Kamp v. Hernandez

• Decision Date: 05 February 1985
• Docket Number: No. 83-7183,83-7183
• Citation: 752 F.2d 1444
• Parties: , 15 Envtl. L. Rep. 20,216 Richard Alan KAMP, Petitioner, The Environmental Defense Fund, Inc., Petitioner/Intervenor, v. John HERNANDEZ, in his capacity as Acting Administrator of the United States Environmental Protection Agency, and the Environmental Protection Agency, Respondents, Arizona Department of Health Services, Asarco, Incorporated, Kennecott, Inspiration Consolidated Copper Co., Magma Copper Co., and Phelps Dodge Corp., Respondent/Intervenors.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1444

752 F.2d 1444

22 ERC 1265, 15 Envtl. L. Rep. 20,216

Richard Alan KAMP, Petitioner The Environmental Defense Fund, Inc., Petitioner/Intervenor, v. John HERNANDEZ, in his capacity as Acting Administrator of the United States Environmental Protection Agency and the Environmental Protection Agency Respondents Arizona Department of Health Services, Asarco, Incorporated, Kennecott, Inspiration Consolidated Copper Co., Magma Copper Co., and Phelps Dodge Corp., Respondent/Intervenors.

No. 83-7183.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 11, 1984.

Decided Feb. 5, 1985.

Robert E. Yuhnke, Environmental Defense Fund, Boulder, Colo., for petitioner/intervenor.

F. Henry Habicht, II, Asst. Atty. Gen., Land & Natural Resources Div., Jose R. Allen, David E. Dearing, Attys., Dept. of Justice, Richard Bozof, U.S. EPA, Washington, D.C., for E.P.A.

Newman R. Porter, Evans, Kitchel & Jenckes, P.C., Phoenix, Ariz., for Asarco Inc.

G. Van Velsor Wolf, Jr., Lewis & Roca, Phoenix, Ariz., for Inspiration Cons. Copper Co.

Alfred V.J. Prather, Kurt E. Blase, Washington, D.C., for Kennecott.

Ralph B. Sievwright, Twitty, Sievwright & Mills, Phoenix, Ariz., Frederick C. Schafrick, Shea & Gardner, Washington, D.C., for Magma Copper Co.

John F. Boland, Jr., Evans, Kitchel & Jenckes, P.C., Phoenix, Ariz., for Phelps Dodge Corp.

Jon K. Wactor, Asst. Atty. Gen., Phoenix, Ariz., for State of Ariz.

Petition for Review of Final Action of the United States Environmental Protection Agency.

Before FAIRCHILD ^*, FLETCHER and CANBY, Circuit Judges.

CANBY, Circuit Judge:

On January 14, 1983, the Environmental Protection Agency ("EPA") approved Arizona's plan for the control of sulphur dioxide (SO2 ) emissions from copper smelters. Richard Kamp challenges that approval on four grounds. He contends that Arizona's plan creates an excessive risk that emissions from the smelters will violate the national ambient air quality standards for SO2 ; that the plan improperly uses dispersion techniques instead of emission limitations to regulate SO2 emissions; that the attainment date set by the plan is unlawful; and that EPA should have promulgated regulations to control fugitive SO2 emissions before it approved Arizona's plan. We reject those challenges and affirm EPA's action.

BACKGROUND

Copper smelters heat copper ore in order to separate the copper metal from other materials present in the ore. Because copper ore typically contains as much sulphur as it does copper, the smelting process generates as a by-product tremendous amounts of sulphur, most of it in the form of sulphur dioxide (SO 2 ). Ninety percent of the SO2 is discharged into the atmosphere through the smelter's smokestacks, but 10% of the SO2 accidentally escapes from the smelter as "fugitive emissions." See generally Kennecott Copper Corp. v. Train, 526 F.2d 1149, 1150 n. 3 (9th Cir.1975), cert. denied, 425 U.S. 935, 96 S.Ct. 1665, 48 L.Ed.2d 176 (1976).

The attempt to bring Arizona's copper smelters into compliance with EPA's SO2 standards has had a long history. Arizona submitted its first state implementation plan to EPA in 1972. That plan, however, like four state and federal plans that followed it, never received final approval. A sixth plan, one promulgated by EPA, did receive final approval on January 4, 1978, see 43 Fed.Reg. 755 (1978), only to be stayed indefinitely about a month later, see 43 Fed.Reg. 6945 (1978). Arizona then developed a seventh implementation plan and submitted it to EPA for approval on September 20, 1979. That final plan is the subject of this litigation.

