Amicus Curiae Brief — Environmental Defense v. Duke Energy Corporation

In 1980, EPA issued regulations providing guidance to

States on how to structure PSD programs in their State

Implementation Plans (“SIPs”). 45 Fed. Reg. 52676 (Aug. 7,

1980). (EPA recodified these regulations into 40 C.F.R.

§ 51.166 in 1987). The states of North Carolina and South

Carolina incorporated these federal regulations into their SIPs

in 1982. See 47 Fed. Reg. 7836, 7837 (Feb. 23, 1982) (North

Carolina) and 47 Fed. Reg. 6017 (Feb. 10, 1982) (South

Carolina). Thus it is the language of 40 C.F.R. § 51.166 that

must be the focus in this case. ;

The regulations define “major modification,” subject to key

exceptions discussed below, as:

[A]ny physical change in or change in the method of

operation of a major stationary source that would result in

a significant net emissions increase of any pollutant

subject to regulation under the Act.

40 C.F.R § 51.166(b)(2)(1) (emphasis added). Pet. App. 103a.

“Net emissions increase” is defined as follows:

[T]he amount by which the sum of the following exceeds

zero: (a) [a]ny increase in actual emissions from a

particular physical change or change in the method of

operation at a stationary source; and (b) [a)ny other

increases and decreases in actual emissions at the source

that are contemporaneous with the particular change and

are otherwise creditable.

40 C.F.R § 51.166(b)(3)(i)(emphasis added). Pet. App. 104a.

The key analysis under this definition is whether the

particular “change” will lead to an increase in “actual

emissions.” This term “actual emissions” has a lengthy

definition:

(i) “Actual emissions” means the actual rate of emissions

of a pollutant from an emissions unit, as determined in

accordance with paragraphs (b)(21)(ii)- (b)(21)(iv) of this

section.

(ii) In general, actual emissions as of a particular date shall

5

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.

(iii) The reviewing authority may presume that

source-specific allowable emissions for the unit are

equivalent to the actual emissions of the unit.

(iv) For any emissions unit which has not begun normal

operations on the particular date, actual emissions shall

equal the potential to emit of the unit on that date.

40 C.F.R § 51.166(b)(21) (emphasis added).

Given this language, to determine whether an increase in

“actual emissions” will occur, one generally looks to the

facility’s annual emissions for the two years preceding the

project, 40 C.F.R § 51.166(b)(21)(ii), and compares them to the

facility’s emissions after the project. This analysis, of course,

must occur before a project is undertaken, and so EPA, in

promulgating the regulation, had to develop some methodology

for estimating what actual emissions would be after the project

was completed. EPA chose to define “actual emissions” for a

facility that had not begun “normal operations” to be the

facility’s “potential to emit” after the project. 40 C.F.R

* The regulations define “potential to emit” as: “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 contro! equipment and restrictions

on hours of operation or on the type or amount of material combusted,

stored, or processed, shall be treated as part of its design if the limitation or

6

§ 51.166(b)(21)(iv).

This test is commonly known as the “actual to potential”

test, Pet. App. 57a, and it sweeps many sources into the PSD

program because of its inherent assumption that sources, after

making a modification, will operate “24 hours per day, 365

days per year.” Wisconsin Electric Power Co. v. Reilly, 893

F.2d 901, 916 (7" Cir. 1990) (“WEPCO”). The Seventh

Circuit, however, rejected the application of this test to existing

power plant sources, holding that if a power plant is engaged in

a “like-kind replacement,” then EPA cannot properly say that

the source making the modification has not commenced normal

operations. /d. (interpreting 40 C.F.R § 51.166(b)(21)(iv)).

After the Seventh Circuit’s 1990 ruling, EPA created a

special emissions increase test exclusively for power plants that

allows a plant owner to determine whether emission increases

will occur by comparing actual emissions prior to the change

with its projection of what annual emissions will be after the

change, but only if it reports to EPA on its post-project

emissions. 57 Fed. Reg. 32314, 32335 (July 21, 1992)(adding

40 C.F.R § 51.166(b)(21)(v)). This 1992 regulation has no

application in this case, however, because at the time most of

the projects occurred, the rule change was not incorporated into

the North Carolina and South Carolina SIPs. Furthermore,

Duke Energy never reported on its post-project emissions, so it

could not benefit from the rule’s provisions in any event.

