Anaconda Company v. Ruckelshaus

• Decision Date: 19 December 1972
• Docket Number: Civ. A. No. C-4362.
• Citation: 352 F. Supp. 697
• Parties: The ANACONDA COMPANY, a Montana corporation, Plaintiff, v. William D. RUCKELSHAUS, Administrator of the United States Environmental Protection Agency, et al., Defendants.
• Court: U.S. District Court — District of Colorado

352 F. Supp. 697

The ANACONDA COMPANY, a Montana corporation, Plaintiff, v. William D. RUCKELSHAUS, Administrator of the United States Environmental Protection Agency, et al., Defendants.

Civ. A. No. C-4362.

United States District Court, D. Colorado.

December 19, 1972.

Holland & Hart, Denver, Colo., by Harry L. Hobson, Wichita, Kan., Robert T. Connery and R. Brooke Jackson, Denver, Colo., for plaintiff.

Charles W. Johnson, Asst. U. S. Atty., Denver, Colo., James Glascoe, U. S. Dept. of Justice, Washington, D. C., for defendants.

MEMORANDUM OPINION

WINNER, Judge.

The matter is before the Court on plaintiff's application for a preliminary injunction, and the controversy will have to be finally resolved when ripe for decision in final hearing on a permanent injunction. It is intended that this opinion serve as the findings of fact and conclusions of law required by Rule 52, and fact findings are set forth throughout the body of the opinion.

However, as a prefatory matter of housekeeping, although some of the enumerated facts are discussed more fully later herein, the following enumerated facts are found, based upon the stipulation of the parties or on the evidence received in the case:

1. Plaintiff is a Montana corporation with a principal place of business at Anaconda, Deer Lodge County, Montana.

2. Plaintiff operates a copper smelter at Anaconda, Montana. That smelter is the only significant source of sulphur oxides in Deer Lodge County.

3. William D. Ruckelshaus is the Administrator of the United States Environmental Protection Agency with offices in Washington, D. C.

4. John A. Green is the Region VIII Administrator of the United States Environmental Protection Agency.

5. Leonard W. D. Campbell is General Counsel for Region VIII of the Environmental Protection Agency and is a duly appointed and acting member of the Hearing Board for Region VIII which was granted authority to make procedural rulings and hold hearings with respect to a control strategy for plaintiff's copper smelter. The Hearing Board, along with the Air Programs Division, evaluate the hearing record and make recommendations as to what was proved or disproved at the hearing concerning the proposed rule to the Regional Administrator of E.P.A.

6. Irwin L. Dickstein is Director of Enforcement for Region VIII of the United States Environmental Protection Agency and is a duly appointed and acting member of the Hearing Board with responsibilities as described in the preceding fact.

7. Charles Murray is Director of Air and Water Programs for Region VIII of the United States Environmental Protection Agency and is a duly appointed and acting member of the Hearing Board with responsibilities as described in Fact No. 5.

8. Green, Campbell, Dickstein and Murray are all residents and citizens of the State of Colorado with offices at Denver, Colorado.

9. Region VIII of the United States Environmental Protection Agency is made up of the States of Colorado, Montana, North Dakota, Utah and Wyoming.

10. On January 8, 1972, the Montana State Board of Health held a hearing on its proposed implementation plan for the State of Montana as required by § 110 of the Clean Air Act, 42 U.S.C. § 1857c-5.

11. Plaintiff was present at the hearing on January 8, 1972, and tendered evidence with respect to the proposed control strategy for sulphur oxides from its copper smelter, much of which tendered evidence was not admitted and was excluded from the record by Dr. John Anderson. The transcript of that hearing was attached to the stipulation of the parties, and it has been received in evidence in this case.

12. Dr. John Anderson, Director of Montana's Department of Health and Environmental Sciences excluded the tendered testimony and exhibits by written order on the ground that they were "irrelevant to the hearing." The letter announcing such order was attached to the stipulation and has been received in evidence.

13. The "Implementation Plan for Control of Air Pollution in Montana," § IV(F) at page 25 recites that "The underlying philosophy in the Montana regulations is to require control consistent with the most advanced `state of the art,'"—a standard quite different from the federal primary air standard for sulphur oxides.

14. On March 22, 1972, the Governor of the State of Montana submitted the State of Montana's Implementation Plan to the Administrator of the Environmental Protection Agency for approval or disapproval as required by § 110 of the Clean Air Act Amendments of 1970. The Governor deleted the portion of the Implementation Plan relating to a control strategy for sulphur oxides from nonferrous smelters.

