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ASARCO, Inc. v. EPA

Citation: 8 ELR 20164
No. Nos. 76-1030, -1037, 578 F.2d 319/11 ERC 1129/(D.C. Cir., 01/27/1978) Majority opinion

The court holds invalid portions of the Environmental Protection Agency (EPA) regulations that adopt the "bubble concept" for determining whether a modification in or addition to an existing plant is subject to new source performance standards under § 111 of the Clean Air Act. According to this concept, new source performance standards do not apply if the net emissions from the entire plant do not increase as a result of the addition or modification to a portion of it. An examination of the statutory language shows that EPA's attempt to expand the statutory definition of a stationary source as a single building or facility to include a combination of facilities such as an entire plant must be rejected. Moreover, the new source performance standards are designed to enhance air quality, while applying the bubble concept would allow operators to avoid installing the best pollution control technology on an altered facility as long as the emissions from the entire plant do not increase. Nor can the bubble concept be justified by an asserted need to provide greater flexibility in applying the new source performance standards to modified facilities since the record does not support this contention. The regulations are therefore remanded to EPA for further consideration.

Counsel for Petitioners ASARCO, Newmont Mining Corp., and Magma Copper Corp.
Ralph J. Moore, Jr., Frederick C. Schafrick, Robert E. Denham
Shea & Gardner
Walker Bldg., Washington DC 20005
(202) 737-1255

Counsel for Petitioner Sierra Club
John D. Hoffman
Ellman, Passovoy & Burke
1 Ecker Bldg., Suite 210, Ecker & Stevenson Sts.,
San Francisco CA 94105
(415) 777-2727

Ronald J. Wilson
810 18th St. NW, Washington DC 20006
(202) 628-3160

Counsel for Respondent
William L. Want
Land & Natural Resources Division
Department of Justice, Washington DC 20530
(202) 737-8200

Gerald K. Gleason, Office of General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Before WRIGHT, LEVENTHAL, and MacKINNON, Circuit Judges.