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

. In The JUL 1 G20K8s

Supreme Court of the Anited 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

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BRIEF OF AMICI CURIAE

VERMONT, CALIFORNIA, CONNECTICUT,

MAINE, MASSACHUSETTS, MICHIGAN,

NEW HAMPSHIRE, NEW JERSEY, NEW YORK,

OREGON, RHODE ISLAND, WISCONSIN,

AND THE PENNSYLVANIA DEPARTMENT

OF ENVIRONMENTAL PROTECTION

IN SUPPORT OF RESPONDENTS

¢

WILLIAM H. SORRELL

Attorney General

State of Vermont

KEVIN O. LESKE*

ERICK TITRUD

Assistant Attorneys General

109 State Street

Montpelier, VT 05609

*Counsel of Record (802) 828-3171

[Additional Counsel Listed On Inside Cover]

BILL LOCKYER

Attorney General

State of California

1300 I Street

P.O. Box 944255

Sacramento, CA 94244

RICHARD BLUMENTHAL

Attorney General

State of Connecticut

55 Elm Street

Hartford, CT 06106

G. STEVEN ROWE

Attorney General

State of Maine

6 State House Station

Augusta, ME 04333

THOMAS F. REILLY

Attorney General

Commonwealth of

Massachusetts

One Ashburton Place

Boston, MA 02108

MICHAEL A. Cox

Attorney General

State of Michigan

P.O. Box 30212

Lansing, MI 48909

PETER W. HEED

Attorney General ©

State of New Hampshire

33 Capitol Street

Concord, NH 03301

PETER C. HARVEY

Attorney General

State of New Jersey

25 Market Street

P.O. Box 080

Trenton, NJ 08625

ELIOT SPITZER

Attorney General

State of New York

120 Broadway, 25th Floor

New York, NY 10271

HARDY MYERS

Attorney General

State of Oregon

1162 Court St. N.E.

Salem, OR 97301

MICHAEL D. BEDRIN

Chief Counsel

ia Department of

Environmental! Protection

400 Market Street

Harrisburg, PA 17105

PATRICK C. LYNCH

Attorney General

State of Rhode Island

150 South Main Street

Providence, RI 02903

PeGccy A. LAUTENSCHLAGER

Attorney General

State of Wisconsin

17 West Main Street

Madison, WI 53702

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TABLE OF CONTENTS

Page

TABLE OF CITED AUTHORITIES...............0c000000s ii

INTEREST OF THE AMICI CURIAE..................04+. l

STATEMENT OF THE CASE. ...........ccccesceseesceeeeees 2

INTRODUCTION AND

SUMMARY OF ARCUMENT ............::.cccceceeeeeeeeees 6

SET cenbnceseeeesosesssscccoccocoscesescccoccoececcoes 8

I. LIMITED EPA OVERSIGHT AUTHORITY

OF THE BACT REQUIREMENT ENSURES

THAT THE GOALS OF THE PSD

A. Federal Enforcement Of The BACT

Requirement Promotes Consistent

Application That Protects States’

Environmental And Economic

B. Limited EPA Oversight Promotes

The Technology-Forcing Goals Of

The PSD Program ............cscscceeeseees 12

C. The BACT Requirement Helps

Minimize Trans-boundary Air

Pollution Problems ................0.:0+0+ 14

Il. EPA'S LIMITED OVERSIGHT ROLE DOES

NOT DISRUPT THE STATE PERMITTING

il

TABLE OF CITED AUTHORITIES

Cases: Page

Alabama Power v. Costle,

GBS F.2D BBS GO... Cav. BBG cccccccccccccccccccoscses 3

General Motors Corp. v. United States,

Se ee: Se GI cecnctetercnnnininsneisiannnsonsiis 6, 8

U.S. v. AM General Corp.,

808 F.Supp. 1353 (N.D. Ind. 1992),

aff'd 34 F.3d 472 (7™ Cir. 1994).................06 19

Statutes:

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Se Be © Fe cticccccnninncnenssenstnssnincnsinen 19

Congressional Reports:

H.R. Rep. No. 95-294 (1977).................+++. passim

S. Rep. No. 95-127 (1977) ...........ccccsceceeees passim

Rules and Regulations:

Alaska Admin. Code tit. 18, § 50.310(d)(3)...4, 18

Alaska Admin. Code tit. 18, § 50.990(13)........... 4

ME ADC 06-096 Ch. 115, § 4...................020000. 18

Other Authorities:

Memorandum from Michael S. Alushin,

EPA Associate Enforcement Counsel for Air

SUE Gi Sei eccnsssccecicsniennnnstiteiemenanenteemeanis 17

President's Message on the Environment,

February 10, 1970, 116 Cong.Rec. 32909......14

|

INTEREST OF THE AMICI CURIAE

The amici States,! who share responsibility for

enforcing the Clean Air Act with the federal

Environmental Protection Agency (EPA), have two

important interests in the outcome of this case.

First, the amici, like all states, have a

fundamental interest in protecting the health and

welfare of their citizens. In the view of the amici

States, EPA's authority to enforce the Clean Air Act

is critical to attaining our national goal of reducing

and preventing air pollution.

Second, the amici have a specific interest in

supporting EPA's authority to enforce the Best

Available Control Technology (BACT) provision of

the Act's Prevention of Significant Deterioration of

Air Quality (PSD) program. Although the Act gives

States primary responsibility to determine BACT for

new major stationary sources, the amici States

agree with the United States that EPA should and

does have limited oversight authority with respect to

BACT determinations.

While it may seem counterintuitive for States to

take a position in support of federal authority, amici

States are specifically concerned about the BACT

requirement. The amici States agree with the

petitioner State of Alaska - and Alaska’s amici -

that States bear primary responsibility for achieving

1 The Pennsylvania Department of Environmental Protection

received written consent from the parties to join this brief.

The letters of consent have been filed with the Court. This

brief was not written, in whole or in part, by counsel for a

party. No person or entity, other than amici, made a monetary

contribution to the preparation or submission of this brief.

2

the goals of the Clean Air Act. In the PSD program,

States have discretion to make BACT

determinations and, as Alaska correctly argues,

EPA cannot “second guess” a State’s reasonably

justified decision merely because EPA would reach a

different conclusion.

Nonetheless, the amici States view EPA's limited

oversight role, as recognized by the Ninth Circuit in

this case, as a necessary part of the cooperative

federalism embodied in the Clean Air Act. A State's

discretion to reach a BACT determination is not

unbounded; the permitting authority must apply

the statutory criteria and must present a reasoned

justification for its decision. The existence and

enforcement of the BACT requirement nationwide

protects the interest of States by removing the

incentive for industry to “shop around” for a more

lenient permitting process.

Federal oversight thus provides a mecessary

backstop and contributes to consistent application

of the Act. EPA rarely questions State BACT

determinations, but its ability to do so in narrow

circumstances serves the interest of all States by

assuring that each State carries out its obligations

under the Act.

STATEMENT OF THE CASE

Congress enacted the Clean Air Act as a

partnership between state and federal governments.

The centerpiece of the Act is found in sections 108

through 110 of the Act, under which EPA sets

nationally applicable ambient air quality standards.

See 42 U.S.C. §§ 7408-7410. States may then

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3

develop and implement plans for achieving and

maintaining air quality that meets those standards.

In addition, Congress enacted other nationwide

programs that must be implemented in each State,

regardless of the air quality in the State.

The Prevention of Significant Deterioration of Air

Quality (PSD) program is one such program. These

provisions regulate air pollution in certain areas,

known as “attainment” areas, where air quality

meets or is cleaner than the national ambient air

quality standards (“NAAQS”), as well as in

unclassifiable areas. 42 U.S.C. §§ 7470-7479.

The PSD provisions are implemented by a

regulatory process that requires pre-construction

permits for new major stationary sources, such as

the facility in this case. See 42 U.S.C. §§ 7475,

7479(1). States that issue PSD permits (1) must

determine that the permitted source would neither

exceed the allowable increments for the area nor

cause a violation of the applicable NAAQS;? and (2)

must require that the facility be “subject to the best

available control technology” for each pollutant

regulated under the Act. 42 U.S.C. § 7475(a)(4).

The BACT requirement is one of the principal

substantive requirements of the PSD program. See

Alabama Power v. Costle, 636 F.2d 323, 407 (D.C.

Cir. 1980). All mew sources located in an

attainment area in a given State must comply with

BACT regardless of the other strategies that the

2 The requirement that a State cannot exceed its PSD

allowable increments is a distinct t of the PSD

program and is not at issue in this case. 42 U.S.C. § 7476.