Whether the Seventh Circuit in WEPCO was correct

regarding the proper methodology for determining post-project

“actual emissions” is, for the purposes of this case, irrelevant.‘

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.” 40 C.F.R § 51.166(b)(4).

“EPA was prepared to proceed in the case using the actual-to-future-

actual test. Pet. App. 58a, n. 17.

While both the “actual-to-potential” and WEPCO

methodologies are grounded in the language of the regulations

themselves, that regulatory language simply does not support an

interpretation yielding an hourly emissions test. See 40 C.F.R

§ 51.166(b)(21)(ii) (“[A]ctual emissions . . . shall equal the

average rate, in fons per year, at which the unit actually emitted

the pollutant... .”).

Although the Fourth Circuit, as mentioned above, never

discussed the actual language of the regulations, the district

court did, finding that an exception contained within the

definition of “major modification,” 40 C.F.R §

51.166(b)(2)(iii)(f), (the “increased hours” exclusion) imposes,

despite the language set forth above, the hourly emissions test.

Pet. App. 72a. The language focused upon by the district court

is as follows:

(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

increase of any pollutant subject to regulation under the

Act.

(ii) Any net emissions increase that is significant for

volatile organic compounds shall be considered significant

for ozone.

(iii) A physical change or change in the method of

operation shall not include:

(a) Routine maintenance, repair, and replacement;

(b) Use of an alternative fuel or raw material by reason

of any order under sections 2 (a) and (b) of the Energy

Supply and Environmental Coordination Act of 1974

(or any superseding legislation) or by reason of a

natural gas curtailment plan pursuant to the Federal

Power Act;

(c) Use of an alternative fuel by reason of an order or

rule under section 125 of the Act;

(d) Use of an alternative fuel at a steam generating unit

to the extent that the fuel is generated from municipal

solid waste;

(e) Use of an alternative fuel or raw material by a

stationary source... ;

(f) An increase in the hours of operation or in the

production rate, unless such change would be

prohibited 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 Subpart I or 40 CFR

51.166. :

40 C.F.R § 51.166(b)(2)(emphasis added). The district court

ruled that the “increased hours” exclusion required “that in

calculating post-project emissions, the EPA must hold the

pre-project and post-project hours and conditions of operation

constant.” Pet. App. 72a.

The district court’s analysis was incorrect. As mentioned

above, the “modification” test has two elements. First, a source

must determine whether a physical or operational change will

occur. 40 C.F.R. 51.166(b)(2)(i). Second, ifso, the source must

determine whether that change will result in a significant net

emissions increase. Jd. By its explicit terms, the “increased

hours” exclusion applies at the first step of the analysis, not the

second step. Furthermore, the definition of “net emissions

increase,” 40 C.F.R. § 51.166(b)(3){i), analyzes whether “a

particular physical change or change in the method of

operation” at a source has increased emissions. A project that

falls within the “increased hours” exclusion could never qualify

as the type of “change” that subsection (b)(3)(i) addresses. To

put it another way, if the “increased hours exclusion” applies to

a project, it would be unnecessary to go on and conduct the

“emissions increase” analysis because the activity in question

9

would have already been found exempt.

Thus the plain language of the regulations does not support

a conclusion that the “increased hours” exclusion affects the

calculation of a “net emissions increase.” As the court said in

United States v. Cinergy Corp., 384 F. Supp. 2d 1272, 1278

(S.D. Ind. 2005) (appeal pending): “the plain meaning of the

increased hours exclusion is that an increase in hours or

production rate are not a ‘physical change’ and thus cannot,

alone, be a modification. Increased hours and production rate

are not excluded from the definition of ‘modification’; that is,

if a physical change results in an increase in hours of operation

that causes a net emissions increase, a modification has

occurred.”

Accordingly, what the Fourth Circuit should have done in

this case is determine, by carefully reading the regulations,

whether the district court’s interpretation of the regulations was

correct. Instead, the Fourth Circuit failed to “interpret” the

regulations at all. Instead, it examined whether the regulations

comported with its view of what the statute required, and that

type of review was reserved by Congress for the D.C. Circuit,

which upheld the regulations in New York v. Environmental

Protection Agency, 413 F.3d 3. 18-20 (D.C. Cir. 2005).

* Indeed, if the hours-of-operation exclusion were interpreted to

include increases in hours of operation that resulted from actual physical

modifications, it would lead to the following anomalous result: if a project

made physical changes to a source that increased the source’s capacity to

produce in any particular hour, but did not increase the source’s availability

to operate more hours, then that project would trigger PSD, but if the project

increased both capacity and availability, it would not.

