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OAR Box 1778 

Prepped by Ollie Stewart 

Document Number: 

228) 11-1-8 

Docket Number: 

A-90-06 

Printed 10/28/2008 9:51:02 AM Sheet 228 of 276 
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IN THE UNITED STATES COURT OF APPEALS 

FOR THE SEVENTH CIRCUIT 

Nos. 88-3264, 

89-1339 

fol 

la 

II-I-8 

WISCONSIN ELECTRIC POWER COMPANY, 

Petitioner, 

v. 

WILLIAM K. REILLY, Administrator, 

United States Environmental 

Protection Agency, et al.. 

Respondents. 

ON PETITIONS TO REVIEW 

FINAL ACTION OF THE 

UNITED STATES ENVIRONMENTAL 

PROTECTION AGENCY 

BRIEF OF AMICI CURIAE 

ALABAMA POWER COMPANY, ET AL., 

THE ALUMINUM ASSOCIATION, INC., 

AMERICAN IRON AND STEEL INSTITUTE, 

AMERICAN PETROLEUM INSTITUTE, 

NATIONAL COAL ASSOCIATION, 

BECHTEL POWER CORPORATION, 

GENERAL ELECTRIC COMPANY, and 

WESTINGHOUSE ELECTRIC CORPORATION 

May 22, 1989 
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TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES i 

INTEREST OF AMICI 1 

INTRODUCTION 1 

STATEMENT OF THE CASE 3 

I. The Historical Approach to 

Clean Air Act Regulation 3 

A. Reconstruction 4 

B. Modification 6 

1. NSPS 6 

2. PSD 7 

II. The Port Washington Decision 8 

ARGUMENT 10 

I. The Port Washington Decision Changes 

the Scope of EPA's NSPS and PSD Programs 

Without Notice or Opportunity for Comment 11 

II. The Expanded Scope of EPA's New Source Programs 

as Reflected in the Port Washington Decision Will 

Have a Substantial, Adverse Impact on This Nation's 

Basic Industry and on the Public 15 

CONCLUSION 20 
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V* 

TABLE OF AUTHORITIES 

CASES: page 

St. James Hospital v. Heckler, 760 F.2d 1460 

(7th Cir. 1985) 15 

STATUTES: 

Clean Air Act, 42 U.S.C. SS 7401, et seg. (1982) 

S 110, 42 U.S.C. S 7410 3 

S 111(a)(1), 42 U.S.C. S 7411(a)(1) 18 

S 111(a)(4), 42 U.S.C. S 7411(a)(4) 6 

S 111(b)(1), 42 U.S.C. S 7411(b)(1) 4 

S 111(b)(6), 42 U.S.C. S 7411(b)(6) 3, 4 

S 161, 42 U.S.C. S 7471 4 

S 165(c), 42 U.S.C. § 7475(c) 16 

S 168(b), 42 U.S.C. S 7478(b) 3, 4 

LEGISLATIVE HISTORY: 

H.R. Rep. No. 294, 95th Cong., 1st Sess. (1977), 

reprinted in 1977 U.S. Code Cong. & Admin. 

News 1264 4 

REGULATIONS: 

40 C.F.R. S 52.21 (1988) 3 

40 C.F.R. S 52.21(b)(2) (1988) 7 

40 C.F.R. S 52.21(b)(2)(iii)(f) (1988) 11 

40 C.F.R. S 52.21(i)-(o) (1988) 16 

40 C.F.R. S 52.21(r) (1988) 16 

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V 

v r 

Page 

40 C.F.R. S 60.14(e)(1) (1988) 7, 11 

40 C.F.R. S 60.14(e)(2) (1988) 11 

40 C.F.R. S 60.15 (1988) 7 

40 C.F.R. S 60.15(f) (1988) 5 

4C-C.F.R. S 60.15(f)(2) (1988) 5 

40 C.F.R. Part 60 (1988) 3 

40 C.F.R. S 124.3 (1988) 16 

FEDERAL REGISTER: 

39 Fed. Reg. 36948 (1974) 4, 11 

40 Fed. Reg. 58416 (1975)' 4 

40 Fed. Reg. 58417 (1975) 5 

40 Fed. Reg. 58418 (1975) 5 

44 Fed. Reg. 33591 (1979) 16 

44 Fed. Reg. 51953 (1979) 6 

45 Fed. Reg. 52676 (1980) 7 

45 Fed. Reg. 52703 (1980) 6 

45 Fed. Reg. 52704 (1980) 7 

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INTEREST OF AMICI 

This brief amici curiae is filed on behalf of Alabama 

Power Company, et, a_l. (63 individual utility companies, the 

Edison Electric Institute, the National Rural Electric 

Cooperative Association, and the American Public Power 

Association); the Aluminum Association, Inc.; the American Iron 

and Steel Institute; the American Petroleum Institute; the 

National Coal Association; Bechtel Power Corporation; the General 

Electric Company; and Westinghouse Electric Corporation. These 

organizations and companies and their interests in this 

proceeding are described in the Motion for Leave To File a Brief 

Amici Curiae. 

INTRODUCTION 

An industrial facility is designed with a given 

production capacity to meet expected demand. The facility is 

expected to operate as designed for as long as it functions in an 

economic fashion. 

The life of any industrial facility is characterized by a 

continuous process of equipment deterioration, in ways that are 

in some cases anticipated and in others unanticipated. When 

equipment breaks, it is repaired or replaced to allow continued 

normal operation of the facility. The economic life of a 

facility may ultimately be limited by the physical life of the 

materials used in building the facility or by advances in 

technology that render its equipment obsolete. Absent such 

developments, repair or replacement of deteriorated equipment to 

maintain or to restore original design capacity is a fact of 
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industrial life, and'is essential to preserving this country's 

economic position in competitive world markets. 

The schedule followed at industrial facilities to repair 

or to replace deteriorated equipment varies widely and depends on 

many factors. Repairs needed to maintain the productive capacity 

of a facility may be made immediately or deferred depending on, 

inter alia. (1) product demand (e.g., if the facility is critical 

to meet demand in the near term, it may be necessary to continue 

to operate it with deteriorated equipment at a lower capacity), 

(2) financial and economic considerations (e.g., the availability 

of credit now versus in the future), and (3) the company's 

overall maintenance schedule (e.g., when the next "outage" of the 

facility is scheduled). 

