Opposition Brief — American Methyl Corp. v. Motor Vehicle Manufacturers Ass'n of the United States

3) FILED

No. 85-718 —~ DEG 20 1908

: NIOL, JR.

IN THE . ie =

Supreme Court of the Gnited States

OCTOBER TERM, 1985

AMERICAN METHYL CORPORATION,

Petitioner,

MOTOR VEHICLE MANUFACTURERS ASSOCIATION OF THE

UNITED STATES, INC., et a/.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

William L. Weber, Jr.

Gary P. Toth

GENERAL MOTORS

CORPORATION

New Center One Building

3031 West Grand Boulevard

P.O. Box 33121

Detroit, MI 48232

Attorneys for Respondents (313) 974-1764

QUESTIONS PRESENTED

1. Whether a fuel waiver granted by the Environmental

Protection Agency under section 211(f)(4) of the Clean

Air Act, 42 U.S.C. § 7545(f)(4), unsupported by any ra-

tional explanation of how the fuel concentration limits

set forth in the waiver relate to vehicle emissions per-

formance, why the fuel can be presumed to have no ef-

fects on emissions over a vehicle’s useful life, or why

the fuel’s failure of the agency’s own test criteria

should be ignored, may be reversed and vacated upon

judicial review?

2. Whether a fuel waiver held to be unlawful by the Court

of Appeals may be reversed and vacated upon judicial

review pursuant to section 307 of the Clean Air Act,

42 U.S.C. § 7607, without the need for further rulemak-

ing proceedings pursuant to section 211(c) of the Act,

42 U.S.C. 7545(c)?

PARTIES TO THE PROCEEDINGS

Respundents Motor Vehicle Manufacturers Association

of the United States, Inc., American Motors Corporation,

Chrysler Corporation, General Motors Corporation, and

Volkswagen of America, Inc. were the petitioners in the

Court of Appeals. Respondent in the Court of Appeals was

the Environmental Protection Agency (EPA) which issued

the final determination reviewed by the Court of Appeals.

American Methyl Corporation, petitioner herein, was an

intervenor on the side of EPA below. There are no other

parties to this case.

Pursuant to Supreme Court Rule 28.1, the Court is ad-

vised that the Motor Vehicle Manufecturers Association

of the United States, Inc., is an incorporated not-for-profit

trade association which has no parent companies, sub-

sidiaries or affiliates. Its members are:

AM General Corporation

American Motors Corporation

Chrysler Corporation

Ford Motor Company

General Motors Corporation

Honda of America Mfg., Inc.

International Harvester Company

M.A.N. Truck & Bus Corporation

PACCAR Inc

Volkswagen of America, Inc.

Volvo North America Corporation

The parent companies and non-wholly owned sub-

sidiaries and affiliates of each member of the Motor Vehi-

cle Manufacturers Association of the United States, Inc.

that is a respondent in this case are listed below under

the name of the related respondent:

ii

AMERICAN MOTORS CORPORATION

American Motors Financial Corp.

Regie Nationale des Usines Renault

CHRYSLER CORPORATION

Peugeot, S.A. (France)

Mazerati Officini Afairi, S.p.A. (Italy)

Chrysler de Mexico, S.A. (Mexico)

Diamond Star Motors Corp. (U.S.A.)

Mitsubishi Motors Corp. (Japan)

Chrysler Corporation has other non-wholly-owned sub-

sidiaries and unconsolidated subsidiaries which are lo-

cated in the United States and in foreign countries which

number in the hundreds. However, the majority nave the

Chrysler name incorporated therein.

GENERAL MOTORS CORPORATION

Aralmex, S.A. de C.V. (Mexico)

Automotriz Gencor S.A. (Ecuador)

Autos y Maquinas del Ecuador S.A. (AYMESA)

(Ecuador)

Companis Nacional de Direcciones Automotrices,

S.A. de C.V. (Mexico)

Compresores Delfa, C.A. (Venezuela)

Convesco Vehicle Sales GmbH (West Germany)

Daewoo Motor Co., Ltd. (Korea)

DHB — Componentes Automotives S.A. (Brazil)

Fabrica Colombiana de Automotores S.A.

(“Colomotores”) (Columbia)

General Motors de Colombia S.A. (Columbia)

General Motors Egypt, S.A.E. (Egypt)

General Motors Iran Limited (Iran)

General Motors Kenya Limited (Kenya)

GM Allison Japan Limited (Japan)

GM Fanuc Robotics Corp. (USA)

Industries Mecaniques Maghrebires, S.A.

(Tunisia)

ili

Industrija Delova Automobila, Kikinda

(Yugoslavia)

Isuzu Motors Limited (Japan)

Isuzu Motors Overseas Distribution Corp. (Japan)

Kabelwerke Reinshagen GmbH (West Germany)

Kabelwerke Reinshagen Werk Berlin GmbH

(West Germany)

Kabelwerke Reinshagen Werk Neumarkt GmbH

(West Germany)

Moto Diesel Mexicana, S.A. de C.V. (Mexico)

Motor Enterprises, Inc. (USA)

New United Motor Manufacturing, Inc. (USA)

Omnibus BB Transportes, S.A. (Ecuador)

Promotora de Partes Electronicos Automotrices

(Mexico) .

P.T. Mesin Isuzu Indonesia (Indonesia)

Senalizacion y Accessorios de] Automobil

Yorka, S.A. (Spain)

Suzuki Motor Co., Ltd. (Japan)

Unicables, S.A. (Spain)

VOLKSWAGEN OF AMERICA, INC.

Volkswagen AG

Deutsche Automobil G.m.b.H.

AUDI NSU AUTO UNION AG

TAS Tvornica Automobila Sarajevo

WESER-EMS Vertribes G.m.b.H.

Forjaria Sao Bernardo S.A.

Comp.inhia Vale do Rio Cristalino S.A.

InterRent Trucks S.A.

TRIUMPH-ADLER AG

Adlerwerke vorm. Heinrich Kleyer AG

Volkswagen do Brazil, S.A.