4

State may have in place under section 110 to

maintain compliance with each NAAQS. The term

BACT is defined in the Act (and similarly by the

State of Alaska) as follows:

“[Blest available control technology”

means an emission limitation based on

the maximum degree of reduction of

each pollutant subject to regulation

under this chapter emitted from or

which results from any major emitting

facility, which the permitting authority,

on a case-by-case basis, taking into

account energy, environmental, and

economic impacts and other costs,

determines is achievable for such

facility ***.

42 U.S.C. § 7479(3) (emphasis added); accord

Alaska Admin. Code tit. 18, § 50.990(13)

(defining BACT as “the emission limitation that

represents the maximum reduction achievable for

each regulated air contaminant, taking into account

energy, environmental and economic impacts, and

other costs”).

As the definition demonstrates, a permitting

authority must analyze, evaluate and present a

reasoned justification for its BACT determination

before it issues a permit for a specific source. Id.;

see Alaska Admin. Code tit. 18, § 50.310(d)(3)

(Alaska’s PSD regulations require “a demonstration

that the proposed limitation represents the best

available control technology for each air

contaminant and for each new or modified source”);

see also Pet. App. at 3a. Indeed, one of the explicit

5

Congressional purposes of the PSD program is that

permitting decisions are made “only after careful

evaluation.” 42 U.S.C. § 7470(5).

The Act also gives EPA enforcement authority.

Section 113 of the Act regulates federal enforcement

of the Act’s requirements, and section 167 provides

for federal and state enforcement of the PSD

provisions. See 42 U.S.C. §§ 7413, 7477.

Section 167 requires EPA to “take such measures”

when it is “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. Section 113 authorizes EPA to

“issue an order prohibiting the construction or

modification of any major stationary source in any

area to which such requirement applies” or “issue

an administrative penalty order” to a State that “is

not acting in compliance with any requirement or

prohibition” of the PSD provisions. Id. § 7413(a)(5).

In this case, EPA used its limited authority to

address a violation of the BACT requirement. Pet.

App. at 7a. EPA issued three enforcement orders to

the Alaska Department of Environmental

Conservation (“Alaska”) and Cominco Alaska

Incorporated (“Cominco”). Id. at 2a. These orders

effectively invalidated the PSD permit issued to

Cominco by Alaska for failure to comply with the

BACT requirement of the Act. Id. Alaska and

Cominco petitioned the Court of Appeals for the

Ninth Circuit for review of the orders. Id. at 6a.

Both Alaska and Cominco claimed that the EPA

exceeded its authority by issuing the enforcement

6

orders and that Alaska acted within its discretion

when making its BACT determination. Id.

The Ninth Circuit rejected these arguments and

found that EPA had properly exercised its

enforcement authority. Pet. App. at 7a. In reaching

its decision, the court found that sections 113 and

167 apply to the BACT requirement. Id. at 9a

(holding that subjecting a facility to BACT is a

“requirement” under both section 113(a)(5) and

section 167). It next found that these enforcement

sections grant EPA the authority to ensure that

States present a reasoned justification for their

BACT determinations. Id. at 10a-lla. The Ninth

Circuit sustained EPA’s enforcement orders, finding

that the record supported EPA’s conclusion that

Alaska failed to justify its BACT determination. Id.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The “States and the Federal Government [are]

partners in the struggle against air pollution.”

General Motors Corp. v. United States, 496 U.S. 530,

532 (1990). As part of this “system of shared

federal and state responsibility,” the Clean Air Act

grants to States the primary authority to determine

BACT. Pet. App. at 3a; 42 U.S.C. § 7479(3).

However, States were not delegated the exclusive

role and do not have absolute discretion in making

BACT determinations. As the federal agency that

enforces the Act, EPA has limited authority to

ensure that a State provides a reasoned justification

for its BACT determination. EPA’s oversight

promotes the important goals of the Clean Air Act

and does so without disrupting or burdening the

F 7

State permitting process.

When it created the BACT requirement, Congress

sought to balance the significant discretion that

States would need to implement the PSD program

with the necessary federal oversight that would be

required to fulfill the program’s goals. Federal

oversight of the BACT requirement serves three

important goals of the Act.

