Alaska v. EPA - Brief (Merits)

No. 02-658

In the Supreme Court of the United States

ALASKA DEPARTMENT OF ENVIRONMENTAL CONSERVATION, PETITIONER

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR RESPONDENTS

THEODORE B. OLSON
Solicitor General
Counsel of Record
KELLY A. JOHNSON
Acting Assistant Attorney
General
EDWIN S. KNEEDLER
Deputy Solicitor General
JAMES A. FELDMAN
Assistant to the Solicitor
General
ANDREW J. DOYLE
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

ROBERT E. FABRICANT
General Counsel
CAROL S. HOLMES
JULIANE R.B. MATTHEWS
Attorneys
Environmental Protection
Agency
Washington, D.C. 20460

QUESTIONS PRESENTED

1. Whether the court of appeals had jurisdiction over this pre-enforcement challenge to the Environmental Protection Agency's administrative orders.

2, Whether, if the Environmental Protection Agency (EPA) finds that a state permitting authority has not made a reasonable determination of the best available control technology as required by Section 165 of the Clean Air Act, 42 U.S.C. 7475(a)(4), the EPA has authority under Sections 113(a)(5) and 167 of the Act, 42 U.S.C. 7413(a)(5) and 7477, to issue a finding of noncompliance and administrative orders to prevent construction of a major emitting source.

In the Supreme Court of the United States

No. 02-658

ALASKA DEPARTMENT OF ENVIRONMENTAL CONSERVATION, PETITIONER

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR RESPONDENTS

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-16a) is reported at 298 F.3d 814. A prior order of the court of appeals addressing its subject matter jurisdiction (Pet. App. 17a-23a) is reported at 244 F.3d 748.

JURISDICTION

The judgment of the court of appeals was entered on July 30, 2002. The petition for a writ of certiorari was filed on October 25, 2002, and was granted on February 24, 2003. This Court's jurisdiction is invoked under 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

Pertinent statutory and regulatory provisions are set forth at App., infra, 1a-18a.

STATEMENT

1. Under the Clean Air Act, "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). The Environmental Protection Agency (EPA), for example, establishes national ambient air quality standards (NAAQS) for certain air pollutants, and States play a "statutory role as primary implementers of the NAAQS." Whitman v. American Trucking Ass'ns, 531 U.S. 457, 470 (2001); see 42 U.S.C. 7408, 7409. Each State must draft and submit to EPA for approval a state implementation plan (SIP) that, inter alia, provides for the attainment and maintenance of the NAAQS. See 42 U.S.C. 7407(a), 7410; see Train v. NRDC, 421 U.S. 60, 93-94 n.28 (1975).

This case involves particular provisions of the Act applicable to construction of major facilities in areas that are designated as "attainment" or "unclassifiable," i.e., areas of the country-such as much of Alaska-where the NAAQS for a given pollutant are satisfied or for which insufficient data exist to know whether they have been satisfied. See Pet. App. 3a. The key goal of the Act in such areas is to preserve existing air quality, and a State's SIP therefore must "contain emission limitations and such other measures as may be necessary * * * to prevent significant deterioration of air quality" in those areas. 42 U.S.C. 7471; see 42 U.S.C. 7410(a)(2)(D)(i)(II). Under the Act's prevention-of-significant-deterioration-or PSD-program, no "major emitting facility"-i.e., no facility that would emit substantial quantities of pollutants, see 42 U.S.C. 7479(1)-may be constructed in a clean air area unless it satisfies certain statutory requirements. 42 U.S.C. 7475.

Before such a facility may be constructed, its operator must secure a PSD permit "setting forth emission limitations for such facility which conform to the requirements" of the Act. 42 U.S.C. 7475(a)(1). One substantive requirement that must be reflected in the PSD permit is that the new facility must not "cause, or contribute to * * * air pollution" in excess of certain "maximum allowable increase[s]"-or increments-in the levels of particular pollutants in clean air areas. 42 U.S.C. 7475(a)(3) (permit requirement), 7473 (definition of increment). Another requirement is that the facility must not cause or contribute to air pollution exceeding any NAAQS or other "applicable emission standard or standard of performance" under the Act. 42 U.S.C. 7475(a)(3).

To prevent significant deterioration of air quality in a clean air area, a facility also may not "be constructed * * * unless * * * the proposed facility is subject to the best available control technology [BACT] for each pollutant subject to regulation under [the Act] emitted from, or which results from, such facility." 42 U.S.C. 7475(a)(4); see Alabama Power Co. v. Costle, 636 F.2d 323, 407 (D.C. Cir. 1979). BACT is defined under the Act, in pertinent part, as

an emission limitation based on the maximum degree of reduction of each pollutant * * * emitted 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). Thus, BACT is an "emission limitation" that must be "based on the maximum degree of reduction * * * achievable" for the facility, as determined by the permitting agency and taking into account the specified factors.

In determining what is BACT for a given source, permitting authorities commonly follow the "top-down" approach. Pet. App. 13a (citing EPA, New Source Review Workshop Manual (Draft 1990)). Under that approach, "the applicant ranks all available control technologies in descending order of control effectiveness. The 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." Pet. App. 13a.

The Act directs state permitting authorities to keep EPA informed of every PSD permit application and "of every action related to the consideration of such permit." 42 U.S.C. 7475(d)(1). Although EPA often offers comments to state permitting authorities on permit applications, EPA does not become more formally involved in PSD permit decisions in the vast majority of instances. Two provisions of the Act, however, authorize EPA to enforce the statutory PSD requirements. Section 113(a)(5) provides that if EPA "finds that a State is not acting in compliance with any requirement or prohibition" of the Act "relating to the construction of new sources or the modification of existing sources," 42 U.S.C. 7413(a)(5), EPA may (A) "issue an order prohibiting the construction or modification of any major stationary source in any area to which such requirement applies," (B) "issue an administrative penalty order," or (C) "bring a civil action" in federal district court for an injunction or other relief. 42 U.S.C. 7413(a)(5). Section 167, which is directed solely to the PSD program applicable to new sources in clean air areas, provides that EPA "shall * * * 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" the Act specifically intended to prevent significant deterioration. 42 U.S.C. 7477.

2. Teck Cominco Alaska, Inc. operates the "Red Dog Mine" in northwest Alaska, which is the largest producer of zinc concentrates in the world. Pet. App. 3a. Many workers are housed within its boundaries, and native Alaskans reside in the nearby villages of Kivalina and Noatak. Id. at 4a; J.A. 166; R. 36-018, 46-001. Cominco first obtained a PSD permit from petitioner for the mine in 1988. Pet. App. 4a; J.A. 166. The mine produces its own electricity. In order to ensure that emissions of nitrogen oxides (NOx) from its power generators remained within permissible limits, that permit, as later amended, included restrictions that limited the operations of the mine's five original diesel-fired power generators (designated MG-1 through MG-5) and one generator added later (designated MG-6). J.A. 78-79, 166-167, 194-195.

In 1996, Cominco initiated an expansion project to increase zinc production by 40%. Pet. App. 4a; R. 85-007; J.A. 167. The State of Alaska provided just under half of the funding. R. 85-007. The project was to increase the mine's workforce from 406 to 476. Ibid. Because the expansion would significantly increase emissions of air pollutants (including up to 1,100 additional tons per year of NOx) from the power generators, Cominco was required to apply for a new PSD permit. Cominco submitted its application in June 1998. Pet. App. 4a; J.A. 167-169. As amended in 1999, Cominco's application sought permission to build a new generator (designated MG-17) to add to the six existing ones. Pet. App. 4a; J.A. 167, 196. Cominco argued that petitioner should determine that BACT for that generator is a technology known as "Low NOx." Pet. App. 4a; J.A. 84.1

Petitioner's staff initially disagreed with Cominco's BACT proposal, concluding that a different and more stringent technology, selective catalytic reduction (SCR), should be required as BACT. J.A. 108, 196; Pet. App. 4a. SCR is similar to the catalytic converter technology used in automobiles. See, e.g., 65 Fed. Reg. 35,430, 35,470 nn.100-101 (2000). In May 1999, however, petitioner released a draft PSD permit decision granting Cominco permission to build MG-17 with Low NOx-rather than SCR-installed on it. See Pet. App. 4a; J.A. 55-95. Purporting to follow the "top-down" approach (see pp. 3-4, supra), petitioner acknowledged that SCR would provide the most stringent level of control, while also being "technically and economically feasible" on MG-17. J.A. 61-62, 65, 83-84, 283-284. In particular, petitioner noted that the costs of SCR (variously estimated at that time to be between $1586 and $5643 per ton of NOx removed) were "well within what [petitioner] and EPA consider[] economically feasible." J.A. 84. Nevertheless, petitioner proposed to select the less effective Low NOx as BACT for MG-17 due solely to "other considerations." J.A. 65 n.1. Those "other considerations" consisted of Cominco's proposal to retrofit some of its existing generators with Low NOx as well. See note 1, supra; J.A. 87-88; Pet. App. 4a.

In July 1999, EPA, following up on comments submitted by the National Park Service (NPS), which was concerned about the effect of increased NOx emissions on air quality and vegetation at Cape Krusenstern National Monument and Noatak National Preserve, raised concerns with petitioner about its draft permit decision. Pet. App. 4a-5a; J.A. 96-98, 257, 284-285. EPA pointed out that petitioner itself had found that SCR offered "the most stringent level of control" and was "economically and technologically feasible." J.A. 96. And EPA reminded petitioner that "the PSD program does not allow the imposition of a limit that is less stringent than BACT" on MG-17, "even if equivalent emission reductions are obtained by imposing new controls on other emission units." J.A. 97; see Pet. App. 5a.

After receiving EPA's comments, petitioner issued a revised draft permit decision dated September 1999. Petitioner again found SCR to offer the most stringent level of control, to be technologically feasible, and not to be eliminated by consideration of environmental and energy impacts. J.A. 107, 287. The revised decision also acknowledged that "the emission reductions achieved by the applicant's proposal to retrofit the existing, unmodified engines * * * cannot be used to temper the stringency of BACT" on MG-17-i.e., that BACT had to be determined for MG-17 alone, without regard to controls petitioner might choose to place on other generators. J.A. 111-112, 286.

The revised draft decision nonetheless continued to state that Low NOx qualified as BACT for MG-17, purporting to base that determination on the costs of SCR, which it now found to be only $2100 per ton of NOx removed. Pet. App. 5a, 14a-15a; J.A. 113, 117, 286-288. The revised draft asserted that the costs of SCR were "significantly higher" than those associated with "recent BACT decision[s] for similar installations," although petitioner acknowledged that it had imposed BACT costs of up to "$7,000 per ton of NOx removed" on other sources. J.A. 115-116; R. 29-052. The revised draft hypothesized that Cominco "would probably buy power from a rural Alaskan utility" if it did not generate its own power and stated that the cost increase of SCR would be "a disproportionate cost increase when viewed as an electric utility." J.A. 116. Petitioner concluded its analysis:

Another perhaps better way to determine if the cost of BACT is excessive, is for the applicant to present detailed financial information showing its effect on the operation. However, the applicant did not present this information. Therefore, no judgment can be made as to the impact of [the costs of SCR] on the operation, profitability, and competitiveness of the Red Dog Mine.

J.A. 116 (emphasis added).

EPA again submitted detailed comments to petitioner. See J.A. 118-130, 288-291. EPA's view was that petitioner's BACT determination for MG-17 was "clearly erroneous" and not "supported by * * * available information." J.A. 129. EPA emphasized, for example, the complete absence of facts establishing that "requiring Cominco to install and operate the more effective control strategies would have any adverse economic impacts upon Cominco specifically." J.A. 127.

In October 1999, the parties met to discuss the pending PSD permit. Pet. App. 5a; J.A. 292. Many outstanding issues were ultimately resolved. J.A. 294. For example, Cominco now "agreed to restrict the emission increases associated with MG-5 to avoid modification and BACT review" of that generator. J.A. 197. Although only the validity of petitioner's determination of BACT for the MG-17 generator remained in dispute, it was an issue of significance. With SCR, the MG-17 generator would emit only 53 tons of NOx per year. With Low NOx, MG-17 would emit 531 tons of NOx per year-a 10-fold difference. J.A. 100, 198.

