Kennecott Copper Corp. v. Train

• Decision Date: 28 November 1975
• Docket Number: No. 75-1335,75-1335
• Citation: 526 F.2d 1149,6 ELR 20102,8 ERC (BNA) 1497
• Parties: KENNECOTT COPPER CORPORATION, Petitioner v. RUSSELL E. TRAIN, Administrator of the Environmental Protection Agency, Respondent
• Court: U.S. Court of Appeals — Ninth Circuit

526 F.2d 1149

8 ERC (BNA) 1497

6 ELR 20102

KENNECOTT COPPER CORPORATION, Petitioner, v. RUSSELL E. TRAIN, Administrator of the Environmental Protection Agency, Respondent

No. 75-1335

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

November 28, 1975

Alfred V. J. Prather, Esq. (argued) of Prather, Levenberg, Seeger, Doolittle, Farmer & Ewing, Washington, District of Columbia, For Petitioner.

Charles W. Shipley, Atty. (argued) of Pollution Control Section, Washington, District of Columbia, For Respondent.

Matthew Feiertag, Deputy Atty. (argued) of General Bureau of Environmental Health, Carson City, Nevada, For Intervenor.

JUDGES: Tuttle, * Koelsch, and Browning, Circuit Judges.

* Honorable Elbert Parr Tuttle, Senior United States Circuit Judge, United States Court of Appeals for the Fifth Circuit, sitting by designation.

BROWNING

OPINION

BROWNING, Circuit Judge:

Kennecott Copper Corporation 1 petitions for review of an order of the Environmental Protection Agency (EPA) rejecting a portion of the State of Nevada's implementation plan under the Clean Air Act 2 relating to control of sulfur dioxide (SO [2]), and substituting provisions formulated by EPA. The problem arises from a single source of SO [2] emissions in Nevada - Kennecott's copper smelter at McGill in White Pine County. 3

EPA based its order upon an interpretation of the Clean Air Act which requires that national air quality standards be met by continuous emission limitations to the maximum extent possible, and that intermittent controls and dispersion systems be used only when continuous emission controls are not economically feasible. This court denied Kennecott's request for a temporary injunction against enforcement of the substitute plan promulgated by EPA but expedited Kennecott's appeal. We affirm EPA's order.

I

Section 109 of the Clean Air Act, 42 U.S.C. § 1857c-4, requires EPA to promulgate national primary and secondary air quality standards. 4 Section 110 of the Act, 42 U.S.C. § 1857c-5, applicable to existing sources of pollutants such as Kennecott's McGill smelter, 5 provides that the states must devise plans to implement, maintain, and enforce these national standards. EPA must approve state implementation plans if they are adopted after reasonable notice and hearing, and meet other specified requirements. EPA must disapprove any state plan that does not comply with the statute, and propose and adopt a plan of its own. 42 U.S.C. § 1857c-5(c)(1).

EPA approved the provisions of Nevada's implementation plan relating to control strategy except those involving control of SO [2] at Kennecott's McGill smelter, the sole stationary source of this pollutant in the Nevada Intrastate Air Quality Control Region. 6 Nevada submitted an amended plan. 7 EPA rejected the state's amendments, and proposed, 8 and eventually adopted, 9 a plan of its own.

The amended Nevada plan provided for a 60 percent reduction of SO [2] emissions from the McGill smelter by installation of a plant to convert SO [2] to sulfuric acid. When weather conditions are so adverse that the 60 percent reduction in emissions resulting from operation of the acid plant would not be sufficient to maintain national air quality standards, the Nevada plan provided for reducing the level of production at the smelter.

EPA rejected the Nevada plan on the ground that an 86 percent reduction of SO [2] emissions from the McGill smelter was required to achieve air quality standards. EPA recognized that it was not presently economically feasible to install an acid plant or other constant emission control that would reduce SO [2] emission from the McGill smelter more than the 60 percent contemplated by the Nevada plan. The EPA plan therefore provided that, as an interim measure, Kennecott might use continuous emission reduction technology capable of reducing emissions by 60 percent, together with such other controls (including reducing production and use of a tall stack) as might be needed to maintain national air standards. 10 However, EPA's plan also provided that, until full compliance with national air quality standards is achieved entirely by means of continuous emission reduction, 11 Kennecott must undertake a research program to improve continuous emission control technology, 12 and must adopt such improved technology as it becomes available for use at the McGill smelter on an economically feasible basis. 13

Kennecott's basic position is that EPA is not authorized to require continuous emission reduction techniques in preference to intermittent controls or other methods for dispersion, or dilution, of pollutants. Kennecott contends that EPA must approve a state implementation plan that provides for any combination of continuous emission controls and alternative control systems devised by the state, so long as the state plan will attain and maintain national air quality standards within the statutory time periods.

