Amicus Curiae Brief — Alaska Dept. of Environmental Conservation v. EPA

FILED

No. 02-658 -

APR 269995

| IN THE —

Supreme Court of the sine

STATE OF ALASKA, DEPARTMENT OF ENVIRONMENTAL

CONSERVATION,

Petitioner,

V.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, ef al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF FOR NANA REGIONAL CORPORATION, INC.

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

JACQUELYN R. LUKE JAMES E. TORGERSON*

VICE PRESIDENT AND MATTHEW COHEN

GENERAL COUNSEL HELLER EHRMAN WHITE

NANA REGIONAL CORPORATION, & MCAULIFFE LLP

INC. 510 L STREET, SUITE 500

1001 EAST BENSON BLVD. ANCHORAGE, AK 99501

ANCHORAGE, AK 99508 (907) 277-1900

(907) 265-4148

* Counsel of Record Counsel for Amicus Curiae

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

i

TABLE OF CONTENTS

ll

TABLE OF AUTHORITIES

Case:

Alaska Department of Environmental Conservation

v. United States Environmental Protection

Agency, 298 F.2d 814 (C.A.9 2002).......ccsseeeeeees

Statutes:

42 U.S.C. § 7413(a)(5) (Clean Air Act) .........:ccceceeeees

42 U.S.C. § 9677 ..0csecssveseosessecscccesessetssnnieennsnnnnnnnn

42 U.S.C. § 7479(3)..0.00scrscrescccesecsersesesossesensssennssnssnenet

43 U.S.C. § 1601, et seq.

(Alaska Native Claim Settlement Act of

December 18, 1971). ...crccesscrcccsccssesscccvessssssosesssess

43 U.S.C. § 16GB ..cccccccccccsoccsseosssssenssnrnnnnnnel aviasuieianeal

43 U.S.C. § 1606 ...ccccccresescessccesscssscsscessesnessnsssntsennenns

Rule:

Supreme Court Rule 37.6 .........ccscssesseseeneereeneeneenennens

Legislative Materials:

H. R. Rep. 92-523 (Sept. 28, 1971) ...sssessssssssessssensneees

S. Rep. 92-403 (October 21, 1971) ...sccsssssseseseeeeessen

Page

sennnns l

senevone 1

IN THE

Hupreme Court of the Anited States

No. 02-658

STATE OF ALASKA, DEPARTMENT OF ENVIRONMENTAL

CONSERVATION,

Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, et ail.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF FOR NANA REGIONAL CORPORATION, INC.

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

STATEMENT OF INTEREST

NANA Regional Corporation, Inc. (NANA) is an Alaska

corporation formed pursuant to the Alaska Native Claims

Settlement Act (ANCSA), 43 U.S.C. §§ 1601, ef seg., and the

laws of the State of Alaska to “promote the economic, social

and personal well being” of the Natives of the northwest

region of Alaska.'| NANA owns the land and mineral re-

' No counsel for any party authored this brief in whole or in part,

and no person or entity, other than the amicus curiae and its mem-

bers, made a monetary contribution to the preparation or submis-

sion of the brief. S. Ct. Rule 37.6. The brief is filed with the

consent of the parties, and cayles of the consent letters have been

filed with the Clerk.

2

sources underlying the Red Dog Mine (Mine), and leases the

Mine property to Teck Cominco Alaska Incorporated (Teck

Cominco) under a long-term mining agreement. The actions

taken by the United States Environmental Protection Agency

(EPA) threaten the further development of the Mine, poten-

tially depriving NANA shareholders of jobs and reducing

NANA’s earnings. NANA filed an amicus brief supporting

the position of the Alaska Department of Environmental

Conservation (ADEC) and Teck Cominco in proceedings

before the Ninth Circuit Court of Appeals.

SUMMARY OF ARGUMENT

While NANA does not argue the merits in this brief, it does

agree with the ADEC and Teck Cominco that the EPA does

not have authority under §§ 113(a)(5) or 167 of the Clean Air

Act (CAA) 42 U.S.C. §§ 7413(a)(5) and 7477, to unilaterally

override a BACT decision by a State which, as here, was

made following an EPA-approved State Implementation Plan

applying the factors set out in § 169(3) of the CAA, 42

U.S.C. § 7479(3).

