Joint Appendix — Alaska Dept. of Environmental Conservation v. EPA
Supreme Court brief2004
Ask Donna
What actually matters in this document.
Text
Fryewo
No. 02-658 APR 2s om
‘
IN THE i
Supreme Court of the Bnited-States
STATE OF ALASKA, DEPARTMENT OF ENVIRONMENTAL
CONSERVATION,
Petitioner,
Vv.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ef a/.,
Respondents.
On Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit
JOINT APPENDIX
GREGG D. RENKES THEODORE B. OLSON*
Attorney General Solicitor General
CAMERON M. LEONARD DEPARTMENT OF JUSTICE
Assistant Attorney General Washington, D.C. 20530
STATE OF ALASKA (202) 514-2217
Department of Law
P.O. Box 110300 Counsel for Respondents
Juneau, Alaska 99811
(907) 465-3600
JOHN G. ROBERTS, JR.*
LORANE F. HEBERT
HOGAN & HARTSON L.L.P.
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-5810
Counsel for Petitioner * Counsel of Record
PETITION FOR CERTIORARI FILED OCTOBER 25, 2002
CERTIORARI GRANTED FEBRUARY 24, 2003
TABLE OF CONTENTS
Relevant Docket Entries from the United States
Court of Appeals for the Ninth Circuit (No.
ET ititidainapnitinipaninspiansissnensnnsiummennanevernyeetese:
Relevant Docket Entries from the United States
Court of Appeals for the Ninth Circuit (No.
SR cienittiensctrennennienntecesctseninsntinnnntinnscerne
Relevant Docket Entries from the United States
Court of Appeals for the Ninth Circuit (No.
ee cieeinreenesemretietnsnesstensnctnnndsninmnmennnssarsces
Relevant Docket Entries from the United States
Court of Appeals for the Ninth Circuit (No.
00-70301)
Cominco Alaska, Incorporated, Index to the
ITE TTT
Alaska Department of Environmental Conserva-
tion Preliminary Technical Analysis Report
for Air Quality Control Construction Permit
No. 9932-ACO005 (May 4, 1999) ........cceceeeeeseeees
Alaska Department of Environmental Conserva-
tion Air Quality Construction Permit, Permit
No. 9932-ACO005 (May 4, 1999)... cccceeeeeeees
Letter from Anita Frankel, Director, Office of
Air Quality, United States Environmental
Protection Agency, Region 10, to Tom
Chapple, Alaska Department of Environ-
mental Conservation (July 29, 1999) ..............6.
Memorandum from Brian Renninger, Envir.
Engin. Asst., Air Permits Program, State of
Alaska, Department of Environmental Con-
servation, to Jim Baumgartner, Supervisor,
Construction Permits (Aug. 10, 1999).................
(i)
11
21
31
4]
55
89
96
99
TABLE OF CONTENTS—Continued iil
Page TABLE OF CONTENTS—Continued
Alaska Department of Environmental Conserva- Page
tion Final Technical Analysis Report for Air Letter from Chuck Findley, Deputy Regional
Quality Control Construction Permit No. Administrator, United States Environmental
9932-ACO00S (Sept. 1, 1999) .......ccccceseeeeeereeenees 105 Protection Agency, Region 10, to Michele
Letter from Anita Frankel, Director, Office of Brown, Alaska Department of Environ-
Air Quality, United States Environmental mental Conservation (Dec. 10, SS 148
Protection Agency, Region 10, to Tom Alaska Department of Environmental Conserva-
Chapple, Alaska Department of Environ- tion Air Quality Construction Permit, Permit
mental Conservation (Sept. 15, 1999)............00++ 118 No. 9932-AC005 (Dec. 10, 1999) oo... ccc. 152
Letter from Anita Frankel, Director, Office of Alaska Department of Environmental Conserva-
Air Quality, United States Environmental tion Final Technical Analysis Report for Air
Protection Agency, Region 10, to Tom Quality Control Construction Permit No.
Chapple, Alaska Department of Environ- 9932-ACO005 (Dec. 10, 1999) oo... ccccccecccceeseeeeeeeee 159
mental Conservation (Sept. 28, 1999).........000+ 121 Response to Comments, Cominco Alaska, Red
Letter from Charlotte L. MacCay, Senior Dog Mine, Production Rate Increase Project,
Administrator, Environmental and Regula- Air Quality Construction Permit, No. 9932-
tory Affairs, Cominco Alaska, Inc., to Anita i cssunsencvorvcs 225
Frankel, United States Environmental Pro- Letter from Michele Brown, Alaska Department
tection Agency, Region 10 (Oct. 8, 1999)........... 131 of Environmental Conservation, to Chuck
Memorandum from Charlotte L. MacCay, Clarke and Chuck Findley, United States
Senior Administrator, Environmental and Environmental Protection Agency, Region
Regulatory Affairs, Cominco Alaska, Inc., ee 247
to Chuck Findley, United States Environ- Letter from Chuck Findley, Deputy Regional
mental Protection Agency, Region 10 (Oct. Administrator, United States Environmental
29, 1999) coccccccoccoccccccccsscocoosoesooscooccssosoooosooooossoosees 134 Protection Agency, Region 10, to Norman
Letter from Chuck Findley, Deputy Regional Mahoney, Cominco Alaska, Inc. (Feb. 8,
Administrator, United States Environmental EEE EELS ED 253
Protection Agency, Region 10, to Michele Letter from Chuck Findley, Deputy Regional
Brown, Alaska Department of Environ- Administrator, United States Environmental
mental Conservation (Nov. 10, 1999) .........:+0++ 136 Protection Agency, Region 10, to Michele
Letter from John Key, Cominco Alaska, Inc., to Brown, Alaska Department of Environ-
Chuck Clarke, Regional Administrator, mental Conservation (Feb. 8, ED 256
United States Environmental Protection
Agency, Region 10........c....ccrccsssesseoseossesssssssenses 141
IV
TABLE OF CONTENTS—Continued ¥
Page TABLE OF CONTENTS—Continued
Letter from Chuck Findley, Deputy Regional Page
Administrator, United States Environmental The appendix to the petition for certiorari con-
Protection Agency, Region 10, to Robert tains the following material which is omitted
Connery, Holland and Hart (Mar. 7, 2000)......... 260 from the Joint Appendix:
Letter from Chuck Findley, Deputy Regional | Appendix A: Opinion of the United States
Administrator, United States Environmental | Court of Appeals for the Ninth
Protection Agency, Region 10, to Norman | Circuit (July 30, 2002)..........0.0....000. la
Mahoney, Cominco Alaska, Inc. (Mar. 7, Appendix B: Opinion of the United States
2000) _pooupseseusscesennessasausnsuacessnonasesssesseeoesasesesesesssesess 264 Court of Appeals for the Ninth
Memorandum from Michael S. Alushin, Asso- Circuit (Mar. 27, 2001)...............0006. 0 17a
ciate Enforcement Counsel for Air, and Ed- Appendix C: Order of the United States Court
ward E. Reich, Director, Stationary Source of Appeals for the Ninth Circuit
pon ey Aste: my United — ae 4 ¢ eRe 24a
ronmenta ection Agency, to Regiona — —<—* '
Counsel, Regions I-X, Directors, Air Man- Agpents D: wth rag ; ee %6
agement Divisions, Regions I, V and LX, and are oe oe Joressersesssesecs .
Directors, Air and Waste Management Divi- Appendix E: EPA Administrative Order (Feb.
sions, Regions II-IV, VI-VIII, and X (Dec. i aa aebesnscieiinitininmentetanaingtnesinmmnpinaren 38a
Pe, Cee hanssenstntndilensisnienandinntinneadeeniabianinennaneatitns 266 Appendix F: EPA Amended Administrative
Memorandum from Michael S. Alushin, Asso- Order (Mar. 7, Sla
ciate Enforcement Counsel for Air, and John
S. Seitz, Director, Stationary Source Com-
pliance Division, United States Environ-
mental Protection Agency, to Addressees
Sy Tes, Cie ecosstececssectinnucusasaniioniaieiaiitanaiinns 272
Declaration of Douglas E. Hardesty (May 23,
Sei iiacicciesieietshhniuietiadaesesleaseiiahimaiicaeiasincaieaaictans 275
™ —_———
eat
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 00-70166
STATE OF ALASKA, Department of
Environmental Conservation,
Petitioner,
v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
DOCKET ENTRIES
DATE
PROCEEDINGS
2/8/00 ©
3/20/00
FILED PETITION FOR REVIEW DOCKETED
CAUSE AND ENTERED APPEARANCES OF
COUNSEL, NOTIFIED RESPONDENTS OF
FILING, SENT PETITIONER CIVIL APPEALS
DOCKETING STATEMENT. setting schedule
as follows: petitioners’ opening brief is due
4/28/00; respondents’ brief is due 5/30/00; peti-
tioner’s optional reply brief is due 6/12/00. [00-
70166] (wp) [00-70166]
Filed joint mtn to consolidate (00-70166/70169/
70175/70301) set coordinated briefing schedule,
and extend deadline for filing of the certified in-
dex to record; served 3/17/00. (MOATT via
PROMO) [00-70166, 00-70169, 00-70175, 00-
4/4/00
4/17/00
4/19/00
4/28/00
5/9/00
5/11/00
6/1/00
2
70301} [3873459] (rc) [00-70166 00-70169 00-
70175 00-70301]
Received Respondent EPA’s opposition to
motion for stay and cross-motion to dismiss;
served on 4/3/00. (opposition exceeds FRAP lim-
its — motion pending — MoAtt) [00-70166, 00-
70169, 00-70175, 00-70301]} (dl) [00-70166 00-
70169 00-70175 00-70301]
Received Cominco Alaska in 00-70169, 00-
70175, 00-70301 reply in opposition to motion to
dismiss. served on 4/14/00 MOATT [00-70166,
00-70169, 00-70175, 00-70301] (vt) [00-70166
00-70169 00-70175 00-70301}
Received State’s opposition to EPA’s motion to
dismiss petitions. (served on 4/14/00 MOATT
[00-70166, 00-70169, 00-70175, 00-70301] (vt)
[00-70166 00-70169 00-70175 00-70301 |
Received Respondents’ reply in support of mtn
to dismiss petitions for lack of subject matter ju-
risdiction; unopposed mtn of respondents for
leave to file an oversized reply in support of mtn
to dismiss petition for lack of subject matter ju-
risdiction; respondents’ ntc of suppl administra-
tive action; served on 4/27/00. (MOATT) [00-
70166, 00-70169, 00-70175, 00-70301] (rc) [00-
70166 00-70169 00-70175 00-70301 ]
Received Cominco Alaska opposition to motion
to dismiss. (served on 5/8/00 MOATT [00-
70166, 00-70169, 00-70175, 00-70301] (vt) [00-
70166 00-70169 00-70175 00-70301}]
Filed Petitioner State of Alaska surreply in
opposition to motion to dismiss along with a mo-
tion to allow filing of surreply; served on 5/9/00
(MOATT) [00-70166] (wp) [00-70166]
Filed order (Harry PREGERSON, Ferdinand F.
FERNANDEZ, Kim M. WARDLAW): Peti-
3
tioner the State of Alaska Department of Envi-
ronmental Conservation (“ADEC”), petitioner
Cominco Alaska Incorporated (“Cominco”) and
respondents the U.S. Environmental Protection
Agency, Carol M. Browner and Chuck Clarke’s
(EPA) 3/20/00 joint motion to consolidate peti-
tion 00-70166, 00-70169, 00-70175 and 00-
70301 is granted. Petition nos. 00-70166, 00-
70169, 00-70175 and 00-70301 are consolidated.
Petitioner Cominco’s unopposed motion for
leave to file an oversized motion for stay is
granted. The Clerk shall file Cominco’s 3/20/00
motion for stay. Petitioner ADEC’s March 31,
2000 motion for joinder in Cominco’s motion for
stay of the EPA’s 12/10/99, 2/8/00 and 3/7/00
orders pending appeal is granted. Respondents’
March 28, 2000 motion for extension of time to
file the response to petitioners’ motion for stay is
granted. Respondents’ unopposed 4/4/00 motion
for leave to file an oversized opposition to peti-
tioners’ motion for stay is granted. The Clerk
shall file respondents’ 4/4/00 opposition to peti-
tioners’ motion for stay, and respondents cross-
motion to dismiss. The Clerk shall also file re-
spondents’ 4/6/00 addendum to its opposition to
the motion for stay, and respondents’ motion to
dismiss. Petitioner Cominco’s unopposed motion
to file an oversized reply in support of its motion
to dismiss is granted. The Clerk shall file the re-
ply received 4/28/00. Petitioner Cominco’s mo-
tion to file a surreply in opposition to respon-
dents’ motion to dismiss is granted. The Clerk
shall file the surreply rec’d 5/9/00. The Clerk
shall file petitioner ADEC’s 4/19/00 opposition
to respondents’ motion to dismiss. Petitioner
ADEC’s motion to file a surreply in opposition
to respondents’ motion to dismiss is granted.
The surreply was filed 5/11/00. Petitioner
6/23/00
6/29/00
4
ADEC’s motion for oral argument is denied. Pe-
titioner Cominco’s March 20, 2000 motion to
stay respondent EPA’s 12/10/99, 2/8/00 and
3/7/00 orders pending appeal is denied. Respon-
dents’ 4/4/00 cross-motion to dismiss is denied.
The 3/20/00 joint motion of Petitioners ADEC,
Cominco and respondent EPA to extend the time
to file the certified index to the admin record is
granted. The certified index to the admin record
is due 6/26/00. Respondents’ 4/3/00 motion to
stay filing of the certified index to the admin re-
cord is-denied as moot. The following briefing
schedule shall govern these consolidated peti-
tions for review: the opening briefs are due
6/26/00; the answering brief is due 7/26/00. Re-
quests for extension of time will be looked upon
with disfavor. All parties on a side are encour-
aged to join in a single brief to the greatest extent
practicable. All briefs shall comply with the page
and type-volume limitations set forth in FRAP
32(a)(7). If all parties on a side file a joint brief,
these parties may, in accordance with Ninth Cir-
cuit Rule 28-4, timely move for enlargement of
size of 5 monotype pages or 1,400 words. Re-
quests for enlargement of size greater than 5
pages or 1,400 words will be looked upon with
extreme disfavor. MOTION FOR STAY DE-
NIED; MOTION TO DISMISS DENIED. [00-
70166, 00-70169, 00-70175, 00-70301] (ft) [00-
70166 00-70169 00-70175 00-70301}
Received Respondent EPA in 00-70166’s Notice
of filing certified index to the Admin. Record,
served on 6/22/00 (Casefile) [00-70166] (kc)
[00-70166]
Filed original and 15 copies Petitioner State of
Alaska in 00-70166, Petitioner Cominco Alaska
in 00-70169, Petitioner Cominco Alaska Inc. in
8/17/00
9/7/00
1/10/01
5
00-70175, Petitioner Cominco Alaska in 00-
70301 opening brief ( Informal: n) 57 pages and
five excerpts of record in 2 volumes; served on
6/26/00 [00-70166, 00-70169, 00-70175, 00-
70301] (je) [00-70166 00-70169 00-70175 00-
70301]
Filed original and 15 copies respondent EPA in
00-70166, 00-70169, 00-70175, 00-70301 in 66
pages brief, 5 Exc. in 1 vol; served on 8/16/00.
[00-70166, 00-70169, 00-70175, 00-70301] (af)
[00-70166 00-70169 00-70175 00-70301)
Filed original and 15 copies State of Alaska,
Cominco Alaska, Cominco Alaska Inc., Cominco
Alaska’s reply brief, ( Informal: no ) 46 pages;
with 5 Sup. Exc of Record in 1 volume; served
on 9/5/00. [00-70166, 00-70169, 00-70175, 00-
70301] (af) [00-70166 00-70169 00-70175 00-
70301]
Filed Order (Deputy Clerk: gb) Petitioner’s
motion to expedite and decision on appeal is
DENIED. Petitioner’s motion to allow longer
oral argument is also DENIED. NANA Regional
Corporation, Inc.’s motion for leave to file an
amicus letter brief is GRANTED. This letter
brief is hereby submitted. NANA Regional Cor-
poration, Inc. shall be notified by mail through
its general counsel, Jacquelyn R. Luke, at 1001
E. Benson Blvd., Anchorage, AK 99508
(907)265-4148. The Native Village of Kivalina’s
motion for leave to file an amicus letter brief is
GRANTED. This letter brief is hereby submitted.
The Native Village of Kivalina shall be notified
by mail through its atty and trustee, Michael J.
Frank, at 1026 West 4th Ave., Ste 201, Anchor-
age, AK 99501 (907)276-4244x116) (faxed to
PANEL and phoned counsels at 3:00p.m.) [00-
—s
1/11/01
2/9/01
2/13/01
3/27/01
6
70166, 00-70169, 00-70175, 00-70301) (af) [00-
70166 00-70169 00-70175 00-70301]
FILED CERTIFIED COPY OF ADMINISTRA-
TIVE RECORD ON APPEAL: 1 CARTON
CONTAINING 87 DOCUMENTS.(ORIGINAL)
[00-70166] [00-70166] (sd) [00-70166]
Received Andrew J. Doyle for Respondent EPA
letter dated 2/8/01 re: current event relating to
the Dec 10, 99 prevention of significant deterio-
ration construction permit (No.9932-AC005) that
Petitioner State of Alaska, Dept of Environ-
mental Conservation issued to Petitioner Comin-
co Alaska, Inc. (with attachment) (faxed to
PANEL) [00-70166, 00-70169, 00-70175, 00-
70301] (af) [00-70166 00-70169 00-70175 00-
70301]
ARGUED AND SUBMITTED TO Stephen R.
REINHARDT, Kim M. WARDLAW, Ronald M.
GOULD [00-70166, 00-70169, 00-70175, 00-
70301] (ss) [00-70166 00-70169 00-70175 00-
70301]
Filed Order (FOR PUBLICATION) (Stephen R.
REINHARDT, Kim M. WARDLAW, Ronald M.
GOULD) Within 60 days of this order, the EPA
may either (1) submit a complete administrative
record which will allow this Court to review the
justification for the EPA’s decision to issue the
Orders before us; (2) withdraw the Orders that
are the subjects of these petitions or (3) file an
enforcement action, (cite), in the appropriate
U.S. District Court....(Please see casefile for
complete text) Should the EPA opt to submit the
administrative record rather than to pursue an en-
forcement action or to withdraw its Orders, peti-
tioners and respondents are ordered to file,
within 21 days of such submission, supplemental
briefs, not to exceed 15 pgs, assessing the im-
6/19/01
6/19/01
8/3/01
7
pact, if any, (cite), on the question whether it is
the EPA or ADEC which has the ultimate author-
ity to make BACT determinations. The parties
shall provide notice of the status of these pro-
ceedings to this Court within 60 days hereof.
Submission of this matter is hereby vacated until
further notice by this Court. IT IS SO OR-
DERED. [00-70166, 00-70169, 00-70175, 00-
70301] (af) [00-70166 00-70169 00-70175 00-
70301]
Filed original and 15 copies Respondent EPA’s
supplemental brief of 11 pages, served on
6/18/01. (per 3/27/01 ct’s order) (PANEL) [00-
70166, 00-70169, 00-70175, 00-70301] (af) [00-
70166 00-70169 00-70175 00-70301 ]
Filed original and 15 copies Petitioner State of
Alaska, Petitioner Cominco Alaska Incorpo-
rated’s supplemental brief of 13 pages, served on
6/18/01. (per 3/27/01 ct’s order) (PANEL) [00-
70166, 00-70169, 00-70175, 00-70301] (af) [00-
70166 00-70169 00-70175 00-70301]
Filed Order (Stephen R. REINHARDT, Kim M.
WARDLAW, Ronald M. GOULD) The Alaska
Dept of Environment Conservation’s (“ADEC”)
motion for leave to file a response to the EPA’s
Hardesty Declaration is DENIED. We further
order, however, ADEC and Cominco Alaska,
Inc. (“Cominco”) to file a response to the
Hardesty Declaration that states whether they
agree that the material provided by the EPA and
described in the Hardesty Declaration constitutes
the complete administrative record in this pro-
ceedings as both a factual and legal matter. If
ADEC and Cominco contend that the materials
described in the Hardesty Declaration do not
constitute a complete administrative record, they
are further ordered to provide legal authority for
2/28/02
8
this proposition and evidence that additional ma-
terial exists. In addition, they are ordered to pro-
vide legal authority for any proposed form of re-
lief, such as discovery, they may seek to remedy
any asserted failure by the EPA to provide the
complete administrative record. ADEC and
Cominco are further ordered to file their re-
sponses or a combined response within 14 days
of the date hereof. The EPA may file a response
within 10 days thereafter. IT IS SO ORDERED.
