Amicus Curiae Brief — Environmental Defense v. Duke Energy Corporation

4 OF) FILED

(2) SEP 15 2006

7 OF THE CLERK

No.05-848 | SORE BGS OR

IN THE

Supreme Court of the Anited States

ENVIRONMENTAL DEFENSE, ef ai.,

Petitioners,

Vv.

DUKE ENERGY CORPORATION,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF OF THE INTERNATIONAL BROTHERHOOD

OF BOILERMAKERS, IRON SHIP BUILDERS,

BLACKSMITHS, FORGERS AND HELPERS,

AFL-CIO, AND THE ELECTRIC RELIABILITY

COORDINATING COUNCIL

AS AMICI CURIAE IN SUPPORT OF RESPONDENT

Scott H. SEGAL*

JASON B. HUTT

BRACEWELL & GIULIANI LLP

2000 K Street, N.W., Suite 500

Washington, D.C. 20006

(202) 828-5845

*Counsel of Record September 15, 2006

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TABLE OF CONTENTS

Page

SUMMARY OF THE ARGUMENT..............:::::cccesceseseeeeees 3

SUTPIUUTE scissesiscoacicshtapncsitpasinnaibectinbuisaasseniipiiniibeiinuinpuciatastis 5

I. A “Modification” Test Triggered by

Activity that Increases a Facility’s

Hourly Emissions Rate Is Consistent

with Environmental Protection ..................... 5

II. The Historical NSR Test Results in

Significant Distributional Benefits

Over the EPA Enforcement Test................... 8

III. § The Historical NSR Test Avoids

Unacceptable Compromises Between

Environmental and Occupational

I incsccnetetedntanpiarinindainisincssvinnitieies 12

TATA liatnieinssheisissehiistieaiiantiiplidaciacinhinteiipnapibiapdptenbaptiibinel 15

ii

TABLE OF AUTHORITIES

Cases

FEC v. Democratic Senatorial Campaign Comm.,

GS4 UB. SF CEGBS) .nccccecceccesescescssceccccssevcseccscscessooes

FMC v. Seatrain Lines, Inc.,

SI la

Gade v. Nat'l Solid Waste Mgmt. Ass'n,

SED Spain Ee GREED censsnsesinsccescesenenennscssnvsoneeetaneeneces

NLRB v. Brown,

ie

Volkswagenwerk v. FMC,

EGER Se DI Fee

Statutes

OR I i i

RR I i iii citation

Other Authorities

A. Denny Ellerman, Paul L. Joskow & David

Harrison, Jr., Emissions Trading in the U.S.:

Experience, Lessons, and Considerations for

Greenhouse Gases (Pew Center on Global

Climate Change, May 2003) ............:scssesssereeceeees

Air Quality and Strategies Division, EPA, Latest

Findings on National Air Quality (2003) (No.

RIEDEL

Page

Bernard L. Weinstein, Ph.D. & Terry L. Clower,

Ph.D., The EPA's Reinterpretation of New Source

Review Rules: Implications for Economic

Development in Rural America (May 2002).............

Byron Swift, Allowance Trading and SO? Hot Spots —

Good News from the Acid Rain Program, 31

Env't Rep. (BNA) No. 19, at 954 (May 12, 2000)...

Byron Swift, Command Without Control: Why Cap-

and-Trade Should Replace Rate Standards for

Regional Pollutants, 31 Envt'l L. Rep. (Envt'l

ee eee

Clean Air Markets Division, EPA, 1999 Compliance

Report: Acid Rain Program (2000) (No. EPA-

Clean Power Act: Hearings on S. 556 Before S.

Comm. on Env't & Pub. Works, 107th Cong. 757

(2002) (statement of J. Thomas Mullen, President

Congressional Budget Office, Shifting the Cost

Burden of a Carbon Cap-and-Trade Program

I ae he a A

Curtis Carlson, et al., Sulfur Dioxide Control By

Electric Utilities: What are the Gains from

Trade?, 108 J. of Pol. Econ. No. 6, 1292 (2000).....

