Comment submitted by George Hays, Of Counsel, GreenLaw, on behalf of Sierra Club, Georgia Chapter

Re: Petition for Reconsideration and Proposal for Withdrawal of Findings of
Significant Contribution and Rulemaking for Georgia for Purposes of Reducing
Ozone Interstate Transport, Docket ID No. EPA-HQ-OAR-2004-0439
To Whom It May Concern:
Please accept these comments submitted on behalf of Sierra Club, Georgia Chapter
regarding the United States Environmental Protection Agency?s (?EPA?) response
to a Petition for Reconsideration regarding a final rule issued under Section
110 of the Clean Air Act (?CAA?) related to the interstate transport of nitrogen
oxides. On April 21, 2004, EPA issued a final rule that required the State of
Georgia to submit revisions to its State Implementation Plan (SIP) that prohibit
specified amounts of nitrogen Oxide (?NOx?) emissions, one of the precursors to
ozone (smog) pollution, for the purposes of reducing NOx and ozone transport
across State boundaries in the eastern half of the United States. This rule
became effective on June 21, 2004. Subsequently, the Georgia Coalition for
Sound Environmental Policy, an industry-backed organization, filed a Petition
for Reconsideration requesting that EPA reconsider the applicability of the
NOx-SIP Call with regards to Georgia. In response, EPA is proposing to remove
Georgia from the NOx-SIP call region. For the following reasons, Sierra Club
opposes EPA?s proposal to remove Georgia from the NOx-Sip Call region.
EPA should not amend its regulations as recommended by GCSEP to remove the State
of Georgia from inclusion in the Phase II NOx SIP call rule. First, the lack of
a cap on Georgia sources that are subject to the NOx Sip call may impede the
ability of downwind states to maintain attainment of the 1-hour ozone NAAQS.
Second, numerous modeling studies that have been performed in the southeast US
and nationwide have assumed full implementation of the NOx SIP call in all
effected states including Georgia. If Georgia does not implement the NOx SIP
call, all of this modeling would be incorrect.
Third, in October, 1998, EPA took final action on the NOx SIP call and concluded
that sources in 22 states and D.C. emit NOx in amounts that significantly
contribute to nonattainment of both the 1-hour and 8-hour ozone standards in
downwind areas. However, on September 18, 2000, in response to court decisions
regarding litigation of the 8-hour ozone standard, EPA stayed the findings of
the NOx SIP call based on the 8-hour ozone standard.
In supporting data for the NOx SIP call, EPA found that NOx emissions in the
state of Georgia significantly contribute to nonattainment of the 8-hour ozone
standard in ten downwind states. These findings are relevant as each of the ten
downwind states including Alabama contain one or more 8-hour ozone nonattainment
areas. In fact, this summer, nine separate monitors in Alabama have registered
ozone concentration exceedances of the design value for the 8-hour standard.
Because the court challenge to the 8-hour standard itself has long ago been
resolved, Whitman v. Am. Trucking Ass?ns, 531 U.S. 457 (2001) and the 8-hour
NAAQS is firmly in place, EPA?s findings regarding Georgia?s contribution to
8-hour nonattainment in downwind states are valid and borne out by monitoring
this summer showing areas all over the southeast registering NAAQS violations.
Because it is unreasonable for EPA to continue to stay its findings in the NOx
SIP call related to the 8-hour ozone NAAQS and because Georgia is a contributor
to nonattainment in downwind states, including Alabama, Georgia should not be
removed from Phase II of the NOx SIP call rule.
With respect to other issues raised by EPA in its request for comment, because
EPA specifically declined to seek comment on those issues, no comment here is
provided. Accordingly, if EPA seeks to go forward with this proposed rulemaking
for any other reason other than that specifically stated, EPA should reopen the
comment period regarding this rulemaking.
If you have any questions regarding these comments, do not hesitate to contact
me at (415) 566-5414 or by email at georgehays@mindspring.com, or contact
Justine Thompson at (404) 650-3122 or by email at jthompson@green-law.org.
Thank you for your attention to this important matter.
Sincerely,

George Hays
Of Counsel
GreenLaw
175 Trinity Avenue, SW
Atlanta, Georgia 30303
www.green-law.org
Cc: Patty Durand, Sierra Club