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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0615%3A22

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 540 U.S. 461

## Text

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No. 02-658 LOFFICE OF THE CLERK |

IN THE
Supreme Court of the United States

STATE OF ALASKA, DEPARTMENT OF ENVIRONMENTAL
CONSERVATION,
Petitioner,
v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
ET. AL.,
Respondents.

On Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE
NORTHWEST ENVIRONMENTAL DEFENSE CENTER
IN SUPPORT OF RESPONDENTS

DONALD B. POTTER*
DONALD B. POTTER, P.C.
522 S.W. Fifth Avenue
Suite 1110

Portland, OR 97204
(503) 223-2612

*Counsel of Record Counsel for Amicus Curiae

i

TABLE OF CONTENTS
| Page
Ce CD cviintiininsnimnnmeniiiiil ll
INTERST OF AMICUS CURIAE.............cccccccsosscssscessssssceees ]
SUMMARY OF ARGUMENT ..............:cccccsscssssssssssssercseenees l
Fee cnccninsiesiesseiinivibinnaninissesiiineiaiitiiiiiapiaaiiiaiialinaiciaiaiiniaaaas 3
I. THE TEXT AND STRUCTURE OF THE CLEAN

AIR ACT GIVE THE EPA AUTHORITY TO
ISSUE ORDERS PROHIBITING CONSTRUCTION
OF A FACILITY WHICH DOES NOT CONFORM
TO THE REQUIREMENTS OF THE PSD

A. The plain language of the Clean Air Act
gives EPA authority to oversee the PSD
ccnunaninnntnimimmmedbiiiaine 3

B. EPA's oversight authority extends to a
BACT determination. .............c.s0cc000000000+ 4

C. EPA correctly exercised its oversight
authority in determining that ADEC’s
BACT analysis was deficient.................. 8

D. The remedy for any shortcoming in
EPA’s exercise of authority is to remand
the case to the Ninth Circuit...............00+. 9

ii
II. THE POLICIES OF FEDERALISM AND

PRACTICAL EXPERIENCE SUPPORT EPA’;
CLEAN AIR ACT OVERSIGHT AUTHORIT) 1}

A. The Clean Air Act can only work with
strong EPA oversight; any atten, to
curtail that oversight would only riwerse
the current progress towards atlyining
the goals of the ACt........:c.s0ccceeeeeees 1]

B. If it is true that the country is in nyoq of

increased energy capability, tha fact

only argues more strongly for fp,
oversight Of the ACt............0000000e00 15

C. Past experience, public health ayq
public interest indicate that poral]
oversight authority is necessary if the
goals and purposes of the Act aré 4 he

POMP OG sveicecseosessvccsevscsscssecswsesscoes: 16
Nae eccccccscscccsvscsnsesccssuscscesoscsseceesvenecececreosooeses 22
TABLE OF AUTHORITIES
Cases .
American Trucking Ass'ns, Inc. v. U.S.E.P.A., 283 F.34 355
(D.C. Cat 200G) ...nccccccvorecsssororecocsececsosencesesescsovonenonsee: 16

Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837

ili
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120
Eee 5,9
New York v. United States, 505 U.S. 144 (1992) .......cccccce 12
Skidmore v. Swift & Co., 323 U.S. 134 (1944) ......ccccccceeeees 10

United States v. Mead Corporation, 533 U.S. 218 (2001)...10

Whitman v. American Trucking Ass ‘ns, 531 U.S. 457

EES een ee 16
Statutes
TS ne ce nN 7
ae aE 3
a Re ee 8
Te ee Nee! 7
En 6
A ee 7,9
EL. a ET 7
LS ae eR 5,7,9
eel 7
EA aca ee 6
ESTA LES a eatiial
TS 7
TTT a TET 4,6,8
al 4
Rules

TE ST 10
| a TS 10
Se re Bs GID GE cccececonccccnccccncsccssccecessssscecoseccseotees 10
66 Fed. Reg. 61286 (2001).............ccccccccceccsccesscocssscecessececeees 10

iv

Regulations

a 0 ee cnennrecercntentenseesnmeiinninnnnnel 6
Legislative Materials

eae CRU, De, GE GINO O Peccccenencsnencansascenssssseneenseempneneneas 14
ae 14
Other Authorities

Adler, Jonathan H., The Green Aspects of Printz: the Revival
of Federalism and Its Implications for Environmental
Law, 6 Geo. Mason L. Rev. 573 (1998)...........cccess000s 12,13

