Eugene M. Trisko 

Attorney at Law* 

P.O. Box 596 

Berkeley Springs, WV 25411 

(304) 258-1977 

(301) 639-5238 (Cell) 

emtrisko@earthlink.net

 *Admitted in DC

Susan Weirman January 9, 2008 

Executive Director 

MARAMA 

8600 LaSalle Road 

Suite 636 

Towson, MD 21286. 

By E-Mail Transmission 

Re: ACCCE Comments on “Public Health Benefits of Reducing GroundLevel Ozone and Fine Particulate Matter in the Northeastern U.S.” 

Dear Susan: 

 I am writing on behalf of the American Coalition for Clean Coal 

Electricity (“ACCCE”) regarding the Draft Report by NESCAUM, “Public 

Health Benefits of Reducing Ground-level Ozone and Fine Particulate 

Matter in the Northeastern U.S.” (November 14, 2007). ACCCE is the 

successor organization to CEED, effective January 1, 2008. The 

NESCAUM Draft Report was cited in support of various MANE-VU 

regional haze initiatives at the MANE-VU stakeholders meeting on 

November 15, 2007. 

ACCCE is a national membership organization representing major 

U.S. railroads, coal producers, electric generators and numerous other 

industrial firms. ACCCE members have direct and substantial interests in 

the production and transportation of coal, and in coal-based electric 

generation in the Northeast and throughout the United States. Through 

CEED, ACCCE has contributed several comments to the MANE-VU 

regional haze planning process, and has participated in both the OTC and 

MANE-VU stakeholder processes. 
2

Summary of Comments 

ACCCE is pleased that all of the Class I areas within MANE-VU are 

expected to meet or to surpass their EPA-recommended “glide path” targets 

for achieving reasonable progress toward regional haze goals, based on 

emission reductions resulting from EPA’s Clean Air Interstate Rule (CAIR) 

and other federal and state air quality programs.1

 We are not persuaded that 

any of the proposed controls on electric generating units discussed in the 

NESCAUM report - within MANE-VU or in other RPOs - are warranted in 

view of the extent of visibility improvement expected at MANE-VU Class I 

areas under current law. 

We are more concerned about the policy implications of the 

NESCAUM draft report, assessing the potential health benefits of control 

strategies to improve visibility at Class I parks and wilderness areas, and to 

achieve air quality levels below those required by U.S. EPA’s current and 

proposed ambient standards for ozone and PM2.5. The latter analyses may 

be appropriate for U.S. EPA to consider in the context of its regular reviews 

of the adequacy of the NAAQS. Our comments here focus particularly on 

NESCAUM’s BART and “167 Stack” analyses using the BenMAP model. 

We believe that NESCAUM’s analyses of potential BART and “167 Stack” 

emission controls on electric generating units are deficient, or are otherwise 

objectionable, in several key respects: 

1) The Clean Air Act’s visibility protection program for Class I parks 

and wilderness areas is not intended to provide public health benefits 

such as those resulting from implementation of the National Ambient 

Air Quality Standards. As implemented through the 1999 Regional 

Haze Rule and related EPA regulations, the visibility protection 

program provides welfare-related benefits in the form of improved 

visibility, and protection against visibility deterioration, at protected 

Class I areas. 

2) NESCAUM’s analysis of the potential health benefits of alternative 

control strategies is not required or even recommended by current 

U.S. EPA guidance on assessing reasonable progress toward regional 

haze goals. 

 

1

 See, C. Salmi and G. Kleiman, “The MANE-VU Approach to Improving Visibility,” 

MANE-VU Stakeholder Briefing, November 15, 2007 (available at 

http://www.manevu.org/meetings.asp#). 
3

3) NESCAUM’s estimates of potential health benefits from BART and 

“167 Stack” control strategies overlook potential offsetting ambient 

air quality effects when emission trading is allowed. 

 

4) NESCAUM’s assumption that “CAIR-Plus” control strategies could 

be imposed with restrictions on emission trading is inconsistent with 

relevant legal precedent, would undermine the cost-effectiveness of 

the CAIR program, and could lead to the premature retirements of 

many smaller generating units that are not economic retrofit 

candidates. 