This view of the statute underlies Kennecott's opposition to EPA's requirement that Kennecott engage in research to develop and apply constant emission control technology. 14 It is also the principal source of Kennecott's objection to EPA's determination that an 86 percent reduction in SO [2] emissions from the McGill smelter is required to meet national air quality standards. EPA's calculation rests upon measurements made prior to the installation of a new 750-foot tall smokestack at McGill. Kennecott submitted data to EPA indicating that the new tall stack resulted in a 92 percent decrease in ground level SO [2] concentrations. 15 EPA refused permanent credit for this reduction because, in EPA's view, the statute requires use of continuous emission reduction technology, as opposed to dispersion techniques, whenever economically feasible. 16

II

EPA bases the requirement of constant emission controls upon section 110(a)(2)(B) of the Clean Air Act, 42 U.S.C. § 1857c-5(a)(2)(B). 17 This subsection provides that EPA shall approve a state implementation plan if "it includes emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance of such primary or secondary standard, including, but not limited to, land-use and transportation controls; . . ." (emphasis added).

EPA reads the phrase "as may be necessary" as modifying only "such other measures," and not "emission limitations." In EPA's view, measures other than emission limitations are therefore permissible only if "necessary" to achieve applicable air quality standards; such "other measures" are not "necessary" if economically feasible emission limitation technology is available.

EPA supports its interpretation of section 1857c-5(a)(2)(B) by references to the language and legislative history of the Clean Air Act Amendments of 1970. EPA relies upon the fact that an option to utilize intermittent controls or tall stacks carries the potential for evasion of the intent of Congress that emission limitations be included in implementation plans. EPA invokes the policy of nondegradation of the quality of the nation's air, implied from the Act. 18 EPA also draws support from the Supreme Court's decision in Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 43 L. Ed. 2d 731, 95 S. Ct. 1470 (1975), and from the provisions and legislative history of the Energy Supply and Environmental Coordination Act of 1974.

The Courts of Appeals for the Fifth and Sixth Circuits have adopted the interpretation of section 1857c-5(a)(2)(B) urged by EPA. Natural Resources Defense Council, Inc. v. EPA, 489 F.2d 390 (5th Cir. 1974), reversed in part on other grounds sub nom., Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 43 L. Ed. 2d 731, 95 S. Ct. 1470 (1975); Texas v. EPA, 499 F.2d 289, 311 (5th Cir. 1974); and Big Rivers Electric Corp. v. EPA, 523 F.2d 16 (6th Cir. 1975).

In Natural Resources Defense Council, the Fifth Circuit held that EPA may approve tall stack dispersion techniques in a state implementation plan "only (1) if it is demonstrated that emission limitation regulations included in the plan are sufficient standing alone, without the dispersion strategy, to attain the standards; or (2) if it is demonstrated that emission limitation sufficient to meet the standard is unachievable or infeasible, and that the state has adopted regulations which will attain the maximum degree of emission limitation achievable." 489 F.2d at 410 (emphasis in original). 19 We agree, in general, with the Fifth Circuit's analysis (489 F.2d at 403-09) of the history and contents of the Clean Air Act Amendments of 1970 leading to this conclusion. 20

In Big Rivers Electric Corp., the Sixth Circuit extended the Fifth Circuit's decision to intermittent emission control systems, holding that section 1857c-5(a)(2)(B) authorizes EPA to reject state plans providing for the use of intermittent emission control systems without a showing that constant emission controls are unavailable. 21 The Sixth Circuit based its conclusion upon the Fifth Circuit's analysis of the Clean Air Act Amendments of 1970, and upon the Supreme Court's discussion of section 1857c-5(a)(2)(B) in Train v. Natural Resources Defense Council. Train parses section 1857c-5(a)(2)(B) as EPA's interpretation suggests (421 U.S. at 67), and adopts the position that a state plan must include provisions regulating the composition of substances emitted from a given source. 421 U.S. at 78. The Sixth Circuit noted that since composition means "kind and amount," Train recognizes that a state plan must limit the amount of a pollutant. 523 F.2d at 21-22.

We agree with the Sixth Circuit that Train adds significant support to EPA's interpretation of section 1857c-5(a)(2)(B) as expressing a preference for emission limitations. 22 Intermittent control systems (such as those restricting production, or utilizing less polluting fuels, during periods of adverse weather) do limit the...