First, Congress recognized that States should not

have to choose between maintaining a high level of

air quality and promoting industrial development

within their borders. EPA's authority ensures a

reasonable level of consistency among BACT

determinations nationwide. Consistent application

of the Act promotes economic development in an

even manner throughout the country without

unduly interfering with States’ authority under

section 110 to determine how best to protect their

air quality.

Second, technological advancements are basic to

any effective program of pollution control that both

stimulates economic growth and protects air

quality. The technology-forcing goals of the BACT

provisions can only be attained, however, if States

make BACT determinations in a reasoned manner.

EPA's limited enforcement authority ensures that —

States will fulfill this obligation.

Third, air pollution does not respect State

boundaries. Without proper implementation of the

BACT requirement, States that desire to retain clean

air will have little hope of doing so. Federal

enforcement of the BACT requirement protects

8

States and their citizens from regional increases in

air pollution caused by unsupported BACT

determinations.

EPA's limited oversight of the BACT requirement

promotes these goals without disrupting the State

permitting process. EPA's action does not alter the

relationship that States have always had with the

federal government with respect to BACT

determinations. Notwithstanding EPA's ability to

oversee BACT decisions, States retain primary

authority to determine BACT for new pollution

sources and have broad discretion and flexibility to

do so. Alaska and its amici overstate the

consequences that accompany EPA's infrequent use

of its limited oversight authority. States will

continue issuing permits, as they have over the past

two decades, with EPA playing a limited, but

critically important, oversight role.

ARGUMENT

I. LIMITED EPA OVERSIGHT AUTHORITY OF

THE BACT REQUIREMENT ENSURES THAT

THE GOALS OF THE PSD PROGRAM ARE

FULFILLED

The Clean Air Act establishes a comprehensive

program for controlling and improving the nation’s

air quality in which the “States and the Federal

Government [are] partners.” General Motors Corp. v.

United States, 496 U.S. at 532. Congress has been

attentive to the delicate federal-state balance of the

Act, and its design of the PSD program is no

exception. Despite granting States “broad

flexibility” in making BACT decisions, Congress

9

provided “the parameters for that decision” in the

text of the Act. S. Rep. No. 95-127, at 31 (1977).

Congress directed that a new source be required to

achieve the maximum degree of reduction of

pollutants emitted from the source that is

“achievable.” See 42 U.S.C. § 7479. In making this

determination, States must “take into account

energy, environmental, and economic impacts and

other costs of the application of BACT.” S. Rep. 95-

127, at 31; see 42 U.S.C. § 7479.

Congress recognized that these “[nJational

guidelines on prevention of significant deterioration

[such as BACT] are essential to guarantee the

individual States the right to decide to maintain air

quality superior to minimum Federal standards.”

H.R. Report No. 95-294, at 136 (1977). Therefore, it

necessarily follows that Congress contemplated that

EPA would have the authority to ensure compliance

with those guidelines. When Congress created the

BACT requirement, it sought to balance the

significant discretion that States would need to

implement the program with the necessary federal

oversight that would be required to fulfill the

program's goals.

This necessary federal oversight is limited.

Congress relegated EPA to a “sharply restricted role”

in the program whereby its role would essentially be

“one of monitoring State actions.” S. Rep. 95-127,

at 12, 36. EPA, however, “could go to court to stop

a permit for activities which would exceed the

increment of pollution or which otherwise did not

comply with the requirements of this section,

including the use of best awailable control

10

technology.” S. Rep. 95-127, at 12 (emphasis

added).

The limited oversight authority granted to EPA

serves the goals of the PSD program and is

consistent with the purpose of requiring BACT.

Requiring new sources to install the best available

control technology: (1) promotes consistent

application that protects States’ environmental and

economic interests; (2) promotes the technology-

forcing design of the PSD program; and (3)

minimizes trans-boundary air pollution problems.

To achieve these goals, Congress gave EPA the

authority to correct a BACT determination when a

State permitting authority fails to provide a

reasoned justification for its decision.

A. Federal Enforcement Of The BACT

Requirement Promotes Consistent

Application That Protects States’

Environmental And Economic Interests

Congress recognized that States should not have

to choose between maintaining a high level of air

quality and promoting industrial development

within their borders. Accordingly, it designed the

PSD program to ensure that “economic growth will

occur in a manner consistent with the preservation

of existing clean air resources.” 42 U.S.C. § 7470(3).

