Red Dog mine case to be argued before U.S. Supreme Court

State is appealing ruling forcing mine to use expensive technology

Posted: Wednesday, October 08, 2003

The U.S. Supreme Court is hearing the Red Dog mine case today in a proceeding Alaska state officials say is an important states' rights issue.

The state is appealing a U.S. District Court ruling that forced the Red Dog mine to use expensive anti-pollution technology in its power generation. The state filed a lawsuit more than two years ago when it was unable to reach an agreement with the U.S. Environmental Protection Agency on clean-air rules associated with the addition of a new diesel generator at the mine. It lost an appeal in the 9th U.S. Circuit Court of Appeals.

Teck Cominco Inc., which operates the zinc and lead mine 90 miles north of Kotzebue in partnership with the regional Native corporation, wanted to add a seventh generator. The state required the company to refit all its generators with a system for cutting nitrogen oxide emissions. The EPA overruled that and mandated newer technology on the new generator, but no modifications of any of the old ones.

Alaska Attorney General Gregg Renkes said the EPA's requirement was more costly and less effective than the technology the state had required, but the case is not about anti-pollution technology. He said it is about a state's right to determine its best pollution-control strategy, taking into account local conditions and parameters.

"What this case is about is the authority delegated to the states by Congress in the Clean Air Act to make the local decisions about the proper pollution-control strategy to achieve the national ambient-air-quality standards set by the EPA," Renkes said Tuesday from Washington, D.C.

Renkes said it doesn't make sense for a state to expend resources on issuing permits, or for permit applicants to go through the state's regulatory process, if the EPA can overrule the state's decision.

But the EPA maintains that its regulations give it the authority to overrule state permit requirements.

"The EPA position is that even if a permit is issued by the state, if we don't believe that it conforms with federal policy, rules, regulations and standards, we have the ability to override it," said Greg Kellogg, deputy director of the EPA's Alaska operations office. "Our regulations are quite clear and that's why the state did not prevail in federal district court."

Jonathan Franklin, a Washington, D.C., attorney, is arguing the case on the state's behalf. Renkes also will be present at the counsel table.



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