562 F.2d 807 (D.C. Cir. 1977), 75-2186, Lubrizol Corp. v. E.P.A.

Docket Nº:75-2186.
Citation:562 F.2d 807
Party Name:Envtl. The LUBRIZOL CORPORATION, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.
Case Date:August 12, 1977
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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562 F.2d 807 (D.C. Cir. 1977)

Envtl.

The LUBRIZOL CORPORATION, Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 75-2186.

United States Court of Appeals, District of Columbia Circuit

August 12, 1977

        Argued March 22, 1977.

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        Michael Scott, Washington, D. C., with whom William D. Kramer, Washington, D. C., was on the brief, for petitioner.

        Earl Salo, Atty., Dept. of Justice, Washington, D. C., with whom Peter R. Taft, Asst. Atty. Gen., Edmund B. Clark, Atty., Dept. of Justice and Paul Loizeaux, Atty., Environmental Protection Agency, Washington, D. C., were on the brief, for respondent.

        Before McGOWAN, ROBINSON and WILKEY, Circuit Judges.

        Opinion for the Court filed by McGOWAN, Circuit Judge.

        McGOWAN, Circuit Judge:

        Section 211 of the Clean Air Act (the Act), 42 U.S.C. § 1857f-6c (1970 and Supp. V 1975), provides for the registration of, industrial reporting on, and, under certain circumstances, the regulation of trade in, "any fuel or fuel additive." Pursuant to Section 211, the Environmental Protection Agency (EPA) propounded a set of regulations governing the registration of and reporting on "fuels and fuel additives" that applied to "(a)ll additives produced or sold for use in motor vehicle gasoline, motor vehicle diesel fuel, and/or motor vehicle engine oil . . . ." 40 Fed.Reg. 52,009, 52,013 (1975), codified in 40 C.F.R. § 79.31(a) (1976) (emphasis added). This petition for review, brought by a large independent producer of motor oil additives, raises two problems: the proper forum for review of these EPA regulations, and the intended scope of the statutory terms "fuel or fuel additive." 1 Finding that this court has exclusive original jurisdiction to review these regulations, we hold that they exceed the statutory mandate of Section 211 insofar as they apply to motor oil and motor oil additives.

       I. THE STATUTORY, REGULATORY, AND FACTUAL SETTING

        With respect to the environmental impact of automobiles, the Clean Air Act of 1963, 2 as amended by the Motor Vehicle Air Pollution Control Act of 1965, 3 originally directed its regulatory efforts toward controlling pollutants emitted from the tailpipes of motor vehicles. With the passage in 1967 of the Air Quality Act, 4 however, the Act also began to devote some attention to the "fuel" used in the engines of motor vehicles that might contribute to those emissions. 5 Although the 1967 revisions, then codified in Section 210 of the Act, contemplated only the registration of and limited reporting on those fuels, the Clean Air Act Amendments of 1970 6 replaced Section 210 with a new

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section, 211, which expanded the reporting requirements and allowed the EPA, on the basis of the information filed and other data, to restrict the sale of environmentally dangerous "fuels and fuel additives." 7 In its current form, Section 211, in relevant part, reads as follows:

(a) The Administrator may by regulation designate any fuel or fuel additive and, after such date or dates as may be prescribed by him, no manufacturer or processor of any such fuel or additive may sell, offer for sale, or introduce into commerce such fuel or additive unless the Administrator has registered such fuel or additive in accordance with subsection (b) of this section.

(b)(1) For the purpose of registration of fuels and fuel additives, the Administrator shall require

(A) the manufacturer of any fuel to notify him as to the commercial identifying name and manufacturer of any additive contained in such fuel; the range of concentration of any additive in the fuel; and the purpose-in-use of any such additive; and

(B) the manufacturer of any additive to notify him as to the chemical composition of such additive.

(2) For the purpose of registration of fuels and fuel additives, the Administrator may also require the manufacturer of any fuel or fuel additive

(A) to conduct tests to determine potential public health effects of such fuel or additive (including, but not limited to, carcinogenic, teratogenic, or mutagenic effects), and

(B) to furnish the description of any analytical technique that can be used to detect and measure any additive in such fuel, the recommended range of concentration of such additive, and the recommended purpose-in-use of such additive, and such other information as is reasonable and necessary to determine the emissions resulting from the use of the fuel or additive contained in such fuel, the effect of such fuel or additive on the emission control performance of any vehicle or vehicle engine, or the extent to which such emissions affect the public health or welfare.