Although Congress charged States with making the

determination of what is BACT for a given

application, Congress did not intend for BACT

determinations to vary widely from State to State

with no federal mechanism to correct unreasoned or

wholly inconsistent determinations. EPA’s limited

authority to enforce the BACT requirement serves to

11

maintain a reasonable level of consistency among

States, which, in turn, ensures even economic

development across the country.

The BACT requirement, like the other PSD

provisions, is “an equalizer, enabling all areas of the

country to join in the fight for clean air without

fighting each other.” H.R. Rep. 95-294, at 134. The

promotion of economic growth throughout the

country without prejudice to certain States is a

compelling reason that supports EPA's limited

oversight of BACT determinations.

Without EPA oversight of the PSD guidelines, such

as the BACT requirement, “the very States

demonstrating a concern for preserving existing

clean air seriously risk having their economic base

undermined.” H.R. Rep. 95-294, at 135. States

that make more stringent BACT determinations

would find themselves at a “substantial competitive

disadvantage” with other States because of the

“strong incentive for industry to ‘shop around’ for

States or localities with large clean air resources

and weak pollution control standards.” Id. at 133.

In fact, States that wish to maintain a high level of

air quality by requiring the most effective controls

could face a “double threat.” H.R. Rep. 95-294, at

134. Not only would they lose existing industrial -

plants to more permissive States but, in addition,

they “will likely become the target of ‘economic-

environmental blackmail’ from new industrial plants

that will play one State off against another with

threats to locate in whichever State adopts the most

permissive pollution controls.” Id.

12

Although the facts in this case do not suggest that

“economic-environmental blackmail” occurred,

these concerns exist in other parts of the country.

Of course, Cominco cannot move its facility

elsewhere if it is dissatisfied with Alaska’s

permitting decisions. However, many, if not most,

of the new sources subject to the PSD provisions

have a great deal more flexibility in deciding where

to locate. In order to attract new industrial

facilities, such as automobile assembly facilities or

computer manufacturing plants, States commonly

offer economic incentives. Without the backstop

provided by federal oversight of the PSD provisions,

including the BACT requirement, States could feel

pressure to apply the PSD requirements leniently in

order to compete with other States for new facilities.

If EPA has authority to ensure a reasonable level

of consistency among BACT determinations

nationwide, then every State can feel more confident

about maintaining stringent standards without fear

of losing its current industry or alienating

prospective industry. Such an atmosphere will

promote economic development in a more even

manner throughout the country while maintaining

air quality.

B. Limited EPA Oversight Promotes The

Technology-Forcing Goals Of The PSD

Program

The relevant legislative history demonstrates that

Congress gave States discretion to determine BACT

on a case-by-case basis as a way of accomplishing

the technology-forcing goals of the Act. Contrary to

the arguments made by Alaska, Congress was not

—— a ee ee

13

motivated solely by concerns for state autonomy

when it gave States broad discretion to make BACT

determinations.

Technological advancements are “basic to any

effective program of pollution control” that both

stimulates economic growth and protects air

quality. S. Rep. 95-127, at 17. This is embodied in

a Senate report of the 1977 Amendments, which

describes the “philosophy of encouragement of

technology development” fostered by the Act. Id. at

18. The desire to promote technological innovation

in the PSD program was therefore of paramount

concern to Congress. EPA's limited oversight

authority ensures that State BACT determinations

promote this goal.

By enacting the 1977 Amendments, Congress

specifically sought “to induce, to stimulate, and to

augment the innovative character of industry in

reaching for more effective, less-costly systems to

control air pollution.” S. Rep. 95-127, at 18.

However, the goal of developing more effective and

less expensive ways to control air pollution was not

the only motivation behind Congress's intent to

promote advances in technology in the PSD

program. Congress recognized the broader notion

that “[tlechnological improvements have enabled

this Nation to establish the greatest industrial

plants in the world, providing American workers

with the highest pay and best working conditions,

in return for high productivity.” S. Rep. 95-127, at

17. Accordingly, Congress structured the 1977

Amendments to foster the national goal of

14

promoting technological advancement whenever

possible.