Further, NANA supports the terms of the Prevention of

Significant Deterioration (PSD) permit issued by the State of

Alaska on December 10, 1999, to Teck Cominco. Specifi-

cally, NANA supports ADEC’s decision regarding the Best

Available Control Technology (BACT) provisions included

in that permit along with Teck Cominco’s voluntary agree-

ment to install low Nitrogen Oxide (NOx) technology on six

of Teck Cominco’s generators.

ARGUMENT

The Alaska Native Claims Settlement Act of December 18,

1971, PL 92-203, 85 Stat. 688, codified at 43 U.S.C. §1603,

called for the establishment of thirteen Regional Corpora-

tions, representing the different Native groups throughout

Alaska to “promote the economic, social and personal well

being of their shareholders. It also created over 200 village

———

3

corporations. NANA was the Regional Corporation formed

for the Native people of the northwest region of Alaska.”

Congress required the Regional Corporations to be incor-

porated as for-profit corporations, and anticipated that they

would become the primary vehicles for the economic devel-

opment of their region of the State. 43 U.S.C. § 1606. In

particular, the subsurface, or mineral lands, were viewed by

Congress as a key component of the economic portion of the

settlement. The Senate Interior Committee Report notes that

an essential aspect of the settlement is a grant of land for use

“as a resource base for Native commercial enterprises.”

S. Rep. 92-403, p. 79 (October 21, 1971). The House Re-

sources Report 92-523 echoes this sentiment:

The proposed bill, through a combination of

providing land and money for the settlement

for the Native claims, will provide ... land

that is necessary for the living and subsis-

tence of those Natives who continue to rely

on the land for their living, while at the same

time providing an economic settlement both

in terms of cash contributions and patents to

land and mineral rights ... which will be used

by the Natives for promoting their economic

development to the fullest extent possible.

Rogers C. B. Morton, Secretary of the Interior’s comments

to the Speaker of the House. H. R. Rep. 92-523 (Sept. 28,

1971) (emphasis added). As the language of the Act and the

legislative history shows, self-determination of Natives

poe economic independence was an important goal of

? There originally were eleven village corporations in the NANA

Region. In the late 1970’s, NANA merged with ten of those

village corporations.

4

NANA holds extensive land and mineral resources, includ-

ing the land and mineral resources underlying the Red Dog

Mine (Mine). It leases the Mine property to Teck Cominco

under a long-term mining agreement the parties entered into

in 1989 (the “Agreement”’).

Under the Agreement, Teck Cominco developed and now

operates the Mine and pays NANA a royalty for the metals

mined. The Mine is the only major source of non-

governmental jobs in the NANA region. It is the centerpiece

of NANA’s effort to provide meaningful jobs to its share-

holders. On average, 60% of the Mine’s workforce consists

of NANA shareholders or their spouses. In addition, NANA

subsidiaries provide many services to Teck Cominco at the

Mine. NANA Management Services LLC provides food

service, housekeeping and maintenance. NANA-VECO joint

venture performs construction projects. NANA Dynatec

Drilling LLC, has done most, if not all, of the exploratory

drilling for the Mine. NANA/Lynden LLC transports barge

supplies to the Mine from the Mine’s port site and hauls the

zinc and lead concentrates from the Mine to the port. A

substantial portion of the employees of these NANA subsidi-

aries also are NANA shareholders.

In addition to the benefit these jobs provide to individual

shareholders, the wages paid to NANA shareholders have a

substantial import on the overall economy of the Region. As

stated on pages 46 and 47 of the December 10, 1999, Final

Technical Analysis Report by ADEC, J.A. 207, Red Dog

3 Unless otherwise indicated, the facts in this brief are supported

by the January 31, 2003, Affidavit of Marie N. Greene, President

of NANA, filed with the Federal District Court of Alaska in Case

No. A02-231 Civil (JWS) Kivalina Relocation Planning Commit-

tee v. Teck Cominco Alaska Incorporated, and the June 28, 2000,

Letter of Support si by NANA Vice President and General

Counsel, Jacquelyn R. Luke, filed with the United States Court of

Appeals for the Ninth Circuit in Support of NANA’s Amicus Brief

in this matter.