Volkswagen Argentina

iv

TABLE OF CONTENTS

Page

CUT WUE UNED on kw css cca ctccccccece i

PARTIES TO THE PROCEEDINGS............... ii

Se I 8 oo is od vee cdo kk Vv

pyr ty. Ba Vii

OO ae 1

STATMeemers Or, Bee CAGE... ww ccc wees 2

REASONS FOR DENYING THE WRIT ............ 5

I. THE POWER OF THE COURT OF APPEALS

TO REVERSE EPA’S DECISION TO GRANT A

FUEL WAIVER FOUND TO BE ARBITRARY

CAPRICIOUS AND AN ABUSE OF

DISCRETION IS WELL ESTABLISHED

AND FULLY CONSISTENT WITH

APPLICABLE PROVISIONS OF THE

RP ne Oe Seok eS 6

Il. THE COURT OF APPEALS APPLIED THE

STANDARD APPROPRIATE FOR REVIEW OF

THE ENVIRONMENTAL PROTECTION AGENCY’S

APPLICATION OF THE FUEL WAIVER

CRITERIA UNDER THE CLEAN AIR

TIGR ok tis Kobe eee Ee pas kon wins 9

A. In Making Its Own Independent Judgment as

to Whether the Environmental Protection

Agency’s Concession of Error was Warranted,

the Court of Appeals Correctly Declined to

Infer the Agency’s Reliance on Data Upon

Which the Agency Itself Did Not Purport to

WOE 60d oN aw ind wes Oe As wee ek 9

B. On the Facts of the Petrocoal Waiver

The Court of Appeals Correctly Found

EPA’s Waiver Decision to be Arbitrary and

Capricious and Properly Vacated the

Se eee eee et erie 12

C. The Court of Appeals Found Independent

Grounds to Hold the Waiver Arbitrary and

Capricious in Addition to That Raised in the

ere a ee 14

III. THERE IS NO CONFLICT BETWEEN THE

DECISION OF THE COURT OF APPEALS

AND ITS EARLIER DECISION IN

AMIGA SERTES CS) TS ERT 15

CONGRISUNMIEN 05.8.6) Sexe S bat eh kacbaneesae sab aees 19

APPENDIX A: Order Deferring Issuance of the Mandate,

Motor Vehicle Manufacturers Association,

et al. v. EPA, No. 81-2276

(Cabaeits BEBE iS hd ales is dle la

APPENDIX B: 43 Fed. Reg. 24131 (1978) (“Guidelines

for Section 211 (f) Waivers for Alcohol —

Gasoline Blends”) ................. 3a

TABLE OF AUTHORITIES

Cases

Page

Atchison, Topeka & Santa Fe Ry Co. v. Wichita

Bd. of Trade, 412 U.S. 800 (1973) ............ 11

American Methy! Corp. v. EPA, 749 F. 2d 826

ne GY SS Ae dalek asec. 4,6,8,15-18

American Textile Mfrs. Inst. v. Donovan, 452

es as eae ehnbe ends oot's cn ees 19

Burlington Truck Lines v. United States, 371 U.S.

TE tis emus ied Gag pes eheeesecess 10

Citizens to Preserve Overton Park v. Volpe,

RE a ae 10

Mobil Oil Corp. v. FPC, 417 U.S. 283 (1974) ...... 19

Mot«ir Vehicle Mfrs. Assn. v. State Farm Mut.

Ge Si ENED (0% 6 bb wae h end Cac ee 10,12,13,15

Ur.versal Camera Corp. v. NLRB, 340 U.S.

RS Seer ee Tee er eee rae 19

Vermont Yankee Nuclear Power Corp. v. NRDC,

Ce Se cw ca cca taea ce Sus vets ot 8,9

Statutes

Administrative Procedures Act, 5 U.S.C.

NN ai i i ides tae Weep send adi

Clean Air Act, as amended, 42 U.S.C. Sections

ooo SE eee Passim

Section 211(c), 42 U.S.C. §7545(c) ........... 4,6,8

Section 211(f), 42 U.S.C. §7545(M ........... 2,3,8

Section 211(f)(4), 42 U.S.C. §7545(f(4) ........ 2,6

Section 307(b)(1), 42 U.S.C. §7607(bx1) ......... 3

Section 307(d)(9), 42 U.S.C. §7607(d)(9) ...... 7,10

Vii

Miscellaneous

43 Fed. Reg. 24131 (1978) (“Guidelines for Section 211(f)

Waivers for Alcohol-Gasoline Blends”) .......... 2

46 Fed. Reg. 48975 (1981) ........... ccc eee e eens 3

49 Fed. Reg. 11870 (1986) ... 2... 6. cece el. 3

vill

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1985

No. 85-718

AMERICAN METHYL CORPORATION,

Petitioner,

Vv.

MOTOR VEHICLE MANUFACTURERS ASSOCIATION OF THE

UNITED STATES, INC., et a/.,

Respondents.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Respondents Motor Vehicle Manufacturers Association

of the United States, Inc., American Motors Corporation,

Chrysler Corporation, General Motors Corporation and

Volkswagen of America, Inc. (collectively “MVMA”), re-

spectfully request the court to deny the petition for a writ

| of certiorari to review the judgment, opinion and order of

the United States Court of Appeals for the District of Col-

umbia Circuit in this case.

OPINION BELOW

The opinion of the Court of Appeals is published at 768

F.2d 385 and is reprinted in the Petitioner’s Appendix

(Pet. App.) A, (Pet. App. 1a).

| JURISDICTION

| The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254 (1).

—————_—_—

2

STATEMENT OF THE CASE

Section 211(f) of the Clean Air Act’ prohibits the in-

troduction into commerce of any new motor fuel or fuel

additive (collectively referred to as “new fuels”) unless it

is substantially similar to those used in certifying that a

1975 or later model year vehicle or engine complies with

applicable emission -standards. Section 211(f)(4) permits

the EPA Administrator to waive this prohibition under

certain conditions:

The Administrator, upon application of any man-

ufacturer. . .may waive the prohibitions. . .if he deter-

mines that the applicant has established that such

fuel or fuel additive or a specified concentration

thereof, and the emission products of such fuel or ad-

ditive or specified concentration thereof, will not

cause or contribute to a failure of any emission con-

trol device or system (over the useful life of any vehi-

cle in which such device or system is used) to achieve

compliance by the vehicle with the emission stan-

dards with respect to which it has been certified pur-

suant to section [206].

Pursuant to its authority to grant waivers to new fuels

proven to have no detrimental! effects on vehicle emis-

sions, EPA adopted “Guidelines for Section 211(f) Waivers

for Alcohol-Gasoline Blends” (“Waiver Guidelines”).”

Early in 1981, Anafuel Corporation, now American

Methy! Corporation, petitioner herein, applied for a sec-

tion 211(f) waiver for its methanol-gasoline blend known

1 42 U.S.C. § 7545 (f), (Pet. App., 63a). For convenience, refer-

ences to sections of the Clean Air Act, 42 U.S.C. § 7401 et seq.

will refer only to the Public Law section designations. Parallel

citations to the United States Code are set forth in the Table

of Authorities.

2 43 Fed. Reg. 24131, June 2, 1978, reproduced in the appen-

dix to this brief (MVMA App., 2a).

3

as Petrocoal. Notice of this waiver application was pub-

lished on April 13, 1981 soliciting public comments on

whether Petrocoal met the statutory waiver criteria. Sev-

eral of the respondents herein filed comments opposing

the grant of a waiver.