[00-70166, 00-70169, 00-70175, 00-70301] (af)
[00-70166 00-70169 00-70175 00-70301 ]
Filed Order (Stephen R. REINHARDT, Kim M.
WARDLAW, Ronald M. GOULD) Having con-
sidered the recent submissions of the parties
agreeing to the factual record on appeal and the
brfs filed beginning in 6/2000 (almost two yrs
ago), we have determined that supp briefing
would be of assistance in the determination of
the cause. Therefore, it is ORDERED that each
side file a supp brf not to exceed 25 pgs within
28 days of the date hereof on the following ques-
tion: whether it is the state of Alaska (through
ADEC) or the EPA that bears the ultimate legal
authority and responsibility under the Clean Air
Act to determine whether an individual Preven-
tion of Significant Deterioration permit issued by
Alaska pursuant to its State Implementation Plan
(SIP) meets the requirements of the Clean Air
Act or the SIP. If any party desires additional
oral argument in this matter, it should file a re-
quest, along with a brf statement of the reasons it
believes additional argument is necessary. It is so
ORDERED. (served PANEL; phoned and faxed
to csls at 3:00p.m.; c.c. Front Counter) [00-
70166, 00-70169, 00-70175, 00-70301] (af) [00-
70166 00-70169 00-70175 00-70301]
3/28/02
3/29/02
4/1/02
7/30/02
7/30/02
7/30/02
9
Filed Original and 15 copies of Respondent
EPA’s Supplemental brief of 25 pages pursuant
to ct’s order of 2/28/02; served on 3/27/02.
(Fedex to PANEL) [00-70166, 00-70169, 00-
70175, 00-70301] (af) [00-70166 00-70169 00-
70175 00-70301]
Filed Original and 15 copies Petitioner Cominco
Alaska Incorporated’s supplemental brief of 25
pages, served on 3/28/02. (Fedex to PANEL)
[00-70166, 00-70169, 00-70175, 00-70301] (af)
[00-70166 00-70169 00-70175 00-70301 ]
Filed original and 15 copies Petitioner State of
Alaska in 00-70166 supplemental brief of 10
pages, served on 3/28/02. (Fedex to PANEL)
[00-70166, 00-70169, 00-70175, 00-70301] (af)
[00-70166 00-70169 00-70175 00-70301 ]
Filed Order (Stephen R. REINHARDT, Kim M.
WARDLAW, Ronald M. GOULD) This cs is
hereby resubmitted as of the date of this order.
[00-70166, 00-70169, 00-70175, 00-70301] (af)
[00-70166 00-70169 00-70175 00-70301]
Case resubmitted on this date to Stephen R.
REINHARDT, Kim M. WARDLAW, Ronald M.
GOULD. (See previous deferral of submission.)
Order filed: 7/30/02. [00-70166, 00-70169, 00-
70175, 00-70301] (af) [00-70166 00-70169 00-
70175 00-70301]
FILED OPINION: DENIED. (Terminated on the
Merits after Oral Hearing; Enforced; Written,
Signed, Published. Stephen R. REINHARDT;
Kim M. WARDLAW, author; Ronald M.
GOULD.) FILED AND ENTERED JUDG-
MENT. [00-70166, 00-70169, 00-70175, 00-
70301] (af) [00-70166 00-70169 00-70175 00-
70301]
9/23/02
11/4/02
2/28/03
10
MANDATE ISSUED [00-70166, 00-70169, 00-
70175, 00-70301] (af) [00-70166 00-70169 00-
70175 00-70301)}
Received notice from Supreme Court: petition
for certiorari filed on 10/25/02 and placed on the
docket 10/31/02; Supreme Court No. 02-658.
(CASEFILES) [00-70166, 00-70169, 00-70175,
00-70301} (af) [00-70166 00-70169 00-70175
00-70301]
Received notice from Supreme Court, petition
for certiorari GRANTED on 2/24/03. Supreme
Court No. 02-658. (faxed to PANEL) (re-
entered) (af) [00-70166 00-70169 00-70175 00-
70301)
- ee
11
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 00-70169
TECK COMINCO ALASKA INCORPORATED,
Petitioner,
v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
DOCKET ENTRIES
DATE
PROCEEDINGS
2/8/00
3/20/00
4/4/00
FILED PETITION FOR REVIEW; DOCKETED
CAUSE AND ENTERED APPEARANCES OF
COUNSEL. NOTIFIED RESPONDENTS OF
FILING. Setting schedule as follows: petitioners’
opening brief is due 5/1/00; respondents’ brief is
due 5/31/00; petitioner’s optional reply brief is
due within fourteen days from service of the an-
swering brief. [00-70169] (dl) {00-70169]
Filed joint mtn to consolidate (00-70166/
70169/70175/70301) set coordinated briefing
schedule, and extend deadline for filing of the
certified index to record; served 3/17/00.
(MOATT via PROMO) [00-70166, 00-70169,
00-70175, 00-70301} [3873459] (rc) [00-70166
00-70169 00-70175 00-70301]
Received Respondent EPA’s opposition to
motion for stay and cross-motion to dismiss;
4/6/00
4/17/00
4/19/00
4/28/00
5/9/00
6/1/00
12
served on 4/3/00. (opposition exceeds FRAP lim-
its - motion pending - MoAtt) [00-70166, 00-
70169, 00-70175, 00-70301] (dl) [00-70166 00-
70169 00-70175 00-70301 }
Received Respondent EPA’s addendum to
opposition to petitioner’s motion for stay and
cross-motion to dismiss; served on 4/5/00.
(MoAtt) [00-70166, 00-70169, 00-70175, 00-
70301] (dl) [00-70166 00-70169 00-70175 00-
70301]
Received Cominco Alaska in 00-70169, 00-
70175, 00-70301 reply in opposition to motion to
dismiss. served on 4/14/00 MOATT [00-70166,
00-70169, 00-70175, 00-70301] (vt) [00-70166
00-70169 00-70175 00-70301 ]
Received State’s opposition to EPA’S motion to
dismiss petitions. (served on 4/14/00 MOATT
[00-70166, 00-70169, 00-70175, 00-70301]} (vt)
[00-70166 00-70169 00-70175 00-70301]
Received Respondents’ reply in support of mtn
to dismiss petitions for lack of subject matter ju-
risdiction; unopposed mtn of respondents for
leave to file an oversized reply in support of mtn
to dismiss petition for lack of subject matter ju-
risdiction; respondents’ ntc of suppl administra-
tive action; served on 4/27/00. (MOATT) [00-
70166, 00-70169, 00-70175, 00-70301] (rc) [00-
70166 00-70169 00-70175 00-70301 }
Received Cominco Alaska opposition to motion
to dismiss. (served on 5/8/00 MOATT [00-
70166, 00-70169, 00-70175, 00-70301] (vt) [00-
70166 00-70169 00-70175 00-70301 ]
Filed order ( Harry PREGERSON, Ferdinand F.
FERNANDEZ, Kim M. WARDLAW ): Peti-
tioner the State of Alaska Department of Envi-
ronmental Conservation (“ADEC”), petitioner
13
Cominco Alaska Incorporated (“Cominco”) and
respondents the U.S. Environmental Protection
Agency, Carol M. Browner and Chuck Clarke’s
(EPA) 3/20/00 joint motion to consolidate peti-
tion 00-70166, 00-70169, 00-70175 and 00-
70301 is granted. Petition nos. 00-70166, 00-
70169, 00-70175 and 00-70301 are consolidated.
Petitioner Cominco’s unopposed motion for
leave to file an oversized motion for Stay is
granted. The Clerk shall file Cominco’s 3/20/00
motion for stay. Petitioner ADEC’s March 31,
2000 motion for joinder in Cominco’s motion for
stay of the EPA’s 12/10/99, 2/8/00 and 3/7/00
orders pending appeal is granted. Respondents’
March 28, 2000 motion for extension of time to
file the response to petitioners’ motion for Stay is
granted. Respondents’ unopposed 4/4/00 motion
for leave to file an oversized opposition to peti-
tioners’ motion for stay is granted. The Clerk
shall file respondents’ 4/4/00 opposition to peti-
tioners’ motion for stay, and respondents cross-
motion to dismiss. The Clerk shall also file re-
spondents’ 4/6/00 addendum to its opposition to
the motion for stay, and respondents’ motion to
dismiss. Petitioner Cominco’s unopposed motion
to file an oversized reply in support of its motion
to dismiss is granted. The Clerk shall file the re-
ply received 4/28/00. Petitioner Cominco’s mo-
tion to file a surreply in opposition to respon-
dents’ motion to dismiss is granted. The Clerk
shall file the surreply rec’d 5/9/00. The Clerk
shall file petitioner ADEC’s 4/19/00 opposition
>A + agp — to dismiss. Petitioner
’s motion to file a surreply in opposition
to respondents’ motion to dismiss is granted. The
surreply was filed 5/11/00. Petitioner ADEC’s
motion for oral argument is denied. Petitioner
Cominco’s March 20, 2000 motion to Stay re-
6/29/00
14
spondent EPA’s 12/10/99, 2/8/00 and 3/7/00 or-
ders pending appeal is denied. Respondents’
4/4/00 cross-motion to dismiss is denied. The
3/20/00 joint motion of Petitioners ADEC,
Cominco and respondent EPA to extend the time
to file the certified index to the admin record is
granted. The certified index to the admin record
is due 6/26/00. Respondents’ 4/3/00 motion to
stay filing of the certified index to the admin re-
cord is denied as moot. The following briefing
schedule shall govern these consolidated peti-
tions for review: the opening briefs are due
6/26/00; the answering brief is due 7/26/00. Re-
quests for extension of time will be looked upon
with disfavor. All parties on a side are encour-
aged to join in a single brief to the greatest extent
practicable. All briefs shall comply with the page
and type-volume limitations set forth in FRAP
32(a)(7). If all parties on a side file a joint brief,
these parties may, in accordance with Ninth Cir-
cuit Rule 28-4, timely move for enlargement of
size of 5 monotype pages or 1,400 words. Re-
quests for enlargement of size greater than 5
pages or 1,400 words will be looked upon with
extreme disfavor. MOTION FOR STAY DE-
NIED; MOTION TO DISMISS DENIED. [00-
70166, 00-70169, 00-70175, 00-70301] (ft) (00-
70166 00-70169 00-70175 00-70301}]
Filed original and 15 copies Petitioner State of
Alaska in 00-70166, Petitioner Cominco Alaska
in 00-70169, Petitioner Cominco Alaska Inc. in
00-70175, Petitioner Cominco Alaska in 00-
70301 opening brief ( Informal: n) 57 pages and
five excerpts of record in 2 volumes; served on
6/26/00 [00-70166, 00-70169, 00-70175, 00-
70301} (je) [00-70166 00-70169 00-70175 00-
70301]
8/17/00
9/7/00
1/10/01
1/11/01
15
Filed original and 15 copies respondent EPA in
00-70166, 00-70169, 00-70175, 00-70301 in 66
pages brief, 5 Exc. in | vol; served on 8/16/00.
[00-70166, 00-70169, 00-70175, 00-70301] (af)
[00-70166 00-70169 00-70175 00-70301}]
Filed original and 15 copies State of Alaska,
Cominco Alaska, Cominco Alaska Inc., Cominco
Alaska’s reply brief, ( Informal: no ) 46 pages;
with 5 Sup. Exc of Record in | volume; served
on 9/5/00. [00-70166, 00-70169, 00-70175, 00-
70301] (af) [00-70166 00-70169 00-70175 00-
70301)
Filed Order (Deputy Clerk: gb) Petitioner’s
motion to expedite and decision on appeal is
DENIED. Petitioner’s motion to allow longer
oral argument is also DENIED. NANA Regional
Corporation, Inc.’s motion for leave to file an
amicus letter brief is GRANTED. This letter
brief is hereby submitted. NANA Regional Cor-
poration, Inc. shall be notified by mail through
its general counsel, Jacquelyn R. Luke, at 1001
E. Benson Blvd., Anchorage, AK 99508
(907)265-4148. The Native Village of Kivalina’s
motion for leave to file an amicus letter brief is
GRANTED. This letter brief is hereby submitted.
The Native Village of Kivalina shall be notified
by mail through its atty and trustee, Michael J.
Frank, at 1026 West 4th Ave., Ste 201, Anchor-
- age, AK 99501 (907)276-4244x116) (faxed to
PANEL and phoned counsels at 3:00p.m.) [00-
70166, 00-70169, 00-70175, 00-70301] (af) [00-
70166 00-70169 00-70175 00-70301 }
FILED CERTIFIED COPY OF ADMINISTRA-
TIVE RECORD ON APPEAL: 1 CARTON
CONTAINING 87 DOCUMENTS.(ORIGINAL)
[00-70166] [00-70166] (sd) [00-70166]
2/9/01
2/13/01
3/27/01
16
Received Andrew J. Doyle for Respondent EPA
letter dated 2/8/01 re: current event relating to
the Dec 10, 99 prevention of significant deterio-
ration construction permit (No.9932-AC005) that
Petitioner State of Alaska, Dept of Environ-
mental Conservation issued to Petitioner Comin-
co Alaska, Inc. (with attachment) (faxed to
PANEL) [00-70166, 00-70169, 00-70175, 00-
70301] (af) [00-70166 00-70169 00-70175 00-
70301]
ARGUED AND SUBMITTED TO Stephen R.
REINHARDT, Kim M. WARDLAW, Ronald M.
GOULD [00-70166, 00-70169, 00-70175, 00-
70301] (ss) [00-70166 00-70169 00-70175 00-
70301]
Filed Order (FOR PUBLICATION) (Stephen R.
REINHARDT, Kim M. WARDLAW, Ronald M.
GOULD) Within 60 days of this order, the EPA
may either (1) submit a complete administrative
record which will allow this Court to review the
justification for the EPA’s decision to issue the
Orders before us; (2) withdraw the Orders that
are the subjects of these petitions or (3) file an
enforcement action, (cite), in the appropriate
U.S. District Court....(Please see casefile for
complete text) Should the EPA opt to submit the
administrative record rather than to pursue an en-
forcement action or to withdraw its Orders, peti-
tioners and respondents are ordered to file,
within 21 days of such submission, supplemental
briefs, not to exceed 15 pgs, assessing the im-
pact, if any, (cite), on the question whether it is
the EPA or ADEC which has the ultimate author-
ity to make BACT determinations. The parties
shall provide notice of the status of these pro-
ceedings to this Court within 60 days hereof.
Submission of this matter is hereby vacated until
6/19/01
6/19/01
8/3/01
17
further notice by this Court. IT IS SO OR-
DERED. [00-70166, 00-70169, 00-70175, 00-
70301] (af) [00-70166 00-70169 00-70175 00-
70301}
Filed original and 15 copies Respondent EPA’s
supplemental brief of 11 pages, served on
6/18/01. (per 3/27/01 ct’s order) (PANEL) [00-
70166, 00-70169, 00-70175, 00-70301] (af) [00-
70166 00-70169 00-70175 00-70301]
Filed original and 15 copies Petitioner State of
Alaska, Petitioner Cominco Alaska Incorpo-
rated’s supplemental brief of 13 pages, served on
6/18/01. (per 3/27/01 ct’s order) (PANEL) [00-
70166, 00-70169, 00-70175, 00-70301] (af) [00-
70166 00-70169 00-70175 00-70301 }
Filed Order (Stephen R. REINHARDT, Kim M.
WARDLAW, Ronald M. GOULD) The Alaska
Dept of Environment Conservation’s (“ADEC”)
motion for leave to file a response to the EPA’s
Hardesty Declaration is DENIED. We further
order, however, ADEC and Cominco Alaska,
Inc. (“Cominco”) to file a response to the
Hardesty Declaration that states whether they
agree that the material provided by the EPA and
described in the Hardesty Declaration constitutes
the complete administrative record in this pro-
ceedings as both a factual and legal matter. If
ADEC and Cominco contend that the materials
described in the Hardesty Declaration do not
constitute a complete administrative record, they
are further ordered to provide legal authority for
this proposition and evidence that additional ma-
terial exists. In addition, they are ordered to pro-
vide legal authority for any proposed form of re-
lief, such as discovery, they may seek to remedy
any asserted failure by the EPA to provide the
complete administrative record. ADEC and
2/28/02
3/28/02
18
Cominco are further ordered to file their re-
sponses or a combined response within 14 days
of the date hereof. The EPA may file a response
within 10 days thereafter. IT IS SO ORDERED.
[00-70166, 00-70109, 00-70175, 00-70301] (af)
[00-70166 00-70169 00-70175 00-70301)
Filed Order (Stephen R. REINHARDT, Kim M.
WARDLAW, Ronald M. GOULD,) Having con-
sidered the recent submissions of the parties
agreeing to the factual record on appeal and the
brfs filed beginning in 6/2000 (almost two yrs
ago), we have determined that supp briefing
would be of assistance in the determination of
the cause. Therefore, it is ORDERED that each
side file a supp brf not to exceed 25 pgs within
28 days of the date hereof on the following ques-
tion: whether it is the state of Alaska (through
ADEC) or the EPA that bears the ultimate legal
authority and responsibility under the Clean Air
Act to determine whether an individual Preven-
tion of Significant Deterioration permit issued by
Alaska pursuant to its State Implementation Plan
(SIP) meets the requirements of the Clean Air
Act or the SIP. If any party desires additional
oral argument in this matter, it should file a re-
quest, along with a brf statement of the reasons it
believes additional argument is necessary. It is so
ORDERED. (served PANEL; phoned and faxed
to csls at 3:00p.m.; c.c. Front Counter) [00-
70166, 00-70169, 00-70175, 00-70301] (af) [00-
70166 00-70169 00-70175 00-70301]
Filed original and 15 copies of Respondent
EPA’s Supplemental brief of 25 pages pursuant
to ct’s order of 2/28/02; served on 3/27/02.
(Fedex to PANEL) [00-70166, 00-70169, 00-
70175, 00-70301] (af) [00-70166 00-70169 00-
70175 00-70301}
|
——
3/29/02
4/1/02
4/1/02
7/30/02
7/30/02
7/30/02
19
Filed Original and 15 copies Petitioner Cominco
Alaska Incorporated’s supplemental brief of 25
pages, served on 3/28/02. (Fedex to PANEL)
[00-70166, 00-70169, 00-70175, 00-70301] (af)
[00-70166 00-70169 00-70175 00-70301 ]
Filed Original and 15 copies Petitioner State of
Alaska in 00-70166 supplemental brief of 10
pages, served on 3/28/02. (per 2/28/02 order of
the ct) (PANEL) [00-70166, 00-70169, (af) [00-
70169 00-70175 00-70301]
Filed original and 15 copies Petitioner State of
Alaska in 00-70166 supplemental brief of 10
pages, served on 3/28/02. (Fedex to PANEL)
[00-70166, 00-70169, 00-70175, 00-70301] (af)
[00-70166 00-70169 00-70175 00-70301]
Filed Order (Stephen R. REINHARDT, Kim M.
WARDLAW, Ronald M. GOULD) ‘his cs is
hereby resubmitted as of the date of this order.
[00-70166, 00-70169, 00-70175, 00-70301] (af)
[00-70166 00-70169 00-70175 00-70301 }
Case resubmitted on this date to Stephen R.
REINHARDT, Kim M. WARDLAW, Ronald M.
GOULD. (See previous deferral of submission.)
Order filed: 7/30/02. [00-70166, 00-70169, 00-
70175, 00-70301] (af) [00-70166 00-70169 00-
70175 00-70301]
FILED OPINION: DENIED. (Terminated on the
Merits after Oral Hearing; Enforced; Written,
Signed, Published. Stephen R. REINHARDT;
Kim M. WARDLAW, author; Ronald M.
GOULD.) FILED AND ENTERED JUDG-
MENT. [Gu-70166, 00-70169, 00-70175, 00-
70301] (af) [00-70166 00-70169 00-70175 00-
70301}
9/23/02
11/4/02
2/28/03
20
MANDATE ISSUED [00-70166, 00-70169, 00-
70175, 00-70301] (af) [00-70166 00-70169 00-
70175 00-70301]
Received notice from Supreme Court: petition
for certiorari filed on 10/25/02 and placed on the
docket 10/31/02; Supreme Court No. 02-658.
