EPA Issues Air Case Decision

    Soon after the November 2nd elections, the U.S. EPA finally issued its decision in the Glynn Environmental Coalition's petition that sought federal intervention to require the State of Georgia to consider cumulative impacts of air pollution in permitting decisions. Nearly two years after GEC filed the petition, and a year after suit was filed in federal court seeking an EPA decision, the U.S. EPA denied the petition and refused to enforce provisions of the Georgia State Implementation Plan (SIP).

   GEC has argued that the Georgia SIP requires the state to consider cumulative impacts of air contaminants in permitting decisions--not only those contaminants emitted from a single source, but also from other sources in the area.  In Brunswick, there are two major facilities--Hercules, Inc. and a Georgia Pacific (now Koch) pulp and paper mill--that sit on either side of Brunswick, with a new asphalt plant currently being built inside the city limits as well. The Georgia Environmental Protection Division (EPD) granted air permits for each of these facilities without consideration of the air pollution contributed by the other facilities in the area. As long as each individual facility meets its own requirements, the Georgia EPD grants the permits. This blind permitting method ignores the realities of the overall air pollution being emitted in the city of Brunswick.

   In January 2002, GEC filed a petition asking the EPA to block the permit for these reasons. Hercules and the Georgia EPD argued that the provision in the Georgia SIP--which does not have a similar provision in the federal Clean Air Act and regulations--was simply a restatement of nuisance law and did not require the state to consider cumulative impacts.  Although to be expected of an industry trying to avoid lower emission standards, the Georgia EPD sadly jumped at the chance to insure that its permitting decisions would never have to be made with any consideration of total air quality.  Instead of examining total air quality in the same manner as the TMDL process under the Clean Water Act, the Georgia EPD has assured industry that it will not undertake any effort to examine the cumulative effect of air pollution from various sources.

   After EPA failed to respond to the Petition, GEC filed suit in federal court seeking a decision requiring EPA to issue an opinion. A settlement was reached in the federal case and EPA issued their decision on November 10th. EPA denied the Petition on the grounds that the EPA would not overturn the interpretation and position of the Georgia EPD.  In other words, the state of Georgia has now worked to block any attempt to ensure that all air pollution is looked at when permitting new facilities, and the federal EPA has decided that it will not step in to overturn that unreasonable interpretation.

   GEC is examining the prospects of appealing the decision to the 11th Circuit Court of Appeals.

                                                                                                     -- Scott Randolph, January 2005