2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-7-2000

Star Enterprise v. Environmental Protection Agency

Precedential or Non-Precedential:

Docket 98-6321

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Recommended Citation

"Star Enterprise v. Environmental Protection Agency" (2000). 2000 Decisions. Paper 245.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/245
Filed December 7, 2000 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 98-6321 

STAR ENTERPRISE; TEXACO INC., 

 Petitioners 

v. 

UNITED STATES ENVIRONMENTAL 

PROTECTION AGENCY, 

 Respondent 

On Petition for Review of a Final Action by 

The United States Environmental Protection Agency 

Argued July 15, 1999 

Before: ROTH and RENDELL, Circuit Judges 

POLLAK,1 District Judge 

(Opinion filed: December 7, 2000) 

William H. Lewis, Jr., Esquire 

Michael W. Steinberg, Esquire 

 (Argued) 

Morgan, Lewis & Bockius LLP 

1800 M Street, N.W. 

Washington, D.C. 20036-5869 

_________________________________________________________________ 

1. Honorable Louis H. Pollak, United States District Court Judge for the 

Eastern District of Pennsylvania, sitting by designation. 
 Jeffrey N. Hurwitz, Esquire 

 Morgan, Lewis & Bockius LLP 

 1701 Market Street 

 Philadelphia, PA 19103-2921 

 Counsel for Petitioners 

 Lois J. Schiffer 

 Assistant Attorney General 

 Norman L. Rave, Esquire (Argued) 

 United States Department of Justice 

 Environmental Defense Section 

 P.O. Box 23986 

 Washington, DC 20026-3986 

 Diane McConkey, Esquire 

 Office of General Counsel 

 United States Environmental 

 Protection Agency 

 Charles McPhedran 

 Senior Assistant Regional Counsel 

 United States Environmental 

 Protection Agency 

 Counsel for Respondent 

OPINION OF THE COURT 

ROTH, Circuit Judge: 

The United States Environmental Protection Agency (EPA) 

determined that the "Standards of Per formance for 

Petroleum Refineries," promulgated under the Clean Air Act 

and codified at 40 C.F.R. SS 60.100-60.109 (1999) (Subpart 

J), applied to two stationary gas turbines located in an 

electrical power plant complex in Delaware City, Delaware. 

The petitioners challenge this determination. Because we 

conclude that the stationary gas turbines at issue in this 

case are not "in" a "petroleum r efinery," we hold that these 

turbines are not "affected facilities" as defined at 40 C.F.R. 

S 60.100(a) and therefore ar e not subject to regulation 

under the "Standards of Perfor mance for Petroleum 

 2 
Refineries." For that reason, the EP A erred in determining 

that these performance standards ar e applicable to the gas 

turbines at issue in this case. 

I. FACTS 

Petitioners, Motiva Enterprises, LLC, and Texaco, Inc., 

challenge a final agency action, issued on July 21, 1998, by 

the Environmental Protection Agency.2 This final action, 

entitled "New Source Performance Standards Subpart J 

Applicability Determination for the Star Enterprise

Petroleum Refinery in Delaware City, Delaware," set forth 

the EPA's conclusion that two stationary gas turbines, 

owned by Motiva and located in an electrical power plant 

complex adjacent to Motiva's petroleum r efinery in

Delaware City, are subject to regulation under the New 

Source Performance Standards (NSPS) for Petroleum 

Refineries, codified at 40 C.F.R. SS 60.100-60.109.

Before addressing the merits of the petitioners' challenge, 

we will discuss the relevant regulatory framework. The 

emission of sulfur dioxide (SO2), which causes acid rain 

and has serious adverse health effects, particularly among 

asthmatics, is regulated by the EPA under the Clean Air 

Act. See, e.g., American Lung Ass'n v. Environmental 

Protection Agency, 134 F.3d 388, 389-90 (D.C. Cir. 1998). 

Section 111 of the Clean Air Act, codified at 42 U.S.C. 

S 7411, authorizes the EPA to pr omulgate performance 

standards for new and modified sources of pollution that 

the EPA concludes cause or significantly contribute to air 

pollution. See 42 U.S.C. S 7411(b) (2000). These standards, 

the NSPS's, must: 

 [R]eflect[ ] the degree of emission limitation achievable 

 through the application of the best system of emission 

 reduction which (taking into account the cost of 

_________________________________________________________________ 

2. On October 1, 1998, all assets of Star Enterprise, including the 

facilities at issue in this case, were transferred to Motiva. Petitioners 

filed 

a motion on July 15, 1999, to formally substitute Motiva for Star 

Enterprise in this litigation. The motion was unopposed and was 

granted. Thus, Motiva and Texaco became the petitioners and parties of 

interest. We refer to both Motiva and Star throughout this opinion as 

appropriate. 

