Jump to Navigation
Jump to Content

Citizens Against the Refinery's Effects v. EPA (CARE I)

Citation: 11 ELR 20174
No. No. 80-1222, 643 F.2d 178/15 ERC 1743/(4th Cir., 03/05/1981)

The Fourth Circuit Court of Appeals affirms the Environmental Protection Agency's (EPA's) approval of a prevention of significant deterioration (PSD) permit for the Hampton Roads oil refinery in Portsmouth, Virginia. Since analysis of the "air quality dispersion" models required for PSD applications is within EPA's particular expertise, the court places much weight on the Agency's interpretation of the data and refuses to examine in detail the technical evidence submitted. EPA's decision to use one year of test data, rather than five, was neither arbitrary nor capricious because the Agency approved what it believed to be the best evidence available according to its own guidelines. Similarly, the court rules that the record is devoid of evidence that EPA's refusal to use certain data in its analysis was arbitrary or capricious. Petitioner's objection to the nitrous oxide data used in the model is not well taken since the issue was not raised during the public comment period. Moreover, the Agency properly exercised its discretionary authority in deciding whether the refinery owner filed its PSD application before one filed by another pollution source. The court additionally rules that the discovery of new information after the Agency begins its analysis, but during the public comment stage, does not render the PSD application incomplete.

Counsel for Petitioners
Bruce J. Terris, Philip B. Sunderland, Karen H. Edgecombe, James M. Hecker
Terris & Sunderland
1526 18th St. NW, Washington DC 20036
(202) 332-1882

Patrick M. McSweeney
McSweeney, Stutts & Burtch
121 Shockoe Slip, Richmond VA 23219
(804) 643-5192

counsel for Respondent
James W. Moorman, Ass't Attorney General; Donald W. Stever Jr., Raymon W. Mushal, Elizabeth Stein
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

Michele B. Corash, General Counsel; Mitchell H. Bernstein
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Counsel for Intervenor Hampton Roads Energy Co.
Gerald L. Baliles, John A. Gibney
Bell, Lacy & Baliles
11th Floor, Heritage Bldg., 10th and Main Sts., Richmond VA 23212
(804) 649-7021

Brent N. Rushforth, Albert H. Turkus, John P. Schnitker
Dow, Lohnes & Albertson
1225 Connecticut Ave. NW, Washington DC 20036
(202) 862-8000

Joined by Phillips and Sprouse, JJ.