#### Clean Air Task Force

  ----------------------------------- -----------------------------------
  ***Alabama Environmental Council*** ***American Lung Association of
                                      Metropolitan Chicago***

  ***Appalachian Voices***            ***Appalachian Mountain Club***

  ***Canary Coalition***              ***Carolinas Clean Air Coalition***

  ***Chesapeake Bay Foundation***     ***Citizens for Pennsylvania's
                                      Future***

  ***Clean Air Watch***               ***Clean Water for North
                                      Carolina***

  ***Clean Water Action\--Maryland*** ***Conservation Council of North
                                      Carolina***

  ***Environment Northeast***         ***Group Against Smog and
                                      Pollution***

  ***Illinois PIRG***                 ***Maryland PIRG***

  ***National Environmental Trust***  ***National Parks Conservation
                                      Association***

  ***Natural Resources Council of     ***Natural Resources Defense
  Maine***                            Council***

  ***North Carolina Council of        ***North Carolina Sustainable
  Churches (Climate Connection)***    Energy Association***

  ***North Carolina Waste Reduction & ***Ohio Citizen Action***
  Awareness Network***                

  ***Ohio Environmental Council***    ***Ohio League of Conservation
                                      Voters***

  ***Ohio PIRG***                     ***Public Interest Research Group
                                      in Michigan***

  ***Southern Alliance for Clean      ***Southern Appalachian
  Energy***                           Biodiversity Project***

  ***Tennessee Environmental          ***United States Public Interest
  Council***                          Research Group***
  ----------------------------------- -----------------------------------

VIA E-Docket and US Mail

April 1, 2005

U.S. Environmental Protection Agency

EPA Docket Center (Air Docket)

1200 Pennsylvania Avenue, NW

Mail Code: 2822T

Washington, DC 20460-0001

Attention: Docket No. OGC-2005-0002---

> 70 Fed. Reg. 10088, March 2, 2005

Re: Comments on Proposed Consent Decree re North Carolina Section 126
Petition

Dear Acting Administrator Johnson:

The Clean Air Task Force submits these comments on behalf of itself and
32 local, regional, and national organizations active in the nationwide
effort to protect public health and the environment from the harmful
effects of air pollution.

On March 2, 2005, the US Environmental Protection Agency ("EPA")
published a notice in the Federal Register announcing a proposed consent
decree in litigation currently before the United States District Court
for the Eastern District of North Carolina. *State of* *North Carolina
v. Johnson*, No. 5:05-CV-112 and *Environmental Defense v. Johnson*, No.
5:05-CV-113. The litigation concerns EPA's failure to meet the deadline
for Agency action on a petition filed by the State of North Carolina
under Section 126 of the Clean Air Act, 42 USC §7426, for relief from
the transport of pollutants from thirteen upwind states. North Carolina
and Environmental Defense (Plaintiffs) had initiated the litigation in
the face of continued EPA inaction on the North Carolina petition. The
proposed consent decree would resolve the litigation by setting
court-supervised deadlines for EPA's action on the petition.

The North Carolina Section 126 petition alleges -- and sets forth
supporting evidence -- that emissions of sulfur dioxide (SO~2~) and/or
oxides of nitrogen (NOx) from large electric generating units in 13
other states contribute significantly to nonattainment in, and interfere
with maintenance by, North Carolina with respect to the national ambient
air quality standards (NAAQS) for fine particulate matter and/or 8-hour
ozone.

The North Carolina petition was filed on March 18, 2004. Section 126(b)
of the Clean Air Act provides, in pertinent part:

> "Within 60 days after receipt of any petition under this subsection
> and after public hearing, the Administrator [shall]{.underline} make
> such a finding or deny the petition." \[emphasis supplied\].

Notwithstanding the above requirement, EPA has not yet acted on North
Carolina's Section 126 petition. This failure to act led to the
above-referenced litigation, which was filed on February 17, 2005. More
than a year has now passed without an EPA response to the North Carolina
petition.

The undersigned groups are not parties to the litigation, but are keenly
interested in the relief sought by the North Carolina petition, and
therefore submit these comments on the proposed consent decree under
Section 113(g) of the Act. We support prompt---and affirmative---EPA
action on that petition. As EPA has recognized on a variety of
occasions, the transport of power plant emissions of NOx and SO~2~ and
their secondary pollutants, ozone and PM~2.5~, is a serious problem
throughout much of the United States, including North Carolina. These
pollutants cause serious health and environmental problems in North
Carolina and other downwind states, and significantly contribute to
problems that those states face when attempting to attain the ozone and
PM NAAQS. Reduction of these pollutants will help not only the people
and environment of North Carolina, but those of the states in which the
target sources are located, and those of many other states as well that
are impacted by those emissions.

We therefore are pleased that EPA has agreed to take action on the
petition. The consent decree provides the following schedule:

-   On or before August 1, 2005---EPA signature of a notice of proposed
    rulemaking fully responsive to the North Carolina 126 petition;

-   The week of September 12, 2005---EPA conduct of a public hearing in
    North Carolina to receive public comment on its proposed response;
    and

-   On or before March 15, 2006---EPA signature of a notice of final
    rulemaking fully responsive to the North Carolina 126 petition.

While we fully support the consent decree, we do believe that EPA could
address the NC petition earlier than it has agreed to do. Excessive
delay has occurred already. We urge EPA to consider a more prompt
response. We see no reason that EPA could not sign a proposed response
by June 1, 2005, hold a hearing in July, and issue its final rulemaking
notice by November 1, 2005. That is more than enough time for EPA
carefully to consider the North Carolina petition and any comments
received.