10

C. ALLOWING A COLLATERAL ATTACK OF AN

ENVIRONMENTAL REGULATION IN THE

CONTEXT OF AN ENFORCEMENT ACTION

WOULD UNDERMINE THE ENFORCEMENT

SCHEME OF MANY ENVIRONMENTAL

STATUTES

Allowing the type of collateral attack on the regulations

that occurred in this case would not only undermine the Clean

Air Act’s enforcement scheme, but also similar restrictions on

judicial review established by Congress in many other

environmental statutes. Examples abound:

* (Clean Air Act. 42 U.S.C. § 7607(b)(1) provides in

pertinent part (emphasis added) that:

A petition for review of action of the Administrator in

promulgating any national primary or secondary

ambient air quality standard, any emission standard or

requirement 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 other nationally applicable

regulations promulgated, or final action taken, by the

Administrator under this chapter may be filed only in

the United States Court of Appeals for the District of

Columbia. ...

ll

42 U.S.C. § 7607(b)(2) provides in pertinent part that:

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. . . .

Applying these provisions, the Fifth Circuit, in the context

of acriminal proceeding for violations of asbestos removal

work practice standards, refused to entertain an argument

that the regulation was invalid. See United States v. Ho,

311 F.3d 589, 607 (5" Cir. 2002), cert. denied 539 U.S.

914, 123 S. Ct. 2274 (2003). See also Getty Oil Co.

(Eastern Operations), Inc. v. Ruckelshaus, 467 F.2d 349,

359 (3d Cir. 1972), cert. denied, 409 U.S. 1125 (1973)

(“Failure to utilize the section 307 proceeding forecloses

review in acivil or criminal proceeding for enforcement.”);

Commonwealth of Virginia v. United States, 74 F.3d 517,

525 (4" Cir. 1996)(“Because Congress wanted prompt and

- conclusive review in air quality controversies, it channeled

(to the courts of appeals) all challenges, regardless of their

basis, of EPA rules and final actions.”); Madison Gas &

Electric v. U.S. E.P.A., 4 F.3d 529 (7 Cir. 1993)

(Challenge to national feature of acid rain program, such as

tradability of emission allowances, may be brought only in

Court of Appeals for the District of Columbia Circuit, even

if impact of program varied greatly across the country).

Clean Water Act. 33 U.S.C. § 1369(b)(2); see Longview

Fibre Co. v. Rasmussen, 980 F.2d 1307, 1313 (9 Cir.

1992)(“Reviewability under section 1369 carries a peculiar

sting. ... If an EPA action is reviewable under section

1369(b)(1), then it “shall not be subject to judicial review

in any civil or criminal proceeding for enforcement.” 33

U.S.C. § 1369(b)(2).”); see also American Paper Inst.,

Inc. v. EPA, 882 F.2d 287, 288-89 (7" Cir. 1989)(“the

Clean Water Act bars review in enforcement proceedings

12

of actions that could have been reviewed earlier”); Natural

Resources Defense Council, Inc. v. Outboard Marine

Corp. 702 F. Supp. 690, 693 (N.D. Ill. 1988)(“Section

1369(b)(1)(F) permits review of an EPA action issuing or

denying a permit only in the Circuit Court of Appeals.

Section 1369(b)(2) then expressly bars review of an

EPA-issued or EPA-denied permit in any District Court

enforcement proceeding.”’);

Comprehensive Environmental Response, Compensation,

and Liability Act (“CERCLA”), 42 U.S.C. § 9613(a); see

U.S. Ecology, Inc. v. Carlson, 638 F. Supp. 513, 518-19

(C.D. Ill. 1986)(challenge to a listing on the National

Priorities List can only be brought in the D.C. Circuit);

Toxic Substances Control Act (“TSCA”), 15 U.S.C. §

2618(a); see Dow Chemical Co. v. Costle, 484 F. Supp.

101, 104 (D. Del. 1980)(court ruled it had no jurisdiction

because, although chemical company claimed it was

challenging interpretation and application of regulation

imposing a ban on manufacture, it was in fact challenging

validity of regulation itself);

Resource Conservation and Recovery Act (“RCRA”), 42

U.S.C. § 6976(a)(2);

Safe Drinking Water Act, 42 U.S.C. § 300}-7(a).