As discussed below, with the sole exception of the 

Environmental Protection Agency's ("EPA" or "Agency") rule on 

"reconstruction" of existing facilities (a rule that is not at 

issue here), EPA has never before regulated the life of existing 

facilities or the schedule for equipment repair and replacement 

at those facilities. In its decision on the Port Washington 

project of the Wisconsin Electric Power Company ("WEPCo"), 

however, EPA seeks to regulate repair and replacement projects 

designed to restore lost capacity and to maintain efficient and 

reliable facility operation. EPA's decision represents a 

fundamental change in the environmental regulation of existing 
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sources, a change that is contrary to the Clean Air Act ("CAA" or 

"Act"),- its implementing regulations, and prior Agency 

decisions. 

STATEMENT OF THE CASE 

I. The Historical Approach to Clean Air Act Regulation 

Under S 110 of the Act, new and existing sources are 

subject to controls necessary to ensure, at a minimum, attainment 

and maintenance of the "national ambient air quality standards" 

(NAAQS). In addition, new sources, and existing sources that 

have been "modified" to an extent that they are considered new 

sources, are subject to stringent technology-based air quality 

2/ 

controls under "new.source performance standards" ("NSPS")- and 

3/ 

the "prevention of significant deterioration" ("PSD") program.-

1/ 42 U.S.C. S 7401, et seg. (1982). For convenience, all 

citations to the Act will be to sections of the Act. Parallel 

citations to the U.S. Code are provided in the Table of 

Authorities. 

2/ For purposes of the NSPS program, "new sources" are those 

sources or "modifications" of existing sources on which 

construction began after the date of proposal of NSPS for the 

source category. See CAA S 111(b)(6). During the 1970s and 

1980s, SPA established NSPS for many industrial source 

categories, including electric utilities, industrial boilers, 

petroleum refineries, petroleum storage vessels, various 

categories of chemical plants, smelters, steelmaking facilities, 

coal preparation plants, automobile surface coating operations, 

and others. See 40 C.F.R. Part 60 (1988). 

3/ The PSD program applies to newly constructed major 

sources or "major modifications" of existing sources on which 

construction commenced after January 1, 1975. See CAA S 168(b). 

The PSD program requires case-by-case permitting of new sources 

and "major modifications" of existing sources, including 

installation of stringent "best available control technology" 

(BACT) standards and demonstration of compliance with stringent 

ambient air quality "increments." See generally 40 C.F.R. 

S 52.21 (1988). 
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The Act provides that NSPS and PSD requirements apply 

prospectively, to sources on which construction commences after 

4/ those requirements become effective.- The Act requires EPA to 

implement through rulemaking this congressional distinction 

between new (or "modified") and existing sources.-

A. Reconstruction 

With respect to the NSPS program, EPA in 1974 proposed 

rules to address its concern that companies might avoid 

application of NSPS by "perpetuati[ng] . . . [the life of an 

existing] facility [e.g., by reconstructing that facility], 

instead of replacing it at the end of its useful life with a 

newly constructed affected facility."- EPA promulgated this 

7/ NSPS "reconstruction" rule in 1975.- In doing so, EPA 

4/ CAA SS 111(b)(6), 168(b). In addressing the NSPS 

program, for example, Congress emphasized that "[b]uilding 

control technology into new plants at [the] time of construction 

will plainly be less costly th[a]n requiring retrofit" of 

existing facilities with these controls. H.R. Rep. No. 294, 95th 

Cong., 1st Sess. 185 (1977), reprinted in 1977 U.S. Code Cong. S. 

Admin. News 1264. 

15/ CAA S 111(b)(1) (requiring that the EPA Administrator 

implement NSPS by regulation); id. S 161 (requiring that the 

Administrator implement the PSD program by regulation). 

6/ 39 Fed. Reg. 36948 (1974). In proposing this rule, EPA 

noted that it was concerned with efforts "to reconstruct [an old 

existing facility] by using a minor part of it and replacing the 

remaining portion." Id. Since this was not "generally the 

practice of the industries currently covered by standards of 

performance," EPA indicated that it expected this provision to 

"have little, if any impact on industries . . . covered." Id. 

EPA indicated that any additional "replacements which will be 

considered reconstruction will be identified in the subparts" for 

individual industries, as new NSPS are promulgated and old NSPS 

revised. Id. 

7/ 40 Fed. Reg. 58416 (1975). 
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"recogniz[ed] that replacement of many of the components of a 

facility can be substantially equivalent to totally replacing it 

at the end of its useful life with a newly constructed . . . 

facility."^ 

In the reconstruction rule, EPA specified "criteria which 

tiie Administrator [would] . . . use in making his determination" 

as to whether an existing facility had been "reconstructed."-' 

These criteria include: (1) whether the components replaced would 

cost more than 50 percent of the value of a comparable new 

facility, (2) whether the remaining useful life of the facility 

after the replacements would approach that of a comparable new 

facility,— (3) the effect of the replacements on emissions, and 

(4) whether it would be economically and technologically feasible 

for the facility to meet NSPS after the replacements.— 

As a result, under the reconstruction rule, a 

substantially rebuilt existing facility could be considered a new 

facility subject to NSPS. EPA made clear, however, that even if 

a facility had replaced its major components, NSPS would not 

apply if it was not feasible to meet NSPS, or if the additional 

8/ ld^ at 58417. 

9/ Id^ at 58418. 

10/ EPA observed that "if the estimated life of the facility 

after the replacement[] is significantly less than the estimated 

life of a new facility, the replacement may not be considered 

reconstruction." Id^; see 40 C.F.R. S 60.15(f)(2) (1988). 

n / 40 Fed. Reg. at 58418; 40 C.F.R. S 60.15(f) (1988). 
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facility life obtained as a result of the project was 

significantly less than that of a comparable new facility. 

When EPA later undertook rulemaking to implement the PSD 

program, it proposed to apply this reconstruction rule to that 

12/ 

program.— Many of the amici objected to this proposal in their 

rulemaking comments. EPA agreed, and included no reconstruction 

13/ rule in the final PSD regulations.— 

B. Modification 

1. NSPS 

Congress specified in S 111 of the Act that a source that 

was "modified" would become a new source subject to NSPS and PSD 

requirements. For NSPS, Congress defined "modification" in the 

1970 Act as "any physical chanqe in, or change in the method of 

operation of, a stationary source which increases the amount of 

any air pollutant emitted by such source or which results in the 

14/ emission of any air pollutant not previously emitted."— 

In the 1974-75 rulemaking to implement the S 111 NSPS 

modification provision, EPA indicated that activity that did not 

significantly change the design or physical characteristics of a 

source would not be a "modification" of an existing source. EPA 

provided, for example, that "routine" repair, replacement, and 

maintenance would not trigger NSPS applicability, "subject to the 

\2/ 44 Fed. Reg. 51953 (1979). 

