# Addendum — Environmental Defense v. Duke Energy Corporation > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0237%3A14 ## Record - **Collection:** Supreme Court brief - **Document type:** Addendum - **Published:** January 1, 2007 - **Citation:** 549 U.S. 561 ## Text — ~t AN a ses a Teal av aXe a ae miei ony =e . B) os ra ee : Greens a >t het Se eee ce a Oe] bic hens tien aeeaiasiertin PPS +: : wees a Se = ibe SS 6th tae ch CA ee ; eee} ‘Se. a tease oe eee eet Bere: : ae ie 2 oe bags xatheS abet er 7 pe Marae SiN eee fi Bore ser Te wat: moe “—_ te ; m oe) - yi r ¥ t hes fe fm meal RT os nee oot Sper. WAiuie a, ae: as ite 4 _— peg 4 ened °F ane ess ss x Sohne ¥ fo WARY oo SPA eke oa! +78 a ine ae < wh *“*, we la ADDENDUM A STATUTES 42 U.S.C. § 7411. Standards of performance for new station- ary sources (a) Definitions For purposes of this section: x * * *& (2) The term “new source” means any stationary source, the construction or modification of which is commenced after the publication of regulations (or, if earlier, proposed regulations) prescribing a standard of performance under this section which will be applicable to such source. 7s (4) The term “modification” means any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollut- ant not previously emitted. xs *£ * * 42 U.S.C. § 7470. Congressional declaration of purpose The purposes of this part are as follows: (1) to protect public health and welfare from any actual or potential adverse effect which in the Administrator’s judg- ment may reasonably be anticipate’ to occur from air pollu- tion or from exposures to pollutants in other media, which . pollutants originate as emissions to the ambient air),’ notwith- ' So in original. Probably should be “anticipated”. ? So in original. Section was enacted without an opening parenthesis. 2a standing attainment and maintenance of all national ambient air quality standards; (2) to preserve, protect, and enhance the air quality in national parks, national wilderness areas, national monuments, na- tional seashores, and other areas of special national or re- gional natural, recreational, scenic, or historic value; (3) to insure that economic growth will occur in a manner consistent with the preservation of existing clean air re- sources; (4) to assure that emissions from any source in any State will not interfere with any portion of the applicable implementa- tion plan to prevent significant deterioration of air quality for any other State; and (5) to assure that any decision to permit increased air pollu- tion in any area to which this section applies is made only af- ter careful evaluation of all the consequences of such a deci- sion and after adequate procedural opportunities for informed public participation in the decisionmaking process. 42 U.S.C. § 7475. Preconstruction requirements (a) Major emitting facilities on which construction is com- menced No major emitting facility on which construction is com- menced after August 7, 1977, may be constructed in any area to which this part applies unless— (1) a permit has been issued for such proposed facility in accordance with this part setting forth emission limita- tions for such facility which conform to the requirements of this part; (2) the proposed permit has been subject to a review in accordance with this section, the required analysis has been conducted in accordance with regulations promul- gated by the Administrator, and a public hearing has 3a been held with opportunity for interested persons includ- ing representatives of the Administrator to appear and submit written or oral presentations on the air quality impact of such source, alternatives thereto, control tech- nology requirements, and other appropriate considera- tions; (3) the owner or operator of such facility demonstrates, as required pursuant to section 7410(j) of this title, that emissions from construction or operation of such facility will not cause, or contribute to, air pollution in excess of any (A) maximum allowable increase or maximum al- lowable concentration for any pollutant in any area to which this part applies more than one time per year, (B) national ambient air quality standard in any air quality control region, or (C) any other applicable emission standard or standard of performance under this chapter; (4) the proposed facility is subject to the best available control technology for each pollutant subject to regula- tion under this chapter emitted from, or which results from, such facility; (5) the provisions of subsection (d) of this section with respect to protection of class I areas have been complied with for such facility; (6) there has been an analysis of any air quality impacts projected for the area as a result of growth associated with such facility; (7) the person who owns or operates, or proposes to own or operate, a major emitting facility for which a permit is required under this part agrees to conduct such monitor- ing as may be necessary to determine the effect which emissions from any such facility may have, or is having, on air quality in any