5) NESCAUM likely has underestimated the extent of emission 

reductions associated with implementation of CAIR, and thus has 

overestimated the extent of air quality improvement resulting from its 

BART and “167 Stack” strategies. 

Each of these issues is addressed in more detail below. 

Misleading health benefits assessment

NESCAUM relies on the BenMAP desktop PC model to support 

claims that implementation of BART or “167 Stack” control strategies 

would generate significant public health benefits within and outside of the 

MANE-VU region. 

NESCAUM’s calculations suggest that the “167 Stack” strategy could 

generate $6.5 billion in annual health benefits within MANE-VU in 2018, 

primarily due to reduced premature mortality. Benefits of $2.1 billion in the 

VISTAS region and $2.2 billion in the Midwest RPO states also are 

estimated.2

 

ACCCE does not agree with the methodology or assumptions 

underlying the BenMAP analysis, for reasons discussed in comments 

previously submitted to the Midwest RPO by Cambridge Environmental,3

and attached here. We note that similar analyses of “CAIR-Plus” strategies 

evaluated for MRPO by Stratus Consulting in 2006 also presented 

alternative modeling results based on unrestricted emission trading. 

 

2

 NESCAUM, Draft Report at 4-11,12. 

3

 Dr. Laura Green, Cambridge Environmental Inc., “Comments on ‘Benefit Study of 

MRPO Candidate Control Options for Electricity Generation,’ (November 17, 2006). 
4

Stratus’ findings for MRPO, summarized in the IPM cases modeled 

below, indicate that the potential downwind impacts of emissions “leakage” 

from the MRPO region largely offset the benefits of controls imposed within 

the MRPO. When unrestricted emission trading is permitted, the emission 

reductions resulting from CAIR-Plus controls within the MRPO region 

generate tradable allowances that can be sold outside the region. The Stratus 

analysis illustrates the effects of such trading in states outside the MPRO 

region, based on IPM modeling of annual PM2.5 concentrations: 

Modeled PM2.5 Impacts from MRPO CAIR-Plus Strategies 

with Interstate Emissions Trading 

Source: Stratus Consulting, Inc. (Report prepared for MRPO, 2006).

 
5

Inconsistencies with U.S. EPA Guidance

NESCAUM’s assessment of the potential health benefits of the EGU 

strategies is not called for by current U.S. EPA guidance on measuring 

reasonable progress toward regional haze goals.4

 EPA’s recent guidance 

discusses the four statutory factors to be considered in determining 

appropriate source controls to achieve reasonable progress goals. In fact, 

EPA makes no reference whatsoever to “public health” as a consideration. 

The only reference to “health” is to the health of affected industries: 

“The first factor to take into consideration is the “costs of 

compliance.” In this context we believe that the cost of 

compliance factor can be interpreted to encompass the cost of 

compliance for individual sources or source categories, and 

more broadly the implication of compliance costs to the health 

and vitality of industries within a state.”5

 ACCCE agrees that public health considerations are relevant to state 

strategies for attaining health-protective primary National Ambient Air 

Quality Standards for pollutants such as ozone and PM2.5. However, public 

health is not a relevant consideration for strategies to achieve welfare-related 

reasonable progress toward visibility improvement goals at Class I national 

parks and wilderness areas. 

Constraints on emissions trading

The only means to confine the emissions reductions and associated air 

quality benefits due to the application of “CAIR-Plus” strategies is to limit 

emissions trading of surplus allowances outside affected states. NESCAUM 

apparently has assumed just such limitations in its analyses of these 

strategies.6

 

4

 U.S. EPA, “Guidance for Setting Reasonable Progress Goals Under the Regional Haze 

Program” (June 1, 2007). 

5

 Id., at 18. 

6

 See, e.g., NESCAUM Draft Report at Figure 4-5 (average change in 24-hour PM2.5 due 

to 167 Stack emission reduction.) There is no corresponding analysis of the offsetting air 

quality impacts of the sale of excess allowances that may be created by the 167 Stack 

strategy, comparable to the IPM modeling for MRPO discussed above. 
6

Requiring 90% emission reduction levels on 110 units (of 246 total 

units covered by the “167 Stack” strategy) projected by the IPM model to be 

uncontrolled or partially controlled in 2018 would require the retrofit of 

scrubbers on numerous older and smaller units that are not economic to 

retrofit. The cost-effectiveness of the CAIR program depends on the ability 

to concentrate retrofit controls on newer and larger units, using emission 

allowances to offset a portion of the emissions of uneconomic units. 

