# Amicus Curiae Brief — Environmental Defense v. Duke Energy Corporation

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0237%3A42

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007
- **Citation:** 549 U.S. 561

## Text

16 Cipreme Cou US.
JUL 2 1 2006
No. 05-848 OFFICE OF THE CLERK !
NN —————E
IN THE
Supreme Court of the United States

ENVIRONMENTAL DEFENSE, ET AL.,
Petitioner,
Vv.

DUKE ENERGY CORPORATION,
Respondent.

ON WRIT OF CERTIORARI TO THE TO THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT

BRIEF OF AMICI CURIAE STAPPA AND ALAPCO
IN SUPPORT OF PETITIONER

Richard E. Ayres
Counsel of Record

AYRES LAW GROUP

1615 L Street, N.W. Suite 1350
Washington, D.C. 20036
202-452-9200

Attorney for Amici Curiae

State and Territorial Air Pollution
Program Administrators (STAPPA)
and the

Association of Local Air Pollution
Control Officials (ALAPCO)

ae
an

7c

A
me
ae ee:

cs

a
A

TABLE OF CONTENTS
PORE GI PRs co ccnscccscccescescnnccesecvene coroner sie ]
TDD Ric ndcsecesivndssevscccvasedetentessbdetestasesdull |
ARGUMENT
I. THE LOWER COURT DECISION IS CONTRARY
BAD BERD CAMS ATR FICE ons cccccsccnsccscccncecce sess 3

Il. THE LOWER COURT RULING WILL
ADVERSELY AFFECT AIR QUALITY.............. 4

Ill. STATE AND LOCAL AGENCIES CANNOT MEET
THEIR OBLIGATIONS TO ATTAIN NAAQS AND
PROTECT THE ENVIRONMENT WITHOUT
EMISSION REDUCTIONS FROM’ EXISTING

IV. THE LOWER COURT RULING WILL LIMIT
Ee GIP WT BEE is vccsniencoveseesesscccecovenes 11

V. THE LOWER COURT RULING WILL HINDER
THE MODERNIZATION OF AMERICAN
ENERGY INFRASTRUCTURE. .............00.c0000 13

VI. STATE AND LOCAL AGENCIES NEED
CERTAINTY REGARDING FEDERAL

ENVIRONMENTAL REGULATION ................ 15
NED ic catnip citecicniennsiinedibiabiahiadionaialagel capeueiis 18
APPENDIX

I Wis deiginivntedsiuttinuaimintaapeaniiicadnmueiii l

I i thininicd bitcsigensanidianncanaiiionnta 6

TABLE OF AUTHORITIES

CASES Page(s)
1000 Friends of Maryland v. Browner,

265 F.3d 216 (4™ Cir. 2001).............0.sccecceeeees 15
Alabama Power v. Costle,

Ge Fae Bee CO, Ce. BOF iio veces cvcvcesseciiccens 4, 16
Environmental Defense Fund v. Thomas,

SPOT DE GI Che, I anvicscsicccscccevissccscone 16
Harrison v. PPG Indus., Inc.,

Re ee PE ich. bet ccccdcosnutndisavinctadincnedes 16
Husqvarna v. EPA,

Oe BOO Cs Ge Be vd dcicvicconvevsscionts 15
In re TVA,

A HT eich dntsinvinnbidniiaiiessnkentivbincaial 6

International Harvester Co. v. Ruckelshaus,
Fy ee as GE, SP ii veo intnccdccncksctécenses 15

Indianapolis Power & Light Co. v. EPA,
38 Fed. Appx. 613 (D.C. Cir. 2002)................044 16

Massachusetts v. EPA,
8 Fe Fe ls GE, Be Ri cccsicdunsesevicrvccosssven 16

National Petrochemical & Refiners Ass'n v. EPA.,
287 £34 1130 (D.C. Cir. 200Z)}-.......cccccccccscevcees 17

Natural Resources Defense Council v. EPA,
GS Fe FU as CO, TOGED. pccicviccssccccscsscnssot 15

Natural Resources Defense Council v. Thomas,
805 F.2d 410 (D.C. Cir. 1986)...........cceceeeeeeee ces 15

Ohio Public Interest Research Group, Inc. v. Whitman,

386 F.3d 792 (6™ Cir. 2004)........cccceceseeeeeeeeeees 16
Portland Cement Ass'n v. Ruckelshaus,

fe psf leks Se innapeney pepanee 15
U.S. and Envtl Defense, et. al v. Duke Energy Corp.,

278 F.Supp.2d 619 (M.D. N.C. 2003)...................6
U.S. v. American Electric Power Service Corp.,

137 F.Supp.2d 1060 (S.D. Ohio 2001).................. 6
U.S. v. Ho,

311 F.3d 589 (5™ Cir. 2002).............cccssseeeceeoes 16
U.S. v. Ohio Edison Co.,

276 F.Supp.2d 829 (S.D. Ohio 2003)................65 6
Wisconsin Electric Power Co. v. Reilly (WEPCO),

833 F.2d 901 (7th Cir. 1990)..................06. 4,5, 15
LITIGATION MATERIALS

Richard Rosen, Expert Report on behalf of the United States,
U.S. v. American Electric Power Service Corp.,
137 F.Supp.2d 1060 (S.D. Ohio 2001)..............000 6

Ranajit Sahu, Expert Report on behalf of the United States,
U.S. and Envtl Defense, et. al v. Duke Energy Corp.,

278 F.Supp.2d 619 (M.D.N.C. 2003)..........00000 6-7
STATUTES
SITES LCRA It ETERS 16
8 ERS REE Fae: 16
ag ee REL 16
a 16
_ le ERS y alee ea Seat 9

SUSC ANG. i ae 4

Se ade Ps dhtnkdcccckstecteinbecdiesskaddeecdaacaan 16
Pe ed te PE kbdivisicentsnnbdendeussonuabademiaaeaienan 17
EE We Cana Uh SUE Rdvdbsscdihcecpesabeckcdinsucambddaiadaeutaall 17
ae ee Pe cr cndsovasdncecsneraniadecbaredibdenendonde 15
Te eee FO EIA oon se denctesdcpdeddncoioncnbbocogueds 11
Ge ret PEiub decode dtsnéanddincdnecedadusasbdndstnasnsuie 11
Se Ae Sein ince vei devints Akdtidsieteianttsdediudeiaieiaiaan 17
FE Pak TE PND ain csarccanccndneséiasesdemenunevaimaaliemiel 9
Fp ETE Fuk in dud civedkcnicicidchissckdiaebe 1. oee 17
iy Saas Oh PI cciss siwinkcnditlnavcdidnsabionkentuneasandade 17
Te Sane Te Eis icccccicds<cceasénsndedicichistseuiieadae 16
LEGISLATIVE MATERIALS