Of all the provisions in the Amendments that

affect technology, the PSD provisions are “[p]ossibly

- the most important.” S. Rep. 95-127, at 18. The

goal of promoting technology was precisely the

reason that Congress did not specify control devices

for new sources in the PSD program. States are not

forced to assign pre-determined control measures

but, rather, can encourage the development of new

technology when appropriate. As a Senate report

acknowledges, giving States the ability to determine

BACT on a case-by-case basis “allows the adoption

of improvements in technology to become

widespread far more rapidly than would occur with

a uniform Federal standard [of BACT].” Id. at 31.

The technology-forcing goals of the BACT

provisions can only be attained, however, if States

make BACT determinations in a reasoned manner,

consistent with the statutory requirements. If

States have unreviewable, unfettered discretion to

decide on BACT, States may be pressured to avoid

making permitting decisions that require and

promote technological innovation, as intended by

Congress. EPA's limited oversight authority ensures

that States determine BACT in a reasoned manner,

and thus carry out Congress's intent to foster new

and better technologies for pollution control.

C. The BACT Requirement Helps Minimize

Trans-boundary Air Pollution Problems

The problem of interstate air pollution transport

has been of concern throughout the past three

. —-——— .

15

decades. The reason is simple: “Air is no respecter

of political boundaries; a community that sets and

enforces strict standards may still find its air

polluted from sources in another community or

another State.” President's Message on _ the

Environment, February 10, 1970, 116 Cong.Rec.

32909. Although BACT is determined by the

permitting States, other States will be affected by

the emissions from a new source. Congress

expressed this concern explicitly in section 160 of

the Act. See 42 U.S.C. § 7470(4) (Congressional

purpose of the PSD program includes assuring that

“emissions from any source in any State will not

interfere with any portion of the applicable

implementation plan to prevent significant

deterioration of air quality for any other State”).

In part, this is why Congress enacted the PSD

provisions. It sought to create a “policy of

prevention of significant deterioration which

controls a new source's emissions to the maximum

extent practicable [to] help minimize the transport

and buildup of pollutants from one area to another.”

H.R. Rep. 95-294, at 135. Congress recognized that

“without national guidance on prevention of

significant deterioration and protection for States

exercising their right to maintain clean air, that

right will be meaningless.” Id. at 136.

Without proper implementation of the PSD

provisions, including EPA’s authority to ensure that

BACT determinations are carefully evaluated, “those

States which desire to retain clean air will have little

hope of maintaining superior air quality.” H.R. Rep.

95-294, at 136. This is because, “while emissions

16

may not be ‘significant’ in the area of origin, when

transported to another area and combined with

pollutants from other areas, air quality may be

drastically degraded.” Id.

To be sure, the PSD provisions were not created to

“stand alone” as the sole mechanism to mitigate

interstate transport of air pollution. They work in

conjunction with other sections of the Act, such as

sections 116 and 126.3 See, eg., 42 U.S.C. §§

7416, 7426. It is clear, though, that requiring

sou es to use the best available control technology,

by itself, will reduce “emissions for each new

source” and minimize “the impact on limited air

resources.” H.R. Rep. 95-294, at 135.

To achieve the critical goal of reducing interstate

transport of pollutants, EPA must be able to review

and correct BACT determinations that are not

supported by a reasoned justification. All States

must make consistent and reasoned BACT

determinations. Federal enforcement assures that

each State will, in fact, make BACT determinations

in this manner, thereby protecting States and their

citizens from regional increases in air pollution

caused by unsupported BACT determinations.

3 Section 116, with limited exceptions, allows States to adopt

and enforce “any standard or limitation respecting emissions

of air pollutants or [] any requirement respecting control or

abatement or air pollution,” so long as it is more stringent

than an existing standard. 42 U.S.C. § 7416. Section 126

allows States to petition EPA for a finding that “any major

source” is emitting or will emit prohibited air pollutants. Id. §

7426.

17

Il. EPA’S LIMITED OVERSIGHT ROLE DOES

NOT DISRUPT THE STATE PERMITTING

PROCESS

Alaska and its amici overstate the possibility that

EPA oversight will disrupt or undermine the State

permitting process, for three reasons: (1) EPA

oversight of BACT determinations is nothing new;

EPA has consistently claimed this authority and has

rarely exercised it; (2) State processes will not

become superfluous, as States still bear primary

responsibility for determining BACT; and (3) the

suggestion that EPA will abuse its enforcement

power and will invalidate permits “years” later is

unfounded.