Howard Gruenspecht & Robert Stavins, Op-Editorial,

A Level Playing Field on Pollution at Power

Plants, Boston Globe, Jan. 26, 2002, at A1S...........

Illinois Clean Coal Institute, Facts About Coal (2003)..

Page

iv

Letter from Bill Cunningham, President, Unions for

Jobs and the Environment, to Congressmen Joe

Barton and John Dingell (Oct. 5, 2005) .........ccceeeeeseeeees

Modification of New Source Review, Unions for Jobs

and the Environment Newsletter, Apr.-June 2002,

New Source Review Policy, Regulations and

Enforcement Activities: Joint Hearing Before the

S. Comm. on Env't & Pub. Works and the S.

Comm. on the Judiciary, 107" Cong. (statement

of Ande Abbott, Director, Legislative

Department, International Brotherhood of

Boilermakers) (July 16, 2002)............:sccssssrereeeereeeeeeeeees

Steve Cook, Black Mayors, Native American Group

Call for Quick Action on New Source Review,

BNA Daily Env't Report No. 93, at A-2 (May 14,

DIED viceceveernnconesissnscianitiassiniieniiininiaigiienatnaantennnnmmnttiiiie

IN THE

Supreme Court of the Anited States

ENVIRONMENTAL DEFENSE, ef ail.,

Petitioners,

Vv.

DUKE ENERGY CORPORATION,

Respondent.

BRIEF OF THE

INTERNATIONAL BROTHERHOOD OF

BOILERMAKERS, IRON SHIP BUILDERS,

BLACKSMITHS, FORGERS AND HELPERS,

AFL-CIO, AND THE ELECTRIC RELIABILITY

COORDINATING COUNCIL

AS AMICI CURIAE IN SUPPORT OF RESPONDENT

INTEREST OF AMICI CURIAE!’

The International Brotherhood of Boilermakers, Iron

Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO

(commonly referred to as “the Boilermakers Union") is a

Pursuant to Rule 37.6 of the Rules of this Court,

counsel hereby certifies that the brief submitted on behalf of amici curiae

Boilermakers Union and ERCC was not authored in whole or in part by

counsel for a party, and no person or entity other than the amici and their

staffs \:ave made a monetary contribution to the preparation of this brief.

The parties have granted consent for the filing of amicus curiae briefs.

2

diverse union representing over 70,000 workers throughout

the United States and Canada in construction, repair,

maintenance, manufacturing, professional emergency

medical services, and related industries.

The Boilermakers Union is the principal union

responsible for the installation, maintenance, and repair of

industrial boilers, as well as the installation of the pollution

control equipment utilized to achieve the emissions

reductions that are the goals of the Clean Air Act, 42 U.S.C.

§§ 7401 et seq. ("the Act"). As a result, the Boilermakers

Union has a dual concer: first and foremost, to have safe

and productive workplaces for boiler operations; and second,

to ensure the sensible implementation of clean air standards

that foster the market for Boilermaker services while

protecting health, safety and the environment.

Boilermakers have been active participants in the

policy making process regarding emissions control, power-

plant maintenance, and related topics. Representatives from

Boilermaker locals have testified at U.S. Environmental

Protection Agency ("EPA") field hearings on the new source

review ("NSR") enforcement program, and the Union's

Government Affairs Office has submitted Congressional

testimony and authored letters on clean-air topics including

NSR.

The Electric Reliability Coordinating Council

("ERCC") is coalition of electric power-generating

companies established in 2001 and dedicated to

commonsense strategies for implementation and enforcement

of the Act. ERCC has been particularly active in the public

policy discourse regarding the NSR program. As a general

proposition, ERCC has taken the position that the U.S.

Department of Justice and EPA were not correct when they

brought various NSR enforcement cases in 1999, specifically

misstating the basis upon which construction activities may

3

trigger an NSR evaluation at existing facilities. In addition,

ERCC has also supported clarification of the NSR program

through the rulemaking and legislative processes, and has

sought to explain the policy issues relevant to such

clarification to the interested public.