After further correspondence and discussions, see J.A. 136-140, 292-294, EPA issued a "Finding of Noncompliance and Order" to petitioner. Pet. App. 5a, 26a-37a; J.A. 294-296. Invoking Section 113(a)(5) of the Clean Air Act, EPA found that petitioner would violate the requirements of the Act and the Alaska SIP if it issued the permit as then drafted. Pet. App. 35a; J.A. 295-296. In a cover letter, EPA explained that petitioner's "record simply does not support its decision that BACT for * * * MG-17 is low NOx controls." J.A. 150. EPA noted that petitioner's own analysis "indicates that SCR is technically feasible." J.A. 149. EPA also "d[id] not believe that the cost-effectiveness analysis in the final technical analysis report demonstrates that the installation of SCR is economically infeasible" and noted that the costs of SCR "are well within the range of costs EPA has seen permitting authorities nationwide accept as economically feasible for NOx control, except where there are compelling site-specific factors that indicate otherwise." J.A. 150. EPA stated, however, that it remained "available to review and consider any additional information or analyses * * * to support a determination that SCR is not BACT." J.A. 150, 296-297. Similarly, pursuant to Section 167 of the Act, EPA's order directed petitioner not to permit construction of Cominco's MG-17 generator "unless [petitioner] satisfactorily documents why SCR is not BACT." Pet. App. 36a.

Later that same day, and notwithstanding EPA's order, petitioner issued a PSD permit with an emission limit on MG-17 based on a determination that Low NOx constituted BACT. Pet. App. 5a; J.A. 254, 297-298. Under the permit, the pre-existing emission limitations for the existing generators MG-1 through MG-6 were "retained" unchanged. J.A. 232; see J.A. 156 (2259 tons combined total for MG-1, MG-3, MG-4, and MG-5), 233 (limits for MG-2 and MG-6). The permit included no requirement that petitioner install Low NOx on any of those generators, although petitioner had the right both before and after the permit decision to do so to remain within the pre-existing emission limitations while producing more electricity. See J.A. 139.

There was one other significant departure from the September 1999 revised draft permit. Compare J.A. 194-211 with R. 29-042 to 29-055. Cominco still had not submitted any information on, and petitioner by its own admission therefore could make "no judgment" about, SCR's impact "on the operation, profitability, and competitiveness of the Red Dog Mine." J.A. 207, 299. Nonetheless, petitioner's analysis purported to find "the foremost consideration to judge economic impacts of SCR" to be "the direct cost of SCR technology and its relationship to retaining the Mine's world competitiveness." J.A. 208. Petitioner concluded that "[t]o support Cominco's Red Dog Mine Production Rate Increase Project, and its contributions to the region, [petitioner] has rejected [SCR] controls based on excessive economic cost-$2.9 million capital cost, with annualized costs approaching $635,000." J.A. 208; see J.A. 298-299.

In early February 2000, EPA issued a finding of noncompliance based on petitioner's final December 1999 permit and BACT determination. Pet. App. 5a; J.A. 256-258, 299-300. On the same day, invoking Sections 113(a)(5) and 167 of the Act, EPA issued an "Administrative Order" to Cominco not to commence construction of MG-17 until it obtained a valid PSD permit. See Pet. App. 38a-50a; J.A. 301. In March 2000, EPA issued an "Amended Administrative Order" accommodating Cominco's request to conduct some limited, weather-sensitive construction. See Pet. App. 51a-64a; J.A. 302. In April 2000, EPA withdrew the original December 10, 1999, Order on the ground that "after [petitioner] issued the permit prohibited by the Order, the Order did not impose any continuing prohibitions or obligations applicable to [petitioner]." Pet. App. 19a; J.A. 300. EPA did not, however, withdraw the orders that generally prohibited Cominco from doing construction work on MG-17.

3. Petitioner and Cominco filed petitions for review of EPA's findings of noncompliance and orders. The Ninth Circuit held that the EPA's orders were final and that it therefore had jurisdiction under 42 U.S.C. 7607(b)(1). Pet. App. 18a-23a. Applying the test for finality in this Court's decision in Bennett v. Spear, 520 U.S. 154 (1997), the court held that EPA's orders were its "last word" on whether Low NOx is BACT for MG-17 and that "rights or obligations" of the parties were determined by the orders because "[t]he effect of the February 8 Order [to Cominco] is to halt construction at Cominco's Red Dog Mine facility at a considerable cost of both time and money to Cominco." Pet. App. 20a. The court also noted that "legal consequences [would] flow" if Cominco chose to continue construction despite the orders because, if EPA instituted proceedings to enforce its orders in district court, "Cominco and its employees would be subject to criminal and civil penalties for the violation of its Orders, as well as for the violation of the [Clean Air Act]." Id. at 21a.

On the merits, the court denied the petitions. Pet. App. 1a-16a. The court noted that the enforcement powers EPA relied upon depend on EPA's finding either that the State is "not acting in compliance with any requirement" of the Clean Air Act under Section 113(a)(5) or that a proposed facility "does not conform to the requirements of" the Act under Section 167. Id. at 7a-8a (emphasis added) (quoting 42 U.S.C. 7413(a)(5) and 7477). The court observed that, under the Act, a State may issue a PSD permit to construct a new facility only if the proposed facility is "subject to the best available control technology for each pollutant." Id. at 8a. The court concluded that BACT is therefore a "requirement" of the Clean Air Act under both Section 113(a)(5) and Section 167 and that EPA's finding that petitioner had failed to subject MG-17 to BACT authorized EPA to issue orders under those Sections. Id. at 8a-9a.

Petitioner argued that the Act grants it discretion in determining what constitutes BACT, because the Act defines BACT as a limitation "based on the maximum degree of reduction of each pollutant * * * 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 [the] facility." Pet. App. 9a (emphasis added) (quoting 42 U.S.C. 7479(3)). The court agreed that "the state has discretion to make BACT determinations as the permitting authority." Id. at 10a. But it explained that "neither Section 113(a)(5) nor Section 167 contains any exemption for [Clean Air Act] requirements that involve the state's exercise of discretion." Id. at 11a. The court concluded that "[i]t does not follow from the placement of initial responsibility with the state permitting authority that its decision is thereby insulated from the oversight and enforcement authority assigned to the EPA in other sections of the statute." Ibid.

The court also rejected the argument that, even if EPA has authority to reject a state BACT determination, EPA acted arbitrarily and capriciously in this case. See Pet. App. 13a-16a. The court found that the administrative record-which "all the parties effectively agreed * * * was adequate to resolve the issues on appeal"-supported EPA's finding of noncompliance. Id. at 7a. The court held that petitioner's own permit record "shows that (1) Cominco failed to meet its burden of demonstrating that SCR was economically infeasible; and (2) [petitioner] failed to provide a reasoned justification for its elimination of SCR as a control option." Id. at 16a. The court noted that petitioner's "apparent motivation for the elimination of SCR- appreciation for Cominco's contribution to the local economy"-is "uncomfortably reminiscent of one of the very reasons Congress granted EPA enforcement authority-to protect states from industry pressure to issue ill-advised permits." Ibid.

SUMMARY OF ARGUMENT

I. The court of appeals rejected EPA's argument that it did not have jurisdiction in this case because EPA's orders were not "final action" and therefore were not subject to review under 42 U.S.C. 7607(b)(1). Upon further consideration, the government now believes that the court of appeals did have jurisdiction. EPA's orders embodied EPA's considered and final judgment on whether petitioner had adequately justified its conclusion that Low NOx was the best available control technology for the MG-17 generator. The orders also determined legal rights and obligations, because they in effect invalidated petitioner's permit, pursuant to which Cominco could have otherwise begun construction of the MG-17 generator.

II. A. On the merits, EPA's orders were based on authority granted to EPA in Sections 113(a)(5) and 167 of the Clean Air Act, 42 U.S.C. 7413(a)(5) and 7477, to prohibit construction of a new source when a State has failed to comply with a "requirement"-or the new source would not conform to a "requirement"-of the PSD program. The statutory BACT provisions constitute such a requirement. They mandate that permits for specified new sources (which include Cominco's MG-17) require use of the "best available control technology," 42 U.S.C. 7475(a)(4), which in turn is defined as "an emission limitation based on the maximum degree of reduction of each pollutant" that the "permitting authority * * * determines is achievable" for the facility, "taking into account energy, environmental, and economic impacts and other costs." 42 U.S.C. 7479(3).

B. Petitioner's core argument is that a State complies with the BACT provisions so long as it makes a determination-any determination-of emission levels under the rubric of BACT. That contention is inconsistent with the statutory terms, which do not merely allow a state permitting authority to determine whatever limit on emissions it wants, but instead require it to determine the "maximum degree of reduction in each pollutant * * * achievable" for the facility, taking into account specified factors. 42 U.S.C. 7479(3). If a State has not actually determined the "maximum reduction" that is "achievable," or if a State has employed an arbitrary methodology or relied on unsupported factual premises, the State has not complied with the BACT requirement. Although a State has substantial scope for exercising judgment and weighing competing considerations in making a BACT determination, that scope is not unlimited. If a State acts outside the scope of permissible judgment, EPA may exercise the authority Congress granted it to issue a stop-construction order.

Petitioner's argument that a State has sole discretion to determine BACT would also undermine the statutory scheme. Congress vested EPA with enforcement authority in order to protect national interests in ensuring compliance with Clean Air Act requirements-interests that transcend state boundaries. Clean Air Act requirements were imposed in order to protect not only residents of the State that houses a new facility, but also residents of neighboring States into which the air pollution from that facility may migrate. Moreover, Congress wanted to limit the substantial competitive disadvantage that States that imposed reasonable BACT and other requirements would face if other States could adopt unreasonably permissive standards.

C. Petitioner's other arguments that it has absolute discretion to make whatever BACT determinations it wants are unsound. Although petitioner holds out the prospect of state-court review of its permitting decisions, Congress in Sections 113(a)(5) and 167 of the Act deliberately gave EPA its own independent authority to protect the multistate interests in preventing the significant deterioration of air quality in clean-air areas. In any event, petitioner's concession that BACT requirements in its permits are subject to state-court review is inconsistent with its core argument that such requirements are solely a matter of discretion for the state permitting authority. Petitioner is also mistaken in contending that EPA enforcement of the BACT requirement is unnecessary because new sources must not exceed the allowable increases in emission (increments) under the Clean Air Act. Although the increment requirement sets a maximum level of pollution from new facilities in the aggregate, the separate BACT requirement was included specifically to ensure that emissions from each new facility are reduced to the maximum extent achievable for the facility.

EPA review is also consistent with the statutory scheme of cooperative federalism. Under the PSD program, state permitting authorities have substantial latitude to exercise their own judgment about what constitutes BACT. Congress also, however, gave EPA substantive authority to ensure compliance with the BACT requirement where a State acts outside that area of reasonable judgment and discretion. It is petitioner's view, which would deprive EPA of any significant role in the BACT process, that violates the principles of cooperative federalism.

D. If there is any doubt about the meaning of the Clean Air Act in this case, EPA's construction of the Act to require permitting authorities to make reasonable BACT determinations is entitled to deference under Chevron U.S.A, Inc. v. NRDC, 467 U.S. 837 (1984). In conferring authority on the EPA to make findings and issue orders to ensure compliance with the Act's requirements, Congress necessarily conferred authority on EPA to construe and apply the Act. EPA's longstanding view that the Act requires BACT determinations to be reasonable was embodied in its orders and the administrative record in this case, as well as in notice-and-comment rulemaking and guidance to the States over the years.

III. Petitioner argues that, if EPA does have statutory authority to act on the basis of a State's unreasonable BACT determination, EPA nonetheless erred in finding that petitioner's BACT determination in this case was unreasonable. That factbound issue falls outside the question of statutory authority presented in the certiorari petition.

In any event, EPA correctly concluded that petitioner unreasonably determined that Low NOx was BACT was unreasonable. It is not disputed that the use of SCR on MG-17 would result in much lower emissions than would the use of Low NOx. Petitioner conceded that SCR was feasible based on energy and environmental impacts. Although petitioner purported to rely on the greater costs of SCR in rejecting it as BACT, petitioner also acknowledged that it had been provided with no information concerning the effects of those greater costs on Cominco's mining operation, and that accordingly "no judgment can be made as to the impact of [the costs of SCR] on the operation, profitability, and competitiveness" of the mine. J.A. 207. EPA correctly found that petitioner's decision to base its BACT determination on a bare desire to save money for Cominco, unsupported by any evidence that doing so would in turn substantially affect Cominco's operations at the mine or the neighboring communities, was unreasonable.

ARGUMENT

I. THE COURT OF APPEALS HAD JURISDICTION IN THIS CASE

The court of appeals held that EPA's orders in this case were "final action" and thus reviewable under 42 U.S.C. 7607(b)(1). See generally Harrison v. PPG Indus., Inc., 446 U.S. 578 (1980). The court rejected EPA's arguments that the orders were non-final. Upon further consideration, the government now believes that the court of appeals correctly found that it had jurisdiction in this case.

1. It is well-settled that myriad "pragmatic considerations" are involved in a finality determination. See, e.g., FTC v. Standard Oil Co., 449 U.S. 232, 239-243 (1980). The finality of EPA's Orders turns on two factors that were highlighted in Bennett v. Spear, supra. Under Bennett, "[a]s a general matter," a final agency action (1) must be one that "mark[s] the 'consummation' of the agency's decisionmaking process," rather than one that is "merely tentative or interlocutory [in] nature," and (2) it "must be one by which 'rights or obligations have been determined,' or from which 'legal consequences will flow.'" 520 U.S. at 177-178. See Whitman, 531 U.S. 477-479.