Benedick, Richard Ozone Diplomacy 2 (1998).............. 16,17
Dickey, Jefferson H., M.D., No Room to Breathe: Health
Effects of Criteria Air Pollutants from Power Plants
EPA’s Final Report to Congress on Benefits and Costs of the
Gan 4 Gh, FES e cress 18
EPA’s New Source Review Workshop Manual (1990)........ 10
Johnson, Dr. Barry L., Testimony before the Senate
Environment and Public Works Committee, March 12,

Sarnoff, Joshua D., The Continuing Imperative (but only
from a National Perspective) for Federal Environmental
Protection, 7 Duke Envtl. L. & Pol’y F. 225 (1997) ....... 13

Texas Air Quality Study 2000.............0ccccseccccsessssesessesesseesees 17
Williams, Douglas R., Cooperative Federalism and the

Clean Air Act: a Defense of Minimum Federal Standards,
20 St. Louis U. Pub. L. Rev. 67 (2001)............. 12,13,14,15

~

l
INTEREST OF AMICUS CURIAE

The Northwest Environmental Defense Center (NEDC
or Amicus) is an independent, non-profit organization
working to protect the environment and natural resources of
the Pacific Northwest.’ NEDC’s work includes providing
legal support to individuals and grassroots organizations with
environmental concerns, and engaging in litigation
independently or in conjunction with other environmental
organizations to ensure that the Nation’s environmental laws
are properly enforced.

As part of our mission, NEDC seeks to maintain or
restore healthy air, water, and ecosystems on behalf of our
members who live primarily in the Pacific Northwest, but
who also reside in other parts of the country. We believe that
the Environmental Protection Agency (EPA or
Administrator) plays a vital role in enforcing the Nation’s
environmental laws, thus moving us closer to achieving our
goal of a healthy environment.

SUMMARY OF ARGUMENT

The enforcement authority given to EPA under the
Clean Air Act (CAA, or Act) allows EPA to oversee best
achievable control technology (BACT) determinations made
by the States under the Prevention of Significant
Deterioration (PSD) program. Using the principles of
Statutory interpretation in the opinion below, the Ninth
Circuit held that EPA had correctly exercised this authority

' Counsel for the parties have consented to the filing of this amicus curiae
brief, and the letters of consent are being filed with this brief. Pursuant
to Supreme Court Rule 37.6, Amicus states that no counsel for a party
has authored this brief in whole or in part. No person or entity other than
amicus or its members has made a monetary contribution to the
preparation and submission of this brief.

2

in its issuance of an order preventing new construction at
Cominco’s Red Dog Mine. EPA issued its order in spite of
the fact that the Alaska Department of Environmental
Conservation (ADEC, State, or Alaska) had issued a permit
for the construction to go forward under the State’s PSD
program. EPA objected to the issuance of the permit on the
basis that the State had not offered a reasoned justification
for its determination that Low NOx was BACT for the
facility rather than Selective Catalytic Reduction (SCR).

The statutory provision which gives the State the
authority to make a BACT determination does not operate in
isolation, but must be read in conjunction with the rest of the
Act. In looking at the CAA as a whole, and particularly at
the PSD provisions, a great deal of authority is given to EPA
to implement guidelines under the PSD program and to
ensure that the guidelines are properly carried out. Various
provisions of the Act allow for EPA’s input at the individual
permit level. As the BACT determination is a major factor
in the implementation of the PSD program, it would be
anomalous for EPA to have so much PSD authority, but have
no right to oversee a State’s BACT analysis.

If EPA has erred at all, it is perhaps in not having
promulgated its guidelines in the form of a final rule. If this
is the case, then the remedy is for EPA to undertake formal
rulemaking.

The principles of cooperative federalism outline the
proper roles of the States and EPA in implementing the
regulatory scheme of the CAA. A State, if it chooses, has
the primary responsibility to implement the PSD program
within its borders. EPA’s role is to ensure that the State’s
implementation of the program is in accord with the policies
and purposes mandated by the Act.

3

Although the State may be in a better position to
evaluate the unique factors involved in a particular permit
decision, the State is also subject to conflicts of interest
which may cloud its judgment. EPA’s distance from the
situation can serve to make it more objective in its
technological and scientific determinations. Furthermore,
EPA’s central position allows it to serve as a clearinghouse
for the huge amounts of information that must be assembled
and disseminated.

