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Kennecott Corp. v. EPA

Citation: 12 ELR 21037
No. No. 80-2036, 684 F.2d 1007/17 ERC 1833/(D.C. Cir., 07/30/1982)

The court invalidates in part the Environmental Protection Agency's (EPA's) regulations governing nonferrous smelter orders (NSOs) under § 119 of the Clean Air Act. An NSO allows the use of a combination of continuous emission controls and dispersion techniques to achieve the national ambient air quality standards, instead of the continuous controls on all emissions generally required by the Act. The court first rules that EPA's eligibility test, under which a smelter could qualify for an NSO only if full continuous emission controls would be so costly as to economically warrant closure of the plant, violates § 119(b)(3). That section directs EPA to allow an NSO if continuous controls are not "reasonably available," and its legislative history indicates that Congress intended a less stringent standard than a "closure" test in determining eligibility for an NSO. Nor does the relevant case law dictate a contrary conclusion. The court holds, however, that the conditions placed on the operation of a smelter covered by an NSO are reasonable and supported by the record. The court upholds the constitutionality of § 110(a)(6) of the Act, which prohibits reductions in smelter employees' pay as a result of the use of dispersion techniques under the terms of an NSO. The court also rules that EPA erred in determining that molybdenum roasters are not nonferrous smelters under § 119. The literal meaning of the term "nonferrous smelter" governs absent a clear indication that Congress intended to give it a special definition.

EPA also violated § 307(d) by failing to place in the rulemaking docket material explaining the basis for its NSO eligibility test and by failing to allow public comment on economic forecast data prior to finalizing the rule. Under § 307(d) a petition for reconsideration is not an adequate substitute for the opportunity to comment on data critical to the impact of the regulation.

Counsel for Petitioners Kennecott Corp. et al.
Alfred V. J. Prather, Carl B. Nelson Jr., Richard T. Witt, Edwin H. Seeger
Prather, Seeger, Doolittle & Farmer
1101 16th St. NW, Washington DC 20036
(202) 296-0500

Counsel for Petitioners ASARCO,M Inc. et al.
David Booth Beers, Frederick C. Schafrick, Nancy C. Shea, James E. Kaplan, Lucinda M. Finley
Shea & Gardner
1800 Massachusetts Ave. NW, Washington DC 20036
(202) 828-2000

Counsel for Respondent
Robert M. Perry, General Counsel; Todd M. Joseph, Ass't General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 382-4134

Donald W. Stever Jr., Patrick J. Cafferty
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5290

Before: TAMM and ROBB, Circuit Judges, andMARKEY,* Chief Judge, United States Court of Customs and Patent Appeals.