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Simmons Oil Co. v. Gorsuch

ELR Citation: 13 ELR 20390
Nos. Nos. 82-2282 et al., 705 F.2d 506/18 ERC 1683/(D.C. Cir., 02/09/1983) Past ownership requirement vacated

The court vacates the portion of the Environmental Protection Agency's (EPA's) small refinery leaded gasoline standard that restricted small refiners to those that were not owned or controlled by a large refiner any time after July 1, 1981. The court finds that EPA failed to give adequate notice that it might replace the small refiner "current ownership" requirement with a "past ownership" requirement. The court rejects EPA's contention that small refiners were on notice of the definitional change because the Agency had solicited comments on a proposal to change the small refiner definition from one based on capacity limits to one based on production limits. The court holds that the past ownership requirement was not a logical outgrowth of the capacity limit change. The court also dismisses EPA's claim that a comment received from another refiner recommending a past ownership requirement provided plaintiff with adequate notice. The Agency itself, and not an interested party, must provide notice of what it plans to do. The rule may be invalidated because with notice, the rule might have been substantially changed. The court leaves the current ownership standard in force.

Counsel for Petitioner
Scott M. DuBoff
Debevoise & Liberman
1200 17th St. NW, Washington DC 20036
(202) 857-9800

Counsel for Respondents
David E. Dearing
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5777

Samuel I. Gutter, Ralph J. Colleli Jr.
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 382-4134

Before Wilkey, Wald, and Mikva, JJ.