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ASARCO, Inc. v. EPA

Citation: 8 ELR 20277
No. Nos. 76-1030, -1037, 578 F.2d 319/11 ERC 1129/(D.C. Cir., 01/27/1978) Opinion concurring in part, dissenting in part

In a separate opinion, Judge MacKinnon dissents in part from the court's decision, 8 ELR 20164, that the Environmental Protection Agency (EPA) is without authority under the Clean Air Act to use the "bubble concept" in applying new source performance standards to modifications at existing facilities. In his view, the EPA Administrator does have authority, within the broad grant of discretion given him by § 111 of the Act, to promulgate regulations effectively exempting certain modified stationary sources from the new source performance standards. Directly disagreeing with the majority opinion, he concludes that Congress intended the term "facility" to include whole plants and that EPA's use of the bubble concept was necessary to counterbalance the agency's restrictive definition of affected facilities as constitutent part of plants. He also suggests that this case presents problems of ripeness and standing.

Counsel are listed at 8 ELR 20164.

Opinion by MacKinnon, J., concurring in part and dissenting in part.

Before WRIGHT, LEVENTHAL and MacKINNON, Circuit Judges.

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