 3 
 achieving such reduction and any nonair quality health 

 and environmental impact and energy r equirements) 

 the Administrator determines has been adequately 

 demonstrated. 

42 U.S.C. S 7411(a)(1) (2000). NSPS's apply only to "affected 

facilities" that were constructed, modified or reconstructed 

after the publication of the applicable proposed regulation.3 

Each NSPS explicitly defines and describes the"affected 

facilities" to which it applies. 

The EPA has issued NSPS's for over 70 "sour ce" 

categories. Most of these NSPS's relate to specific industries 

such as glass manufacturing, see 40 C.F .R. SS 60.290- 

60.296 (1999), nitric acid manufacturing, see 40 C.F.R. 

SS 60.70-60.74 (1999), ferroalloy pr oduction, see 40 C.F.R. 

SS 60.260-60.266 (1999), copper smelting, see 40 C.F.R. 

SS 60.160-60.166 (1999), and the NSPS at issue here, 

Subpart J, petroleum refining, see 40 C.F.R. SS 60.100- 

60.109 (1999). The EPA has also issued NSPS's for generic 

source categories. These generic source NSPS's apply to 

specific types of industrial equipment regar dless of the 

purpose for which the equipment is used. Examples of 

generic source categories include incinerators, see 40 

C.F.R. SS 60.50-60.54 (1999), r ecently constructed fossilfuel-fired steam generators, see 40 C.F.R. SS 60.40-60.46 

(1999), and stationary gas turbines, see 40 C.F.R. 

SS 60.330-60.335 (1999) (Subpart GG).4 

NSPS Subpart J, "Standards of Perfor mance for 

Petroleum Refineries," was designed to r educe SO2 

emissions from petroleum refineries. As set forth in 

S 60.100, the provisions of Subpart J"are applicable to the 

following affected facilities in petroleum refineries: fluid 

catalytic cracking unit catalyst regenerators, fuel gas 

combustion devices, and all Claus sulfur r ecovery plants 

_________________________________________________________________ 

3. See 40 C.F.R. S 60.1(a) (1999) ("[T]he provisions of this part apply to 

the owner or operator of any stationary sour ce which contains an 

affected facility, the construction or modification of which is commenced 

after the date of publication in this part of any standard (or, if 

earlier, 

the date of publication of any proposed standar d) applicable to that 

facility."). 

4. See supra Part IV C for further on Subpart GG. 

 4 
except Claus plants of 20 long tons per day (L TD) or less." 

40 C.F.R. S 60.100(a) (1999) (emphasis added). Subpart J 

goes on to define a "petroleum refinery" as "any facility 

engaged in producing gasoline, kerosene, distillate fuel oils, 

residual fuel oils, lubricants, or other pr oducts through 

distillation of petroleum or through r edistillation, cracking 

or reforming of unfinished petr oleum derivatives." 40 C.F.R. 

S 60.101(a) (1999). At issue in this case ar e two stationary 

gas turbines, turbines that the EPA contends are "fuel gas 

combustion devices" and thus "affected facilities" (as set 

forth in S 60.100(a)), subject to regulation under Subpart J.5 

The EPA initially proposed the NSPS for petroleum 

refineries in 1973 and issued the corr esponding final 

regulation, what is now Subpart J, on Mar ch 8, 1974. 

Recognizing that petroleum refineries pr ocess numerous 

gases that contain significant amounts of hydr ogen sulfide 

(H2S) and that the uncontr olled combustion of these gases 

resulted in significant SO2 emissions, the EPA's primary 

goal in promulgating Subpart J was the r eduction of SO2 

emissions from petroleum refineries. Subpart J prohibits 

the owner or operator of a "fuel gas combustion device" 

located in a petroleum refinery fr om combusting any "fuel 

gas" that contains H2S in excess of 230 milligrams per dry 

standard cubic meter. See 40 C.F .R. S 60.104(a)(1). 

Compliance with this standard can be established either by 

monitoring the amount of H2S in the fuel being burned or 

by monitoring the amount of SO2 emitted from the fuel gas 

combustion device in question.6 

_________________________________________________________________ 

5. The term "fuel gas combustion device" is defined in Subpart J as "any 

equipment, such as process heaters, boilers andflares used to combust 

fuel gas, except facilities in which gases ar e combusted to produce 

sulfur 

or sulfuric acid." 40 C.F.R. S 60.101(g) (1999). The term "fuel gas" is 

further defined in Subpart J as "any gas which is generated at a 

petroleum refinery and which is combusted." 40 C.F.R. S 60.101(d) 

(1999). 

