Opposition Brief — Alaska Dept. of Environmental Conservation v. EPA

Supr ecsamr tJ

=

2

a]

—)

nm

=

No. 02-658

IN THE

Supreme Court of the Anited States

STATE OF ALASKA, DEPARTMENT OF ENVIRONMENTAL

CONSERVATION,

Petitioner,

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

TECK COMINCO ALASKA INCORPORATED’S

RESPONSE IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI

LAWRENCE L. HARTIG

ROBERT J. MAHONEY*

HARTIG RHODES HOGE

& LEKISCH

717 K Street

Anchorage, Alaska 99501

(907) 276-1592

* Counsel of Record Counsel for Respondent

Teck Cominco Alaska

Incorporated

WiILSON-EPES PRINTING COo., INC. — (202) 789-0096 - WASHINGTON, D.C. 20001

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT

Teck Cominco Alaska Incorporated (“Teck Cominco”) was

a petitioner in the Ninth Circuit below and is a respondent in

this case. Teck Cominco is a wholly-owned subsidiary of

Teck Cominco American Incorporated, which is wholly

owned by Cominco Mining Worldwide Holdings, Ltd.,

which is wholly owned by Cominco Mining Partnership, a

partnership of Teck Cominco Metals, Ltd. and Teck Cominco

Nova Scotia, Ltd. Teck Cominco Nova Scotia, Ltd. is

wholly owned by Teck Cominco Metals, Ltd., which is

wholly owned by Teck Cominco Limited, a publicly held

company.

(1)

IN THE

Hupreme Court of the Anited States

No. 02-658

STATE OF ALASKA, DEPARTMENT OF ENVIRONMENTAL

CONSERVATION,

Petitioner,

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

TECK COMINCO ALASKA INCORPORATED’S

RESPONSE IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI

Pursuant to S. C. Rule 12.6, respondent Teck Cominco

Alaska Incorporated (“Teck Cominco”) respectfully submits

this response in support of the State of Alaska’s petition for a

writ of certiorari to review the judgment of the United States

Court of Appeals for the Ninth Circuit below. Teck Cominco

operates the Red Dog Mine, the world’s largest source of

zinc concentrate, in Northwest Alaska on lands owned by the

NANA Regional Corporation, a regional Native corporation

established pursuant to the Alaska Native Claims Settlement

Act, 43 U.S.C. §§ 1601 ef seg. Along with petitioner State of

2

Alaska, Teck Cominco sought review in the Ninth Circuit of

the EPA’s orders in thiS case.

The question presented is of national significance and

should be resolved by this Court. Under the Clean Air Act

(“CAA”), 42 U.S.C. §§ 7401 ef seg., no “major emitting

facility” may be constructed or modified 4, «wy “clean air”

area unless the facility is subject to the “bes’ available control

technology,” or “BACT.” 42 U.S.C. § 7475(a)(4). BACT is

defined as “an emission limitation * * * which the permitting

authority, on a case-by-case basis, taking into account

energy, environmental, and economic impacts and other

costs, determines is achievable for such facility ** *.” /d.

§ 7479(3) (emphasis added). In Alaska—-as in most States—

the “permitting authority” under the Act is the State.

Accordingly, when Teck Cominco decided to modify its

facilities to increase production at the Red Dog Mine, Teck

Cominco sought permission from the State of Alaska, which

subsequently issued a permit designating a certain technol-

ogy—“Low NOx”—as BACT for a new generator that Teck

Cominco planned to build, the MG-17 generator. The EPA

disagreed with the State’s BACT determination for the MG-

17 generator, however, and issued a series of enforcement

orders blocking its construction unless Teck Cominco used a

different technology--SCR—that the EPA _ considered

BACT.

The question presented here—whether it is the States or the

federal government that has been delegated the authority to

make BACT and similar other permitting decisions under the

CAA—affects thousands of regulated entities nationwide.

Like Teck Cominco, those entities need to know who has that

authority. Under the Ninth Circuit’s decision, there is

nothing to prevent the EPA from invalidating a State’s

BACT determination long after a permit has been issued and

a company has invested heavily in costly technology.

Moreover, until the issue is finally resolved by this Court,

— |

3

regulated entities will continue to encounter administrative

delays and incur unnecessary costs in the permitting process.

In this case, for example, Teck Cominco spent more than a

year working with the State of Alaska to gain approval of its

permit application. As a direct result of the Ninth Circuit’s

decision, however, Teck Cominco is now engaged in coop-

erative discussions with the EPA to resolve permitting issues

and allow for immediate construction and operation of the

MG-17 generator. Congress plainly did not intend such a

cumbersome review process. See S. Rep. No. 95-127, at 32

(1977). This Court’s guidance on the jurisdictional alloca-

tion between the States and the federal government under this

system of “cooperative federalism” is needed.

CONCLUSION

For the foregoing reasons, and those in the State of

Alaska’s petition for a writ of certiorari, the petition should

be granted and the Ninth Circuit’s judgment reversed.

Respectfully submitted,

LAWRENCE L. HARTIG

ROBERT J. MAHONEY*

HARTIG RHODES HOGE

& LEKISCH

717 K Street

Anchorage, Alaska 99501

(907) 276-1592

Counsel for Respondent

Teck Cominco Alaska

Incorporated

* Counsel of Record