In statute after statute, Congress has consistently

established a sensible system for judicial review. Challenges to

regulations must be brought in the D.C. Circuit, and usually

within 60 days of promulgation. Enforcement actions are not

to be hindered by such challenges. The Fourth Circuit’s

decision upsets this carefully crafted system for the

administration of justice.

13

D. THE OUTCOME IN THIS CASE COULD HAVE

BROAD IMPLICATIONS ON THE AIR QUALITY

IN THE NATION’S NATIONAL PARKS

This case and others filed by the Department of Justice and

citizens seek to bring into compliance sources that have

attempted to evade New Source Review requirements on a

massive scale. According to the Greenwire News Service, in

addition to this case, there are nine cases pending around the

country covering 39 coal-fired power plants. In addition,

government action has led to clean-ups of 25 other such plants.°

Overail, according to the Energy Information

Administration, this year, roughly fifty percent of the electricity

generated in the United States was from coal.’ Over 65% of

sulfur dioxide (“SO,”) released to the air, or more than 13

million tons per year, comes from electric utilities, especially

those that burn coal.* Another 18% comes from non-utility,

coal burning industries. /d. Similarly, utilities are responsible

for 22% of the nation’s nitrogen oxide (“NO,”) emissions,’ and

coal-fired power plants emit into the atmosphere over 50 tons

* “Enforcement Chart - New Source Review, An E&E Publishing

Special Report.”Available at: //

Special _reports/nsr/enforcement_chart.php (last visited July 16, 2006).

” U.S. Energy Information Administration, “Electric Power Monthly”

(July 2006), available at: http://www.cia.doe.gov/cneaf/electricity/epm/

epm_sum.html (last visited July 16, 2006).

* United States Environmental Protection Agency, “SO,; What is it?

Where does it come from?,” available at http://www.epa.gov/air/urbanair/

so2/what| .html (last visited July 16, 2006).

* United States Environmental Protection Agency, “NO,: What is it?

Where does it come from?,” available at http://www.epa.gov/air/urbanair/

nox/what! .html (last visited July 16, 2006).

14

of mercury each year.'°

These pollutants cause tremendous damage. SO,

contributes to respiratory illness, particularly in children and

the elderly, and aggravates existing heart and lung diseases. It

also contributes to the formation of acid rain, which damages

trees, crops, historic buildings, and monuments and makes

soils, lakes, and streams acidic. It also causes the formation of

atmospheric particles that cause visibility impairment, most

noticeably in national parks.'' NO, is one of the main

ingredients involved in the formation of ground-level ozone,

which can trigger serious respiratory problems and reacts to

form nitrate particles, acid aerosols, as well as NO,, which also

cause respiratory problems. NO, also contributes to formation

of acid rain, to nutrient overload that deteriorates water quality,

to visibility impairment, and to global warming. It also reacts

to form toxic chemicals."

The link between SO, and NO, and visibility impairment

is particularly well-known. Twenty-nine years ago, Congress

stated: “(the] visibility problem is caused primarily by emission

into the atmosphere of sulfur dioxide, oxides of nitrogen and ~

particulate matter, especially fine particulate matter, from

inadequate[ly] controlled sources.” H.R. Rep. 294, 95" Cong.

(1977), at 204, 1977 U.S.C.C.A.N. 1077, 1283 (1977).

According to the National Research Council, emissions of

° United States Environmental Protection Agency, “Controlling Power

Plant Emissions: Overview’available at http://www.epa.gov/mercury/

control_emissions/index.htm (last visited July 16, 2006).

"' United States Environmental Protection Agency, “Six Common Air

Pollutants: Chief Causes of Concern,” | itp://www.epa.gov/air/urbanair/

so2/chf} html (last visited July 16, 2006).

'? United States Environmental Protection Agency, “Six Common Air

Pollutants: Chief Causes of Concern,” available at: http://www.epa.gov/

air/urbanair/nox/chf] .htmi (last visited July 16, 2006).

15

sulfur oxides from electric utilities “alone are responsible for

slightly more than one-half of anthropogenic light extinction.

This is because sulfates are the predominant component of

anthropogenic haze in the East and electric utilities are the

predominant emitter of SO, (sulfur dioxide) in the East.

National Research Council, “Protecting Visibility in National

Parks and Wilderness Areas” (1993), at 216.