Collectively, the members of ERCC generate

electricity for millions of consumers in most regions of the

United States. ERCC members have an obligation to

provide reliable electrical service to these consumers and

believe that the NSR program should not and need not force

choice between reliable and efficient power production and

environmental protection.

SUMMARY OF THE ARGUMENT

It is the intention of this brief to place the question of

the alleged need for NSR evaluation for construction and

maintenance activities at existing facilities in a broader

public policy context.

Whether an agency’s reading of a regulation is

inconsistent with a statutory mandate or would frustrate the

congressional policy underlying a statute are properly within

the province of a court addressing the agency’s enforcement

of the regulation. Therefore, administrative (including

enforcement) decisions that are inconsistent with a statutory

mandate or that frustrate the congressional policy underlying

a statute should not be upheld. See, e.g., NLRB v. Brown,

380 U.S. 278, 291-92 (1965); see also, FEC v. Democratic

Senatorial Campaign Comm., 454 U.S. 27, 31-32 (1981)

(noting that “administrative constructions of the statute,

whether reached by adjudication or by rulemaking” must be

rejected to the extent that such actions "frustrate the policy

that Congress sought to implement" (citations omitted));

FMC vy. Seatrain Lines, Inc., 411 U.S. 726, 745-46 (1973);

Volkswagenwerk v. FMC, 390 U.S. 261, 272 (1968).

4

While the present amici do not contend that policy

objectives should substitute for sound legal reasoning in the

enforcement arena, we do believe that the policy arguments

create an important lens through which the purposes and

objectives of proper enforcement initiatives can be usefully

viewed. Further, the policy context propagated by amici

allied with petitioners tends to misapprehend the alleged

environmental § consequences, § understate _—potential

environmental benefits, and ignore entirely other proven

benefits to cautious application of NSR to construction and

maintenance activities at existing facilities, such approach

supported by EPA’s clear and contemporaneous explanation

of the meaning of the 1980 regulation at issue here.

The first section of this brief will place the NSR

program and the legal standards arising there-under in the

proper environmental policy context. The Boilermakers

Union and ERCC will demonstrate that emissions are

currently declining and will continue to decline; that NSR is

not the basis of these declines; that an overbroad application

of NSR will hamper the highly successful market approaches

developed under the Act; and that such application can

actually delay or prevent technological improvements

needed for additional clean-air progress.

The second section of this brief will review

distributional impacts that can arise from improper

imposition of NSR on construction and maintenance

activities at existing facilities. By restricting energy supply

and undermining reliability, the petitioners’ view of the law

could wreak havoc on reliable supplies of electricity and

industrial manufacturing and could result in harm to those in

society least able to afford it: those living in poverty; the

elderly and those on fixed incomes; majority-minority

communities; and those living in rural areas seeking to

diversify their economic base.

5

The last section of the brief will describe the

unacceptable choice created by petitioners’ interpretation in

the area of occupational safety. No interpretation of the Act

should place environmental and safety obligations at odds

with one another, particularly when a commonsense, long-

held interpretation avoids this Hobson's Choice altogether.

ARGUMENT >

1. A “Modification” Test Triggered by Activity that

Increases a Facility’s Hourly Emissions Rate Is

Consistent with Environmental Protection

As a primary matter, and contrary to the views

expressed by amici allied with petitioners, criteria air

emissions for stationary sources have been on a continual

decline over the past two decades. As the EPA Air Trends

report states in its executive summary: "Since 1970,

aggregate emissions of the six principal pollutants have been

cut 48 percent. During that same time, U.S. gross domestic

product increased 164 percent, energy consumption

increased 42 percent, and vehicle miles traveled increased

155 percent." Air Quality and Strategies Division, EPA,

Latest Findings on National Air Quality 1 (2003) (No. EPA-

454/K-03-001).