Clean Air Amendments of 1970,

Fei DO, OO, WG iad icvsicncissicnchibiccisddio 3
eg i ks SPECIE PE Prem ee ae 12,14
FH PMD MET ici. co oss cinsivise) ocavntscbubpupteincsdabay 14
ADMINISTRATIVE MATERIALS
ee iii ntcncdsctntitinikabiniicipbbiacbdaasscaaial 9
OF Be Peo ckiiicctecsacscctcsinnetbameecsie 10
63 Fed. Reg. 57,356 (Oct. 27, 1998).............ccscccesceecesee 11
65 Fed. Reg. 2,674 (Jan. 18, 2000).........csccscssossccscveses's 11
70 Fed. Reg. 25,162 (May 12, 2005)..............0ceeeeeee 10, 11

EMISSIONS REDUCTIONS BY SECTOR, NJ DEPT. OF
ENVIRONMENTAL PROTECTION,
at http://www.nj.gov/dep/airworkgroups/docs/wp _
GUMMMETY ISDIS WED.GIK......ccccrscccrsersessesoerooeses 9

EPA 8-HOUR OZONE SUMMARY,

at http://www.epa.gov/oar/oagps/greenbk/gnsum.html
(last visited July 19, 2006)..............0seesceceeeenes 2,9

iV

EPA, OFFICE OF AIR & RADIATION BRIEFING,
“CLEAN AIR INTERSTATE RULE (CAIR)” 16 (2005),
available at http://www.epa.gov/cleanairinterstaterule
/charts_files/cair final presentation.pdf (last visited
I ori oti ain haadeieieasatnuntesheraunouies ll

EPA PARTICULATE MATTER (PM2s5) NONATTAINMENT AREA
SUMMARY,

at http://www.epa.gov/oar/oaqps/greenbk/qnsum. htm!
(last visited July 19, 2006).................ecceee eee ees 1,8

Letter from John Seitz, Director, U.S. EPA Office of Air
Quality Planning and Standards, to the Honorable Robert C.
I a alas ccittl 4

Testimony of William Wehrum, Acting Assistant
Administrator for Air and Radiation, U.S. EPA, before the
United States Sen. Comm. on Environment and Public
Works, Subcomm. on Clean Air, Climate Change, and
Nuclear Safety (Feb. 9, 2006)............cccccccssescccersescesecs 10

INSTITUTIONAL PUBLICATIONS

NATIONAL ACADEMY OF PUBLIC ADMINISTRATION, “A
BREATH OF FRESH AIR: REVIVING THE NEW SOURCE REVIEW
a nensincmnnens 3,8

NATIONAL PARK SERVICE, “AIR QUALITY IN THE NATIONAL

NATIONAL RESEARCH COUNCIL OF THE NATIONAL
+ CADEMIES, “INTERIM REPORT OF THE COMMITTEE ON
CHANGES IN NEW SOURCE REVIEW PROGRAMS FOR
STATIONARY SOURCES OF AIR POLLUTANTS” (JANUARY

OFFICE OF THE INSPECTOR GENERAL, ENVTL PROTECTION
AGENCY, “NEW SOURCE REVIEW RULE CHANGE HARMS

EPA’S ABILITY TO ENFORCE AGAINST COAL-FIRED ELECTRIC
ED Ui einiachcctcctedcedediccedicbecccnbebpbeetbdensanbend 7

RESOURCES FOR THE FUTURE, “VALUATION OF NATURAL
RESOURCE IMPROVEMENTS IN THE ADIRONDACKS”

INTEREST OF AMICI!

STAPPA2 and ALAPCO? are the national
organizations of state and local clean air agencies in 54 states
and territories and over 165 metropolitan areas across the
country. Under the Clean Air Act (“CAA”), the member
agencies of STAPPA and ALAPCO have the task of
developing and implementing air pollution control strategies
that will protect public health and the environment
throughout the nation. Our member agencies are charged
with improving air that is polluted and preventing
deterioration of clean air. Amici submit this brief because
restoring the long-standing U.S. Environmental Protection
Agency (“EPA”) interpretation of the New Source Review
(“NSR”) rule that requires the installation of modern
pollution controls is necessary for our member agencies to
fulfill their statutory obligations.

INTRODUCTION

STAPPA and ALAPCO ask this Court to reverse the
lower court’s decision because it would prevent states and
local agencies from achieving the health and environmental
goals of the CAA. The number of people exposed to

! The parties have consented to the filing of this brief. Letters of consent
are being filed in conjunction with this brief. Pursuant to this Court’s
Rule 37.6, counsel states that this brief was not authored in whole or in
part by counsel for a party and that no one other than amici and their
counsel made a monetary contribution to the preparation or submission of
this brief.

2 The acronym “STAPPA” stands for State and Territorial Air Pollution
Program Administrators.

3 The acronym “ALAPCO” stands for Association of Local Air Pollution
Control Officials.

pollution levels greater than the EPA’s health-based National
Ambient Air Quality Standards (“NAAQS”) for ozone has
been recently estimated at 158.5 million, and for fine
particulate matter (“PM2;”) at 88.4 million. See EPA 8-
HouR OZONE SUMMARY, at _http://www.epa.gov/oar/
oaqps/greenbk/gnsum.html; and EPA PARTICULATE MATTER
(PM25) NONATTAINMENT AREA SUMMARY, at http://www.
epa. gov/oar/oagps/greenbk/qnsum.html (last visited July 19,
2006). Pollution also adversely affects environmental quality
in our national parks, state parks, and many other less
urbanized areas. See, e.g., NATIONAL PARK SERVICE, “AIR
QUALITY IN THE NATIONAL PARKS” 9 (2002); RESOURCES
FOR THE FUTURE, “VALUATION OF NATURAL RESOURCE
IMPROVE- MENTS IN THE ADIRONDACKS” 26 (2004).

New Source Review is one of the tools provided state
and local agencies by the CAA to manage air quality. In
areas where pollution levels exceed NAAQS, NSR is a
means to reduce emissions in order to attain health-based
standards. NSR is also a strategy to prevent deterioration of
clean air resources in order to protect national parks and
other lands designated in the CAA, 42 U.S.C. § 7472, and to
provide air resources to support industrial growth. NSR also
serves as a tool to protect against transported pollutants, such
as PM2; and ozone. These pollutants are formed through
chemical reactions in the atmosphere involving sulfur
dioxide (“SO”) and nitrogen oxides (“NO,”) emitted by
sources outside nonattainment areas, such as electric
generating units (“EGUs”).

The continuing excessive emissions from
superannuated coal-fired EGUs are the single largest
industrial contributor to concentrations of SO2, NO,, ozone
and PM2;. Seventy-one percent of the nation’s coal-fired
capacity is between 26 and 56 years old, with emission rates
for SO, ranging from more than double to quadruple the
emission rates of modern coal-fired units built since 1990.
NATIONAL RESEARCH COUNCIL OF THE NATIONAL

2

ACADEMIES, “INTERIM REPORT OF THE COMMITTEE ON
CHANGES IN NEW SOURCE REVIEW PROGRAMS FOR
STATIONARY SOURCES OF AIR POLLUTANTS” 54, tbl.3-3
(2005). Many of these obsolete EGUs have required or will
require major investments in “life-extension” projects to keep
them operating. The fundamental practical question
presented in this case is whether these old coal-fired EGUs,
the largest and least controlled industrial sources of pollution
in the country, will be required to install modern pollution
contro] equipment when investments are made to extend their
lives.