By mutual consent of EPA and American Methyl, the

180-day review period was twice extended until Sep-

tember 28, 1981 when EPA granted a conditional waiver

for Petrocoal. This decision was published in the Federal

Register on October 5, 1981. 46 Fed. Reg. 48975 (Pet. App.

39a).

On December 4, 1981, within the time provided in sec-

tion 307(b)(1) for seeking review of nationally applicable

final EPA actions under the Clean Air Act, respondents

filed a petition for judicial review of the EPA decision to

grant a fuel waiver for Petrocoal.* At the same time, re-

spondents filed a petition with EPA seeking administra-

tive reconsideration of the waiver decision.

Petitioner American Methyl] Corporation promptly in-

tervened as a répondent in the judicial review proceeding.

The matter was stayed for almost two years while the par-

ties conducted settlement negotiations. In February of

1983, MVMA supplemented its original petition to EPA

with new information relevant to the evaporative emis-

sions effects of Petrocoal. On the basis of this new infor-

mation, EPA proposed on March 16, 1984 to revoke or

modify the Petrocoal waiver.* In light of this proposal to

reconsider the Petrocoal waiver, all the parties to the judi-

cial review proceeding, including petitioner American

Methyi Corporation, joined in a motion to remand the re-

cord of the case to EPA so that the agency could take

further administrative action with respect to the waiver.

3 The MVMA petition for judicial review and a separate one

filed the same day by General Motors Corporation were consoli-

dated.

* Notice of this proposal was published in 49 Fed. Reg. 11879,

March 28, 1984.

4

This motion was granted by the Court of Appeals on April

3, 1984.

One month later, however, American Methyl Corpora-

tion requested that EPA rescind its proposed revocation

of the Petrocoal waiver on the ground that section 211(f)

did not permit EPA to reconsider a waiver decision. When

EPA refused to do so, American Methyl filed a petition

for expedited review of EPA’s decision. The Court of Ap-

peals held that EPA did not have the authority to revoke

a fuel waiver pursuant to section 211(f), and could only

control or prohibit a fuel “in commerce” after conducting

rulemaking pursuant to sesction 211(c). American Methyl

Corp. v. EPA, 749 F. 2d 826 (D.C. Cir. 1984). Accordingly,

the court set aside the notices of the agency proceedings

proposing to revoke the waiver.

Following the American Methyl! decision, the Court of

Appeals granted MVMA’s motion for return of the record

on its petitior for judicial review of the original waiver

decision. Oral arguments were heard on May 14, 1985. At

oral argument and earlier in its brief, EPA conceded thai

the record did not support the waiver decision. On July

26, 1985, Judge Wald, writing for a unanimous three-

judge panel, found that the Administrator had acted arbit-

rarily and capriciously, and had abused her discretion in

granting the Petrocoal waiver. Accordingly, the court vac-

ated the Administrator’s decision and remanded the mat-

ter to EPA for further proceedings consistent with its deci-

sion (Pet. App., 1a).°

5 American Methyl Corporation subsequently filed a motion

for rehearing, suggesting that rehearing be en banc. This mo-

tion was denied September 18, 1985. On September 23, 1985,

petitioner also requested the Court of Appeals to stay the is-

suance of the court’s mandate through October 25, 1985, pend-

ing filing a petition for a writ of certiorari. This motion was

granted on October 1, 1985 (Pet. App., 57a) and, upon the filing

of the instant petition for certiorari, the court deferred issuance

of the mandate pursuant to F.R.A.P. Rule 41(b) until final dis-

position by this Court (MVMA App., 1a).

5

REASONS FOR DENYING THE WRIT

The decision of the Court of Appeals, characterized by

petitioner as raising an issue of “first impression” (Pet.

20), was properly decided. It does not conflict with either

the Clean Air Act or any decision of this or any other

court. Moreover, far from establishing any need for defini-

tive guidance from this Court with respect to an important

federal question of far-reaching scope and special signifi-

cance, petitioner’s arguments belie a simple, fact-bound

dispute.

From the outset, MVMA’s member companies have vig-

orously objected to a fuel waiver for Petrocoal. Judicial re-

view was promptly sought. The Court of Appeals has now

determined that the Petrocoal waiver should never have

been granted because petitioner failed to establish that

Petrocoal met the criteria to qualify for the Clean Air Act

waiver. From the time of the waiver decision in 1981 until

now, the petitioner has been able to reap the benefits of

an unlawful waiver. As a consequence, the EPA waiver

decision created the very peril which Congress sought to

eliminate when it, prohibited introduction of new fueis un-

less they were shown to have no detrimental effect on ve-

hicle emissions and, correspondingly, on the nation’s air

quality.

Without in any way ameliorating the defects in the

waiver decision delineated by the Court of Appeals,

petitioner has attempted to portray the court below as

having applied an inappropriate standard of review to the

agency decision. Alternatively, petitioner argues that

even conceding the invalidity of the waiver, petitioner

should be entitled to continue to benefit from EPA’s arbi-

trary and capricious action while the agency conducts yet

another rulemaking proceeding, under substantively dif-

ferent statutory criteria than those construed by the Court

of Appeals, as if the waiver decision had never been re-

viewed and vacated.

6

The court below found three independent bases for con-

cluding that the Administrator’s decision was “arbitrary,

capricious and an abuse of discretion.” American Methyl

addresses only one of those grounds in its petition while

ignoring the other two, either of which would provide a

basis for vacating the waiver decision.

The standard of review applied by the court in its re-

view of the administrative record is well-established and

fully consistent with applicable provisions bf the Clean

Air Act. Having found that the waiver was unlawful, the

court properly vacated the agency decision.

I. THE POWER OF THE COURT OF APPEALS TO RE-

VERSE EPA’S DECISION TO GRANT A FUEL

WAIVER FOUND TO BE ARBITRARY, CAPRI-

CIOUS AND AN ABUSE OF DISCRETION IS WELL

ESTABLISHED AND FULLY CONSISTENT WITH

APPLICABLE PROVISIONS OF THE CLEAN AIR

ACT.

The question presented by petitioner is whether EPA

can revoke a fuel waiver without resort to rulemaking

under section 211(c) of the Act. That question, and the re-

lated discussion set forth in the petition itself (Pet. 11-14),

are irrelevant to a review of the decision in this case.

Petitioner’s formulation of the question completely fails to

distinguish between: (1) a case in which EPA, by admin-

istrative initiative and without benefit of judicial review,

seeks to undo a previous decision to grant a fuel waiver

by administrative action; and (2) a case in which a grant

of a fuel waiver is held unlawful upon judicial review and

is vacated by the court of appeals. In the former situation,

it is clear that EPA may control or prohibit a fuel only

through a section 211(c) proceeding. Indeed, this was the

holding in the American Methyl decision, supra, more

fully discussed in Part III of this brief. However, that is

not the situation in this case.