The first of the Bennett conditions is satisfied here, as the Ninth Circuit concluded. Pet. App. 20a. The second Bennett condition is also satisfied given the nature of the orders in this case. The Act required Cominco to obtain a permit and be subject to BACT prior to construction. 42 U.S.C. 7475(a)(1). Absent EPA's orders, petitioner's permit would have removed those obstacles to Cominco's construction of the MG-17 generator. The orders, however, "effectively invalidated" the state permit. Pet. App. 18a. They precluded Cominco from constructing the generator and from asserting its compliance with the state permit as a defense in any enforcement proceeding. Moreover, as the court of appeals noted, once EPA issued its stop-construction orders, Cominco was faced with the threat of penalties for their violation. Id. at 21a; see 42 U.S.C. 7413(b)(2) (civil penalties possible for violations of a "requirement or prohibition of any * * * order * * * issued * * * under" the Act), 7413(c) (criminal penalties possible for knowing violation of "any order under [Section 113(a)]" or "an order under section [167]"). Accordingly, the orders "alter[ed] the legal regime," Bennett, 520 U.S. at 178, and they constituted "final action of the Administrator" under 42 U.S.C. 7607(b)(1).

2. The court of appeals' jurisdictional conclusion is consistent with the Sixth Circuit's conclusion involving a similar order in Allsteel, Inc. v. EPA, 25 F.3d 312, 315 (6th Cir. 1994) (noting that EPA's order "directed Allsteel to stop all construction-a new obligation, not one directly imposed by statute").2 Compare Acker v. EPA, 290 F.3d 892 (7th Cir. 2002) (order that identified past violations and directed company to comply with law in the future not final action); Asbestec Constr. Servs., Inc. v. EPA, 849 F.2d 765 (2d Cir. 1988) (order that identified past violations of the Act, directed the recipient to provide certain information, and required compliance with regulations in the future not final action); but cf. Solar Turbines, Inc. v. Seif, 879 F.2d 1073 (3d Cir. 1989) (holding, prior to 1990 expansion of civil penalties to cover violations of orders under 167, that pre-enforcement review of stop-construction order was unavailable).

After the court of appeals decided this case and this Court granted certiorari, the Eleventh Circuit in TVA v. Whitman, No. 00-15936, 2003 WL 21452521 (June 24, 2003), expressly disagreed with the Ninth Circuit's jurisdictional holding in this case. See id. at *16. The Eleventh Circuit did not disagree with the Ninth Circuit's conclusion that, as a statutory matter, Section 307(b)(1), 42 U.S.C. 7607(b)(1), would authorize pre-enforcement review of a stop-construction order such as that at issue here. The court held, however, that the Act "is unconstitutional to the extent that mere noncompliance with the terms of [an EPA order] can be the sole basis for the imposition of severe civil and criminal penalties." 2003 WL 21452521, at *19. In the court's view, the statutory scheme "deprives the regulated party of a 'reasonable opportunity to be heard and present evidence' on the two most crucial issues: (a) whether the conduct underlying the issuance of the [order] actually took place and (b) whether the alleged conduct amounts to a [Clean Air Act] violation." Id. at *18. The Eleventh Circuit rejected the contention that EPA could remedy any procedural deficiency "by voluntarily undertaking an adjudication prior to the issuance of an [order]," finding that "there is simply no room for administrative discretion on this [procedural] point" in the Act. Ibid. The Eleventh Circuit concluded that EPA orders "lack finality because they do not meet prong two of the Bennett test." Id. at *19.

The Eleventh Circuit's holding is mistaken, for at least two reasons. First, contrary to the Eleventh Circuit's apparent conclusion, see, e.g., 2003 WL 21452521, at *4, the underlying merits of an EPA order are always subject to judicial review-either on petition for review, as in this case or, if not, in a subsequent action brought by EPA to enforce the order. See 42 U.S.C. 7607(b)(2) ("Action of the Administrator with respect to which review could have been obtained under [42 U.S.C. 7607(b)(1)] shall not be subject to judicial review in civil or criminal proceedings for enforcement."). The Act's authorization of penalties for violation of EPA "orders" is naturally read to refer only to valid orders. In any event, such a narrowing construction would certainly be appropriate to avoid holding a portion of the Act unconstitutional.3

Second, the Eleventh Circuit erred in holding that EPA cannot provide for administrative procedures that would remedy any constitutional deficiency. The mere fact that Congress has failed to specify what procedures must be followed before EPA may issue an order does not preclude EPA from adopting procedures that are constitutionally adequate. The Due Process Clause does not require that Congress specify adequate procedures every time it entrusts to an agency the responsibility to make a determination; the Clause requires only that, in each case, adequate procedures are provided. This Court has long held that an agency has general authority to provide appropriate process, even when a statute does not specify that that process must be used. See, e.g., Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 544 (1978) (noting "the very basic tenet of administrative law that agencies should be free to fashion their own rules of procedure"); Cameron v. United States, 252 U.S. 450, 460-463 (1920). The Eleventh Circuit erred in rejecting that principle. Moreover, neither the Due Process Clause nor the Administrative Procedure Act requires a formal evidentiary hearing in all circumstances, and Congress contemplated that many EPA orders under the Clean Air Act would be issued in less formal proceedings. See PPG Indus., Inc. 446 U.S. at 587-589.

3. The Eleventh Circuit's sole reason for holding that the EPA order in that case was nonfinal and thus unreviewable was that the Act's provision for such orders to be backed by civil and criminal penalties was unconstitutional. For the reasons given above, the Act's provisions for EPA orders do not violate the Due Process Clause.4 Accordingly, the Eleventh Circuit's finality conclusion was erroneous, and the court of appeals in this case correctly held that the EPA orders were reviewable under Section 307(b)(1).5

II. THE CLEAN AIR ACT AUTHORIZES EPA TO ISSUE A STOP-CONSTRUCTION ORDER IF A STATE'S PSD PERMIT IS BASED ON AN ARBITRARY OR UNREASONED DETERMINATION OF BEST AVAILABLE CONTROL TECHNOLOGY

Sections 113(a)(5) and 167 of the Clean Air Act, 42 U.S.C. 7413(a)(5) and 7477, both grant EPA authority to issue stop-construction orders to enforce a "requirement" of the Act. Both parties agree that it is a requirement of the Act that a permitting authority determine the best available control technology for a proposed facility and include corresponding emission limitations in its PSD permit. EPA rested its Orders in this case on the premise that a State fails to conform to that requirement if it bases emission limitations in a permit on an unreasonable BACT determination. That conclusion is correct, and petitioner's arguments for a contrary interpretation-under which the Act requires permitting authorities to make a BACT determination but does not require them to do so reasonably-are mistaken.

A. Under The Plain Language Of Sections 113(a)(5) And 167, EPA Has Authority To Prevent Construction Of A Facility Under A Permit That Does Not Comply With Requirements Of The Clean Air Act

"[T]he starting point in a case involving construction * * * of a statute, is the language of the statute itself." United States Dep't of Treasury v. Fabe, 508 U.S. 491, 500 (1993). Two provisions of the Clean Air Act expressly authorized EPA's orders in this case.

1. Under Section 113(a)(5), "[w]henever * * * the Administrator finds that a State is not acting in compliance with any requirement or prohibition of the chapter relating to the construction of new sources or the modification of existing sources, the Administrator may * * * issue an order prohibiting the construction or modification of any major stationary source in any area to which such requirement applies." 42 U.S.C. 7413(a)(5) (emphasis added); see 42 U.S.C. 7411(a)(4) (defining "modification"). Under that provision, even when a State rather than EPA has authority to issue PSD permits-and even though the State's decision to grant a PSD permit would be subject to judicial review in state court-Congress granted EPA itself a substantive role in overseeing state implementation. Cf. Pet. Br. 23 ("There are many 'requirements' in the Act, including in the PSD provisions, that the EPA may enforce pursuant to Sections 113(a)(5) or 167."). Indeed, Congress expanded EPA's oversight role under Section 113(a)(5) in 1990 specifically to include enforcement of the Act's PSD requirements. See p. 32, infra. Thus, if EPA finds that a State decision to issue a permit does not comply with a requirement of the PSD provisions of the Act, EPA may issue a stop-construction order under Section 113(a)(5).

2. EPA's authority under Section 167 rests on a similar foundation. Under Section 167, "[t]he Administrator shall * * * take such measures, including issuance of an order, * * * as necessary to prevent the construction or modification of a major emitting facility which does not conform to the requirements of this part" of the Act. 42 U.S.C. 7477 (emphasis added). The term "this part" refers to the provisions of the Act concerning prevention of significant deterioration of air quality in clean air areas. See 42 U.S.C. 7470-7492. Section 167 thus specifically gives to EPA-in addition to the States that have permitting authority under the Act-a substantive enforcement role with respect to construction or modification of facilities in clean air areas.

B. A Permitting Authority That Has Not Reasonably Determined The Maximum Degree Of Reduction In Pollution Achievable For A Facility Has Not Complied With The Act's BACT Requirement

EPA's ability to act in this case thus turns (under Section 113(a)(5)) on whether the Alaska permitting authority has complied with the Clean Air Act's "requirements" and (under Section 167) on whether Cominco's proposed facility would conform to the Act's "requirements." Section 165(a)(4) provides that "[n]o major emitting facility * * * may be constructed" in a clean air area "unless * * * the proposed facility is subject to the best available control technology." 42 U.S.C. 7475(a)(4). Petitioner concedes (Br. 22) that that provision imposes a "BACT requirement" that "a state-issued PSD permit contain a BACT limitation." EPA's order to stop construction therefore was authorized under Section 113(a)(5) if the State was "not acting in compliance with" the statutory BACT requirement when it issued the PSD permit, and EPA's order was authorized under Section 167 if Cominco's construction of its MG-17 generator with Low NOx would "not conform to" that requirement.

The core disagreement in this case concerns the nature of the BACT requirement. Both parties agree that a state permitting authority has the responsibility in the first instance to determine what is the best available control technology for a given proposed facility. The government's submission is that the Act requires the state permitting authority to make its BACT determination reasonably within the parameters of the statutory standards, and that, when the state authority fails to do so, EPA may enforce the Act's requirements under Sections 113(a)(5) and 167. Petitioner's view is that the state permitting authority has "sole discretion" to impose whatever emission limitations it wants under the BACT label (Br. 27) and that EPA's authority under Sections 113(a)(5) and 167 therefore does not include any substantive review of whether the State's BACT determination is reasonable or justifiable. Petitioner's position is mistaken.

1. The BACT requirement is fleshed out in a statutory definitional provision. That provision does not merely require that a State determine the "best" emission limitation, without further specification-a standard that, even had it been employed, still would not necessarily mean that petitioner had unreviewable discretion. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 411-413 (1971) (grant of authority to administrator to determine "prudent" alternative to highway route does not grant unlimited discretion). Rather, BACT is defined in pertinent part as

an emission limitation based on the maximum degree of reduction of each pollutant * * *, 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 [the] facility through application of production processes and available methods, systems, and techniques * * * for control of each such pollutant.

42 U.S.C. 7479(3). Thus, a PSD permit satisfies the BACT requirement if it provides for the "maximum degree of reduction of each pollutant" that "is achievable for [the] facility" through specific measures "for control of each such pollutant." That determination must "tak[e] into account energy, environmental, and economic impacts and other costs." The "permitting authority"-in this case, petitioner-is the entity that must make that determination, just as it must make all other determinations necessary to deciding whether a proposed PSD permit would comply with the Act.

2. Petitioner's core argument is that the statutory BACT requirement is satisfied so long as the permitting authority takes into account the specified factors and makes some determination about emission limitations, no matter how implausible. See Pet. Br. 22 ("The only 'BACT requirement' pertinent here is that a state-issued PSD permit contain a BACT limitation, determined by the State 'on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs.'"); id. at 27 ("Congress * * * vest[ed] the States with sole discretion to decide what constitutes BACT.") (emphasis added). In petitioner's view, EPA may invoke Sections 113(a)(5) and 167 only to enforce the requirement that the state permitting authority recite that it is determining the best available control technology and "tak[ing] into account" the specified factors. In petitioner's view, that is all a state permitting authority must do to satisfy the statutory BACT requirement.

Petitioner's argument is inconsistent with the plain language of the BACT definition. Under that definition, there are at least two ways in which a permitting agency might recite that it is determining BACT and taking into account the specified factors while still failing to satisfy the statutory BACT requirement.

a. First, the Act does not require merely that a permitting agency make some determination of indeterminate content regarding desirable emission reductions. Rather, the agency must make a determination of the "maximum degree of reduction of each pollutant * * * achievable" by the facility. Despite a permitting agency's incantation of the statutory BACT definition, the agency's decision might make clear that it has not actually determined the "maximum degree of reduction * * * achievable" by a facility. In such a case, although the permitting agency has made some determination, it has not made a determination of BACT.

