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Kennecott Copper Corp. v. Train

Citation: 7 ELR 20299
No. No. LV 76-195, 424 F. Supp. 1217/9 ERC 1593/(D. Nev., 11/24/1976)

The court preliminarily enjoins the Environmental Protection agency (EPA) Administrator from enforcing the current Nevada air quality implementation plan against a copper smelter for which the state has granted a one-year variance of the plan's continuous emission control requirement. The court rules that it has jurisdiction over this action under § 304(a)(2) of the Clean Air Act. The 60-day notice requirement is not jurisdictional and in any event was met in this case because EPA had actual notice of plaintiff's intention to sue. EPA misreads the relevant judicial precedents in contending that the Clean Air Act requires continuous emission controls in all circumstances. An examination of the case law leads the court to conclude that other supplemental control techniques may be used when it is determined by the proper state authority that continuous control systems are economically infeasible. Nevada made such a determination in this case before issuing the one-year variance, and plaintiff is thus likely to succeed on the merits of its suit.

Counsel for Plaintiff
Jon R. Collins
Lionel, Sawyer & Collins
1700 Valley Bank Bldg., 300 S. 4th St., Las Vagas NV 89101
(702) 385-2188

Clarence E. Horton
777 Aultman St., Ely NV 89301
(702) 289-4431

Counsel for Defendants
Lawrence J. Semenza, U.S. Attorney
Box 16030, Las Vegas NV 89101
(702) 385-6336

Johh E. Varnum
Department of Justice, Washington DC 20530
(202) 737-8200

Counsel for Amicus Curiae State of Nevada
Robert List, Attorney General
Supreme Court Bldg., Carson City NV 89701
(702) 885-4170