Alaska Dep’t of Environmental Conservation v. E.P.A.
The Alaska Department of Environmental Conservation (ADEC) issued a permit to Teck Cominco Alaska (Cominco), a zinc producer, to construct an additional pollutant-emitting electric generator at one of its zinc mines. The Environmental Protection Agency (EPA) issued three orders invalidating the permit, and ADEC and Cominco petitioned for review. The Clean Air Act requires Cominco to obtain a permit from ADEC before beginning construction that will increase a facility’s emission of pollutants. To receive a permit, Cominco had to show that it would use the best available control technology to limit its emission of pollutants. Selective Catalytic Reduction (SCR) would have been most effective means of reducing the emissions from Cominco’s new generator, but ADEC found that the cost of installing it would have adverse economic impacts on Cominco. Instead, ADEC granted Cominco a permit to install a less expensive technology into all of its existing generators, and the proposed new generator, which would have resulted in a comparable reduction in pollution. However, the EPA reviewed ADEC’s permit and orderd ADEC to withhold the permit because SCR was the best available technology control and Cominco had not adequately demonstrated that SCR was economically infeasible. The court of appeals affirmed EPA’s orders, holding that the EPA has the enforcement and oversight authority to review ADEC’s findings and to make a final determination on whether the best technology requirement is met.
Question Presented:
Whether Sections 113(a) and 167 of the Clean Air Act authorize the EPA to issue administrative orders to prevent construction of a major emitting facility where a state permitting authority is
prepared to grant the facility operator a “prevention-of-significant-deterioration” air quality permit based on an arbitrary and capricious application of the statutory requirement that
such sources of air pollution be subject to the best available control technology.