NESCAUM should provide a credible assessment of the potential 

impact of its “167 Stack” proposal on the premature retirement of the older 

and smaller units that are not retrofitted with scrubbers in the IPM model, 

including impacts on natural gas utilization and system reliability. Impeding 

emissions trading and mandating scrubber retrofits on units that are not 

economic to retrofit would severely undermine the cost-effectiveness of the 

CAIR program while leading to potentially unintended consequences such as 

sharp natural gas price increases. 

 ACCCE also questions the legality of constraints on emissions trading 

in light of the decision in Clean Air Markets Group v. Pataki, 194 F. Supp. 

2d 147, 160 (N.D.N.Y. 2002), aff’d, 338 F.3d 82 (2d Cir. 2003). In Clean 

Air Markets Group (CAMG), plaintiffs objected to a New York statute 

seeking to limit the geographic sale of Title IV sulfur dioxide emissions 

allowances to certain upwind states. Plaintiffs argued that New York’s 

allowance trading restrictions were impermissible under the Clean Air Act 

and various provisions of the U.S. Constitution, including the Supremacy 

and Commerce clauses. 

 The Commerce Clause implications of potential restrictions on the 

trading of allowances for visibility protection need to be carefully 

considered by MANE-VU states. Where a state law or regulation is found to 

be discriminatory, courts will employ strict scrutiny, and the defendant must 

“show that it advances a legitimate local purpose that cannot be adequately 

served by reasonable nondiscriminatory alternatives.” Notwithstanding the 

underlying legislative or regulatory purpose, however laudable, a statute or 

regulation that discriminates against commerce is protectionist and violates 

the Constitution. If a plaintiff can demonstrate that a regulation discriminates 

against interstate commerce, the burden of proof shifts to the defendant to 

demonstrate that there are no other non-discriminatory means to advance a 

legitimate local interest. 
7

In CAMG, the 2d Circuit upheld the district court decision finding that 

New York’s statute was unconstitutional and was preempted by the Clean 

Air Act. The 2d Circuit summarized the holdings of the lower court before 

affirming the decision in favor of plaintiffs: 

Because SO2 emissions can travel hundreds of miles in the wind, much of 

the acid deposition in the Adirondacks results not from SO2 emissions in 

New York, but, rather, from SO2 emissions in fourteen “upwind” states. 

These states include New Jersey, Pennsylvania, Maryland, Delaware, 

Virginia, North Carolina, Tennessee, West Virginia, Ohio, Michigan, 

Illinois, Kentucky, Indiana, and Wisconsin. 

In 2000, the New York legislature sought to address this problem by 

passing the Air Pollution Mitigation Law, N.Y. Pub. Serv. L. § 66-k 

(“section 66-k”). Pursuant to this statute, the New York State Public 

Service Commission (“PSC”) is required to assess “an air pollution 

mitigation offset” upon any New York utility whose SO2 allowances are 

sold or traded to one of the fourteen upwind states. N.Y. Pub. Serv. L. § 

66-k(2). The amount assessed is equal to the amount of money received by 

the New York utility in exchange for the allowances. Id. Moreover, the 

assessment is made regardless of whether the allowances are sold directly 

to a utility in an upwind state or are subsequently transferred there. Id. 

Accordingly, in order to avoid the assessment, New York utilities must 

attach a restrictive covenant to any allowances they sell that prohibits their 

subsequent transfer to any of the fourteen upwind states. See N.Y. Pub. 

Serv. L. § 66-k(3). 

