Appendix B — Environmental Defense v. Duke Energy Corporation

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[The following declaration was filed in United States v. Ala-

bama Power Co., 372 F Supp.2d 1283 (N.D. Ala. 2005).]

F RONALD W. GOR

1.. My name is Ronald W. Gore. I am over 21 years of

age, I am competent to testify, and I have personal knowl-

edge of the facts set forth in this affidavit. I have reviewed

the complaint and other pleadings filed in the case of United

States of America v. Alabama Power Company. I have also

reviewed a declaration signed by Mr. Richard Grusnick re-

lating to this case and to certain provisions of the Alabama

SIP, and I find it consistent with my own views.

2. Iam the current Chief of the Air Division of the Ala-

bama Department of Environmental Management

(“ADEM”). I have served in that position from 1996 to the

present time. From 1976 to 1996, I served as the Chief of the

Air Division's Engineering Services Branch. As Air Division

Chief, I am responsible for managing and overseeing Ala- |

bama’s air quality program. This position is the highest-

ranking state official dealing exclusively with air quality. I

report directly to the ADEM Director, and I am responsible

for developing air quality regulations and policies, interpret-

ing ADEM’s air regulations, and permitting and enforce-

ment. ;

3. ADEM’s air quality regulations include those that

implement the prevention of Significant Deterioration

(“PSD”) program in Alabama. ADEM’s PSD regulations

have been in effect since January 27, 1981, and were ap-

proved by the United States Environmental Protection

Agency (“EPA”) on December 10, 1981. Since that time,

ADEM has operated the PSD program in Alabama in lieu of

the federal PSD program, as provided under the Clean Air

Act. The interpretations of ADEM’s PSD preconstruction

permitting regulations, discussed below, were the interpre-

tations of the agency at the time of the projects identified in

the complaint.

4. Under Alabama’s PSD program, major sources of air

emissions in attainment areas must obtain a PSD permit

prior to the construction of a major modification.

5. For purposes of this PSD permitting requirement,

ADEM interprets “major modification” to include only those

projects or activities that increase the maximum capacity of a

unit or facility to emit more pollution on an hourly basis.

However, not every project that increases the unit's or facil-

ity’s hourly emissions rate will trigger PSD. For example,

the source may still be able to net out of PSD applicability.

This interpretation is based on the exclusions contained in

the Alabama regulations and on the Clean Air Act. Under

ADEM’s interpretation, repairing or replacing like-kind

parts or components at an existing source is not a major

modification, nor is a project that is intended to restore the

unit or facility to its normal or expected level of operations.

6. The Alabama PSD regulations contain an exclusion

for routine maintenance, repair, and replacement activities.

This exclusion was intended to make clear that repair, re-

placement and maintenance activities that are ordinary prac-

tice for facilities in the relevant industrial category, such as

the replacement of worn-out equipment with like-kind or

comparable components, are not considered modifications. .

7. The Alabama PSD regulations contain exclusions for

increases in hours of operation and for increases in produc-

tion rate. These exclusions were intended to make clear that

a project or activity that is followed by an increase in the

availability or utilization of a facility is not considered a

modification on that basis, rather than on the basis of an in-

crease in the maximum hourly rate of emissions.

Pursuant to 28 U.S.C. Section 1746, I declare under pen-

alty of perjury that the forgoing is true and correct.

s/ Ronald W. 10/8

Ronald W. Gore

Chief, Air Division

Alabama Department of

Environmental Management