In this case, the Court of Appeals, after reviewing the

merits of EPA’s decision to grant a fuel waiver for Pet-

7

rocoal pursuant to section 211(f)(4), found the decision to

be arbitrary, capricious and an abuse of discretion. Ac-

cordingly, the court vacated the EPA decision.

Under both the Clean Air Act and the Administrative

Procedure Act, the reviewing court may properly reverse

any action of the Administrator found to be arbitrary.®

Section 307(d)(9) of the Clean Air Act provides, in rele-

vant part:

In the case of review of any action of the Administrator

to which this subsection applies, the court may reverse

any such action found to be —

(A) arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with the law;

Similarly, the judicial review provision applicable to in-

formal agency action under the Administrative Procedure

Act, 5 U.S.C. § 706, states in pertinent part:

To the extent necessary to decision and when presented,

the reviewing court shall decide all relevant questions

of law, interpret constitutional and statutory provisions,

and determine the meaning or applicability of the terms

of an agency action. The reviewing court shall —

* * *

(2) hold unlawful and set aside agency action, find-

ings, and conclusions found to be —

(A) arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law;

* * *

® The Court of Appeals considered, but found it unnecessary

to decide whether the judicial review provision of the Clean Air

Act, section 307(d)(9), or of the Administrative Procedure Act,

5 U.S.C. § 706, governed the standard of review applicabie to

the waiver decision because the standard (i.e. whether EPA’s

actions were in excess of statutory authority or arbitrary or cap-

ricious) was the same under either Act (Pet. App. 8a, fn 6).

8

There can be no question that the Court of Appeals had

authority to reverse EPA’s waiver decision. Yet,

petitioner’s argument that the only recourse in this case

even if the waiver were properly held unlawful is further

EPA rulemaking pursuant to section 211(c) would render

that authority and the judicial review provisions of the

Act a nullity.’ EPA’s authority to conduct rulemaking to

regulate a fuel pursuant to section 211(c) is independent

of the fuel waiver process under section 211(f) since the

Agency, upon making the requisite findings set out in sec-

tion 211(c), may regulate any fuel in commerce at any

time, including one which previously received a section

211(f) waiver. Whether such a waiver was lawfuily

granted or not is completely irrelevant for purposes of sec-

tion 211(c) rulemaking. Thus, the effect of remanding this

case for EPA rulemaking under section 211(c) would be

the same whether EPA’s waiver decision were reversed or

sustained by the court below. There is simply no support

for the proposition that the only relief a reviewing court

can order is another, substantively different rulemaking

proceeding.

The “unambiguously expressed intent of Congress” (Pet.

14) set forth in the judicial review provisions of the Act,

far from mandating the anomalous result suggested by

petitioner, dictates that EPA waiver decisions be subject

to judicial review and be reversed if found arbitrary or

capricious. This is what happened in the court below and

the result is fully consistent with the Clean Air Act and

this Court’s decision in Vermont Yankee Nuclear Power

Corp v NRDC, 435 U.S. 519 (1978). In that case, the Court

7 Section 211(c), while related to section 211(f) in that the

principal focus is a fuel’s effect on air pollution, contains addi-

tional substantive criteria for regulation (e.g., cost-benefit anal-

ysis of alternative control strategies, section 211(c)(2)(B)) and

is procedurally “more cumbersome” than section 211(f). Ameri-

can Methyl, 749 F.2d at 840. The full text of section 211 is re-

produced in Pet. App. G, 58a et seq.

9

held that when an agency’s action “is not sustainable on

the administrative record made, then the [agency’s] deci-

sion must be vacated and the matter remanded to [the

agency]” — but the court should not otherwise intrude into

the administrative process. 435 U.S. at 549.

The fact is that the court below followed Vermont Yan-

kee’s instructions to the letter. Indeed, the court expressly

provided the agency another opportunity to make a

“reasoned decision” to grant the waiver (Pet. App. 36a) for

what was clearly the benefit of petitioner. There is noth-

ing in the Clean Air Act to suggest that a reviewing court

can find an agency’s decision invalid, but is powerless to

reverse or vacate that invalid agency action. Moreover, it

is presumptious for the party which stands to benefit from

the court’s direction on remand to now attempt to use it

as a ground for seeking certiorari.

Il. THE COURT OF APPEALS APPLIED THE STAN-

DARD APPROPRIATE FOR REVIEW OF THE EN-

VIRONMENTAL PROTECTION AGENCY’S APPLI-

CATION OF THE FUEL WAIVER CRITERIA

UNDER THE CLEAN AIR ACT.

A.In Making Its Own Independent Judgment as to

Whether the Environmental Protection Agency’s

Concession of Error was Warranted, the Court of

Appeals Correctly Declined to Infer the Agency’s

Reliance on Data Upon Which the Agency Itself

Did Not Purport to Rely.

Petitioner’s claim that the Court of Appeals disobeyed

the “dictates of this Court regarding the scope of judicial

review of administrative decisions” (Pet. 17) is baseless.

Petitioner does not take issue with the standard of review

expressly applied by the Court of Appeals. Rather,

petitioner resorts to a fact-bound quarre! with the court’s

conclusion that the agency’s unexplained departure from

its general waiver guidelines and reversal of course from

10

established decisional criteria were arbitrary and capri-

cious. Further review by this Court of the factual record

would hardly be justified in any case; in the context of

the Petrocoal waiver record’s dearth of evidence or argu-

ment to support key elements of the EPA decision such

review is clearly unwarranted.

The standard of review appropriate for the EPA waiver

decision at issue in this case is well-recognized. Whether

judicial review is conducted pursuant to provisions of the

Clean Air Act or the Administrative Procedure Act® the

agency action must be reversed if the action was “arbi-

trary, capricious, an abuse of-discretion, or otherwise not

in accordance with law.”

This is precisely the standard of review that the court

below applied to the EPA’s implementation of the fuel

waiver provisions in this case (Pet. App. 8a). Moreover,

the court agreed with American Methyi Corporation’s as-

sertion that it was not bound by EPA’s concession of

8 As the court below noted, the standard in either case is the

same. See note 4, supra.

® Section 307(d)(9)(A); Citizens to Preserve Overton Park v.