For example, the permitting authority's reasoning may demonstrate that it applied some lower standard than the "maximum degree of reduction * * * achievable"-perhaps seeking only a degree of reduction that requires no new equipment installation, the least expensive reduction in emissions, or the like. Applying such a standard would violate the statutory BACT requirement regardless of whether the permitting agency designated it as a BACT determination.

Similarly, the state agency's decision may make clear that it was based on a desire to provide economic support to a particular company or facility by relieving it of the need to lower its emissions. Providing economic support through expenditure of state funds or exemption from purely state-law regulations may be a worthwhile state goal in a given case, but a State's decision that it wants to support an employer is not a determination of the "maximum degree of reduction" of pollutants "achievable" for the facility.

As is spelled out in additional detail below, see pp. 44-50, infra, EPA objected to the permit in this case because petitioner made the very kinds of errors outlined above. Petitioner did find that SCR is more expensive than Low NOx. But petitioner also acknowledged that, because Cominco "did not present" detailed financial information about the effect of the costs of SCR on its operations, "no judgement can be made as to the impact [of those costs] on the operation, profitability, and competitiveness of the Red Dog Mine." J.A. 207. Petitioner thus had no evidence concerning the effect of the costs of SCR on Cominco's operations or on the local community. Indeed, petitioner pointed to no evidence supporting a conclusion that the higher costs would have any adverse effect. As a result, petitioner was not in a position to determine that SCR-which concededly would assure the "maximum degree of reduction" of NOx as a technological matter-would not be "achievable" for the MG-17 generator. At most, petitioner could determine that it wanted to provide additional economic "support" to the Red Dog mine. J.A. 208. But a State may not simply choose to support a local facility by relieving it of the requirement to use the best available control technology to reduce pollution. If it does so, EPA has authority under Sections 113(a)(5) and 167 to prohibit construction of the facility.

b. In addition, the permitting agency does not satisfy the Act's requirement that it make a genuine BACT determination based on the "maximum degree of reduction * * * achievable" merely by reciting a finding that a particular technology satisfies that standard, no matter how arbitrary or unreasoned that finding is. Congress's grant of authority to make a BACT determination was directed toward a particular purpose of fundamental importance under the Act-preventing significant deterioration of air quality in clean-air areas within the State and in other neighboring States. See 42 U.S.C. 7470(3) and (4). That purpose would not be advanced by a BACT determination that arbitrarily evaluated the evidence before the permitting authority or applied the statutory criteria in an arbitrary manner that excused the applicant from installing meaningful pollution controls. Accordingly, Congress's grant of authority to make BACT determinations is limited to the authority to make reasonable BACT determinations.

This Court reached an analogous conclusion in Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498 (1990). In that case, medical care providers brought suit under 42 U.S.C. 1983 to challenge Medicaid reimbursement rates set by a State, on the ground that the rates violated a federal statute requiring States to provide for payment for medicaid services "though the use of rates * * * which the State finds * * * are reasonable and adequate" to meet certain costs. 496 U.S. at 503. The Court rejected the argument that the only right granted by the statute that was enforceable under 42 U.S.C. 1983 was "the right to compel compliance with the[] bare procedural requirement[]" that the State recite a finding that its rates are reasonable. 496 U.S. at 513. Noting that such a construction "would render the statutory requirement[] of findings * * * essentially meaningless," the Court explained that "[i]t would make little sense for Congress to require a State to make findings without requiring those findings to be correct." Id. at 514. Accordingly, the statute imposed a meaningful requirement that could be enforced under federal law.6

Similarly here, it would make little sense to require a state permitting agency to "determine" the best available control technology if the agency could do so without concern for the accuracy or statutory legitimacy of its analysis. If a permitting agency used an arbitrary methodology or disregarded clear evidence of actual costs in determining what is BACT, then the agency has not made a reasonable BACT determination and it has not complied with the statutory BACT requirement. That would be the case, for example, if a permitting agency simply decided that any technology that imposes any economic cost-even one additional dollar-is not "achievable" for a facility, even though the facility is projected to be profitable and plainly could afford a modest additional cost for pollution control. Where, as in this case, a permitting authority has not made a reasonable determination of what is the best available control technology under the statutory standards, it has failed to comply with the statutory BACT requirement, and EPA has authority under Sections 113(a)(5) and 167 to issue a stop-construction order.

c. That does not mean that a permitting authority has no ability to exercise judgment and to weigh competing considerations when it makes a BACT determination. EPA itself has consistently recognized that the Clean Air Act gives state permitting authorities considerable latitude in making such determinations.7 EPA has long taken the position that a State with an approved SIP "assumes primary responsibility for administering the PSD program," J.A. 268 (1983 EPA guidance document), and that "permitting decisions involve the exercise of judgment," J.A. 273 (1988 EPA guidance document). EPA also has recognized that "it is the state that must make the final decision on all issues relating to the specific permit" and that "[t]here is no suggestion in the Act's * * * provisions that EPA has authority to second-guess the state on matters that are a lawful and rational exercise of discretion properly conferred upon the state." J.A. 281 (quoting 1993 EPA guidance document).8

Nonetheless, EPA too has enforcement responsibility under Sections 113(a)(5) and 167. Accordingly, EPA has consistently informed the States that it will exercise its authority under those provisions if a State's "BACT determination [is] not based on a reasoned analysis." J.A. 274 (1988 EPA guidance document). See also J.A. 282 (quoting 1993 EPA guidance document) (EPA may take action if a State has not "met all procedural norms, considered all available control technologies, and given a reasoned justification for the basis of its decision."); J.A. 281 (EPA may act "to ensure that the state exercises its discretion within the bounds of the law."). It has proven to be relatively rare that a state agency has put EPA in the position of having to exercise that authority.9 But, if it does so, EPA may exercise its authority under Sections 113(a)(5) and 167 to remedy the failure.

3. a. Petitioner's argument that EPA has no authority to examine the substance of a State's BACT determination is also inconsistent with the structure and purposes of the Clean Air Act and, in particular, with its PSD provisions. Congress added those provisions in 1977. Under the 1977 amendments, as the Senate Report explained,

[t]he Administrator's role is one of monitoring State actions. States have authority to issue construction permits to new major emitting facilities in clean air areas. The Administrator thus could go to court to stop a permit for activities which would exceed the increments of pollution or which otherwise did not comply with the requirements of this section, including use of best available control technology.

S. Rep. No. 127, 95th Cong., 1st Sess. 12 (1977) (emphasis added).10 As is evident, legislators expressly contemplated, without qualification, that the BACT requirement would fall within EPA's responsibility to "monitor[] State actions." Ibid. The Report even explains how EPA should exercise its oversight role: "[t]he Administrator should tell the States the basis for his review. When asked, he should become involved at an early date in particularly difficult permit applications so that the States and localities will know of any potential differences." Ibid.11 See also H.R. Conf. Rep. No. 564, 95th Cong., 1st Sess. 153 (1977) ("The Administrator shall issue orders and seek other action to prevent issuance of an improper permit.") (emphasis added).

The legislative history of the 1990 amendments further confirms that Congress intended to give EPA a limited, but nonetheless substantive and source-specific role under the Clean Air Act. Contra Pet. Br. 33-34. Prior to 1990, EPA's authority under Section 113(a)(5) was limited to actions to remedy a State's noncompliance with a "plan provision" or other specified provisions of the Clean Air Act, and only in nonattainment areas. 42 U.S.C. 7413(a)(5) (1988). Under the 1990 amendments, Congress broadened Section 113(a)(5) to encompass a State's noncompliance with "any requirement" pertaining to new or modified major sources, including those located in clean air areas and therefore subject to PSD permits. H.R. Rep. No. 490, 101st Cong., 2d Sess. Pt. 1, at 391 (1990). Petitioner's restrictive construction would contradict Congress's purposeful expansion of EPA's authority. See Stone v. INS, 514 U.S. 386, 397 (1995) ("When Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect.").12

b. Congress had good reason to give EPA such enforcement authority. First, Congress has always recognized that, because air pollution moves easily across state lines, the Clean Air Act implicates interests that surpass those of any particular State. Indeed, Congress declared in a statutory finding that one of the purposes of preventing significant deterioration of air quality even in clean air areas was "to assure 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." 42 U.S.C. 7470(4) (emphasis added). The House Report on the 1977 amendments that added the PSD program discussed the extensive evidence that "[a]ir is no respecter of political boundaries" and explained that "while emissions 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." H.R. Rep. No. 294, 95th Cong., 1st Sess. 135 (1977). Accordingly, "[a] policy of prevention of significant deterioration which controls a new source's emissions to the maximum extent practicable will help minimize the transport and buildup of pollutants from one area to another." Ibid. To accomplish that goal, Congress did not give each individual State carte blanche to include whatever emissions limitations it wished in PSD permits, but instead required those limitations to be based on the "maximum degree of reduction in each pollutant" that is "achievable," 42 U.S.C. 7479(3) (emphasis added). And it gave EPA enforcement authority in Sections 113(a)(5) and 167 to protect the national interests that extend beyond those of any particular State. Compare Arkansas v. Oklahoma, 503 U.S. 91, 105-107 (1992).

Second, Congress intended that there be a level playing field among the States. The House Report on the 1977 amendments explained that "[t]here exists a strong incentive * * * for industry to 'shop around' for States or localities with large clean air resources and weak pollution control standards." H.R. Rep. No. 294, supra, at 133. An important congressional purpose in enacting the PSD program-including its BACT requirement-was to limit the "substantial competitive disadvantage" that could be faced by other States:

Without national guidelines for the prevention of significant deterioration a State deciding to protect its clean air resources will face a double threat. The prospect is very real that such a State would lose existing industrial plants to more permissive States. But additionally the State 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. In other words, without national guidance on prevention of significant deterioration, the very States demonstrating a concern for preserving existing clean air seriously risk having their economic base undermined.

Id. at 134. Congress therefore granted EPA authority to ensure that BACT decisions were justifiable.

C. Petitioner's Remaining Arguments That A BACT Determination Is An Entirely Subjective Or Discretionary Decision That Is Not Subject To Review Are Mistaken

1. Petitioner argues that its selection of BACT cannot be reviewed by EPA because "[d]etermining the 'best' control technology is like asking different people to pick the 'best' car," and "[s]ubstituting one decisionmaker for another may yield a different result, but not in any sense a more 'correct' one." Pet. Br. 24. In petitioner's view, "[b]ecause there is no 'correct' BACT determination for any particular source, the EPA cannot conclude that a State failed to include the 'correct' BACT limitation in a PSD permit." Id. at 24-25.

Petitioner's claim that there is no "correct" BACT determination for a particular source may or may not be right, depending on the facts. In this case, for example, it appears that both petitioner and EPA would agree that there are no more than two genuine candidates for BACT-Low NOx and SCR. Depending on the technology involved, there will likely be cases in which there is only one possibility and other cases in which there are several more.

In any event, insofar as petitioner's submission is that a state agency's BACT determination can never be said to be correct or incorrect, petitioner's own argument that its BACT determination is subject to review in state court contradicts that submission. According to petitioner (Br. 35), EPA or any other person could, "if it believed that the State had failed to adequately justify its final permit decision, challenge that decision through the State's [judicial] review process." Indeed, petitioner argues that "the need [for EPA] to correct 'unreasoned' state determinations * * * is hardly compelling, given the availability of state administrative and judicial review addressed to just that possibility." Id. at 36.

Petitioner's insistence that there could be state-court review of a BACT determination is at war with its core contention that the determination of the best available control technology is no more ascertainable than an individual's personal taste for one car over another. If a BACT determination contains the degree of unfettered discretion that petitioner asserts, then state-court review of the determination would also be doomed. Cf. Heckler v. Chaney, 470 U.S. 821, 830 (1985) ("[I]f no judicially manageable standards are available for judging how and when an agency should exercise its discretion, then it is impossible to evaluate agency action for 'abuse of discretion.'"). The prospect of state judicial review that petitioner holds out would be a chimera. In fact, however, a number of federal and state courts have reviewed BACT determinations that were made by EPA as permitting authority and by state agencies, and none has ever suggested that the matter was altogether committed to the permitting authority's discretion by law and therefore unreviewable. Cf. 5 U.S.C. 701(a)(2).13

Thus, petitioner is correct when it argues that a BACT determination can be arbitrary or otherwise contrary to law and hence subject to review by another body (state court, federal court, or EPA), and petitioner is incorrect when it argues to the contrary that the determination of BACT is so subjective, discretionary, or indeterminate that it can never be said to be correct or incorrect. Congress anchored the BACT requirement in terms-"best available," "maximum degree of reduction * * * achievable," "production processes" and "techniques * * * for control," etc.-that impose substantive limitations on a permitting authority. If a state permitting authority applies those terms in an unjustifiable fashion, EPA may invoke Sections 113(a)(5) and 167.

