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EPA Fights Effort to End Brunswick’s Toxic Air

The Glynn Environmental Coalition (GEC) petitioned the U.S. Environmental Protection Agency (EPA) to end the release of hazardous air pollutants in Brunswick, Georgia, at levels known to be unhealthy. The EPA has proposed in the Federal Register to remove the rule under which the GEC has petitioned the EPA to control the release of hazardous chemicals in Brunswick, Georgia, in an effort to thwart efforts of the GEC to end unhealthy air releases that are a threat to our children, our health, and our economy.

The GEC sought relief from unhealthy levels of hazardous air pollutants 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 SIP is what guides air permits to industries that release toxic chemicals to the air. The section the EPA is seeking to remove from the Georgia SIP through the proposed rule 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."

The EPA contends that the Georgia Rule is "...the State’s general ‘nuisance’ rule." The Georgia Board of Natural Resources established the Georgia Rule for Air Quality Control 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. Unfortunately, the SIP as implemented has resulted in unhealthy air in Brunswick, Georgia, and the EPA, through the proposed rule, is seeking to frustrate GEC efforts to bring resolution to the current situation.

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 Clean Air Act 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 only documentation in support of removal of the Rule was a two-sentence, October 31, 2005, e-mail from Ron Methier, Georgia EPD, to Dick Schutt, EPA Region 4. The e-mail 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 e-mail implies that a review was performed by the Georgia EPD and a conclusion was reached, but no review was provided by the Georgia EPD as documentation for the proposed rule change. The e-mail 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 e-mail to the EPA.

On December 15, 2005, the EPA filed Docket No. 05-10375-GG in the United States Court of Appeals for the Eleventh Circuit, providing much more information about the EPA's motivation for the proposed rule change. 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 reasons cited by the EPA for the proposed rule change, as presented to the 11th Circuit of Appeals were:

A. "... 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 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 air 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.

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. Executive Order 12898 sets forth strategies the EPA should use in Environmental Justice communities. The rule change 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 pollutants.
Intent of the EPA 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, and specifically to address our concerns over impacts to our children’s health and ability to learn due to release of 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 grade Intelligence Quotient (IQ) at the two schools were 87 and 89. When the same 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 damage 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 hazardous pollutants, and many of the schools are located closer to emission sources than the State air monitoring station.

See the GEC's complete comments on the proposed rule change here.

 
     

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