Ethyl Corp. v. Browner, 94-1516

• Citation: 67 F.3d 941
• Decision Date: 20 October 1995
• Docket Number: No. 94-1516,94-1516
• Parties: , 314 U.S.App.D.C. 247, 26 Envtl. L. Rep. 20,002 ETHYL CORPORATION, Petitioner, v. Carol M. BROWNER, Administrator of the United States Environmental Protection Agency, and the United States Environmental Protection Agency, Respondents, American Automobile Manufacturers Association, Intervenor.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 941

67 F.3d 941

41 ERC 1673, 314 U.S.App.D.C. 247, 26

Envtl. L. Rep. 20,002

ETHYL CORPORATION, Petitioner, v. Carol M. BROWNER, Administrator of the United States

Environmental Protection Agency, and the United

States Environmental Protection Agency,

Respondents,

American Automobile Manufacturers Association, Intervenor.

No. 94-1516.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 11, 1995.

Decided Oct. 20, 1995.

F. William Brownell, with whom Kevin L. Fast, Washington, DC, was on the brief, argued the cause for petitioner.

Timothy D. Backstrom, Attorney, Environmental Protection Agency, with whom Lois J. Schiffer, Assistant Attorney General, and Jon M. Lipshultz, Attorney, U.S. Department of Justice, Washington, DC, were on the brief, argued the cause for respondents.

Samuel I. Gutter, Washington, DC, with whom V. Mark Slywynsky, Detroit, MI, was on the brief, argued the cause for intervenor.

Before: WILLIAMS, SENTELLE and RANDOLPH, Circuit Judges.

STEPHEN F. WILLIAMS, Circuit Judge:

For the second time in less than a year we address the legality of decisions by the Environmental Protection Agency blocking Ethyl Corporation's distribution of a fuel additive, "MMT," also known as "HiTEC 3000." Because of a ban deriving from Sec. 211(f)(1) of the Clean Air Act, 42 U.S.C. Sec. 7545(f)(1), Ethyl has long been unable to sell MMT for use as a bulk additive in unleaded gasoline without a waiver from the Environmental Protection Agency under Sec. 211(f)(4), 42 U.S.C. Sec. 7545(f)(4). On November 30, 1993 the EPA found that MMT had no adverse effects on automobiles' emissions control systems, but simultaneously withheld the f(4) waiver in order to look into MMT's possible public health effects. 58 Fed.Reg. 64761, 64764-45 (1993). In Ethyl Corp. v. EPA, 51 F.3d 1053 (D.C.Cir.1995) ("Ethyl I "), we held that Sec. 211(f)(4) allowed EPA to consider only emission control effects; once the EPA found MMT innocent of any adverse effect on those systems, it was legally required to grant the waiver, and we ordered it to do so.

Lawful sale of MMT, however, requires not only the f(4) waiver but also that the additive be registered under Sec. 211(b) of the Clean Air Act, 42 U.S.C. Sec. 7545(b). Ethyl claims that MMT has in fact been registered for sale for use in unleaded gasoline since 1970, while EPA asserts that in the period when an f(4) waiver was required for lawful sale, but no waiver had been issued, MMT could not have been registered for such sales. The fight may seem trivial; now that MMT has been held entitled to the waiver, EPA's sole ground for claiming non-registration has disappeared, so, one might expect, registration would flow ineluctably. But EPA's contention has an important collateral consequence. Under Sec. 211(e)(2), 42 U.S.C. Sec. 7545(e)(2), an additive that is already registered on the date that EPA promulgates regulations for certain testing remains registered (subject to possible loss of registration if the test results are bad), while an additive not registered on that date must satisfy the testing requirements before being registered. On May 27, 1994 EPA adopted fuel additive testing regulations. ¹ See Fuels and Fuel Additives Registration Regulations, 59 Fed.Reg. 33042 (1994). Since EPA had not granted the waiver on that date (or indeed until after our decision in Ethyl I, see 60 Fed.Reg. 36414/1 (July 17, 1995) (effective date July 11, 1995)), MMT could not, on EPA's theory, secure registration until it overcame this new testing hurdle--a matter surely of years, perhaps of decades.

We find it unnecessary, however, to sort out the parties' claims as to whether MMT's registration ever ceased to embrace its sale for use in unleaded gasoline. Because EPA should have granted the f(4) waiver on November 30, 1993, when it published its finding that Ethyl had met the only legal requirement for obtaining the waiver, we will treat the waiver as having been granted as of that date, nunc pro tunc. As EPA has consistently indicated that there has been no other obstacle to registration, it follows that MMT, assuming it ever lost its registration for use in unleaded gasoline, would have regained it on or about November 30, 1993, well before promulgation of the 1994 testing regulations. Accordingly, we order EPA to register MMT for use as an additive in unleaded gasoline, as of November 30, 1993. We do not reach Ethyl's other legal challenges to EPA's actions.