Under Phase I of the Title [V program alone, utilities

reduced SO, emissions by eight million tons — nearly 50%

below their 1990 emissions level and 30% below the Phase I

cap. ' Clean Air Markets Division, EPA, 1999 Compliance

Report: Acid Rain Program 2 and 5 (2000) (No. EPA-430-

R-00-007). The environmental benefits of these reductions

were catalyzed by the banking and trading mechanisms

provided by the flexible cap-and-trade program — 75% of the

total allowances created were banked and 30 of the 51 firms

6

used intra-firm averaging.” The success of cap-and-trade

programs is not surprising -— the programs integrate

environmental decision-making into the financial reality that

fuels companies.”

The NSR program hardly explains this positive and

continuing trend in emissions reductions. Contrary to the

statements of some, the NSR program is not the centerpiece

of the Clean Air Act. Rather, it is a narrowly tailored

program designed principally to address new sources (as the

name implies), which includes modifications of existing

sources, a relatively rare occurrence.

The lion’s share of emissions reductions are related

to implementation of the national ambient air quality

standards as reflected in state implementation plans and,

ultimately, in the permit conditions applicable at individual

plants. The NSR program does not set or alter these

standards.

. Byron Swift, Command Without Control: Why Cap-

and-Trade Should Replace Rate Standards for Regional Pollutants, 31

Envt'l L. Rep. (Envt'l Law Inst.) 10,330, 10,331 (2001) (citing

Environmental Law Institute, Analysis of EPA 1995-1999 Compliance

Reports). See also, Curtis Carlson, et al., Sulfur Dioxide Control By

Electric Utilities: What are the Gains from Trade?, 108 J. of Pol. Econ.

No. 6 1292, 1320 (2000) (concluding that "[t}he flexibility of the trading

program has encouraged utilities to capitalize on advantageous trends,

such as changing fuel prices and technological innovation that might

have been delayed or discourage by traditional! regulatory approaches.").

See also, Byron Swift, Allowance Trading and SO; Hot

Spots - Good News from the Acid Rain Program, 3\ Env't Rep. (BNA)

No. 19, at 957 (May 12, 2000) (concluding that "[t]hese data confirm a

general prediction about cap and trade programs, that they will tend to

create incentives for the dirtiest plants to clean up the most, as the per-ton

cost of emissions reductions may be expected to be the least.... These

data show that, if anything, trading may be expected to cool hot spots and

not create them.").

7

The environmental and energy benefits of adhering to

the historical meaning of the regulations providing that the

NSR program is triggered only by “modification” activity

(i.e., activity that increases a facility’s hourly emission rate)

that is “major” can be summarized as follows. Investments

in pollution prevention and in maintenance are facilitated

when the powerful disincentives created by inflexible NSR

enforcement strategies are removed. As experts from

Harvard University's Kennedy School of Government and

from the think-tank Resources for the Future have written,

"Research has demonstrated that the New Source Review

process drives up costs tremendously (not just for the

electricity companies, but for their customers and

shareholders, that is, for all of us) and has resulted in worse

environmental quality than would have occurred if firms had

not faced this disincentive to invest in new, cleaner

technologies." Howard Gruenspecht & Robert Stavins, Op-

Editorial, A Level Playing Field on Pollution at Power

Plants, Boston Globe, Jan. 26, 2002, at A15.

Considered authorities from the Massachusetts

Institute of Technology and National Economic Research

Associates, Inc. concluded that "a properly designed

[emissions trading] program provides a framework to meet

emissions reduction goals at the lowest possible cost . . . by

giving emissions sources the flexibility to find and apply the

lowest-cost methods for reducing pollution. ... In practice,

well-designed emissions trading programs also have

achieved environmental goals more quickly and with greater

confidence than more costly command-and-control

alternatives." A. Denny Ellerman, Paul L. Joskow & David

Harrison, Jr., Emissions Trading in the U.S.: Experience,

Lessons, and Considerations for Greenhouse Gases, at iii

(Pew Center on Global Climate Change, May 2003). The

NSR enforcement initiative, by interposing such "costly

command-and-control" requirements even as more effective

market-sensitive approaches are being pursued, frustrates

effective implementation of the Act.