(CASEFILES) [00-70166, 00-70169, 00-70175,
00-70301} (af) [00-70166 00-70169 00-70175
00-70301}]
Received notice from Supreme Court, petition
for certiorari GRANTED on 2/24/03. Supreme
Court No. 02-658. (faxed to PANEL) (re-
entered) (af) [00-70166 00-70169 00-70175 00-
70301]
21
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 00-70175
TECK COMINCO ALASKA INCORPORATED,
Petitioner,
Vv.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
DOCKET ENTRIES
DATE
PROCEEDINGS
OR mE ma em,
2/15/00
3/20/00
FILED PETITION FOR REVIEW DOCKETED
CAUSE AND ENTERED APPEARANCES OF
COUNSEL, NOTIFIED RESPONDENTS OF
FILING, SENT PETITIONER CIVIL APPEALS
DOCKETING STATEMENT. setting schedule
as follows: petitioners’ opening brief is due
5/5/00; respondents’ brief is due 6/5/00; peti-
tioner’s optional reply brief is due 6/19/00. [00-
70175] (vt) [00-70175]
Filed joint mtn to consolidate (00-70166/
70169/70175/70301) set coordinated briefing
schedule, and extend deadline for filing of the
certified index to record; served 3/17/0v.
(MOATT via PROMO) [00-70166, 00-70169,
00-70175, 00-70301] [3873459] (rc) [00-70166
00-70169 00-70175 00-70301]
4/4/00
4/6/00
4/17/00
4/19/00
4/28/00
5/9/00
6/1/00
22
Received Respondent EPA’s opposition to
motion for stay and cross-motion to dismiss;
served on 4/3/00. (opposition exceeds FRAP lim-
its - motion pending - MoAtt) [00-70166, 00-
70169, 00-70175, 00-70301] (dl) [00-70166 00-
70169 00-70175 00-70301 ]}
Received Respondent EPA’s addendum to
opposition to petitioner’s motion for stay and
cross-motion to dismiss; served on 4/5/00.
(MoAtt) [00-70166, 00-70169, 00-70175, 00-
70301] (dl) [00-70166 00-70169 00-70175 00-
70301)
Received Cominco Alaska in 00-70169, 00-
70175, 00-70301 reply in opposition to motion to
dismiss. served on 4/14/00 MOATT [00-70166,
00-70169, 00-70175, 00-70301] (vt) [00-70166
00-70169 00-70175 00-70301}]
Received State’s opposition to EPA’s motion to
dismiss petitions. (served on 4/14/00 MOATT
[00-70166, 00-70169, 00-70175, 00-70301] (vt)
[00-70166 00-70169 00-70175 00-70301]
Received Respondents’ reply in support of mtn
to dismiss petitions for lack of subject matter ju-
risdiction; unopposed mtn of respondents for
leave to file an oversized reply in support of mtn
to dismiss petition for lack of subject matter ju-
risdiction; respondents’ ntc of suppl administra-
tive action; served on 4/27/00. (MOATT) [00-
70166, 00-70169, 00-70175, 00-70301] (rc) [00-
70166 00-70169 00-70175 00-70301}]
Received Cominco Alaska opposition to motion
to dismiss. (served on 5/8/00 MOATT [00-
70166, 00-70169, 00-70175, 00-70301] (vt) [00-
70166 00-70169 00-70175 00-70301 }
Filed order ( Harry PREGERSON, Ferdinand F.
FERNANDEZ, Kim M. WARDLAW ): Peti-
23
tioner the State of Alaska Department of Envi-
ronmental Conservation (“ADEC”), petitioner
Cominco Alaska Incorporated (“Cominco”) and
respondents the U.S. Environmental Protection
Agency, Carol M. Browner and Chuck Clarke’s
(EPA) 3/20/00 joint motion to consolidate peti-
tion 00-70166, 00-70169, 00-70175 and 00-
70301 is granted. Petition nos. 00-70166, 00-
70169, 00-70175 and 00-70301 are consolidated.
Petitioner Cominco’s unopposed motion for
leave to file an oversized motion for stay is
granted. The Clerk shall file Cominco’s 3/20/00
motion for stay. Petitioner ADEC’s March 31,
2000 motion for joinder in Cominco’s motion for
stay of the EPA’s 12/10/99, 2/8/00 and 3/7/00
orders pending appeal is granted. Respondents’
March 28, 2000 motion for extension of time to
file the response to petitioners’ motion for stay is
granted. Respondents’ unopposed 4/4/00 motion
for leave to file an oversized opposition to peti-
tioners’ motion for stay is granted. The Clerk
shall file respondents’ 4/4/00 opposition to peti-
tioners’ motion for stay, and respondents cross-
motion to dismiss. The Clerk shall also file re-
spondents’ 4/6/00 addendum to its opposition to
the motion for stay, and respondents’ motion to
dismiss. Petitioner Cominco’s unopposed motion
to file an oversized reply in support of its motion
to dismiss is granted. The Clerk shall file the re-
ply received 4/28/00. Petitioner Cominco’s mo-
tion to file a surreply in opposition to respon-
dents’ motion to dismiss is granted. The Clerk
shall file the surreply rec’d 5/9/00. The Clerk
shall file petitioner ADEC’s 4/19/00 opposition
to respondents’ motion to dismiss. Petitioner
ADEC’s motion to file a surreply in opposition
to respondents’ motion to dismiss is granted. The
surreply was filed 5/11/00. Petitioner ADEC’s
6/29/00
24
motion for oral argument is denied. Petitioner
Cominco’s March 20, 2000 motion to stay re-
spondent EPA’s 12/10/99, 2/8/00 and 3/7/00 or-
ders pending appeal is denied. Respondents’
4/4/00 cross-motion to dismiss is denied. The
3/20/00 joint motion of Petitioners ADEC,
Cominco and respondent EPA to extend the time
to file the certified index to the admin record is
granted. The certified index to the admin record
is due 6/26/00. Respondents’ 4/3/00 motion to
stay filing of the certified index to the admin re-
cord is denied as moot. The following briefing
schedule shall govern these consolidated peti-
tions for review: the opening briefs are due
6/26/00; the answering brief is due 7/26/00. Re-
quests for extension of time will be looked upon
with disfavor. All parties on a side are encour-
aged to join in a single brief to the greatest extent
practicable. All briefs shall comply with the page
and type-volume limitations set forth in FRAP
32(a)(7). If all parties on a side file a joint brief,
these parties may, in accordance with Ninth Cir-
cuit Rule 28-4, timely move for enlargement of
size of 5 monotype pages or 1,400 words. Re-
quests for enlargement of size greater than 5
pages or 1,400 words will be looked upon with
extreme disfavor. MOTION FOR STAY DE-
NIED; MOTION TO DISMISS DENIED. [00-
70166, 00-70169, 00-70175, 00-70301)] (ft) [00-
70166 00-70169 00-70175 00-70301}
Filed original and 15 copies Petitioner State of
Alaska in 00-70166, Petitioner Cominco Alaska
in 00-70169, Petitioner Cominco Alaska Inc. in
00-70175, Petitioner Cominco Alaska in 00-
70301 opening brief ( Informal: n) 57 pages and
five excerpts of record in 2 volumes; served on
6/26/00 [00-70166, 00-70169, 00-70175, 00-
8/17/00
9/7/00
12/13/00
1/10/01
25
70301] (je) [00-70166 00-70169 00-70175 00-
70301]
Filed original and 15 copies respondent EPA in
00-70166, 00-70169, 00-70175, 00-70301 in 66
pages brief, 5 Exc. in | vol; served on 8/16/00.
[00-70166, 00-70169, 00-70175, 00-70301] (af)
[00-70166 00-70169 00-70175 00-70301 ]
Filed original and 15 copies State of Alaska,
Cominco Alaska, Cominco Alaska Inc., Cominco
Alaska’s reply brief, ( Informal: no ) 46 pages;
with 5 Sup. Exe of Record in | volume; served
on 9/5/00. [00-70166, 00-70169, 00-70175, 00-
70301] (af) [00-70166 00-70169 00-70175 00-
70301)
Received Cominco Alaska’s additional citations;
served on 12/12/00. (RECORDS FOR MERIT
PANEL) [00-70166, 00-70169, 00-70175, 00-
70301] (af) [00-70166 00-70169 00-70175 00-
70301]
Filed Order (Deputy Clerk: gb) Petitioner’s
motion to expedite and decision on appeal is
DENIED. Petitioner’s motion to allow longer
oral argument is also DENIED. NANA Regional
Corporation, Inc.’s motion for leave to file an
amicus letter brief is GRANTED. This letter
brief is hereby submitted. NANA Regional Cor-
poration, Inc. shall be notified by mail through
its general counsel, Jacquelyn R. Luke, at 1001
E. Benson Blvd., Anchorage, AK 99508
(907)265-4148. The Native Village of Kivalina’s
motion for leave to file an amicus letter brief is
GRANTED. This letter brief is hereby submitted.
The Native Village of Kivalina shall be notified
by mail through its atty and trustee, Michael J.
Frank, at 1026 West 4th Ave., Ste 201, Anchor-
age, AK 99501 (907)276-4244x116) (faxed to
PANEL and phoned counsels at 3:00p.m.) [00-
1/11/01
2/9/01
2/13/01
3/27/01
26
70166, 00-70169, 00-70175, 00-70301] (at) [00-
70166 00-70169 00-70175 00-70301 ]
FILED CERTIFIED COPY OF ADMINISTRA-
TIVE RECORD ON APPEAL: 1 CARTON
CONTAINING 87 DOCUMENTS.(ORIGINAL)
[00-70166] [00-701 66] (sd) [00-70166]
Received Andrew J. Doyle for Respondent EPA
letter dated 2/8/01 re: current event relating to
the Dec 10, 99 prevention of significant deterio-
ration construction permit (No.9932-AC005) that
Petitioner State of Alaska, Dept of Environ-
mental Conservation issued to Petitioner Comin-
co Alaska, Inc. (with attachment) (faxed to
PANEL) [00-70166, 00-70169, 00-70175, 00-
70301} (af) [00-70166 00-70169 00-70175 00-
70301]
ARGUED AND SUBMITTED TO Stephen R.
REINHARDT, Kim M. WARDLAW, Ronald M.
GOULD [00-70166, 00-70169, 00-70175, 00-
70301] (ss) [00-70166 00-70169 00-70175 00-
70301]
Filed Order (FOR PUBLICATION) (Stephen R.
REINHARDT, Kim M. WARDLAW, Ronald M.
GOULD) Within 60 days of this order, the EPA
may either (1) submit a complete administrative
record which will allow this Court to review the
justification for the EPA’s decision to issue the
Orders before us; (2) withdraw the Orders that
are the subjects of these petitions or (3) file an
enforcement action, (cite), in the appropriate
U.S. District Court....(Please see casefile for
complete text) Should the EPA opt to submit the
administrative record rather than to pursue an en-
forcement action or to withdraw its Orders, peti-
tioners and respondents are ordered to file,
within 21 days of such submission, supplemental
briefs, not to exceed 15 pgs, assessing the im-
6/19/01
6/19/01
8/3/01
27
pact, if any, (cite), on the question whether it is
the EPA or ADEC which has the ultimate author-
ity to make BACT determinations. The parties
shall provide notice of the status of these pro-
ceedings to this Court within 60 days hereof.
Submission of this matter is hereby vacated until
further notice by this Court. IT IS SO OR-
DERED. [00-70166, 00-70169, 00-70175, 00-
70301] (af) [00-70166 00-70169 00-70175 00-
70301}
Filed original and 15 copies Respondent EPA’s
supplemental brief of 11 pages, served on
6/18/01. (per 3/27/01 ct’s order) (PANEL) [00-
70166, 00-70169, 00-70175, 00-70301] (af) [00-
70166 00-70169 00-70175 00-70301]
Filed original and 15 copies Petitioner State of
Alaska, Petitioner Cominco Alaska Incorpo-
rated’s supplemental brief of 13 pages, served on
6/18/01. (per 3/27/01 ct’s order) (PANEL) [00-
70166, 00-70169, 00-70175, 00-70301] (af) [00-
70166 00-70169 00-70175 00-70301]
Filed Order (Stephen R. REINHARDT, Kim M.
WARDLAW, Ronald M. GOULD) The Alaska
Dept of Environment Conservation’s (“ADEC”)
motion for leave to file a response to the EPA’s
Hardesty Declaration is DENIED. We further
order, however, ADEC and Cominco Alaska,
Inc. (“Cominco”) to file a response to the
Hardesty Declaration that states whether they
agree that the material provided by the EPA and
described in the Hardesty Declaration constitutes
the complete administrative record in this pro-
ceedings as both a factual and legal matter. If
ADEC and Cominco contend that the materials
described in the Hardesty Declaration do not
constitute a complete administrative record, they
are furth r ordered to provide legal authority for
2/28/02
28
this proposition and evidence that additional ma-
terial exists. In addition, they are ordered to pro-
vide legal authority for any proposed form of re-
lief, such as discovery, they may seek to remedy
any asserted failure by the EPA to provide the
complete administrative record. ADEC and
Cominco are further ordered to file their re-
sponses or a combined response within 14 days
of the date hereof. The EPA may file a response
within 10 days thereafter. IT IS SO ORDERED.
[00-70166, 00-70169, 00-70175, 00-70301) (af)
[00-70166 00-70169 00-70175 00-70301)
Filed Order (Stephen R. REINHARDT, Kim M.
WARDLAW, Ronald M. GOULD) Having con-
sidered the recent submissions of the parties
agreeing to the factual record on appeal and the
brfs filed beginning in 6/2000 (almost two yrs
ago), we have determined that supp briefing
would be of assistance in the determination of
the cause. Therefore, it is ORDERED that each
side file a supp brf not to exceed 25 pgs within
28 days of the date hereof on the following ques-
tion: whether it is the state of Alaska (through
ADEC) or the EPA that bears the ultimate legal
authority and responsibility under the Clean Air
Act to determine whether an individual Preven-
tion of Significant Deterioration permit issued by
Alaska pursuant to its State Implementation Plan
(SIP) meets the requirements of the Clean Air
Act or the SIP. If any party desires additional
oral argument in this matter, it should file a re-
quest, along with a brf statement of the reasons it
believes additional argument is necessary. It is so
ORDERED. (served PANEL; phoned and faxed
to csls at 3:00p.m.; c.c. Front Counter) [00-
70166, 00-70169, 00-70175, 00-70301] (af) [00-
70166 00-70169 00-70175 00-70301]
3/28/02
3/29/02
4/1/02
4/1/02
7/30/02
7/30/02
7/30/02
29
Filed Original and 15 copies of Respondent
EPA’s Supplemental brief of 25 pages pursuant
to ct’s order of 2/28/02; served on 3/27/02.
(Fedex to PANEL) [00-70166, 00-70169, 00-
70175, 00-70301] (af) [00-70166 00-70169 00-
70175 00-70301]
Filed Original and 15 copies Petitioner Cominco
Alaska Incorporated’s supplemental brief of 25
pages, served on 3/28/02. (Fedex to PANEL)
[00-70166, 00-70169, 00-70175, 00-70301] (af)
[00-70166 00-70169 00-70175 00-70301 }
Filed Original and 15 copies Petitioner State of
Alaska in 00-70166 supplemental brief of 10
pages, served on 3/28/02. (per 2/28/02 order of
the ct) (PANEL) [00-70166, 00-70169, (af) [00-
70169 00-70175 00-70301]
Filed original and 15 copies Petitioner State of
Alaska in 00-70166 supplemental brief of 10
pages, served on 3/28/02. (Fedex to PANEL)
[00-70166, 00-70169, 00-70175, 00-70301] (af)
[00-70166 00-70169 00-70175 00-70301]
Filed Order (Stephen R. REINHARDT, Kim M.
WARDLAW, Ronald M. GOULD) This cs is
hereby resubmitted as of the date of this order.
[00-70166, 00-70169, 00-70175, 00-70301] (af)
[00-70166 00-70169 00-70175 00-70301}]
Case resubmitted on this date to Stephen R.
REINHARDT, Kim M. WARDLAW, Ronald M.
GOULD. (See previous deferral of submission.)
Order filed: 7/30/02. [00-70166, 00-70169, 00-
70175, 00-70301] (af) [00-70166 00-70169 00-
70175 00-70301]
FILED OPINION: DENIED. (Terminated on the
Merits after Oral Hearing; Enforced; Written,
Signed, Published. Stephen R. REINHARDT;
Kim M. WARDLAW, author; Ronald M.
9/23/02
11/4/02
2/28/03
30
GOULD.) FILED AND ENTERED JUDG-
MENT. [00-70166, 00-70169, 00-70175, 00-
70301] (af) [00-70166 00-70169 00-70175 00-
70301}
MANDATE ISSUED [00-70166, 00-70169, 00-
70175, 00-70301] (af) [00-70166 00-70169 00-
70175 00-70301}]
Received notice from Supreme Court: petition
for certiorari filed on 10/25/02 and placed on the
docket 10/31/02; Supreme Court No. 02-658.
(CASEFILES) [00-70166, 00-70169, 00-70175,
00-70301] (af) [00-70166 00-70169 00-70175
00-70301]
Received notice from Supreme Court, petition
for certiorari GRANTED on 2/24/03. Supreme
Court No. 02-658. (faxed to PANEL) (re-
entered) (af) [00-70166 00-70169 00-70175 00-
70301 |
31
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 00-70301
TECK COMINCO ALASKA INCORPORATED,
Petitioner,
V.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Respondent,
CAROL M. BROWNER, Administrator,
and CHUCK CLARKE, Regional Administrator,
Region 10, of the United States
Environmental Protection Agency,
Respondents.
DOCKET ENTRIES
DATE PROCEEDINGS
3/16/00 FILED PETITION FOR REVIEW DOCKETED
| CAUSE AND ENTERED APPEARANCES OF
COUNSEL, NOTIFIED RESPONDENTS OF
FILING, SENT PETITIONER CIVIL APPEALS
DOCKETING STATEMENT. setting schedule
as follows: petitioners’ opening brief is due
6/5/00; respondents’ brief is due 7/5/00; peti-
tioner’s optional reply brief is due 7/18/00. [00-
70301] (vt) [(00-70301]
3/20/00 ~—‘ Filed joint mtn to consolidate (00-70166/
70169/70175/70301) set coordinated briefing
4/4/00
4/6/00
4/17/00
4/19/00
4/28/00
32
schedule, and extend deadline for filing of the
certified index to record; served 3/17/00.
(MOATT via PROMO) [00-70166, 00-70169,
00-70175, 00-70301] [3873459] (re) [00-70166
00-70169 00-70175 00-70301 }
Received Respondent EPA’s opposition to
motion for stay and cross-motion to dismiss;
served on 4/3/00. (opposition exceeds FRAP lim-
its - motion pending - MoAtt) [00-70166, 00-
70169, 00-70175, 00-70301] (dl) [00-70166 00-
70169 00-70175 00-70301]
Received Respondent EPA’s addendum to
opposition to petitioner’s motion for stay and
cross-motion to dismiss; served on 4/5/00.
(MoAtt) [00-70166, 00-70169, 00-70175, 00-
70301] (dl) [00-70166 00-70169 00-70175 00-
70301)
Received Cominco Alaska in 00-70169, 00-
70175, 00-70301 reply in opposition to motion to
dismiss. served on 4/14/00 MOATT [00-70166,
00-70169, 00-70175, 00-70301] (vt) [00-70166
00-70169 00-70175 00-70301}]
Received State’s opposition to EPA’S motion to
dismiss petitions. (served on 4/14/00 MOATT
[00-70166, 00-70169, 00-70175, 00-70301] (vt)
[00-70166 00-70169 00-70175 00-70301]
Received Respondents’ reply in support of mtn
to dismiss petitions for lack of subject matter ju-
risdiction; unopposed mtn of respondents for
leave to file an oversized reply in support of mtn
to dismiss petition for lack of subject matter ju-
risdiction; respondents’ ntc of suppl administra-
tive action; served on 4/27/00. (MOATT) [00-
70166, 00-70169, 00-70175, 00-70301] (rc) [00-
70166 00-70169 00-70175 00-70301]
5/9/00
6/1/00
33
Received Cominco Alaska opposition to motion
to dismiss. (served on 5/8/00 MOATT [00-
70166, 00-70169, 00-70175, 00-70301] (vt) [00-
70166 00-70169 00-70175 00-70301}
Filed order ( Harry PREGERSON, Ferdinand F.