With respect to preemption, the Court first determined that section 66-k is 

not expressly preempted by Title IV. Id. at 157. Next, it held that Title IV 

is not “sufficiently comprehensive” to preempt all state law in the field of 

air pollution control. Id. Nevertheless, the District Court concluded that 

section 66-k was preempted because it “actually conflicts with” Title IV 

by creating “an obstacle to the accomplishment and execution of the full 

purposes and objectives of Congress” in passing the Act. Id. at 158 

(quoting Hillsborough County, Florida v. Automated Med. Labs., Inc., 471 

U.S. 707, 713 (1985) (internal quotation marks and citation omitted)). The 

Court reasoned that “New York’s restrictions on transferring allowances 

to [utilities] in the Upwind States is contrary to the federal provision that 

allowances be tradeable to any other person.” Id. It also noted that 

“Congress considered geographically restrict[ing] allowance transfers and 

rejected it,” and that “[t]he EPA, in setting regulations to implement Title 

IV, also considered geographically restricted allowance trading and 

rejected it over New York State’s objections.” Id. (citations omitted). 

The District Court next considered CAMG’s alternative argument that 

section 66-k violates the Commerce Clause of the Constitution. The Court 
8

concluded that section 66-k “is a constitutionally invalid protectionist 

measure” because “[its] explicit restriction on the transfer of SO2 

allowances to [utilities] in Upwind States erects . . . a barrier against the 

movement of interstate trade.” Id. at 161; see also City of Philadelphia v. 

New Jersey, 437 U.S. 617, 624 (1978) (holding that “where simple 

economic protectionism is effected by state legislation, a virtually per se 

rule of invalidity has been erected”). The Court further held that, even if 

the statute were not merely protectionist, it would still violate the 

Commerce Clause because “it cannot be ‘fairly . . . viewed as a law 

directed to legitimate local concerns, with effects upon interstate 

commerce that are only incidental.’” Hillsborough, 471 U.S. at 161 

(quoting City of Philadelphia, 437 U.S. at 624); see also Pike v. Bruce 

Church, Inc., 397 U.S. 137, 142 (1970) (“Where the statute regulates 

evenhandedly to effectuate a legitimate local public interest, and its effects 

on interstate commerce are only incidental, it will be upheld unless the 

burden imposed on such commerce is clearly excessive in relation to the 

putative local benefits.”). 

In light of its conclusion that section 66-k violates the Supremacy Clause 

and the Commerce Clause of the Constitution, the District Court denied 

defendants’ motions for summary judgment, granted CAMG’s crossmotion for summary judgment, and enjoined defendants from enforcing 

section 66-k. ... 

Although section 66-k does not technically limit the authority of New 

York utilities to transfer their allowances, it clearly interferes with their 

ability to effectuate such transfers. First, by requiring utilities to forfeit 

one hundred percent of their proceeds from any allowance sale to a utility 

in an upwind state, section 66-k effectively bans such sales. Moreover, the 

only way for New York utilities to ensure that they will not be assessed 

pursuant to section 66-k is to attach to every allowance they sell a 

restrictive covenant that prohibits the subsequent transfer of the allowance 

to an upwind state. Because such a restrictive covenant indisputably 

decreases the value of the allowances, section 66-k clearly “restrict[s] or 

interfere[s] with allowance trading,” 40 C.F.R.§ 72.72(a). In sum, section 

66-k impermissibly “interferes with the methods by which [Title IV] was 

designed to reach [the] goal” of decreasing SO2 emissions, and therefore it 

“stands as an obstacle” to the execution of Title IV’s objectives. 

International Paper, 479 U.S. at 494 (emphasis added). 

Defendants argue that, even if section 66-k “stands as an obstacle” to the 

execution of Title IV’s objectives, see Hillsborough County, 471 U.S. at 

713, it does not “actually conflict” with federal law because it is expressly 

permitted by two other statutory provisions of the Clean Air Act. First, 

defendants draw our attention to 42 U.S.C. § 7416, a savings clause that 

preserves state authority “to 
9

adopt or enforce (1) any standard or limitation respecting emissions of air 

pollutants or (2) any requirement respecting control or abatement of air 

pollution.” Defendants argue that section 66-k is a “requirement respecting 

control or abatement of air pollution,” id., that is not preempted because 

it “simply goes further than the relevant federal law.” Pataki Br. at 26. 

But, as properly noted by the District Court, section 66-k does not set 

requirements for air pollution control or abatement within New York, but, 

rather, is an attempt to “control emissions in another state.” CAMG, 194 F. 