arca which may be affected by emissions from such source; and (8) in the case of a source which proposes to construct in 4a a class III area, emissions from which would cause or contribute to exceeding the maximum allowable incre- ments applicable in a class II area and where no standard under section 7411 of this title has been promulgated subsequent to August 7, 1977, for such source category, the Administrator has approved the determination of best available technology as set forth in the permit. ** * * 42 U.S.C. § 7479. Definitions For purposes of this part— (1) The term “major emitting facility” means any of the fol- lowing stationary sources of air pollutants which emit, or have the potential to emit, one hundred tons per year or more of any air pollutant from the following types of stationary sources: fossil-fuel fired steam electric plants of more than two hundred and fifty million British thermal units per hour heat input, coal cleaning plants (thermal dryers), kraft pulp mills, Portland Cement plants, primary zinc smelters, iron and steel mill plants, primary aluminum ore reduction plants, pri- mary copper smelters, municipal incinerators capable of charging more than fifty tons of refuse per day, hydrofluoric, sulfuric, and nitric acid plants, petroleum refineries, lime plants, phosphate rock processing plants, coke oven batteries, sulfur recovery plants, carbon black plants (furnace process), primary lead smelters, fuel conversion plants, sintering plants, secondary metal production facilities, chemical process plants, fossil-fuel boilers of more than two hundred and fifty million British thermal units per hour heat input, petroleum storage and transfer facilities with a capacity exceeding three hundred thousand barrels, taconite ore processing facilitics, glass fiber processing plants, charcoal production facilities. Such term also includes any other source with the potential to emit two hundred and fifty tons per year or more of any air pollutant. This term shall not include new or modified facili- Sa ties which are nonprofit health or education institutions which have been exempted by the State. (2)(A) The term “commenced” as applied to construction of a major emitting facility means that the owner or operator has obtained all necessary preconstruction approvals or permits required by Federal, State, or local air pollution emissions and air quality laws or regulations and either has (i) begun, or caused to begin, a continuous program of physical on-site construction of the facility or (ii) entered into binding agree- ments or contractual obligations, which cannot be canceled or modified without substantial loss to the owner or operator, to undertake a program of construction of the facility to be com- pleted within a reasonable time. (B) The term “necessary preconstruction approvals or permits” means those permits or approvals, required by the permitting authority as a precondition to undertaking any activity under clauses (i) or (ii) of subparagraph (A) of this paragraph. (C) The term “construction” when used in connection with any source or facility, includes the modification (as defined in section 741 1(a) of this title) of any source or facility. (3) The term “best available control technology” means an emission limitation based on the maximum degree of reduc- tion of each pollutant subject to regulation under this chapter emitted from or which results from any major emitting facil- ity, which the permitting authority, on a case-by-case basis, taking into account energy, environmental, and economic im- pacts and other costs, determines is achievable for such facil- ity through application of production processes and available methods, systems, and techniques, including fuel cleaning, clean fuels, or treatment or innovative fuel combustion tech- niques for control of each such pollutant. In no event shall application of “best available control technology” result in emissions of any pollutants which will exceed the emissions 6a allowed by any applicable standard established pursuant to section 7411 or 7412 of this title. Emissions from any source utilizing clean fuels, or any other means, to comply with this paragraph shall not be allowed to increase above levels that would have been required under this paragraph as it existed prior to November 15, 1990. ** * * 42 U.S.C. § 7501. Definitions For the purpose of this part— x* * * * (4) Modifications; modified The terms “modifications” and “modified” mean the same as the term “modification” as used in section 7411(a)(4) of this title. 