6. In October 1990, the EPA established an"SO2 equivalence level" to 

allow regulated entities to monitor the amount of SO2 emitted after 

combustion in lieu of monitoring the amount of H 2S in the "fuel gas" 

prior to combustion. See 40 C.F.R.S 60.105(a)(3)(ii) (1999). Based on the 

investigation "of typical fuel gas compositions and their combustion 

products," the EPA determined that the "SO2 equivalence level" set forth 

in S 60.105(a)(3)(ii) (20 parts per million (ppm), dry basis, zero percent 

excess air) was equivalent to an H2S level of 230 milligrams per dry 

standard cubic meter. 55 Fed. Reg. 40,171, 40,172 (Oct. 2, 1990). 

 5 
Consistent with the goal of reducing SO2 emissions from 

petroleum refineries, the definition of "fuel gas" in Subpart 

J was modified on two separate occasions to exclude gases 

that do not contain significant amounts of H2S. Originally, 

in 1974, "fuel gas" was defined as "any gas which is 

generated by a petroleum refinery pr ocess unit and which 

is combusted, including any gaseous mixture of natural gas 

and fuel gas which is combusted." 39 Fed. Reg. 9308, 9315 

(Mar. 8, 1974). In March 1979, the EP A modified the 

definition of "fuel gas" to include: 

 [N]atural gas or any gas generated by a petr oleum 

 refinery process unit which is combusted separately or 

 in any combination. Fuel gas does not include gases 

 generated by catalytic cracking unit catalyst 

 regenerators and fluid coking unit coke bur ners. 

44 Fed. Reg. 13,480, 13,481 (Mar. 12, 1979). The definition 

was changed in 1979 to explicitly exclude gases generated 

by "catalytic cracking unit catalyst regenerators and fluid 

coking unit coke burners" because such gases do not

contain significant amounts of H2S. 

By changing the definition of "fuel gas" in 1979, the EPA 

arguably brought within the scope of the regulation natural 

gas produced off-site and transported to a petroleum 

refinery via pipeline. The EPA had not intended to subject 

such natural gas to regulation under Subpart J because 

natural gas transported to a petroleum r efinery via pipeline 

contains only trace amounts of H2S due to specifications 

established to minimize pipeline corrosion. See 45 Fed. Reg. 

13,991, 13,991 (March 3, 1980). The EPA, however, did 

intend to regulate natural gas that was both pr oduced and 

combusted on-site at a petroleum refinery: 

 In a few cases, however, a refinery may [itself] generate 

 natural gas. There may be no legal or technical 

 requirement that this gas be desulfurized before 

 combustion. If this gas contains appreciable hydrogen 

 sulfide and sulfur constituents, significant emissions of 

 sulfur dioxide would result when it is bur ned. The 

 existing standards of performance were intended to 

 cover these types of gases. 

 6 
Id. The EPA further noted that the"intent of the existing 

standards of performance for r efinery fuel gas has always 

been to prevent the emissions of sulfur dioxide resulting 

from the burning of gaseous fuels containing hydrogen 

sulfide." Id. To clarify this distinction (the distinction 

between natural gas produced on-site at a petr oleum 

refinery and natural gas transported fr om an off-site 

location via pipeline), the EPA proposed revising the first 

sentence of the definition of "fuel gas" to read: " `Fuel gas' 

means natural gas generated at a petroleum r efinery or any 

gas generated by a refinery process unit, which is 

combusted separately or in any combination with any type 

of natural gas." Id. The EPA ultimately received several 

comments indicating that this proposed language was

confusing because gases produced at a r efinery were not 

generally considered "natural gas" even if their chemical 

composition was similar to that of natural gas. See 45 Fed. 

Reg. 79,452, 79,453 (Dec. 1, 1980). In response to these 

comments, the EPA modified the definition of fuel gas one 

last time to include "any gas which is generated at a 

petroleum refinery and which is combusted." Id. The EPA 

indicated that this final definition was meant to encompass 

"any gas which has the composition of natural gas." Id. 

The stationary gas turbines at issue in this case ar e to be 

located in an existing electrical power plant complex 

adjacent to the Motiva petroleum refinery in Delaware City. 

