Amoco Oil Co. v. E.P.A.
| Decision Date | 01 May 1974 |
| Docket Number | Nos. 73-1117,73-1118 and 73-1150,s. 73-1117 |
| Citation | 501 F.2d 722,163 U.S.App.D.C. 162 |
| Parties | , 163 U.S.App.D.C. 162, 4 Envtl. L. Rep. 20,397 AMOCO OIL COMPANY et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. ASHLAND OIL, INC. and Skelly Oil Company, Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. CLARK OIL AND REFINING CORPORATION, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
William Simon, Washington, D.C., with whom James F. Davis and William R. O'Brien, Washington, D.C., were on the brief, for petitioners in No. 73-1117.
H. Edward Dunkelberger, Jr., Washington, D.C., with whom Theodore L. Garrett, Washington, D.C., was on the brief, for petitioners in Nos. 73-1118 and 73-1150.
Edward J. Shawaker, Atty., Dept. of Justice, with whom Wallace H. Johnson, Asst. Atty. Gen., and Edmond B. Clark and Martin Green, Attys., Dept. of Justice, were on the brief, for respondent. Kent Frizzell, Asst. Atty. Gen. at the time the record was filed, also entered an appearance for respondent.
Before HASTIE * Senior Circuit Judge, and WRIGHT and ROBB, Circuit judges.
In these consolidated cases, many of the nation's oil companies seek review of the Environmental Protection Agency's 'Regulation of Fuels and Fuel Additives,' 40 C.F.R. Part 80 (1973) (hereinafter Fuel Regulations), promulgated under Sections 211(c) and (d) of the Clean Air Act. 1 The Regulations prohibit use of leaded gasoline in automobiles fitted with 'catalytic converter' devices for controlling exhaust emissions and require widespread retail marketing of at least one grade of unleaded gasoline.
Oil refiners have for many years routinely added lead to gasoline to improve its 'anti-knock' and other performance characteristics. Because air-borne lead may present a serious threat to public health, EPA has promulgated regulations, not here at issue, to limit the lead content of all gasoline. 2 The Fuel Regulations under review address a narrower problem: Lead emissions 'poison'-- i.e. render inactive-- the catalytic converter devices on which the automobile industry is relying to reduce exhaust emissions of hydrocarbons, carbon monoxide, and oxides of nitrogen to the levels mandated for new cars by Section 202 of the Clean Air Act. 3 Catalytic converters will be fitted on many 1975 model new cars and on most or all 1976 model new cars. The Regulations take effect on July 1, 1974, at the advent of the 1975 model year. To secure efficient operation and widespread use of converters, the Regulations require that converter-equipped cars use only unleaded gasoline and that retail stations having a sizeable clientele offer at least one grade of such fuel.
Petitioners challenge the Regulations on a host of grounds, examined in Part II of this opinion. The root of petitioners' interest is financial. To refine gasoline without adding lead is neither difficult nor very expensive, but years of producing and delivering only leaded fuel have left deposits of the element in the containers, pipes, and vehicles by which the industry moves gasoline from refinery to automobile gas tank. Portions of this distribution network must be cleaned or replaced if the new converter-equipped cars are to be sold, used, and serviced in normal and convenient fashion. That such a cleanup would be necessary by 1975 has been known for a number of years, 4 but the oil industry contends that the present Regulations impose demands which are unnecessarily and unlawfully far-reaching and abrupt.
We have located problems in the 'liability' provisions of the Regulations and have accordingly required the Agency to recognize certain affirmative defenses to these provisions. See Part II-D below. In all other respects, however, we find the Regulations to be valid.
These Regulations are an integral element in the complex program to reduce air pollution which Congress adopted by way of the Clean Air Act Amendments of 1970. At the core of that program, in Section 202 of the Act, is a graduated schedule for reducing exhaust emissions from new cars. Congress mandated EPA to set standards for 1975 and post-1975 model cars 'which require a reduction of at least 90 per centum from emissions of carbon monoxide and hydrocarbons allowable * * * in model year 1970'; for 1976 and post-1976 model cars, the standards are to 'require a reduction of at least 90 per centum from the average of emissions of oxides of nitrogen actually measured * * * during model year 1971.' Section 202(b)(1)(A) and (B). The Administrator was empowered to suspend these deadlines under extraordinary circumstances, but 'for one year only,' Section 202(b)(5)(A) and (B), and only if he simultaneously established 'interim standards' which
reflect the greatest degree of emission control which is achievable by application of technology which the Administrator determines is available, giving appropriate consideration to the cost of applying such technology within the period of time available to manufacturers.