Volpe, 401 U.S. 402, 414 (1971), citing 5 U.S.C. § 706(2)(A). Ac-

cordingly, it is incumbent upon EPA to “articulate a satisfactory

explanation for its action including a ‘rational connection be-

tween the facts found and the choice made’.” Motor Vehicle

Mfgrs. Assn. v. State Farm Mut. 463 U.S. 29, 43 (1983) (quoting

Burlington Truck Lines v. United States, 371 U.S. 156,168

(1962)). A factual decision made by an Agency is to be subjected

by the court to “a thorough, probing, in-depth review” in order

to determine “whether the decision was based on a consideration

of the relevant factors and whether there has been a clear error

of judgment.” Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402, 415, 416 (1971).

11

error.'° However, in making its own independent judg-

ment as to whether EPA’s concession was warranted, the

Court of Appeals correctly declined to infer that the

agency relied on data which EPA did not Site as a consid-

eration in its decision.

The evidence in the record and the Administrator’s

decision are simply not of the nature which would

warrant this court attributing to the Administrator

reasons not even hinted at in the decision.

(Pet. Appl. 24a, n. 20). The Court of Appeals is not re-

quired to substitute blind deference to the agency decision

for its own review of the factual record, particularly when

the agency contravenes its own guidelines for action.’

EPA’s waiver decision did not merely suffer from a lack

of “ideal clarity” (Pet. 18), but failed, as the agency con-

ceeded in this case, to explain a number of the most criti-

cal factors upon which emissions performance is depen-

dent (Pet. Ap. 23a, n. 19). The agency also failed to ex-

plain its departure from prior norms.

1° EPA conceded that “the record does not appear to support

[the alcohol concentration] limits” and “does not appear to sup-

port key elements of the waiver” (Pet. App. 24a).

11 “A settled course of behavior embodies the agency’s in-

formed judgment that, by pursuing that course, it will carry out

the policies committed to it by Congress. There is, then, at least

a presumption that those policies will be carried out best if the

settled rule is adhered to. From this presumption flows the

agency’s duty to explain its departure from prior norms.” Atchi-

son, Topeka & Santa Fe Ry Co. v. Wichita Bd. of Trade, 412

U.S. 800, 807-08 (1973) (emphasis added).

12

B. On The Facts of The Petrocoal Waiver The Court of

Appeals Correctly Found EPA’s Waiver Decision To

Be Arbitrary and Capricious and Properly Vacated

The Waiver.

The Court of Appeals found the Petrocoal waiver deci-

sion to be arbitrary and capricious for three independent

reasons: (1) EPA “lacked any rational basis for conclud-

ing that Petrocoal will not cause or contribute to a vehi-

cle’s failure to comply with emissions standards over its

useful life” (Pet. App. 16a); (2) the record did “not support

the maximum limits [of Methanol and other alcohols in

the fuel blend] allowed by the waiver” (Pet. App. 26a); and

(3) the “Administrator... failed to articulate any plausible

reason why the established test criteria do not accurately

reflect the emissions effects due to Petrocoal” [to justify

disregarding Petrocoal’s failure of the test for NO, emis-

sions] (Pet. App. 31a).!”

Of these three grounds, petitioner raises a factual dis-

pute only with regard to the last (failure of the test for

oxides of nitrogen (NO,) emissions). Petitioner contends

that the Court of Appeals’ conclusion contradicts the

guidelines for review set forth in Motor Vehicle Manufac-

turers Association v. State Farm Mutual, 463 U.S. 29

(1983), which admit of agency latitude to adapt their rules

‘2 The Court of Appeals recognized that the various errors

identified in the waiver decision cast doubt on other portions

of the record cited in support of the Petrocoal waiver. Thus

“..the fact the “worst case” [maximum methanol limits] fuel

might not have been tested casts doubt on the confidence we

may place in any of the test results on Petrocoal cited to support

the waiver decision” (Pet. App. 26a). Similarly, “...even if we

accepted the validity of the conclusion [that durability tests

were unnecessary], Petrocoal failed — albeit marginally — the

Deteriorated Emissions Test performed in lieu of 50,000-mile

testing. Under these circumstances, we have no doubt that the

EPA abused its discretion in determining that Petrocoal will not

cause a vehicle to exceed the emission standards over its useful

life.” (Pet. App. 16a).

wo sae,

ojo

13

to the demands of changing circumstances (Pet. 15-16).

However, as the court below clearly explained, the Admin-

istrator acknowledged the failure to meet the NO, emis-

sion requirement with Petrocoal, but serendipitously dis-

missed the failure as not being a significant one. It was

the Administrator’s purely subjective evaluation of the de-

gree of failure which led the court to conclude:

The Administrator may not simply subjectively with-

out a reasoned explanation conclude that a failure of

the EPA’s established criteria is not significant. Sec-

tion 211(f)(4) speaks in terms of “a failure” to achieve

compliance with the emissions standards. We find

nothing in the Act or its legislative history to support

the Administrator’s added gloss that the relevant

question is whether the fuel will cause or contribute

to a “significant failure”. (Citation omitted). We con-

clude that on the record in this case the Administra-

tor acted arbitrarily, capriciously, and abused her dis-

cretion in granting the Petrocoal waiver despite Pet-

rocoal’s failure of the Deteriorated Emissions for NO,

emissions. (Pet. App. 32a). Tes

It is hardly surprising that the court below found EPA’s

decision with respect to NO, failures arbitrary. In asses-

sing the emissions effects of Petrocoal, EPA itself selected

the test procedure to be applied, defined the pass and fail

criteria and, after Petrocoal failed the test, chose to disre-

gard the result despite the fact that the waiver “applicant

has the burden of proving that such harm will not occur”

(Pet. App. 32a). EPA offered no explanation of “what fac-

tors or circumstances the Administrator relied on as jus-

tification for her deviation from the established criteria

in the case of Petrocoal” (Pet. App. 32a, fn 25).'°

13 In fact, “...even the EPA, while arguing that the Adminis-

trator could deviate from the established criteria given a

reasoned explanation, conceded that the Administrator gave no

such reasoned explanation in this case ” (Pet. App. 30a).

14

C. The Court of Appeals Found Independent Grounds to

Hold the Waiver Arbitrary and Capricious In Addi-

tion To That Raised in the Petition .

The court below, after examining the factual record,

found it lacking to such a degree that it expressed doubt

that EPA, on remand, could “make a reasoned decision to

grant the Petrocoal waiver” (Pet. App. 36a). As discussed

supra, the court found two wholly independent reasons for

vacating the Administrator’s decision in addition to the

failure for NO, emissions discussed in the petition.

Petitioner has failed to explain how the outcome of this

case would have been any different even if the court below

had accepted its arguments with regard to the NO, fail-

ure. Since those additional reasons have not been placed

in controversy by the petition, we set forth here only a

brief description of these two independent bases for find-

ing that the waiver was unlawful.