Another important pollutant linked to coal combustion is

mercury. Mercury in the air eventually settles into water or

onto land where it can be washed into water. Once deposited,

certain microorganisms can change it into methylmercury, a

highly toxic form that builds up in fish, shellfish and animals

that eat fish. Mercury exposure at high levels can harm the

brain, heart, kidneys, lungs, and immune system of people of all

ages. High levels of methylmercury in the bloodstream of

unborn babies and young children may harm the developing

nervous system, making the child less able to think and learn.

Birds and mammals that eat fish are more exposed to mercury

than other animals in water ecosystems. Similarly, predators

that eat fish-eating animals may be highly exposed. At high

levels of exposure, methylmercury's harmful effects on these

animals include death, reduced reproduction, slower growth

and development, and abnormal behavior."

Impacts of these pollutants on our nation’s National Parks

is pronounced. Great Smoky Mountains National Park

encompasses more than 800 square miles of the Southern

Appalachians in Tennessee and North Carolina and features

elevations ranging from 875 feet to 6,643 feet. Abundant

rainfall (averaging 55 inches a year in the valleys and 85 inches

on some peaks) and high summertime humidity provide

excellent growing conditions for an amazing variety of plants:

'° United States Environmental Protection Agency, “Frequent

Questions About Mercury,” available athttp://www.epa.gov/mercury/

faq.htm#3(last visited July 20, 2006).

16

approximately 100 species of native trees, more than 1,400

additional flowering plant species, and at least 4,000 species of

non-flowering plants. Forests blanket almost 95 percent of the

park; 25 percent is old-growth forest.'* The park also contains

74 percent of the spruce-fir forests in the southern

Appalachians, and is home to the largest remnant red

spruce-Fraser fir ecosystem in the world.'* The park is also

home to more than 200 species of birds, 66 types of mammals,

50 native fish species, 39 varieties of reptiles, 43 species of

amphibians, and one of the most diverse populations of

lungless salamanders. Mollusks, millipedes, and mushrooms

also are found in record variety.'®

Unfortunately, Great Smoky Mountains National Park also

has the highest rate of nitrogen and sulfur deposition of any

monitored location in North America. As a result, rainfall in

the park is 5-10 times more acidic than natural rainfall. In fact,

ten percent of streams in the Smokies sampled over an

eight-year period were so acidic that they threatened the

viability of brook trout populations. Furthermore, 90 percent

of clouds sampled in the park have been found to be unnaturally

acidic. Acidic clouds bathe the park's high elevation forests

_—_

'* National Park Service, “Great Smoky Mountains National Park:

Nature & Science: Overview,” available at: http://www.nps.gov/

grsm/pphtm//nature.htm| (last visited July 16, 2006).

'S National Park Service, “Air Quality in the National Parks, 2”

Edition,” p. 37, available at: http://www2.nature.nps.gov/air/Pubs/aqnps.

cfm.

‘© National Park Service, “Great Smoky Mountains National Park:

Nature & Science: Overview,” available at: http://www.nps.gov/

grsm/pphtmi/nature.html (last visited July 16, 2006).

17

during much of the growing season.'’ Acids in the soil poison

microorganisms, as well as trees and other plants.'* Research

shows that some high elevations in Great Smoky Mountains

National Park are receiving so much airborne nitrogen that the

soil suffers from advanced nitrogen saturation.

The Smokies also suffer from high levels of ozone

pollution. Ozone exposures in the park are among, the highest

in the East. On average, ozone levels over the ridgetops of the

park are up to two times higher than in nearby cities, including

Knoxville and Atlanta.” The number of days with ozone levels

above the national ambient air quality standard have risen

sharply since 1989 posing threats to vegetation, as well as park

visitors and employees. In 1999, the park recorded 52

“unhealthy” days that exceeded the standard.?' Studies indicate

that 30 species of plants experience leaf damage when exposed

to controlled ozone levels similar to those that occur in the

Smokies. Up to 90 percent of black cherry trees and tall

milkweed plants in numerous park locations show symptoms of

'’ National Park Service, “Air Quality in the National Parks, 2nd

Edition,” p. 37, available at: http://www2.nature.nps.gov/air/Pubs/aqnps.

cfm.

'* Great Smoky Mountains National Park Management Folio #2, Air

Quality, available at http://www.nps.gov/grsm/gsmsite/airquality0 1 .pdf (last

visited July 16, 2006).

'° National Park Service, “Great Smoky Mountains National Park:

Nature & Science: Air Quality,” available at:

http://www.nps.gov/grsm/pphtml/subenvironmentalfactors23.html (last

visited July 16, 2006).