Foreseeing that achievement of this schedule might require regulation of fuels, and foreseeing in particular the possible need to regulate gasoline's lead content so as to protect catalytic converters, 5 Congress authorized the Agency to promulgate regulations which
control or prohibit the manufacture, introduction into commerce, offering for sale, or sale of any fuel or fuel additive for use in a motor vehicle or motor vehicle engine * * * (B) if emission products of such fuel or fuel additive will impair to a significant degree the performance of any emission control device or system which is in general use, or which the Administrator finds has been developed to a point where in a reasonable time it would be in general use were such regulation to be promulgated. 6
Section 211(c)(1). The Administrator must subject his proposed regulations to a 'public hearing' before promulgating them in final form. Section 211(c)(2) (B). No fuel regulation may be undertaken 'except after' the Administrator has considered, and published 'findings' on, the comparative merits of emission control devices, in or near 'general use,' which do and which do not require use of regulated fuels. Section 211(c)(2)(B). The Administrator must also find that prohibition of a particular fuel or additive will not cause use of another fuel or additive which endangers 'the public health or welfare to the same or greater degree than the use of the fuel or fuel additive proposed to be prohibited.' Section 211(c)(2)(C). The Act mandates a 'civil penalty of $10,000' per day against 'any person who violates * * * the regulations prescribed,' though the Administrator may 'remit or mitigate' the penalty at his discretion. Section 211(d).
EPA published its proposed regulations of gasoline's lead content on February 23, 1972, 7 the proposals dealing with both the catalytic converter problem and the direct health impact of airborne lead. The Agency solicited comments from all interested parties and held public hearings on the proposals in three cities. Petitioners participated fully in these proceedings and do not challenge their regularity.
On January 10, 1973 the final regulations now under review were promulgated. 8 In a simultaneous decision not now before us, regulations dealing with the health impact of air-borne lead were reproposed for further public discussion. The Administrator accompanied the final Fuel Regulations with a statement explaining and justifying them (hereinafter the Statement), which we append to this opinion. So far as is pertinent to this case, the Regulations presently provide as follows: 9
'Unleaded gasoline' is defined as 'gasoline containing not more than 0.05 gram of lead per gallon and not more than 0.005 gram of phosphorous per gallon.' 40 C.F.R. 80.2(g). Cars fitted with catalytic converters must carry markings or design features showing that only unleaded gasoline may be used. 40 C.F.R. 80.24. On pain of a civil fine of $10,000 per day, 40 C.F.R. 80.5, retailers, and their employees and agents, are forbidden to introduce leaded gasoline into cars marked or designed for exclusive use of unleaded fuel. 40 C.F.R. 80.22(a). If the offending retailer displays a refiner's corporate trademark, the refiner is made vicariously liable for the offense, 40 C.F.R. 80.23(a)(1); if the offending retailer did not display a refiner's trademark, vicarious liability runs to 'any distributor who sold the retailer gasoline contained in the retail outlet storage tank which supplied that pump at the time of the violation * * *.' 40 C.F.R. 80.23(a)(2). In both cases, however, there is no vicarious liability, and the retailer alone is liable, where the retailer introduced the leaded gasoline 'from a pump from which leaded gasoline is sold.' 40 C.F.R. 80.23(c). Finally, the Regulations affirmatively require marketing of at least one grade of unleaded gasoline by 'every person who owns, leases, operates, controls, or supervises a retail outlet at which 200,000 or more gallons of gasoline was sold during any calendar year beginning with the year 1971.' 40 C.F.R. 80.22(b).
During and after final promulgation of the Regulations, certain events transpired which bear upon the issues before us. 10 On February 10, 1973, this court remanded for reconsideration EPA's decision, under Section 202(b)(5) of the Clean Air Act, not to suspend for one year the 1975 emission standards established by the Agency pursuant to Section 202(b)(1)(A) of the Act. International Harvester Co. v. Ruckelshaus, 155 U.S.App.D.C. 411, 478 F.2d 615 (1973). On April 11, 1973, after new public hearings, the Administrator decided to suspend the 1975 standards and to replace them with a set of 'interim standards.' 11 Under this 'interim' program, special...
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