Il. The Historical NSR Test Results in Significant

Distributional Benefits Over the EPA

Enforcement Test

Simply put, the litigation-focused approach reflected

in the 1999 EPA NSR enforcement initiative can create

unacceptable burdens on those in society least able to afford

it. First, if the environmentalist claims are taken at face

value, it is clear that an effort is being made to undermine the

future use of coal-fired power as an energy source in the

United States. While petitioners have focused their efforts in

the instant case on existing coal-fired facilities, allied

Organizations have displayed a disturbing reluctance to

support the siting or development of new coal-fired power

generation capacity, regardless of the technology utilized.

The problem with opposition to both old and new

coal-fired capacity is that coal represents over half of U.S.

electric generating capacity, and “more than 80 percent of

America’s known recoverable fossil fuel reserves." _ Illinois

Clean Coal Institute, Facts About Coal (2003) ("Coal

presently accounts for 55 percent of the electricity generated

in the United States. Approximate totals for other fuels:

nuclear, 21 percent; hydroelectric, 10 percent; natural gas, 9

percent; petroleum, 4 _ percent."), available at

Any interpretation of the Act designed to marginalize

or eliminate such a major portion of electric-generating

capacity does so with great economic impact to consumers

on fixed incomes or those living at or near the poverty level.

Viewed in the context of recent discussions on caps on

carbon emissions, the Congressional Budget Office recently

reflected upon these significant distributional impacts:

9

"The price increases resulting from a carbon cap

would be regressive--that is, they would place a relatively

greater burden on lower-income households than on higher-

income ones. Higher-income households would face larger

costs in dollar amounts, but those costs would make up a

smaller share of their average annual income. For example,

one study estimated that the price increases resulting from a

15 percent cut in carbon emissions would cost the average

household in the lowest one-fifth of the income distribution

about $560 a year, or 3.3 percent of its average income.

Households in the top one-fifth of the income distribution

would pay an additional $1,800 a year, or 1.7 percent of their

average income.” Congressional Budget Office, Shifting the

Cost Burden of a Carbon Cap-and-Trade Program, at ix

(July 2003).

Groups on the frontline of addressing the

distributional impacts of energy costs have likewise

commented on the relationship between inflexible Clean Air

policy and unacceptable results for those living in poverty.

Catholic Charities of Cleveland testified that, "conversion to

natural gas from coal would have a devastating effect on the

people of Ohio and our country, particularly the poor and the

elderly.” Clean Power Act: Hearings on S. 556 Before S.

Comm. on Env't & Pub. Works, 107th Cong. 757 (2002)

(statement of J. Thomas Mullen, President & CEO, Catholic

Charities Health and Human Services). The group attempted

to quantify the impact of such fuel conversion as follows:

"The overall impact on the economy in Northeast

Ohio would be overwhelming, and the needs that we address

at Catholic Charities in Ohio with the elderly and poor would

be well beyond our capacity and that of our current partners

in government and the private sector. In a recent study on

Public Opinion on Poverty, it was reported that one-quarter

of Americans report having problems paying for several

basic necessities. In this study, currently 23% have difficulty

10

in paying their utilities - that is, one out of four Americans."

Id.

The profound distributional impacts of an inflexible

approach to NSR enforcement led the National Conference

of Black Mayors, the National Indian Business Association,

and three other African American groups to find that: "At the

same time, however, local facilities that provide our

communities with jobs and economic opportunity must be

able to perform routine maintenance and add process

improvements to keep their operations safe, reliable,

productive and, importantly, to improve energy efficiency,

decrease emissions and maintain competitive flexibility. In

our view, the current NSR program, as applied, has a

disparate impact on urban and minority communities by

placing at risk economic and energy security and

improvements in air quality." Steve Cook, Black Mayors,

Native American Group Call for Quick Action on New

Source Review, Daily Env't Rep. (BNA) No. 93, at A-2 (May

14, 2002).

