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

Citation: 11 ELR 20176
No. No. 80-1223, 643 F.2d 183/15 ERC 1795/(4th Cir., 03/05/1981)

The Fourth Circuit Court of Appeals affirms the Environmental Protection Agency's (EPA's) approval of Virginia's state implementation plan (SIP). Under § 173 of the Clean Air Act, a new source can be built in a non-attainment area only if existing sources decrease their emissions of particular pollutants in order to achieve a net air quality benefit. The Virgina SIP was amended to require that the state highway department limit its use of a particular type of asphalt in order to decrease hydrocarbon pollution sufficiently to offset expected emissions from the Hampton Roads oil refinery in Portsmouth. The court determines that EPA's approval of the geographic area used as the base for theoffset was within the Agency's discretion and expertise and therefore neither arbitrary, capricious, nor outside the bounds of the Clean Air Act. Similarly, EPA did not abuse its discretion in selecting 1977 as the base year to calculate asphalt consumption. In addition, EPA acted within its discretionary authority in determining that the asphalt restrictions were enforceable. Finally, the court rejects petitioner's contention that the SIP is invalid because it does not mandate the use of emission controls as stringent as the lowest achievable emission rates as required by the statute.

Counsel for Petitioners
Bruce J. Terris, Philip G. 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
Angus Macbeth, Deputy Ass't Attorney General; Elizabeth Stein, Raymond W. Mushal, Charlotte Uram
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4160

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

Counsel for Intervenor Virginia State Air Pollution Control Bd.
Marshall Coleman, Attorney General; Roger L. Chaffe, Ass't Attorney General
Supreme Court Bldg., Richmond VA 23219
(804) 786-2071

Counsel for Intervenor Hampton Roads Energy Co.
Gerald L. Baliles, John A. Gibney
Bell, lacey & 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.