The court below recognized that section 211(f)(4) re-

quires that EPA determine that a fuel will not cause or

contribute to a failure of an emission device to comply

with applicable emission standards during a vehicle’s

50,000 mile useful life (Pet. App. 15a). In the absence of

actual data showing the presence or absence of such ef-

fects, EPA must have a rational basis for determining

whether a fuel will comply with this criterion. The only

rationale offered by EPA for its conclusion that durability

data were unnecessary rested entirely on three of its pre-

vious waiver decisions which, the court determined, could

“in no way be construed to provide a reasonable basis for

the EPA’s conclusion that Petrocoal — a fuel containing

up to 12 percent methanol — would have only instantane-

ous, not deteriorative [i.e., changing over time], effects”

(Pet. App. 22a).

Similarly, the maximum concentration limits estab-

lished by the waiver (12 percent methanol, 15 percent

total alcohol, Pet. App. 5a) were found to be totally unsup-

15

ported by any data in the record on the emissions effects

of the “worst case” fuel, as even EPA conceded (Pet. App.

24a). In short, the waiver decision fits squarely into cir-

cumstances described in Motor Vehicle Manufacturers As-

sociation cited by petitioner (Pet. 17) in which an agency

action would be arbitrary and capricious: the EPA, in sub-

jectively assessing the degree of Petrocoal’s failure for

NO, emissions, relied on factors which Congress had not

intended it to consider, entirely failed to consider an im-

portant aspect of the problem of the maximum concentra-

tion limits, and offered explanations for its decision to

forgo testing of the durability (useful life) effects of Pet-

rocoal that ran counter to the evidence before the agency.

Ill. THERE IS NO CONFLICT BETWEEN THE DECI-

SION OF THE COURT OF APPEALS AND ITS

EARLIER DECISION IN AMERICAN METHYL

In a final effort to bring this case within the criteria

of Rule 17 for certiorari review, petitioner contends that

the decision of the court below is in “direct conflict” (Pet.

18) with the Court of Appeals’ 1984 decision in American

Methyl, supra.'* While this purported conflict within the

same federal circuit may have the distinction of being one

of the more novel theories urged as a basis for seeking

certiorari, it suffers from a fundamental improbity -- there

is no conflict between the two decisions.

In the American Methyl case, the court considered the

authority of EPA to revoke a waiver administratively pur-

suant to section 211(f) of the Act, “based entirely on new

evidence” after the fuel was “in commerce.” 749 F.2d at

834. The court held that the EPA Administrator “may not

revoke the Petrocoal waiver pursuant to section 211(f), but

may forbid the marketing of Petrocoal only pursuant to

14 This was also the principal argument which petitioner un-

successfully advanced in seeking en banc rehearing in the Court

of Appeals.

16

his [sic] authority to control or prohibit fuel and fuel addi-

tives under section 211(c).” 749 F2d at 831. Contrary to

petitioner’s argument (Pet. 18), the American Methy] case

did not involve “basically the same issues as were decided

in this case for which certiorari is sought.”

The Court of Appeals considered the following three is-

sues in American Methyl: “first, is judicial review appro-

priate at this stage in the administrative process; second,

should American Methyl be estopped from challenging

EPA’s assertion of revocation authority; and third, does

section 211(f) of the Clean Air Act empower EPA to revoke

the Petrocoal waiver?” Id. These are hardly “basically the

same issues that were decided in this case for which cer-

tiorari is sought” (Pet. 18).’°

The lawfulness of the original Petrocoai waiver decision

clearly was not an issue before the court in American

Methyl. This was expressly noted in the following two ex-

cerpts from the American Methy] opinion:

.. there is no issue before us as to the original adminis-

trative record justifying the Petrocoal waiver...;

and

..no issue before us as to the adequacy of the original

waiver.

749 F.2d at 837. Additionally, in the opinion authored by

Judge Wald who was a member of the panel for both

American Methyl and the case below, it was expressly

stated:

'S Petitioner also states that American Methyl “involved all

of the parties to this case and no others” (Pet. 18). In fact, par-

ties to American Methyl! who are not parties to the instant liti-

gation included intervenors Automobile Importers of America,

Inc. and United American Fuels, Inc.

17

In American Methyl, this court held that EPA had no

inherent authority to reconsider or revoke a waiver

under section 211(f)(4) but must instead proceed to pro-

hibit or regulate the fuel under section 211(c). American

Methyl, 749 F2d at 831. The court explicitly stated that

the issue of the original waiver was not before the court.

Id. at 837.

(Pet. App. 26a).

The American Methyl] petition also suggests that the

earlier case disposed of arguments relating to the proposed

grounds for revocation examined by the court below in its

judicial review of the original waiver decision, by charac-

terizing them as “make-weights” and “red herrings” (Pet.

19). However, such an argument completely ignores the

context of those characterizations in American Methyl.

The court’s reason for discussing these issues in the ear-

lier case was to demonstrate that EPA’s principal motiva-

tion in proposing to revoke the waiver was “new evidence”

relating to hydrocarbon evaporative emissions, and not a

deficiency in the agency’s original waiver decision. This

is clear from the following language from the opinion of

the case below: -

The [American Methyl] court determined, however, that

the EPA’s actions and the chronology of events leading

up to the proposed revocation was new evidence relating

to Petrocoal’s effect on evaporative emissions of hydro-

carbons and not any purported defects in the original

waiver. Id. The court then went on to characterize the

EPA’s assertion of deficiencies in the record supporting

the original waiver grant as “make-weights” and “red

herrings”. Id. at 837-38. Contrary to American Methyl’s

contention, however, the court characterized the EPA’s

claims that it sought revocation due to the incorrectness

of the original waiver as “make-weights” and “red her-

rings”, not because the claims per se lacked merit, but

because they lacked merit as purported reasons for the

proposed revocation proceeding (Pet. App. 27a).

18

Therefore, the court’s consideration of these factors in

the judicial review of the original waiver is not in conflict

with their characterization as “make-weights” and “red

herring” arguments in the context of the American

Methy! case.

™n conclusion, the decision below is not in any way in

conflict with the same court’s prior decision in American

Methyl. It is also consistent with the policy arguments

cited by petitioner (Pet. 20). The power of the Court of Ap-

peals to review and reverse unlawful action of EPA is fun-

damental to the implementation of the goals of the Clean

Air Act and “comports with basic fairness” to fuel man-

ufacturers (Pet. 20). MVMA’s petition for judicial review

was filed within 60 days of publication of the Petrocoal

waiver decision. Petitioner American Methyl Corporation

became a party to the case at its earliest stage and partici-

pated in all the developments leading to the resolution of

this case by the court below.

