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Kennecott Copper Corp. v. EPA

Citation: 10 ELR 20415
No. Nos. 75-1878 et al., 612 F.2d 1232/17 ERC 1921/(10th Cir., 12/10/1979)

The Tenth Circuit Court of Appeals rejects a number of specific challenges to the Environmental Protection Agency's (EPA's) effluent limitations for the mining industry. A petitioner that did not participate in the rule making is not barred from seeking review of particular issues that were raised by other participants in those proceedings. The court concludes that its challenges are meritless, however, because EPA's data base for its regulations regarding the uranium and radium industry was adequate, and the Agency gave sufficient consideration to the cost of these limitations. The court similarly upholds the limitations on copper effluent from flotation mills after determining that petitioner had meaningful notice and opportunity to comment and that the Agency's explanation of the basis for the limitations and its consideration of costs were adequate. The court holds further that the effluent limitations for mills and mine drainage facilities in the base and precious metals subcategory are supported by adequate and accurate data in the record, an adequate explanation of the methodology by which they were developed, including EPA's selection of exemplary sources, and a sufficient consideration of costs. The court declines to invalidate the limitations because another petitioner's mine differs markedly in geologic condition and volume of water flow from EPA's exemplary mines, noting that an application for a variance in a later permit proceeding is the proper avenue for seeking consideration of such "fundamentally different" features of a particular source. Finally, the court upholds EPA's establishment of a zero discharge standard for gold and silver cyanidation mills, its subcategorization of the gold industry, and its consideration of non-water quality impacts and costs.

Counsel for Petitioners
Edwin H. Seeger
Prather, Seeger, Doolittle & Farmer
1101 16th St. NW, Washington DC 20036
(202) 296-0500

John C. Kapsner
Kapsner & Kapsner
418 E. Rosser Ave., Bismarck ND 58501
(701) 258-0630

Kenneth R. Myers
Morgan, Lewis & Bockius
123 S. Broad St., Philadelphia PA 19109
(215) 491-9200

Carl A. Calvert
Poole, Tinnin & Martin
8th Floor, Bank of New Mexico Bldg., Albuquerque NM 87103
(505) 842-8155

Counsel for Respondent
Mark R. Sussman, Sanford Sagalkin, Angus Macbeth
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2752

Barry S. Neuman, Steven Schatzow
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-0753

Before SETH, Chief Judge, and McWILLIAMS and DOYLE, Circuit Judges.