This power plant complex was originally owned and 

operated by Delmarva Power & Light Company.7 At the time 

of its construction in the mid-1950's, Delmarva entered into 

an agreement with Star, Motiva's pr edecessor in interest, to 

provide steam and electricity to Star's adjacent petroleum 

refinery. Delmarva owned and operated the power plant for 

35 years. In January 1989, Star exercised its option to 

purchase the power plant from Delmarva, and actual 

ownership of the power plant was transferred in January 

1992. Following the transfer of ownership, ther e was no 

change in the purpose or operation of the power plant, and 

Delmarva has continued to operate the power plant. In 

connection with its acquisition of the power plant complex, 

_________________________________________________________________ 

7. In 2000, Delmarva changed its name to Conectiv. In this opinion, 

however, we will continue to refer to the company as Delmarva. 

 7 
Star entered into an agreement with Delmarva to supply 

electrical power on demand to the Delmarva power grid 

from one of the boilers in the power plant. 

The stationary gas turbines are part of a lar ger project 

being designed and constructed within the existing power 

plant complex in Delaware City. This pr oject, known as the 

Repowering Project, is designed to replace and/or upgrade 

certain existing power plant units at the power plant 

complex. Once operational, the Repowering Pr oject will 

convert high-sulfur petroleum coke produced at Motiva's 

adjacent petroleum refinery into synthesis gas, which will 

then be burned in the stationary gas turbines at issue to 

produce steam and electricity. The steam and electricity will 

power Motiva's adjacent petroleum refinery; excess 

electricity will be sold to Delmarva and others on the 

commercial power grid. 

On July 17, 1997, pursuant to 40 C.F.R. S 60.5, Star 

requested a determination of Subpart J nonapplicability 

from the EPA Region III office. In essence, Star asked the 

EPA to issue a ruling stating that Subpart J does not apply 

to the Repowering Project's stationary gas turbines. 

Approximately one year later, the EP A responded by issuing 

an action entitled "New Source Perfor mance Standards 

Subpart J Applicability Determination for the Star 

Enterprise Petroleum Refinery in Delawar e City, Delaware" 

in which the EPA concluded that Subpart J applies to 

Motiva's Repowering Project, and, more specifically, applies 

to the two stationary gas turbines that are part of the 

Repowering Project and will burn synthesis gas to produce 

steam and generate electricity. In reaching its conclusion, 

the EPA relied primarily on three facts: (1) the power plant 

that houses the Repowering Project is adjacent to Motiva's 

petroleum refinery, (2) the Repowering Project will provide 

electricity and steam to the Motiva's adjacent petr oleum 

refinery, and (3) Motiva owns not only the electrical power 

plant complex which houses the Repowering Pr oject but 

also the Repowering Project itself and the adjacent

petroleum refinery.8 

_________________________________________________________________ 

8. The EPA also determined that because the aforementioned "synthesis 

gas," which was to be combusted in the stationary gas turbines at issue 

 8 
The EPA's determination was initially communicated not 

to Star but to the EPA Region III office. When Star learned 

of EPA's decision, it sought to withdraw its r equest for a 

determination of nonapplicability. However , the State of 

Delaware asked the EPA for a final determination because 

certain conditions to the issuance of a state construction 

permit were based on EPA's decision that Subpart J was 

applicable to the two stationary gas turbines. 

The EPA finalized its determination on July 21, 1998, 

and Star timely filed petitions for review with both this 

Court and the U.S. Court of Appeals for the District of 

Columbia Circuit. On January 19, 1999, the U.S. Court of 

Appeals for the District of Columbia Circuit granted the 

EPA's motion to dismiss on venue grounds. The petition 

then proceeded before us. 

II. JURISDICTION 

We have appellate jurisdiction over this petition for review 

pursuant to S 307(b)(1) of the Clean Air Act. See 42 U.S.C. 

S 7607(b)(1) (2000). Moreover, we note that despite earlier 

concerns about the justiciability of the pr esent controversy, 

we are now persuaded that all the necessary pr erequisites 

to adjudicating this dispute have been met. Indeed, it is 

undisputed by the parties that the EPA deter mination at 

issue is a final agency action, see, e.g., Bennett v. Spear, 

520 U.S. 154, 177-78 (1997),9 that the EPA determination 

_________________________________________________________________ 

in this case, was generated "at" a petr oleum refinery, this gas was a 

"fuel 

gas" as defined in Subpart J. See 40 C.F.R. S 60.101(d) (1999). The 

parties to this action argue extensively as to whether the "synthesis gas" 

burned in these stationary gas turbines is indeed "fuel gas" and as to 

whether the stationary gas turbines at issue ar e "fuel gas combustion 

devices" as these terms are defined in Subpart J. As discussed infra, we 

hold today that Subpart J is inapplicable to the stationary gas turbines 

at issue in this case because the turbines ar e not located "in" a 

"petroleum refinery." We therefore need not reach the question of 

whether the "synthesis gas" burned in these stationary gas turbines is a 

"fuel gas" or whether these turbines ar e "fuel gas combustion devices" as 

these terms are defined in Subpart J. 

