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Kennecott Copper Corp. v. Train

Citation: 6 ELR 20102
No. No. 75-1335, 526 F.2d 1149/8 ERC 1497/(9th Cir., 11/28/1975)

The Environmental Protection Agency did not err in interpreting the Clean Air Act to require that national air quality standards be met, whenever possible, by continuous emission limitations such as stack gas scrubbers. Intermittent controls such as plant shutdowns or switching to low sulfur fuels, and dispersion systems such as tall stacks, can only be used in addition to continuous emission controls, or when such controls are not economically feasible. EPA's interpretation is supported by the language and legislative history of both the Clean Air Act and the Energy Supply and Environmental Coordination Act of 1974, by the Supreme Court's decision in Train v. Natural Resources Defense Council, and by rulings in the Fifth and Sixth Circuits. The agency's view is also consonant with the non-degradation policy implicit in the Clean Air Act. The court therefore upholds EPA's order requiring petitioner to undertake a research program to improve continuous emission control technology, and to adopt such technology as soon as it becomes available and economically possible for use at petitioner's Nevada smelter until full compliance with national air quality standards is achieved entirely by means of continuous emission reduction. Petitioner's fears that the smelter will have to close because of the research program are unreasonable, since the EPA plan requires the same immediate capital outlay as the state plan with which Kennecott has agreed it can comply, and since the agency cannot require future capital investments for the installation of continuous emission control systems unless it can show such outlays to be economically feasible.

Counsel for Petitioner
Alfred V. J. Prather
Prather, Levenberg, Seeger, Doolittle, Farmer & Ewing
1101 16th Street, N.W.
Washington, DC 20036
(202) 296-0500

Counsel for Respondent
Charles W. Shipley
Pollution Control Section
Department of Justice
Washington, DC 20530
(202) 739-5125

Counsel for Intervenor State of Navada
Matthew Feiertag, Deputy Attorney General
211 S. Fall Street
Carson City, NV 89701
(702) 885-4170

Counsel for Plaintiff
Bradford H. Brinton
Front Street
Keeseville, NY 12944
(518) 834-7900

Counsel for Defendants
Louis J. Lefkowitz, Attorney General
Stanley Fishman
Murray Susswein
The Capitol
Albany, NY 12224
(518) 474-2121

For himself, Tuttle* and Koelsch, JJ.