ELR Citation: ELR 20817
No(s). 94-1505 (D.C. Cir. Apr 14, 1995)

The court holds that the U.S. Environmental Protection Agency (EPA) violated Clean Air Act (CAA) §211(f)(4) in denying, on public health grounds, a manufacturer's application for a waiver of §211(f)(1)'s prohibition on introducing into commerce new fuel additives that are not substantially similar to existing fuel additives. EPA had several times previously denied the manufacturer's §211(f)(4) waiver applications for its fuel additive methylcyclopentadienyl manganese tricarbonyl (MMT), in general finding that the additive caused or contributed to a failure of auto emission control devices or systems designed to achieve compliance with CAA emission standards. In the waiver decision that is the focus of this action, EPA determined that MMT does not cause or contribute to a failure to meet regulated emission standards, but that there is a reasonable basis for concern about the effects on public health that could result if EPA were to approve use of MMT in unleaded gasoline. The court holds that EPA erred in considering the health effects of MMT in deciding whether to grant the manufacturer a waiver for MMT. First, the plain language of §211(f)(4) only requires EPA to base its waiver decision on whether the additive's emission products make it difficult for emission control device to comply with the Act's emission standards. This provision does not require that applicants establish or that EPA determine fuel additives' public health effects. Also, the waiver provision does not afford EPA the discretion to consider factors other than the additives' effect on emission standards compliance. Second, when compared to the language in §211(c)(1), which authorizes EPA to control or prohibit fuel additives if the emission products contribute to air pollution that may reasonably be anticipated to endanger public health, it is more apparent that §211(f)(4) does not afford the discretion EPA applied. EPA may initiate proceedings under §211(c)(1) if it wants to consider whether MMT's emission products may reasonably be anticipated to endanger public health. Third, the legislative history of §211(f) indicates that Congress was concerned with fuel additives' effects on emissions, not on public health. Also, the court finds telling that EPA has never before considered public health in denying a §211(f)(4) waiver application. Next, the court rejects an intervenor auto manufacturer trade association's challenge to EPA's determination that MMT would not contribute to a failure of any emission control device or system. The court holds that EPA's analysis of the data the manufacturer submitted was careful and searching, and not arbitrary and capricious. Finally, the court orders EPA to grant the manufacturer's waiver request, but notes that its decision does not restrict EPA's authority to initiate appropriate proceedings under §211(c) to satisfy the Agency's public health concerns.

Counsel for Petitioner
F. William Brownell
Hunton & Williams
2000 Pennsylvania Ave. NW, Ste. 9000, Washington DC 20006
(202) 955-1555

Counsel for Respondents
Jon M. Lipschultz
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before: EDWARDS, Chief Judge, WALD and SENTELLE, Circuit Judges.