Past performance of the States under the Act led
Congress to give EPA increasing authority in the successive
amendments to the Act. In view of the continuing
revelations about the health effects of the pollutants
regulated by the CAA, the evolving science and technology,
and the Nation’s failure to achieve the goals and purposes of
the Act, a strong oversight role for EPA is essential.

ARGUMENT

1. THE TEXT AND STRUCTURE OF THE CLEAN AIR
ACT GIVE THE EPA AUTHORITY TO ISSUE
ORDERS PROHIBITING CONSTRUCTION OF A
FACILITY WHICH DOES NOT CONFORM TO
THE REQUIREMENTS OF THE PSD PROGRAM.

A. The plain language of the Clean Air Act gives EPA
authority to oversee the PSD program.

Section 113(a)(5) of the CAA gives EPA authority to
enforce the provisions of the PSD program. 42 U.S.C. §
7413(a(5). Section 167 of the Act goes even further and
mandates that the Administrator take some measures to
prevent construction or modification of a major emitting

4

facility which does not meet the requirements of the PSD
program.’ 42 U.S.C. § 7477.

The present dispute revolves around whether this
authority extends to a determination of BACT for a
particular facility, and, if so, in what manner the authority
should be exercised. In light of the ambiguity in the CAA
provisions, EPA, the agency charged with administering the
Act, is entitled to deference in its interpretation of the statute.
See Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 842-
843 (1984).

B. EPA’s oversight authority extends to a BACT
determination.

The Ninth Circuit, in the opinion below, held that EPA
had the ultimate authority in resolving a question of State
compliance with BACT requirements, based on the plain
language and legislative history of the Act. Pet. App. la,
et.seq.

The statute provides roles for both the State and EPA in
a determination of what constitutes BACT for a facility. At
first glan e, the CAA might appear to give all authority for
determining BACT to the State in its definition of the term.
42 U.S.C. § 7479(3). That definition specifies tha: 83ACT is
an emission limitation which the “permitting authority, on a
case-by-case basis ... determines is achievable for such
facility ...... Jd. However, the canons of statutory
construction and this Court’s opinions dictate that statutory

? Petitioner and Respondent have ably and amply analyzed these
provisions and the relevant caselaw. In keeping with Rule 37.1, Amicus
attempts to avoid completely or state in concise form those arguments
already addressed by the parties. Amicus apologizes for any inadvertent
duplication of arguments or analysis.

5

language is not viewed in isolation. The Court has
summarized its prior holdings on this subject as follows:

The words of a statute must be read in their context and
with a view to their place in the overall statutory
scheme. A court must therefore interpret the statute as
a symmetrical and coherent regulatory scheme and fit,
if possible, all parts into an harmonious whole.

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
133 (2000) (internal citations and quotations omitted). It is
true, as Petitioner claims, that the Act clearly gives the
permitting authority primary responsibility for determining
what constitutes BACT at a particular facility for each
regulated pollutant. 42 U.S.C. § 7475(a)(4). But primary
responsibility does not mean sole responsibility, or even
ultimate responsibility.

An analogy may serve to illustrate how the State can be
deemed to have the primary responsibility, while EPA
retains the ultimate oversight authority. The situation is
similar to a public corporation run by a Chief Executive
Officer (CEO) and overseen by a Board of Directors. The
CEO has the primary responsibility for day to day operations
and reporting to the Board. The Board sets policy, and
makes and oversees the major business and financial
decisions. As long as there are no problems, the Board does
not get involved in the day to day operations. However, if
the CEO begins to operate contrary to corporate policy,
thereby overstepping his or her boundaries, the Board will
step in to take control and put things back on track.

Certain provisions of the Act give authority to the State,
while others give authority to EPA, thus defining the roles of
each. Under the CAA, the permitting authority, usually a
State, but sometimes the federal government, a local agency,
or a tribe, serves in the role of the CEO. The EPA fills the

6

role of the Board. As long as the permitting authority is
operating in harmony with the Act and its implementing
regulations, then EPA has no cause to object. However,
when the permitting authority contravenes one of the Act’s
provisions, EPA may, indeed must, step in to correct the
error. According to the statute: “The Administrator shall,
and a State may, take such measures, including issuance of
an order, or seeking injunctive relief, as necessary to prevent
the construction or modification of a major emitting facility
which does not conform to the requirements of this part ....”
42 U.S.C. § 7477. (See also discussion of cooperative
federalism, infra.)