Tests under subparagraph (A) shall be conducted in conformity with test procedures and protocols established by the Administrator. The result of such tests shall not be considered confidential.

(3) Upon compliance with the provision of this subsection, including assurances that the Administrator will receive changes in the information required, the Administrator shall register such fuel or fuel additive.

(c)(1) The Administrator may, from time to time on the basis of information obtained under subsection (b) of this section or other information available to him, by regulation, 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 (A) if any emission products of such fuel or fuel additive will endanger the public health or welfare, or (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.

(d) Any person who violates subsection (a) of this section or the regulations prescribed under subsection (c) of this section or who fails to furnish any information required by the Administrator under subsection (b) of this section shall forfeit and pay to the United States a civil penalty of $10,000 for each and every day of the continuance of such violation, which shall accrue to the United States and be recovered in a civil suit in the name of

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the United States, brought in the district where such person has his principal office or in any district in which he does business. The Administrator may, upon application therefor, remit or mitigate any forfeiture provided for in this subsection and he shall have authority to determine the facts upon all such applications. 42 U.S.C. § 1857f-6c (1970 and Supp. V). 8

        In part, the statutory trend, reflected in the passage of Section 211, toward regulation of materials burned in motor vehicle engines, is a necessary corollary to the Act's original focus on purification of tailpipe emissions. Tests have demonstrated the need to control certain substances that are burned in automobile engines in order to curtail their corrosive effects on the catalytic devices otherwise found most effective in purifying emissions at the tailpipe stage. See generally International Harvester Co. v. Ruckelshaus, 155 U.S.App.D.C. 411, 478 F.2d 615, 624-28 (1973). In addition, this statutory development reflects the increasing sophistication of scientific research into the comparative levels and types of pollutants generated by the combustion of different materials in motor vehicle engines.

        Although the administrative definitions of "fuel" under both the 1967 and 1970 revisions to the Act consistently have characterized that term broadly as "any material which is capable of releasing energy or power by combustion or other physical reaction," 35 Fed.Reg. 9282 (1970), repromulgated in 36 Fed.Reg. 22,419 (1971), amended in 40 Fed.Reg. 52,009 (1975), codified in 40 C.F.R. § 79.2(c) (1976), the regulations promulgated under the 1967 amendments, 35 Fed.Reg. 9282, 9284 (1970), and initially repromulgated under the 1970 amendments, 36 Fed.Reg. 22,419, 22,421 (1971), only required the registration of additives to "fuels commonly or commercially known or sold as gasoline." 9 Apparently spurred by the accumulating scientific data concerning the potentially harmful effects of pollutants and corrosives caused by the combustion of motor lubricants and lubricant additives that inevitably enter the propulsion systems of motor vehicles, 10 EPA in 1974 proposed new regulations, 39 Fed.Reg. 8929 (1974), which expanded the materials subject to the registration and reporting requirements under the Act. 11 These new regulations reached additives to "motor vehicle engine oil," such as those produced by petitioner. Id. at 8931.

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        The regulations required producers of such additives, if they wished to sell them on or after May 7, 1976, to file registration forms at least 90 days prior to selling them, or 30 days prior to selling any new additive developed after May 7, 1976. The forms required the manufacturer to provide available information concerning the chemical composition of the additive (and methods of determining it), the chemical structure of each compound in the additive, an analytical technique for detecting the presence and measuring the concentration of the additive in a designated "fuel," the recommended uses of the additive, the mechanisms of action of the additive in the engine, the emission products and toxicity thereof of the additive, and the effects of the additive on emission control devices. 40 C.F.R. §§ 79.21, 79.31 (1976). 12

        Not surprisingly, members of the motor oil and motor oil additive industry, including petitioner, reacted unfavorably to the new regulations, arguing that they, in conjunction with the older, but until then not fully utilized, broad definition of "fuel," reached products over...

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