STAPPA and ALAPCO submit this brief to (1)
express agreement with the petitioners’ view of the law; (2)
show that affirming the lower court’s ruling will adversely
affect the nation’s air quality; (3) inform the Court that
reversing the lower court’s decision is necessary for state and
local agencies to obtain the emission reductions needed to
attain and maintain federal health-based air quality standards
and protect our natural resources; (4) demonstrate that,
contrary to Congressional intent, the lower court’s decision
would hinder economic growth and slow the modernization
and clean up of our nation’s energy sector; and (5) relate our
concerns about the consequences for state and local clean air
agencies of opening the door to collateral attacks on EPA’s
clean air regulations.

ARGUMENT

I. THE LOWER COURT DECISION IS
CONTRARY TO THE CLEAN AIR ACT

State and local air pollution control officials agree
with petitioners that the lower court decision is at odds with
the fundamental objectives of NSR and the CAA. The
purpose of NSR is to require major polluting facilities

3

“grandfathered” under the Clean Air Amendments of 1970,
P.L. 91-604, 84 Stat. 1676, to be cleaned up whenever they
undergo a renovation that increases emissions. See, e.g.,
NATIONAL ACADEMY OF PUBLIC ADMINISTRATION, “A
BREATH OF FRESH AIR: REVIVING THE NEW SOURCE REVIEW
PROGRAM” 14 (2003), referring to the

clear assumption of Congress that older, high-
emitting sources would gradually be upgraded or
phased out. Then, once a grandfathered facility makes
any changes or is replaced, NSR is triggered and
requires it to install improved technologies that will
prevent or control pollution. The Panel believes these
requirements are, without question, designed to lead
to an overall reduction in emissions from existing
sources.

See also Alabama Power v. Costle, 636 F.2d 323, 400 (D.C.
Cir. 1979) (“The statutory scheme intends to ‘grandfather’
existing industries; but the provisions concerning
modifications indicate that this is not to constitute a perpetual
immunity from all standards under the PSD program.”);
Wisconsin Electric Power Co. v. Reilly (‘WEPCO”), 893
F.2d 901, 909 (7th Cir. 1990) (“Congress did not
permanently exempt existing plants from these
requirements.”). The lower court’s ruling is contrary to this
purpose because it would exempt essentially all life-
extension and other renovation projects from NSR.

Il. THE LOWER COURT RULING WILL
ADVERSELY AFFECT AIR QUALITY

If, as the lower court ruled, the test of whether NSR
applies when existing sources are renovated must be the
same as the applicability test for New Source Performance
Standards (“NSPS”), 42 U.S.C. § 7411(a)(4), then virtually

4

all renovations on existing industrial sources of air pollution
will be exempted from installing modern pollution controls.
As the former head of EPA’s Office of Air Quality Planning
and Standards wrote, “no existing unit has become subject to
new source performance standards (NSPS) under . . . the
modification . . . program.” State and local air pollution
control officials are aware of only one case, memorialized in
WEPCO, 893 F.2d at 901, where an hourly increase in EGU
emissions triggered NSR.

An hourly increase test would affect emissions in two
ways. First, emissions from renovated old units will increase
because they will be operated more after repair. Second,
emission reductions that would have been achieved by the
installation of state-of-the-art pollution control technology
under NSR will be foregone. The net effect is to expose the
public to significantly more air pollution.

A typical example may illustrate the point. Because
of breakdowns and deterioration, an aging medium-sized
(400 MW capacity) coal-fired EGU may be capable of
operation at only 45 percent of its capacity. Burning medium
sulfur coal without SO, emission controls, such a unit might
emit 25,000 tons per year (“tpy”) of SO; prior to a life-
extension modification. Because of replacement of worn
components, the unit might be operated 75 percent of
capacity after the life-extension project. Since the EGU now
generates two-thirds more electricity than it did before, the
uncontrolled annual SO, emissions from the unit now
increase to 41 ,666 tpy.

Under EPA’s long-standing interpretation of NSR,
the increase in annual emissions in this example would be
subject to NSR. A modified unit subject to NSR typically
would be required by state and local agencies to control SO,

4 Letter from John Seitz, Director, U.S. EPA Office of Air Quality
Planning and Standards, to the Honorable Robert C. Byrd (Jan. 26,
1996).

emissions with “scrubber” technology. Installing a scrubber
would eliminate at least 95 percent of the SO, emissions.
This would reduce the example EGU’s SO, emissions from
41,666 tpy to 2,083 tpy or lower — a net reduction from the
post-modification emissions of at least 39,583 tpy.

Under an hourly rate applicability test, NSR would
not be triggered, and no scrubber would be installed. Hence,
the net effect of applying an hourly rate test to this example,
rather than the long-standing EPA annual tonnage increase
test, would be to allow 39,583 tpy more emissions.

Enforcement cases brought by the U.S. Department of
Justice and EPA confirm that electric utility life-extension
projects have resulted in large emission increases (although
they do not quantify the foregone decreases in emissions). In
U.S. v. Ohio Edison Co., (S.D. Ohio 2003), Judge Sargus
ruled that 11 life-extension projects undertaken by Ohio
Edison increased emissions of SO, by 14,921 tpy. 276
F.Supp.2d 829 at 869-874. In U.S. v. American Electric
Power Service Corp., 137 F.Supp.2d 1060 (S.D. Ohio 2001),
the Department of Justice’s expert witness Dr. Richard A.
Rosen determined the emission increases resulting from 33 of
the 47 life-extension projects undertaken by American
Electric Power (“AEP”) for which data were available at the
time. Using AEP’s own projections of the expected increase
in operation of each unit, he calculated actual emissions
before and after each life-extension project. Rosen Expert
Report 38-39.5 Dr. Rosen determined that, as a result of the
life-extension projects, emissions of SO, from the units in
question would increase 115,789 tpy, while NO, emissions
would increase 15,071 tpy. Jd. Similarly, the EPA
Environmental Appeals Board found in Jn re TVA, 9 E.A.B.
357 (2000), that life- extension projects undertaken by the

5 For the convenience of the Court, relevant excerpts of Dr. Rosen’s
expert report are attached as Appendix A.

6

Tennessee Valley Authority on just four units resulted in SO,
emission increases of 15,077 tpy, and NO, emission
increases of 42,005 tpy.

Indeed, in the case below, U.S. and Envtl Defense, et.
al v. Duke Energy, 278 F.Supp.2d 619 (M.D. N.C. 2003), the
district judge heard testimony that the 27 life-extension
projects undertaken. by Duke Energy resulted in substantial
increases in emissions. Using Duke’s own projections of the
increased operation of these units after the projects, expert
witness Ranajit Sahu calculated the increase in emissions that
would result. Sahu Expert Report 42-45. He found that, as
a result of the increased post-life-extension operation of the
units, emissions of SO, increased 68,466 tpy; NO, emissions
increased 26,128.3 tpy; PM emissions increased 5,574.4 tpy;
and PM;o emissions increased 3,734.6 tpy.