L3/ 45 Fed. Reg. 527.03 (1980). 

U / CAA S 111(a)(4) (emphasis added). 
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15/ provisions" of the reconstruction rule.—' As EPA described the 

rule's effect in a subsequent NSPS rulemaking, 

[replacement of [a] . . . system with a 

similar system or replacement of component 

parts . . . with similar parts would not be 

considered a modification. However, 

replacement or redesign of [a] . . . 

system, which would substantially change 

the physical characteristics of the 

[system] . . . may be a change where 

modification regulations apply. . . . 

Major redesign . . . would cause a source 

to be evaluated to determine if 

modification regulations should apply.il/ 

2. PSD 

In 1980, EPA adopted, as required by S 169(2)(c) of the 

Act, this same basic definition of modification for purposes of 

the ?SD program.—Th e Agency provided that "routine" repair or 

replacement would not constitute a change that would result in a 

modification. Moreover, it specified that an increase in 

production rate or hours of operation, where not limited by a 

18/ permit condition, would not trigger PSD review.— 

15/ 40 C.F.R. S 60.14(e)(1) (1988). If "routine" replacement 

resulted in expenditures of more than 50 percent of the cost of a 

comparable new facility, however, the existing facility might 

nonetheless be considered a "new" facility under the 

reconstruction rule. Ld. S 60.15. 

16/ EPA, Electric Utility Steam Generating Units Background 

Information for Proposed Particulate Matter Standards at 5-4 to 

5-5 (July 1978) (emphasis added) (Record 3.19). 

17/ 45 Fed. Reg. 52676 (1980); 40 C.F.R. S 52.21(b)(2) 

(1988). The few differences between the NSPS and PSD 

modification rules are discussed in the Brief of Petitioner. 

L8/ See 45 Fed. Reg. 52704 (1980) ("Congress could not have 

intended a company to have to get a [PSD] . . . permit before it 

(Footnote con't.) 
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II. The Port Washington Decision 

In the case of Port Washington, EPA found that "agerelated degradation of the physical plant" led to deterioration 

19/ in the performance of the facility.— On this basis, according 

to EPA, the company established a program to undertake 

"renovation work . . . [to] restore the physical and operational 

capability of each unit to its original . . . nameplate 

20/ 

capacity."—' 

The Port Washington project does not involve substantial 

redesign of the facility resulting in new emissions or a new 

source of pollution. Rather, it merely involves like-kind 

replacement of deteriorated equipment to allow the facility to 

operate as it had in the past, with emissions no greater than 

21/ 

past levels.—-

EPA recognized that the proposed like-kind replacement 

22/ 

would fall far short of source "reconstruction."— It 

nevertheless concluded that the like-kind replacement would make 

(Footnote cont'd, from previous page.) 

could lawfully change hours or rate of operation. Plainly, such 

a requirement would severely and unduly hamper the ability of any 

company to take advantage of favorable market conditions."). 

19/ Memorandum from Acting Assistant Administrator Clay to 

Kee (Clay Memorandum) at 2 (September 9, 1988). 

20/ ld± at 3. 

21/ The project is discussed in the Brief of Petitioner. 

22/ Clay Memorandum at 11-12 (September 9, 1988). 
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this existing source'a new source under the "modification" rules, 

triggering NSPS and PSD review. 

According to EPA, Congress intended that the NSPS and PSD 

programs would apply to existing facilities at the time of "longterm decisions regarding the creation or renewal of major 

23/ stationary sources."—' EPA concluded that NSPS and PSD would 

apply to this project even though the project is not a 

"reconstruction," because the project would "not simply maintain 

the facilities in their current [deteriorated] state, but rather 

[would] . . . significantly enhance their present efficiency and 

capacity [i.e., up to original design capacity], and 

24/ substantially extend their useful economic life."— Moreover, 

EPA emphasized that PSD requirements would apply even where the 

project merely improved the availability and reliability of the 

25/ facility, and was not needed to restore lost capacity.— 

23/ Id. at 12. EPA cited nothing to support this statement. 

24/ Letter from Administrator Thomas to John Boston, WEPCo 

(Thomas Letter) at 3 (October 14, 1988) (emphasis added). WEPCo 

had estimated that, with the repairs in question, the Port 

Washington units could continue to operate up to 11 to 17 years 

beyond an earlier, nonbinding projected retirement date contained 

in a filing with the state public utility commission. See Clay 

Memorandum at 4 (September 9, 1988). By contrast, a new fossil 

fuel fired electric utility station would have a useful life of 

40 years or more. EPRI, "Longer Life for Fossil Fuel Plants" at 

1 (Record 3.10) ("Given careful operation and maintenance, a 

plant can continue to generate power safely and reliably for 50 

to 60 years, or longer."). 

25/ EPA found that two of the units at the Port Washington 

station could be "operated at their original design capacity on a 

sustained basis." See Letter from Clay to Boston (Clay Letter) 

(Footnote con't.) 
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As a result,"this decision raises substantial questions 

as to whether repair or replacement activity can be undertaken 

with respect to deteriorated equipment that affects an existing 

facility's efficiency, availability, and reliability, or that 

restores its operating capacity, without triggering new source 

requirements. 

ARGUMENT 

Amici have operated older existing facilities since 

Congress passed the Act. Amici have continuously conducted 

repair and replacement activities as needed to enable these older 

facilities, as well as newer facilities, to continue normal 

operations in accordance with their design capacity and 

acceptable levels of availability. These activities have never 

triggered NSPS or PSD review. 

Amici have also participated in many EPA rulemakings 

concerning NSPS and PSD. Never has EPA suggested that the 

"modification" rules (as opposed to the NSPS "reconstruction" 

rule) cover repair and replacement activity undertaken to 

maintain or restore normal source operations, changes that in all 

cases extend the useful life of a source. 

(Footnote cont'd, from previous page.) 

at 8 (February 15, 1989). With respect to these units, the 

proposed replacement project was not needed to restore lost 

capacity. EPA nevertheless found that the proposed project would 

trigger PSD review based on an assumed increase in production 

rate and hours of operation (i.e., in the effiency and 

availability of the plant) after completion of the replacement 

project. Clay Letter at 9 (February 15, 1989). 
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The Port Washington decision is a sharp reversal of the 

standards that have always governed the scope of EPA's existing 

and new source control programs. Moreover, the Agency has failed 

to address the uncertainty that may be created by this decision 

and the costs that may be imposed by this uncertainty. 

I. THE PORT WASHINGTON DECISION CHANGES 

THE SCOPE OF EPA'S NSPS AND PSD PROGRAMS 

WITHOUT NOTICE OR OPPORTUNITY FOR COMMENT. 