First, there is nothing remarkable about EPA's

limited authority to enforce the BACT requirement.

EPA's assertion of authority in this case does not

represent or indicate an alteration in the

relationship that States have always had with EPA

with respect to BACT determinations. EPA has for

years consistently maintained that BACT

determinations involve “the exercise of judgment,”

but require correction by EPA when the decision is

“not based on a_ reasonable _ analysis.”

Memorandum from Michael S. Alushin, EPA

Associate Enforcement Counsel for Air (July 15,

1988) (JA 273-74). If anything, the attention

directed at this case only illustrates how rarely EPA

exercises this authority. States will continue

issuing permits, as they have over the past two

decades, with EPA playing a limited, but critically

important, oversight role.

18

Second, EPA's limited oversight role does not

make State permit processes superfluous. States

unquestionably still bear primary responsibility for

determining BACT. EPA appropriately recognizes

that a State must only make a “legally supportable”

BACT determination- one that provides a “reasoned

justification for its selection of BACT.” Pet. App. at

13a-14a. As the United States has represented to

this Court, EPA's authority extends to “those rare

occasions where a permitting authority acts outside

the bounds of its discretion.” Brief for Respondents

in Opposition at 6.

Most States, including Alaska, already have in

place regulations that require precisely the kind of

reasoned BACT determination that would foreclose

EPA intervention. See, e.g., Alaska Admin. Code

tit. 18, § 50.310(d)(3) (requiring “a demonstration

that the proposed limitation represents the best

available control technology for each air

contaminant for each new or modified source”); see

also ME ADC 06-096 Ch. 115, § 4 (requiring that

the “applicant must demonstrate that each

emissions unit to be constructed, reconstructed or

modified will receive BACT’). Therefore, EPA simply

does not routinely step in and correct State BACT

determinations.

Because EPA's ability to oversee BACT decisions is

very narrow, Alaska’s claim that EPA will be able to

“veto” a State’s BACT determination, rendering the

State permitting process superfluous, is unfounded.

Notwithstanding EPA's limited oversight authority,

States still have the primary authority to determine

BACT for new pollution sources, and have broad

—_

19

discretion in making their decision. Given the

limited nature of EPA’s role, Alaska and its amici

are incorrect to suggest that permit applicants will

bypass the State process and negotiate directly with

EPA.

Third, Alaska’s fear concerning EPA's ability to

challenge permits in the “months, even years, after

a permit has been issued” is misplaced. See Pet.

Brief at 35. The facts in this case demonstrate that

EPA objected to Alaska and Cominco well before the

permit was issued. Alaska also discounts the fact

that EPA’s enforcement against a State or a source

is subject to judicial review. The federal courts are

well suited to provide meaningful review to States

and sources that contest actions taken by EPA. See

42 U.S.C. § 7413(b) (for an action brought by EPA in

district court to enforce an order); 42 U.S.C. §

7607(b)(1) (for a petition for review filed with the

court of appeals). Furthermore, a court under a

different scenario could scrutinize whether EPA's

failure to challenge a permit within a reasonable

time period should preclude EPA’s action. See U.S.

v. AM General Corp., 808 F.Supp. 1353, 1367 (N.D.

Ind. 1992), affd, 34 F.3d 472 (7 Cir. 1994)

(finding that EPA could not enforce against a source

for modifying its facility pursuant to an invalid

permit because EPA did not act until after the

source had begun operations under the terms of

that permit).

In sum, when States fail to present reasoned

justifications for their BACT decisions, federal

enforcement does nothing more than provide the

necessary “backstop” to ensure that those States

20

do not abuse the discretion that Congress afforded

to them. Alaska and its amici inflate the

consequences that accompany EPA's infrequent use

of its limited oversight authority.

CONCLUSION

For all the foregoing reasons, the judgment of the

Court of Appeals should be affirmed.

Respectfully submitted,

WILLIAM H. SORRELL

Attorney General

State of Vermont

KEVIN O. LESKE*

ERICK TITRUD

Assistant Attorneys General

109 State Street

Montpelier, VT 05609

(802) 828-3171

Counsel for Amici States

(*Counsel of Record)

JULY 2003