Case summaries.

Position2002 Ninth Circuit Environmental Review

    1. Clean Air Act

      1. Alaska, Department of Environmental Conservation v. United States Environmental Protection Agency, 298 F.3d 814 (9th Cir. 2002), cert. granted, 123 S. Ct. 1253 (2003).

        Notwithstanding a prior Environmental Protection Agency (EPA) order of noncompliance, the Alaska Department of Environmental Conservation (ADEC) issued a Prevention of Significant Deterioration (PSD) permit to Teck Cominco Alaska (Cominco), the operator of the Red Dog Mine facility, which allowed Cominco to install a level of emission control technology lower than what EPA determined to be best available control technology (BACT). Following ADEC's issuance of the permit, EPA issued two additional noncompliance orders prohibiting commencement of Cominco's proposed construction. ADEC and Cominco subsequently requested review of EPA's enforcement orders, arguing that EPA did not have the authority to issue the orders and that EPA abused its discretion in rejecting ADEC's determination of the BACT for the mine. The Ninth Circuit held that EPA did have authority to issue the enforcement orders at issue, and that EPA's rejection of ADEC's BACT determination was not arbitrary and capricious.

        Under the Clean Air Act (CAA), (1) a state may implement the federal requirements of the statute if EPA approves its state implementation plan (SIP). (2) Alaska's SIP designates ADEC as the PSD permit issuer. ADEC's PSD permit process requires applicants to implement the BACT in their emission control proposals.

        In Cominco's PSD permit application to ADEC, regarding the modification of an existing generator (MG-5) to increase nitrogen oxides (N[O.sub.x]) emissions, Cominco intended to install "Low N[O.sub.x]" as its emission control technology. Upon ADEC's review of Cominco's application, ADEC determined that Low N[O.sub.x] was not BACT for MG-5 and that an alternative technology, Selective Catalytic Reduction (SCR), was BACT. After receiving ADEC's determination regarding BACT for its proposed generator, Cominco suggested an alternative to installing SCR on MG-5. Cominco suggested that it implement Low N[O.sub.x] technology on all of its existing generators and on a proposed seventh generator (MG-17). ADEC subsequently accepted Cominco's proposal because installation of Low N[O.sub.x] on all of the existing generators would reduce the total N[O.sub.x] "output from the Mine to a level comparable to that which would result were SCR installed in only the MG-5 and MG-17 generators." (3)

        After ADEC's acceptance of Cominco's proposal to install only Low N[O.sub.x] technology on its generators, the National Park Service requested that EPA become involved. In a letter to ADEC, EPA explained that the BACT for the two generators, MG-5 and MG-17, was SCR. Furthermore, EPA rejected the notion that ADEC could grant Cominco a substitution to install a level of technology lower than the BACT so long as the decrease in emissions was the same. Despite receiving this letter from EPA, ADEC concluded in its decision on Cominco's permit that because of the financial burden associated with installation of SCR that Low N[O.sub.x] was the BACT. In EPA's subsequent review of ADEC's permit decision, EPA asserted "that Cominco had not adequately demonstrated why SCR was economically infeasible." (4)

        Thereafter negotiations began between EPA, ADEC, and Cominco. The negotiations resulted in a resolution that Low N[O.sub.x] was sufficient BACT for MG-1, MG-3, MG-4, and MG-5. (5) However, the parties were still unclear and did not reach a resolution on the BACT for MG-17. EPA then issued a Finding of Noncompliance Order "stating that ADEC's authorization of Cominco's construction and installation of new equipment" did not comply with the CAA or the Alaska SIP and ordered ADEC to withhold Cominco's permit. (6) ADEC disregarded EPA's order and issued the PSD permit. Later EPA issued a second order to Cominco to prevent them from beginning construction on the MG-17 generator. EPA's third order modified the second order and permitted Cominco to perform certain construction measures that were required to be completed during the summer.