The point of our hypothetical example is also
confirmed by a report by the EPA Inspector General. The
report, published in 2004, indicated that if all nine then-
pending NSR enforcement cases were successful, they would
result in total SO emission reductions of 1,750,361 tpy and
NO, emission reductions of 628,865 tpy nationally. OFFICE
OF THE INSPECTOR GENERAL, ENVTL PROTECTION AGENCY,
“NEW SOURCE REVIEW RULE CHANGE HARMS EPA’S
ABILITY TO ENFORCE AGAINST COAL-FIRED ELECTRIC
UTILITIES” 25 (2004).

Il. STATE AND LOCAL AGENCIES CANNOT MEET
THEIR OBLIGATIONS TO ATTAIN NAAQS AND
PROTECT THE ENVIRONMENT WITHOUT EMISSION
REDUCTIONS FROM EXISTING EGUS

© Relevant excerpts of Dr. Sahu’s expert report are attached as Appendix
B.

State and local officials are responsible under the
CAA for developing and implementing air pollution control
programs that will attain and maintain the health-based
NAAQS. Agencies are also responsible for managing air
resources to prevent deterioration of air quality where it is
better than the NAAQS. In order to accomplish these
objectives, they need emission reductions from existing
EGUs and other industrial units required by NSR. As the
long history of air pollution controi under the CAA
demonstrates, there are many obstacles that state and local
agencies must overcome to attain the NAAQS. An hourly
emission rate test for NSR applicability would present a new
— and probably insuperable — obstacle.

Currently EPA classifies 119 areas in 462 counties as
“nonattainment” for the 8-hour ozone NAAQS, EPA 8-HourR
OZONE SUMMARY, supra, and 39 areas in 208 counties as
nonattainment for PM25, EPA PARTICULATE MATTER (PM? 5)
NONATTAINMENT AREA SUMMARY, supra. If the test for
NSR applicability were an hourly emission increase, state
and local officials responsible for attaining and maintaining
the ozone and PM; NAAQS in these areas would be faced
with an impossible task. To return to the example in the
previous section, what can a state or local agency do to make
up for the loss of 39,583 tpy of SO2 emission reductions from
our hypothetical EGU that no longer must undergo NSR?

In fact, that many tons of emission reductions are not
available elsewhere. Large existing coal-fired EGUs account
for about 76 percent of all point source emissions of SO2; 57
percent of NO,; and 41 percent of PM2s5. National
Academies Report, supra, at 49-50 figs.3-8, 3-9, 3-10.
Moreover, to the extent substitute emission reductions are
available from other emitters, they will be far more
expensive, since the most cost-effective emission reductions
come from large uncontrolled sources, such as EGUs.

STAPPA member STAPPA member New Jersey
Department of Environmental Protection (“NJDEP”)

8

demonstrates how crucial EGU emissions reductions are.
The state is now in the second year of a process to identify
strategies to attain the air quality standards for 8-hour ozone
and PM25. The NJDEP is now focusing on about 60
potential emission reduction measures, which are described
in white papers posted at | www.nj.gov/dep/
airworkgroups/docs/wp_summary table web.x\ls. Aside
from controls on EGUs, the four most effective measures
identified to reduce SO, (a major contributor to PM2s) can
achieve a total reduction statewide of less than 14,000 tpy.
These measures include significantly reducing the sulfur
content of home heating oil; further tightening emission
controls at New Jersey’s refineries (which are already heavily
controlled); and reducing sulfur in heavy oil used in
industrial and commercial boilers. The emission reductions
potential of each of the other SO, measures identified is far
less than these. By contrast, installing SO, scrubbers on
existing New Jersey coal-fired EGUs that currently do not
have SQ) pollution control technology will achieve almost
60,000 tpy of SO emission reductions.’

If clean air agencies are unable to find sufficient
alternative emission control measures to demonstrate that
they can attain NAAQS and obtain EPA approval, states and
localities face sanctions mandated by the CAA. These
sanctions include a cutoff of federal highway funds and
requirements that new industrial sources offset emission
reductions at a two-to-one ratio — effectively a ban on new
construction. 42 U.S.C. § 7509(b). State failure may also
result in the air pollution control program being taken over
by the federal government. See, e.g., 42 U.S.C. § 7410(c).

7 New Jersey will be able to achieve this emission reduction from its
coal-fired EGUs because of a settlement in an NSR case that preceded the
lower court decision. Hence in New Jersey, NSR settlements will
provide the majority of the SO, reductions needed to achieve the PM;
NAAQS.

State and local air pollution control officials do not
agree with those who argue that exempting existing sources
from NSR will not affect air quality because of other
programs that EPA has adopted, such as the “Clean Air
Interstate Rule” (“CAIR”). 70 Fed. Reg. 25,162 (May 12,
2005). The CAIR program places a cap on emissions of SO,
and NO, from the 28 states in the eastern half of the country,
and allows states to opt into an emission trading program for
covered emitters. While potentially economically efficient,
CAIR incorporates a number of features that render it an
inadequate substitute for NSR. First, CAIR does not apply at
all in the 22 western States. 40 C.F.R. § 51.123(c). Second,
CAIR addresses only emissions of SO2 and NO,, while NSR
addresses, in addition, particulate matter, volatile organic
compounds, and carbon monoxide, all of which can be
expected to increase if existing sources are effectively
exempted from NSR. Third, because CAIR allows units to
buy emission “allowances” rather than reduce emissions,
state and local agencies cannot assure the citizens affected by
a particular unit that it will install state-of-the-art pollution
control technology. 70 Fed. Reg. 25,162, 25,175 (May 12,
2005).

Fourth, and perhaps most important, the emission
reductions promised by CAIR would not be fully realized for
nearly a generation. CAIR requires no emission reductions
whatsoever for the first five years, and the emissions cap is
not binding until 2015. 40 C.F.R. § 51.123(e)(2). But
because of the structure of the allowance market created by
CAIR, EPA expects that the annual emissions in the covered
states will continue to exceed the cap until some time after
2020. U.S. EPA, OFFICE OF AIR & RADIATION BRIEFING,
“CLEAN AIR INTERSTATE RULE (CAIR)” 16 (2005), available
at http://www.epa.gov/cleanairinterstaterule/charts _files/cair
_final_presentation.pdf (last visited July 18, 2006) See also
70 Fed. Reg. 25,162, 25,166 n4 (May 12, 2005).
Information released recently by EPA indicates that, despite

10

CAIR, only 187 of 975 existing coal-fired EGUs (19 percent)
are projected to be equipped with SO, “scrubbers” and
Selective Catalytic Reduction (“SCR”) units to control NO,
by 2010. By 2020 the number of controlled EGUs is
expected to improve only to 328 of a then-projected 1041
EGUs (31 percent).®

Similarly, neither the “acid rain” program of Title [V
of the CAA, nor the “NO, SIP call,” 63 Fed. Reg. 57,356
(Oct. 27, 1998); 65 Fed. Reg. 2,674 (Jan. 18, 2000), can
substitute for NSR. Like CAIR, the acid rain program
applies only to SO, and NO, emissions from large EGUs,
while the NO, SIP call applies only to NO, emissions from
industrial sources (including EGUs). Most important, like
CAIR, both programs provide for trading of emission
allowances by affected emitters, so state and local agencies
cannot assure citizens near any particular unit that emission
controls will be installed on that unit.