EPA adopted the "reconstruction" rule for the NSPS 

program "to discourage the perpetuati[on] of a facility, instead 

of replacing it at the end of its useful life with a newly 

26/ 

constructed affected facility."— By contrast, EPA wrote the 

NSPS and PSD "modification" rules in a way that makes them 

27/ 

inapplicable to routine repair or replacement.— EPA also 

provided that an increase in hours of operation or production 

28/ rate would not generally trigger NSPS or PSD review.—A s EPA 

explained, only "[m]ajor redesign," not "[r]eplacement . . . with 

29/ 

a similar system," might trigger the modification rule.— 

2£/ 39 Fed. Reg. 36948 (1974); s^e supra pp. 4-5. 

27/ 40 C.F.R. S 60.14(e)(1) (1988). In the NSPS context, 

routine repair or replacement was specifically made subject to 

the 50 percent cost criterion of the reconstruction rule. See 

supra note 15. 

28/ Only where the production capacity previously achieved by 

a facility would be increased through a "capital expenditure" 

(for NSPS purposes) or where a permit condition limited hours of 

operation or production rate (for PSD purposes) might new source 

controls apply. See 40 C.F.R. SS 60.14(e)(2) (NSPS); 

52.21(b)(2)(iii)(f) (PSD) (1988). 

29/ See supra note 16. 
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The intended"scope of the "modification" rules therefore 

is limited to major alterations in facility size or design that 

increase the original design capacity of the facility to emit 

pollution. Changes that enhance the facility's reliability or 

efficiency, and that allow increases in hours of operation or 

production rate up to original design capacity, have not been 

considered modifications.— 

These principles are reflected in past EPA decisions as 

to the applicability of the NSPS and PSD rules. As discussed in 

the 3rief of Petitioner, EPA has not found a "modification" where 

a facility that had long been closed underwent repair and 

replacement to return to its former operating condition, or where 

repair and replacement were needed to allow a facility to 

continue normal operations.— Where a facility undertook a 

30/ See supra notes 18 S< 28. 

31/ See e.g., Memorandum from Michael A. James, Attorney, Air 

Quality and Radiation Division, U.S. EPA, to Jack R. Farmer, 

Chief, Standards Development Branch, U.S. EPA (February 14, 1973) 

(Record 2.1) (steps necessary to return a source to its former 

operating condition not a modification); Memorandum from 

Director, Division of Stationary Source Enforcement, U.S. EPA, to 

Sandra S. Gardebring, Director, Enforcement Division, U.S. EPA 

Region V (October 3, 1980) (Record 2.11) (a facility was 

permanently shut down and removed from the state's emission 

inventory, yet EPA found that restarting the facility after four 

years would not trigger NSPS, since the facility was an 

"existing" source); Memorandum from Edward Reich, Director, 

Division of Stationary Source Enforcement, U.S. EPA, to William 

N. Sawyer, Attorney, General Enforcement Branch, EPA Region II 

(September 16, 1980) (Record 2.10) ("Resumption of operations 

will not increase emissions over the source's previous operating 

emissions"); Letter from Kenneth Eng, Chief, Air Compliance 

Branch, U.S. EPA Region II, to Dale E. Choate, Mobil Oil Corp. 

(September 7, 1988) (Record 2.21) (replacement of deteriorated 

equipment not a modification). 
P.18 

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substantial replacement project that would enable "20 additional 

years of operation," EPA did not even address the NSPS and PSD 

modification rules, but analyzed the project solely under the 

32/ 

"reconstruction" rule, and found no reconstruct ion.—' Since EPA 

has previously analyzed such projects, if at all, under the NSPS 

reconstruction rule, it is not surprising in this case that "EPA 

could find no examples in which the Agency had analyzed and 

issued an applicability determination [under the modification 

rules] for a 'life extension project1 for any category of major 

source.

n— 

In contrast to its past applicability determinations, EPA 

in the Port Washington decision has defined a "physical change" 

triggering NSPS and PSD review broadly, to include "virtually any 

• . 34/ 

significant alteration to an existing plant."— Moreover, EPA 

has found that an "emissions increase" will occur virtually any 

time repair or replacement work is done to enable a facility to 

continue to operate up to its original design capacity, or simply 

35/ to operate more efficiently and reliably.— EPA also has 

32/ See Memorandum from Director, Division of Stationary 

Source Enforcement, U.S. EPA, to Earl J. Stephenson, Director, 

Enforcement Division, U.S. EPA Region VII (December 8, 1977) 

(Record 2.5). 

33/ Thomas Letter at 4 (October 14, 1988) (emphasis added). 

24/ Clay Memorandum at 3 (September 9, 1988). 

35/ Under the NSPS program, EPA reached this result by 

requiring that an "emissions increase" be calculated based on a 

comparison of operations with deteriorated equipment and 

(Footnote con't.) 
r/- .* 

P.19 

WW/ l rW7 3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

V •* V*_}|££/ WASHINGTON. O.C. 204«O 

NOV 1 6 884 

MEMORANDUM 

SUBJECT: Policy Against "No^ction" Assurance* 

otnetot 

toama 

i Action" Assurances 

. ___. _ _. . _»___*_ __»___. _•*___. 

PROM: Courtnay M. Prica 

Assistant Administrator for Enforcement 

and Compliance Monitoring 

TO: Assistant Administrators , 

Regional Administrators 

General Counsel 

inspector General 

This memorandum reaffirms EPA policy against giving 

definitive assurances (written or oral) outside the context of 

a formal enforcement proceeding that EPA will not proeeed witn 

an enforcement response for a specific individual violation of 

an environmental protection statute* regulation, or other 

legal requirement. 

"No action" promises may erode the credibility of EPA's 

enforcement program by creating real or perceived Inequities 

in the Agency's treatment of the regulated community* This 

credibility is vital as a continuing incentive for regulated 

parties to comply with environmental protection requirements. 

In addition, any commitment not to enforce a legal 

requirement against a particular regulated party may severely 

hamper later enforcement efforts against that party, who may 

claim good-faith reliance on that assurance, or against other 

parties who claim to be similarly situated. 

This policy against' definitive no aotlon promises to 

parties outside the .Agency applies in all contexts, including 

assurances requested: 

* both prior to and after a violation haa been committedj 

* on the basis that a Stats or local government is 

responding to the violation; 
1 

1 

P.20 

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EPA believes a "no action" assurance is appropriate in this 

case because the project would appear to be "clearly necessary 

to carve the public interest" and it is expected to provide 

"important information for research purposes" and there is a 

need "which no other mechanism can address adequately." 