9. As the Supreme Court noted in Bennett : 

 9 
at issue is ripe for review, see, e.g., Ohio Forestry Ass'n v. 

Sierra Club, 523 U.S. 726, 733 (1998),10 and that at least 

one of the petitioners, Motiva, has standing to challenge the 

EPA's determination, see, e.g., Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 560 (1992).11 

_________________________________________________________________ 

 [T]wo conditions must be satisfied for agency action to be "final": 

 First, the action must mark the "consummation" of the agency's 

 decisionmaking process, Chicago & Souther n Air Lines, Inc. v. 

 Waterman S.S. Corp., 333 U.S. 103, 113 (1948)--it must not be of 

 a merely tentative or interlocutory natur e. And second, the action 

 must be one by which "rights or obligations have been determined," 

 or from which "legal consequences will flow," Port of Boston Marine 

 Terminal Ass'n. v. Rederiaktiebolaget T ransatlantic, 400 U.S. 62, 

71 

 (1970). 

Bennett, 520 U.S. 177-78. As the parties concede, and as the facts 

detailed above clearly indicate, the two conditions set forth in Bennett 

have been met. Thus, the EPA's determination is a final agency action 

and is reviewable by this Court. 

10. As the Supreme Court stated in Ohio Forestry: 

 In deciding whether an agency's decision is, or is not, ripe for 

 judicial review, the Court has examined both the "fitness of the 

 issues for judicial decision" and the "har dship to the parties of 

 withholding court consideration." Abbott Laboratories v. Gardner, 

 387 U.S. 136, 149 (1967). To do so in this case, we must consider: 

 (1) whether delayed review would cause har dship to the plaintiffs, 

 (2) whether judicial intervention would inappr opriately interfere 

with 

 further administrative action, and (3) whether the courts would 

 benefit from further factual development of the issues presented. 

Ohio Forestry, 523 U.S. at 733. As the parties concede, and as the facts 

detailed above clearly indicate, evaluation of the three factors 

delineated 

in Ohio Forestry clearly demonstrates that the EPA's determination is 

ripe for judicial review. 

11. As the Supreme Court held in Lujan : 

 Over the years, our cases have established that the irreducible 

 constitutional minimum of standing contains thr ee elements. First, 

 the plaintiff must have suffered an"injury in fact"--an invasion of 

 a legally protected interest which is (a) concrete and 

particularized 

 and (b) "actual or imminent, not `conjectural' or `hypothetical.' " 

 Second, there must be a causal connection between the injury and 
 10 
III. STANDARD OF REVIEW 

A necessary precursor to determining the appropriate 

standard of review in this case is deter mining whether the 

agency action in question is an "interpretive rule" or a 

"legislative rule." Although petitioners contend that the 

EPA's determination is an "interpr etive rule" rather than a 

"legislative rule," and thus that the deter mination is 

entitled to little or no judicial deference, we conclude that 

the EPA's determination is a legislative rule. See, e.g., 

Wisconsin Elec. Power Co. v. Reilly, 893 F .2d 901, 904-05 

(7th Cir. 1990) (en banc); National-Southwire Aluminum Co. 

v. EPA, 838 F.2d 835, 838, 841-42 (6th Cir. 1988); Potomac 

Elec. Power Co. v. EPA, 650 F.2d 509, 513 (4th Cir. 1981). 

An agency determination is a "rule" under the 

Administrative Procedure Act if it is a"statement of general 

or particular applicability and future ef fect [and] designed 

to implement, interpret, or prescribe law or policy . . . ." Dia 

Navigation Co. v. Pomeroy, 34 F.3d 1255, 1263 (3d Cir. 

1994) (quoting 5 U.S.C. S 551(4)). Such a"rule" may be an 

"interpretive rule" or a "legislative rule." Id. at 1264. As we 

stated in Dia: 

 If the rule is based on specific statutory pr ovisions, and 

 its validity stands or falls on the correctness of the 

_________________________________________________________________ 

 the conduct complained of--the injury has to be"fairly . . . 

 trace[able] to the challenged action of the defendant, and not . . 

. 

 th[e] result [of] the independent action of some third party not 

before 

 the court." Third, it must be "likely," as opposed to merely 

 "speculative," that the injury will be "r edressed by a favorable 

 decision." 