2 Id.

*" National Park Service, “Air Quality in the National Parks, 2nd

Edition,” p. 41, available at: http://www2.nature.nps.gov/air/Pubs/aqnps.

cfm.

18

ozone damage. In general, researchers have found that ozone

exposure and damage are worse at higher elevations.”

Power plant emissions are not only major contributors to

the pollution problems in the Smokies set out above, but they

are also chiefly responsible for visibility degradation in the

park.”? Since 1948, based on regional airport records, average

visibility in the southern Appalachians has decreased 40% in

winter and 80% in summer. Annual average visibility at Great

Smoky Mountains National Park is 25 miles, compared to

natural conditions of 93 miles. During severe haze episodes,

visibility has been reduced to under one mile. This degradation

in visibility not only affects how far one can see from a scenic

overlook, but also how well one can see. Jd. Sulfate-caused

haze causes colors to appear washed out and obscures

landscape features. This pollution typically appears as a

uniform whitish haze, different from the natural mist-like

clouds for which the Smokies were named. /d. Increasingly,

visitors no longer see distant mountain ridges because of this

haze. This increased degradation has been traced directly to the

presence of sulfates, the concentrations of which have increased

in the region by 27% from 1984-1999. Jd.

The Smokies are not the only national park suffering from

visibility degradation. Shenandoah National Park is known

internationally for spectacular mountain scenes. Skyline Drive

was constructed in the 1930’s as a scenic drive along the crest

of the Blue Ridge mountains within Shenandoah National Park.

The road was designed and constructed to provide scenic views

* Great Smoky Mountains National Park Management Folio #2, Air

Quality, available at http://www.nps.gov/

visited July 16, 2006).

* National Park Service, “Great Smoky Mountains National Park:

Nature & Science: Air Quality,” available at:

http://www.nps.gov/grsm/pphtml/subenvironmentalfactors23.htm] (last

visited July 16, 2006).

19

within the park and into the Piedmont plateau to the east and

the Shenandoah Valley to the west. 76 overlooks, or pullouts

with parking, were constructed so motorists could stop at

intervals along the Drive and enjoy the views.“ According to

the National Park Service. however, “air pollution, particularly

during the summer season, has significantly degraded the

distance, color, contrast and landscape details of park views

from Skyline Drive, the Appalachian Trail, and high points in

the park.”” Like the Smokies, Shenandoah has also been

adversely impacted by acid deposition. Jd.

Other National Park units are suffering similar air pollution

detriments caused in large part by power plant emissions.

Researchers have found that mercury levels in the hair of

endangered Indiana bats collected from the Mammoth Cave

National Park are two to three times EPA's recommended limit

for humans. They believe that the mercury contamination is

likely the result of emissions from coal-fired power plants.”°

In Rocky Mountain National Park, more than twenty years

of study have linked changes in the chemistry of the park's

water and soils, as well as damage to park species like the

Engelmann spruce, to rising nitrogen levels in the park.*” The

** National Park Service, Shenandoah National Park, Nature and

Science, Scenic Vistas, available at: http://www.nps.gov/ htm]/

subenvironmentalfactors25.html (last visited July 16, 2006).

*° National Park Service, Shenandoah National Park, Nature and

Science, Air Quality, available at: // 2ov/ tml/

subenvironmentalfactors23.htmKlast visited July 16, 2006).

* Webb, et al. 2005. Occurrence and Distribution of Mercury in

Mammoth Cave National Park, Paper No. 167-7, Geological Society of

America.

*” National Park Service, Rocky Mountain National Park, Nitrogen

Deposition Correlated with Changes in Lake Organisms, available at:

http://www.nps.gov/romo/downloads/CDRLC/summari es/diatoms.pdf (last

20

nitrogen pollution has been traced to pollution from from

power plants, factories, oil and gas wells, fertilizer, and animal

feedlots. Jd. High-elevation ecosystems at Rocky Mountain

National Park are particularly vulnerable to nitrogen deposition

because the park's granite bedrock and shallow soils do not

provide much chemical buffering, and the short growing

seasons at high-elevation limit the amount of time plants have

to absorb nitrogen during the year. These alpine plants evolved

under very low nitrogen conditions, so they are less tolerant of

excess nitrogen added to the environment by air pollution.”