Based on the representations S2.de in your letter* EPA 

will not enforce HSPS and PSD requirensnts that may apply, 

pursuant to 40 CFR 60.14 and 52.21(b)(2)* as a result of 

•mission increases which may occur after the completion of 

the Reburn technology demonstration at Nilas Unit #1* 

specifically/ when the unit is returned to its pre-demonstration 

condition. For purposes of advising al l partiea to the 

-pro;ect* the pre-demonstration conditions should* prior to 

tha demonstration* be established to avoid a future dispute. 

I do not anticipate ary problem in determining pre-demonstration levels. 

... . ' * .. . *• T' '« 

• .4 ^ t 

This assurance does no- apply to -session increases 

above the pre-demonstration levels and also does not apply to 

emission increases which result froa changes that are unrelated 

to the conduct of the demonstration project, whether these 

changes are made before* during or after the project. Of 

course* Ohio Kdison must comply with al l pre-demonstration 

EPA and State emission limits and permit conditions during 

and after the desonscration, unless these are formally revised. 

Sincerely* 

Don R. CXay 

Acting Assistant Administrator 

for Air and Radiation 

/ 

i 
P.21 

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determined that repair or replacement work is "routine" only when 

undertaken "for the purpose of maintaining the plant in its 

present [i.e., deteriorated] condition."— 

In short, the Port Washington decision represents an 

abrupt and fundamental expansion of the NSPS and PSD programs to 

cover repair and replacement projects designed solely to restore 

lost capacity, and/or to improve the efficiency and reliability 

of industrial facilities. As explained above, EPA has made no 

(Footnote cont'd, from previous page.) 

operations with repaired equipment, a comparison that will 

virtually always result in an emissions increase finding. See 

Thomas Letter at 5 (October 14, 1988) ("As to NSPS, there is no 

representative emissions concept under that program."); Clay 

Memorandum at 9 (September 9, 1988) (emissions increase is 

computed by comparing "hourly potential emissions under current 

[deteriorated] maximum capacity to emissions at maximum capacity 

after the change"). By contrast, EPA has historically based the 

emissions increase calculation on normal source operation, 

unaffected by equipment deterioration. See supra notes 31 & 32. 

Under the PSD program, EPA reached this result by 

comparing past "actual" emissions with future emissions based on 

"assumed . . . increases in production rate or hours of 

operation" due to increased source reliability and availability. 

See Clay Letter at 9-10 (February 15, 1989). Based in part on 

this new reading of the PSD rule, EPA Region V has recently 

concluded that a fuel conversion from oil to natural gas at an 

electric generating unit — a change that would dramatically 

reduce the facility's emission rate — would trigger PSD review 

based on the comparison of future "potential" emissions, assuming 

increased hours of operation, with past "actual" emissions. 

Letter from Don R. Clay, Acting Assistant Administrator for Air 

and Radiation, U.S. EPA, to Walter McCarthy, Jr., Chairman and 

Chief Executive Officer, Detroit Edison Company (May 8, 1989); 

Letter from David Kee, Air and Radiation Division, U.S. EPA, to 

Morton Sterling, Detroit Edison Company (December 20, 1988) 

(letters attached hereto in the Appendix); see supra note 25. 

36/ Clay Memorandum at 3-4; see also id. at 5-7. 
P.22 

-15-

attempt in any rulemaking to justify such a change.—' Amici 

therefore agree with Petitioner that this EPA decision should be 

set aside. 

II. THE EXPANDED SCOPE OF EPA'S NEW SOURCE 

PROGRAMS AS REFLECTED IN THE PORT 

WASHINGTON DECISION WILL HAVE A SUBSTANTIAL, 

ADVERSE IMPACT ON THIS NATION'S INDUSTRIES 

AND ON THE PUBLIC. 

Most of the nation's industries rely heavily on older 

facilities to satisfy consumer demand. Under the Port Washington 

decision, repair work that will "enhance the[] present [i.e., 

38/ deteriorated] efficiency and capacity"— of an industrial 

facility is not routine and may trigger stringent new source 

requirements. 

Under the Port Washington decision, therefore, companies 

with facilities experiencing equipment deterioration that affects 

operating capacity or the reliability of source operations will 

face difficult choices. Because such repair and replacement 

projects may trigger NSPS and PSD review, facilities that need to 

replace deteriorated equipment in order to operate reliably and 

efficiently up to design capacity may be forced either (1) to 

continue to operate indefinitely at a lower (and deteriorating) 

capacity, (2) to delay the repair or replacement project until 

21/ Cf_j. St. James Hospital v. Heckler. 760 F.2d 1460, 1472 

(7th Cir. 1985) ("Although an agency is not rigidly bound to its 

own precedent, the presumption is against changes in established 

policy that are not justified by the rulemaking record."). 

18/ Thomas Letter at 3 (October 14, 1988). 
P.23 

-16-

new source permitting is completed and expensive new source 

controls are installed at the existing facility, or (3) to shut 

down. Any of these alternatives would have substantial adverse 

effects on industry, on the community in which the industry is 

located, and on the nation as a whole.—' 

EPA's decision therefore will create enormous uncertainty 

for all industry as to whether, and under what conditions, normal 

repair and replacement activity at existing facilities to restore 

capacity or maintain reliable and efficient operation can go 

forward. The examples of repair and replacement projects that 

this decision could affect are numerous. 

39/ Programs of control technology "retrofit" would impose 

substantial economic, energy, and environmental costs. For 

example, at utility plants, retrofit of a flue gas 

desulfurization unit, or "scrubber," reduces plant electrical 

output, decreases fuel efficiency, consumes millions of gallons 

of fresh water annually, and generates thousands of tons of waste 

each year. See generally 44 Fed. Reg. 33591, 33602-07 (1979) 

(taking such factors into account in revising NSPS for new 

utility generating stations, and observing that "[f]ew, if any, 

existing steam generators . . . are expected to qualify under the 

modification/reconstruction provision!]"). 

Even if installation of the necessary control equipment 

would be economically and technically feasible, existing 

facilities would have to proceed first with time-consuming new 

source permitting before being allowed to begin the repair and 

replacement project, forcing a delay of potentially several 

years. Before a PSD permit application can be filed, for 

example, the permit applicant must undertake extensive air 

quality and control technology analyses and must collect at least 

one year of air quality monitoring data. See generally id. 