2. Petitioner's claim that a determination of BACT is entirely subjective or discretionary is also based on a faulty understanding of the relationship among the various requirements of the PSD program. To obtain a PSD permit, the owner of a proposed facility must demonstrate that its emissions will not "cause, or contribute to" emissions in excess of an "increment"-a "maximum allowable increase or maximum allowable concentration for any pollutant." 42 U.S.C. 7475(a)(3). That "increment" requirement is independent of the requirement that the facility be "subject to the best available control technology for each pollutant." 42 U.S.C. 7475(a)(4). Accordingly, even if a proposed facility will not cause emissions in excess of the increments-indeed, even if all new facilities in the State will indisputably not cause emissions in excess of the increments-the state agency must still determine what is the "maximum degree of reduction of each pollutant * * * achievable" for each individual facility and limit its emissions accordingly.

The increment provisions of the Act do place an overall limit on the number and types of permits a State can grant in the aggregate. But, contrary to petitioner's argument that a State may determine BACT simply by dividing up the allowable increments among facilities as it sees fit, see Pet. Br. 17, 24, compliance with the overall increment limitations does not establish that the State has satisfied the separate BACT requirement for each facility.14

3. Similarly unsupportive of petitioner's restrictive reading of EPA's oversight authority is Section 165(a)(8) of the Clean Air Act. See Pet. Br. 25. That provision contains another PSD permit requirement, one with limited applicability to "a source which proposes to construct in a class III area"-a classification that no State has ever used. 42 U.S.C. 7475(a)(8). That Congress required EPA affirmatively to "approve[] the determination" of BACT in a permit for that discrete subset of new sources (i.e., sources in Class III areas that pollute in excess of the applicable increment for Class II areas) before the permit becomes effective does not mean it intended to bar EPA oversight of BACT determinations affecting all other clean air areas. Rather, it was logical for Congress to provide EPA with a general oversight role with respect to PSD permits while at the same time to increase the level of oversight, through a requirement of prior approval, in the special circumstances in Section 165(a)(8).

4. Petitioner contends (Br. 27) that precluding any substantive EPA review of a State's BACT determination would carry through the "basic division of responsibilities" between the federal and state governments that this Court recognized in Train. That case concerned the limits on a State's authority under the Clean Air Act to fashion an implementation plan (SIP) to reach the national ambient air quality standards that EPA had set. The Court explained that "[t]he Act gives the [EPA] no authority to question the wisdom of a State's choices of emission limitations [in a SIP] if they are part of a plan which satisfies the [Act's] standards." 421 U.S. at 79. Petitioner argues that a similar principle should grant States "sole discretion" (Br. 27) to determine BACT for a facility.

Even on its own terms, Train does not support petitioner's argument. Train recognized that, although States have a primary role in determining how to satisfy national ambient air quality standards, the EPA retains "a secondary role in the process of determining and enforcing the specific, source-by-source emission limitations which are necessary if the national standards it has set are to be met." 421 U.S. at 79. It is just such a secondary, backstop role that EPA has played in this case. Cf. id. at 93-94 n.28 (noting that Congress "charged [EPA] with the administration of the Act[] and made [it] ultimately responsible for the attainment and maintenance of the national standards"). That scheme is in keeping with the plan of "cooperative federalism," New York v. United States, 505 U.S. 144, 167-168 (1992), that Congress put in place in the Clean Air Act. Indeed, it is petitioner's view, which would deprive EPA of any significant role in the BACT process, that violates the principles of cooperative federalism embodied in the Act.

In any event, Train addressed the provisions of the Act concerning state plans for implementing national ambient air quality standards set by EPA and EPA's ability to review such plans. See 42 U.S.C. 7410(a)(2). In that context, Congress gave the States substantial discretion to develop their own mix of emission limitations to meet the EPA-specified national standards in light of the States' own "particular situation[s]," 421 U.S. at 79, while at the same time granting EPA authority to reject a state plan if the State has acted outside the range of discretion accorded it by proposing a plan that does not meet the national standards. This case concerns entirely different, source-specific requirements of the Act that were added in 1977, after Train, and bear no similarity in wording, structure, or context to the provisions at issue in Train. Nonetheless, the principles of cooperative federalism play out here as well. In the PSD program, Congress granted the States substantial latitude to exercise the judgment necessary to determine BACT under the governing standards in the Act, while also vesting EPA with authority in Section 113(a)(5) and Section 167 (which was especially directed toward the PSD program) to enforce the BACT requirement in the unusual case in which a State acts outside the range of permissible judgments.

5. Finally, petitioner argues (Br. 36) that EPA's exercise of authority in this case would "improperly shift[] the burden of persuasion from the EPA to the States," because federal-court review of whether EPA's action is supportable will replace state-court review of whether petitioner's decision was supportable. Petitioner's quarrel, however, is not with EPA's authority in this case, but with Congress's decision to enact Sections 113(a)(5) and 167, and thereby to vest EPA with oversight authority in cases in which a State has failed to comply with the Act's requirements. It naturally follows from those provisions that there will be at least some cases in which a state permitting authority's failure to comply with the requirements of the Act will be potentially subject to several alternative avenues of review: (a) review in state court, (b) exercise by EPA of its authority under Sections 113(a)(5) and 167 to issue a stop-construction order, followed by federal court review of EPA's action, or (c) an EPA suit for injunctive relief directly in federal court under those same provisions. Congress's enactment of Sections 113(a)(5) and 167 demonstrates that it specifically intended the latter two forms of review, and petitioner's complaints about those features of the Act should be addressed to Congress.

Petitioner itself acknowledges that such parallel avenues of review properly may take place under Sections 113(a)(5) and 167. Petitioner notes that there are "many [Clean Air Act] requirements, including in the PSD provisions, that the EPA may enforce pursuant to Sections 113(a)(5) or 167." Pet. Br. 23. It is common ground that EPA may act, for example, if "the State issued a permit allowing emissions to exceed available increments," see Pet. Br. 25, even though decisions about whether a facility will exceed the increments may involve complex and controversial judgment calls. Petitioner thus acknowledges that in such a case, the state permitting agency's permit would be reviewable, as here, in alternative ways: either by judicial review in state court, or by EPA's exercise of its independent enforcement responsibility. If such a scheme is workable in the case of a state permit that allows emissions in excess of the allowable increments, it is equally workable here. Nor is it difficult for a federal court, reviewing an EPA order, to take into account that the state permitting authority retains discretion and that EPA's action may be sustained only if its determination that the state agency acted outside its zone of reasonable discretion is supported. See Pet. App. 10a; cf. Air Line Pilots Ass'n v. O'Neill, 499 U.S. 65, 78 (1991) (courts must recognize "wide range of reasonableness" within which unions act in evaluating certain duty of fair representation claims).

D. The Court Should Defer To EPA's Interpretation That It Is A "Requirement" Of The Clean Air Act That States Make Reasonable BACT Determinations

If there is any doubt about the meaning of the Clean Air Act in this case, EPA's construction of the Act to require permitting authorities to make reasonable BACT determinations is entitled to deference under Chevron U.S.A, Inc. v. NRDC, 467 U.S. 837 (1984).

1. This Court has "recognized a very good indicator of delegation meriting Chevron treatment in express congressional authorizations to engage in the process of * * * adjudication that produces regulations or rulings for which deference is claimed." United States v. Mead Corp., 533 U.S. 218, 229 (2001). Just such a delegation is at issue here. EPA acted in this case pursuant to the express conferral of authority in Sections 113(a)(5) and 167 to make findings and issue orders when a State fails to "act[] in compliance with any requirement" of the Act, 42 U.S.C. 7413(a)(5), or a facility fails to "conform to the requirements of" the PSD program, 42 U.S.C. 7477. Indeed, Congress provided that States must transmit copies of PSD permit applications to EPA "and provide notice to [EPA] of every action related to the consideration of such permit," 42 U.S.C. 7475(d)(1), in part so that EPA may effectively exercise its authority under Sections 113(a)(5) and 167. Congress necessarily intended that EPA would have to construe and apply the Clean Air Act in taking action under those express delegations, and EPA's construction of the Clean Air Act underlying the orders is therefore entitled to Chevron deference.

Moreover, as explained above, see pp. 16-17, supra, EPA's orders in this case have "the force of law," a factor that this Court has found to support Chevron deference for agency interpretations. Christensen v. Harris County, 529 U.S. 576, 587 (2000); see Mead, 533 U.S. at 230. Those orders are not analogous to "interpretations contained in policy statements, agency manuals, and enforcement guidelines" that "are beyond the Chevron pale." Mead, 533 U.S. at 234.

2. EPA's construction of the Clean Air Act to require permitting authorities not merely to make some BACT determination, but also to make reasonable BACT determinations, was embodied in the orders in this case. In those orders, EPA invoked Sections 113(a)(5) and 167 as the sources of its authority,15 and the orders were based on the premise that a State's BACT determination must be reasonable and supported by the record. See J.A. 150 ("[Petitioner's] record simply does not support its decision that BACT for * * * MG-17 is low NOx controls rather than SCR."). Additionally, the administrative record here is replete with EPA's interpretation of the scope of Sections 113(a)(5) and 167 as granting EPA authority to enforce the statutory BACT requirement when state permitting authorities make arbitrary or unreasoned BACT determinations. J.A. 137, 148-149, 261-262, 292-293, 295-296, 302. Accordingly, EPA's construction of the Act in these orders to require that BACT determinations be reasonable is entitled to Chevron deference.

3. Other factors that this Court has discussed in deciding whether an agency's interpretation of a statute is entitled to Chevron deference are also present here. EPA's position is "longstanding" and reflects a "careful consideration * * * over a long period of time," Barnhart v. Walton, 122 S. Ct. 1265, 1270, 1272 (2002), and it has remained "consistent[]," Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 417 (1993). EPA guidance documents dating from as long ago as 1983 reflect the same basic interpretation as the Agency employed here. See p. 29, supra. Moreover, EPA has presented that same interpretation in notice-and-comment rulemaking proceedings approving various States' PSD programs. See 57 Fed. Reg. 28,095 (1992); 58 Fed. Reg. 10,961 (1993); 63 Fed. Reg. 13,796 (1998). For example, in responding to comments that Virginia should not receive EPA's approval to run a PSD program, EPA assured the public that "it has a responsibility to insure that all States properly implement their preconstruction permitting programs." Id. at 13,796. At the same time, however, EPA reiterated the need to accord appropriate deference to the States: "EPA may not intrude upon the significant discretion granted to states * * * and will not 'second guess' state decisions." Id. at 13,797. As EPA noted, it "will review the process followed by the permitting authority in determining [BACT] * * * to ensure * * * any determination * * * was made on reasonable grounds properly supported on the record." Ibid.

4. Finally, the Agency's interpretation addresses an issue within its expertise and one with "importance * * * to administration of the statute." Barnhart, 122 S. Ct. at 1272. The question whether a State's determinations of the best available control technology for new facilities are subject to EPA oversight is not only of great importance to residents of the State itself. It also is of substantial importance to residents of neighboring States that may suffer from increased air pollution, and still other States that must compete for new facilities with a State that has adopted an arbitrarily lenient standard for BACT. If there is any doubt whether the Clean Air Act requires that a State make its BACT determination reasonably, EPA's construction of the Act to encompass that requirement should be conclusive.16

III. THE COURT OF APPEALS CORRECTLY SUSTAINED EPA'S CONCLUSION THAT PETITIONER MADE AN UNREASONABLE BACT DETERMINATION

A. Petitioner argues (Br. 39-48) that even if EPA has statutory authority to issue a stop-construction order based on a state permit's failure to comply with BACT, it erred in doing so in this case. That issue falls outside the question of statutory construction presented in the certiorari petition (Pet. i):

Whether the Ninth Circuit erred in upholding the EPA's assertion of authority to second-guess a permitting decision made by the State of Alaska-which had been delegated permitting authority under the Clean Air Act, 42 U.S.C. §§ 7401 et seq.-in conflict with decisions of this Court and other federal courts of appeals establishing the division of federal-state jurisdiction under the Act and similar statutory programs.