15. On May 31, 1972, the Administrator of the Environmental Protection Agency disapproved certain aspects of the State of Montana's Implementation Plan including its failure to provide a control strategy for sulphur oxides from nonferrous smelters in Montana.

16. On July 27, 1972, the Administrator proposed an implementation plan for control of sulphur oxides from plaintiff's smelter in Montana pursuant to § 110(c) of the Clean Air Act. This is set forth in Federal Register, Volume 37, No. 145, at page 15102, and from it stems this lawsuit.

17. The proposed implementation plan contained an emission limitation on sulphur oxides which is only applicable at the present time to plaintiff's copper smelter sulphur oxide emissions at Anaconda, Montana; moreover, it is inconceivable that the plan will or can, ever apply to any other emission source.

18. The proposed emission limitation was, in part, based on specific emission data with respect to plaintiff's copper smelter which data was requested by E. P.A. by letter dated March 30, 1972.

19. The proposed plan limits the emissions of sulphur oxides from plaintiff's smelter to 7,040 pounds per hour regardless of the rate of copper production, and, seemingly, regardless of the percentage pollution of the ambient air, or the size or efficiency of the smelting operation. As will be discussed later, the applicable ambient air standard is keyed to percentage of pollution rather than to rolled back pounds of emission at the stack.

20. The plan proposed originally by the Montana Department of Health and Environmental Sciences would have provided for a ninety percentage retention rate of emissions rather than a fixed number of pounds per hour, but this portion of the plan was deleted by the Governor.

21. On August 18, 1972, the Administrator of E.P.A. published in the Federal Register a notice of public hearings to be held on August 30, 1972, in Helena, Montana, on the proposed emission limitation.

22. By letter dated August 19, 1972, plaintiff demanded an adjudicative hearing on the proposed emission limitation including the right to subpoena witnesses and to cross-examine and confront witnesses.

23. By letter dated August 23, 1972, John A. Green denied plaintiff's request for an adjudicative hearing on the proposed emission limitation. Plaintiff was denied the right to subpoena witnesses and was denied the right to cross-examine or confront E.P.A.'s witnesses to inquire into the factual basis for the proposed emission limit.

24. Plaintiff appeared at the hearing on August 30, 1972, and again requested the right to subpoena specific witnesses and to cross-examine and confront specific witnesses relating to the basis of the proposed emission limitation for its copper smelter. Leonard W. D. Campbell, acting for the hearing panel, denied the request.

25. At the hearing on August 30, 1972, representatives of E.P.A.'s Region VIII presented evidence that the proposed emission limitation of 7,040 pounds per hour from the stack for plaintiff's copper smelter was calculated entirely on a single 24-hour ambient air quality sample taken by the Division of Air Pollution Control of the State of Montana between 3:00 P.M. on October 26, 1971, and 3:00 P.M., on October 27, 1971.

26. At the August 30, 1972, hearing, the Hearing Board cross-examined all of plaintiff's witnesses and other witnesses while denying plaintiff the right to cross-examine any witness including testifying personnel of E.P.A.

27. No environmental impact statement has been prepared or made public by the Environmental Protection Agency concerning the proposed emission limitation on plaintiff's copper smelter. Nor has the agency considered (nor will it consider) alternatives or possible adverse effects of the proposed rule on (a) other aspects of the environment, (b) the economy, (c) national defense, or (d) the public welfare.

28. The 24-hour ambient air sample upon which the proposed emission limitation is based was taken with a Beckman 906-A ambient air sampling instrument which had not been calibrated and which was not functioning properly.

29. The State of Montana discarded as unsound and unreliable the readings made by the instrument between October 13, 1971, and October 24, 1971, as indeed it should have, in light of the fact that the upwind readings were several times higher than the downwind readings. Nevertheless, the hearing panel accepted uncorrected readings.

30. The State of Montana did nothing to repair or recalibrate the instrument during the period from October 24, 1971, through October 27, 1971, and yet accepted as sound and reliable the reading made by the instrument for the period October 25 through October 27, 1971.

31. The instrument making the 24-hour maximum reading upon which the proposed emission limitation was based was located more than 5 miles from Anaconda's copper smelter stack.

32. Expert meteorologists for Anaconda testified without contradiction at the August 30th hearing and the Court finds that the sulfur oxide concentrations allegedly being measured by the upwind sampling station were not and could not have been due to the emissions from plaintiff's copper smelter.

33. Anaconda demonstrated on the basis of its own scientific studies and other evidence which was not contradicted at the August...