FERNANDEZ, Kim M. WARDLAW ): Peti-
tioner the State of Alaska Department of Envi-
ronmental Conservation (“ADEC”), petitioner
Cominco Alaska Incorporated (“Cominco”) and
respondents the U.S. Environmental Protection
Agency, Carol M. Browner and Chuck Clarke’s
(EPA) 3/20/00 joint motion to consolidate peti-
tion 00-70166, 00-70169, 00-70175 and 00-
70301 is granted. Petition nos. 00-70166, 00-
70169, 00-70175 and 00-70301 are consolidated.
Petitioner Cominco’s unopposed motion for
leave to file an oversized motion for stay is
granted. The Clerk shall file Cominco’s 3/20/00
motion for stay. Petitioner ADEC’s March 31,
2000 motion for joinder i Cominco’s motion for
stay of the EPA’s 12/10/99, 2/8/00 and 3/7/00
orders pending appeal is granted. Respondents’
March 28, 2000 motion for extension of time to
file the response to petitioners’ motion for stay is
granted. Respondents’ unopposed 4/4/00 motion
for leave to file an oversized opposition to peti-
tioners’ motion for stay is granted. The Clerk
shall file respondents’ 4/4/00 opposition to peti-
tioners’ motion for stay, and respondents cross-
motion to dismiss. The Clerk shall also file re-
spondents’ 4/6/00 addendum to its opposition to
the motion for stay, and respondents’ motion to
dismiss. Petitioner Cominco’s unopposed motion
to file an oversized reply in support of its motion
to dismiss is granted. The Clerk shall file the re-
ply received 4/28/00. Petitioner Cominco’s mo-
tion to file a surreply in opposition to respon-
dents’ motion to dismiss is granted. The Clerk
6/29/00
34
shall file the surreply rec’d 5/9/00. The Clerk
shall file petitioner ADEC’s 4/19/00 opposition
to respondents’ motion to dismiss. Petitioner
ADEC’s motion to file a surreply in opposition
to respondents’ motion to dismiss is granted. The
surreply was filed 5/11/00. Petitioner ADEC’s
motion for oral argument is denied. Petitioner
Cominco’s March 20, 2000 motion to stay re-
spondent EPA’s 12/10/99, 2/8/00 and 3/7/00 or-
ders pending appeal is denied. Respondents’
4/4/00 cross-motion to dismiss is denied. The
3/20/00 joint motion of Petitioners ADEC,
Cominco and respondent EPA to extend the time
to file the certified index to the admin record is
granted. The certified index to the admin record
is due 6/26/00. Respondents’ 4/3/00 motion to
stay filing of the certified index to the admin re-
cord is denied as moot. The following briefing
schedule shall govern these consolidated peti-
tions for review: the opening briefs are due
6/26/00; the answering brief is due 7/26/00. Re-
quests for extension of time will be looked upon
with disfavor. All parties on a side are encour-
aged to join in a single brief to the greatest extent
practicable. All briefs shall comply with the page
and type-volume limitations set forth in FRAP
32(a)(7). If all parties on a side file a joint brief,
these parties may, in accordance with Ninth Cir-
cuit Rule 28-4, timely move for enlargement of
size of 5 monotype pages or 1,400 words. Re-
quests for enlargement of size greater than 5
pages or 1,400 words will be looked upon with
extreme disfavor. MOTION FOR STAY DE-
NIED; MOTION TO DISMISS DENIED. [00-
70166, 00-70169, 00-70175, 00-70301] (ft) [00-
70166 00-70169 00-70175 00-70301}
Filed original and 15 copies Petitioner State of
Alaska in 00-70166, Petitioner Cominco Alaska
8/17/00
9/7/00
1/10/01
35
in 00-70169, Petitioner Cominco Alaska Inc. in
00-70175, Petitioner Cominco Alaska in 00-
70301 opening brief ( Informal: n) 57 pages and
five excerpts of record in 2 volumes; served on
6/26/00 [00-70166, 00-70169, 00-70175, 00-
70301] (je) [00-70166 00-70169 00-70175 00-
70301}
Filed original and 15 copies respondent EPA in
00-70166, 00-70169, 00-70175, 00-70301 in 66
pages brief, 5 Exc. in 1 vol; served on 8/16/00.
[00-70166, 00-70169, 00-70175, 00-70301] (af)
[00-70166 00-70169 00-70175 00-70301]
Filed original and 15 copies State of Alaska,
Cominco Alaska, Cominco Alaska Inc., Cominco
Alaska’s reply brief, ( Informal: no ) 46 pages;
with 5 Sup. Exc of Record in 1 volume; served
on 9/5/00. [00-70166, 00-70169, 00-70175, 00-~
70301] (af) [00-70166 00-70169 00-70175 00-
70301]
Filed Order (Deputy Clerk: gb) Petitioner’s
motion to expedite and decision on appeal is
DENIED. Petitioner’s motion to allow longer
oral argument is also DENIED. NANA Regional
Corporation, Inc.’s motion for leave to file an
amicus letter brief is GRANTED. This letter
brief is hereby submitted. NANA Regional Cor-
poration, Inc. shall be notified by mail through
its general counsel, Jacquelyn R. Luke, at 1001
E. Benson Blvd., Anchorage, AK 99508
(907)265-4148. The Native Village of Kivalina’s
motion for leave to file an amicus letter brief is
GRANTED. This letter brief is hereby submitted.
The Native Village of Kivalina shall be notified
by mail through its atty and trustee, Michael J.
Frank, at 1026 West 4th Ave., Ste 201, Anchor-
age, AK 99501 (907)276-4244x116) (faxed to
PANEL and phoned counsels at 3:00p.m.) [00-
1/11/01
2/9/01
2/13/01
3/27/01
36
70166, 06-70169, 00-70175, 00-70301] (af) [00-
70166 00-70169 00-70175 00-70301 ]
FILED CERTIFIED COPY OF ADMINISTRA-
TIVE RECORD ON APPEAL: | CARTON
CONTAINING 87 DOCUMENTS.(ORIGINAL)
[00-70166] [00-70166] (sd) [00-70166]
Received Andrew J. Doyle for Respondent EPA
letter dated 2/8/01 re: current event relating to
the Dec 10, 99 prevention of significant deterio-
ration construction permit (No.9932-AC005) that
Petitioner State of Alaska, Dept of Environ-
mental Conservation issued to Petitioner Comin-
co Alaska, Inc. (with attachment) (faxed to
PANEL) [00-70166, 00-70169, 00-70175, 00-
70301} (af) [00-70166 00-70169 00-70175 00-
70301}
ARGUED AND SUBMITTED TO Stephen R.
REINHARDT, Kim M. WARDLAW, Ronald M.
GOULD [00-70166, 00-70169, 00-70175, 00-
70301] (ss) [00-70166 00-70169 00-70175 00-
70301]
Filed Order (FOR PUBLICATION) (Stephen R.
REINHARDT, Kim M. WARDLAW, Ronald M.
GOULD) Within 60 days of this order, the EPA
may either (1) submit a complete administrative
record which will allow this Court to review the
justification for the EPA’s decision to issue the
Orders before us; (2) withdraw the Orders that
are the subjects of these petitions or (3) file an
enforcement action, (cite), in the appropriate
U.S. District Court....(Please see casefile for
complete text) Should the EPA opt to submit the
administrative record rather than to pursue an en-
forcement action or to withdraw its Orders, peti-
tioners and respondents are ordered to file,
within 21 days of such submission, supplemental
briefs, not to exceed 15 pgs, assessing the im-
ee
6/19/01
6/19/01
8/3/01
37
pact, if any, (cite), on the question whether it is
the EPA or ADEC which has the ultimate author-
ity to make BACT determinations. The parties
shall provide notice of the status of these pro-
ceedings to this Court within 60 days hereof.
Submission of this matter is hereby vacated until
further notice by this Court. IT IS SO OR-
DERED. [00-70166, 00-70169, 00-70175, 00-
70301] (af) [00-70166 00-70169 00-70175 00-
70301]
Filed o1iginal and 15 copies Respondent EPA’s
supplemental brief of 11 pages, served on
6/18/01. (per 3/27/01 ct’s order) (PANEL) [00-
70166, 00-70169, G0-70175, 00-70301] (af) [00-
70166 00-70169 00-70175 00-70301 ]
Filed original and 15 copies Petitioner State of
Alaska, Petitioner Cominco Alaska Incorpo-
rated’s supplemental brief of 13 pages, served on
6/18/01. (per 3/27/01 ct’s order) (PANEL) [00-
70166, 00-70169, 00-70175, 00-70301] (af) [00-
70166 00-70169 00-70175 00-70301 |
Filed Order (Stephen R. REINHARDT, Kim M.
WARDLAW, Ronald M. GOULD) The Alaska
Dept of Environment Conservation’s (“ADEC”’)
motion for leave to file a response to the EPA’s
Hardesty Declaration is DENIED. We- further
order, however, ADEC and Cominco Alaska,
Inc. (“Cominco”) to file a response to the
Hardesty Declaration that states whether they
agree that the material provided by the EPA and
described in the Hardesty Declaration constitutes
the complete administrative record in this pro-
ceedings as both a factual and legal matter. If
ADEC and Cominco contend that the materials
described in the Hardesty Declaration do not
constitute a complete administrative record, they
are further ordered to provide legal authority for
2/28/02
38
this proposition and evidence that additional ma-
terial exists. In addition, they are ordered to pro-
vide legal authority for any proposed form of re-
lief, such as discovery, they may seek to remedy
any asserted failure by the EPA to provide the
complete administrative record. ADEC and
Cominco are further ordered to file their re-
sponses or a combined response within 14 days
of the date hereof. The EPA may file a response
within 10 days thereafter. IT IS SO ORDERED.
[00-70166, 00-70169, 00-70175, 00-70301] (af)
[00-70166 00-70169 00-70175 00-70301 }
Filed Order (Stephen R. REINHARDT, Kim M.
WARDLAW, Ronald M. GOULD) Having con-
sidered the recent submissions of the parties
agreeing to the factual record on appeal and the
brfs filed beginning in 6/2000 (almost two yrs
ago), we have determined that supp briefing
would be of assistance in the determination of
the cause. Therefore, it is ORDERED that each
side file a supp brf not to exceed 25 pgs within
28 days of the date hereof on the following ques-
tion: whether it is the state of Alaska (through
ADEC) or the EPA that bears the ultimate legal
authority and responsibility under the Clean Air
Act to determine whether an individual Preven-
tion of Significant Deterioration permit issued by
Alaska pursuant to its State Implementation Plan
(SIP) meets the requirements of the Clean Air
Act or the SIP. If any party desires additionai
oral argument in this matter, it should file a re-
quest, along with a brf statement of the reasons it
believes additional argument is necessary. It is so
ORDERED. (served PANEL; phoned and faxed
to csls at 3:00p.m.; c.c. Front Counter) [00-
70166, 00-70169, 00-70175, 00-70301] (af) [00-
70166 00-70169 00-70175 00-70301}
za
3/28/02
3/29/02
4/1/02
4/1/02
7/30/02
7/30/02
7/30/02
39
Filed Original and 15 copies of Respondent
EPA’s Supplemental brief of 25 pages pursuant
to ct’s order of 2/28/02; served on 3/27/02.
(Fedex to PANEL) [00-70166, 00-70169, 00-
70175, 00-70301] (af) [00-70166 00-70169 00-
70175 00-70301)]
Filed Original and 15 copies Petitioner Cominco
Alaska Incorporated’s supplemental brief of 25
pages, served on 3/28/02. (Fedex to PANEL)
[00-70166, 00-70169, 00-70175, 00-70301] (af)
[00-70166 00-70169 00-70175 00-70301}
Filed Original and 15 copies Petitioner State of
Alaska in 00-70166 supplemental brief of 10
pages, served on 3/28/02. (per 2/28/02 order of
the ct) (PANEL) [00-70166, 00-70169, (af) [00-
70169 00-70175 00-70301}
Filed original and 15 copies Petitioner State of
Alaska in 00-70166 supplemental brief of 10
pages, served on 3/28/02. (Fedex to PANEL)
[00-70166, 00-70169, 00-70175, 00-70301] (af)
[00-70166 00-70169 00-70175 00-70301]
Filed Order (Stephen R. REINHARDT, Kim M.
WARDLAW, Ronald M. GOULD) This cs is
hereby resubmitted as of the date of this order.
[00-70166, 00-70169, 00-70175, 00-70301] (af)
[00-70166 00-70169 00-70175 00-70301 ]
Case resubmitted on this date to Stephen R.
REINHARDT, Kim M. WARDLAW, Ronald M.
GOULD. (See previous deferral of submission.)
Order filed: 7/30/02. [00-70166, 00-70169, 00-
70175, 00-70301] (af) [00-70166 00-70169 00-
70175 00-70301}
FILED OPINION: DENIED. (Terminated on the
Merits after Oral Hearing; Enforced; Written,
Signed, Published. Stephen R. REINHARDT;
Kim M. WARDLAW, author; Ronald M.
9/23/02
11/4/02
2/28/03
40
GOULD.) FILED AND ENTERED JUDG-
MENT. [00-70166, 00-70169, 00-70175, 00-
70301} (af) [00-70166 00-70169 00-70175 00-
70301]
MANDATE ISSUED [00-70166, 00-70169, 00-
70175, 00-70301] (af) [00-70166 00-70169 00-
70175 00-70301 ]
Received notice from Supreme Court: petition
for certiorari filed on 10/25/02 and placed on the
docket 10/31/02; Supreme Court No. 02-658.
(CASEFILES) [00-70166, 00-70169, 00-70175,
00-70301}] (af) [00-70166 00-70169 00-70175
00-70301]
Received notice from Supreme Court, petition
for certiorari GRANTED on 2/24/03. Supreme
Court No. 02-658. (faxed to PANEL) (re-
entered) (af) [00-70166 00-70169 00-70175 00-
70301]
41
A. EPA NOTICES AND ORDERS
Docmt. | Date Document
No.
l 12/10/99 | Findings of Noncompliance and Order
w/cover letter to Michele Brown, AK.
Dept. of Environmental Conservation
(ADEC) from Chuck Findley, U.S.
Environmental Protection Agency
(EPA)
2 12/10/99 | Three fax confirmation sheets sending
Findings of Noncompliance and Order
to Michele Brown, Cam Leonard, Tom
Chapple and Rick Albright
3 2/8/00 Letter to Michele Brown, ADEC from
Chuck Findley, EPA re: PSD permit
and Finding of Noncompliance and
Order [On file with Court as EPA’s
Opposition to Motion to Stay and
Cross-Motion to Dismiss, Att. 13.]
4 2/8/00 Three fax confirmation sheets to Tom
Chapple, Michele Brown, Cam
Leonard sending 2/8/00 letter
5 2/8/00 Administrative Order w/cover letter to
Norman Maloney, Reg. Agent for
Cominco from Chuck Findley, EPA
6 2/8/00 Six fax confirmation sheets to Tom
Chapple, Michele Brown, Larry
Hartig, John Key, Cameron Leonard,
and Doug Horswell sending Adminis-
trative Order
42
Docmt. | Date Document
No.
7 3/7/00 Amended Administrative Order
w/cover letter to Robert Connery, Esq.
from Chuck Findley, EPA
8 3/7/00 Letter to Norman Mahoney sending
Administrative Order
9 3/7/00 Fax confirmation sheet to John Key,
Larry Hartig, Bob Connery, Michel
[sic] Brown, Marcia Combes, Karen
Blanchard, Greg Foote, and Carol
Holmes
10 4/25/00, | Letter to Michele Brown, ADEC from
Chuck Findley, EPA re: withdrawal of
12/10/99 Order [On file with Court as
EPA’s Opposition to Motion to Stay
and Cross-Motion to Dismiss, A t. 23.]
B. ADEC ANALYSIS, PROPOSED AND FINAL
PERMITS
Docmt. | Date Document
No.
11 7/27/94 | Letter to Charlotte MacCay, Cominco
from Leonard Verrelli, ADEC sending
the findings of ADEC re: permit
12 3/27/96 | Letter to Jack Coutts, ADEC from D.
J. Charlton, Cominco re: a production
rate increase
13 4/2/96 Letter to D. J. Charlton, Cominco from
, Alfred Bohn, ADEC re: Pre-
Construction Waiver for Production
Rate Increase
14 12/4/96 | ADEC Permit to Operate No. 9332-
AA003, Amendment No. 2
-_- - _ Be
a
43
Docmt.
No.
Date
Document
15
1/17/96
[sic]
ADEC Air Quality Control Permit to
Operate No. 9511-AA007 Kensington
Mine
16
5/19/98
Letter to Paul Dusenbury, Cominco
from Robert Cannone, ADEC re: tests
on gyratory crusher
17
5/4/99
ADEC’s Preliminary
Analysis Report for Air Quality
Control Construction Permit No.
9932-AC005 [On file with Court as
EPA’s Opposition to Motion to Stay
and Cross-Motion to Dismiss, Att. 5.]
Technical
18
5/4/99
ADEC’s Air Quality Construction
Preliminary Permit No. 9932-AC005
19
7/29/99
Memo to Jim Baumgartner, ADEC
from John Stone, ADEC re: Excluded
Pre-Construction Monitoring
20
8/5/99
-| Memo to Tom Chapple, ADEC from
Jim Baumgartner, ADEC re: Cominco
Red Dog Mine Particulate Matter
Impacts from the Production Rate
Increase Project and Associated
Activities
21
8/10/99
Memo to Jim Baumgartner, ADEC
from Brian Renninger, ADEC re:
Response to BACT Section of Appen-
dix A of Cominco’s Comments on
Preliminary Technical Analysis Report
for Air Quality Control Construction
Permit No. 9932-AC005, Entitled
Presentation to ADEC of Major Dis-
cretionary Air Quality Issues Pending
Decision at Cominco’s Red Dog Mine
44
Docmt.
No.
Date
Document
45
22
8/11/99
Memo to Tom Chapple, ADEC from
John Stone, ADEC re: review of
ADEC’s preliminary decision for
BACT
Docmt.
No.
Date
Document
29
9/1/99
ADEC’s Final Draft Technical Analy-
sis Report for Air Quality Contro!
Construction Permit, No. 9932-AC005
23
8/12/99
Memo to Cominco Red Dog Mine File
from Jeff Anderson, ADEC re:
Owner-Requested Limits and Ambient
Impacts for Specified Stack Parame-
ters
30
9/3/99
ADEC Aijir Quality Construction —
Permit Final Draft
31
9/20/99
Cominco Alaska Inc. Comments on_
Mine Site Air Permit, TAR and
Response to Comments
24
8/13/99
Memo to John Stone from Bill
Walker, ADEC re: Particulate for 5
MW Diesels
25
8/13/99
Memo to John Stone from Brian
Renninger, ADEC re: Follow-up
Recommendation for the Removal of
the 109,660,000 kW-hr Limit from
Four of Cominco’s Wartsila 5 MW
Generator Sets
32
12/10/99
ADEC’s Air Quality Construction
Permit No. 9932-AC005 [On file with
Court as EPA Opposition to Motion to |
Stay and Cross-Motion to Dismiss,
Att. 12.]
26
8/13/99
Cominco Red Dog Mine Power Plant
NOx Emission Comparison PSD
BACT Options
33
12/10/99
ADEC’s Final Technical Analysis —
Report for Air Quality Control Con-—
struction Permit No. 9932-AC005 [On
file with Court as EPA Opposition to
Motion to Stay and Cross-Motion to —
Dismiss, Att. 10.]
27
8/19/99
Memo to John Stone from Jim
Baumgartner, ADEC re: Consideration
of Cominco’s Request to Revise the
Carbon Monoxide Emission Limit for
Wartsila Sources MG-1 Through
MG-6 and MG-17
34
12/10/99
ADEC’s Response to Comments
Cominco Alaska Red Dog Mine
Production Rate Increase Project Air
Quality Construction Permit No. 9932-
AC005
J
28
8/23/99
ADEC’s Draft Response to Com-
ments, Cominco Alaska Red Dog
Mine Production Rate Increase Project
Air Quality Construction Permits No.
9932-AC005
C. COMINCO PERMIT APPLICATION AND
RELATED SUBMISSIONS
Docmt. | Date Document
No. |
35 12/97 —_| Appendix C, Source Test Results from —
Cominco’s Application for Air Quality —
Control Operating Permit (Title 5)
46
Docmt.