We stress that time is of the essence, with respect both to EPA's
response to the North Carolina petition, and to the effective date of a
remedy, assuming that EPA makes an affirmative finding under Section 126
on that petition (as we believe it must, given the evidence before it
and applicable statutory requirements). Implementation of the Section
126 remedy must occur within 3 years of EPA's finding.

Finally, we wish to note briefly that Sections 126 and 110 are
"independent statutory tools to address the problems of interstate
pollution transport." *See Appalachian Power v. EPA*, 249 F.3d 1032,
1046 (DC Cir. 2001). Thus EPA must address North Carolina's petition
under Section 126 on its own merits within the requirements of Section
126. EPA cannot lawfully avoid this responsibility simply by
substituting the requirements of its recent "Rule to Reduce Interstate
Transport of Fine Particulate Matter and Ozone (Clean Air Interstate
Rule)" (March 10, 2005), issued under Section 110, for an appropriate
remedy under Section 126 that is specifically responsive to the North
Carolina petition.

In conclusion, we support the proposed consent decree, but urge EPA to
consider a more expeditious response. We also urge EPA to make an
affirmative finding in response to the North Carolina petition, and to
require, as expeditiously as practicable, the necessary emission
reductions that will eliminate the upwind pollution that contributes
significantly to health and environmental problems, as well as
nonattainment, in North Carolina.

Respectfully submitted,

> David Marshall

Senior Counsel

Clean Air Task Force

PO Box 950

10 Bridge Street

Henniker, NH 03242

> On behalf of:

Alabama Environmental Council American Lung Association of

Jenny Dorgan Metropolitan Chicago

2717 7^th^ Avenue South Suite 207 Brian Urbaszewski

Birmingham, AL 35233 1440 West Washington Boulevard

Chicago, IL 60607

Appalachian Voices Appalachian Mountain Club

Mary Ann Hitt Georgia Murray

703 W. King St., Suite 105 PO Box 298

Boone, NC 28607 Gorham, NH 03581

Canary Coalition Carolinas Clean Air Coalition, Inc.

Avram Friedman Ron Bryant

530 W. Main Street, Suite 2 Nancy Bryant

PO Box 653 1100 Ardsley Rd

Sylva, NC 28779 Charlotte, NC 28207

Chesapeake Bay Foundation Citizens for Pennsylvania's Future

Jon Mueller Charles McPhedran

6 Heardon Avenue 1518 Walnut Street, Suite 1100

Annapolis, MD 21403 Philadelphia, PA  19102

Clean Air Watch Clean Water for North Carolina

Frank O'Donnell Hope Taylor-Guevara

1090 Vermont Avenue NW, Suite 800 29 ½ Page Avenue

Washington, DC 20005 Asheville, NC 28810

Clean Water Action---Maryland Conservation Council of North Carolina

Andrew Fellows Michael Nelson

4455 Connecticut Avenue, NW Brownie Newman

Suite A300 PO Box 12671

Washington, DC 20008 Raleigh, NC 27605

Environment Northeast Group Against Smog and Pollution

Michael Stoddard Rachel Filippini

101 Whitney Avenue Wightman School Community Building

New Haven, CT 06510 5604 Solway St, Room 204

> Pittsburgh, PA 15212

Illinois PIRG Maryland PIRG

Rebecca Stanfield Brad Heavner

180 W. Washington Street, Suite 510 3121 St. Paul St., Suite 26

Chicago, IL 60602 Baltimore, MD 21218

National Environmental Trust National Parks Conservation Association

John Stanton Don Barger

1200 Eighteenth Street, NW Joy Oakes

Fifth Floor 1300 19th ST NW, Suite 300

Washington, DC 20036 Washington, DC 20036

Natural Resources Council of Maine Natural Resources Defense Council

Sue Jones John Walke

3 Wade Street 1200 New York Avenue, NW

Augusta, ME 04330 Suite 400

Washington, DC 20005

North Carolina Council of Churches, North Carolina Sustainable Energy

Climate Connection Association

Edward J.P. O'Connor Ivan Urlaub

1307 Glenwood Ave., Suite 156 P.O. Box 6465

Raleigh, NC  27605 Raleigh, NC  27628

North Carolina Waste Awareness & Ohio Citizen Action

Reduction Network Sandy Buchanan

Jim Warren 614 W. Superior Avenue, Suite 1200

PO Box 61051 Cleveland, OH 44113

Durham, NC   27715-1051

Ohio Environmental Council Ohio League of Conservation Voters

Vicki Deisner Bill Demora

Staci Putney McLennan 1200 W Fifth Ave.

1207 Grandview Avenue, Suite 201 Columbus, OH 43212 

Columbus, OH 43212

Ohio PIRG Public Interest Research Group in Michigan

Erin Bowser (PIRGIM)

36 West Gay Street, Suite 315 Kate Madigan

Columbus, Ohio 43215 103 E. Liberty, Suite 202

Ann Arbor, MI 48104

Southern Alliance for Clean Energy Southern Appalachian Biodiversity
Project

Steve Smith Tracy Davids

Ulla-Britt Reeves 191 Merrimon Ave.

117 South Gay Street Asheville, NC 28801

PO Box 1842

Knoxville, TN 37902

Tennessee Environmental Council US Public Interest Research Group

Will Calloway Emily Figdor\
Suite D-105 218 D Street, SE\
One Vantage Way Washington, DC 20003\
Nashville TN 37228-1587.