Alaska Dept. of Environmental Conservation v. EPA, 540 U.S. 461, 2 (2004)

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tial PSD permit authorized five diesel electric generators, MG-1 through MG-5, subject to operating restrictions. Under a second PSD permit issued in 1994, Cominco added a sixth generator, MG-6. In 1996, Cominco initiated a project to expand zinc production by 40% and applied to ADEC for a PSD permit to allow, inter alia, increased electricity generation by MG-5. ADEC preliminarily proposed as BACT for MG-5 an emission control technology known as selective catalytic reduction (SCR), which reduces nitrogen oxide emissions by 90%. Amending its application, Cominco added a seventh generator, MG-17, and proposed, as BACT, an alternative control technology—Low NOx— that achieves a 30% reduction in nitrogen oxide pollutants. In May 1999, ADEC issued a first draft PSD permit and preliminary technical analysis report, concluding that Low NOx was BACT for MG-5 and MG-17. ADEC identified SCR as the most stringent technology then technically and economically feasible. ADEC nevertheless endorsed Cominco's proffered emissions-offsetting alternative of fitting MG-17 and all six existing generators with Low NOx, rather than fitting MG-5 and MG-17 with SCR. This proposal, ADEC submitted, would achieve a maximum NOx reduction similar to the reduction SCR could achieve, and was logistically and economically less onerous for Cominco. In July 1999, EPA objected that ADEC had identified SCR as the best control technology, but failed to require it as BACT. ADEC responded with a second draft PSD permit and technical analysis report in September 1999, again finding Low NOx to be BACT for MG-17. ADEC's second draft abandoned that agency's May 1999 emissions-offsetting justification. ADEC further conceded that, lacking data from Cominco, it could make no judgment as to SCR's impact on the mine's operation, profit-ability, and competitiveness. It nonetheless concluded, contradicting its earlier finding that SCR was technically and economically feasible, that SCR imposed "a disproportionate cost" on the mine. In support of this conclusion, ADEC analogized the mine to a rural utility that would have to increase prices were it required to use SCR. Protesting that Cominco had not adequately demonstrated site-specific factors supporting the assertion of SCR's economical infeasibility, EPA suggested that ADEC include an analysis of SCR's adverse economic impacts on Cominco. Expressing confidentiality concerns, Cominco declined to submit financial data. In December 1999, ADEC issued a final permit and technical analysis report approving Low NOx as BACT for MG-17. Again conceding that it made no judgment as to SCR's impact on the mine's operation, profitability, and competitiveness, ADEC advanced, as cause for its decision, SCR's adverse effect on the mine's unique and continuing impact on the region's economic diversity and the venture's "world competitiveness." ADEC reiterated its rural Alaska utility

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