MMT's Registration Status Before the 1977 Amendments

MMT was developed as a fuel additive for increasing octane in the late 1950s, and its sales reached several hundred thousand pounds per year in the '60s. In the Air Quality Act of 1967, Congress established a registration program for fuel additives, Pub.L. No. 90-148, Sec. 210, 81 Stat. 485, 535-36, and the U.S. Public Health Service published implementing regulations in 1970, 35 Fed.Reg. 9282 (1970). The regulations made registration a condition of sale and required that manufacturers provide information on recommended range of concentration and use, and chemical composition and structure. The same year, Ethyl registered MMT for use in "motor gasoline." Ethyl thereafter sold MMT for use in both leaded and unleaded gasoline.

Also in 1970, Congress amended the Act to transfer authority over the registration program to EPA. Following the Public Health Service regulations, Congress required that EPA designate fuels and fuel additives for registration, and prohibited sale of designated fuels that were not registered. Clean Air Act Sec. 211(a). The Act required that manufacturers provide information on chemical composition, Sec. 211(b)(1), and gave EPA discretion to require information on the effect of additives on emission control performance and public health or welfare, Sec. 211(b)(2). Once EPA received the information it required, the Act said, the Administrator "shall register" the fuel or fuel additive. Sec. 211(b)(3). In Sec. 211(c), Congress permitted EPA to control or prohibit use of fuels or fuel additives that "endanger" public health or that significantly impair emissions control systems.

In 1975 EPA promulgated regulations implementing Secs. 211(a) and (b)(1). For additives, EPA designated one general category for registration: "[a]ll additives" used in motor vehicle fuels, except for motorcycle fuels. 40 CFR Sec. 79.31(a) (1976). The rules had a grandfathering clause deeming as registered under the new regulations all additives that had been registered before. Id. Sec. 79.23(b). To maintain registration, manufacturers were simply required to file an information update within six months after promulgation of the rules. The rules spelled out the basic information needed to register an additive or to maintain registration, which included "[f]uels in which the use of the additive is recommended." Id. Sec. 79.21(d).

Ethyl filed an information update within six months of promulgation of the 1975 rules. EPA prepared a list of registered fuel additives and put MMT on the list. Thereafter, during the 1970s, 1980s, and 1990s, EPA continually confirmed to Ethyl that MMT was registered. Indeed, as recently as February 1994, EPA sent Ethyl a "list of additives currently registered to Ethyl" and included MMT on the list.

The Effect of the 1977 Amendments to the Clean Air Act

In its 1977 amendments to the Clean Air Act, Congress made two important changes to the statutory scheme. First, Sec. 211(e) required EPA to promulgate regulations under Sec. 211(b)(2) for emissions and health testing no later than one year after August 7, 1977. Makers of fuels or additives already registered were required merely to submit the required testing results within three years of promulgation of the testing rules, whereas makers of ones not registered on that date were required to submit the data before registration. In the event, EPA promulgated the testing regulations nearly 16 years late, on May 27, 1994.

Second, as catalytic converters could not be used with leaded fuel, their adoption had led to a sharp rise in the use of MMT as an octane booster, and Congress responded to concerns that it and other fuel additives might harm the effectiveness of those converters. The 1977 amendments created a separate program for protecting emissions control systems by banning some additives, subject to a possible waiver. Section 211(f)(3) required that manufacturers of certain existing additives--those that were not "substantially similar" to constituents of fuel used in the certification of vehicles for emissions purposes for 1975 or later model years--stop distributing such additives effective September 15, 1978. The practical effect of this for MMT was to create a problem as to its use with unleaded gasoline only. The Report from the Senate Committee on Environment and Public Works had explained that use of MMT and other additives in unleaded gasoline was the only target, see S.Rep. No. 127, 95th Cong., 1st Sess. 90 (1977), and in 1980 EPA promulgated an interpretive rule defining "substantially similar" under Sec. 211(f) in such a way as to cover only use in unleaded gasoline, not use in leaded gasolines and diesel fuels, 45 Fed.Reg. 67443 (1980). See also 46 Fed.Reg. 38582 (1981) (a revision maintaining that interpretation); 56 Fed.Reg. 5352 (1991) (similar). In any event, all agree that Sec. 211(f)(3) barred MMT for use with unleaded gasoline. In order to temper the effects of Sec. 211(f)(3)'s ban, Congress directed EPA in Sec. 211(f)(4) to grant a waiver once it determined that the additive would not "cause or contribute to the failure of an emission control device or system." To spur prompt action by EPA, Congress provided that where the agency failed to act on an application within 180 days, the waiver would be "treated as granted."

In May 1990 Ethyl applied for a waiver under Sec. 211(f)(4), thereby initiating a process in which EPA several times required further testing. Cf. ...