In this case, the permitting authority is the State of
ADEC, because Alaska’s State Implementation Plan (SIP)
contains a PSD permit program, approved by EPA in 1983.
40 C.F.R. § 52.96(a). Therefore, ADEC does indeed have
primary responsibility for the implementation of the PSD
program in the State.

On the other hand, certain sections of the Act indicate
that EPA, in addition to setting broad guidelines and
standards, has the responsibility for ensuring that individual
permit decisions are in keeping with PSD program
regulations and policies. Other sections of the Act indicate
that EPA also has the authority to promulgate regulations
governing the determination of BACT.

While Congress, in Section 163, described in great
detail the increments and ceilings governing sulfur oxide and
particulate matter emissions, Section 166 only gives broad
direction to EPA’s regulation of the remaining criteria
pollutants, including nitrogen oxide (NOx), the pollutant at
issue here. 42 U.S.C. §§ 7473 & 7476. For instance,
Section 166 directs the Administrator to provide specific
measures for carrying out the goals and purposes of Sections

7

101 and 160 of the Act. 42 U.S.C. § 7476(d). One of these
purposes is to provide technical and financial assistance to
State and local governments in the execution of their air
pollution control programs. 42 U.S.C. § 7401(b)(3).
Another purpose is to assure that PSD permit decisions are
made only after “careful evaluation of all the consequences
of such a decision ....” 42 U.S.C. § 7470(5). Without the
ability to oversee a State’s BACT determination, EPA would
be hard-pressed to carry out this congressional mandate.
Concerning the promulgation of regulations governing these
remaining criteria pollutants (including NOx), EPA is
directed to provide, among other things, “a framework for
stimulating improved control technology ....” 42 U.S.C. §
7476(c). EPA’s “top-down” approach for determining
BACT would appear to fulfill these mandates of Congress.

Finally, Section 165 further signals EPA’s involvement
at the individual permit level. It provides that no facility
may be constructed unless “the proposed permit has been
subject to a review in accordance with this section, [and] the
required analysis has been conducted in accordance with
regulations promulgated by the Administrator ....” 42
U.S.C. § 7475(a)(2). This provision explicitly gives the
Administrator the authority to promulgate regulations
governing the analysis of the preconstruction process under
the PSD program. This same section indicates that the
BACT determination is to be part of that analysis. 42 U.S.C.
§ 7475(a)(4). Section 165 also mandates: “Each State shall
transmit to the Administrator a copy of each permit
application relating to a major emitting faciiity received by
such a State and provide notice to the Administrator of every
action related to the consideration of such a permit.” 42
U.S.C. § 7475(d)(1). Unless Congress expected the EPA to
actively oversee the program at the individual permit level, it
would make no sense to require the State to submit such a

8

thorough and timely account of the permit process to the
EPA.

Alaska’s interpretation of the statute would relegate
EPA to the role of an archivist. Alaska suggests that, other
than permits that violate the increments, EPA’s objection is
proper only when the State fails to include any BACT
limitation in a PSD permit or fails to issue a permit at all.
Pet. Brief 25. Accordingly, EPA’s role in overseeing BACT
and other permit determinations would simply be that of a
clerk, checking to make sure all the blanks were filled in, but
not being concerned about the contents.

C. EPA correctly exercised its oversight authority in
determining that ADEC’s BACT analysis was
deficient.

The issuance of an administrative order preventing
construction or modification of a major emitting facility is in
keeping with the enforcement options allowed by the Act.
This is the method EPA chose to correct the problem it
perceived in Cominco’s permit. The provisions governing
enforcement by EPA specifically mention an administrative
compliance order as a means of halting construction or
modification of a facility that does not comply with the
requirements of the PSD program. 42 USC. §§
7413(ay(S)A) & 7477.

Alaska’s interpretation strips the BACT provision of its
significance. Nothing in the language or structure of the
statute limits EPA’s oversight authority only to those permits
that violate the allowed increments. Pet. Brief 27. Nor do
the terms or scheme of the Act allow the permitting authority
to substitute an alternate technology regime for BACT, even
if the alternate regime results in lower emissions. Pet. Brief
42. If Congress had intended either result, there would have

9

been no need for a BACT provision. To limit EPA’s
objections to permits which violate the allowed increments,
all Congress would have needed to mandate is that no permit
may violate the increments. Similarly, instead of the BACT
prerequisite for PSD construction, the statute would call for
the control technology or combination of controls which
results in the lowest overall emissions for the facility. But
Congress included in the PSD program a requirement that
permits issued under that part force the facility to use the
“best achievable control technology.” 42 US.C.
7475(a)(1)&(4). Alaska’s reading of the statute renders the
BACT provision superfluous, violating the dictate that a
statute be interpreted so as to fit all parts into “an
harmonious whole.” (See Brown & Williamson, supra.)

