Jump to Navigation
Jump to Content

Star Enter. v. EPA

ELR Citation: 31 ELR 20348
Nos. No. 98-6321, 235 F.3d 139/(3d Cir., 12/07/2000)

The court holds that the U.S. Environmental Protection Agency (EPA) erroneously classified two stationary gas turbines in an electrical power complex as subject to regulation under the new source performance standards (NSPS) for petroleum refineries. The regulations apply to affected facilities in petroleum refineries as well as to petroleum refineries. The stationary gas turbines at issue are part of a larger project that will convert high-sulfur petroleum coke from the adjacent petroleum refinery into synthesis gas, which will then be burned in the gas turbines to produce steam and electricity to power the adjacent refinery. EPA argued that because the project is located adjacent to a refinery that is under common ownership and control, it should be considered part of the adjacent refinery, and, therefore, the gas turbines, which are an integral part of the powering project, are "in" a petroleum refinery.

The court first holds that EPA determinations interpreting NSPS constitute legislative rules. EPA's determination, therefore, must be upheld unless clearly erroneous. The court then holds that the gas turbines are not in the petroleum refinery and, therefore, are not affected facilities subject to regulation. Even though the project is adjacent to a refinery owned by the same company, it is in a freestanding building in an electric power plant complex that is physically separate and distinct from the refinery. Neither the project nor the electric power plant complex in which it is located is a refinery. Additionally, the project is not necessary to the refinery's operations. Therefore, because EPA incorrectly included the stationary gas turbines for regulation under the NSPS for petroleum refineries, its determination was vacated.

Counsel for Petitioners
Jeffrey N. Hurwitz
Morgan, Lewis & Bockius
1701 Market St., Philadelphia PA 19103
(215) 963-5000

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

Before Rendell and Pollak,1 JJ.