Lujan, 504 U.S. at 560. As the parties concede, and as the facts detailed 

above clearly indicate, the three requir ements set forth in Lujan have 

been met with respect to Motiva. Because Motiva has standing to bring 

suit, we need not reach the question of whether Texaco has met the 

necessary constitutional and/or prudential standing requirements. See, 

e.g., Director, Office of Workers' Compensation Programs v. Perini N. 

River 

Assocs., 459 U.S. 297, 303-05 (1983); V illage of Arlington Heights v. 

Metropolitan Hous. Dev. Corp., 429 U.S. 252, 263-64 & n.9 (1977). See 

generally Lujan, 504 U.S. at 560 (constitutional standing); Hazardous 

Waste Treatment Council v. Thomas, 885 F.2d 918, 921-27 (D.C. Cir. 

1989) (prudential standing). 

 11 
 agency's interpretation of those provisions, it is an 

 interpretive rule. If, however, the rule is based on an 

 agency's power to exercise its judgment as to how best 

 to implement a general statutory mandate, the rule is 

 likely a legislative one. 

Id. (quoting United Techs. Corp. v. EPA, 821 F.2d 714, 719- 

20 (D.C. Cir. 1987)). 

Courts will reject an agency's interpretive rule if it is 

contrary to clear congressional intent. See Chevron, U.S.A., 

Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 

837, 843 n.9 (1984); American Ambulance Serv. v. Sullivan, 

911 F.2d 901, 908 (3d Cir. 1990). If a statute is silent or 

ambiguous with respect to congressional intent, courts 

must defer to an agency's determination if the 

determination is consistent with a per missible construction 

of the statute. See Chevron, 467 U.S. at 843-45; see Beatty 

v. Danri Corp., 49 F.3d 993, 997 (3d Cir . 1995). "Varying 

degrees of deference are accor ded to administrative 

interpretations, based on such factors as the timing and 

consistency of the agency's position, and the natur e of its 

expertise," Batterton v. Francis, 432 U.S. 416, 425 n.9 

(1977), and an interpretive rule is not binding on the 

agency or this Court, see Armstead v. United States

Department of Housing and Urban Development, 815 F.2d 

278, 282 (3d Cir. 1987). In contrast, a legislative rule, an 

agency's interpretation of its own regulation, is "controlling 

unless `plainly erroneous or inconsistent with the 

regulation.' " Auer v. Robbins, 519 U.S. 452, 461 (1997) 

(quoting Robertson v. Methow Valley Citizens Council, 490 

U.S. 332, 359 (1989)); see Beatty, 49 F .3d at 997;

Rodriguez v. Reading Hous. Auth., 8 F.3d 961, 965 (3d Cir. 

1993). 

Although the Third Circuit has yet to r eview an EPA 

determination under the Clean Air Act, the Fourth, Sixth, 

and Seventh Circuit Courts of Appeals have engaged in 

such review, with all three Circuits concluding that 

Congress, through the Clean Air Act, dir ected the EPA to 

promulgate New Source Perfor mance Standards. See 

Wisconsin Elec. Power Co., 893 F.2d at 904-905; NationalSouthwire Aluminum Co., 838 F.2d at 838, 841-42; Potomac 

Elec. Power Co., 650 F.2d at 513. The Fourth and Seventh 

 12 
Circuit Courts of Appeals have held that EP A 

determinations made with respect to New Source 

Performance Standards are controlling unless plainly 

erroneous or inconsistent with the regulation at issue. See 

Wisconsin Elec. Power Co., 893 F.2d at 907; Potomac Elec. 

Power Co., 650 F.2d at 513. The Sixth Cir cuit, in contrast, 

has held that EPA determinations made with respect to 

New Source Performance Standar ds are controlling unless 

"arbitrary, capricious, an abuse of discr etion, or otherwise 

not in accordance with law." National-Southwire Aluminum 

Co., 838 F.2d at 836. 

Section 111 of the Clean Air Act provides: 

 The Administrator shall . . . publish (and fr om time to 

 time thereafter shall revise) a list of categories of 

 stationary sources. He shall include a category of 

 sources in such list if in his judgment it causes, or 

 contributes significantly to, air pollution which may 

 reasonably be anticipated to endanger public health or 

 welfare. 

42 U.S.C. S 7411(b)(1)(A) (emphasis added). Section 111 

further provides: 

 Within one year [of making a list accor ding to the 

 above provision], the Administrator shall publish 

 proposed regulations, establishing Federal standards of 

 performance for new sources within such category. . . . 