Likewise, STAPPA and ALAPCO do not regard the
CAA’s visibility protection program, 42 U.S.C. §§ 7491-
7492, as an adequate substitute for NSR. This program
requires that “best available retrofit technology” (“BART”)
eventually be installed on certain existing sources that
contribute to degraded visibility in the national parks,
wilderness areas, and wildlife refuges. 42 U.S.C. §
7491(b)(2)(A). But BART applies only to a relatively few
very large existing sources that were in operation between
1962 and 1977. 42 U.S.C. § 7491(b)(1)(A).

Finally, the majority of state and many local agencies
cannot adopt their own regulations as substitutes for the NSR
program. A ruling that binds EPA to an hourly rate
applicability test also binds at least 13 states that administer

8 Testimony of William Wehrum, Acting Assistant Administrator for Air
and Radiation, U.S. EPA, before the United States Sen. Comm. on
Environment and Public Works, Subcomm. on Clean Air, Climate
Change, and Nuclear Safety (Feb. 9, 2006).

11

the NSR program in clean air areas by “delegation” from
EPA rather than under their own authority. | Moreover,
nearly half the state agencies are subject to state laws or
policies that prohibit them from adopting any regulation
more stringent than the minimum federal law.

IV. THE LOWER COURT RULING
WILL LIMIT ECONOMIC GROWTH

An NSR program that effectively exempts renovated
units from installing modern pollution control technology
will limit economic growth. So long as old, polluting EGUs
and other obsolete industrial units largely monopolize the
nation’s air resources, the opportunity for the addition of new
productive capacity will be unnecessarily limited.

NSR is therefore a critical management tool used by
state and local air pollution control officials to increase the
potential for economic growth consistent with air quality
Objectives. When major capital investments are made in
existing units there is an opportunity to increase an area’s
available air resources by requiring installation of pollution
control equipment. If existing units are allowed to continue
consuming a disproportionate share of the air resources, the
supply of air resources available to support further economic
growth will be limited.

The hypothetical example described in Section II
above illustrates how the lower court’s ruling would allow
existing emitters to use excessive air resources. In the
example, as in many real cases encountered by state and local
officials, the lower court’s interpretation would allow the
refurbished old unit to emit 39,583 tpy more than if available
pollution controls were installed. Installing a scrubber would
make 39,583 tpy of air resources available to support
additional industrial growth and to improve the quality of the
environment.

12

Such pollution reductions are consistent with
Congress’ intent when it adopted the NSR program as a part
of the program to prevent significant deterioration of air
quality (“PSD”). The 1977 House Report calls PSD a
“necessary economic measure designed to encourage wise
use of scarce air resources and to preserve the potential for
long-term economic growth.” H.R. Rep. No. 95-294, at 133
(1977). By requiring pollution control equipment on both
new and modified sources, the PSD program would
maximize the air resources available for economic
development:

Obviously there is only a limited amount of clean air
resources in all parts of the country. If new plants are
built in ways which disregard the obvious limits of
our air resources, then fewer plants will absorb all
available air resources. But if each new or modified
major source is located, constructed and operated so
as to minimize its impact on available clean air
resources, then more and bigger plants will be able to
locate in the same area without serious air quality
deterioration.

Id. at 133 (1977).

The lower court ruling, if not reversed, would turn the
Congressional intent on its head. Older EGUs that have
already been “grandfathered” for as long as 36 years would
be rewarded by an indefinite extension of the exemption, and
allowed to commandeer additional scarce air resources in
perpetuity for their increased operations. The temporary
exemption intended by Congress in 1970 would become
permanent, while grandfathered emitters would effectively be
able to override any air resource management options
available to state and local air quality officials.

13

V. THE LOWER COURT RULING WILL HINDER
THE MODERNIZATION OF AMERICAN
ENERGY INFRASTRUCTURE

Some have argued that companies will be deterred
from improving the efficiency of existing units if they are
required to install modern pollution controls when they
invest in life-extension projects. To the contrary, efficiency
gains come from replacing obsolete units with new ones. By
forcing old units to address their public health and
environmental! externalities, NSR levels the playing field for
innovation.

In adopting NSR, Congress intended that facilities
would have “incentives for improved technology,” that those
improvements would “become widespread far more rapidly,”
and that vendors of cleaner technologies would have a
“guaranteed market.” See S. Rep. No. 95-127, at 31 (1977),
reprinted in 1977 CRS Legislative History 1371, 1405; See
also H.R. Rep. No. 95-294, at 186 (1977), reprinted in 1977
CRS Legislative History 2465, 2653.

The lower court’s ruling is entirely contrary to this
objective of NSR. It would allow many existing plants to
increase their emissions with little or no improvement in the
efficiency of their operations. Breakthrough technology
gains do not happen by maintaining and repairing obsolete
production capacity, but instead come when new plants are
brought on line. The efficiency of new state-of-the-art
electric generation facilities today is far higher than was
standard in the 1970s. :

Any modest efficiency improvements that might
result from life-extension projects at units avoiding NSR
would be eclipsed by increased hours of operation and
extended years of service, resulting in greater overall
emissions.

Moreover, by allowing old, dirty plants to extend
their operational lives without having to install the modern

14

pollution controls required of new facilities, while new plants
incur higher environmental costs, an hourly rate applicability
test for NSR would give old plants a perverse advantage
when it comes to bidding for power supply contracts. As in
any sector, financial capital is limited within the power
industry. The lower court’s decision would divert capital
from developing new clean plants to maintaining old dirty
ones because older units that were renovated without
installing pollution controls would be able to generate power
more cheaply than cleaner new units. So long as one set of
competitors is required by law to internalize the societal costs
of air pollution while another set is granted almost indefinite
exemptions, the nation’s energy markets and economy will
be distorted and its air quality impaired.

Exempting obsolete EGUs and other industrial
sources from NSR would nullify the CAA’s incentive to
encourage lower emissions by stimulating the development
of advanced, cleaner, more efficient electric generating
technologies. See 42 U.S.C. § 7475(a)(4). Congress first
adopted “technology forcing” in the Clean Air Amendments
of 1970, Alabama Power, 636 F.2d at 372, in order to
achieve the CAA’s public health and environmental goals.?

9 The federal courts have consistently upheld the CAA’s goal to stimulate
technological innovation as a way to achieve higher environmental goals.
In 1973, the U.S. Court of Appeals for the District of Columbia Circuit
rejected the argument that EPA was limited to standards requiring
“technology in being as of the time of the application.” /nternational
Harvester Co. v. Ruckelshaus, 478 F.2d 615, 629 (D.C. Cir. 1973); see
also Natural Resources Defense Council v. Thomas, 805 F.2d 410, 429
(D.C. Cir. 1986); Portland Cement Ass'n v. Ruckelshaus, 486 F 2d 375,
391 (D.C. Cir. 1973); Natural Resources Defense Council v. EPA, 655
F.2d 318, 328 (D.C. Cir. 1981)( “EPA was ‘expected to press for the
development and application of improved technology rather than be
limited by that which exists today.’” [citations omitted]); WEPCO 893
F.2d at 909-10 (7 Cir. 1990) (“{I]n passing the Clean Air Act
Amendments, Congress intended to stimulate the advancement of
pollution control technology.”); Husqvarna v. EPA, 254 F.3d 195 (D.C.