No.
Date
Document
36
6/98
Application for an Air Quality Control
Construction Permit: Production Rate
Increase for Red Dog Mine
37
10/98
Air Quality Control Construction
Permit: Response to 7/27/98 ADEC
Request for More Information for Red
Dog Mine
38
11/98
Air Quality Control Construction
Permit: Response to 11/13/98 ADEC
Request for More Information for Red
Dog Mine
47
Docmt. | Date Document
No.
44 6/99 Comments on Preliminary Technical |
Analysis Report for Air Quality
Control Construction Permit No.
9932-AC005 for Red Dog Mine
45 6/22/99 | Presentation to ADEC of Major
Discretionary Air Quality Issues
Pending Decision at Cominco’s Red
Dog Mine
D. CORRESPONDENCE
39
1/99
Air Quality Control Construction
Permit: Response to 12/7/98 ADEC
Request for More Information for Red
Dog Mine
Docmt.
No.
Date
Document
40
2/99
Amendment and Supplemental Sub-
mission for the 6/98 Production Rate
Increase Permit Request for Red Dog
Mine
41
2/99
Air Quality Control Construction
Permit: Response to 1/28/99 ADEC
Request for More Information for Red
Dog Mine
46
6/2/99
Letter to Jim Baumgartner, ADEC
from John Notar, Department of
Interior (DOI) sending comments on
proposed construction permit [On file
with Court as EPA Opposition to
Motion to Stay and Cross-Motion to
Dismiss, Att. 4.]
47
7/29/99
Letter to Tom Chapple, ADEC from
Anita Frankel, EPA re: EPA’s con-
cerns about proposed permit
42
4/15/99
Letter to Jim Baumgartner, ADEC
from Al Trbovich, Hoefler Consulting
Group re: Amendment III for the 6/98
Production Rate Increase Permit
Request
43
6/99
Comments on Draft Air Quality
Control Construction Permit No.
9932-AC005
48
9/15/99
Letter to Tom Chapple, ADEC from
Anita Frankel, EPA re: EPA’s con-
cerns about final draft permit [On file
with Court as EPA Opposition to
Motion to Stay and Cross-Motion to
Dismiss, Att. 6.]
48
Docmt.
No.
Date
Document
49
9/20/99
Letter to Anita Frankel, EPA from
John Bunyak, DOI re: DOI’s concerns
regarding proposed construction
permit [On file with Court as EPA
Opposition to Motion to Stay and
Cross-Motion to Dismiss, Att. 11.]
50
9/28/99
Letter to Tom Chapple, ADEC from
Anita Frankel, EPA sending EPA’s
staff review of ADEC’s Technical
Analysis Report and PSD Permit for
the Production Rate Increase [On file
with Court as EPA Opposition to
Motion to Stay and Cross-Motion to
Dismiss, Att. 7.]
51
10/8/99
Letter to Anita Frankel, EPA from
Charlotte MacCay, Cominco re:
comments on EPA’s Review of
Cominco PSD permit [On file with
Court as EPA Opposition to Motion to
Stay and Cross-Motion to Dismiss,
Att. 8.]
52
10/18/99
Letter to John Key, Cominco from
Robert Connery, Holland & Hart, LLP
re: EPA Usurpation of Alaska’s
Program for the PSD
53
10/29/99
Memo to Chuck Findley, EPA from
Charlotte MacCay, Cominco re:
EPA’s Oversight of the ADEC PSD
Permit for the Red Dog Mine, includ-
ing memo to EPA from Bob Connery
and Larry Volmert, Holland & Hart re:
oversight
49
Docmt.
No.
Date
Document
54
11/3/99
Letter to Michelle [sic] Brown, ADEC
from Robert Connery, Holland & Hart
re: Alaska’s Role in PSD
55
11/10/99
Letter to Michele Brown, ADEC from
Chuck Findley, EPA re: 10/21/99 mtg
with Cominco [On file with Court as
EPA Opposition to Motion to Stay and
Cross-Motion to Dismiss, Att. 9.]
56
No date
Letter to Chuck Clark [sic], EPA from
John Key, Cominco re: 11/12/99
meeting on air permitting issues and
sending economic information
57
11/19/99
Letter to Charles Clarke, EPA from
Congressman Don Young re: permit
for Cominco Alaska’s Red Dog Mine
expansion
58
12/21/99
EPA’s
Young
response to Congressman
Oe eee ee
59
12/7/99
Faxed memo to Chuck Clark [sic],
EPA from Charlotte MacCay,
Cominco sending 12/6/99 opinion of
Robert Connery and Lawrence Vol-
mert, Holland & Hart re: EPA Author-
ity to Bring Enforcement Action in
Federal District Court under Sec. 167
Without Prior Issuance of Administra-
tive Order
12/27/99
Letter to Eric Yould, Alaska Rural
Electric Cooperative Association
(ARECA) from Michele Brown,
ADEC responding to concerns of rural
utilities
50
Docmt.
No.
Date
Document
61
1/5/00
Letter to Chuck Clarke and Chuck
Findley, EPA from Michele Brown,
ADEC re: concern over EPA’s letter
and Order prohibiting Alaska from
issuing a PSD permit
62
1/12/00
Letter to Erick Yould, ARECA from
Chuck Findley, EPA, clarifying EPA’s
position re: Prevention of Significant
Deterioration (PSD) permits and
applicability of Best Available Control
Technologies (BACT)
63
1/14/00
Letter to Carol Browner, EPA from
Gov. Tony Knowles, State ef Alaska
re: requesting review of EPA’s Order
2/16/00
Letter to Chuck Clarke, Chuck
Findley, Doug Hardesty from Robert
Connery re: Request for Stay [On file
with Court as EPA Opposition to
Motion to Stay and Cross-Motion to
Dismiss, Att. 1.]
65
3/1/00
Letter to Julie Matthews, EPA from
Larry Hartig re: Generator No. 7
(MG-17) Construction Schedule [On
file with Court as EPA Opposition to
Motion to Stay and Cross-Motion to
Dismiss, Att. 22.]
3/14/00
Ltr to Charles Clarke, EPA from John
Key, Cominco re: request for a stay
67
3/14/00
Ltr to Julie Matthews, EPA from
Lawrence Hartig, Esq. re: filing a
motion for stay
51
Docmt. | Date Document
No.
68 4/26/00 | Ltr to John Key, Cominco from
Barbara McAllister, EPA re: construc-
tion schedule and request for stay [On
file with Court as EPA Opposition to
Motion to Stay and Cross-Motion to
Dismiss, Att. 24.]
E. EPA GUIDANCE AND BACT PROCESS
Docmt.
No.
Date
Document
69
12/14/83
Memo to Regional Counsels, et_al.,
EPA from Michael Alushin and
Edward Reich, EPA re: Guidance on
Enforcement of Prevention of Signifi-
cant Deterioration Requirements under
the Clean Air Act
_ —V—— Tee
70
7/15/88
Procedures for EPA to Address
Deficient New Source Permits under
the Clean Air Act [On file with Court
as EPA Opposition to Motion to Stay
and Cross-Motion to Dismiss, Att. 20.]
71
10/90
Draft New Source Review Workshop
Manual, Prevention of Significant
Deterioration and Nonattainment Area
Permitting
52
Docmt.
No.
Date
Document
72
1/22/93
Memo to Scott Fulton, EPA from
Raymond Ludwiszewski, EPA re:
EPA Enforcement Authority with
Respect to Sources Based on a Finding
of a State’s Failure to Comply with
New Source Requirements: The Effect
of the 1990 Amendments-- Legal
Opinion [On file with Court as EPA
Opposition to Motion to Stay and
Cross-Motion to Dismiss, Att. 16.]
53
Docmt. Date Document
No. ,
79 11/18/98 | Approval and Promulgation of State
Implementation Plans; Alaska, Final
Rule, 63 Fed. Reg. 63,983 (1998)
G. MISCELLANEOUS
73
Tables re: NOx controls on engines
74
Permit for Fuel Burning Equipment,
State of Connecticut, Department of
Environmental Protection, Bureau of
Air Management
F. SIP APPROVALS
Docmt. | Date Document
No.
75 7/5/83 Approval and Promulgation of Imple-
mentation Plans; Alaska, Final Rule,
48 Fed. Reg. 30,623 (1983)
76 4/24/84 | Approval and Promulgation of Imple-
4 mentation Plans; Alaska, Final Rule,
49 Fed. Reg. 17,497 (1984)
77 4/26/91 | Approval and Promulgation -of State
Implementation Plans: Alaska, Final
Rule, 56 Fed. Reg. 19,284 (1991)
78 2/16/95 | Approval and Promulgation of Imple-
~
mentation Plans: Alaska, Direct Final
Rule, 60 Fed. Reg. 8943 (1995)
Docmt. | Date Document
No.
80 5/11/94 | Delegation 7-37, CAA Administrative
Enforcement Actiuns: New Source
Review (NSR) Orders
81 5/11/94 | Delegation 7-38, CAA Prevention of
Significant Deterioration: Administra-
tive Enforcement
82 3/21/96 | Delegation R10 1265.1, CAA Regula-
tory Enforcement Orders Enforcing
NSR and PSD Requirements
83 1998 Cominco’s Annual Report, Solid
Progress in a Challenging Year
84 9/8/99, | Information from Cominco’s website
2/3/00
85 Materials provided by Cominco at
10/21/99 meeting:
- Info on PSD permitting for 1988,
1994 and 1999
- Presentation to Alaska Department of
Environmental Conservation of
Major Discretionary Air Quality
Issues Pending Decision at Comin-
co’s Red Dog Mine
- Legal research materials
54
Docmt. | Date Document
No.
86 10/26/99 | Newspaper article from Anchorage
Daily News on Cominco Ltd. [On file
with Court as EPA Opposition to
Motion to Stay and Cross-Motion to
Dismiss, Att. 21.]
87 2/2/00 Delegation of Authority, Cominco Red
Dog Mine
55
ALASKA DEPARTMENT
OF ENVIRONMENTAL CONSERVATION
Juneau, Alaska
PRELIMINARY
TECHNICAL ANALYSIS REPORT
For Air Quality Control Construction Permit
No. 9932-AC005
Cominco Alaska, Inc.
Prevention of Significant Deterioration
Red Dog Mine Production Rate Increase
May 4, 1999
Prepared by: :
Alaska Department of Environmental Conservation
Air Quality Maintenance Section
410 Willoughby Avenue, Suite 105
Juneau, AK 99801
In conjunction with:
Hoefler Consulting
1205 East International Airport Road, Suite 201
Anchorage, AK 99578
atari
56
TABLE OF CONTENTS
l. EXECUTIVE SUMMARY 3
2. INTRODUCTION 7
57
APPENDIX A Tables from the Permit Application
APPENDIX B Control Costs for BACT
APPENDIX C Coastal Zone Project Questionnaire
2.1 Ee 8
ee ee crrtectcctrnresinementenccntermemaniens 8
2.3. PSD APPLICATION REQUIREMENTG............. 12
3. EMISSION STANDARDS 15
3.1 NEW SOURCE PERFORMANCE
oN ecrnsenserdanisenimsnenenuasnnsnsimemesanen 15
3.2 NATIONAL EMISSION STANDARDS
FOR HAZARDOUS AIR POLLUT- 7
" " Gabi See ee ee 20
3.3 ALASKA EMISSION STANDARDG.................. 21 |
+ BEST AVAILABLE CONTROL
TECHNOLOGY 29
4.1.1 Mechanisms of NOx Formation ....................... 31
4.1.2 NOx Control Methods ......................:::ccccceeeeeees 33
44 CONTROL OF PARTICULATE
greene 48
4.4.1 Mechanism of PM-10 Formation...................... 48
4.4.2 PM-10 Control Methods ........................0...:0000 49
4.3 CONTROL OF SULFUR DIOXIDE
EE Wes eee eNO ONE EE 56
4.3.1 Mechanisms of SO) Formation......................... 56
7. PERMIT ADMINISTRATION 83
7.1 Ee 83
+ i — —i(stété‘(i‘ié«*C rr 85
8. CONCLUSIONS 87
9. REFERENCES 89
58
ABBREVIATIONS AND ACRONYMS
BACT Best Available Control Technology
CEM Continuous Emission Monitor
CFR U.S. Code of Federal Regulations
CO Carbon Monoxide
DEC Alaska Department of Environmental
Conservation
EGR Exhaust Gas Re-circulation
EPA U.S. Environmental Protection Agency
ESP Electrostatic Precipitator
FITR Fuel Injection Timing Retard
hp Horsepower
hr Hour
H2S Hydrogen Sulfide
ISO Conditions 288K, 60 pct relative humidity and 101.3
kilopascals pressure
KW Kilowatts
LAER Lowest Available Emission Rate
MMBtu Million British thermal units
NAAQS National Ambient Air Quality Standards
NESHAP National Emission Standards for Hazard-
ous Air Pollutants
NSCR Non-Selective Catalytic Reduction
NSPS New Source Performance Standards
NO Nitric Oxide
NOx Oxides of nitrogen
NO), Nitrogen Dioxide
OLM Ozone Limiting Method
OSHA Occupational Safety and Health Admini-
stration
PM Particulate matter
PM-10 Particulate matter (10 micrometers or less
in size)
ppmdv Parts per million, dry volume basis
PSD Prevention of Significant Deterioration
SCO Selective Catalytic Oxidation
SCR Selective Catalytic Reduction
59
Selective Non-Catalytic Reduction
Sulfur Dioxide
Total suspended particulate (30 mi-
crometers or less)
Volatile organic compounds
Microgram per cubic meter
~
60
* * *
4. BEST AVAILABLE CONTROL TECHNOLOGY
The Department’s goal for the best available contro! technol-
ogy (BACT) review is to evaluate available technologies,
identify BACT for the project’s emission sources, and
establish emission or operational limits which represent
BACT. This review is conducted in accordance with State
and federal rules and guidelines. In this section, the Depart-
ment evaluates the available control technologies for each
emission source and selects BACT. In addition, the Depart-
ment assesses the level of monitoring, record keeping, and
reporting necessary to ensure the applicant applies BACT.
Under the State of Alaska’s PSD Provisions of the Air
Quality Control Regulations, an applicant subject to pre-
construction review must show that BACT will be installed
and used for each new or modified source. BACT is defined
as an emission limit that represents the maximum reduction
achievable for each regulated air contaminant subject to pre-
construction review under the PSD provisions of the Clean
Air Act (CAA). For this project, BACT evaluation is re-
quired for the following contaminants: oxides of nitrogen
(NOx), particulate matter (PM-10), and volatile organic
compounds (VOC).
Application of BACT will not result in emission of any
pollutant which would exceed the emissions- allowed by any
applicable federal standard listed in 40 CFR, Part 60 NSPS,
and 40 CFR 61 National Emission Standards for Hazardous
Air Pollutants (NESHAPS). :
On a case-by-case basis, the Department, taking into account
energy, environmental, and economic impacts, determines
emission limits for new sources or modifications through the
application of production, process, or available control
systems and techniques. The Department identifies available
control technology and evaluates the most effective control
measure available for a stationary source for each pollutant.
61
The Department may propose a balanced approach reducing
all air contaminants in an optimized manner, rather than
achieving the maximum degree of emissions reduction for a
single air contaminant.
The Department evaluates economic feasibility of BACT by
comparing the control cost of each available control technol-
ogy. If the Department determines that technological or
economic constraints of the control system for a particular
pollutant would make the imposition of an emission standard
infeasible, the Department may prescribe a design, equip-
ment, work practice, operational standard, or combination, to
satisfy the requirement for BACT. The Department will set
forth the emission reduction achievable through implementa-
tion of such, design, equipment, work practice, or operation.
As part of a complete application, the applicant must provide
an adequate demonstration that the proposed emission
control system represents BACT for the project. The appli-
cant prepares an economic comparison of available technolo-
gies by summing the annualized capital and operational costs
for a given technology, and dividing the cost sum by the air
contaminant emission rate reduction expected for that
technology. This results in an incremental cost for compari-
son with other technologies analyzed, in terms of cost per ton
of air contaminant reduced. The lower the cost per ton, the
less expensive it is to employ that technology. The Depart-
ment determines the economic feasibility threshold that
reflects the appropriate site-specific level of control for the
pollutant and new sources.
The methodology Cominco used to identify BACT is the
five-step “top-down” methodology set forth in the U.S.
EPA’s proposed New Source Review Rule Revisions (EPA
1990). The first step is to survey alternative control tech-
niques and identify all “available” control options. An
available control option is a practical air pollution control
technology or technique to the emission unit and pollutant
under evaluation.
62
To assist in identifying available controls, Cominco and the
Department reviewed the available controls listed on EPA’s
RACT/BACT/LAER (RBLC) Clearinghouse bulletin board
where permitting agencies nationwide have listed the BACT
control technologies imposed within the past five years.
The second step in the top-down approach evaluates the
technical feasibility of each available control option based on
source-specific factors. The Department deems as techni-
cally infeasible those control options that would clearly result
in technical difficulties that preclude their successful applica-
tion.
Step three determines the effectiveness of control alternatives
for all options not eliminated in step two. The Department
ranks the control options in order of overall control effec-
tiveness for the pollutant under review in a “top-down”
manner.
Step four considers the energy, environmental, and economic
impacts of control options. The step begins with the top-
ranked, technically-feasible control alternative. If the most
effective control option is shown to be inappropriate due to
adverse economic, environmental, or energy impacts, then it
is eliminated and the next most stringent alternative is
evaluated. If the most stringent technology is selected as
BACT, it is not necessary to continue the analysis.
Finally, under step five, the Department proposes the most
effective control option not eliminated in step four as BACT
for the pollutant and emissions unit under review.
All BACT requirements, with limits, monitoring, record
keeping, and reporting obligations are incorporated in
Condition XI of the permit. Table 4-1 below summarizes the
BACT proposed by the Department.
63
Table 4-1 Department BACT Limits
Equipment | NOx CO PM-10 voc
MG-5 & 11 gr/kW- | N/A’ | 2.6 Ib./hr,
MG-17 hr 10% opacity
MG-11 GOP* GOP
MG-12 GOP GOP
MG-13 GOP GOP 0.05 gr/dscf,
MC-1 N/A N/A 20% opacity
MG-14 GOP GOP
MG-15 GOP GOP
MG-16 GOP N/A
GOP
MH-1, MH- | 0.035 GOP N/A
2 & MH-3_ | Ib/MMBtu
MH-4, & GOP GOP N/A
MH-5
MH-6 GOP GOP N/A
through
MH-36
MH-37 GOP N/A GOP
through
MH-48
MI-3 GOP N/A 10% Visible
Emissions
MD-4 N/A N/A 0.01 gr/dscf | NA
MD-6 & N/A N/A 0.01 gr/dscf | N/A
MF-3
MT-1 & N/A N/A N/A Subpart
MT-2 Kb
MT-3 N/A N/A N/A
MF-1 N/A N/A N/A N/A
MF-5
N/A
Chemical
Stabilization
and Water-
ing
N/A
MF-6
N/A
N/A
quarry-liquid
application
where
practical,
drilling -
liquid
application
N/A
65
small diesel-fired engines, small heaters, and the modular
waste incinerator. The specific options and evaluation results
are summarized in Tables 4.1-1 to 4.1-4, and discussed in
detail in this section.
Table 4.1-1 Summary of NOx BACT
(Large Diesel-Fired IC Engines)
MF-7
N/A
N/A
Covering,
revegetation,
watering
N/A
MF-8 & 9
No
Control
No
Control
No Control
No
Control
MF-10
N/A
N/A
N/A
MF-11
N/A
N/A
N/A
MF-12
N/A
N/A
N/A
' N/A - Not Applicable
? GOP - Good Operation Practices
4.1 BACT DETERMINATION FOR NOx
This facility is currently permitted to emit greater than 250
tons per year of NOx, and is therefore classified as a PSD
Major facility under 18 AAC 50.300(c)(1). The proposed
modification will increase allowable NOx emissions in
excess of the 40 ton per year PSD applicability threshold
specified in 18 AAC 50.300(h)(3)(b)(ii). Therefore, the
Department will impose NOx BACT for the proposed NOx
emission sources.