These parks and others are suffering these injuries even

though Congress sought to remedy the air pollution problem in

parks almost 30 years ago with the Clean Air Act Amendments

of 1977. Pub. L. 95-95, 91 Stat. 685 (1977). This Act granted

special protections to National Parks. See 42 U.S.C. § 7472

(designating National Parks over 6000 acres in size as Class I

areas) and 42 U.S.C. § 7475(d) (requiring additional measures

to insure that new and modified sources seeking permits under

the PSD program do not adversely impact Class I areas).

Indeed, the Act contains an entire program dedicated to

improving and protecting visibility in Class I areas. 42 U.S.C.

§§ 7491-92.

Although EPA has recently developed two rulemakings to

curb park-harming emissions from power plants, the Regional

Haze Rule, 64 Fed. Reg. 35714, (July 1, 1999) and 70 Fed. Reg.

39104 (Regional Haze Regulations and Guidelines for Best

Available Retrofit Technology (BART) Determinations), and

the Clean Air Interstate Rule (“CAIR”), 70 Fed. Reg. 25162

visited July 16, 2006).

* Rocky Mountain National Park Initiative, “Nitrogen Deposition:

Issues and Effects in Rocky Mountain National Park (Technical Background

Document),” March 2004, available at: http://www.cdphe.state.co.us

/ap/rmnp/noxtech.pdf (last visited July 16, 2006).

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(May 12, 2005), those rules do not supersede the New Source

Review rules, and they do not take effect until 2015. See 70

Fed. Reg. 39145 (2005).

As Congress debated the 1977 Amendments to the Clean

Air Act, it believed that old, uncontrolled plants were being

phased out:

There are in the United States approximately 200 old

coal-fired power plants over 20 years of age. These plants

are moving into the second half of their useful service life.

They are operating at reduced capacity factors--some are

used on cyclical or peaking loads only and most operate at

less than 50 percent of their stated capacity. They are

typically among the most expensive units to operate on a

system. Most will be totally phased out of operation in the

next 5 to 20 years.

S. Rep. No. 127, 95" Cong. (1977), at 128 (Statement of

Senator Baker). Thus, as the D.C. Circuit noted in 1980:

Implementation of the statute’s definition of

“modification” will undoubtedly prove inconvenient and

costly to affected industries; but the clear language of the

statute unavoidably imposes these costs except for de

minimis increases. The statutory scheme intends to

“grandfather” existing industries; but the provisions

concerning modifications indicate that this is not to

constitute a perpetual immunity from ail standards under

the PSD program. If these plants increase pollution, they

will generally need 2 permit. Exceptions to this rule will

occur when the increases are de minimis, and when the

increases are offset by contemporaneous decreases of

pollutants. ...”

Alabama Power Co. v. Costle, 636 F.2d 323, 400 (D.C. Cir.

1980); see also Ohio Edison, 276 F. Supp. 2d at 850

(“Congress chose to ‘grandfather’ existing pollution sources

from the NSPS and NSR provisions at the time the statute was

enacted. ... Congress did not, however, intend that such

22

existing sources be forever spared the burden and expense of

installing pollution control devices.”).

This case and others filed by the Department of Justice and

citizens seek to bring into compliance sources that have

attempted to evade New Source Review requirements on a

massive scale. When EPA and the Department of Justice filed

this case in 1999, it also proceeded against six other utility

companies covering 17 power plants and estimated that the

failure of the identified utilities to comply with the New Source

Review regulations had “resulted in tens of millions of tons of

sulfur dioxide, nitrogen oxides, and particulate matter illegally

emitted into the air.” ” Amici believe that bringing Duke and

other violators of New Source Review requirements into

compliance will be a significant step forward in solving the air

quality problems faced by the nation’s National Parks.

CONCLUSION

For the foregoing reasons, the judgment of the Fourth

Circuit Court of Appeals should be reversed.

Respectfully submitted this 21* of July, 2006.

GEORGE E. HAYS

236 West Portal Avenue # 110

San Francisco, CA 94127

(415) 566-5414

° U.S. Department of Justice, U.S. EPA, “U.S. Sues Electric Utilities

in Unprecedented Action to Enforce the Clean Air Act,” press release,

November 3, 1999. Available at: http://www.usdoj.gov/opa/pr/1999/

November/524enr.htm (last visited July 15, 2006).

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MICHAEL COSTA

Our Children’s Earth Foundation

100 First Street, Suite 100-367

San Francisco, CA 94105

(415) 896-5289

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