ELR Citation: ELR 20005
No(s). s. 84-1204, -1277 (D.C. Cir. Dec 4, 1984)

The court rules that the Environmental Protection Agency (EPA) lacks authority under §211(f) of the Clean Air Act to revoke waivers to market gasoline additives. Initially the court accepts as the law of this case a motions panel decision rejecting EPA's claim that the petition is premature on grounds of ripeness, finality, and exhaustion of administrative remedies. The court also rejects EPA's argument that petitioner is equitably estopped from challenging the waiver revocation. Neither petitioner's one-year delay in objecting to EPA's notice that it was considering revocation among several options, nor its acquiescence in remand of the record in the original waiver proceeding, justify estoppel, because petitioner objected soon after the dates on which EPA actually proposed revocation and the remand took place. The court rules that it need not defer to EPA's interpretation of relevant Clean Air Act sections, because the interpretation conflicts with clear congressional intent.

The court rules that fuel additives allowed into commerce through the §211(f) waiver process can only be regulated through the §211(c) additive control requirements. The legislative history establishes that §211(c) is the only means of limiting additives allowed automatically as a result of uncontested waiver applications, and EPA's suggestion that a different standard applies to contested waivers is nonsensical. Since Congress provided the §211(c) mechanism to correct mistakes in the waiver process, the court rules that there is no need to resolve the scope of any inherent agency power to reconsider its decision. The court's interpretation is consistent with the statutory design of §211, with §211(f) controlling the first introduction of additives into commerce and §211(c) controlling regulation of additives already in commerce. EPA's prime reason to revoke the waiver is unrelated to any deficiencies in its original determination, but rests on new information that could be considered under §211(c). The court also holds that EPA's past practices do not demonstrate a solid commitment to the revocation principle it evokes here, and that barring revocation serves the goals of the Clean Air Act.

Counsel for Petitioners
James W. Moorman, Arnold B. Podgorsky, Scott N. Stone
Cadwalader, Wickersham & Taft
1333 New Hampshire Ave. NW, Washington DC 20036
(202) 293-6300

Counsel for Respondent
David E. Dearing, Margaret Shand
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2741

A. James Barnes, General Counsel; Ralph J. Collel Jr., Gerald K. Gleason
Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 382-4134

Counsel for Intervenors
Charles H. Lockwood II, William H. Crabtree, V. Mark Slywynsky, William L. Weber Jr., Thomas L. Arnett
Motor Vehicles Manufacturers Ass'n
300 New Center Bldg., Detroit MI 48202
(313) 872-4311

R. Sarah Compton
Collier, Shannon, Rill & Scott
Suite 308, 1055 Thomas Jefferson St. NW, Washington DC 20007
(202) 342-8400

Before: WILKEY, WALD and SCALIA, Circuit Judges.