The Department evaluated several NOx control methods as
BACT for the following sources: large diesel-fired engines,
Available Technically Economically
Controls Feasible Feasible BACT
Selective Yes Yes No’
Catalytic
Reduction
Non-Selective No N/A‘ N/A
Catalytic
Reduction
Direct Water Yes No No
Injection
Low NOx Yes Yes Yes"
Modification
Fuel Injection Yes Yes No |
Timing Retard
Operation per Yes Yes No
Design
' While SCR is a technically and economically feasible
control technology, Low NOx control technology was chosen
as BACT due to other considerations. See the discussion
below for the details.
? N/A - Not Applicable
Table 4.1-2 Summary of NOx BACT
66
(Small Diesel-Fired IC Engines)
67
Table 4.1-3 Summary of NOx BACT (Small Heaters)
Available Technically | Economically ;
Controls Feasible Feasible BACT
Low NOx Yes No No
Burner/Flue
Gas Recircu-
lation
Staged No N/A” N/A
Combustion
Air
Selective No N/A N/A
Catalytic
Reduction
Operation Per Yes Yes Yes:
Design
Available Technically | Economically
Controls Feasible Feasible BACT
Selective No N/A’ N/A
Catalytic
Reduction
Non-Selective No N/A N/A
Catalytic
Reduction ,
Direct Water No N/A N/A
Injection
Fuel Injection Yes No No
Timing Retard
Lean Burn No N/A N/A
Combustion
Turbocharger Yes Yes No*
and A fter- 7
cooler
Operation per Yes Yes Yes
Design
' N/A - Not Applicable
* All of the engines are fitted with turbochargers as part of
their design. Two of the engines, MG-14 and MG-15, are
fitted with aftercoolers as part of their design. ADEC does
not consider retrofitting the smaller engines with aftercoolers
technically-feasible, due to their small size.
' LNB/FGR is BACT for heaters MH-l, MH-2 due to their
larger size.
? N/A - Not Applicable
68
Table 4.1-4 Summary of NOx BACT (Incinerator MI-3)
Available Technically Economically
Controls Feasible Feasible BACT
Staged Air Yes Yes Yes*
Combustion
Selective No N/A’ N/A
Non-
Catalytic
Reduction
Selective No N/A N/A
Catalytic
Reduction
Operation Yes Yes Yes*
Per Design
' N/A - Not Applicable
* Staged air combustion is integral to the incinerators design.
4.1.1 Mechanisms of NOx Formation
Combustion is defined as the rapid chemical combination of
oxygen with combustible elements of a fuel. Combustion
produces heat that can be manipulated to generate power.
Most fuels have three combustible elements: carbon, hydro-
gen, and sulfur, which unite with oxygen from atmospheric
air to produce heat. Atmospheric air is a mixture that con-
tains roughly 79% nitrogen and 21% oxygen by volume.
Nitrogen present in the combustion process sometimes
combines with oxygen, forming oxides of nitrogen.
There are several types of oxides of nitrogen formed during
the combustion process, but only two types occur in signifi-
cant quantities: nitric oxide--NO, and nitrogen dioxide--
NO). In stationary source combustion, most of the NOx
formed is nitric oxide (NO), which can oxidize in the atmos-
phere to form NO), a regulated air contaminant. At high
temperatures, NO formation is favored almost exclusively
69
over NO), formation, and the rate of NO) dissociation to NO
is favored by the mechanism:
NO, + O + heat <> NO + O
After the flue gas exits the stack, the entrained NO may be
oxidized by atmospheric ozone to form NO). Other complex
atmospheric reactions with NO and NO) can also occur.
There are three mechanisms for NOx formation during
combustion of certain fossil fuels. These formation mecha-
nisms are thermal, fuel-bound, and prompt NOx. A brief
discussion of each mechanism follows.
Thermal NOx Formation
The predominant mechanism in combustion reactions is
thermal fixation of the atmospheric nitrogen at elevated
temperatures, usually greater than 2800°F, known as thermal
NOx. Production of thermal NOx is an exponential function
of the flame temperature, and a linear function of the time the
hot gas mixture is at that flame temperature. This mecha-
nism follows the Zeldovich reactions, with three predominant
paths for NOx formation iii combustion:
(1)N)+O«>NO+N
(2)N+0,<NO+0
(3)N+OH «+ NO+H
Note that reaction (1), which is highly temperature-
dependent, provides the atomic nitrogen (N) necessary for
reactions (2) and (3). Note further that the reverse reactions
are not favored by the presence of molecular oxygen.
Therefore, in the oxidizing environment that normally pre-
vails downstream from the actual combustion zone due to the
presence of excess combustion air, the NO that has been
formed is essentially fixed.
70
Fuel-Bound NOx
Chemically-bound nitrogen in the fuel is known as fuel-
bound nitrogen. The oxidation mechanism is dependent on
fuel-bound nitrogen content, fuel properties, and the
stoichiometric conditions present during combustion. The
most significant factors attributing fuel-bound NOx forma-
tion are chemically fuel-bound nitrogen content, and the fuel-
to-air ratio during the early stages of combustion when fuel-
bound nitrogen is liberated from the fuel.
As the chemically-bound nitrogen in the fuel enters the flame
zone, the fuel is burned into small reactive, nitrogenous
organic molecules which react with oxygen to form NO. Ina
reduction environment where insufficient oxygen is present
for complete combustion, such as the fuel-rich zone of
combustion, the nitrogenous fuel fragments encounter and
react with each other, and convert the fuel-bound nitrogen to
molecular nitrogen (N>2).
Fuel-bound nitrogen can be a significant source of NOx
emissions from fossil fuels such as residual oil and coal, but
significantly less fuel-bound nitrogen is contained in natural
gases. The Department typically uses the most conservative
technique to estimate NOx emissions due to fuel-bound
nitrogen--to assume that all nitrogen in the fuel is converted
to NOx during combustion.
Prompt NOx
Prompt NOx is produced by the formation of an intermediary
such as hydrogen cyanide (HCN), through the reaction of
nitrogen radicals and hydrocarbons (HC),
NO + HC + H; - HCN + H,O
followed by the oxidation of the HCN to NO. The formation
of prompt NOx has a weak temperature dependence and a
short lifetime of several microseconds. It is only significant
in very fuel-rich flames, which are inherently low NOx
emitters.
“=
71
4.1.2 NOx Control Methods
This section describes the control technologies that may be
available to reduce NOx emissions from one or more of the
source categories listed by the applicant. The Department’s
evaluation of the availability and effectiveness of these con-
trols for each of the applicant’s source categories is provided
in Sections 4.1.3 through 4.1.5.
Selective Catalytic Reduction (SCR)
Selective Catalytic Reduction (SCR) is a potential emission
control technology for turbines and other internal combustion
sources. SCR systems use ammonia to selectively reduce
NOx to N>. This technology reduces both thermal and fuel-
bound NO». SCR injects ammonia or urea into the exhaust
before the exhaust enters a catalyst bed made with vanadium,
titanium, or platinum. The reduction reaction occurs when
the flue gas passes over the catalyst bed where the NOx and
ammonia combine to become nitrogen, oxygen, and water as
follows:
- 4NO + 4NH; + O) > 4N2 + 6H2O
2NO, + 4NH; + O) — 3N? + 6H2O
The required catalyst bed temperature is dependent on the
type of catalyst used, and must be maintained within a
narrow temperature range for effectiveness. Manufacturers
tailor their catalyst design for the temperature range ex-
pected. A metal oxide catalyst, such as vanadium or titanium
is effective between approximately 600 °F and 750 °F. Fora
wider temperature range, zeolite catalysts have been etiative
in the 800 °F to 1200 °F temperature range.
Temperature dramatically affects NOx reduction because the
catalyst exhibits optimum performance within a narrow
temperature range. Below this optimum range, the catalyst
activity is greatly reduced, allowing unreacted ammonia to
“slip” through. This slip results in increased ammonia con-
centration in the exhaust gas that is discharged into the
72 7
atmosphere. Above the range, ammonia begins to be oxi-
dized to form additional NOx. Further excessive tempera-
tures may damage the catalyst.
In addition to tight operating temperature controls, the SCR
process requires good control and continual adjustment of the
ammonia injection rate to match the rate of NOx formation.
An ammonia deficiency causes nitric oxide to react preferen-
tially with the excess oxygen, while an ammonia surplus
leads to additional ammonia slip.
Exposing a catalyst to sulfur-bearing fuels and ammonia
forms ammonia salts. These salts foul the surface of the
catalyst, rendering it useless and causing premature replace-
ment. Sulfur-tolerant SCR catalysts are available, but are
composed of vanadir pentoxide, a hazardous substance.
These catalysts are still susceptible to some ammonium
sulfate fouling. The spent vanadium pentoxide catalyst
would have to be shipped off-site for disposal. To address
this concern, many catalyst vendors operate exchange
programs where spent catalysts are exchanged for new
catalysts at a reduced price. Exchange programs alleviate
customer waste disposal concerns and allow the vendor to
recycle the precious metals that make up many of the cata-
lysts.
In summary, successful operation of an SCR system occurs if
the catalyst is exposed to an exhaust stream that is not an
oxidizing environment. The injection of a reducing agent,
most commonly ammonia (NH3), causes NO to preferentially
react with the agent to form nitrogen and water, rather than
reacting with the excess oxygen. SCR requires a narrow
temperature range to achieve optimum catalytic performance.
SCR may be used in conjunction with reductions from steam
or water injection, or combustion modifications.
Carefully designed SCR systems achieve NOx reduction
efficiencies as high as 90%, with ammonia slip vendor
guarantees of no greater than 10 ppm available. Conserva-
tive reductions are 80% control efficiency. This technology
73
has not been applied in Alaska, though the Department
knows of no technical difficulty particular to Alaska that
would prevent SCR use.
Non-Selective Catalytic Reduction (NSCR)
Non-selective Catalytic Reduction (NSCR), sometimes called
a three-way catalyst, reduces NOx emissions 80% to 90% at
a temperature between 800 and 1200 degrees F. NSCR
systems use a mixture of platinum and rhodium catalyst, and
carbon monoxide and hydrocarbons (CH,) as reducing agents
contained in the flue gas, forming N2, H2O and carbon
dioxide. The chemical reaction process is not fully under-
stood, but can be represented in the following basic formulas:
CH, + 4NO; — CO) + 4NO + 2H,O
CH, + 202 - CO, + 2H20
CH, + 4NO) — CO) + 2N) + 2H;0
2CO + 2NO — 2CO) + N
2H2 + 2NO — 2H,0 + N2
NSCR is only effective in a fuel-rich, preferably gas-fired,
non-variable load combustion. The air-to-fuel ratio must be
at or close to stoichiometric to provide adequate concentra-
tion of reducing agents in the exhaust gas. Stoichiometric
combustion produces exhaust gas nearly depleted of oxygen
(less than four percent oxygen). The inability to control air-
to-fuel ratio for varying loads limits NSCR application.
NSCR is best known for its application in reducing NOx
from automobile exhaust. NSCR uses no reactant for the
control of NOx.
Selective Non-Catalytic Reduction (SNCR)
Selective non-catalytic reduction (SNCR) is a_ thermal
denitrification process that also involves the injection of
ammonia or urea into the exhaust gases. The ammonia or
urea reduces NOx to N2 within a narrow temperature range of
74
1600 to 2000°F without a catalyst. At these temperatures, 29
to 90% NOx emission reduction can be achieved. Since ihe
optimum reaction temperature is very high, the applicability
of SNCR is primarily restricted to large industrial boilers.
As with SCR, SNCR requires transportation, handling, and
storage of ammonia, a hazardous substance. There is a
potential of ammonia slip in the exhaust gas, increasing
ammonia levels in the ambient air. The other technical
problem for most applications is the physical ammonia or
urea injection location. For equipment operating at various
loads, the proper injection temperature “window” physically
moves within the combustion zone and the exhaust ductwork,
requiring multiple injection locations.
Direct Water Injection/Low NOx Modification
Direct Water Injection lowers the peak flame temperature by
providing a heat sink that absorbs some of the heat of the
reaction, thereby reducing peak flame temperature and the
resultant rate of NOx formation. The water injected into the
engine is required to be extremely pure or the engine will
require significant amounts of maintenance and repair. The
manufacturer of Cominco’s large diesel-fired engines,
usually installs Direct Water Injection on engines with Low
NOx modification packages. The Low NOx modification
package is described below. Cominco has verified that a
reverse Osmosis water treatment and injection system would
be necessary for this technology to be considered. A NOx
reduction of 40% to 60% may be expected with this com-
bined technology. Wartsila expects NOx emissions of
approximately 6 grams per KW - hour with DWI controls
installed on the 5000 kW generators. The manufacturer
expects no additional fuel consumption when retrofitting the
5000 kW generators with both DWI and Low NOx Modifica-
tion. If only DWI was retrofit, a 3% increase in fuel con-
sumption is anticipated.
75
DRY CONTROLS
Dry controls incorporate an efficient combustion chamber
design, staged combustion, and/or use of a lean fuel-to-air
ratio. The use of lean fuel-to-air ratio results in lowered
average combustion temperatures, reducing the formation of
thermal NOx. Thermal NOx formation tends to be maximum
at the high temperatures associated with stoichiometric
conditions. Combustion chamber design changes may also
reduce peak temperatures, thus limiting thermal NOx forma-
tion. The design techniques for this “dry low NOx” (DLN)
combustion technology include staged combustion and/or use
of a lean pre-mix combustion configuration. Specific exam-
ples are provided below.
Low NOx Modification
For the main generators, Wartsila has developed a retrofit
package called a Low NOx Modification. This modification
is based on a higher combustion air temperature at initiation
of the injection cycle, which drastically reduces the ignition
delay. The retrofit also retards the fuel injection start and has
a shorter injection period that makes combustion take place
at the optimal point with respect to efficiency. It improves
fuel atomization, and modifies combustion space for im-
proved mixing of air and fuel. The design requires replace-
ment of the piston crowns, piston ring set, fuel injection
“valve, cylinder head, cylinder liner, and antipolishing ring.
The Low NOx modification is expected to reduce NOx
emissions approximately 30% from the Wartsila engines.
The low NOx modification incorporates fuel injection timing
retard as described below.
Fuel Injection Timing Retard
Fuel Injection Timing Retard (FITR) reduces NOx emissions
in reciprocating engines by delaying the injection of fuel in
the engine from when the chamber is at its smallest, to a time
when the compression chamber is expanding. The larger
76
volume in the compression chamber produces a lower peak
flame temperature, thus reducing thermal NOx formation.
FITR reduces the fuel efficiency of engines leading to a
potential increase in SO) emissions. The extent of FITR is
also limited because excessive injection delay can cause the
engine to misfire. Emission reductions can range between
20% to 30% depending on the degree of FITR implemented.
Lean Pre-mix
Lean pre-mixed combustion technology can be used for
heaters, boilers, and turbines. The air and fuel are pre-mixed
before introduction into the combustion zone. This results in
a mixture with a very lean and uniform air-to-fuel ratio. The
lean fuel-to-air ratio results in lowered average combustion
temperatures, reducing the formation of thermal NOx. The
homogeneous mixture prevents formation of localized fuel-
rich pockets within the combustion zone, which further
reduces peak temperatures and lowers thermal NOx forma-
tion. To stabilize the flame and to assure complete combus-
tion with minimum carbon monoxide emissions, a pilot flame
may be incorporated in the combustor or burner design.
Lean pre-mixed combustors are not an effective control
technique at reduced load conditions, because as the fuel
requirement is decreased, the air and fuel mixture becomes
too lean for proper combustion. To avoid these conditions,
manufacturers’ lean pre-mixed combustors switch to a
conventional combustion mode at reduced-load conditions,
which result in higher NOx emissions.
Staged Fuel
Staged fuel burner technology for heaters, boilers, and
turbines, consists of two combustion zones. In the primary
zone, a portion of the fuel is introduced to the combustion
chamber with a fraction of the fuel characterized as a fuel-
lean burn. The excess combustion air acts as a heat sink and
results in sub-stoichiometric combustion conditions. The
77
remainder of the fuel is injected in the secondary zone and
combusted. The technology reduces thermal NOx.
Overfire Air
Off-stoichiometric combustion, for heaters and boilers,
includes the following control technologies: using of secon-
dary air, burners-out-of-service, and biased burner firing.
The Overfire Air (OFA) technique generally is not available
for boilers with capacities less than 25 MMBtu/hr. OFA is
applicable only to boilers with special burner design.
Regarding the NOx removal efficiency of OFA, performance
test data reported by EPA for three small gas-fired boilers,
ranging in size from 22 to 56 MMBtu/hr, showed that
controlled levels in the range of 0.073 to 0.142 lb/MMBtu
were achieved, with emission reductions of 13% to 73%
reported. Data for a 22 MMBtvu/hr boiler burning distillate
oil showed that emissions were reduced from an uncontrolled
level of 0.154 Ib/MMBtu to a controlled level of 0.125
lb/MMBtu, an emission reduction of 19 percent.
Flue Gas Recirculation (FGR)
Flue gas or exhaust gas recirculation is a proven control
strategy for boilers and heaters. The basic principal of flue
gas recirculation (FGR) is to replace a portion of the incom-
ing combustion air with exhaust gas. FGR reduces NOx
formation by reducing available oxygen content and by
acting as a heat sink to lower peak combustion temperatures.
At full-load, this results in a richer burn with more exhaust
gas to absorb the heat of combustion, resulting in a lower
combustion temperature. NOx removal of up to 40% is
achievable by using a maximum recirculation of 30% exhaust
gas. FGR with LNB can reduce NOx emissions up to 71%.
FGR systems are commercially available, and are therefore
technically feasible.
Recently, a new class of ultra-low NOx burners has been
developed, which use a combination of techniques. The
78
burners are designed to recirculate hot oxygen-depleted gases
into the combustion zone, thereby maintaining optimum
flame temperature, yet reducing NOx by excess air controls.
Staged Combustion Air (SCA)
Another low NOx technology for boilers and heaters is a
rich/quench/lean staged combustion design. Air and fuel are
injected directly in the combustion zone to mix and combust
simultaneously. The off-stoichiometric or staged combustion
air method separates the combustion process into two stages:
primary and secondary combustion. Primary combustion is
the first stage of combustion conducted in a fuel-rich com-
bustion zone. Combustion is then completed at lower
temperatures in a secondary, fuel-lean zone.
The fuel-rich first stage inhibits the formation of thermal
NOx due to low oxygen levels. Second stage combustion
temperatures are below NOx formation temperatures due to
the injection of excess air. This design controls both thermal
and fuel NOx. Low NOx burners (LNB) achieve reductions
in NOx emissions by using multiple combustion stages with
varying fuel-air ratios to reduce combustion temperatures and
thermal NOx formation.
Good Combustion Practice
Good combustion practice is applicable for all combustion
sources. This method requires operating and maintaining the
equipment according to the manufacturer’s recommenda-
tions, operator experience, and good arctic engineering
practices to obtain maximum fuel efficiency and minimum
emissions.
4.1.3 NOx Control for Wartsila Generator Five and
Seventeen (MG-5, MG-17)
Cominco plans to operate seven 5000 kW Wartsila generator
sets (MG-1 through MG-6, and MG-17). Two of these units
(MG-5 and MG-17) are subject to BACT review. Wartsila
engines MG-1 through MG-S are existing 5000 kW units that
79
the Department permitted under PSD in 1988 with opera-
tional restrictions. Two of the five units were to operate in
standby status. Cominco’s application and permit did not
identify the standby units. Therefore, the Department has
interpreted that at least two of the five units must be in
standby at any given time in order to comport with-the 1988
permit decision.
In 1994, the Department issued a PSD permit to remove
standby status from one of the existing units (unit MG-2).
An operational cap of 109,660,000 kW-hr per year was
imposed on the remaining four units--MG-1, MG-3, MG-4,
and MG-5, which was equivalent to full-time operation of
three units, with one unit on standby. Under the kW-hr
operational cap, all four engines could operate simultane-
ously provided the annual kW-hr limit was not exceeded.
Cominco also added a sixth 5000kW Wartsila engine to
operate full time as part of the 1994 permit.
Cominco is currently requesting the removal of the annual
kW-hr operational restriction. Cominco has requested that
MG-5 represent the standby unit for the purpose of BACT
analysis. Therefore, MG-5 must undergo a BACT analysis
as a modified source. Cominco is proposing to add a seventh
5000 kW Wartsila engine which, therefore, must undergo
BACT analysis as a new emission source.
