in Brunswick, Georgia
Among the reasons the GEC petitioned the EPA for relief from hazardous
air pollutants under the Hercules Title V Permit was the close proximity to
seven schools and the Georgia EPD's history of allowing unregulated and
unpermitted hazardous air releases from the facility. The United States
Environmental Protection Agency Office of Enforcement of Environmental and
Compliance Assurance, National Enforcement Investigations Center (NEIC),
conducted a multimedia compliance investigation in January and February
1999, and released their report in September 1999. The NEIC found seven
process areas that had never received permits by the Georgia EPD. Hercules
continued to operate unregulated and without final permits under the
"Application Shield". A facility can submit an application for an air
permit, but continue to operate until the final permit is issued under the
application shield. In the case of Hercules, some permit applications had
remained un-acted upon by the Georgia EPD since 1986. As the NEIC noted,
"Without valid permits, emission control equipment operations are not
enforceable by either the GEPD or the US EPA."
10. The Georgia EPD Has a History of Frustrating Community Efforts to
Reduce Releases of CAA Section 112 Hazardous Air Pollutants
The GEC has made a concerted effort to identify why we have unhealthy and
life disrupting toxic air releases, and formulate an action plan to achieve
relief from decades of toxic air pollution. Even before the Title V Permit
hearings, the Georgia EPD claiming the SIP is not the program to control
toxic unhealthy air releases, or the EPA's recent effort to deny our pleas
for relief, the Georgia EPD was actively thwarting our efforts. The
following is an example of the tactics the Georgia EPD has used, which were
documented in a letter by the GEC.
"February 8, 2002
Georgia Environmental Protection Division
Air Protection Branch
4244 International Parkway, Suite 120
Atlanta, Georgia 30354
Re: Georgia Open Records Act Request for Hercules air permit applications
numbered 5835, 5267, 5492, 7060, 7082, 7091, 7166, and 7714.
Dear Mr. Matos,
Under the Georgia Open Records Act (GORA), the Glynn Environmental
Coalition (GEC) is requesting that you provide Hercules Inc., Brunswick
Georgia air permit applications numbered 5835, 5267, 5492, 7060, 7082, 7091,
7166, and 7714. Furthermore, the GEC has made a good faith effort to obtain
the requested air permit applications, but the requested information was
returned to Hercules Inc. in violation of Article 4, 50-18-70(a) of the
Georgia Open Records Act (GORA).
On June 18, 2001, I contacted you by phone and left a message that I
would be traveling to your office in Atlanta, Georgia on June 26, 2001 to
view and copy the above mentioned Hercules air permit applications. On June
19, 2001, we spoke by telephone and at that time I reiterated that I would
be coming to your office in Atlanta to view and copy the Hercules air permit
applications. Your response was that I could see the files between 8:30 AM
until 4:00 PM.
On June 26, 2001, I arrived at your office location to view the Hercules
air permit applications. Instead of the applications that I had requested to
see on June 18 and 19, 2001, there was a letter from you to Jay Wright,
Hercules Inc. date June 19, 2001, stating that you were returning the air
permit applications to Hercules Inc. It is very suspicious that the specific
air permit applications requested were returned to Hercules on the very day
that we spoke and I made an appointment with you for viewing and copying,
being that the air permit applications had been in the possession of the
Georgia Environmental Protection Division for up to 15 years.
The GORA is explicit in prohibiting records from being "... placed in the
hands of a private person or entity for the purpose of avoiding disclosure".
Therefore, the GEC is requesting that you comply without delay by providing
the Hercules air permit applications requested under the GORA.
The Georgia EPD went on to further frustrate GEC's efforts to obtain the
permit applications. The permits were now in Brunswick, Georgia. The EPD
Atlanta Air Branch office could have had the permits picked up by, or
delivered to, the Brunswick Georgia EPD office one mile down the street, but
no, they had the permits sent back to the Atlanta Air Branch office, and
provided only 15 days for the GEC to travel to Atlanta to copy the permit
applications. In the end, 1230 miles had to be driven to obtain the Hercules
air permit applications requested under the Georgia Open Records Act.
As discussed in its Brief, EPD respectfully disagrees with EPA’s conclusion
that Georgia Air Quality Control Rule 391-3-1-.02(2)(a)1 is an applicable
requirement that must be included in the title V permit issued to the
Hercules Incorporated Brunswick facility.
return to document
footnote 1, supra
return to document