S 52.2Ki)-(o). Once this information is assembled in a permit 

application, the permitting authority must review the application 

to determine whether it is "complete." See id. S 124.3. After 

issuing a "completeness" determination, the permitting authority 

has up to one year to conduct necessary hearings and make a final 

determination. See CAA S 165(c). Construction cannot begin on a 

project subject to PSD review until a permit is issued. 40 

C.F.R. S 52.21(r) (1988). 
P.24 

• 

-17-

Steel plants; oil refineries, chemical plants, and other 

facilities that process raw materials are subject to extremes of 

temperature, pressure, and corrosive conditions, and require 

repairs and replacements of components in order to operate 

efficiently and reliably in a manner consistent with the original 

design capacity of the facility. In the case of the oil 

industry, for example, the fractionators in natural gas liquids 

production operations deteriorate over time, limiting operating 

capacity and reducing reliability. Components of steam 

generators used in the utility industry, the oil industry, and 

other industries (including pumps, fans, air heaters, burners, 

pulverizers, and other major components), deteriorate over time 

and limit source capacity and reliability. Extraordinary 

failures occur at refineries with respect to pumps, compressors, 

motors, and other components that are critical to efficient and 

reliable operation up to design capacity. 

Failure of major components does not occur frequently 

during the life of a facility. Repair or replacement of major 

components is expensive, and will invariably extend the economic 

life of a facility. In all of these industries, however, 

replacement of key components is undertaken when necessary to 

restore original design capacity and to maintain reliable and 

efficient facility operations. 

By frustrating efforts to maintain existing industrial 

capacity, the Port Washington decision poses a serious threat to 

the continued vitality and competitiveness of this nation's basic 
P.25 

-18-

industries. With respect to the electric utility industry, for 

example, this decision will inhibit the industry's efforts to 

maintain the availability and reliability of smaller, older 

utility plants — plants that are critical to the adequacy of 

this nation's electricity supply over the next decade.— This 

decision will adversely affect companies that operate existing 

industrial boilers to generate steam and electricity, further 

limiting electricity supplies and increasing product costs at a 

time of intense international competition. For companies that 

also perform repair and replacement work at industrial 

facilities, such as the General Electric Company, the 

Westinghouse Electric Corporation, and Bechtel Power Corporation, 

the uncertainty created by this decision will result in 

postponement and cancellation of projects aimed at preserving the 

efficiency and competitiveness of basic American industry. 

Under S 111 of the Act, EPA must base NSPS on the "best" 

adequately demonstrated control technology, reflecting a balance 

41/ 

of economic, energy, and environmental considerations.— EPA 

40/ This is so because few utility companies currently have 

plans to construct new, large generating capacity, and the 

design, permitting, and construction of such capacity takes many 

years. Energy Information Administration, Estimating the Capital 

Costs of Life Extension for Fossil-Fuel Steam Plants at 1-2 

(July, 1988) [Record 3.15). 

The National Coal Association (NCA) is concerned with the 

potential adverse effects of EPA's decision on the nation's coalfired electrical generating capacity. Moreover, NCA members 

operate coal preparation plants that are subject to NSPS and PSD 

requirements and that could be affected by this decision. 

41/ CAA S 111(a)(1). 
P.26 

-19-

has considered none of these factors, however, in deciding to 

expand the scope of its NSPS program. Moreover, to the best of 

amici's knowledge, EPA in its earlier NSPS and PSD rulemakings 

never considered the adverse impacts on existing sources that 

could result from the Port Washington decision.—/ 

In short, EPA's recent Port Washington decision has 

substantial and potentially widespread implications, implications 

that EPA has failed to consider. If EPA wants to change the 

42/ See, e.g., supra note 39. Indeed, the U.S. Department of 

Energy ("DOE") in October 1988 registered its serious concern 

with the abrupt change in EPA's policy reflected in the Port 

Washington decision. The DOE Assistant Secretary for Fossil 

Energy wrote to EPA expressing his concern that EPA's decision 

"would establish a far reaching precedent which could have 

serious adverse impacts on energy policy," and "strongly urg[ed]" 

the Agency to "fully evaluate[]" the decision's energy impacts to 

comply with S 111 of the Act before making the decision final. 

Letter from J. Allen Wampler, Assistant Secretary for Fossil 

Energy, DOE, to Don R. Clay, Acting Assistant Administrator for 

Air and Radiation, U.S. EPA (Oct. 12, 1988) (Supplemental Record 

S.4). Counsel for EPA has stated that this information was not 

considered in the Port Washington decision. EPA Response to 

Petitioner's Motion to Supplement the Record at 4 (March 16, 

1989). EPA therefore made the Port Washington decision without 

conducting the energy analysis that DOE strongly urged and that 

S 111 requires. 

Recently, EPA has applied its new reading of the 

modification rules to discourage companies from undertaking 

projects to demonstrate promising new control technologies 

pursuant to the Clean Coal Technologies Program. Thus, EPA has 

suggested that terminating a control technology demonstration 

project "could constitute a modification or major modification 

. . . and could trigger NSPS or PSD." Letter from Don R. Clay, 

Acting Assistant Administrator for Air and Radiation, U.S. EPA, 

to David L. Feltner, Senior Attorney, Ohio Edison Company 

(February 22, 1989) (attached hereto in the Appendix). 

Application of new source requirements as a result of control 

technology demonstration projects at existing facilities was, as 

far as amici know, never contemplated in earlier NSPS 

rulemakings. 
P.27 

-20-

coverage of its new source programs, it must do so through 

rulemaking, after full consideration of the kinds of effects 

discussed above. 

CONCLUSION 

For the foregoing reasons, amici support Petitioner's 

request that the Port Washington decision be set aside. 

Respectfully submitted, 

J. HiruJU. I 

J^f-Frey . Holik TPhtf 

BAKER & HOSTETLER 

1050 Connecticut Avenue, N.W. 

Washington, D.C. 20006 

(202) 861-1500 

COUNSEL FOR THE ALUMINUM 

ASSOCIATION, INC. 

/ vJJOAA^^-..AJL 

F. William Brownell 

Norman W. Fichthorn 

HUNTON S. WILLIAMS 

P. 0. Box 19230 

2000 Pennsylvania Avenue, N.W. 

Washington, D.C. 20036 

(202) 955-1500 

COUNSEL FOR ALABAMA POWER 

COMPANY, ET AL. 

Kt/uVv-l C GtAU*>s 

Barton C. Green ~F^6 

General Counsel 

AMERICAN IRON AND STEEL 

INSTITUTE 

1133 15th Street, N.W. 