42 U.S.C. § 7607. Administrative proceedings and judicial review x* * * (b) Judicial review (1) A petition for review of action of the Administrator in promulgating any national primary or secondary am- bient air quality standard, any emission standard or re- quirement under section 7412 of this title, any standard of performance or requirement under section 7411 of this title, any standard under section 7521 of this title (other than a standard required to be prescribed under section 7521(b)(1) of this title), any determination under section 7521(b)(5) of this title, any control or prohibition under section 7545 of this title, any standard under section 7571 of this title, any rule issued under section 7413, 7419, or under section 7420 of this title, or any 7a other nationally applicable regulations promulgated, or final action taken, by the Administrator under this chap- ter may be filed only in the United States Court of Ap- peals for the District of Columbia. A petition for review of the Administrator’s action in approving or promulgat- ing any implementation plan under section 7410 of this title or section 7411(d) of this title, any order under section 7411()) of this title, under section 7412 of this ti- tle,” under section 7419 of this title, or under section 7420 of this title, or his action under section 1857c- 10(c)(2)(A), (B), or (C) of this title (as in effect before August 7, 1977) or under regulations thereunder, or re- vising regulations for enhanced monitoring and compli- ance certification programs under section 7414(a)(3) of this title, or any other final action of the Administrator under this chapter (including any denial or disapproval by the Administrator under subchapter I of this chapter) which is locally or regionally applicable may be filed only in the United States Court of Appeals for the ap- propriate circuit. Notwithstanding the preceding sen- tence a petition for review of any action referred to in such sentence may be filed only in the United States Court of Appeals for the District of Columbia if such ac- tion is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination. Any petition for review under this sub- section shall be filed within sixty days from the date no- tice of such promulgation, approval, or action appears in the Federal Register, except that if such petition is based solely on grounds arising after such sixtieth day, then any petition for review under this subsection shall be filed within sixty days after such grounds arise. The fil- ing of a petition for reconsideration by the Administrator of any otherwise final rule or action shall not affect the “So in original. 8a finality of such rule or action for purposes of judicial re- view nor extend the time within which a petition for ju- dicial review of such rule or action under this section may be filed, and shall not postpone the effectiveness of such rule or action. (2) Action of the Administrator with respect to which review could have been obtained under paragraph (1) shall not be subject to judicial review in civil or criminal proceedings for enforcement. Where a final decision by the Administrator defers performance of any nondiscre- tionary statutory action to a later time, any person may challenge the deferral pursuant to paragraph (1). 9a ADDENDUM B 1987 CODE OF FEDERAL REGULATIONS 40 C.F.R. § 51.100 Definitions. As used in this part, all terms not defined herein will have the meaning given them in the Act: (a) “Act” means the Clean Air Act (42 U.S.C. 7401 et seq., as amended by Pub. L. 91-604, 84 Stat. 1676 Pub. L. 95-95, 91 Stat., 685 and Pub. L. 95-190, 91 Stat., 1399.) x * * & 40 C.F.R. § 51.166 Prevention of significant deterioration of air quality. x*~_* * * (a)(3) Required plan revision. If the State or the Administra- tor determines that a plan is substantially inadequate to pre- vent significant deterioration or that an applicable increment is being violated, the plan shall be revised to correct the in- adequacy or the violation. The plan shall be revised within 60 days of such a finding by a State or within 60 days following notification by the Administrator, or by such later date as pre- scribed by the Administrator after consultation with the State. (a)(4) Plan assessment. The State shall review the adequacy of a plan on a periodic basis and within 60 days of such time as information becomes available that an applicable incre- ment is being violated. *-_* * * (b) Definitions ... : (b)(1)(i) “Major stationary source” means: (b)(1)(i(a) Any of the following stationary sources of air pol- lutants which emits, or has the potential to emit, 100 tons per 10a year or more of any pollutant subject to regulation under the Act: Fossil fuel-fired steam clectric plants of more than 250 million British thermal units per hour heat input, coal clean- ing plants (with thermal dryers), kraft pulp mills, portland cement plants, primary zinc smelters, iron and steel mill plants, primary aluminum ore reduction plants, primary cop- per smelters, municipal incinerators capable of charging more than 250 tons of refuse per day, hydrofluoric, sulfuric, and nitric acid plants, petroleum refineries, lime plants, phosphate rock processing plants, coke oven batteries, sulfur recovery plants, carbon black plants (furnace process), primary lead smelters, fuel conversion plants, sintering plants, secondary metal production plants, chemical process plants, fossil fuel boilers (or combinations thereof) totaling more than 250 mil- lion British thermal units per hour heat input, petroleum stor- age and transfer