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Ethyl Corp. v. Browner

ELR Citation: 26 ELR 20002
Nos. No. 94-1516, 67 F.3d 941/41 ERC 1673/(D.C. Cir., 10/20/1995)

The court orders the U.S. Environmental Protection Agency (EPA) to treat "MMT" as registered for use as an additive in unleaded fuel under Clean Air Act (CAA) §211(b) as of November 30, 1993. In Ethyl Corp. v. U.S. Environmental Protection Agency, 25 ELR 20817 (D.C. Cir. Apr. 14, 1995), the court held that EPA should have granted a waiver under CAA §211(f)(4) for MMT's use on November 30, 1993, when the Agency published its finding that MMT's distributor had met the only legal requirement for obtaining the waiver. EPA's refusal to grant the waiver on that date caused MMT not to be registered when EPA promulgated regulations for fuel-additive testing requirements applicable to unregistered additives in June 1994. The court holds that EPA's refusal to grant the waiver compels nunc pro tunc ("now for then") treatment of MMT's registration. Because the only barrier to petitioner's registering MMT as an additive for use in unleaded fuel before promulgation of the 1994 regulations was lack of a §211(f)(4) waiver, a complete remedy for petitioner requires that the registration be treated as taking effect on November 30, 1993—approximately the date it would have occurred if EPA had acted lawfully. The court notes that it need not reach petitioner's other claims, because its holding makes their resolution unnecessary or because they are unripe. The court need not reach petitioner's contention that EPA acted arbitrarily and capriciously in asserting that MMT's registration for use in unleaded fuel was revoked when the 1977 CAA Amendments barred its sale for those purposes without a waiver. Nor need it reach petitioner's contention that even if EPA could reasonably interpret its regulations as implying such a revocation, the Agency denied petitioner fair notice of that interpretation. Also, the court need not address petitioner's contention that EPA lacked statutory authority to limit additive registration to sale for use in specific fuels. Finally, the court holds that petitioner's challenges to the 1994 testing rules apart from their purported effect on registration are unripe.

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

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

Before: WILLIAMS, SENTELLE, and RANDOLPH, Circuit Judges.