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Comments from the Glynn Environmental Coalition on Environmental Protection Agency, 40 CFR Part 52,
EPA-R04-OAR-2005-GA-0005-0001; FRL-8003-4

 
   

Glynn Environmental Coalition                                           December 29, 2005
P. O. Box 2443
Brunswick, Georgia 31521

Phone: 912-466-0934
Email: gec@darientel.net

R04-OAR-2005-GA-0005

Sean Lakeman
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

Phone: 404-562-9043

Email: lakeman.sean@epa.gov

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 reply.

Sincerely,
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 Implementation Plan

1. Summary of the Glynn Environmental Coalition's Interest in Proposed Rule EPA-R04-OAR-2005-GA-0005-0001

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 our economy.

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 more States;

(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 transportation;

(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 decisions.

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 Proposed Rule

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; and

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 monitoring station.

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 agency:

(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 proposed regulation.

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.

Date Name Complaint
9-2-05 Katherine Adams

1915 Goodyear Avenue

Brunswick

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.
7-18-05 Lucille Higdon

2610 Fourth Street

Brunswick

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.
1-19-05 Nancy Thomason

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.
7-15-04 Frank Vanarsdale

Georgia Environmental Protection Division

1 Conservation Way

Brunswick

Air smells sour on Hwy. 17 at the Torras causeway.
11-18-02 Barry Nix

213 Brockington Drive

St. Simons Island

Horrible odor coming from Hercules

Smells on causeway

8-30-02 Linda Pollack

801 Union Street

Brunswick

Offensive odor noted at house and area of St. Simons causeway near US 17
3-28-02 Saroyi Morris, Glynn County Health Department Odor like sulfur at Burroughs-Molette Elementary School.
1-18-02 Krita Shea

107 Grand Oaks Lane

St. Simons Isl, GA 31522

Foul odor coming from Hercules, Inc
1-1-02 Lotty Jones

12 Brooklyn Homes

Brunswick

Caller reports that she is having breathing difficulties due to the odors emanating from Hercules Corporation.
12-29-01 Curtis Tutle

Brunswick

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.
12-27-01 Sherry Jackson Smoke and steam from Hercules. Hercules reports blown pressure release valve on DowTherm Boiler.
7-31-01 Daniel Parshley Foul odor in hospital area.

Hercules reports bleach pump at CST failed.

2-6-01 Linda Pollock

1311 Union Street

Brunswick

Smell from Hercules started about 09:30 AM and is now making complainant sick.
12-19-00 Anonymous Bad odor in air…or chemical release to DDO 06:15 occurred 05:40
12-6-00 Jim Morgester Horrible odors, methyl mercaptan, dimethyl disulfate.
11-28-00 Anonymous Odor problems.
11-17-00 Linda Pollack Odors
11-21-00 Anonymous Odors
10-27-00 Linda Pollack Odors
10-18-00 Claudia Tzucanow Strong odor for the last two days.
10-17-00 Linda Pollack Odors on 10-14/15/16/17-00.
5-2-00 John Knox

Sherwood Drive

Brunswick

Terrible odor. NOTE: EPD employee Vararsdale also reports foul odor in Brunswick.
4-22-00 John W. Knox

2819 Sherwood Drive

Brunswick

Smelly air. Lives behind Goodyear School on Hwy. 17.
2-15-00 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.
2-7-00 Linda Gallager

(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.
11-9-99 Saroyi Chandler, Health Department. Dark smoke from stacks.
8-25-99 Neil Foster

101 St. Catherine Isl. Lane

Brunswick

Hercules periodically releases enough smoke at night to trip smoke alarms. This has been a problem for the last 2 ˝ years.
3-23-99 Rosemary Kaszans

711 Prince Street

Brunswick

A bad odor from the Hercules Plant.
1-12-99 Saroyi Chandler, Glynn County Health Department Black smoke from Hercules.
2-6-98 Anonymous Recent resident upset over Hercules Inc. strong chemical odors, white smoke.
10-27-97 Deborah Parkhurst Nauseating odor at Jane Macon Middle School. Picked up sick child.
07-28-97 Rachael Saghie Dark smoke from Hercules.
2-13-97 Gary Drury Dark smoke from Hercules.
12-20-1996 Jon Sobecki

258 Alabama Avenue

St. Simons

Very strong odor. Making people sick. Whole neighborhood is complaining.
10-10-96 Racheal Saghie Black smoke at night and on weekends.
10-4-96 Georgia Environmental Protection Division – Letter of Non-Compliance Strong odors off property... Impact on the public living and working near the plant.
9-10-96 Willa Mae Lewis

1502 Monck Street

Brunswick

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 Hercules.
4-8-96 Racheal Saghie Releases on weekends and during cloud cover.
4-8-96 Bob Boyne (County Commissioner) Allstate Ins.

Lanier Plaza

Brunswick

Strong odors.
3-30-96 Jackie Holiday

Player St. at end of Kaiser

Brunswick, GA 31520

Terrible odor, burns his eyes. (North side of Hercules)
11-7-95 Debra Parkhurst 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.
4-17-95 Sara LaRoche

2909 Evergreen Rd.

Brunswick, GA 31520

Very bad smell causing eyes and nose to burn.
4-17-95 Nishia Laughlin

3502 Dolphin St.

Brunswick, GA 31520

Very bad smell causing eyes and nose to burn.
2-10-95 Elisa Coleman

4144 St. Catherine Lane

Brunswick, GA 31520

Black smoke.
2-9-95 Joe Roberson Black smoke.
1-20-95 G. Foisy & J. Morris

Parkwood Avenue and Risley Middle School, and 2 near hospital.

Awful odor. Hercules reports distillation of DMS (dimethyl sulfide).
5-18-94 Tony Ethridge, Assist. Principal, Burroughs-Molette Elementary School

Brunswick, GA

Obnoxious odor, several teachers report stomach illness, afraid special needs children will get sick (some of which are non-verbal).
5-16-94 Anonymous Black smoke.
2-24-94 Teresa Abraham Hercules is emitting white smoke (not steam). Eyes water and causes great breathing problems.
1-18-94 Jack Conyers White material released from Hercules that is tearing his eyes and burning his nose.
7-20-93 Mr. Worthing

Lanier Plaza, Express Services

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 Brunswick, Georgia.

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 two sentences.

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 Procedures Act.

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,
vs.
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 this case."

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 releases.

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 process.

D. "Staying these proceedings until final action has been taken on the proposed rule would promote judicial economy and avoid unnecessary litigation expense."

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. Reg. 71,447.

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. 2

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 27, 2006.

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
David Matos
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.

Sincerely,
Daniel Parshley"
 

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.

1 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

2  See footnote 1, supra    return to document

 
     

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