units with a total storage capacity exceeding 300,000 barrels, taconite ore processing plants, glass fiber processing plants, and charcoal production plants; (b)(1)(i)(b) Notwithstanding the stationary source size speci- fied in paragraph (b)(1)(i)(a) of this section, any stationary source which emits, or has the potential to emit, 250 tons per year or more of any air pollutant subject to regulation under the Act; or *-_* * * (b)(2)(i) “Major modification” means any physical change in or change in the method of operation of a major stationary source that would result in a significant net emissions in- crease of any pollutant subject to regulation under the Act. *_* * * (b)(2)(iii) A physical change or change in the method of op- eration shall not include: (b)(2)iii)(a) Routine maintenance, repair, and replacement; (b)(2\iii)(b) Use of an alternative fucl or raw material by rea- son of any order under sections 2 (a) and (b) of the Energy lla Supply and Environmental Coordination Act of 1974 (or any superseding legislation) or by reason of a natural gas curtail- ment plan pursuant to the Federal Power Act; (b)(2)(iti)(c) Use of an alternative fuel by reason of an order or rule under section 125 of the Act; (b)(2)(iii)(d) Use of an alternative fuel at a steam generating unit to the extent that the fuel is generated from municipal solid waste; (b)(2)(iii(e) Use of an alternative fuel or raw material by a Stationary source which: (b)(2)(iii)(e)(1) The source was capable of accommodating before January 6, 1975, unless such change would be prohib- ited under any federally enforceable permit condition which was established after January 6, 1975 pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR Sub- part I or 40 CFR 51.166; or (b)(2itie)(2) The source is approved to use under any per- mit issued under 40 CFR 52.21 or under regulations approved pursuant to 40 CFR 51.166; (b)(2)(iiif) An increase in the hours of operation or in the production rate, unless such change would be prohibited un- der any federally enforceable permit condition which was es- tablished after January 6, 1975, pursuant to 40 CFR $2.21 or under regulations approved pursuant to 40 CFR Subpart I or 40 CFR 51.166. (b)\(2\iii)(g) Any change in ownership at a stationary source. (b)(3)(i) “Net emissions increase” means the amount by which the sum of the following exceeds zero: (b)(3)(i)(a) Any increase in actual emissions from a particular physical change or change in the method of operation at a sta- tionary source; and 12a (b)(3)(i)(b) Any other increases and decreases in actual emis- sions at the source that are contemporaneous with the particu- lar change and are otherwise creditable. (b)(4) “Potential to emit”. means the maximum capacity of a stationary source to emit a pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the source to emit a pollutant, including air pollution control equipment and restrictions on hours of op- eration or on the type or amount of -material combusted, stored, or processed, shall be treated as part of its design if the limitation or the effect it would have on emissions is federally enforceable. Secondary emissions do not count in determining the potential to emit of a stationary source. x*~* * * (b)(8) “Construction” means any physical change or change in the method of operation (including fabrication, erection, instailation, demolition, or modification of an enussions unit) which would result in a change in actual emissions. (b)(9) “Commence” as applied to construction of a major sta- tionary source or major modification means that the owner or operator has all necessary preconstruction approvals or per- mits and either has: (b)(9\(i) Begun, or caused to begin, a continuous program of actual on-site construction of the source, to be completed within a reasonable time; or (b)(9)(ii) Entered into binding agreements or contractual obli- gations, which cannot be cancelled or modified without sub- stantial loss to the owner or operator, to undertake a program of actual construction of the source to be completed within a reasonable time. (b\(10) “Necessary preconstruction approvals or permits” means those permits or approvals required under federal air l3a quality control laws and regulations and those air quality con- trol laws and regulations which are part of the applicable State Implementation Plan. (b)(11) “Begin actual construction” means, in general, initia- tion of physical on-site construction activities on an emissions unit which are of a permanent nature. Such activities include, but are not limited to, installation of building supports and foundations, laying of underground pipework, and construc- tion of permanent storage structures. With respect to a change in method of operation this term refers to those on-site activi- ties, other than preparatory activities, which mark the initia- tion of the change. *-_* * * (b)(21)(i) “Actual emissions” means the actual rate of emis- sions of a pollutant from an emissions unit, as determined in accordance with paragraphs (b)(21)(ii)-(b)\(21iv\iv) of