Alaska Department Of Environmental Conservation v. EPA

540 U.S. 461 (2004)

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Nature of the Case

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Facts

'The permitting authority' under § 7479(3) is Alaska, acting through Alaska's Department of Environmental Conservation (P). Under §110 of the Act, each State must submit for EPA approval 'a plan which provides for implementation, maintenance, and enforcement of [NAAQS].' D was directed to promulgate an implementation plan if the State's plan is inadequate. Among those measures are permit provisions, §7475 for the 'Prevention of Significant Deterioration of Air Quality' (PSD) program. The PSD requirements, enacted 'are designed to ensure that the air quality in attainment areas or areas that are already 'clean' will not degrade.' Section 165 installs a permitting requirement for any 'major emitting facility,' defined to include any source emitting more than 250 tons of nitrogen oxides per year. No PSD permit may issue unless 'the proposed facility is subject to the best available control technology for each pollutant. Section 113(a)(5) of the Act, provides that 'whenever, on the basis of any available information, D finds that a State is not acting in compliance with any requirement or prohibition of the chapter relating to the construction of new sources or the modification of existing sources,' D may 'issue an order prohibiting the construction or modification of any major stationary source in any area to which such requirement applies.' D may also 'take such measures, including issuance of an order, or seeking injunctive relief, as necessary to prevent the construction or modification of a major emitting facility which does not conform to the [PSD] requirements.' Teck Cominco Alaska Inc. (Cominco), operates a zinc concentrate mine. Cominco obtained authorization to operate the mine, a 'major emitting facility' under the Act and Alaska's SIP. P issued a second PSD permit in 1994 allowing addition of a sixth full-time generator (MG-6), removing standby status from MG-2, and imposing a new operational cap that allowed all but one generator to run full time. P preliminarily proposed as BACT for MG-5 the emission control technology known as selective catalytic reduction (SCR), which reduces nitrogen oxide emissions by 90%. Cominco amended its application to add a seventh generator, MG-17, and to propose as BACT an alternative control technology--Low NOx 6--that achieves a 30% reduction in nitrogen oxide pollutants. P concluded Low NOx was BACT for MG-5 and MG-17. To determine BACT, P employed D's recommended top-down methodology. To achieve nitrogen oxide emission reductions commensurate with SCR's 90% impact, Cominco proposed fitting the new generator MG-17 and the six existing generators with Low NOx. If all were 7 were fitted with Low NOx rather than fitting two (MG-5 and MG-17) with SCR and choosing one of them as the standby unit there would be a net reduction but not if all 7 generators ran at once. P found Low NOx to be BACT for MG-17. P agreed with D that 'emission reductions from sources that were not part of the permit action,' here MG-1, MG-2, MG-3, MG-4, MG-5, and MG-6, could not be considered in determining BACT for MG-17. When the final order was issued by P, D issued an order under §§113(a)(5) and 167 prohibiting P from issuing a PSD permit to Cominco 'unless P satisfactorily documents why SCR is not BACT for the Wartsila diesel generator [MG-17]. D issued a second order, prohibiting Cominco from beginning 'construction or modification activities at the Red Dog mine.' P petitioned the Court of Appeals for the Ninth Circuit for review of D's orders. It held that D had authority under §§ 113(a)(5) and 167 to issue the contested orders and that D had properly exercised its discretion in doing so. The Supreme Court granted certiorari.