This is not, then, a case wherein a fuel manufacturer

is charged with knowing “ex ante whether his product

vould be available for sale for a sufficient time to recoup

his initial investment” (Pet. 20). The risk, assumed by

petitioner is that of any applicant for a waiver and

petitioner has no basis to claim a vested right to an un-

lawful agency decision, especially when that decision

might have grave consequences to the nation’s air quality

and can result in damage to vehicles.

The real issue in this case was whether EPA’s decision

to grant a fuel waiver for Petrocoal was arbitrary, capri-

cious, or an abuse of discretion. As this court has often

repeated, that kind of fact-based inquiry is one which

“Congress has placed in the keeping of the Courts of Ap-

peals,” and in which “[tJhis Court will intervene only in

what ought to be the rare instance when the standard ap-

pears to have been misapprehended or grossly mis-

applied.” Mobile Oil Corp. v. FPC, 417 U.S. at 310. See

19

American Textile Mfrs. Inst. v. Donovan, 425 U.S. 490

(1981); Universal Camera Corp. v. NLRB, 340 U.S. 474,

491 (1951). As the foregoing analysis of the facts actually

before the Court of Appeals has made manifest, this is not

that ki:iu of case.

CONCLUSION

The petition for a writ of certiorari to the United States

Court of Appeals for the District of Columbia Circuit

should be denied.

Attorneys for Respondents

Motor Vehicle

Manufacturers

Association of the

United States, Inc.,

American Motors

Corporation, Chrysier

Corporation, General

Motors Corporation

and Volkswagen of

America, Inc.

December 23, 1985

Respectfully submitted,

William L. Weber, Jr.

Gary P. Toth

General Motors

Corporation

New Center One Bldg.

3031 West Grand Blvd.

Detroit, MI 48232

(313) 974-1764

William H. Crabtree

V. Mark Slywynsky

(Counsel of Record)

Motor Vehicle

Manufacturers

Association of the

nited States, Inc.

500 New Center Bldg.

Detroit, MI 48202

(313) 872-4311

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1985

No. 81-2276

MOTOR VEHICLE MANUFACTURERS ASSOCIATION OF THE

UNITED STATES, INC., et ai.,

. Petitioners

ENVIRONMENTAL PROTECTION AGENCY,

Respondent

AMERICAN METHYL CORPORATION,

Intervenor

AND CONSOLIDATED CASE NO. 81-2279

ORDER

On October 1, 1985, this Court entered an order with-

holding issuance of its mandate herein “through October

25, 1985”. Thereafter, by order entered October 28, a mo-

tion previously filed by intervenor American Methy! Cor-

poration, requesting a further stay of mandate, was de-

nied. The Clerk has been informed orally by the Office of

the Clerk of the Supreme Court of the United States that

on October 25, 1985, intervenor American Methyl Corpo-

ration filed a petition for a writ of certiorari. It is expected

2a

that written confirmation will follow. Accordingly, it ap-

pears that there has been substantial compliance by inter-

venor American Methyl Corporation with the provisions

of Rule 41(b) of the Federal Rules of Appellate Procedure.

Upon consideration of the foregoing, it is

ORDERED, that the Clerk shall defer issuance of the

mandate in accordance with the requirements of Rule 41

(b), Federal Rules of Appellate Procedure.

For The Court

/s/ George A. Fisher

GEORGE A. FISHER

Clerk

[Filed October 31, 1985]

3a

APPENDIX B

ENVIRONMENTAL PROTECTION AGENCY

[FRL-904-6]

OFFICE OF ENFORCEMENT

Guidelines for Section 211 (f) Waivers for

Alcohol-Gasoline Blends

AGENCY: Environmental Protection Agency

ACTION: Notice

SUMMARY: The Clean Air Act Amendments of 1977

added section 211(f), which prohibits or limits the use of

certain fuels and fuel additives, including alcohol-gasoline

blends. Section 211(f) also provides for waivers of these

prohibitions and limitations if a fuel or fuel additive man-

ufacturer can show that a fuel or fuel additive wiil not

cause or contribute to the failure of any emission control

device or system installed on vehicles or engines to

achieve compliance with applicable emission standards.

Pursuant to section 211(f), the Administrator has 180

days after receipt of an application within which to grant

or deny a waiver. If the Administrator does not act within

180 days, the application for waiver shall be treated as

granted.

These Guidelines are being published in order to facili-

tate waiver application and review for alcohol-gasoline

blends, in particular Gasohol. The Guidelines also estab-

lish procedures for the waiver process.

FOR FURTHER INFORMATION CONTACT: George Y.

Sugiyama, Attorney-Advisor, Mobile Source Enforcement

Division (EN-340), U.S. Environmental Protection

Agency, 401 M Street SW., Washington, D.C. 20460, 202-

755-2848. 3

4a

SUPPLEMENTARY INFORMATION: Guidelines: Sec-

tion 211(f)(4) Waivers

I. Applications for Waivers and Burden of Proof

All requests for a waiver, the supporting data, and the

contents of ail related submittals should be public infor-

mation and therefore releasable to any party requesting

such data. Shouid an applicant for a waiver desire to as-

sert a claim of business confidentiality or trade secret in-

formation over any part of an application requesting a

waiver, such assertion should only be made if the failure

to submit such information would seriously jeopardize the

success of the application and the release of such informa-

tion will cause significant harm to the applicant.

Applications for waivers should be submitted only by

manufacturers of fuels or fuel additives. Requests for

waivers by individuals or organizations who are not man-

ufacturers will not be considered a sufficient request for

waiver such as to initiate the 180 day review period pro-

vided by section 211(f)(4). For purposes of initiating the

180 day requirement, an application will be considered to

be received on the date it is delivered to the Director,

Mobile Source Enforcement Division. Use of certified (re-

turn receipt) or registered mail is encouraged.

The Administrator may waive the section 211(f) prohib-

itions and restrictions if he “determines that the applicant

has established” (emphasis supplied) that the fuel additive

in question will not cause the effects described in section

211(f)(4). The burden of performing tests and furnishing

data and evidence is upon the applicant. Applications

which are not accompanied by any evidence as to the ef-

fects of a fuel additive upon the emissions performance of

the national automobile fleet will be denied. Any waiver

granted to one manufacturer will be applicabie to any

manufacturer similarly situated. Multiple applications for

the same waiver are not necessary and are discouraged

unless based on different or additional information.

5a

Il. Definitions

A. Substantially Similar

A fuel additive is not substantially similar to any fuel

additive used in the certification of any model year 1975

or subsequent model year vehicle or engine under section

206 of the Clean Air Act (as amended), if:

(a) Such fuel additive contains any element other than

an impurity which was not specified for use, or was not

typically contained, in the fuel utilized in the certification

of any model year 1975, or subsequent model year vehicle

or engine, or

(b) The chemical structure of the additive is not identi-

cal to the chemical! structure of any additive specified for

use in the certification of any model year 1975, or sub-

sequent model year vehicle or engine.