this section. (b)(21 (ii) In general, actual emissions as of a particular aate shall equal the average rate, in tons per year, at which the unit actually emitted the pollutant during a two-year period which precedes the particular date and which is representative of normal source operation. The reviewing authority may allow the use of a different time period upon a determination that it is more representative of normal source operation. Actual emissions shall be calculated using the unit’s actual operating hours, production rates, and types of materials processed, stored, or combusted during the selected time period. s+ * £ (b)(21)(iv) For any emissions unit which has not begun nor- mal operations on the particular date, actual emissions shall equal the potential to emit of the unit on that date. 7. + * l4a (b)(23)(i) “Significant” means, in reference to a net emissions increase or the potential of a source to emit any of the follow- ing pollutants, a rate of emissions that would equal or exceed any of the following rates: Pollutant and Emissions Rate Carbon monoxide: 100 tons per year (tpy) Nitrogen oxides: 40 tpy Sulfur dioxide: 40 tpy Particulate matter: 25 tpy Ozone: 40 tpy of volatile organic compounds Lead: 0.6 tpy Asbestos: 0.007 tpy Beryllium: 0.0004 tpy Mercury: 0.1 tpy Vinyl chloride: | tpy Fluorides: 3 tpy Sulfuric acid mist: 7 tpy Hydrogen sulfide (H T22S): 10 tpy Total reduced sulfur (including H T22S): 10 tpy Reduced sulfur compounds (including H T22S): 10 tpy (b)(23)(ii) “Significant” means, in reference to a net emis- sions increase or the potential of a source to emit a pollutant subject to regulation under the Act that paragraph (b)(23)(1) of this section, does not list, any emissions rate. (b)(23)(iii) Notwithstanding paragraph (b)(23)(i) of this sec- tion, “significant” means any emissions rate or any net emis- sions increase associated with a major stationary source or major modification, which would construct within 10 kilome- 15a > ters of a Class I area, and have an im act on such area equal to or greater than | 1/4g/m [FN3j (24-hour average). (i) Review of Major Stationary Sources and Major Modifi- cations—Source Applicability and Exemptions (i)(1) The plan shall provide that no major stationary source or major modification shall begin actual construction unless, as a minimum, requirements equivalent to those contained in paragraphs (j) through (r) of this section have been met. *~_** * 40 C.F.R. § 52.01 Definitions. All terms used in this part but not defined herein shall have the meaning given them in the Clean Air Act and in Parts 5] and 60 of this chapter. ** * * (d) The phrases “modification” or “modified source” mean any physical change in, or change in the method of operation of, a stationary source which increases the emission rate of any pollutant for which a national standard has been promul- gated under Part SO of this chapter or which results in the emission of any such pollutant not previously emitted, except that: _ (d)(1) Routine maintenance, repair, and replacement shall not be considered a physical change, and | (d)(2) The following shall not be considered a change in the method of operation: (d)(2)i) An increase in the production rate, if such increase does not exceed the operating design capacity of the source; (d)(2)(ii) An increase in the hours of operation; (d)(2)(iii) Use of an alternative fuel or raw material, if prior to the effective date of a paragraph in this part which imposes l6a conditions on or limits modifications, the source is designed to accommodate such alternative use. x * *& * 40 C.F.R. § 52.21 Prevention of significant deterioration of air quality. x x Kk * (i) Review of Major Stationary Sources and Major Modifi- cations—Source Applicability and Exemptions (1) No stationary source or modification to which the re- quirements of paragraphs (j) through (r) of this section apply shall begin actual construction without a permit which states that the stationary source or modification would meet those requirements. The Administrator has authority to issue any such permit. (2) The requirements of paragraphs (j) through (r) of this sec- tion shall apply to any major stationary source arid any major modification with respect to each pollutant subject to regula- tion under the Act that it would emit, except as this section otherwise provides. ** * * 40 C.F.R. § 60.2 Definitions. **e * *€ “Modification” means any physical change in, or change in the method of operation of, an existing facility which in- creases the amount of any air pollutant (to which a standard applies) emitted into the atmosphere by that facility or which results in the emission of any air pollutant (to which a stan- dard applies) into the atmosphere not previously emitted.” *! Formerly 40 C.F.R. § 60.2(h). 