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Kennecott Copper Corp. v. EPA

Citation: 2 ELR 20116
No. No. 71-1410, 462 F.2d 846/3 ERC 1682/(D.C. Cir., 02/18/1972)

In setting secondary ambient air quality standards for oxides of sulfur, the Administrator of the Environmental Protection Agency must disclose the basis of his decision for the standard he selects. The Clean Air Act Amendments of 1970 state that those air quality standards must be "based on" Criteria prepared by EPA (or by the Department of Health, Education and Welfare for Criteria issued before the 1970 amendments) and the plaintiffs concede that the Administrator may add an additional "margin of error." But the court will be unable to determine whether the Administrator abused his discretion or made an error of law unless he sets forth more fully how he arrived at the standard. The Administrator must supply a fuller statement, but this requirement will be viewed with the Congressionally decreed haste in mind in determining what the Administrator must do to comply with the court's order.

Counsel for Plaintiff
William H. Dempsey, Jr.
David W. Miller
Shea & Gardner
734 Fifteenth Street, N.W.
Washington, D.C. 20005

Counsel for E.P.A.
Raymond N. Zagone
Department of Justice
Washington, D.C. 20530

Counsel for Intervenors
Richard E. Ayres
The Project on Clean Air
Natural Resources Defense Council, Inc.
36 West 44th Street
New York, New York 10036

Richard B. Herzog
Newmont Mining Corporation and Magna Copper Company
Covington & Burling
888 Sixteenth Street, N.W.
Washington, D.C. 20006

Before Wright, Tamm and Leventhal, C.J.J.