        On review, the Ninth Circuit first reviewed its prior order (7) responding to an objection by EPA that the court did not have jurisdiction. The Ninth Circuit explained that it had considered the language in section 307(b)(1) of the CAA (8) and had found that it had subject matter jurisdiction pursuant to the Act because the orders issued to ADEC and Cominco were "final agency action." (9) In considering the merits of the case, the Ninth Circuit held that because of the "plain text, structure, and history" (10) of the CAA, EPA had authority to issue the enforcement orders. The court cited EPA's enforcement powers as detailed in sections 113(a)(5) and 167 of the CAA. (11)

        Section 113(a)(5) discusses EPA's authority with regards to construction or modification of sources. Subsection (A) states that EPA may "issue an order prohibiting the construction or modification of any ... source in any area." (12) Subsections (B) and (C) provide that EPA may issue penalty orders or "bring a civil action" if a state is not complying with the PSD requirements regarding construction or modification of sources. (13) Section 167 requires EPA to take steps, including issuance of an order, to ensure that construction or modification of facilities meet the PSD program requirements. (14) Therefore, the court found that once EPA determined that ADEC and Cominco were not complying with the PSD requirements by refusing to implement the BACT, it was authorized to issue orders.

        The Ninth Circuit found additional support for EPA's enforcement authority in the legislative history of the CAA. The court considered amendments to the statute in finding that EPA's authority included evaluating whether a state's determination of the BACT is proper. For example, in the 1970 amendments Congress acted to ensure compliance with the CAA's requirements even "'if the State failed to adopt, implement, or enforce the necessary measures.'" (15) Furthermore, the PSD program, which set forth acceptable decreases in air quality in clean air areas, was established in the 1977 amendments. Finally, the court considered the 1990 amendments as support for EPA's enforcement authority because amendments to section 113(a)(5) specifically stated that EPA had enforcement authority when a state fails to "comply with 'any requirement or prohibition' of the Act relating to new or modified sources." (16) Thus, the Ninth Circuit held that EPA's authority included the ability to determine if a state's conclusion regarding the BACT was in accord with the requirements of the CAA.

        ADEC and Cominco argued that because EPA had granted ADEC authority to issue PSD permits and determine the BACT, EPA did not have the authority to determine the BACT contradictory to ADEC's determination and that therefore EPA's orders were invalid. The Ninth Circuit rejected this argument because it found no support for it in the statutory language. The court explained that the definition of BACT in section 169(3) did not place any restrictions on EPA's enforcement abilities. (17)

        In addition, ADEC and Cominco argued that EPA's review was limited to determining whether the State met certain requirements and that EPA could not overturn the State's determination of the BACT. The court also found no support for this argument. The court actually found that the evidence ADEC and Cominco provided, a legal memorandum prepared by EPA, supported EPA's position. The memorandum at issue clarified the State's obligations in determining the BACT. The memorandum stated that if a state provides a "reasoned justification of the basis for its decision" (18) EPA could not overturn the state's determination. The court found that EPA was required to determine the reasonableness of Alaska's determination and upheld the agency's orders based on the State's unreasonableness.

        Finally, ADEC and Cominco argued that EPA erred because ADEC's determination of the BACT complied with the CAA. The court commented on the common "top-down" method of determining the BACT, which ADEC purportedly applied. (19) In applying this method, "[t]he most stringent technology is BACT unless the applicant can show that it is not technically feasible, or if energy, environmental, or economic impacts justify a conclusion that it is not achievable." (20) The court explained that states must act reasonably in their administration of the "top-down" method and that ADEC's actions in this case were unreasonable.

        ADEC rejected SCR as the BACT on solely financial rationales. Although rejecting BACT for economic reasons is acceptable, ADEC did not demonstrate that the circumstances surrounding the mine justified a rejection of SCR. ADEC adopted its own reasons for economic infeasibility, including that the cost of SCR would be excessive and would harm the public interest that had benefited from a reversal in unemployment rates since the mine opened. The court rejected ADEC's justification as unacceptable under the "top-down" approach and explained that behavior like that was one of the reasons Congress granted EPA enforcement authority "to protect states from industry pressure to issue ill-advised permits." (21) Therefore, the court concluded that EPA's decision that ADEC's actions finding were unreasonable was not arbitrary and capricious.

      2. United States v. Technic Services, Inc., 314 F.3d 1031 (9th Cir. 2002), infra Part III.

      3. United States v. Dahl, 314 F.3d 976 (9th Cir. 2002), cert. denied, 123 S. Ct. 2589 (2003), infra Part III.

      4. Public Citizen v. United States Department of Transportation, 316 F.3d 1002 (9th Cir. 2003), infra Part I.E.

    2. Clean Water Act

      1. Tillamook County v. United States Army Corps of Engineers, 288 F.3d 1140 (9th Cir. 2002).

        Tillamook County (the County) sought to enjoin the Army Corps of Engineers (the Corps) from issuing a...

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