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ELR Citation: 10 ELR 20433
Nos. No. 77-2822, 616 F.2d 1153/14 ERC 1340/(9th Cir., 04/14/1980)

The Ninth Circuit Court of Appeals invalidates as arbitrary and capricious an Environmental Protection Agency (EPA) order requiring the installation of a sampling station in the tall stack of a copper smelter in Hayden, Arizona. The court of appeals first rules that the district court improperly considered expert testimony and documents outside the administrative record for the purpose of judging the wisdom of the EPA order rather than merely reviewing them as background information or for ascertaining whether relevant procedural requirements were fulfilled. Nonetheless, a review of the administrative record leads the court of appeals to conclude that EPA in fact arrived at the stack testing requirement in an arbitrary manner. Specifically, the record does not disclose a reasoned scientific and technical basis for concluding that significant amounts of new particulates are formed in the stack or that there are inherent structural defects in the existing sampling facilities. Moreover, the plant owner was never given an opportunity to respond to the single consultant's report upon which the Agency's conclusion on the latter of these two points was based. The order is therefore vacated and remanded.

Counsel for Appellants
Todd M. Joseph
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-0726

Counsel for Appellee
Newman R. Porter
Evans, Kitchel & Jenckes
363 N. First Ave., Phoenix AZ 85003
(602) 262-8811

Before PECK* and TANG, Circuit Judges.**