A valid implementation plan must insure attainment and maintenance of the national ambient air quality standards (NAAQSs) that have been set by EPA. See 42 U.S.C. Secs. 7409(a), 7410(a)(2)(B). Those standards include an annual mean SO 2 concentration, see 40 C.F.R. Sec. 50.4(a) (1983), which is not in issue here. They also include two further standards that are in issue: a maximum 24-hour SO2 concentration that is not to be exceeded more than once per year and a maximum 3-hour concentration not to be exceeded more than once per year. See 40 C.F.R. Secs. 50.4(b), 50.5 (1983). Historically, compliance with the latter two SO2 standards has been achieved through use of the single-point rollback (single-point) system. In constructing a single-point implementation plan, the regulator attempts to predict the second worst meteorological conditions that will be confronted in an average year. It then sets a fixed, never-to-be-exceeded emission limitation at a level which insures that there will not be an exceedence of the maximum concentrations even on that day with the second-worst conditions of the year. Under the single-point approach, if the worst atmospheric conditions occur no more than once during the year, there will necessarily be compliance with the 24-hour and 3-hour NAAQSs, since there can be at most one exceedance of each maximum concentration during the year.

Arizona perceived two problems with the single-point technique. First, it regarded accurate implementation of the technique to be difficult. In particular, it doubted the regulator's ability to identify the day with the second worst meteorological conditions of the year and then to select an emission limitation which would insure compliance with the air standards on that day. Second, it regarded the single-point method as unduly harsh when applied to pollution sources which emit SO2 at highly variable rates, as copper smelters do. Arizona recognized that when a fixed, never-to-be-exceeded emission limitation is applied to a variable source, the source is effectively required to pollute well below the fixed limit most of the year in order to insure compliance on its few days of high emissions. In an attempt to avoid these problems, Arizona developed a new control method, the multi-point rollback (multi-point) technique.

The multi-point method permits more days of high emissions because, unlike the single-point method, it does not assume that those high emissions will necessarily occur on days of the worst or next-worst meteorological conditions. A regulator using the multi-point method to regulate 24-hour SO2 concentrations begins by selecting the rate at which it will permit the maximum 24-hour concentration to be exceeded. The rate selected by Arizona was once per year, in reflection of the NAAQSs.

In the second step, the regulator measures SO2 concentrations around the SO2 source over an extended period of time. The data are organized into a graph that shows the rate at which different 24-hour SO2 concentrations are exceeded, and the regulator then proportionately reduces this observed air quality curve until it arrives at a new curve reflecting the desired rate of exceedance. ¹

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In the third step of the process, the regulator records the emissions from the SO2 source and in a similar fashion organizes the data into a graph that shows the rate at which various emission levels are exceeded. The regulator then reduces the observed emission curve until it arrives at a new emission curve or profile that will produce the air quality curve selected by the regulator in the second step of the multi-point process. In determining how much the observed emission curve must be reduced, the regulator assumes that if it reduces the observed emission curve by the same proportion as it reduced the observed air quality curve, then the new emission profile will produce the desired air quality curve. ² Finally, once the new emission profile is obtained, the regulator requires that the SO2 source conform its emissions to it. This requirement achieves the desired rate of exceedance, but at the same time allows the source to emit at the varying levels established by the emission profile.

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Arizona used the multi-point system to regulate both 24-hour and 3-hour SO2 concentrations. Following the steps outlined above, Arizona identified for each smelter On November 30, 1981, EPA announced its intention to give the Arizona implementation plan conditional approval. See 46 Fed.Reg. 58098 (1981). EPA proposed to approve Arizona's use and application of the multi-point methodology, as well as the state's three-year implementation period. The implementation plan, however, had failed to include specific regulations that reduced fugitive emissions, which can account for up to 10% of a smelter's SO2 output, see Kennecott Copper Corp. v. Train, 526 F.2d 1149, 1150 n. 3 (9th Cir.1975), cert. denied, 425 U.S. 935, 96 S.Ct. 1665, 48 L.Ed.2d 176 (1976). ³ EPA proposed to condition its approval of Arizona's implementation plan upon the state's submitting to EPA by December 31, 1982, a plan for controlling fugitive emissions.

an emission curve that would be expected to cause one exceedance of the maximum 24-hour concentration per year. Arizona repeated the process with respect to 3-hour concentrations, similarly identifying for each smelter an emission curve that would be expected to cause one exceedance of the maximum 3-hour concentration per year. The state then compared the two emission curves it identified for each smelter and required each smelter to comply with the more stringent one. Arizona gave the smelters three years to achieve full compliance. In short, then, by the time full compliance occurs, Arizona's implementation plan will reduce smelter emissions to the point that each smelter can be expected to exceed the maximum SO2 concentrations no more than once per year.

On January 14, 1983, EPA published its final rule. See 48 Fed.Reg. 1717 (1983). EPA continued its approval of the multi-point methodology and of the three-year attainment date. Regarding fugitive emissions, EPA dropped its proposed conditional approval in favor of combining full, unconditional approval of the implementation...