Aside from adverse distributional impacts that

manifest along socio-economic grounds, the EPA's

enforcement approach to NSR results in adverse impacts

along geographical grounds as well. Rural areas, in

particular, are hard hit. The rural economy is increasingly

attempting to diversify its base. Relying exclusively on

agriculture is risky. In a real sense, the need to diversify the

rural economic base is dependent on the availability of

reliable and affordable electricity, a proposition made more

difficult by an inflexible approach to NSR. Experts at the

Center for Economic Development and Research at the

University of North Texas wrote:

"Against this backdrop, [EPA's] new interpretation of

the [NSR] rules will make a bad economic situation worse

for rural America. This is particularly the case for

11

communities that are attempting to diversify away from

commodities by attracting manufacturing enterprises,

business services, tourism, and other growth industries. To

the extent application of the NSR program to utilities and

manufacturers serving or located in non-metropolitan areas

inflates the cost of electric power or creates uncertainty

about the reliability of delivery, businesses and households

will be even less inclined to locate or expand in these

communities." Bernard L. Weinstein, Ph.D. & Terry L.

Clower, Ph.D., The EPA's Reinterpretation of New Source

Review Rules: Implications for Economic Development in

Rural America 1 (May (2002), available at

http://www.unt.edu/cedr/N SR.pdf

Unfortunately all the above-cited groups may have

severely underestimated the impact of EPA’s enforcement

interpretation of NSR. A basic unspoken premise of the

enforcement initiative is that EPA had never previously

interpreted NSR in the manner it seeks to in this and other

enforcement cases. As respondents and other amici have

cautioned, requiring NSR review and permitting for the

common repair and replacement of utility unit and

manufacturing components would mean minimum waiting

periods of 6 to 22 months every time a plant is forced to shut

down to repair or replace a component. See, e.g., Amicus

Curiae Brief of American Public Power Association in the

instant case. Moreover, electric utilities are particularly

susceptible to periods of coincident peak demand, since

demand is driven in large part by weather, and utilities are

forced to operate more of their generating units during such

peak demand periods. That means that the older and less

reliable units are required to run, and if a unit breaks down,

then its load must be picked up by another unit. Meanwhile,

neighboring utilities are doing exactly the same thing.

But EPA’s litigation position would make

contemporaneous repairs during and following peak periods

12

a thing of the past. It would disrupt all repair planning and

would eventually lead to idling large amounts of generation

to wait for state and federal agency approval to undertake the

types of repairs that have occurred forthwith for decades.

The nation has never experienced the effects of EPA’s

enforcement interpretation, because EPA had never sought to

reinterpret the 1980 rules in this manner. If EPA and

petitioners have their way, the best outcome will be

prolonged periods of idled manufacturing and electric

generation capacity and the associated inability to meet

citizen demand for basic necessities — electricity in the dark,

cooling in the heat, heat in the winter, and the like.

According to labor organizations, the impact on employment

in industries attempting to compete in an international

marketplace could create risk to tens of millions of jobs.‘

This does not and cannot reflect the balance between air

quality and economic vitality that Congress so carefully

considered when creating the NSR program.

Ill. The Historical NSR Test Avoids Unacceptable

Compromises Between Environmental and

Occupational Safety Goals

A test under which NSR is triggered only for

“modifications” that are “major” allows for common repair

and replacement activities by avoiding the simplistic notion

that a mere increase in hours of operation can trigger the

program. The Boilermakers Union, along with many labor

* Letter from Bill Cunningham, President, Unions for Jobs and

the Environment, to Congressmen Joe Barton and John Dingell (Oct. 5,

2005) ("Further, by reducing the useful economic life of boilers or by

inaccurately setting baselines, the existing NSR confusion undermines

the competitiveness of American job sites. The result is that some of the

almost 20 million manufacturing jobs at stake in heavy industry are

ere at shay oe — at

13

organizations,” has pointed out that these efforts can pay

tangible dividends in the form of enhanced workplace safety.

Boilers at industrial facilities or electric utilities are subject

to constant stress and pressure.

For their part, Boilermakers have historically

supported tough air pollution standards -- while at the same

time casting a wary eye for those policies that may impact on

safety or competitiveness in these workplaces. The

Boilermaker position was explained in Senate testimony:

"Boilermakers could not support the EPA’s 1999

recent interpretation of its authority under the [NSR]

program. NSR, correctly interpreted, as we believe the

Administration's clarification does, forces new sources or

those undergoing major modifications, to install new

technology...We support NSR in that context. But, when

NSR is applied to the routine maintenance policies and

schedules of existing facilities, very different results occur.

