Alaska Dept. of Environmental Conservation v. EPA, 540 U.S. 461, 12 (2004)

Page:   Index   Previous  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  Next

472

ALASKA DEPT. OF ENVIRONMENTAL CONSERVATION v. EPA

Opinion of the Court

violated the NAAQS for [nitrogen dioxide] now meet that standard." EPA, Latest Findings on National Air Quality 7 (Aug. 2003).

Section 165 of the Act, 42 U. S. C. 7475, installs a permitting requirement for any "major emitting facility," defined to include any source emitting more than 250 tons of nitrogen oxides per year, 7479(1). No such facility may be constructed or modified unless a permit prescribing emission limitations has been issued for the facility. 7475(a)(1); see 7479(2)(C) (defining "construction" to include "modification"). Alaska's SIP imposes an analogous requirement. 18 Alaska Admin. Code 50.300(c)(1) (2003). Modifications to major emitting facilities that increase nitrogen oxide emissions in excess of 40 tons per year require a PSD permit. 40 CFR 51.166(b)(23)(i) (2002); 18 Alaska Admin. Code 50.300(h)(3)(B)(ii) (2003).

The Act sets out preconditions for the issuance of PSD permits. Inter alia, no PSD permit may issue unless "the proposed facility is subject to the best available control technology for each pollutant subject to [CAA] regulation . . . emitted from . . . [the] facility." 42 U. S. C. 7475(a)(4). As described in the Act's definitional provisions, "best available control technology" (BACT) 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 . . . . 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

Page:   Index   Previous  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  Next

Last modified: October 4, 2007