Suite 300 

Washington, D.C. 20005 

(202) 452-7143 

Edward P. Giblin, Jr.' J r> * 

Senior Counsel r^AyfA 

BECHTEL POWER CORPORATION 

15740 Shady Grove Road 

Gaithersburg, Maryland 20877 

(301) 258-4165 
P.28 

-21-

G.UJLL^JAd 

G. William Frick //^Hf) 

General Counsel 

AMERICAN PETROLEUM INSTITUTE 

1220 L STREET, N.W. 

Washington, D.C. 20005 

(202) 682-8000 

Paul J. Lambert / ; 

BINGHAM, DANA & GOULD 

1550 M Street, N.W. 

Washington, D.C. 20006 

(202) 822-9320 

COUNSEL FOR GENERAL 

ELECTRIC COMPANY 

n^ 

_______3_df» 

William E. Hyna'n / In**} Carol L. Dalcanton 

Attorney 

NATIONAL COAL ASSOCIATION 

1130 17th Street, N.W. 

9th Floor 

Washington, D.C. 20006 

(202) 463-2625 

Carol L. Dalcanton IrTAsg 

Assistant General Counsel 

WESTINGHOUSE ELECTRIC 

CORPORATION 

11 Stanwick Street 

Pittsburgh, Pennsylvania 

15222 

(412) 642-5676 

May 22, 1989 
P.29 

.APPENDIX 

..AA^% 

- ...-f, Vi" •_,. .____-j» 

. . __--i4St,*

,

.'T^h; 

• "*'** ^_32SS_5?i'*!'_3^" 

. -i**^jB«Jr__,y.--_>p*-. 

i ..•_*'• 
P.30 

/ J_TML \ UNITED STATES ENVIRONMENTAL. PROTECTION AGENCY 

i55:2_r * WASHINGTON. O.C. 20460 

FES 2 2 !Si5 

OMICI Ol* 

Al* ANO KA0IATIO 

Mr. David L. Feltner 

Senior Attorney 

Ohio lidison 

76 South Main Stree t 

Akron* Ohio 44306 

Dear Mr. Feltner : 

The Administrator has asked as t o respond to your 

December 22* 1988 lette r as'-cihg whether New Source Performance 

Sta.ida.rds (NSPS) or Prevention of Significant Deterioration . 

(PSD)' regulations will aoply t o Unit $1 .at the Miles Generating 

Station in Nilas, Ohio* whan a Reburn technology demonstration 

project is completed and Unit #1 is returned to its pre-demonstratio n "physical and operating condition." 

This project will test Reburn technology for reducing 

nitrogen oxides from flua gas. According to.your letter* the 

Re barn technology demonstration could als o result in reduced 

levels, of sulfur dioxide, particulate s and other pollutants. 

This projec t is being fundel by £_?A, the stat e of Ohio, the 

Electri c power Research Institute , and the Gas Research 

Institute . Ohio Zdison &nd thc other participants in this. 

demonstration project are coaoandsd for thai r efforts to 

attain greater emission reductions. SPA supports this 

demonstration of Reburn technology and generally encourages 

demonstrations of other innovative control technologies. 

EPA wil l evaluat e other innovative control technologie s on a • 

casa-by-cas e basis. If the project is successful and emission 

reductions are demonstrated, the continued us e of the technology 

would be strongl y encouraged by EPA. 

An increas e in emissions* as a result of returning the unit 

bade to pre-demonstration conditions afte r th e Reburn projecc* 

could constitut e a modification or najor modification pursuant 

t o 40 CPE 60.14-or 52.21(b)(2 ) and could trigge r NSPS or PSD. 

ZPA has evaluated the merits of Ohio Edison's Nile s Unit 1 

projec t with regard to applicabilit y of the Agency's November 

16* 1984 Policy Against "No Action" Assurances. As a result, 
V 

P.31 

* on the basis that revisions to the underlying legal 

requirement are being considered;* 

* on the baeis that the Agency has determined that the 

party is not liable or has a valid defense. 

* on the basis that the violation already has been 

corrected (or that a party has promised that it will 

correct the violation)) or 

* on the basis that the violation is not of sufficient 

priority to merit Agency action* 

The .Agency particularly must avoid no action promises 

relating either to violations of judicial orders, for which a 

court has independent enforcement authority* or to potential 

criminal violations* for which prosecutorial discretion rests 

with the United States Attorney General. 

As e general rule* exceptions to this policy are warranted 

only 

* where expressly provided by applicable etatute or 

regulation (e.g.* certain upset or bypass situations) 

* in extremely unusual cases in which a no action 

assurance is clearly neccessary to serve tha public 

interest (e.g.* to allow action to avoid extreme risks 

to public health or safety* or to obtain important 

information for research purposes) and which no other 

mechanism can address adequately* 

Of course* any exceptions which BPA granta must ba in *\n area 

in which BPA has diacratlon not to act under applicable law. 

This policy In no way ia intended to constrain tha way in 

which EPA dlacuaaaa and coordinates enforcement plans with 

atata or local enforcement authoritiee consistent with normal 

working relationships. To tha extant that a statement of BPA*a 

enforcement intent is necessary to help support or conclude an 

effective atata enforcement effort* BPA can employ language 

such as tha followingt 

"CPA encourages State action to resolve violations of 

the _^___ _ Act and supports tha sctions which (State) 

is taking to addreea the violations at issue* To ths extent 

that the State action does not satisfactorily resolve the 

violations* BPA may pursue its own enforcement action.* 
P.32 

X am requesting that any definitive written or oral no 

action commitment receive the advance concurrence of my office. 

This was a difficult decision to reach in light of the valid 

concerns raised in comments.on this policy statement; nevertheless* we* concluded that Headquarters concurrence ia important 

becauaa the precedential implications of providing no. action 

commitments can extend beyond e single Region. He will attempt 

to conault with the relevant program office and respond to any 

formal requeet for concurrence within 10 working days from the 

date we receive the request. Naturally, emergency sltuatione 

can be handled orally on an expedited basis. 

All instances in which an EPA official givea a no action 

promise must ba documented iri the appropriate case file. The 

documentation must include an explenation of the reaaona 

justifying the no action aaaurance. 

