Kamp v. Hernandez

No. 83-7183 (9th Cir. December 11, 1985)

The court modifies its earlier opinion holding that the Environmental Protection Agency correctly approved an Arizona state implementation plan (SIP) provision imposing variable emission limitations on copper smelters, 15 ELR 20216, to clarify that the SIP had not been submitted or approved under the Clear Air Act's Part D.

Counsel for Petitioner
Robert E. Yuhnke
Environmental Defense Fund, Inc.
1405 Arapahoe, Boulder CO 80302
(303) 440-4901

Counsel for Respondents
F. Henry Habicht II, Ass't Attorney General; Jose R. Allen, David Dearing
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

Counsel for Intervenors
Newman R. Porter
Evans, Kitchel & Jenckes
2600 N. Central Ave., Suite 1900, Phoenix AZ 85004-3099
(602) 234-2600

Before Fletcher and Canby Jr., JJ.

[16 ELR 20250]

Fairchild^*:

The opinion in this case, filed February 5, 1985, and appearing at 752 F.2d 1444, is modified as follows:

The following sentence, appearing as the second-to-last sentence on page 1453, is deleted:

The implementation plan involved in this case has nothing to do with the concerns of Part D: its objective is to bring existing sources of SO₂ pollution into compliance with the NAAQSs, not to allow for the construction of new major sources of emissions.

In place of the deleted sentence, the following two sentences are substituted:

The implementation plan in this case was not submitted or approved as a Part D plan. It was submitted as an original plan to bring existing sources of SO₂ pollution into compliance with the NAAQSs.

* The Honorable Thomas E. Fairchild, United States Circuit Judge for the Seventh Circuit, sitting by designation.