15

Technologies developed in response to this policy, such as
automobile emission control technologies, sulfur oxide
scrubbers, and NO,-removing SCR units, have reduced
emissions even as the American economy has grown several-
fold since 1970.

VI. STATE AND LOCAL AGENCIES NEED
CERTAINTY REGARDING FEDERAL
ENVIRONMENTAL REGULATION

For 36 years, the CAA has been interpreted to require
any challenge to nationally-applicable EPA regulations to be
filed within a limited time after promulgation and decided in
the United States Court of Appeals for the District of
Columbia Circuit. Harrison v. PPG Indus., Inc., 446 U.S.
578, 588-592 (1980); 1000 Friends of Maryland v. Browner,
265 F.3d 216, 223 (4" Cir. 2001); Massachusetts v. EPA, 415
F.3d 50, 53 (D.C. Cir. 2005); Ohio Public Interest Research
Group, Inc. v. Whitman, 386 F.3d 792, 799 (6 Cir. 2004);
U.S. v. Ho, 311 F.3d 589, 607 (5™ Cir. 2002); Indianapolis
Power & Light Co. v. EPA, 38 Fed. Appx. 613, 614 (D.C.
Cir. 2002); National Petrochemical & Refiners Ass'n Vv.
E.P.A., 287 F.3d 1130, 1150 (D.C. Cir. 2002); Environmental
Defense Fund v. Thomas, 870 F.2d 892, 896 (2 Cir. 1989).
Other federal environmental laws are patterned after the
CAA, limiting the time of filing for review. Resource
Conservation and Recovery Act (“RCRA”) § 7006, 42
U.S.C. § 6976 (a)(1); Comprehensive Environmental
Response, Compensation, and Liability Act (“CERCLA”) §
113(a), 42 U.S.C. § 9613(a). Surface Mining Control and
Reclamation Act of 1977, § 526(1), 30 U.S.C. § 1276(a)(1);
Toxic Substances Control Act, 15 U.S.C. § 2618(a)(1)(A)

Cir. 2001) (“Congress intended the agency to project future advances in
pollution control capability.”) (citing NRDC, 805 F.2d at 410).

16

(1998). CERCLA and RCRA also place exclusive
jurisdiction to review EPA regulations in the D.C. Circuit.

As a result, challenges to EPA regulations adopted
under the Clean Air Act have been resolved expeditiously
and with finality. As state and local air pollution control
officials, we believe this feature has been important to the
workability and success of the CAA.

Expeditious and final resolution of litigation against
EPA rules has allowed state and local agencies the certainty
they need in order to carry out their duties under the Clean
Air Act. Many CAA programs require state and local
agencies to develop complex regulatory structures on a
statutory timetable. See, e.g., 42 U.S.C. § 7410 (State
Implementation Pian); 42 U.S.C. § 7412() (Implementation
of Hazardous Air Pollutant program); (42 U.S.C. §
7429(b)(2) (Enforcement Plan for Solid Waste Combustion
Guidelines); 42 U.S.C. § 7471 (PSD program); 42 U.S.C. §§
7502 and 7511 (Nonattainment plan provisions); 42 U.S.C. §
7661 a(d) (Permit programs).

The lower court’s decision would unfortunately open
a door to collateral attack on EPA’s CAA regulations that
would make it difficult for a state or local agency to
administer its air pollution control programs in a rational
manner. Under the lower court decision, the members of
STAPPA and ALAPCO fear that no federal regulation would
ever have a settled and reliable meaning. To extend the
period of uncertainty over EPA regulations would make it
difficult for state and local agencies to meet statutory
deadlines. Thus affirming the lower court’s end run on
Section 307 of the CAA would weaken the ability of state
and local air pollution agencies, who best understand local
circumstances, to deal with air pollution within their
boundaries.

17

CONCLUSION

For the foregoing reasons, amici STAPPA and
ALAPCO support the petitioners’ position that the lower
court decision should be reversed.

Respectfully submitted.

JULY 21, 2006

Richard E. Ayres
Counsel of Record

AYRES LAW GROUP

1615 L Street, N.W., Suite 1350
Washington, D.C. 20036
202-452-9200

Counsel for Petitioner

State & Territorial Air Pollution
Program Administrators
(STAPPA) and the

Association of Local Air
Pollution Control Officials
(ALAPCO)

APPENDIX

APPENDIX A

Richard Rosen

Expert Testimony Report

On Behalf of the United States of America, the State-
Intervenor Plaintiffs, and the Citizen Plaintiffs

August 2, 2004 (Revised May, 4 2005)

In the United States District Court for the Southern District
of Ohio, Eastern Division

Civil Action No. C2-99-1182

United States of America v. American Electric Power
Service Corp.

Civil Action No. C2-99-1250

Ohio Citizen Action v. American Electric Power Service
Corp.

[Rosen Expert Report page 37]

10.2 Calculation #2: Actual Emissions Compared to
Projected Future Actual Emissions Based on Company
Projections

In this calculation, I examined AEP’s own projections
of re-gained availability heat rate, and capacity from each
generating unit that was expected to occur as a result of each
activity where that data was available in the relevant Capital
Improvement Requisition form (to the extent such
projections were made). I then translated that recovered
availability, heat rate, and/or capacity once the activity was
completed into a change in generation, and subsequently into
a change in emissions. For the 47 activities at the AEP units
studied, adequate data was only available for 33 activities as
of the present time. The results of these calculations appear
in Table 4.

[Rosen Expert Report page 38]

Table 4
NSR/PSD Net Emissions Increases
-Calculation #2-
Actual to Projected Future Actual Based on Company
Data
PM or
SO, NO, PMio
Activity
e CIR# (Tons per Year
AMI 12012 221 174 1
AM2 12130 104 82 0
12473
APCo
sus | 51 -13,286 0
(OPCo)
71448/
CD1 71516 11,592 4,182 -1.637
CD2 72201 608 154 2
CD3 72373 8,353 2,136 26
71449/
CD4 71517 11,094 3,887 -3,881
CD5 98066 621 154 2
CD6 98085 8,942 2,361 30
CRI 12502 316 386 2
CR2 12502 327 390 2
CR3 12502 323 385 2
CV1 75140 1,797 529 l
CV2 75246 1,879 554 ]
MIi 72462 268 125 l
MI3 72206 559 224 2
MRI] 72172 1,779 320 3

MR3 72173 2,141 386 4
72162/
MRS 72254/ 6,606 1,252 10
72258
72163/
MR7 72255/ 6,233 1,219 9
72259
MR8 72398 1,434 272 2
[Rosen Expert Report page 39]
71450/
MRI11 71505/ 25,915 4,845 -1,669
71665
MR12 72202 889 158 2
MR13 71966 7,368 1,440 27
MR 14 72372 12,902 2,434 33
12147/
SP1 12166 248 177 |
72421T
SP2 72466 255 172 l
SP3 72464 47 32 0
SP4 12148 273 181 l
SP5 72429 239 176 l
SP8 72393 477 267 3
TC2 31140 1,002 348 l