The petition fairly poses the question whether EPA has statutory authority under Sections 113(a)(5) and 167 to review the substance of state BACT determinations and to act accordingly. The petition does not, however, present any question concerning whether, if EPA does have such authority, it was properly exercised in this case. Although the petition later, in a single sentence in the "Statement," mentions that the court of appeals "went on to hold that the EPA's issuance of the orders [in this case] was not arbitrary or capricious," Pet. 12, it contains no further mention of that point. Moreover, it could not fairly be said that EPA's analysis of the particular factual record in this case is "in conflict with decisions of this Court and other federal courts of appeals establishing the division of federal-state jurisdiction under the Act and similar statutory programs." Pet. i. Accordingly, the question whether EPA's orders in this particular case were adequately supported by the record is not fairly included in the question presented and should not be addressed by this Court. Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 42 n.5 (1998).

B. In any event, EPA properly found that petitioner had not reasonably justified its determination that Low NOx was the best available control technology for MG-17. See Pet. App. 13a-16a.

1. The record is uncontradicted that SCR "is the most stringent control technology available for large diesel-fired generators," J.A. 80, and requiring it would result in "the maximum degree of reduction of" nitrogen oxide. 42 U.S.C. 7479(3). With SCR, MG-17 would emit only 53 tons of NOx per year. J.A. 198. It would emit 10 times that level-531 tons per year-under a permit that allowed Low NOx. Ibid.

Petitioner asserts that, "because Cominco had agreed to install Low NOx on all its generators," petitioner's "permit decision was expected to result in lower overall NOx emissions than would occur if SCR * * * were installed on only the MG-17 generator." Pet. Br. 13; see also id. at 4, 42 n.12; Cominco Br. 4; North Dakota, et al. Amicus Br. 14. That contention is mistaken, and it is inconsistent with the conclusions that petitioner itself reached in issuing the permit.

First, petitioner concluded in its Final Technical Report that, "[o]f the Wartsila generators at the Red Dog Mine, only unit MG-17 requires BACT," J.A. 232, and whatever low emission parts Cominco may install on "existing, unmodified engines * * * is not a consideration of the BACT review." J.A. 199 (emphasis added); see also J.A. 111-112 (same). That conclusion was correct. The plain terms of the Clean Air Act require that a State determine and apply the best available control technology for each "major emitting facility" that is "constructed," 42 U.S.C. 7475(a)(1). Neither a facility owner nor a State may avoid the BACT requirement for a new facility by arguing that some other control technology will be used on some other facility.

Second, the permit issued by petitioner plainly allows much greater emissions of nitrogen oxide than a permit requiring the use of SCR on the MG-17 generator. The permit "retain[ed]" the limit on nitrogen oxide emissions from the pre-existing generators that had already been imposed in the operating permits for those generators. J.A. 239. Indeed, those pre-existing limits had to be retained, without regard to any BACT determination for any generator, old or new, so that the facility would not exceed the applicable increments-a requirement that petitioner concedes to be binding on the States and enforceable by EPA. J.A. 237. Therefore, Cominco must ensure that the existing generators remain within the pre-existing limits, regardless of what pollution control device-Low NOx or SCR-is required on MG-17. Cominco may of course choose to install Low NOx on the existing generators in order to increase electricity production without exceeding the pre-existing limits on emissions of nitrogen oxide. Nothing in the permit, however, requires Cominco to do so, much less to reduce their overall emissions to offset added emissions from MG-17. As a result, petitioner's determination that Cominco may use Low NOx rather than SCR on MG-17 plainly allows substantially greater emissions from the Red Dog Mine.

2. There is no suggestion in the record that petitioner should have rejected SCR on account of "energy" or "environmental * * * impacts." 42 U.S.C. 7479(3). See, e.g., J.A. 200-203 (rejecting Cominco's arguments concerning such impacts); see also Pet. Br. 40 ("ADEC discounted Cominco's claim that energy or environmental impacts warranted eliminating SCR."). In fact, petitioner specifically rejected Cominco's efforts to "reduce the stringency of BACT" by reliance on the mine's compliance with other air quality standards, J.A. 200, and even found that "it is likely that the NOx emission reductions resulting from [SCR] will improve workplace conditions." J.A. 201.

3. Nor does the record on which petitioner's decision was based reveal any reasoned basis to conclude that a limitation based on SCR was not "achievable for such facility" due to "economic impacts and other costs." 42 U.S.C. 7479(3). Petitioner and its engineer initially concluded that SCR was "economically feasible" for MG-17. J.A. 65. Further evincing SCR's economic feasibility is the world-wide pervasiveness of that technology. See, e.g., J.A. 102 ("SCR has been installed on similar diesel-fired engines throughout the world."); J.A. 234 ("The Department has permitted projects [in Alaska] requiring SCR."); J.A. 289-291.17

Petitioner asserts that its BACT determination was correct because the cost of SCR-approximately $2,100 per ton of NOx removed, see J.A. 204-was higher than the cost of controls in recent BACT determinations it had made of $0 to $936 per ton of NOx removed. Pet. Br. 40. See J.A. 205-206. Not even Cominco, however, had placed reliance on those "installations," see R. 44- 011, 45-034, 45-043, and petitioner itself commented that "[t]he cited examples of engines permitted in Alaska without requiring SCR are not valid examples as they either took place over 18 months ago or were not used for similar purposes." J.A. 233-234; see also R. 21-018 ("[N]one of the decisions cited by Cominco are similar to the case at hand.").

Moreover, even if the "recent BACT decisions" cited by petitioner had any instructive value,18 the record does not support petitioner's dismissal of higher-cost examples within the State. J.A. 115, 205. As petitioner itself noted with respect to a prior permit decision, "the Yukon Pacific Corporation permit included a gas/diesel-fired boiler and heaters with costs at $2,900 and $7,000, respectively, per ton of NOx removed," and the estimated cost of SCR for Cominco falls well below either figure. R. 21-019.19

Ultimately, petitioner rested its BACT analysis on an analogy to rural electric utilities in Alaska. Petitioner stated that "[i]f [Cominco] did not have a powerhouse, it would probably buy power from a rural Alaska utility." J.A. 206. Petitioner reasoned that, because what it termed a "cursory review" revealed that the average cost of electricity for such rural utilities is 15 cents per kilowatt hour and the use of SCR would increase that by 3 cents, SCR "would be equivalent to a 20% increase in the electric rate of the facility." J.A. 206. Petitioner concluded that "this is a disproportionate cost increase when viewed as an electric utility." J.A. 206 (emphasis added). Cominco, however, is not a rural utility and it does not compete with rural utilities. Moreover, the economic impact of a requirement that a rural Alaska utility use SCR on a new generator could be far different than the economic impact of a requirement that Cominco do so on the new generator at its mine. Indeed, no facts exist to suggest that the "economic impact[]" of the incrementally higher cost of SCR on the world's largest producer of zinc concentrates would be anything like its impact on a rural, non-profit utility that must pass costs on to a small base of individual consumers. 42 U.S.C. 7479(3); J.A. 116, 207.

4. The best demonstration that petitioner unreasonably selected Low NOx over SCR for MG-17 is found in its own final BACT determination:

The Red Dog Mine plays a unique and continuing impact on the economic diversity of this region. Therefore, the Department has chosen to consider the direct cost of SCR technology and its relationship to retaining the Mine's world competitiveness as it relates to community socioeconomic impacts for the foremost consideration to judge economic impacts of SCR. To support Cominco's Red Dog Mine Production Rate Increase Project, and its contributions to the region, the Department has rejected Selective Catalytic Reduction controls based on excessive economic cost * * *.

J.A. 208. Assuming that "retaining the Mine's world competitiveness as it relates to community socioeconomic impacts" could properly be the "foremost consideration" in petitioner's BACT determination, the record provides no support whatever for the proposition that requiring the use of SCR would either affect the "Mine's world competitiveness" or have significant "community socioeconomic impacts." Petitioner acknowledged that, although the "better way to determine if the cost of BACT is excessive" would be "for the applicant to present detailed financial information showing its effect on the operation," Cominco "did not present this information." J.A. 207. Petitioner therefore acknowledged that "no judgment can be made as to the impact of [the costs of SCR] on the operation, profitability, and competitiveness of the Red Dog Mine." J.A. 207.20 If it was impossible to make a judgment about the effect of requiring SCR on the "operation, profitability, and competitiveness" of the mine, it was also impossible to make a resulting judgment about its effect on the mine's "world competitiveness" or local "socioeconomic impact[]." J.A. 207. Petitioner could not possibly have articulated a "rational connection between the facts found and the choice made" because Cominco did not provide the requisite "facts" to depart from the "maximum degree of [NOx] reduction." 42 U.S.C. 7479(3); Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Ins. Co., 463 U.S. 29, 43 (1983) (citation omitted).

As the court of appeals appropriately observed, petitioner's BACT decision underscores one of the reasons why Congress intended EPA to have oversight authority-"to protect states from industry pressure to issue ill-advised permits." Pet. App. 16a. Based on this "available information" from the record, 42 U.S.C. 7413(a)(5), EPA acted reasonably in issuing the finding of noncompliance to petitioner and the administrative orders to Cominco to prevent the construction of a major new source of air pollution.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

THEODORE B. OLSON
Solicitor General
KELLY A. JOHNSON
Acting Assistant Attorney
General
EDWIN S. KNEEDLER
Deputy Solicitor General
JAMES A. FELDMAN
Assistant to the Solicitor
General
ANDREW J. DOYLE
Attorney

ROBERT E. FABRICANT
General Counsel
CAROL S. HOLMES
JULIANE R.B. MATTHEWS
Attorneys
Environmental Protection
Agency

JULY 2003

1 BACT review is required if modification of a particular facility would lead to a specified increase in emissions. See R. 33-016 (Table 2.3-1 showing Alaska PSD permit needed if NOx emissions will be increased by 40 tons per year or greater); 40 C.F.R. 51.166(b)(23)(i) (state SIPs must have 40-ton-per-year threshold for NOx increase). Initially, as a result of Cominco's planned increases in electricity generation from those generators that would lead to increased emissions, there was disagreement about the content of a BACT determination for MG-5 and the need for a BACT determination for MG-1, MG-3, and MG-4. See J.A. 128-129. In October 1999, Cominco revised its proposal to install Low NOx on those generators and thereby increase electricity production while not increasing emissions. See J.A. 149. The revision required Cominco to abide by the emission limitations in the pre-existing permits for those generators. See p. 9, infra. The case now concerns only the BACT limitation on the new generator, MG-17.

2 Although the Sixth Circuit's opinion does not specify the nature of the federal-state dispute, the briefs in Allsteel reveal that it included the validity of Tennessee's BACT determination.

3 The Eleventh Circuit noted that EPA may issue orders under Section 113(a)(5) "on the basis of any available information," 42 U.S.C. 7413(a)(5), and the court appears to have believed that that language mandated an exceptionally lax standard of judicial review of EPA orders. See 2003 WL 2145251, at *5, *16, *18. The "any available information" clause, however, does not alter the standard of review when EPA's orders are challenged; it simply means that EPA need not apply judicial rules of evidence in determining whether there has been a violation of the Act that warrants issuance of an order. Cf. 18 U.S.C. 3661 ("No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for purposes of imposing an appropriate sentence."); Sentencing Guidelines § 1B1.4 (similar).

4 Petitioner has not presented any question in this case about the adequacy of EPA's procedures under the Due Process Clause or the APA.

5 The Clean Air Act itself vests courts of appeals with original jurisdiction to review certain enumerated actions of EPA and "any other final action" it takes. 42 U.S.C. 7607(b)(1). Thus, apart from constitutional or prudential limitations such as standing, "finality" is the only jurisdictional inquiry under the Act. See Allsteel, 25 F.3d at 314. Other environmental statutes, such as the Clean Water Act, 33 U.S. 1251 et seq., and the Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq., generally do not comprehensively provide for judicial review, and review accordingly often takes place in district courts pursuant to the APA. The APA provides that an agency action may be "final" yet still statutorily unreviewable on other grounds, such as if the statute under which the agency acts "preclude[s] judicial review." 5 U.S.C. 701(a)(1). Courts have generally found that pre-enforcement review of EPA orders under those other environmental statutes is precluded within the meaning of the APA. See, e.g., Southern Ohio Coal Co. v. Office of Surface Mining, Reclamation & Enforcment, 20 F.3d 1418, 1426 (6th Cir. 1994); Southern Pines Assocs. v. United States, 912 F.2d 713, 716 (4th Cir. 1990); Hoffman Group, Inc. v. EPA, 902 F.2d 567, 568 (7th Cir. 1990); Ross Incineration Servs. v. Browner, 118 F. Supp. 2d 837, 843-845, 847 (N.D. Ohio 2000); Amoco Oil Co. v. EPA, 959 F. Supp. 1318, 1323-1324 (D. Colo. 1997). The Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601 et seq., contains an express bar to pre-enforcement review. Cf. Lloyd A. Fry Roofing Co. v. EPA, 554 F.2d 885 (8th Cir. 1977) (finding pre-enforcement review under the Clean Air Act precluded prior to the 1977 addition of the "any other final agency action" language to Section 7607(b)(1)).