17a *_* * * 40 C.F.R. § 60.14 Modification. (a) Except as provided under paragraphs (e) and (f) of this section, any physical or operational change to an existing fa- cility which results in an increase in the emission rate to the atmosphere of any pollutant to which a standard applies shall be considered a modification within the meaning of section 111 of the Act. Upon modification, an existing facility shall become an affected facility for each pollutant to which a stan- dard applies and for which there is an increase in the emission rate to the atmosphere. (b) Emission rate shall be expressed as kg/hr of any pollutant discharged into the atmosphere for which a standard is appli- cable. The Administrator shall use the following to determine emission rate: *x* * * & (e) The following shall not, by themselves, be considered modifications under this part: (e)(1) Maintenance, repair, and replacement which the Ad- ministrator determines to be routine for a source category, subject to the provisions of paragraph (c) of this section and § 60.15. (e)(2) An increase in production rate of an existing facility, if that increase can be accomplished without a capital expen- diture on that facility. — (e)(3) An increase in the hours of operation. (e)(4) Use of an alternative fuel or raw material if, prior to the date any standard under this part becomes applicable to that source type, as provided by § 60.1, the existing facility was designed to accommodate that alternative use. A facility shall be considered to be designed to accommodate an alternative fuel or raw material if that use could be accomplished under 18a the facility’s construction specifications as amended prior to the change. Conversion to coal required for energy considera- tions, as specified in section 111(a)(8) of the Act, shall not be considered a modification. (e)(5) The addition or use of any system or device whose primary function is the reduction of air pollutants, except when an emission control system is removed or is replaced by a system which the Administrator determines to be less envi- ronmentally beneficial. (e)(6) The relocation or change in ownership of an existing facility. (f) Speciai provisions set forth under an applicable subpart of this part shall supersede any conflicting provisions of this sec- tion. (g) Within 180 days of the completion of any physical or op- erational change subject to the control measures specified in paragraph (a) of this section, compliance with all applicable standards must be achieved. 19a ADDENDUM C 1993 CODE OF FEDERAL REGULATIONS 40 C.F.R. § 51.166 Prevention of significant deterioration of air quality. * * * * (b) Definitions. All state plans shall use the following defini- tions for the purposes of this section. Deviations from the fol- lowing wording will be approved only if the state specifically demonstrates that the submitted definition is more stringent, or at least as stringent, in all respects as the corresponding definitions below: ** * * (21)(v) For an electric utility steam generating unit (other than a new unit or the replacement of an existing unit) actual emissions of the unit following the physical or operational change shall equal the representative actual annual emissions of the unit following the physical or operational change, pro- vided the source owner or operator maintains and submits to the reviewing authority, on an annual basis for a period of 5 years from the date the unit resumes regular operation, infor- mation demonstrating that the physical or operational change did not result in an emissions increase. A longer period, not to exceed 10 years, may be required by the reviewing authority if it determines such a period to be more representative of normal source post-change operations. x= * * * (32) Representative actual annual emissions means the aver- age rate, in tons per year, at which the source is projected to emit a pollutant for the two-year period after a physical change or change in the method of operation of a unit, (or a different consecutive two-year period within 10 years after that change, where the reviewing authority determines that such period is more representative of normal source opera- 20a tions), considering the effect any such change will have on increasing or decreasing the hourly emissions rate and on pro- jected capacity utilization. In projecting future emissions the reviewing authority shall: (i) Consider all relevant information, including but not limited to, historical operational data, the company’s own representations, filings with the State or Federal regulatory authorities, and compliance plans under title IV of the Clean Air Act; and (ii) Exclude, in calculating any increase in emissions that results from the particular physical change or change in the method of operation at an electric utility steam gen- erating unit, that portion of the unit’s emissions follow- ing the change that could have been accommodated dur- ing the representative baseline period and is attributable to an increase in projected capacity utilization at the unit that is unrelated to the particular change, including any increased utilization due to the rate of electricity demand growth for the utility system as a whole. x * * * --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0237%3A14. Public record. Not legal advice.