TC4

31737

926

-1,045

APPENDIX B
Ranajit (Ron) Sahu
Expert Testimony Report
On Behalf of the United States
August 1, 2002

In the United States District Court for the Middle District of
North Carolina

Civil Action No. 1:00 CV 1262
United States v. Duke Energy Corporation

[Sahu Expert Report page 37]

VI.1.2. PSD Emissions Comparison Tests
[Sahu Expert Report page 38]

1. Prior Two Year Actual Average Emissions Versus

tential t it
In this method, the actual emissions for the prior 24
continuous months (two years) before the modification!°
were calculated and compared with potential to emit for the
unit after modification. In other words, the Unit Calculations
A and B discussed earlier were performed and compared

2. Before and After Modification Emissions Difference

) jectio
In this method, the emissions “delta” is estimated by
comparing the baseline emissions as calculated using Unit
Calculation A (using the period 24 months prior to the
modification for modification when the WEPCO Rule did
not apply or using the 24 month period within the prior 60
month period with the highest emissions for modification
when the WEPCO Rule applied) with the company

[Sahu Expert Report page 39]

projection calculations conducted using Unit Calculation C
discussed earlier. In making this comparison, I used the

10 The smallest calculation time period is a calendar month. It is also
assumed that a particular modification was initiated and completed within
a specific outage that began on a certain date and ended on a certain date.
Depending on the starting date of the outage, either the previous full
calendar month (if the outage began towards the beginning of a calendar
month) or the month of the outage itself (if the outage began towards the
end of a calendar month) was used as the last month before the outage.

company projections for future years 9 and 10!! [in one case
(Buck 3) only years 8 and 9 were available and in another
case (Belews Creek Unit 2, 1999 Mod) years 8 and 9 were
used since year 10 had a non-representatively low capacity
factor presumably due to an anticipated turbine outage] with
the prior 24 month baseline.

3. Emissions Change Based on GADS Activity Factor Data
for Two Years Before Modification

In this method, the emissions change corresponding to a
particular modification was directly estimated based on
GADS-based activity factors such as recovered capacity,
appropriately adjusted for capacity or utilization factor, as
needed. In other words the Unit Calculation D discussed
earlier was used to estimate this emissions change directly.
For units that entered the PMP program, GADS loss data are
often sparse. This is because, even prior to entering PMP,
these units were not running very often and, there was ample
opportunity to make relevant repairs to components, as
needed, during such downtime.

!! The preferred choice to use years 9 and 10 (or 8 and 9 as noted above)
for this comparison was made based on several consideration: (a) Duke
has made projections as far as 10 years for a reason, namely that the 10
year planning horizon was a reasonable basis for future unit operations;
(b) in the case of the PMP units, Duke’s decision to gradually ramp up
the unit capacities factors in the years following PMP (essentially
converting these previously peaking or load-following units into base-
loaded units as its system load increased) rendered the choice of other
years (say years 1 and 2 or years 4 and 5, for example) moot since these
other choices would not be compatible with how Duke intended to run the
units in the foreseeable future; (c) years 9 and 10 were the farthest future
years with forecasted capacity projections that shed light on Duke’s
intended plan for running its units; and finally, (d) consistency in using
similar time frames for all units for purposes of making emissions
estimates.

[Sahu Expert Report page 42]

Table 1 - Summary Emissions Increase Results (Tons/Yr)

for PSD Applicability
Modification/
Compertoen Test Pollutant{1]
SO, NO, PM | PMjo{2]
PSD Significant
Emissions Rate 40 40 25 15
(SER)
SO, NO, PM | PMjo({2]
Modification #6-
Allen 1 (1989)
Comparison Test 1 | 11496.5 | 4538.1 | 1527.7} 1023.6
Comparison Test 2 | 3430.4 | 1857.1 | 620.3 415.6
Comparison Test 3 55.7 30.1 10.1 6.8
Modification #5-
Allen 2 (1988)
Comparison Test 1 | 12559.4 | 4957.7 | 2782.4| 1864.2
Comparison Test 2 | 2991.6 | 1610.3 | 690.1 462.4
Comparison Test 3 34.2 17.7 6.8 4.6
Modification #23-
Allen 3 (1994)
Comparison Test 1 | 15845.6 | 2377.0 | 1468.4| 983.8
Comparison Test 2 | 1705.0 - 237.4 158.8
Comparison Test 3 21.5 5.6 1.6 1.1
Modification # 3-
Allen 4 (1996)
Comparison Test 1 | 13594.2 | 2235.0 | 773.4 | 518.2
Comparison Test 2 | 260.1 - - -
Comparison Test3 | 195.3 65.0 11.3 7.6
Modification #4-
Allen 4 (1998)
Comparison Test 1 | 11124.6 | 2751.0 | 1330.3 | 891.3

Comparison Test 2 | 2114.6 | 872.9 | 597.0 | 400.0
Comparison Test 3 | 150.3 60.6 14.5 9.7
Modification #2-
Allen 5 (1996)
Comparison Test | | 14294.1 | 2210.9 | 1718.2 | 1151.2
Comparison Test 2 | 3324.4 | 191.2 | 408.7 | 273.8
Comparison Test 3 | 234.3 79.4 27.8 18.6
Modification #1-
Allen 5 (2000)
Comparison Test 1 | 8153.1 | 2395.1 - -
Comparison Test2 | 880.0 | 481.3 - -
Comparison Test 3 | 229.7 89.0 10.0 6.7
Modification #9-
Belews Creek |
(2000)
Comparison Test 1 | 14909.3 - - -
[Sahu Expert Report page 43]
Comparison Test 2 - - : .
Comparison Test 3 | 1319.8 537.2 35.5 23.8
Modification #8-
Belews Creek 2
(1996)
Comparison Test 1 | 33644.4 | 22678.3 | 1077.5 | 721.9
Comparison Test d :
2[3] y ;
Comparison Test3 ; 202.0 222.5 8.7 5.8
Modification #7-
Belews Creek 2
(1999)
Comparison Test 1 | 15719.2 - - -
Comparison Test : ¥
2(4) : J
Comparison Test3 | 331.3 147.3 11.0 7.4

10

Modification #12-
Buck (1994)

Comparison Test 1 | 6208.8 | 3063.6 | 369.4 | 247.5
Comparison Test2 | 873.4 278.7 44.6 29.9
Comparison Test 3 0.0 0.0 0.0 0.0
Modification #1 1-

Buck 4 (1994)

Comparison Test 1 | 2981.3 | 1471.0 | 169.3 113.4
Comparison Test 2 | 827.3 264.0 36.7 24.6
Comparison Test 3 4.8 2.4 0.2 0.1
Modification #10-

Buck 5 (1991)

Comparison Test 1 | 9767.9 | 3855.8 | 387.1 | 259.4
Comparison Test2 | 2415.9 | 1223.9 | 87.8 58.8
Comparison Test 3 97.7 49.5 3.6 2.4
Modification #28-

