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