Kennecott Copper Corp., Nev. Mines Div. v. Train, Civ. No. LV 76-195 RDF.

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
• Citation: 424 F. Supp. 1217
• Docket Number: Civ. No. LV 76-195 RDF.
• Parties: KENNECOTT COPPER CORPORATION, NEVADA MINES DIVISION, McGILL, NEVADA, Plaintiff, v. Russell E. TRAIN, Administrator, Environmental Protection Agency, Defendant.
• Decision Date: 24 November 1976

424 F. Supp. 1217

KENNECOTT COPPER CORPORATION, NEVADA MINES DIVISION, McGILL, NEVADA, Plaintiff,
v.
Russell E. TRAIN, Administrator, Environmental Protection Agency, Defendant.

Civ. No. LV 76-195 RDF.

United States District Court, D. Nevada.

November 24, 1976.

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COPYRIGHT MATERIAL OMITTED

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Jon R. Collins, of Lionel, Sawyer & Collins, Las Vegas, Nev., Prather, Seeger, Doolittle, Farmer & Ewing, Washington, D. C., Clarence E. Horton, Ely, Nev., for plaintiff

U. S. Atty. Lawrence J. Semenza, Las Vegas, Nev., John E. Varnum, Dept. of Justice, Washington, D. C., for defendant.

Atty. Gen. Robert List, Carson City, Nev., amicus curiae.

OPINION

ROGER D. FOLEY, Chief Judge.

On October 12, 1976, plaintiff Kennecott Copper Corporation filed a complaint and motion for a preliminary injunction against Administrator Russell E. Train of the Environmental Protection Agency (EPA) seeking declaratory and injunctive relief. Kennecott seeks a determination that a variance and revision of the current Nevada State Implementation Plan (SIP or NIP) for Kennecott's copper smelter located in McGill, Nevada, granted after notice and hearing on October 7, 1976, by the Nevada Environmental Commission, meet all the requirements of Section 110(a)(2) of the Clean Air Act, 42 U.S.C. § 1857c-5(a)(2), and that the NIP, as revised, must be approved by the Administrator for the EPA.¹ Kennecott requests the Court to require the Administrator to approve the variance and revision of the Nevada implementation plan and to enjoin him from enforcing the current Nevada implementation plan against Kennecott. Kennecott closed its McGill smelter on July 31, 1976, after the EPA insisted that civil and criminal sanctions would be imposed unless Kennecott complied with the current NIP. Kennecott contends that it could not comply because the current Nevada plan required the installation

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of a constant control system (an acid plant) which was economically infeasible. Kennecott desires to resume the operation of its McGill copper smelter and has assured this Court that it will do so if the preliminary injunction sought is granted, compelling the approval by the EPA of the variance and revision of the Nevada plan adopted by the Nevada Commission on October 7, 1976. On October 22, 1976, the defendant Administrator filed a motion to dismiss. On October 29, 1976, the State of Nevada filed an amicus curiae brief supporting Kennecott's position in this suit. On November 4, 1976, this Court heard the motions for preliminary injunction and to dismiss

At the outset, Kennecott is faced with a two-pronged challenge to its effort to secure injunctive relief. The Administrator asserts, in his motion to dismiss and in opposition to Kennecott's motion for preliminary injunction, that: (1) this Court lacks jurisdiction to entertain the suit, and that the complaint fails to state a claim for relief, and (2) Kennecott cannot satisfy the first requirement necessary for obtaining injunctive relief, namely, a demonstration that Kennecott will likely prevail on the merits. To better understand plaintiff's claim, it is helpful to summarize the pertinent parts of the Clean Air Amendments of 1970. A comprehensive history of the amendments and their implementation appear in Mr. Justice Rehnquist's opinion for the Supreme Court in Train v. NRDC, 421 U.S. 60, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975).

The Clean Air Act Amendments of 1970 marked a significant step in a national effort to control air pollution. Previous legislation had left the primary responsibility for establishing and enforcing air quality standards to the states, with the federal government assuming the limited role of assisting the states with research and technical guidance. Disappointed with the response of the states, who were besieged by technical and economic problems in attempting to clean up the air, "Congress reacted by taking a stick to the States in the form of the Clean Air Amendments of 1970." (Train v. NRDC, 421 U.S. at p. 64, 95 S.Ct. at 1474.) The amendments of 1970 were designed to correct the slow progress made in controlling air pollution since the enactment of the 1967 Air Quality Act.

