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Bunker Hill Co. v. EPA

Citation: 7 ELR 20681
No. No. 75-3670, 572 F.2d 1286/10 ERC 1401/(9th Cir., 07/05/1977)

Finding for respondent on various legal and procedural issues in this challenge to the Environmental Protection Agency's (EPA) rejection of Idaho's proposed implementation plan measures for controlling sulfur oxide emissions from petitioner's smelting plant, the court nonetheless remands the agency's substitute regulations for reconsideration of the technological feasibility of certain modifications they would necessitate in plant operations. It is well settled that the national ambient air quality standards must be met with constant emissions controls to the maximum extent technologically feasible. Petitioner errs in contending that the state's failure to require the installation of sulfur burners conclusively establishes their technological infeasibility. The court expressly disapproves the recent district court decision in Kennecott Copper Corp. v. Train, 7 ELR 20299, to the extent it holds that such a state infeasibility determination is binding on EPA. A review of EPA's administrative record on the feasibility issue shows that the agency's rejection of the state plan was arbitrary and capricious, however. The agency failed to demonstrate that its sulfur burner proposal is other than "purely theoretical or experimental" because it failed to produce evidence that such burners are currently used by acid plants with input problems similar to those of petitioner's plant or convincing expert testimony as to the burners' feasibility. The court also rules that EPA's disapproval of the state's proposed 30-day investigation period for violations of primary standards in the vicinity of the plant on the ground that it would interfere with proper enforcement of the ambient air quality standards was a reasonable exercise of discretion. The court furthermore orders that petitioner have an opportunity to cross-examine EPA's experts on sulfur burners on remand, and directs the agency to proceed on an accelerated schedule on remand.

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

Counsel for Respondent
Jerome Ostrov
Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 755-2500

Before SNEED and KENNEDY, Circuit Judges, and SNEED and KENNEDY, Circuit Judges, and POOLE,* District Judge.