D. The remedy for any shortcoming in EPA’s exercise
of authority is to remand the case to the Ninth
Circuit.

Despite the fact that EPA’s interpretation of BACT
protocol has not been issued as a final rule, it is still entitled
to deference. As long as it is reasonable, EPA’s
longstanding and consistent interpretation of the CAA is
entitled to deference under the Chevron doctrine. Chevron,
467 U.S. at 842-843. Additionally, the Court has found the
agency entitled to deference when it is attempting to
reconcile competing policies or when the regulatory scheme
is technical and complex. /d. at 865. This case involves the
very same complex regulatory scheme (CAA) and competing
policies (reducing air pollution versus economic growth) that
were at issue in Chevron. Logically, EPA should be
accorded the same deference in this case as it was in
Chevron.

However, the Court has recently indicated that the
failure of Congress to delegate general authority to the

10

agency or the manner in which an agency exercises its
statutory authority may affect the measure of deference to
which an agency rule is entitled. United States v. Mead
Corporation, 533 U.S. 218, 237 (2001). More specifically,
the Court has indicated that interpretations contained in
opinion letters, policy statements, agency manuals, and
enforcement guidelines do not warrant the Chevron-style
deference that would be accorded to formal adjudication or
notice-and-comment rulemaking. Christensen v. Harris
County, 529 U.S. 576, 587 (2000). Even if these
interpretations do not warrant Chevron-style deference, they
are still entitled to deference to the extent they are
persuasive. See generally, Skidmore v. Swift & Co., 323 U.S.
134 (1944).

The instances in which EPA has issued guidelines for a
BACT determination seem to fall on both sides of the line.
Regarding EPA’s interpretation of BACT’s objective
standards, a Legal Opinion by EPA’s Office of General
Counsel states that: “In the case of a decision applying best
available control technology (BACT) under Section
165(a)(4) for PSD, if a State has met all procedural norms,
considered all available control technologies, and given a
reasoned justification of the basis for its decision, EPA has
no grounds on which to challenge a final substantive State
decision that does not violate such objective standards.” Pet
App. at 12a. Another source of EPA guidelines, delineating
the “top-down” method, is EPA’s New Source Review
Workshop Manual (1990). Pet App. 13a. Interestingly, the
“top-down” approach has been the subject of a proposed
settlement (See 56 Fed. Reg. 34202 (1991)), a proposed rule
(See 61 Fed. Reg. 38250 (1996)), and several Unified
Agendas (See e.g., 64 Fed. Reg. 64023 (1999), 66 Fed. Reg.
61286 (2001)), but has not yet been published as a final rule.
Finally, the “top-down” approach has been addressed in
numerous policy memorandums [sic], guidance documents,

11

court cases, and administrative appeal decisions. J.A. at 175-
176.

To give the ultimate authority concerning the validity of
a BACT decision to the permitting authority would
contravene the intent of Congress. As discussed above,
Congress has repeatedly indicated its intent that EPA should
have authority over the PSD program. Ultimately, it is the
BACT determination which drives the PSD engine. Without
the ability to oversee a BACT determination, EPA’s PSD
enforcement authority amounts to very little. Therefore, if
the Court finds that EPA’s exercise of its PSD authority thus
far is not entitled to Chevron-style or even Skidmore-style
deference, the case should be remanded with an order that
EPA undergo notice-and-comment rulemaking to formalize
its BACT approach.

As ADEC has not objected to EPA’s “top-down”
approach, and indeed purported to follow that approach in
the Cominco permit decision, a remand would not affect the
outcome of the case below. ADEC only questioned EPA’s
authority to oversee ADEC’s permitting decision. The Ninth
Circuit correctly held that EPA has the authority to decide
whether a State has complied with the BACT requirements
of the Act and the State’s SIP, and concluded that EPA’s
exercise of that authority in this case was not arbitrary and
Capricious.