B. Introduction Into Commerce

Introduction into commerce of a fuel additive occurs

when with regard to a quantity of fuel containing such

additive:

(a) No further blending, mixing, or other treatment or

change to the chemical composition of the fuel will occur,

and

(b) The fuel has entered into the process of shipment,

such as pipeline or common carrier (whether or not owned

or controlled by the manufacturer), with the purpose of

selling or offering for sale.

C. Increase in Concentration

The phrase “increase in concentration” is applicable on

a per refiner basis and, with respect to fuel additives, will

be considered to occur if any concentration in any gallon

of fuel (in grams of additive per gallon) exceeds any pre-

ceeding concentration for a fuel entered into commerce.

6a

Ill. Testing Procedures

A request for a waiver should contain data relating to

a fuel additive’s emissions effects which are derived from

vehicle testing. It is essential that test data provide a reli-

able basis for comparison with the conditions under which

vehicles are certified pursuant to section 206 of the Clean

Air Act. The various tests and conditions under which

tests should be conducted are described below.

A. Use of the FTP for Exhaust Emissions Testing

For all tailpipe tests the Federal Test Procedure for

1978 and subsequent year light-duty vehicles should be

used. The FTP is described at 40 CFR 86.101 et seq. Any

deviations from the FTP should be reported in the applica-

tion for waiver along with an explanation as to the

reasons for such deviations.

B. Federal Durability Schedule

EPA has reason to believe that any alcohol-gasoline

blended fuels effects which may cause or contribute to the

failure of a vehicle or engine to meet emission standards

will be concentration and/or time dependent. Due to this

dependence, such effects may not appear during the rela-

tively short period (3 to 4 months) over which mileage is

accumulated utilizing the 50,000 mile Federal Durability

Schedule (40 CFR Part 86 Appendix IV).

EPA requests information on any time and concentra-

tion dependent effects that alcohol-gasoline blends may

have on automotive systems such as gaskets or othe parts

of fuel systems, both metallic and nonmetallic. Further,

any testing procedures which are used to determine such

effects should be described in detail.

Should an applicant for a waiver choose to obtain

mileage accumulation data, any deviations from the Fed-

eral Durability Schedule should be reported in the appli-

cation for waiver along with an explanation of the reasons

for such deviations.

7a

C. Testing at Various Concentration Levels of

Fuel Additives

Where a waiver is sought for a fuel additive, the addi-

tive’s effects upon emissions performance may be critically

) dependent upon its concentration in use. Data submitted

| should encompass the range of concentrations intended for

use. No attempt by EPA to extrapolate data to a permissi-

——j—~ ble concentration level is contemplated.

IV. Fuel and Fuel Additive Specifications

A. Mileage Accumulation Fuel

The fuel utilized for mileage accumulation should be

similar to that utilized in the certification of light-duty

motor vehicles under section 206 of the Clean Air Act ex-

cept with regard to the application additive. Reference

should be made to 40 CFR 86.113-79(a)(2) for an example

of one such fuel. Specifications for the mileage accumula-

tion fuel should be reported in the application for a waiver

along with documentation that the fuel utilized did not

vary in specifications.

B. Emission Test Fuel

All emission testing should be performed using Indolene

fuel except with regard to the application additive. If In-

dolene fuel is not used, then it is recommended that the

specifications for emission test fuel contained at 40 CFR

86.113-79(a)(1) be followed. Specifications for the emis-

sion test fuel used should be reported in the application

for a waiver along with documentation demonstrating

that the fuel utilized did not vary in specifications.

V. Durability of Emission Control Systems and Devices

A waiver cannot be granted if a fuel additive will cause

or contribute to a failure of any emission control device

or system to achieve compliance with the standards over

the vehicle’s useful life. EPA believes that harm to emis-

sion control devices or systems which adversely affects ve-

XE

8a

hicle performance, such that removal or rendering in-

operative of such devices or systems may be reasonably

expected, should be considered a basis under section 211

(f)(4) for denying a waiver. Where the potential for such

harm is evidenced, the applicant has the burden of prov-

ing that such harm will not occur.

VI. Formats for Submittal of Information

A. A separate application should be filed for each addi-

tive for which a waiver is requested.

B. The application should be in writing, signed by an

authorized representative of the applicant, and clearly in-

dicate that it is an application for a waiver pursuant to

section 211(f)(4) of the Clean Air Act.

C. All information and data which is used to support

. a request for a waiver should be submitted at the same

time. Substantive amendments (other than technical cor-

rections of information already received by EPA) may be

considered to be new applications, and the date such

amendments are received may be treated as the beginning

of the 180 day period specified in section 211(f)(4).

D. An application filed by more than one party is per-

missible and will be accepted.

E. The applicant has the burden of furnishing to EPA

all data which is referenced or utilized as support for a

request for a waiver.

F. Each application will receive a docket number

which will be communicated to the applicant(s) along with

the receipt date of the application. All correspondence

should refer to the docket number.

G. A copy of each application should be submitted to:

Director, Mobile Source Enforcement Division (EN-340),

Environmental Protection Agency, 401 M Street, SW.,

Washington, D.C. 20460.

9a

H. Each application should contain the following infor-

mation:

1. Fuel and fuel additive specifications for the mileage

accumulation and emissions test fuel and for the fuel and/

or fuel additive for which a waiver is requested and the

methods of analysis.

2. HC, CO, NO, emission values in grams/mile for

each test performed.

3. Deterioration factors for each vehicle.

4. A description or reference to a description of all pro-

cedures used to test each vehicle.

5. A record and description of maintenance and other

servicing performed.

6. The results of each emission test for each vehicle

and the point in the durability schedule at which such ve-

hicles were tested.

7. A description of each vehicle in the control ard test

fleets, including a description of their engines, emission

control sys.ems, fuel system components, and any au-

xiliary emission control devices.

8. Results of analysis of the actual fuel used in mileage

accumulation and emission testing with respect to addi-

tive concentration, lead content, octane rating, sulfur con-

tent, phosphorus content, Reid vapor pressure, distillation

specifications, and hydrocarbon composition.

9. Evidence of other physical effects of the additive for

which waiver is requested on fuel system parts for the

50,000 miles of operation (e.g., indication of corrosion or

material incompatibility with the additive).

10a

10. Evidence of the physical effects of the additive for

which waiver is requested on catalytic converters for the

50,000 miles. of operation (e.g., pressure drop test results

or other physical testing to determine extent of catalyst

plugging).

Dated: April 24, 1978.

MARVIN B. DURNING,

Assistant Administrator

for Enforcement.