The control technologies Cominco evaluated as possible
BACT technologies for MG-5 and MG-17 are Direct Water
Injection (DWI)/Low NOx Modification, Fuel Injection
Timing Retard (FITR), Low NOx Modification, Selective
Catalytic Reduction (SCR), and Non-Selective Catalytic
Reduction (NSCR). Because NSCR requires low oxygen
content in the exhaust gas stream, it was the only control
technology considered unavailable for diesel units due to
technical constraints. Of the remaining technologies, Selec-
tive Catalytic Reduction with an estimated reduction of 90%
is the most stringent. Top Down BACT analysis requires the
consideration of the most stringent control technologies first.
80
If the most stringent control technology is considered BACT,
then no analysis of less stringent controls is required.
Selective Catalytic Reduction
Selective Catalytic Reduction (SCR) is the most stringent
control technology available for large diesel-fired generators.
Top-Down BACT requires the Department to consider the
most stringent technology before looking into less effective
control technologies. The results of the Department’s Tech-
nical and Economic analysis are presented below. The
Department based the analysis on information provided by
Cominco, SCR vendors, and SCR operators.
Technical Feasibility
SCR is a technically-feasible control technology for diesel
internal combustion engines. The Department believes that,
although SCR has not been implemented in Alaska, it is a
technically-feasible technology for Alaska. SCR manufac-
turers, including Siemans are willing to offer SCR packages
for diesel engines with warranties of up to 90% NOx reduc-
tion. For many years, the Department eliminated SCR as
BACT, partly due to the safety concerns regarding the use
and transportation of anhydrous ammonia to rural areas.
However, recent innovations in SCR technology primarily
alleviate the safety concerns regarding ammonia use.
Ammonia can now be generated safely from urea on demand.
Without urea-based ammonia generation, Cominco would
have to store large quantities of anhydrous aqueous ammonia
on-site (185,000 gallons at the port, 7,125 gallons at the
mine) due to the mine’s remote location and short shipping
season. With the storage of large quantities of ammonia,
Cominco expressed concerns regarding the difficulty of
evacuating mine personnel. However, with ammonia gener-
ated from urea, no ammonia storage is required at the port,
and the mine-site ammonia requirement is reduced to one
2,000-gallon day tank and one 750-gallon mixing tank.
Release of this small amount of aqueous ammonia at the
81
mine-site is unlikely to require evacuation of the entire
facility. Urea-based ammonia generated on demand elimi-
nates the ammonia safety concerns at the port and greatly
reduces the risk at the mine-site.
Residual ammonia in exhaust does react with sulfuric and
hydrochloric acid to produce ammonium salts. These salts
can potentially be generated at explosive levels in the exhaust
gas. However, current catalysts and sophisticated ammonia
control systems effectively eliminate this risk. A more valid
concern is ammonia slip where the SCR unit releases ammo-
nia into the atmosphere due to the incomplete reaction of
injected ammonia. Ammonia slip should be minimized using
the vendor’s proposed control systems. Cominco’s vendor,
Siemans, guarantees ammonia slip of less than 10 ppm at
15% O>.in the exhaust gas. The OSHA Permissible Expo-
sure Limit is 50 ppm (TWA), the ACGIH Threshold Limit
Value is 25 ppm (TWA), and 35 ppm (STEL). The expected
10 ppm of ammonia slip will diffuse to significantly lower
concentrations before the exhaust plume reaches the
. Ammonia slip while not an immediate health
concern, does introduce a new pollutant into the atmosphere.
However, during the course of a year, operating two 5 MW
engines full-time with SCR controls would result in ap-
proximately 5 tons of ammonia slip while removing over
1400 tons of NOx, when compared with uncontrolled NOx
emission rates.
Economic Feasibility
With technical and safety concerns addressed, the primary
issue is the economic viability of SCR at the mine’s location.
The Department asked for the economic analysis of SCR
using both aqueous ammonia and urea. Cominco provided
four cost scenarios for SCR. Each scenario included amorti-
zation over 10 years, 5 years, and 3 years. The Department
generally considers an amortization period of 10 years as
appropriate for a BACT analysis. Cominco provided the 5-
year and 3-year amortization periods because they believe
82
natural gas reserves may be developed near the mine and the
engines retrofitted for gas use within this time frame.
However, without a firm commitment from Cominco to
switch to natural gas, the Department selected an amortiza-
tion period of 10 years. The scenarios provided by Cominco
are discussed further below.
A crucial part of Cominco’s economic analysis is considera-
tion of the Waste Heat Recovery Unit (WHRU) that currently
extracts waste heat from MG-5’s exhaust gases. To install
SCR, Cominco can either relocate the WHRU to another
engine, or purchase a supplemental boiler to supply heat lost
due to eliminating the WHRU. One of the scenarios pro-
vided by Cominco included both the costs of the supplemen-
tal boiler and the WHRU relocation as an estimate of lost
future waste-heat recovery capacity. We believe that includ-
ing both costs is inappropriate. Additional waste heat
recovery needs are outside the scope of Cominco’s produc-
tion rate increase project as described in the current applica-
tion.
Of the three remaining scenarios, two evaluate the costs for
aqueous ammonia-based SCR in conjunction with relocating
the WHRU and purchasing the supplemental boiler. The
third scenario evaluates the cost of urea-based SCR in
conjunction with purchasing the supplemental _ boiler.
Cominco did not provide an economic evaluation of urea-
based SCR with the WHRU relocated to another engine. For
a prior project in 1993 (Cominco, 1993), Cominco provided
an economic analysis of urea-based SCR but, this analysis
does not take into account the WHRU relocation scenario.
ADEC reused Cominco’s current analysis to estimate the cost
of urea-based SCR under the WHRU relocation scenario.
The table below shows the cost per ton of pollutant removed
for the three scenarios Cominco provided, the 1993 Cominco
urea SCR cost estimate, and the ADEC estimation of urea-
based SCR with the WHRU relocated.
83
Table 4.1.3-—1. Selective Catalytic Reduction
Cost Effectiveness
Origin Reagent Scenario Cost/ton
NOx
Removed
Cominco aqueous Supplemental $5,643
1998 ammonia Boiler
Cominco aqueous WHRU relocated $3,743
1999 ammonia
Cominco urea Supplemental $4,072
1999 Boiler
Cominco urea not addressed $2,902
1993
ADEC urea WHRU relocated $2,279
ADEC urea WHRU relocated $1,586
The $2,279/ton NOx removed cost is based directly on data
Cominco provided, and uses the same assumptions. The
$1,536/ton NOx removed cost is largely based on Cominco’s
data and assumptions. However, ADEC modified Cominco’s
methods to account for a more precise estimate of remote
location costs and, per EPA guidance, a reduced annual cost
of capital. Piping and electrical costs were lowered to reflect
i from the EPA’s OAQPS Control Cost Manuai,
EPA 450/3-90-066 (EPA 1990). ADEC lowered the cost of
water pretreatment based on water use estimates provided by
Cominco’s SCR vendor and conversations with the water-
treatment-system vendor. The $1,586/ton cost also reflects
the higher cost of using more urea, since it appears that
Cominco underestimated the mass of urea required for SCR.
The details of ADEC’s analysis are found in Appendix A.
The $2,902/ton NOx removed was included in Cominco’s
prior permit application of 1993, requesting the installation
of the same make and model of engine. ADEC included the
84
1993 cost to provide a comparison with Cominco’s current
estimates and the Departments estimates.
ADEC considers all of the costs shown on the above table to
be economically feasible. Additionally, the costs presented
are within the range considered feasible by the U.S. Envi-
ronmental Protection Agency (EPA) stated in their January
26, 1999 letter to ADEC (EPA 1999).
The technical reservations and safety issues concerning SCR
are reduced by the use of modern catalysts and urea-based
reagent. Of the available control technologies, SCR is the
most stringent control, providing 90% reduction of NOx.
The costs are well within what ADEC and EPA considers
economically feasible.
BACT decision for Wartsila Generator Five (MG-S5) and
Seventeen (MG-17)
Cominco differs with ADEC that SCR is technically- and
economically-feasible. Cominco maintains that SCR is
unproven in an arctic environment, has safety issues associ-
ated with ammonia use, is too expensive and, therefore,
should not be considered as BACT.
Because of this fundamental difference, Cominco has pro-
posed an alternative that provides a NOx reduction similar to
SCR and provides other advantages attractive to both
Cominco and ADEC. Cominco proposed that the Wartsila
Low NOx Modification package be BACT for the two
engines under consideration. Cominco also proposes to
install Low NOx controls on the three uncontrolled engines
(MG-1, 3, 4) and installing Low NOx controls on the two
engines with FITR as controls (MG-2 and MG-6). Wartsila
estimates emission reductions of 30-35% from a convention-
ally configured unit. Wartsila estimates an additional 10% to
15% NOx reduction on the engines with FITR currently
installed.
85
Installing Low NOx on all seven engines has several advan-
tages over installing SCR on two engines. The capital and
onerating costs of Low NOx are lower than SCR. The table
below compares the capital costs, annualized costs, and the
cost per ton of NOx removed for Low NOx and SCR.
Table 4.1.3-2 Cost of Controls for
a Single 5000 kW Wartsila
Total Total Tons NOx | Cost
Installed Annualized | Removed | effec-
Capital Costs (tons) tiveness
Costs ($) (S/year) (S/year)
Low $370,738 $89,754 237.4 $378
NOx
SCR $3,629,257 | $1,128,885 712 $1,586
86
Table 4.1.3-3 Large Diesel Engine
NOx Controls Comparison
Potential
NOx
Tons NOx | Emissions
Operational Control Removed after
Assumption Technology (tons/yr) controls
(tons/yr)
Low NOx
Operating (seven en-
Scenario A gines) 1,662 3,878
SCR (two /
engines)+
Seven engines | FITR (two 1,741 3,799
continuous engines)+
operation +three engines
uncontrolled
Low NOx 1,425 3,324
Operating (seven
Scenario B engines)
SCR (two
6 engines engines)+
continuous FITR (two 1,029! 3,720
operation, | engines)+
engine on +three engines
standby’ uncontrolled
' Potential emissions based on one SCR controlled engine on
standby status.
The use of Low NOx controls also eliminates the logistical
problems (such as shipping urea to the site) associated with
operating SCR at the mine.
For full-time, 100% load operation, applying Low NOx
controls to seven engines would result in 1,662 tons NOx
removed per year. Similarly, for full time, 100% load opera-
tion, applying SCR to the two engines subject to BACT
87
would result in 1,741 tons NOx removed per year. Assuming
full-time, 100% load operation, there is less than a 5%
difference in NO, removal between the SCR and Low NOx
scenarios. The incremental cost of SCR controls to remove
the additional 79 tons of NOx is $29,759 per ton of NOx
removed. The high incremental cost for SCR compared with
Cominco’s proposal for Dry Low NOx controls on seven
engines is exorbitant.
If all the generators were run full-time the installation of Low
NOx on all seven generators would result in 79 tons per year
more NOx emissions than the installation of SCR on the two
generators that require BACT. In a practical sense, all seven
engines will not be operating continuously or at full-load. A
reasonable assumption is that under typical operating condi-
tions one or more engines will not be running due to mainte-
nance of standby-generation capacity. The higher operating
cost of SCR in comparison with an uncontrolled generator
provides an economic incentive for Cominco to reduce the
operating time of the SCR unit. Following this reasoning,
Cominco may choose one of the two units fitted with SCR as
the standby unit in order to reduce operating costs. If an
SCR controlled unit is in standby throughout the year, then
the SCR scenarié could emit up to 396 more tons of NOx per
year than the Low NOx control scenario for all seven units.
Installing Low NOx controls on all seven generators provides
a greater consistency of control than installing SCR on just
two engines. Therefore, this option could result in a greater
emission reduction.
Cominco has proposed a proactive approach for a cost-
effective NOx emission control strategy by installing Low
NOx controls on five existing engines not subject to BACT
review for this project. Because Cominco’s proposal:
e achieves a similar maximum NOx reduction as the most
stringent controls;
e can potentially result in a greater NOx reduction; and
88
e is logistically and economically less onerous to
Cominco.
The Department finds Low NOx controls to be BACT on
diesel generators MG-5 and MG-17. A vendor guaranteed
emission rate of 11 grams per kilowatt hour is representative
of the NOx reduction expected of the Low NOx controls
selected as BACT. Condition XI(A) requires units MG-5
and MG-17 to meet an emission rate limit of 11 grams per
kilowatt hour representative of BACT. Condition VI(B)
requires source testing within 90 days upon start-up and
every 5 years to demonstrate compliance with the BACT
requirement. Condition XI(C) requires reporting the source
test results. Condition VI(A) requires the installation of Low
ay controls on units MG-1, MG-2, MG-3, MG-4. and
6.
89
ALASKA DEPARTMENT OF ENVIRONMENTAL
CONSERVATION
AIR QUALITY CONSTRUCTION PERMIT
Permit No. 9932-AC005 Date: Preliminary—May 4, 1999
The Department of Environmental Conservation, under the
authority of AS 46.03, AS 46.14, 6 AAC 50, 18 AAC 15, and
18 AAC 50, issues this Air Quality Control Construction
Permit to:
Owner and Operator: Cominco Alaska, Incorporated
P.O. Box 1230
Kotzebue, AK 99752
Permittee: Cominco Alaska, Incorporated
Facility: Red Dog Mine
Location: 145 km north of Kotzebue,
Alaska
UTM Coordinates Northing
7551 km, Easting 590 km
Zone 3
This permit authorizes the Permittee to modify the Red Dog
Mine Facility:
¢ operate a new diesel-fired generator,
* remove operating restrictions on four diesel-fired genera-
tors,
e restore original operating restrictions on three other gen-
erator sets,
e add a diesel generator set,
e add anew incinerator and remove an old incinerator,
e add 12 new heaters,
90
¢ add an additional diesel storage tank,
e add anew crusher and baghouse,
* increase operating hours for the Assay Lab baghouse,
e increase fugitive emissions, and
¢ increase the holding capacity of the ore stockpile to
support a production rate increase at the Red Dog mining
facility.
This permit revises conditions of Air Quality Control Permit
No. 9332-AA003 and expands the list of permitted equip-
ment to include unlisted existing sources. This permit also
authorizes the Permittee to operate the sources referenced
above as provided by AS 46.14.120.
Jim Baumgartner, Date
Supervisor, Construction
Permits
Air Quality Maintenance Section
91
TABLE OF CONTENTS
I. PERMIT CONTINUITY...--sscccssosssccsssssseresssssses
Il. | STANDARD PERMIT CONDITIONS...........--
Ill. | RECORD KEEPING, REPORTING,
AND TESTING CONDITIONS ........+00000ssss0000
IV. NOTIFICATION AND OPERATING
|
V. 18 AAC 50.010: AMBIENT AIR
QUALITY STANDARDS AND
NE icsteniesieiditinnicsenceserciionimmnniens
VI. OWNER REQUESTED LIMITS. ......-.0-::::00000000
VII. 18 AAC 50.040: FEDERAL STANDARDS
ADOPTED BY REFERENCE. .....cssoossssssssss0
VIII. 18 AAC 50.050: INCINERATOR
EMISSION STANDARDS ........cccsssssssssssseeeeeee
IX. 18 AAC 50.055: INDUSTRIAL PROC-
ESSES AND FUEL-BURNING EQUIP-
Is icdiisiiceniesiliiiaicindeiiiatesetoniciiee
X. 18 AAC 50.110: AIR POLLUTION
| a
XI. 18 AAC 50.315(E)(3)(A): (BACT).......sss00esee
XII. 18 AAC 50.315(E)(3)(B): ASSOCIATED
ST sicerensssssarrnecsetccenteinionstscininsetsioisstnie
II I ccnisinsescincnsetishenatniphiacsiamacancisianmntiianeiet
I ccnscinirnciesininsesiicuttnsriinieaciaeiatansanaesttie
TTT, SRN re
NIT csnsnsetsesinanmeeiiinentcianineninnsenisiinonate
OI a siciesieeonscsservtsennerniscsconsinanincinsoninscsensaneesnt
A ET
92
I. Permit Continuity
A.
Except as revised or rescinded herein, or as super-
seded by an Air Quality Permit issued under AS
46.14.170, the Permittee shall comply with terms
and conditions of Air Quality Control Permit to
Operate No. 9331-AA003, as revised December
4, 1996. If permit terms and conditions listed in
this permit conflict with those of Permit No.
9331-AA003, the Permitiee shall comply with
terms and conditions listed herein.
Permit Condition 10 and kW-hour operating lim-
its for units MG-1 and MG-3 through MG-S listed
in Exhibit A of Permit No. 9332-AA003 are re-
scinded the effective date of this permit action.
* * *
IV. Notification and Operating Conditions
A.
The Permittee is authorized to install and operate
emission sources at the Red Dog Mine facility as
listed in Exhibit A.
Re-cam and rebuild each of Wartsila sources
MG-1 and MG-3 through MG-5 with low emis-
sion retrofit parts before installation of source
MG-17. Rebuild each of Wartsila sources MG-2
and MG-6 with low emission retrofit parts before
installation of MG-17.
1. Adjust the fuel injection timing of each rebuilt
unit to comply with emission limits set out in
Condition VI(A)(4).
2. For each unit, provide a notice within 30 days
after each unit has been rebuilt and adjusted to
document the date rebuild was completed, ini-
tial engine start-up after rebuild, degree of
fuel-injection timing retard adjustment, and at-
— ———
93
tach a copy of the vendor service representa-
tive’s trip report.
No less than once each calendar year, check
and attach to the Facility Operating Report re-
quired by Condition 26 of Permit No.
9332-AA003, written verification of the
fuel-injection timing retard setting for each
engine. List the date of inspection, the service
representative’s name and credentials, and a
copy of the representative’s trip report.
* * *
VI. Owner Requested Limits
A. Limit:
l.
Effective the issue date of this permit until
each unit has been rebuilt using low emission
retrofit parts, electric power production of
each Wartsila Generator set MG-1 and M-3
through MG-5 should be no greater than
27,415,000 kW-hr per unit during any con-
secutive twelve-month period;
Carbon monoxide emissions from each Wart-
sila generation set, sources MG-1 through
MG-6 and MG-17 to no greater than 8.0
lb/hour;
Particulate matter emissions from each Wart-
sila generation set, sources MG-1 through
MG-6 and MG-I7 to no greater than 2.6
lb/hour;
Oxides of nitrogen emissions from each Wart-
sila generation set sources MG-1 and MG-3
through MG-S after engine re-cam and instal-
lation of low emission retrofit parts to no
greater than 121.6 Ib/hour and 11 gram per
94
kilowatt-hour, expressed as NO. Oxides of
nitrogen emissions from sources MG-2 and
MG-6 after installation of low emission retro-
fit parts to no greater than 121.6 Ib/hour and
11 gram per kilowatt-hour, expressed as NO;
* * *
XI. 18 AAC 50.315 (e) (3) (A): (BACT)
Install emission or operational controls as BACT for
the following equipment:
A. Limits
1. Oxides of Nitrogen (NOx) BACT
a) Install and operate as BACT for the fol-
lowing fuel burning equipment at the Red
Dog Mine/Mill Complex:
(1) Wartsila Generator Set Units MG-5
and MG-17 with low emission en-
gine configuration;
* * *
b) Comply with the following NOx emis-
sion limits. Emissions from:
(1) MG-5S and MG-17 shall not exceed
11 gram/kw-hour and 121.3 Ib/hour,
expressed as NO).
* * *
B. Monitoring and Record keeping
1. NOx
a) For Units MG-5 and MG-17, maintain re-
cords of engine configuration changes and
95
fuel injection timing retard settings as set
out in Condition IV(B).
+ * *
c) For Units MG-5 and MG-17, conduct pe-
riodic NOx emission source tests as set out
in Condition III(D) and V1(B)(2).
* * *
C. Reporting
1. NOx
a) Report rebuild and fuel injection timing
requirements of MG-5 and MG-17 as set
out in Condition [V(B)(2) and (3).
b) Report results of emission performance
tests of Units MG-5, MG-17, and MH-!
through MH-3 as set out in Condition
IIK(C).
