Joint Appendix — Alaska Dept. of Environmental Conservation v. EPA

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No. 02-658 APR 2s om

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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

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Joint Appendix — Alaska Dept. of Environmental Conservation v. EPA · 540 U.S. 461 | Frix