Finally* this policy against no action assurances does not 

preclude BPA from fully discussing Internally the prosecutorial 

merit of individual cases or from exercising the discretion it 

has under applicable law to decide when and how to respond or 

not respond to a given violation* based on the Agency1* normal 

enforcament priorities. 

cc: Associate Enforcement Counsels 

OECM Office Directors 

Program Compliance Office Directors 

Regional Enforcement Contacts 
P.33 

UNITE© STATES ENVIRONMENTAL PROTECTION AGENCY 

WAiHINGTON, D.C. 20460 

'Ji r. iG59 

Mr. Walter McCarthy, Jr. aww.net 

Chairman and Chief Executive officer v******TM 

Detroit Edison 

2000 Second Avenue 

Detroit, Michigan 48226 

Dear Mr. McCarthy: 

This is in regard to your March 13, 1989 letter, in which you 

asked the Administrator to review a prevention of significant 

deterioration (PSD) applicability determination by the 

Environmental Protection Agency (EPA) Region V. On December 20, 

1988, Region V ruled that the proposed conversion of your oilfired Greenwood Unit I Power Plant to dual capability for oil and 

gas would render the source subject to review under Federal PSD 

regulations due to an increase in nitrogen oxides (NO ) emissions. 

Two definitions govern applicability in this case: (1) "net 

emissions increase," which essentially is the difference between 

actual emissions and the potential to emit of the source after the 

change occurs; and (2) "major modification," which is a physical 

change or change in operation that results in a significant net 

emissions increase. 

In your March 13 letter, you provided data that illustrated 

large decreases in the source's "potential to emit" for sulfur 

dioxide, particulate, particulate matter nominally 10 micrometers 

and less, and NO¥ as a result of the conversion. You also 

mentioned that additional data are being compiled and that your 

company would like to meet with the EPA to discuss the results of 

this study. 

Our review of the available information suggests that 

Region V s conclusion that the source appears to be subject to PSD 

review under the existing rules is correct. The facts associated 

with this source's circumstances are not typical, however, and we 

believe a meeting may be appropriate to discuss further the issues 

you have raised. Please contact Gary McCutchen, Chief of the New 

Source Review Section, to arrange the meeting time and place. His 

telephone number is (919) 541-5592. 

Sincerely, 

Don (R. Clay, 

Acting Assistanf^Administrator 

for Air and Radiation 

TOTAL P.02 
*tn.V TO TUB AlTtNTtON 

P.34 

M. STcrUNG 

DEC 2 I WW 

^fJ**- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

/ S^- % REGION 5 

| ^^^ Z * 230 SOUTH DEARBORN ST. 

%A r<? CHICACO, ILLINOIS 60404 

QgQ 2 0 1S88 

Morton Sterling , Director 

Environmental Protection 

Detroit Edison Company 

200 Second Avenue, 482 WCB 

' Detroit, Michigan 48226 

Dear Mr. Sterling : 

This lette r is intended to summarize our findings with respect to Detroit 

Edison's projec t of adding natural gas firin g capabilit y to it s Greenwood Plan: 

During the discussion in my offic e on November 15, 1988, two issues emerged as 

paramount in the applicabilit y determination of the prevention of significant 

deterioration (PSD) regulations. These issues were (1) whether or not the 

Greenwood plant had natural gas firin g capabilit y before January 6, 1975, and 

(2) whether or not we could factor into the PSD netting transaction the fac t 

that the maximum potential to emit nitrogen oxides (N0X) during oi l firin g 

would not be changed by the project. 

You raised a number of other informative issues related to the environmental 

advantage of the plants having gas firin g capability , the rate of N0X increment 

consumption, and the utilizatio n rate of the plant . We could not, however, 

find a way to incorporate these issues into the PSO applicabilit y determinatior 

With respect to the natural gas firin g capability , we must look at the total 

plant or source. In making applicabilit y determinations with respect to fuel 

accommodation capability , the whole plant is considered because the PSD 

regulations address the total source. This is contrasted with the new source 

performance standards where applicabilit y is done on an affected facilit y basis 

which in thi s case could be a boiler. Although in your judgement the boiler 

structure itsel f could withstand natural gas being combusted within it , the 

piping and equipment necessary to fire natural gas were not present on January 

1975, and, in fact , there was no natural gas service available to the plant. 

(The opinion that the boiler could accommodate natural gas firing , however, was 

not shared by the Foster Wheeler Energy Corporation unless the boiler would be 

derated.) Furthermore, the plant did not begin operation unti l four years afte 

January 6, 1975. We, therefore, have concluded that the Greenwood plant does 

not qualif y under the exemption provided for in 40 CFR 52.21 (b)(2)(11i)(e)(l) . 

With respect to the issue of no increase in the potential to emit N0X> we contacted the technical staf f in the Office of Air Quality Planning and Standards 

in North Carolina. We are informed that the netting calculations in 40 CFR 

52.21(b)(2) and (3) refer to the emission increase resultin g from the physical 

change or change in the method of operation that is under permit consideration. 
P.35 

-2-

The nettiny formula found in 40 CFR 52.21(b)(3)(i) has two terms: emission 

increases from the physical change or change in operation under consideration, 

subparagraph (3)(i)(a); and other previous or future emission increases or 

decreases, subparagraph (3)(i)(b). The term "increase" referred to in 

subparagraph (3)(i)(a) means that the emissions from the physical change are 

to be included as a positive item in the formula. The term increase is not 

related tu the source for a baseline but to the physical change itself. The 

baseline is zero. This means that the potential N0X emissions from the physical 

change to gas firing is added (algebraically) to any contemporaneous federally 

enforceable emission reductions, and if the sum exceeds 40 tons per year, the 

modification is a major modification and is subject to the PSO regulations. 

Detroit Edison did not offer any contemporaneous federally enforceable anission 

reductions in this case. 

Therefore, we conclude that the Greenwood plant would be subject to the PSO 

regulation for NOx if it makes the proposed physical changes to accomodate 

natural gas as a fuel . 

If you need further explanation of the determination, please contact Ron 

Van Mersoergen of my staff at (312) 886-6056. 

Sincerely, 

javid Kee, Oirector 

Air and Radiation Division (5AR-26) 

cc: Robert P Miller, Chief 

Air Qual ity Division 

Michigan Department of Natural Resources 
P.36 

-v. ' " 

CERTIFICATE OF SERVICE 

I hereby certify that on this 22nd day of May, 1989, two 

copies of the foregoing Motion for Leave To File Brief Amici 

Curiae. Certificates of Interest of Amici, and Brief Amici Curiae 

were served by first class mail, postage prepaid, upon the 

following: 

Gregory B. Foote 

Office of General Counsel 

U.S. Environmental Protection Agency 

401 M Street, S.W. 

Washington, D.C. 20460 

Eileen T. McDonough 

United States Department of Justice 

Division of Lands and Natural Resources 

P. 0. Box 23986 

Washington, D.C. 20026-3986 

Walter T. Woelfle 

Wisconsin Electric Power Company 

231 W. Michigan Street 

Milwaukee, Wisconsin 53203 

AbJ'^A. 

F. William Brownell