 [After opportunity is given for public comments and the 

 comments are considered], he shall pr omulgate . . . 

 such standards with such modifications as he deems 

 appropriate. 

42 U.S.C. S 7411(b)(1)(B) (emphasis added). 

These provisions clearly indicate that the EP A was

directed by Congress to promulgate r egulations necessary 

to implement the Clean Air Act. Thus, we conclude that 

EPA determinations interpreting New Source Performance 

Standards, once handed down, constitute "legislative rules." 

Consistent with our reasoning in Dia, as well as with 

Supreme Court jurisprudence and opinions in the Fourth, 

Sixth, and Seventh Circuit Courts of Appeals, the EPA 

determination at issue in this case is a "legislative rule," 

 13 
and therefore must be upheld unless plainly erroneous or 

inconsistent with Subpart J. See, e.g., Auer v. Robbins, 519 

U.S. 452, 461 (1997); Beatty, 49 F.3d at 997; Rodriguez, 8 

F.3d at 965. 

IV. DISCUSSION 

A. Subpart J & "Affected Facilities in Petroleum 

 Refineries" 

As detailed above, each New Source Perfor mance 

Standard promulgated under the Clean Air Act applies to 

specific "affected facilities," and each New Source

Performance Standard explicitly sets forth and defines the 

"affected facility" or "affected facilities" to which it applies. 

Consistent with this regulatory framework, Subpart J 

states in relevant part: 

 The provisions of this subpart are applicable to the 

 following affected facilities in petr oleum refineries: fluid 

 catalytic cracking unit catalyst regenerators, fuel gas 

 combustion devices, and all Claus sulfur recovery 

 plants except Claus plants of 20 long tons per day 

 (LTD) or less. The Claus sulfur recovery plant need not 

 be physically located within the boundaries of a 

 petroleum refinery to be an affected facility, provided it 

 processes gases produced within a petr oleum refinery. 

See 40 C.F.R. S 60.100(a) (1999) (emphasis added). 

In determining that the stationary gas turbines located at 

Motiva's Repowering Project are fuel gas combustion

devices subject to regulation under Subpart J, the EPA 

concluded that the turbines are "affected facilities" as 

defined by 40 C.F.R. S 60.100(a). However, as 40 C.F.R. 

S 60.100(a) expressly indicates, Subpart J does not apply to 

all "fuel gas combustion devices," but rather applies only to 

"fuel gas combustion devices" located "in petroleum

refineries." Thus, the key question, upon which the

outcome of this petition hinges, is: Are the stationary gas 

turbines here "in" a "petroleum r efinery?" 

Subpart J defines a "petroleum refinery" as "any facility 

engaged in producing gasoline, kerosene, distillate fuel oils, 

residual fuel oils, lubricants, or other pr oducts through 

 14 
distillation of petroleum or through r edistillation, cracking 

or reforming of unfinished petr oleum derivatives." 40 C.F.R. 

S 60.101(a) (1999). While the EPA r eadily concedes that the 

Repowering Project and the larger electrical power plant 

complex, in which the Repowering Project is located, are 

not a "petroleum refinery,"12 the EPA nonetheless contends 

that the Repowering Project's two stationary gas turbines 

are "in" a "petroleum refinery" and are subject to regulation 

under Subpart J. 

In originally determining that the stationary gas turbines 

are subject to regulation under Subpart J, the EPA stated: 

 Star's [Repowering] Project is located adjacent to the 

 remainder of the refinery and is under common 

 ownership and control; therefore, it is considered part 

 of the refinery. Further evidence that the[Repowering] 

 Project is integrated into refinery operations is that the 

 [Repowering] Project will supply most of the refinery's 

 steam and all power requirements, has the ability to 

 combust other fuel gas from the refinery, and . . . will 

 help Star manage its solid waste from the r efinery. 

 Because the [Repowering] Project is part of the refinery, 

 fuel gas combustion devices associated with the 

 [Repowering] Project are "in" a refinery and fuel gas 

 generated at the [Repowering] Project is generated at a 

 refinery. 

NSPS Subpart J Applicability Determination for the Star 

Enterprise Petroleum Refinery in Delawar e City, Delaware, 

Memorandum Dated July 21, 1998 (Star Applicability 

Determination). In short, the EPA concluded and now

contends that because Motiva's Repowering Pr oject "is 

located adjacent to" a "[petroleum] r efinery [that] is under 

common ownership and control," it should be"considered 

part of the [adjacent] refinery," and thus that the stationary 

gas turbines at issue in this case, turbines that ar e an 

integral part of the Repowering Project, ar e "in" a 

"petroleum refinery." 