The 1967 act had authorized the states to develop their own air quality standards and emission limitations for achieving those standards.² It directed the Secretary of Health, Education and Welfare to issue information on recommended air pollution control techniques. These recommendations were required to include data on the latest available technology and economic feasibility of alternative methods of prevention and control of air contamination including cost effectiveness analysis. The approval of the Secretary of HEW was contingent on the standards being consistent with these recommended control criteria. If they were not consistent, the Secretary was authorized to issue standards consistent with the criteria. The legislation permitted numerous interruptions through hearings and notice time periods which severely limited the effectiveness of the states or the Secretary in establishing standards. Even when the standards were finally implemented, they reflected an emphasis on the economic and technological feasibility of achieving the standards. Further indication of the reliance placed on these two factors in the 1967 act is found in the enforcement section which directed the Court to give due consideration to the practicability and to the technological and economic feasibility of complying with such standards. These sections, providing for the establishment and enforcement of air quality standards, were drastically changed by the 1970 amendments.

The 1970 act enlarged the federal role in combatting air pollution by providing for EPA promulgation of air quality criteria and national ambient air quality standards.

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(42 U.S.C. § 1857c-4.)³ The EPA Administrator was directed to promulgate national primary and secondary ambient air quality standards for all air pollutants having an adverse effect on the public health or welfare.⁴ In basing the primary standards on what is necessary to protect the public health, and placing strict time limits for attainment of this level of air quality, Congress arguably intended to place secondary emphasis on economic and technological feasibility in the establishment and implementation of air quality standards. This marked a shift from the 1967 act wherein, as previously noted, economic and technological feasibility played a significant role

Controversy has arisen, therefore, under the 1970 amendments regarding the relevance of economic and technological feasibility considerations in state implementation plans. 42 U.S.C. § 1857c-5(a)(1) (1970) instructs states to adopt, after public hearings, a plan providing for the attainment, maintenance and enforcement of the national primary and secondary air quality standards. The Administrator then reviews (see 42 U.S.C. § 1857c-5(a)(2)) the state plans to assure that they meet the requirements established by 42 U.S.C. § 1857c-5.⁵ Significantly, there is no mention of economic or technological feasibility in subparagraphs A through H of § 1857c-5(a)(2). This omission has contributed confusion regarding the proper place of economic and technological feasibility factors in state implementation plans, which in turn has resulted in considerable litigation, including the instant case.

On January 1, 1972, the Governor of Nevada submitted the original state implementation plan to the Administrator of the EPA. Pursuant to the Clean Air Act, the Administrator had until May 31, 1972, to either approve or disapprove the Nevada plan. If the Administrator chose to disapprove the state plan, he had six months after the plan had been submitted to promulgate new regulations. The original Nevada plan called for the installation of an acid plant, as well as the employment of supplemental control systems.⁶ Kennecott's

424 F. Supp. 1222

proposed plan met with the approval of the Nevada Commission. On May 31, 1972, the EPA approved the Nevada plan insofar as the primary standards concerning sulphur dioxide (SO2) emissions were concerned. At the same time, the EPA decided to defer approval of the Nevada plan concerning secondary standards in relation to SO2 emissions at the McGill operations.⁷ On August 31, 1972, Kennecott met with the EPA in Carson City, Nevada, to discuss the proposed construction of an acid plant.⁸ It was at this meeting that Kennecott expressed its concern over EPA's deferral of decision on the subject, the secondary standards in relation to the SO2 emissions.⁹ The Nevada Commission submitted an amended plan. (39 Fed.Reg. 38104-05 (Oct. 29, 1974)). The EPA rejected the state's amendments and proposed one of its own. On February 6, 1975, EPA finally adopted a plan of its own. (40 Fed.Reg. 5515 (Feb. 6, 1975)). The amended Nevada plan, which was rejected, provided for a 60% reduction of SO2 emissions from the McGill smelter by installation of an acid plant to convert SO2 to sulfuric acid. In addition, when the weather conditions were so adverse that the 60% reduction in emissions resulting from operation of the acid plant would not be sufficient to maintain the national air quality standards, the Nevada plan provided for reducing the level of production at the smelter. The EPA rejected the Nevada plan on the ground that an 86% reduction of SO2 emissions from the McGill smelter was required to achieve the air quality standards. However, in the plan adopted by the EPA, it was recognized that an 86% reduction was not feasible.¹⁰ The EPA plan therefore provided that, as an interim measure, Kennecott might use continuous

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emission reduction technology capable of reducing emissions by 60%, together with such other supplemental control systems, namely, the use of intermittent controls and a tall stack, as might be needed to maintain national air quality...