5

Mine has greatly boosted the local economy. The Mine’s

annual payroll of $26.4 million represents over a quarter of

the local Borough’s total wages and salaries. NANA also

receives substantial royalty income and income from its

contracts with Teck Cominco. Teck Cominco also contrib-

utes substantially to the economy of the Region through its

payments in lieu of taxes to the Nertimest Arctic Borough.

In the absence of the Mine, the economic opportunities in

the Region would be considerably less. Non-Red Dog re-

lated jobs in the villages in the NANA region are very lim-

ited and are usually related to government-funded positions

such as the post office, school district and health service.

Although jobs and economic opportunity are very impor-

tant to NANA, the land and its resources remain uppermost

in the minds of the corporation and its shareholders. Most

shareholders living in the Region still rely on a subsistence

way of life that requires hunting and gathering from the

bounty of the land. Thus, preservation of the land and its

environment are first priorities for NANA.

Indeed, the Agreement between NANA and Teck Cominco

reflects that one of NANA’s core concerns is protection of

the subsistence resources. The Agreement establishes a

Subsistence Committee (Committee), which advises NANA

and Teck Cominco management on the interaction between

Mine operations and subsistence resources. The Committee

authorizes and reviews a yearly caribou study. When caribou

are in the vicinity of the haul road running between the Mine

and the port, the Committee shuts down portions of the road.

In fact, NANA has the power under the Agreement to direct

Teck Cominco to shut down some or all of the Mine’s opera-

tions if they threaten subsistence.

When mining operations conclude and Teck Cominco’s

leasehold terminates, the Mine property will revert to NANA.

NANA has a fundamental interest in ensuring that the land

and waters in the vicinity of the Mine do not pose a threat to

6 7

subsistence resources. Again, while Teck Cominco operates CONCLUSION

the Mine, NANA monitors and has the power to regulate the For the foregoing reasons, the judgment below should be

mining operation to prevent adverse impacts to the value and reversed.

utility of NANA’s real property. Respectfully submitted,

In short, NANA did not move forward with the Mine until

it was convinced that the development could occur without JACQUELYN R. LUKE JAMES E. TORGERSON*

adversely impacting the environment. During the operation VICE PRESIDENT AND MATTHEW COHEN

of the Mine, NANA holds and exercises the power to prevent GENERAL COUNSEL HELLER EHRMAN WHITE

adverse environmental impacts. NANA REGIONAL CORPORATION, & MCAULIFFE LLP

| ' INC. 510 L STREET, SUITE 500

NANA objects to the EPA’s issuance of the enforcement 1001 EAST BENSON BLVD. ANCHORAGE, AK 99501

orders in dispute here enjoining ADEC and Teck Cominco ANCHORAGE, AK 99508 (907) 277-1900

from installing and operating the generator in question. (907) 265-4148

NANA’s opposition rests first on its concurrence with ADEC

and Teck Cominco that the EPA does not have the authority © Comment of Recent Counsel for Amteus Cartes

under §§ 113(a)(5) or 167 of the Clean Air Act, 42 U.S.C. §§

7413(a)(S)(A) and 7477, to unilaterally issue orders overrid-

ing a State’s BACT decision that, as here, was made follow-

ing an EPA-approved State Implementation Plan applying

the BACT factors set out in § 169(3) of the Act, 42 U.S.C. §

7479(3).

NANA’s support rests, second, on its comfort with the

terms of the PSD permit issued by the State on December 10,

1999, to Teck Cominco, which include the BACT provisions

included in tha permit and Teck Cominco’s agreement to

voluntarily install low NOx technology on all of its primary

generators.

NANA, accordingly disagrees with the Ninth Circuit Court

of Appeals’ decision in Alaska Department of Environmental

Conservation v. United States Environmental Protection

Agency, 298 F.2d 814 (C.A.9 2002), and urges its reversal.