+ . *
96
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION 10
1200 Sixth Avenue
Seattle, WA 98101
JUL 29 1999
Reply To
Attn Of: OAQ-107
Mr. Tom Chapple
Alaska Department of Environmental Conservation 7
410 Willoughby Avenue, Suite 105
Juneau, Alaska 99801-1795
Re: Cominco Alaska Inc. PSD Permit Issuance
Dear Mr. Chapple:
I enjoyed our telephone conversation on Tuesda
) y, July 27,
1999, regarding Cominco’s Red Dog Mine PSD Permit. "tt is
always good to hear a cooperative response when we have
ee _- at hand. As promised during the call, I am
including in this letter EPA’s concerns abo
2 ut the proposed
As we discussed, EPA has two major conc
proposed permit: oo
l. ADEC appears to agree that GM-5 and GM-17 are
subject to PSD and must employ Best Available Control
Technology (BACT). Although ADEC states in its analy-
sis +.“ pr catalytic reduction (SCR), the most strin-
gent level of control, is economically and
feasible, ADEC did not propose to » Sch honed
ADEC concluded that installation of low NOx burners on
all seven generators and fuel injection timing retard (FITR)
97
on some of the generators constituted BACT. EPA dis-
agrees with this conclusion and believes that SCR is BACT
for GM-5 and GM-17. As we discussed, once it is deter-
mined that an emission unit is subject to BACT, the PSD
program does not allow the imposition of a limit that is less
stringent than BACT even if equivalent emission reduc-
tions are obtained by imposing new controls on other emis-
sion units.
2. In its PSL analysis, ADEC failed to consider whether
GM-1 and GM-3 through 5 are also subject to PSD and
thus to BACT. Based on the existing information, EPA
believes these emission units are subject to PSD because
they are part of the overall project to increase the capacity
of the facility through the removal of the existing restric-
tion on operation of these units (the kilowatt per year re-
striction).
The National Park Service also raised these issues during the
public comment period on the proposed permit.
I am pleased that ADEC is continuing to review informa-
tion on past PSD permitting actions for the Cominco facility.
I also appreciate your commitment to discuss your conclu-
sions with my staff before issuing the permit, which you
expect to occur in the next week to ten days. I am confident
that we will be able to conclude this project by issuance of a
solid PSD permit.
Once you have completed your reconsideration of the PSD
issues for the diesel generators, please have your staff contact
Doug Hardesty at EPA at (206) 553-6441 to discuss your
intended response to EPA’s concerns. Please also feel free to
call me at (206) 553-2963 if I can be of any further assistance
in this matter.
cc:
John Notar, NPS
98
Sincerely,
/s/
Anita Frankel, Director
Office of Air Quality
99
State of Alaska
Department of Environmental Conservation
Division of Air & Water Quality
Air Quality Maintenance Section
MEMORANDUM
TO: Jim Baumgartner, Supervisor
Construction Permits
THRU:
FROM: Brian Renninger, Envir. Engin. Asst.
Air Permits Program
DATE: August 10, 1999
FILE: X00065 (Cominco PRI)
TELEPHONE NO: 465-5100; FAX: 465-5129
SUBJECT: Cominco NOx BACT
RE: Response to BACT section of Appendix A of Comin-
co’s Comments on Preliminary Technical Analysis Re-
port for Air Quality Control Construction Permit No.
9932-AC00S5, entitled Presentation to Alaska Depart-
ment of Environmental Conservation of Major Discre-
tionary Air Quality Issues Pending Decision at Comin-
co's Red Dog Mine.
The attached document is a response to the BACT section of
Appendix A of Cominco’s Comments on Preliminary Tech-
nical Analysis Report for Air Quality Control Construction
Permit No. 9932-ACO005 received by the Department on June
7, 1999. Appendix A of Cominco’s comments was originally
provided to the Department on March 3, 1999 under the title
Presentation to Alaska Department of Environmental Con-
servation of Major Discretionary Air Quality Issues Pending
Decision at Cominco’'s Red Dog Mine.
100
The document is a point-by-point consideration of Comin-
co’s comments. The majority of the document presents
Cominco’s comments verbatim, but the Department has para-
phrased some of Cominco’s comments to save space.
In summary, Cominco believes that a Top-Down analysis
shows that the Low NOx retrofit package should be BACT
for their Wartsilla 5 MW engines. Cominco’s argument
relies mainly on comparing the Low NOx retrofit package
with Selective Catalytic Reduction.
AQM’s response shows that while Cominco maintains that a
Top-Down analysis is required, the analysis presented by
Cominco is not a Top-Down analysis, does not present the
lowest cost scenario, and appears to exaggerate the safety and
environmental effects of ammonia. Cominco’s analysis does
not present information showing SCR to be environmentally,
technically, and economically infeasible. Cominco has not
completely analyzed the most effective available NOx
control, as a Top-Down analysis would require. Cominco
also has presented a BACT evaluation that appears to be a
“Bottom-Up” analysis and in contradiction with current
BACT determination processes.
In short, the information contained in the BACT section of
Appendix A of Cominco’s Comments on Preliminary Tech-
nical Analysis Report for Air Quality Control Construction
Permit No. 9932-ACO005 is contrary to EPA guidance and
accepted Top-Down BACT analysis procedures, and there-
fore should not be solely relied upon to determine BACT for
the Red Dog Production Rate Increase Project.
* * *
SCAQMD determined a $17,000/ton NOx removed as the
maximum cost per ton of pollutant removed. All the costs
provided for SCR by Cominco are well within the California
$17,000/ton limit.
101
ae for
The RBLC contains numerous BACT determinations
SCR on turbines whose costs-of-control fall within the same
price range for SCR as Cominco’s Wartsila. These include
turbines in Pennsylvania, Virginia, New Jersey, California,
and Oregon.
EPA’s
Finally, as stated earlier, the January letter from
omen Nye states that costs under $10,000/ton should be
considered economically feasible as BACT.
Of the examples cited above, none are exactly the same
situation as Cominco’s, but all have similar application to
fuel burning equipment.
VII. What is BACT for the PRI?
VII. A. Cominco submits that SCR should be eliminated from
consideration for the combination of reasons already noted.
iti j burning
]. it imposes a major energy penalty in the form of ,
a half-million additional gallons/year of diesel fuel,
enario requiring this additional fuel consumption, as
aan mere to Sona IV.B, IV.C, and IV.D, is not the
scenario under consideration, nor is it the scenario presented
in the preliminary TAR. Relocating the WHRU or installing
a new WHRU eliminates this fuel expense and eliminates the
additional pollution due to burning extra fuel.
_ , d
_ it provides minimal environmental benefits compare
’ with Low NOx and poses a risk, albeit small, of serious
injury and death to plant workers; and
with Cominco that the ammonia risks are small.
The pao SCR system effectively minimizes the risk
due to ammonia transport and handling. Since the majority
of SCR operators use either aqueous or anhydrous ammonia
in dense population areas, the risk to Cominco by — a
urea-based SCR system is proportionately less than that
incurred by operators of SCR using anhydrous or aqueous
ammonia.
102
According to EPA guidance quoted in our response to
V.A.L., environmental concerns should be used only as
justification for requiring more stringent control technology;
they should not be used to justify a less stringent technology.
Cominco has not shown that a 10-ppm ammonia stack
concentration will cause harm to the environment. Con-
versely, ADEC staff have modeled ambient ammonia affects
to be negligible.
3. it [sic] costs are approximately 5 to 8% times as much
per ton of NOx removed as Low NOx controls.
This comparison is inappropriate and spurious, and contrary
with previously presented cost assessments we have prepared
for Low NOx and SCR controls. Top-down BACT requires
the most stringent feasible control to be used without com-
parison to less stringent controls. If it is economically
feasible for an applicant to use a more effective control
technology, then the more effective control t. shnology
should be used. The cost effectiveness of SCR is within
what has been found feasible in comparable cases. Accord-
ing to data Cominco has provided to the Department
appears within Cominco’s means. epartment, SCR
On balance, Cominco submits that the case for SCR cannot
be supported. That explains why SCR has never been
required for a similar source in similar circumstances in
Alaska or elsewhere.
We disagree that the case for SCR cannot be support
information provided by Cominco in their yo se ond
supplements does support the case for SCR. Barring the
upcoming installations at UAF, and Coeur Alaska’s Kensing-
ton Gold Mine, we agree that SCR has never been applied in
Alaska. We dispute that it has never been applied to similar
emission sources elsewhere. As discussed in V.B.2, Comin-
4 ay ong information to the Department showing that
as n installed on simi iesel-
> oot n similar diesel-fired engines
103
VIL. B. Figure 9 is a chart which compares, in quantitative
terms, the various control options based on energy, environ-
mental, and economic impacts, and uses a quantitative
comparison to rank the options. Based on this evaluation,
Low NOx is the preferred option.
The analysis presented in Figure 9 is not a quantitative
analysis, but a qualitative analysis and contains serious flaws
with regard to BACT. First, operation per design is the base
case. Because of operation per design is the base case, it is
clearly a form of ‘bottom up’ BACT analysis which currently
is not an accepted method for determining BACT. In addi-
tion, many of the ranking categories are redundant, arbitrary,
or irrelevant. Moreover, the ranking scale of 1 to 3 appears
arbitrary, improperly weighted, and is too small to illustrate
the real differences between control technologies. The
analysis presented in Figure 9 is clearly contrary to the
current practice of BACT analysis and will certainly result in
a greater, not less, arbitrary BACT decision than EPA’s
current ‘top down’, case-by-case analysis. If Cominco stands
by Parts I and II of the BACT section of their presentation,
then this analysis is clearly inappropriate if they believe a
Top-Down anal:'sis needs to be performed.
In summary, Cominco’s arguments are not convincing that
ADEC should dismiss SCR as BACT when conducting a Top
Down assessment. Cominco has presented an inappropriate
Bottom-Up analysis, does not present the lowest cost option
of a given technology, and exaggerates the safety and envi-
ronmental risks from SCR technology.
We maintain that SCR is technically, environmentally, and
economically feasible. A top-down analysis should start with
the most effective control technology. In this case, the most
effective control is the combination of SCR in conjunction
with direct water injection/Low NOx retrofit; Cominco has
not discussed this possibility in their presentation, but has in
their October 1998 supplement to their application. It is clear
that SCR (the most effective individual technology) should
104
be considered technologically, environmentally, and eco-
nomically feasible for the Red Dog power plant engines.
105
ALASKA DEPARTMENT OF ENVIRONMENTAL
CONSERVATION
Juneau, Alaska
FINAL
TECHNICAL ANALYSIS REPORT
For Air Quality Control Construction Permit
No. 9932-AC005
Cominco Alaska, Inc.
Prevention of Significant Deterioration
Red Dog Mine Production Rate Increase
September |, 1999
Prepared by:
Alaska Department of Environmental Conservation
Air Permits
410 Willoughby Avenue, Suite 105
Juneau, AK 99801-1795
With substantive information by:
Hoefler Consulting
1205 East International Airport Road, Suite 201
Anchorage, AK 99578
106
* * x”
4.1.3 NOx Control for Wartsila Generator Five and
Seventeen (MG-5, MG-17)
Cominco plans to operate seven 5000 kW Wartsila generator
sets (MG-1 through MG-6, and MG-17) for the Production
Rate Increase Project. Two of these units (MG-5 and
MG-17) are subject to BACT review. Wartsila engines
MG-1 through MG-S are existing 5000 kW units that the
Department permitted under PSD in 1988 with operational
restrictions. Two of the five units were to operate in standby
status: Cominco’s application and permit did not identify the
standby units. Therefore, the Department has interpreted that
at least two of the five units must be in standby at any given
time in order to comport with the 1988 permit decision.
In 1994, the Department issued a PSD permit to remove
standby status from one of the existing units (unit MG-2).
An operational cap of 109,660,000 kW-hr per year was
imposed on the remaining four units--MG-1, MG-3, MG-4,
and MG-S, which was equivalent to full-time operation of
three units, with one unit on standby. Under the kW-hr
operational cap, all four engines could operate simultane-
ously provided the annual kW-hr limit was not exceeded.
Cominco also added a sixth 5000 kW Wartsila engine to
operate full time as part of the 1994 permit.
Cominco is currently requesting the removal of the annual
kW-hr operational restriction. Cominco has requested that
MG-5 represent the standby unit for the purpose of BACT
analysis. Therefore, MG-5 must undergo a BACT analysis
as a modified source. Cominco is proposing to add a seventh
5000 kW Wartsila engine that, therefore, must undergo
BACT analysis as a new emission source.
The control technologies Cominco evaluated as
possible
BACT technologies for MG-5 and MG-17 are Direct Water
Injection (DWI)/Low NOx Modification, Fuel Injection
Timing Retard (FITR), Low NOx Modification, Selective
107
Catalytic Reduction (SCR), and Non-Selective Catalytic
Reduction (NSCR). Because NSCR requires low oxygen
content in the exhaust gas stream, it was the only control
technology considered unavailable for diesel units due to
technical constraints. Of the remaining technologies, Selec-
tive Catalytic Reduction with an estimated reduction of 90%
is the most string2nt. Top Down BACT analysis requires the
consideration of the most stringent control technologies first.
If the most stringent control technology is considered BACT,
then no analysis of less stringent controls is required.
Summary of Preliminary Decision and Public Comment
The applicant, Cominco, submitted an application for a
construction permit to increase production at the Red Dog
Mine. The production rate increase is subject to review
under the prevention of significant deterioration (PSD)
provisions of the state construction permit regulations, since
it will cause significant emission increases in NOx. As a
result, the applicant is required to show that BACT for NOx
will be installed and used on each new or modified source.
As part of the production increase, the applicant proposed to
increase electrical production at the Mine’s power plant. In
order to do this, the application called for the Department to
remove an existing permit limitation that governed the
operation of four diesel engines that make-up part of the
power plant. This limitation currently restricts the combined
operation of these four engines in a manner that would be
equivalent to three engines operating full-load for the entire
year. Through this permit action, the applicant desires to
remove this limitation so the four engines can be operated
full-load for the entire year.
In the matter of defining the modification, the applicant
proposed that the emissions of three engines be limited
according to the original 1988 permit, which allowed the
operation of three engines full-load for the entire year. Also,
the applicant proposed that the fourth engine, known as
MG-S and considered a standby engine in the 1988 permit,
108
be considered a modified source in this permit action and be
subject to BACT for NOx. The Department concurred with
this approach to defining the modification and the engine
subject to BACT.
In March 1999, the program found that SCR was BACT on
MG-5'. In response to this proposed preliminary determina-
tion, the applicant proposed an alternate emission reduction
strategy to serve as BACT. The applicant also amended the
application to include the installation of an additional new
engine, known as MG-17. This new engine would also be
subject to BACT.
The applicant’s proposal consisted of two parts. In this first
part, the applicant proposed to retrofit all of the existing,
unmodified engines in the power plant with components that
would reduce their NOx emissions. In the second part,
MG-5 would be retrofitted with the same components and
MG-17 would be supplied from the manufacturer with the
NOx reducing components already installed. From the
information presented, the retrofit appears to be equivalent to
the manufacturer’s most recent stock configuration of the
16V32 engine.
The Department proposed the alternate BACT in its prelimi-
nary decision, and argued that the aggregate emission reduc-
tion achieved at the power plant was nearly equivalent to the
emission rate that could be achieved with SCR on only MG-5
and MG-17.
During the public comment period, the applicant, and the
federal land manager objected to the alternate BACT pro-
posal and the Department’s judgement of it as meeting
BACT. The applicant felt the Department did not use the
appropriate standard of review and, if it had done so, would
have rejected all control technologies except for the appli-
|
March 3, 1999 memo from John M. Stone, ADEC, to Tom
Chapple, ADEC.
109
cant’s proposed BACT. The federal land manager also
claimed the Department did not use the appropriate standard
of review. However, they claimed the Department should
have found that catalytic control was BACT.
* * *
NOx BACT Analysis for MG-5 and MG-17
The following presents the Department’s final BACT review
following the step-by-step top-down approach described
previously.
Step 1 — Identify All Control Technologies
The sources under review are Wartsila 16V32 internal com-
bustion, compression ignition, reciprocating engines. The
engines burn diesel fuel and power 5,000 KW electric
generators.
The applicant identified six control technologies for control
of NOx that are applicable to the sources. The technologies
are selective catalytic reduction, nonselective catalytic
reduction, direct water injection, Low NOx components, Fuel
Injection Timing Retard (FITR), Operation per design (no
control).
In general, the Department concurs with the applicant’s
identification of available control technologies.
Step 2 — Eliminate the Technically Infeasible Options
The applicant eliminated from consideration non-selective
catalytic reduction as being technically infeasible. In the pre-
liminary decision, the Department concurred with the appli-
cant that non-selective catalytic reduction 1s technically
infeasible. This is because the oxygen content of the exhaust
gas of the sources is too high.
The Department reviewed and concurred with this finding.
110
Step 3 — Rank the Remaining Control Technologies by Con-
trol Effectiveness
By reviewing the application and numerous submittals, one
can develop a ranking of the remaining control options by
control effectiveness. The Department, in its preliminary
decision, did not provide a ranking of the control options by
control effectiveness. For purposes of the final evaluation,
the technologies were grouped into three control options:
catalytic reduction, direct water injection, and the manufac-
turer’s stock engine configuration as of a certain date.
A ranking for the MG-5 and MG-17 by control effectiveness,
expressed as percent reduction in NOx from the base case
and emission in tons per year after application of the control
option, is shown below. The base case of the new engine,
MG-17, is the 1999 stock engine. The base case of the
modified engine, MG-5, is its current 1988 configuration.
Control Option | Emission Rate (TPY) | Per Cent Reduction
MG-17 MG-5 MG-17 | MG-5
Catalytic
Controls 53 90 90 90
Direct Water
Injection 266 451 50 50
1999 Stock
Engine 531 531 0 41
1988 Stock
Engine N/A 902 N/A 0
The applicant provided detailed discussion of the economic,
environmental, and energy impacts of each control option in
the application and numerous addenda.
Step 4 — Evaluate the Most Effective Controls and Document
Results
—
a
In the application and comments on the Department’s pre-
liminary decision, the applicant argued that catalytic controls
and direct water injection were not achievable at the Red Dog
Mine for energy, environmental, and economic reasons.
They concluded that an emission limit that could be achieved
with a 1999 stock Wartsila engine should be BACT. To
meet BACT for MG-S, they proposed to retrofit it to the
1999 configuration.
In its preliminary decision, the Department argued that an
emission rate roughly equivalent to that which could be
achieved with catalytic control was BACT. The Department
indicated the emission limit could be met by retrofitting all of
the engines in the power plant to the 1999 engine configura-
tion. In this way, the Department tempered the stringency of
BACT by crediting the applicant with emission reductions
from sources that were not part of the permit action. Also,
the Department did not reject catalytic controls or direct
water injection as BACT due to energy, environmental, or
economic considerations.
The applicant, EPA, and the Federal Land Manager criticized
the Department’s preliminary decision. These parties took
exception to the Department’s approach in tempering the
stringency of BACT by crediting the applicant with emission
reductions at existing, unmodified sources. The land man-
ager and the applicant also criticized the Department for not
following the top-down approach, in that the Department did
not determine that catalytic controls or direct water injection
were not achievable at the Red Dog Mine.
The collateral impact clause of the BACT definition allows
permitting authorities to temper the stringency of BACT in
cases where the energy, environmental, or economic impacts
that are associated with the use of a control option at a
specific facility are viewed by the review agency as suffi-
ciently adverse as to render the use of that technology
inappropriate for a given facility. In this case, the emission
reductions achieved by the applicant’s proposal to retrofit the
112
existing, unmodified engines into a 1999 configuration is not
a candle of the BACT review provided for by the
applicable law or guidelines. Therefore, it cannot be used to
temper the stringency of BACT.
* * .
Economic Impacts
liminary decision, the Department recalculated and
woe the poten associated with the catalytic control
option. The Department did this because the applicant’s cost
estimates used inappropriate adjustments and appeared to
double-count ed some costs. As presented, the applicant's
costs appeared to be out of line with cost estimates available
to the Department from other sources.
The applicant commented that the Department's economic
analysis was flawed. The applicant believed—asserted the
ent did not appropriately account for all of the valid
costs associated with the loss of heat recovery on MG-5.
The applicant looked at two options to replace the lost heat
from the recovery unit on MG-5. One option was to install a
supplemental boiler. The other was to install a heat recovery
unit on an engine that is not currently outfitted with a heat
recovery unit. Although the latter option ts significantly
cheaper, the applicant indi they do not prefer it
because a future option to reclaim heat would be lost.
The applicant also asserted that the entire powerhouse and
mill a be shut down in order to remove the heat recovery
unit from MG-5 and install a new heat recovery unit on
another engin
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.