Supp.2d at 159. Nothing in the language of 42 U.S.C. § 7416 permits such 

legislation. 

Defendants also maintain that section 66-k is authorized by 42 U.S.C. 

§7651b(f), which provides in relevant part that the allowance trading 

system “shall [not] be construed as requiring a change of any kind in any 

State law regulating electric utility rates and charges or affecting any State 

law regarding such State regulation or as limiting State regulation . . . 

under such a State law.” But section 66-k does not regulate “utility rates 

and charges” and it does not “affect[] any State law regarding” the 

regulation of “utility rates and charges.” Accordingly, 42 U.S.C. 

§7651b(f) does not save section 66-k from preemption. 

In sum, section 66-k is preempted by Title IV of the Clean Air Act 

Amendments of 1990 because it impedes the execution of “the full 

purposes and objectives” of Title IV, see Hillsborough County, 471 U.S. 

at 713, and because it is not otherwise authorized by federal law. 

Accordingly, section 66-k violates the Supremacy Clause of the United 

States Constitution.” 

 The decision in CAMG is a controlling precedent against any 

proposed restrictions on trading of Title IV/CAIR SO2 allowances for 

purposes of achieving progress toward visibility protection goals. New 

York’s purposes in restricting allowance sales to certain states to help 

protect its ecosystems against welfare-related acid deposition are quite 

similar to state objectives in limiting allowance trading for visibility 

protection purposes. 

Underestimated Emission Reductions

 ACCCE believes that the emission projections that NESCAUM relied 

upon to derive estimates of the reductions potentially associated with its 

BART and “167 Stack” strategies are inaccurate, and do not properly reflect 
10

the extent of reductions likely to occur under CAIR and other federal and 

state programs by 2018. 

Specifically, as other comments will attest, the estimates of emission 

reductions at 14 BART units do not fully account for all CAIR-related 

reductions likely to occur at covered EGU facilities by 2018. Similarly, 

NESCAUM’s methodology for estimating the incremental emissions 

reductions from its “167 Stack” strategy underestimates the degree of 

controls likely to result from CAIR by 2018, because many of the scrubber 

installations to be accomplished in this timeframe have not yet been 

announced, or otherwise are not reflected in the outdated VISTAS IPM 2.1.9 

inventory. 

Regional Fuels Proposals

 NESCAUM also has estimated the potential visibility and health 

benefits associated with alternative low-sulfur fuels strategies for the 

Northeast. These controls would reduce sulfur in home heating fuels to 

levels of 500 ppm (S1) or 15 ppm (S2), resulting in estimated SO2 

reductions of 110,000 to 140,000 tons for distillate oil units in the 

Northeast.7

 Costs per ton reduced are estimated in a range of $500 to 

$5,000. Most of these emission reductions would occur at residential and 

commercial oil furnaces. 

 Most of the PM2.5 air quality benefits resulting from these proposals 

appear to result from implementation of the 500 ppm standard, with little 

incremental benefit from the more stringent 15 ppm alternative.8

 These 

benefits are concentrated in the eastern portion of MANE-VU, where most 

of the emission reductions would occur. 

 ACCCE takes no position on the need for these low-sulfur fuel 

strategies for visibility protection purposes, but notes that they would apply 

to largely unregulated sources of sulfur dioxide emissions and could produce 

substantial emissions reductions potentially relevant for other purposes, such 

as meeting PM2.5 standards. We respectfully suggest that MANE-VU states 

 

7

 Salmi and Kleiman, supra n. 1 at 14. 

8

 Id., at 17-18. 
11

give careful consideration to the relative costs and benefits of the S1 and S2 

strategies. 

 ACCCE appreciates the opportunity to submit these comments. 

Please post them on an appropriate section of the MANE-VU or MARAMA 

website. 

 Sincerely, 

 /s/ 

 Eugene M. Trisko 

Attachment 

Cc: Anna Garcia, OTC 

Gary Kleiman, NESCAUM 

 Tad Aburn, MDE 

 Joyce Epps, PADEP 

 Chris Salmi, NJDEP 

 Rob Sliwinski, NYSDEC 

 Richard Valentinetti, VTDEC