Il. THE POLICIES OF FEDERALISM AND
PRACTICAL EXPERIENCE SUPPORT EPA’S
CLEAN AIR ACT OVERSIGHT AUTHORITY.

A. The Clean Air Act can only work with strong EPA
oversight; any attempt to curtail that oversight
would only reverse the current progress towards
attaining the goals of the Act.

12

Many federal statutory schemes are based on th system
of cooperative federalism. New York v. United St, es. 505
U.S. 144, 167 (1992). Under this system, Congress... neat
a variety of methods to encourage the States to reg). i, 4
particular manner. Jd. One method is to attach CON): ons to
the receipt of federal funds. Jd. A second meth, whan
Congress has authority to regulate private activity, ¥ » ofie
States a choice between implementing the program
themselves, according to minimum federal standa = of
having a federally-run program implemented in the 5.3 -
The CAA is one example of a statutory scheme uti: |. g the
second method.

In a State which decides to implement its own program,
_ the scheme amounts to a shared power or partr ership of
sorts. As in any partnership, a certain amount of anaion te
bound to exist as to who is going to be the domina
It would be virtually impossible to have an equal p The Ninth Circuit attributes this to S. Rep. 95-127, at 326 (1977).
* This is also attributed to S. Rep. 95-127, at 136-7.

15

Congress implemented a “milestones program” designed to
evaluate progress towards emissions reduction targets in
nonattainment areas. Jd. at 88-89. Under this program, the
States were supposed to demonstrate their progress to EPA.
Id. However, the innovative mechanisms of the 1990
amendments have not been implemented or have been
ineffective, and the States have not been held accountable for

these shortcomings by EPA. /d. at 90.

Further impetus for continued or enhanced EPA
oversight derives from the fact that statistical data show an
inability to meet health standards under current criteria.
Recent studies indicate that the original standard for ozone
(of which NOx is a precursor) is not sufficient to protect
public health. Jd. at 68. All in all, though air quality has
improved since the inception of the Act, there still remains a
long way to go in achieving the goal of enhanced air quality.
Id. at 67. If anything, EPA oversight of the CAA needs to be
increased, not lessened.

B. If it is true that the country is in need of increased

energy capability, that fact only argues more
strongly for EPA oversight of the Act.

Although the Center for Energy and Economic
Development (CEED) (Petitioner’s Amicus) argues that the
anticipated increased demand for energy should dictate that
EPA stand aside in order to avert an energy crisis, in reality
the increased demand also increases the need for EPA
oversight. Logically, the 25% increase in energy generating
capacity that CEED deems necessary would result in a
corresponding increase in air pollution. As stated above, the
previous standard for ozone was inadequate to meet public
health requirements. The new standard promulgated by EPA
in 1997, although an improvement, may not be sufficient to
protect public heal h and also is far from being implemented.

16

See generally Whitman v. American Trucking Ass’ns, 531
U.S. 457 (2001), American Trucking Ass’ns, Inc. v
U.S.E.P.A., 283 F.3d 355, (D.C. Cir 2002), and Williams
supra at 68. Furthermore, recent studies indicate that
chronic exposure even to low levels of pollutants, including
NOx, may have serious health effects, especially in children.
See Testimony of Dr. Barry L. Johnson before the Senate
Environment and Public Works Committee, March 12, 2002
-// www v/~epw/107 >.
See also Jefferson H. Dickey, M.D., No Room to Breathe:
Health Effects of Criteria Air Pollutants from Power Plants
2002 // >. Caution
dictates that everything possible should be done to minimize
the increase in pollutants due to increased energy generating
capacity so that the corresponding health impacts are
minimized. EPA is in the best position to ensure that the
construction of these new generating facilities is performed
in a manner to reduce these emissions.

C. Past experience, public health, and public interest
indicate that federal oversight authority is
necessary if the goals and purposes of the Act are to
be respected.

Industry, although capable of great innovation, has a
tendency to resist change, even change which is ultimately
economically beneficial. One illustration of this is the
phase-out of ozone depleting substances under the Montreal
Protocol. At first, producers of ozone depleting substances
(ODSs), were extremely resistant to their phase-out and
argued that any control measures would damage them
economically. Richard Benedick, Ozone Diplomacy 2, 57
(1998). However once manufacturers saw the opportunity
for a competitive advantage, they led the effort to develop
chemical alternatives to ODSs. ODS users likewise were
able to alter processes and products in a manner that saved

17

them money through the reduction of solvent use and waste
disposal costs. Jd. at 104. Ultimately, the original dire
predictions of manufacturers and users failed to materialize.