Buck 6 (1990 7
Comparison Te.. 1 | 9678.2 | 3179.8 | 249.5 | 167.2
Comparison Test2 | 361.1 356.3 2.1 1.4
Comparison Test 3 50.0 33.2 2.0 1.3
Modification #21-

Cliffside 1 (1993)

Comparison Test 1 | 6267.9 | 2249.2 | 503.8 | 337.5
Comparison Test2 | 528.8 272.2 51.4 34.4
Comparison Test 3 2.7 1.4 0.3 0.2
Modification #17-

Cliffside 2 (1993)

Comparison Test 1 | 5468.3 | 2158.5 | 759.8 | 509.1
Comparison Test 2 | 641.1 308.3 | 108.6 72.8
Comparison Test 3 0.0 0.0 0.0 0.0
Modification #18-

Cliffside 3 (1991)

1]

[Sahu Expert Report page 44]

Comparison Test 1 | 9183.8 | 3295.6 | 862.2 | 577.7
Comparison Test2 | 960.4 429.2 | 110.7 74.2
Comparison Test3 | 45.2 20.2 5.2 3.5
Modification #19-
Cliffside 4 (1991)
Comparison Test 1 | 6525.7 | 2341.8 | 637.5 | 427.1
Comparison Test2 | 771.9 395.3 89.1 59.7
Comparison Test 3 5.7 2.9 0.7 0.5
Modification #20-
Cliffside 5
(1992)(4]
Comparison Test 1 | 30934.4 | 10164.1 | 1339.1 | 897.2
Comparison Test 2 | 10339.1 | 4394.2 | 53.1 35.6
Comparison Test
314] 0.0 0.0 0.0 0.0
Modification #20-
Cliffside 5
(1995)[4]
Comparison Test 1 | 24077.8 | 3089.8 | 2496.1 | 1672.4
Comparison Test 2 | 5687.6 | 2464.6 - -
Comparison Test 3 | 177.7 48.3 14.1 9.4
Modification #22-
Dan River 3 (1998)
Comparison Test 1 | 10755.8 | 4245.7 | 609.7 | 408.5
Comparison Test 2 | 2160.0 | 1065.8 | 147.3 98.7
Comparison Test3 | 617.9 304.9 51.2 34.3
Modification #29-
Marshall 1 (1992)
Comparison Test 1 | 14217.7 | 4581.1 | 272.5 | 182.6
Comparison Test 2 | 4067.5 | 1491.3 - -
Comparison Test3 | 212.9 83.3 8.4 5.6
Modification #1 5-

12

Marshall 2 (1989)

Comparison Test 1 | 14146.0 | 4456.2 | 1198.9 | 803.3
Comparison Test2 | 2690.8 | 1091.9 | 42.3 28.3
Comparison Test 3 | 873.2 358.1 62.2 41.7
Modification #16-

Marshall 2 (1996)

Comparison Test 1 | 10356.4 | 373.6 | 1673.7 | 1121.4
Comparison Test 2 | 5233.8 - 924.8 | 619.6
Comparison Test3 | 131.3 37.0 9.1 6.1
Modification #14-

Marshall 3 (1999)

Comparison Test 1 | 19530.2 | 4107.9 | 466.4 | 312.5
Comparison Test 2 | 502.2 188.3 88.4 59.2
Comparison Test 3 | 793.7 280.9 19.5 13.1

[Sahu Expert Report page 45]

Modification #13-

Marshall 4 (1990)

Comparison Test 1 | 22399.4 | 7166.8 | 2569.2 | 1721.4
Comparison Test 2 | 7347.2 | 2897.7 | 942.2 | 631.3
Comparison Test 3 | 1299.7 | 518.2 | 113.4 76.0
Modification #24-

Lee 3 (1989/90)

Comparison Test 1 | 9861.7 | 3387.2 | 227.5 | 152.4
Comparison Test 2 | 488.2 380.9 17.5 11.7
Comparison Test 3 | 162.8 78.7 4.6 3.1
Modification #25-
Riverbend 4 (1990)

Comparison Test 1 | 8691.3 | 2859.0 | 137.8 92.3
Comparison Test 2 | 1582.2 | 715.6 35.6 23.9
Comparison Test 3 93.6 42.3 2.1 1.4
Modification #26-

13

Riverbend 6 (1991)

Comparison Test | | 15395.7 | 5064.4 | 482.9 | 323.5

Comparison Test 2 | 2066.9 | 1247.2 | 192.0 | 68.3

Comparison Test 3 | 312.7 | 188.7 | 15.4 10.3

Modification #27-
Riverbend 7 (1992)

Comparison Test | | 10678.6 | 3512.7 | 340.1 | 227.9

Comparison Test 2 | 4215.2 | 1650.1 | 136.7 | 91.6

Comparison Test3 | 313.1 122.6 10.2 6.8

Notes:

[1] “-“ denotes a negative value or reduction in the
comparison for that case. In many such cases, the NO,
comparisons show a reduction because of the installation or
planned installation of low-NO, technologies at that unit that
were factored into the calculation of future projected NO,
emissions. PM emissions were somewhat erratic given the
significant variability in the annual PM source test results
that were used in the calculations.

[2] PMio was estimated as 67% of PM emissions, per AP-42,
Table 1.1-6.

[3] For this modification, it should be noted that its capacity
factor in the baseline year as well as in the projection years
was generally high given that it is a base loaded unit. For
example its baseline year capacity factor was around 73%
while its average post-mod year 1/2 and year 9/10 capacity
factor projection were 76% and 78.5%, respectively. Even
though there is a capacity factor increase, there appears to be
a reduction in the projected SO, emissions in the projected
years as compared to the baseline period because the sulfur
content in the coal in the baseline period (i.e., 24 month
period with the highest SO, emissions for this potentially
WEPCO Rule-eligible unit) was higher (i.c. 0.99%) than in
the years preceding the modification (0.83%) and the latter

14

was used to make the future projections, giving Duke the
benefit of lower sulfur content in the future, even though this
low sulfur content is not enforceable via permits or other
means. If, on the other hand, an average sulfur content for
the entire five year period preceding the modification
(0.89%) is used for all calculations (i.e. baseline actual and
future projections[)], there would be an increase in
Comparison Test 2 for this case.

[4] Although the complaint listed the modification as having
occurred in 1992 and 1995, emissions calculations are
provided for both 1992 and 1995 changes separately. The
lack of GADS based losses attributable to the economizer
prior to the 1992 modification (in which the economizer was
replaced given its documented [see Bates 62CS001] poor
performance in preceding years) needs further discussion.
Closer inspection of the GADS data show that this base load,
low heat rate (i.e., economically efficient) unit was

[Sahu Expert Report page 46]

not operating for a significant portion of time preceding the
1992 modification and was listed as being in reserve
shutdown. It is possible that repairs to the malfunctioning
economizer were made during periods of reserve shutdown
and therefore such periods of time did not get attributed to
the economizer repair.

15

ae
tA Vy
nf t* kin o*

a 1
Yas ak De
* 5 ef 1, "ed

‘

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0237%3A42. Public record. Not legal advice.