6 The result in this case follows a fortiori from Wilder. Wilder involved the question whether the members of a particular class were intended to be beneficiaries of a right under a federal statute such that they could sue to enforce that right under Section 1983. As the Court concluded in Gonzaga University v. Doe, 536 U.S. 273, 283 (2002), the demanding standards governing implication of private rights of action under federal statutes apply to such uses of Section 1983 by private plaintiffs. No such demanding standard applies to the construction of EPA's express authority under Sections 113(a)(5) and 167 to enforce the requirements of the PSD provisions of the Clean Air Act.

7 See also, e.g., Pet. App. 10a ("state has discretion to make BACT determinations"); Northern Plains Res. Council v. EPA, 645 F.2d 1349, 1358-1362 (9th Cir. 1981) (affirming BACT determination because permitting authority "exercised reasoned discretion"); Alabama Power, 636 F.2d at 409 ("permitting authority * * * may exercise reasonable discretion" in determining BACT).

8 EPA recognized that scope of state authority in this case by making clear, for example, that petitioner could come into compliance by "satisfactorily document[ing] why SCR is not BACT for the Wartsila diesel generator." Pet. App. 36a, 48a, 61a. See also J.A. 150 (EPA is "available to review and consider any additional information or analyses * * * to support a determination that SCR is not BACT").

9 There are only two other reported judicial decisions that involve stop-construction orders because of faulty BACT determinations. See Allsteel, supra (recital only that there was faulty PSD permit, but record reveals that fault was in part in BACT determination); Solar Turbines, supra.

10 Although the passage quoted in the text identifies one measure ("go[ing] to court") that EPA may take under 42 U.S.C. 7477 to prevent construction of a non-conforming facility, Section 7477 more generally authorizes EPA to "take such measures" as are necessary, specifically "including issuance of an order, or seeking injunctive relief."

11 The record here shows that EPA followed this roadmap by communicating its concerns about Cominco's amended application. EPA's prompt actions here also belie predictions by petitioner and its amici that affirming the judgment below would necessarily allow EPA enforcement action initiated long after construction is completed. See, e.g., Pet. Br. 35; Nat'l Envtl. Dev. Ass'n, et al. Br. 10; N.D., et al. Br. 15. This case, which involves pre-construction orders issued by EPA, furnishes no occasion to consider the circumstances under which EPA might appropriately act post-construction. Cf., e.g., United States v. Murphy Oil USA, Inc., 155 F. Supp. 2d 1117, 1123 (W.D. Wis. 2001) (rejecting source operator's reliance on state-issued PSD permit because operator failed to submit relevant information to permitting authority). As a matter of policy, EPA takes account of equitable concerns in issuing orders. See J.A. 273. District courts also may consider the equities in fashioning "appropriate relief," 42 U.S.C. 7413(b), and EPA's failure to act in a timely manner would in many cases be an important equitable factor for the court to consider. 42 U.S.C. 7413(b).

12 Also in 1990, Congress enacted an operating-permit program under which EPA has even greater source-specific responsibilities than under the preconstruction programs. See 42 U.S.C. 7661-7661f.

13 See Northern Plains, 645 F.2d at 1350-1352, 1358-1362 (EPA-issued permit); Sur Contra La Contaminacion v. EPA, 202 F.3d 443, 448 (1st Cir. 2000) (EPA as permitting authority); Citizens for Clean Air v. EPA, 959 F.2d 839 (9th Cir. 1992) (EPA as permitting authority, with State agency as delegatee); Plumbers & Steamfitters, Local 52 v. Alabama Dep't of Envtl. Mgmt., 647 So. 2d 793 (Ala. Civ. App. 1994) (state permitting authority); In re Pennsauken Solid Waste Mgmt. Auth., 569 A.2d 826 (N.J. Super. Ct. App. Div. 1990) (EPA as permitting authority, with state agency having been delegated some authority).

14 Petitioner errs in arguing that BACT determinations are categorically different from "objective" decisions about whether a facility will satisfy the increments. Nearly every part of a PSD permit decision involves the exercise of sometimes complex judgment on the part of the permitting authority, such as the determination of whether emissions from the new source would "cause, or contribute" to pollution in excess of the applicable increment. 42 U.S.C. 7475(a)(3); see 42 U.S.C. 7410(j) (owner of facility must show "to the satisfaction of the permitting authority" that facility will satisfy performance standards, including increments). Yet it is uncontested that "EPA has authority under the [Act] to prevent or to correct a violation of the increments." Alabama Power, 636 F.2d at 361; Pet. Br. 25.

15 Pet. App. 26a, 29a-30a, 35a-36a (¶¶ 1-2, 19-20, 46-47); id. at 38a, 41a-42a, 47a, 49a (¶¶ 1-2, 18-19, 42, 48-50); id. at 51a, 54a-55a, 60a, 62a (¶¶ 1-2, 18-19, 42, 48, 51-52).

16 This Court has made clear that development of an agency's views in a formal rulemaking proceeding is not necessary for Chevron deference. See, e.g., Edelman v. Lynchburg Coll., 122 S. Ct. 1145, 1150 (2002); Mead, 533 U.S. at 231. Nor, in the absence of rulemaking, is a formal adjudication a prerequisite to Chevron deference. See id. at 231-232 & n.13 (discussing Nations Bank v. Variable Annuity Life Ins. Co., 513 U.S. 251, 256-257 (1995). Formal adjudication under 5 U.S.C. 554 and 556 is designed to guarantee certain procedures for the determination of facts in particular types of cases; it does not have a direct bearing on how an agency interprets applicable law. See also Martin v. OSHRC, 499 U.S. 144, 156-157 (1991) (according deference to interpretation reflected in administrative complaint). Under the Clean Air Act, Congress has contemplated that EPA will render decisions on numerous issues without a formal adjudication. See PPG Indus., 446 U.S. at 587-589. But even if EPA's interpretation were ineligible for Chevron-level deference, it has the "power to persuade" under Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), because of the Agency's "thoroughness," "validity of * * * reasoning," and "consistency."

17 Because SCR is so pervasive, including in cold climates, petitioner's selected excerpts (see Br. 44-45) from EPA's New Source Review Workshop Manual do not help its cause. A fair reading of the cited portion of the guidance is that the more a "control alternative" is "effectively employed in the same source category," the harder it is generally to eliminate that level of control on the basis of an "economic impact." R. 71-115. That reading is confirmed by petitioner's own acknowledgment that Cominco bore the burden of showing "compelling and atypical energy, environmental, or economic * * * circumstances specific to a facility [that] constrain it from using [] the most effective technology"-a burden that Cominco failed to discharge. J.A. 178.

18 Because the record does not reveal the dates of those BACT decisions, it is not clear whether they have any precedential relevance. See R. 22-031 to 22-033. As petitioner itself noted, "18 months is the timeframe over which BACT decisions are rendered stale under both state and federal PSD regulations." R. 21-014. Relying on other BACT decisions standing alone is also problematic because, as both EPA and petitioner pointed out, cost-effectiveness is not always calculated or published. See J.A. 127, 205.

19 While this analysis is from an internal memorandum, petitioner incorporated that analysis by reference into its final response to comments. See J.A. 236 n.31.

20 Petitioner cannot now suggest that it considered Cominco's bare assertion of an impact to be sufficient (Pet. Br. 41); it contemporaneously stressed an inability "to verify [the] claim." R. 22-002. Additionally, while the Red Dog Mine is an important employer in the region (Pet. Br. 9, 10, 46), there is no record evidence that requiring SCR would compromise even a single job.

APPENDIX

1. Section 101 of the Clean Air Act, 42 U.S.C. 7401, provides in relevant part:

7401. Congressional findings and declaration of purpose

(a) Findings

The Congress finds-

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(3) that air pollution prevention (that is, the reduction or elimination, through any measures, of the amount of pollutants produced or created at the source) and air pollution control at its source is the primary responsibility of States and local governments; and

(4) that Federal financial assistance and leadership is essential for the development of cooperative Federal, State, regional, and local programs to prevent and control air pollution.

(b) Declaration

The purposes of this subchapter are-

(1) to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population;

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(c) Pollution prevention

A primary goal of this chapter is to encourage or otherwise promote reasonable Federal, State, and local governmental actions, consistent with the provisions of this chapter, for pollution prevention.

2. Section 107 of the Clean Air Act, 42 U.S.C. 7407, provides in relevant part:

7407. Air quality control regions

(a) Responsibility of each State for air quality; submission of implementation plan

Each State shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State by submitting an implementation plan for such State which will specify the manner in which national primary and secondary ambient air quality standards will be achieved and maintained within each air quality control region in each State.

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(d) Designations

(1) Designations generally

(A) Submission by Governors of initial designations following promulgation of new or revised standards

By such date as the Administrator may reasonably require, * * * the Governor of each State shall (and at any other time the Governor of a State deems appropriate the Governor may) submit to the Administrator a list of all areas (or portions thereof) in the State, designating as-

(i) nonattainment, any area that does not meet (or that contributes to ambient air quality in a nearby area that does not meet) the national primary or secondary ambient air quality standard for the pollutant,

(ii) attainment, any area (other than an area identified in clause (i)) that meets the national primary or secondary ambient air quality standards for the pollutant, or

(iii) unclassifiable, any area that cannot be classified on the basis of available information as meeting or not meeting the national primary or secondary ambient air quality standard for the pollutant.

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(B) Promulgation by EPA of designations

(i) * * * [T]he Administrator shall promulgate the designations of all areas (or portions thereof) submitted under subparagraph (A) as expeditiously as practicable * * * *

(ii) In making the promulgations required under clause (i), the Administrator may make such modifications as the Administrator deems necessary to the designations of the areas (or portions thereof) submitted under subparagraph (A) (including to the boundaries of such areas or portions thereof). * * * *

3. Section 110 of the Clean Air Act, 42 U.S.C. 7410, provides in relevant part:

§ 7410. State implementation plans for national primary and secondary ambient air quality standards

(a) Adoption of plan by State; submission to Administrator; content of plan; revision; new sources; indirect source review program; supplemental or intermittent control systems

(1) Each State shall * * * adopt and submit to the Administrator * * * a plan which provides for implementation, maintenance, and enforcement of such primary standard in each air quality control region (or portion thereof) within such State. In addition, such State shall adopt and submit to the Administrator * * * a plan which provides for implementation, maintenance, and enforcement of such secondary standard in each air quality control region (or portion thereof) within such State. * * * *

(2) * * * * Each such plan shall -

(A) include enforceable emission limitations and other control measures, means, or techniques * * * as may be necessary or appropriate to meet the applicable requirements of this chapter; * * *

(C) include a program to provide for the enforcement of the measures described in subparagraph (A), and regulation of the modification and construction of any stationary source within the areas covered by the plan as necessary to assure that national ambient air quality standards are achieved, including a permit program as required in parts C and D of this subchapter; * * * *

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(c) Preparation and publication by Administrator of proposed regulations setting forth implementation plan; transportation regulations study and report; parking surcharge; suspension authority; plan implementation

(1) The Administrator shall promulgate a Federal implementation plan at any time within 2 years after the Administrator -

(A) finds that a State has failed to make a required submission or finds that the plan or plan revision submitted by the State does not satisfy the minimum criteria established under subsection (k)(1)(A) of this section, or

(B) disapproves a State implementation plan submission in whole or in part,

unless the State corrects the deficiency, and the Administrator approves the plan or plan revision, before the Administrator promulgates such Federal implementation plan.

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(j) Technological systems of continuous emission reduction on new or modified stationary sources; compliance with performance standards

As a condition for issuance of any permit required under this subchapter, the owner or operator of each new or modified stationary source which is required to obtain such a permit must show to the satisfaction of the permitting authority that the technological system of continuous emission reduction which is to be used will enable such source to comply with the standards of performance which are to apply to such source and that the construction or modification and operation of such source will be in compliance with all other requirements of this chapter.

4. Section 113 of the Clean Air Act, 42 U.S.C. 7413, provides in relevant part:

§ 7413. Federal Enforcement

(a) In general

(1) Order to comply with SIP

Whenever, on the basis of any information available to the Administrator, the Administrator finds that any person has violated or is in violation of any requirement or prohibition of an applicable implementation plan or permit, the Administrator shall notify the person and the State in which the plan applies of such finding. At any time after the expiration of 30 days following the date on which such notice of a violation is issued, the Administrator may * * *

(A) issue an order requiring such person to comply with the requirements or prohibitions of such plan or permit,

(B) issue an administrative penalty order in accordance with subsection (d) of this section, or

(C) bring a civil action in accordance with subsection (b) of this section.