Without strong regulation and oversight, the technology
forcing mandates of the Act will not be fulfilled. The status
of the implementation of the PSD and other CAA programs
is analogous to the situation experienced at the inception of
the Montreal Protocol. Industry will likely resist every effort
to implement new or more stringent emissions control
technology whenever that technology costs more. And it is
understandable that industry would do just that, as its focus
is to maximize profits. Without some sort of leverage,
industry is not likely to move towards new technology.
States cannot be counted on to fulfill this role because of the
conflict of interest inherent in their need to attract industry
for the benefit of their residents. EPA oversight is needed to
provide that leverage, and ensure that the CAA and the
innovations in technology it mandates are implemented.

Another illustration of the need for EPA oversight
comes from the recent Texas Air Quality Study 2000.

. Texas learned that the
ozone modeling assumptions it had been using for the past

30 years were incorrect. This experience emphasizes the
need for a strong centralized process of information
gathering and dissemination mentioned in the Williams
article. Although there is room for innovation by the States,
the EPA serves as an overseer to keep the States from going
astray in their scientific calculations. EPA serves to ensure
that innovations by the States are truly innovations and not
merely empty promises of innovation.

While it is true that industry produces benefits for all
citizens, there are other economic benefits and costs to

18

consider. One aspect of the economic analysis that is often
overlooked is that savings for industry often result in other
sectors of society bearing greater costs. For instance, EPA
reports to Congress (required by Section 812 of the Act),
have estimated that, by 2010, the economic benefits derived
from the 1990 amendments to the Clean Air Act will total
around $127 billion (mainly in health benefits), more than
four times the cost of achieving those benefits. Furthermore,
EPA estimates that there are many more benefits that are not
presently quantifiable, such as benefits to crops and
ecosystems and further health benefits. See EPA’s Final
Report to Congress on Benefits and Costs of the Clean Air
Act, 1999-2010 -//www.epa.gov/oar/ > &
.

Three of the arguments made by Petitioner strongly
appeal to notions of common sense and fair play at first
glance, but fail to withstand closer scrutiny. For example,
Cominco’s idea to use Low NOx on all seven generators,
even those not requiring BACT analysis, has appeal because
it could result in lower overall emissions than if SCR were
used on only the two generators, MG-5 and MG-17.
(Getting lower overall net emissions also requires the
assumption that the two generators with SCR controls would
be placed in standby mode; if all generators were run at
operating capacity, then even this configuration would result
in an increase of 79 tons per year.) J.A. 86-87. However,
even the possible emissions reductions forecast under this
scheme may be short-lived.

If Cominco decides to expand production further, then
the net reduction in overall emissions quickly evaporates.
For instance, if Cominco decided to install one more
generator identical to MG-17 and were able to use Low NOx
on that generator instead of SCR, the result would be a net
increase of approximately 500 tons per year of nitrogen

a

19

oxide (NOx) emissions. J.A. 110, 198. Low NOx is the
baseline control for the new generators, therefore using Low
NOx as BACT on a new generator results in an emission rate
of 530 tons per year and a reduction of 0%. (Low NOx
results in emissions reductions on the older generators
because they went online with lesser controls or none at all.)
If Cominco expanded with two new generators, the increase
in emissions using Low NOx would be 1060 tons per year;
with three new generators 1590 tons per year, etc. On the
other hand, SCR control as BACT would resu’ in an
emission rate of only 53 tons per year per generator, a
reduction of 90% for each new generator installed.

In fact, the idea of expansion is not so far-fetched.
Cominco originally planned a greater output with generator
MG-5, but then reduced the emission increases from MG-5
in order to avoid modification and BACT review. J.A. 197.
Presumably, if BACT at this time is determined to be SCR, it
would be difficult to find that a lesser control is BACT for
any future generators. Likewise, a determination that Low
NOx is BACT for the current modification makes it that
much easier for Cominco (or a similar facility) to obtain a
determination that Low NOx is BACT in the future.