In those cases, facilities are discouraged from undertaking

routine actions for fear of huge penalties or long delays or

both. By applying NSR in that way, we are pretty sure that

Boilermakers won't have the opportunity to work on

maintenance projects that we know are extremely important

Other uniors agree with the need for clarification of the

NSR program. One coalition of some ten manufacturing unions, Unions

for Jobs and the Environment, has written that, "A number of industry

and labor groups have complained that changes in EPA rules in 1997

made the definition of routine maintenance unclear. Because of those

changes, what was previously regarded as routine maintenance now

requires an investment in pollution control equipment as if the facility

were newly built. Uncertainty about the rules can cause a delay of

maintenance, often affecting health and safety, or result in the closure of

the plant and the loss of jobs." Modification of New Source Review,

Unions for Jobs and the Environment Newsletter, Apr.-June 2002, at 2,

— at

14

to energy efficiency." New Source Review Policy,

Regulations and Enforcement Activities: Joint Hearing

Before the S. Comm. on Env't & Pub. Works and the S.

Comm. on the Judiciary, 107" Cong. 25-26 (statement of

Ande Abbott, Director, Legislative Department, International

Brotherhood of Boilermakers) (also citing the experience of

the California and New York electricity crises, the

Boilermakers Union testified that NSR enforcement should

not be allowed "to play with the reliability of the power

grid.") [hereinafter, "Boilermakers Testimony".

Upon passage of the Occupational Safety and Health

Act of 1970 ("OSH Act"), Congress declared its "purpose

and policy, through the exercise of its powers to regulate

commerce among the several States and with foreign nations

and to provide for the general welfare, to assure so far as

possible every working man and woman in the Nation safe

and healthful working conditions and to preserve our human

resources." 29 U.S.C. § 651(b); see Gade v. Nat'l Solid

Waste Mgmt. Ass'n, 505 U.S. 88, 102 (1992) ("Our review of

[OSH Act] persuades us that Congress sought to promote

occupational safety and health while at the same time

avoiding...possibly counterproductive regulation."). Amicus

Boilermakers Union, in testimony before Congress,

explained that, "maintenance is necessary to maintain worker

safety. Electric generating facilities harness tremendous

forces: superheater tubes exposed to flue gases over 2000

degrees; boilers under deteriorating conditions; and parts

located in or around boilers subjected to both extreme heat

and pressure. Any EPA interpretation which creates

incentives to delay maintenance is simply unacceptable to

our workers." Boilermakers Testimony at 26. The

Boilermakers Union later testified that, "the threat of

litigation too often acts as a deterrent to capital investments

that create work and maintain safe facilities for our

members." Clear Skies Act of 2005: Hearing on S. 131

15

Before the S. Comm. on Env't & Pub. Works, 109" Cong.

(statement of Abraham Breehey, Legislative Representative,

Government Affairs Department, International Brotherhood

of Boilermakers) (Feb. 1, 2005), available at

http://epw.senate.gov/hearing statements.cfm?id=23 1305.

CONCLUSION

Proponents of the EPA interpretation, with its broad

application of NSR to construction and maintenance

activities at existing facilities, have often portrayed the issue

as a Manichean dispute between environmental right and

wrong. In reality, and unsurprisingly, the issues are more

complex. In fact, when viewed in proper context, the

historical test governing what is “construction” that triggers

NSR (as opposed to EPA's interpretation in the instant

enforcement case) is more consistent with effective Clean

Air Act emissions control, and better preserves electric

reliability, efficiency, affordability, and occupational safety.

Respectfully submitted,

Scott H. SEGAL*

JASON B. HUTT

BRACEWELL & GIULIANI LLP

2000 K Street, Suite 500

Washington, DC 20006-1872

Tel. (202) 828-5845

Fax (202) 857-2127

*Counsel of Record