(2) State failure to enforce SIP or permit program

Whenever, on the basis of information available to the Administrator, the Administrator finds that violations of an applicable implementation plan or an approved permit program under subchapter V of this chapter are so widespread that such violations appear to result from a failure of the State in which the plan or permit program applies to enforce the plan or permit program effectively, the Administrator shall so notify the State. * * * * During the period beginning with such public notice and ending when such State satisfies the Administrator that it will enforce such plan or permit program (hereafter referred to in this section as "period of federally assumed enforcement"), the Administrator may enforce any requirement or prohibition of such plan or permit program with respect to any person by-

(A) issuing an order requiring such person to comply with such requirement or prohibition,

(B) issuing an administrative penalty order in accordance with subsection (d) of this section, or

(C) bringing a civil action in accordance with subsection (b) of this section.

(3) EPA enforcement of other requirements

Except for a requirement or prohibition enforceable under the preceding provisions of this subsection, whenever, on the basis of any information available to the Administrator, the Administrator finds that any person has violated, or is in violation of, any other requirement or prohibition of this subchapter, section 7603 of this title, subchapter IV-A, subchapter V, or subchapter VI of this chapter, including, but not limited to, a requirement or prohibition of any rule, plan, order, waiver, or permit promgulated, issued, or approved under those provisions or subchapters, * * * the Administrator may-

(A) issue an administrative penalty order in accordance with subsection (d) of this section,

(B) issue an order requiring such person to comply with such requirement or prohibition,

(C) bring a civil action in accordance with subsection (b) of this section or section 7605 of this title, or

(D) request the Attorney General to commence a criminal action in accordance with subsection (c) of this section.

(4) Requirements for orders

An order issued under this subsection * * * shall not take effect until the person to whom it is issued has had an opportunity to confer with the Administrator concerning the alleged violation. A copy of any order issued under this subsection shall be sent to the State air pollution control agency of any State in which the violation occurs. Any order issued under this subsection shall state with reasonable specificity the nature of the violation and specify a time for compliance which the Administrator determines is reasonable, taking into account the seriousness of the violation and any good faith efforts to comply with applicable requirements. * * * * No order issued under this subsection shall prevent the State or the Administrator from assessing any penalties nor otherwise affect or limit the State's or the United States authority to enforce under other provisions of this chapter, nor affect any person's obligations to comply with any section of this chapter or with a term or condition of any permit or applicable implementation plan promulgated or approved under this chapter.

(5) Failure to comply with new source requirements

Whenever, on the basis of any available information, the Administrator finds that a State is not acting in compliance with any requirement or prohibition of the chapter relating to the construction of new sources or the modification of existing sources, the Administrator may-

(A) issue an order prohibiting the construction or modification of any major stationary source in any area to which such requirement applies;

(B) issue an administrative penalty order in accordance with subsection (d) of this section, or

(C) bring a civil action under subsection (b) of this section.

Nothing in this subsection shall preclude the United States from commencing a criminal action under subsection (c) of this section at any time for any such violation.

(b) Civil judicial enforcement

The Administrator shall, as appropriate, in the case of any person that is the owner or operator of an affected source, a major emitting facility, or a major stationary source, and may, in the case of any other person, commence a civil action for a permanent or temporary injunction, or to assess and recover a civil penalty or not more than $25,000 per day for each violation, or both, in any of the following instances:

(1) Whenever such person has violated, or is in violation of, any requirement or prohibition of an applicable implementation plan or permit. * * * *

(2) Whenever such person has violated, or is in violation of, any other requirement or prohibition of this subchapter * * * including, but not limited to, a requirement or prohibition of any rule, order, waiver, or permit promulgated, issued, or approved under this chapter * * * *

(3) Whenever such person attempts to construct or modify a major stationary source in any area with repect to which a finding under subsection (a)(5) of this section has been made.

Any action under this subsection may be brought in the district court of the United States for the district in which the violation is alleged to have occurred, or is occurring, or in which the defendant resides, or where the defendant's principal place of business is located, and such court shall have jurisdiction to restrain such violation, to require compliance, to assess such civil penalty, * * * and to award any other appropriate relief. Notice of the commencement of such action shall be given to the appropriate State air pollution control agency. * * * *

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(e) Penalty assessment criteria

(1) In determining the amount of any penalty to be assessed under this section or section 7604(a) of this title, the Administrator or the court, as appropriate, shall take into consideration (in addition to such other factors as justice may require) the size of the business, the economic impact of the penalty on the business, the violator's full compliance history and good faith efforts to comply, the duration of the violation as established by any credible evidence * * *, payment by the violator of penalties previously assessed for the same violation, the economic benefit of noncompliance, and the seriousness of the violation. * * * *

5. Section 116 of the Clean Air Act, 42 U.S.C. 7416, provides:

§ 7416. Retention of State authority.

Except as otherwise provided in sections 1857c-10(c), (e), and (f) (as in effect before August 7, 1977), 7543, 7545(c)(4), and 7573 of this title (preempting certain State regulation of moving sources) nothing in this chapter shall preclude or deny the right of any State or political subdivision thereof to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution; except that if an emission standard or limitation is in effect under an applicable implementation plan or under section 7411 or section 7412 of this title, such State or political subdivision may not adopt or enforce any emission standard or limitation which is less stringent than the standard or limitation under such plan or section.

6. Section 160 of the Clean Air Act, 42 U.S.C. 7470, provides:

§ 7470. Congressional declaration of purpose

The purposes of this part [Part C-Prevention of Significant Deterioration of Air Quality] are as follows:

(1) to protect public health and welfare from any actual or potential adverse effect which in the Administrator's judgment may reasonably be anticipate [sic] to occur from air pollution or from exposures to pollutants in other media, which pollutants originate as emissions to the ambient air[], notwithstanding attainment and maintenance of all national ambient air quality standards;

(2) preserve, protect, and enhance the air quality in national parks, national wilderness areas, national monuments, national seashores, and other areas of special national or regional natural, recreational, scenic , or historic value;

(3) to insure that economic growth will occur in a manner consistent with the preservation of existing clean air resources;

(4) to assure 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; and

(5) to assure that any decision to permit increased air pollution in any area to which this section applies is made only after careful evaluation of all the consequences of such a decision and after adequate procedural opportunities for informed public participation in the decisionmaking process.

7. Section 161 of the Clean Air Act, 42 U.S.C. 7471, provides:

§ 7471. Plan requirements

In accordance with the policy of section 7401(b)(1) of this title, each applicable implementation plan shall contain emission limitations and such other measures as may be necessary, as determined under regulations promulgated under this part, to prevent significant deterioration of air quality in each region (or portion thereof) designated pursuant to section 7407 of this title as attainment or unclassifiable.

8. Section 162 of the Clean Air Act, 42 U.S.C. 7472, provides in relevant part:

§ 7472. Initial classifications

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(b) Areas designated as class II

All areas in such State designated pursuant to section 7407(d) of this title as attainment or unclassifiable which are not established as class I under subsection (a) of this section shall be class II areas unless redesignated under section 7474 of this title.

9. Section 165 of the Clean Air Act, 42 U.S.C. 7475(a), provides in relevant part:

§ 7475. Preconstruction requirements

(a) Major emitting facilities on which construction is commenced

No major emitting facility * * * may be constructed in any area to which this part applies unless-

(1) a permit has been issued for such proposed facility in accordance with this part setting forth emission limitations for such facility which conform to the requirements of this part;

(2) the proposed permit has been subject to a review in accordance with this section, the required analysis has been conducted in accordance with regulations promulgated by the Administrator, and a public hearing has been held with opportunity for interested persons including representatives of the Administrator to appear and submit written or oral presentations on the air quality impact of such source, alternatives thereto, control technology requirements, and other appropriate considerations;

(3) the owner or operator of such facility demonstrates, as required pursuant to section 7410(j) of this title, that emissions from construction or operation of such facility will not cause, or contribute to, air pollution in excess from construction or operation of such facility will not cause, or contribute to, air pollution in excess of any (A) maximum allowable increase or maximum allowable concentration for any pollutant in any area to which this part applies more than one time per year, (B) national ambient air quality standard in any air quality control region, or (C) any other applicable emission standard or standard of performance under this chapter;

(4) the proposed facility is subject to the best available control technology for each pollutant subject to regulation under this chapter emitted from, or which results from, such facility;

(5) the provisions of subjection (d) of this section with respect to protection of class I areas have been complied with for such facility;

(6) there has been an analysis of any air quality impacts projected for the area as a result of growth associated with such facility;

(7) the person who owns or operates, or proposes to own or operate, a major emitting facility for which a permit is required under this part agrees to conduct such monitoring as may be necessary to determine the effect which emissions from any such facility may have, or is having, on air quality in any area which may be affected by emissions from such source; and

(8) in the case of a source which proposes to construct in a class III area, emissions from which would cause or contribute to exceeding the maximum allowable increments applicable in a class II area and where no standard under section 7411 of this title has been promulgated subsequent to August 7, 1977, for such source category, the Administrative has approved the determination of best available control technology as set forth in the permit.

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(c) Permit applications

Any completed permit application under section 7410 of this title for a major emitting facility in any area to which this part applies shall be granted or denied not later than one year after the date of filing of such completed application.

(d) Action taken on permit applications; notice; adverse impact on air quality related values; variance; emission limitations

(1) Each State shall transmit to the Administrator a copy of each permit application relating to a major emitting facility received by such State and provide notice to the Administrator of every action related to the consideration of such permit.

(2)(A) The Administrator shall provide notice of the permit application to the Federal Land Manager and the Federal official charged with direct responsibility for management of any lands within a class I areas which may be affected by emissions from the proposed facility.

(B) The Federal Land Manager and the Federal official charged with direct responsibility for management of such lands shall have an affirmative responsibility to protect the air quality related values (including visibility) of such lands within a class I area and to consider, in consultation with the Administrator, whether a proposed major emitting facility will have an adverse impact on such values.

(C)(i) In any case where the Federal official charged with direct responsibility for management of any lands within a class I area or the Federal Land Manager of such lands, or the Administrator, or the Governor of an adjacent State containing such a class I area files a notice alleging that emissions from a proposed major emitting facility may cause or contribute to a change in the air quality in such area and identifying the potential adverse impact of such change, a permit shall not be issued unless the owner or operator of such facility demonstrates that emissions of particular matter and sulfur dioxide will not cause or contribute to concentrations which exceed the maximum allowable increases for a class I area.

(ii) In any case where the Federal Land Manager demonstrates to the satisfaction of the State that the emissions from such facility will have an adverse impact on the air quality-related values (including visibility) of such lands, notwithstanding the face that the change in air quality resulting from emissions from such facility will not cause or contribute to concentrations which exceed the maximum allowable increases for a class I area, a permit shall not be issued.

(iii) In any case where the owner or operator of such facility demonstrates to the satisfaction of the Federal Land Manager, and the Federal Land Manager so certifies, that the emissions from such facility will have no adverse impact on the air quality-related values of such lands (including visibility), notwithstanding the fact that the change in air quality resulting from emissions from such facility will cause or contribute to concentrations which exceed the maximum allowable increases for class I areas, the State may issue a permit.

10. Section 167 of the Clean Air Act, 42 U.S.C. 7477, provides:

§ 7477. Enforcement

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, or which is proposed to be constructed in any area designated pursuant to section 7407(d) of this title as attainment or unclassifiable and which is not subject to an implementation plan which meets the requirements of this part.

11. Section 169 of the Clean Air Act, 42 U.S.C. 7479, provides in relevant part:

§ 7479. Definitions

For purposes of this part -

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(3) the term "best 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 through application of production processes and available methods, systems, and techniques, including fuel cleaning, clean fuels, or treatment or innovative fuel combustion techniques for control of each such pollutant. In no event shall application of "best available control technology" result in emissions of any pollutants which will exceed the emissions allowed by any applicable standard established pursuant to section 7411 or 7412 of this title. Emissions from any source utilizing clean fuels, or any other means, to comply with this paragraph shall not be allowed to increase above levels that would have been required under this paragraph as it existed prior to enactment of the Clean Air Amendments of 1990.

12. Section 7607(b) of the Clean Air Act, 42 U.S.C. 7607(b), provides in pertinent part:

(b) Judicial review

(1) * * * A petition for review of the Administrator's action in approving or promulgating any implementation plan under section 7410 of this title or section 7411(d) of this title, any order under section 7411(j) of this title, under section 7412 of this title, under section 7419 of this title, or under section 7419 of this title, or under section 7420 of this title, or his action under section 1857c-10(c)(2)(A), (B), or (C) of this title (as in effect before August 7, 1977) or under regulations thereunder, or revising regulations for enhanced monitoring and compliance certification programs under section 7414(a)(3) of this title, or any other final action of the Administrator under this chapter (including any denial or disapproval by the Administrator under subchapter I of this chapter) which is locally or regionally applicable may be filed only in the United States Court of Appeals for the appropriate circuit. * * *

(2) Action of the Administrator with respect to which review could have been obtained under paragraph (1) shall not be subject to judicial review in civil or criminal proceedings for enforcement. * * *