Secondly, Petitioner’s analysis of the reasons for giving
a State some flexibility in its BACT determination is
similarly flawed when applied to the facts of this case.
Petitioner refers to a situation in which a State, concerned
about the impact of increased costs on a critically important
employer, decides to allow that employer to implement a less
stringent, less costly technology, presumably to keep that
employer from leaving the area. Pet. Brief 24. This appears
to be precisely the reason for allowing a less stringent
control technology for Cominco — the fact that the Red Dog
Mine offers employment in a remote area with few other
opportunities for employment. /d. at 9-13. The flaw in this

20

argument is that there is no danger here that the mine will
relocate; the zinc deposits are in the ground and must be
mined where they are found.

Thirdly, Cominco and Alaska asserted that the
increased costs of using SCR would reduce the mine’s
competitiveness on the world market and have adverse
economic impacts. Ordinarily, these factors might provide a
reasoned justification for allowing a less stringent BACT
determination on the basis of economic infeasibility.
However, no economic analysis was offered to bolster the
claims of economic infeasibility. J.A. 116. Rather, Cominco
and Alaska simply relate that Cominco’s Red Dog Mine is
the largest producer of zinc concentrate in the world and the
royalty payments from the mine to the Inupiat shareholders
are expected to total $1 billion over the life of the mine. Pet.
Brief 8-9. Even if SCR were run on the new generator for 40
years (at a $2.9 million initial capital cost and $635,000/year
in operating costs), the total cost of its operation would
amount to only about two percent of the expected royalty
payment. J.A. 113. Generally, royalty payments are
substantially less than the profits expected from a business
venture, therefore it is hard to imagine how using SCR could
be economically infeasible for Cominco. And, in fact,
ADEC found SCR was economically feasible in its
preliminary technical analysis. J.A. 84. In its final technical
analysis, ADEC admits that Cominco failed to present it with
detailed financial information, making analysis of the
economic feasibility of SCR impossible, nevertheless,
ADEC still allowed a less stringent technology as BACT.
J.A. 116.

This all leads directly to EPA’s and the Ninth Circuit’s
logical conclusion that ADEC failed to offer a reasoned
justification for its BACT determination. Pet. App 12a-13a.
Even if Alaska is correct in its argument that EPA should be

21

required to show that the State’s decision is arbitrary and
capricious, the above economic information should suffice to
do so. Pet. Brief 36. The burden should then shift to the
State to show that its actions were not arbitrary and
capricious. On the facts of this case, the State of Alaska
cannot meet this burden. As the Ninth Circuit pointed out,
Alaska’s analysis was “uncomfortably reminiscent of one of
the very reasons Congress granted EPA enforcement
authority — to protect states from industry pressure to issue
ill-advised permits.” Pet. App. 16a.

Finally, the desire for certainty in the permitting
process, although understandable, fails to support the
argument against EPA oversight authority in BACT
determinations. Amici States North Dakota, et.al., (States)
and National Environmental Development Association,
et.al., (NEDA) argue that EPA’s intrusion into the State role
of determining BACT injects an unacceptable level of
uncertainty into the permitting process. States’ Brief at 15,
NEDA Bref at 11. Indeed, the costs involved in facility
construction are great, and uncertainty as to the proper
control technology could create a difficult situation for
industry if they proceed with construction under an incorrect
assumption as to which is the proper technology. However,
it could be just as easily argued that the uncertainty stems
from EPA’s failure to consistently enforce the requirements
of the Act as mentioned above. If EPA would strictly
enforce the Act and industry could rely on that strict
enforcement, that consistency would also provide the desired
measure of certainty.

The need for EPA enforcement is now more necessary .
than ever. Although it is desirable for the State to play the
primary role under the system of cooperative federalism, that
role is presently strained in many States due to their huge
budget deficits. Even if a State may wish to perform its role

22

in an exemplary fashion, it may not have the capability to do
so. As Dr. Barry L. Johnson said in his testimony before
Congress, “Now is not the time to gamble with unproven
administrative procedures that may set back the progress
already made.” Although industry seems to look upon EPA
as a sword, there are those who look upon EPA as a shield,
and breathe easier with EPA’s oversight in the tremendously
complex process of implementing the Clean Air Act.

CONCLUSION

For the foregoing reasons, the judgment below should
be upheld. Short of that, the case should be remanded for
further proceedings.

Respectfully submitted,

Donald B. Potter
Counsel of Record
Donald B. Potter, P.C.
522 S.W. Fifth Avenue
Suite 1110

Portland, OR 97204
(503) 223-2612 _

July 2003

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0615%3A22. Public record. Not legal advice.