_________________________________________________________________ 

12. It is undisputed that Motiva's Repowering Pr oject is a cogeneration 

facility that will gasify petroleum coke and combust the resulting 

synthesis gas to generate only electricity and steam. 

 15 
This reasoning alone cannot, however, pr ovide the basis 

for concluding that the Repowering Project's stationary gas 

turbines are subject to regulation under Subpart J. Indeed, 

were the EPA's reasoning sufficient to establish that the 

Repowering Project is part of Motiva's adjacent petroleum 

refinery, it would also be sufficient to establish that any 

independent, free-standing facility owned by Motiva and 

built on land adjacent to Motiva's petroleum r efinery is part 

of Motiva's petroleum refinery. For example, EPA's 

reasoning would also be sufficient to establish that a 

McDonald's restaurant, owned by Motiva and built on land 

adjacent to Motiva's petroleum refinery for the convenience 

of refinery workers, is part of Motiva's adjacent petroleum 

refinery. Under this interpretation, the EPA would be able 

to regulate, under Subpart J, fuel gas combustion devices 

inside the McDonald's. Even though these fuel gas 

combustion devices would not be located "in" a"petroleum 

refinery," such devices would be subject to regulation under 

Subpart J under the EPA's interpretation because they 

would be treated as "affected facilities in [a] petroleum 

refinery[ ]." 

Were we to accept the EPA's r easoning (assuming 

"common ownership and control"), any fuel gas combustion 

device located in a facility adjacent to Motiva's petroleum 

refinery would be subject to regulation under Subpart J 

because such devices would be treated, inappr opriately, as 

"affected facilities in [a] petr oleum refinery[ ]." This 

conclusion is untenable. 

As detailed above, it is undisputed that Motiva's 

Repowering Project is a cogeneration facility that will gasify 

petroleum coke and combust the resulting synthesis gas to 

generate electricity and steam. Moreover , even though 

Motiva's Repowering Project is adjacent to a petroleum 

refinery that Motiva owns, the Repowering Pr oject is located 

in a free-standing building, an electric power plant complex 

that is physically separate and distinct from Motiva's 

petroleum refinery. Neither the Repowering Project nor the 

electric power plant complex in which the Repowering 

Project is to be constructed and operated is a"petroleum 

refinery." We therefor e fail to understand how the EPA 

concluded and now contends that the Repowering Pr oject's 

 16 
stationery gas turbines are themselves "in" a "petroleum 

refinery." Furthermore, if these turbines are not "in" a 

"petroleum refinery," they ar e not "affected facilities" and 

thus are not subject to regulation under Subpart J.

The EPA also argues that the Repowering Project will be 

an integral part of the refinery's operations and for that 

reason the stationary gas turbines at issue ar e "in" a 

"petroleum refinery." The EP A asserts that: 

 [The Repowering Project] will take low value material 

 from the refinery, i.e., petr oleum coke, convert it into a 

 different low value material, i.e. , a combustible gas, 

 burn the gas in a combustion turbine, and use the 

 steam and electricity produced by the turbine to 

 provide energy for other refinery processes. The 

 [Repowering] Project is thus a integral part of the 

 refinery's operations both because it is part of the 

 refinery's process of manufacturing usable products 

 from crude oil and because it uses refinery products to 

 provide a valuable input, i.e. ener gy [in the form of 

 electricity and steam] to the refinery's operation. 

Star Applicability Determination. While much of the above is 

accurate, the Repowering Project is neither part of the 

adjacent petroleum refinery nor necessary to the refinery's 

operations. Indeed, as the EPA concedes, Motiva could as 

easily have chosen to power its refinery by purchasing 

electricity from the local electric company's commercial grid.13 

If we were to follow the EPA's reasoning that the 

Repowering Project is part of Motiva's adjacent petroleum 

refinery, we would also be requir ed to conclude that any 

building that is located on land adjacent to Motiva's 

petroleum refinery and has a mutually beneficial 

relationship with the petroleum refinery -- be it to provide 

food to the workers or energy to the machinery-- is part of 

the petroleum refinery. Following this r easoning, the EPA 

would be able to regulate facilities within any such building 

as if they were located "in" the petr oleum refinery. 

_________________________________________________________________ 

13. As we have already noted, Motiva's Repowering Project produces 

more than enough electricity to power the adjacent petroleum refinery 

and that surplus electricity will be sold to Delmarva and/or other 

customers on the commercial power grid. 

 17 
The EPA acknowledges that the term "petroleum refinery" 

is clearly defined in Subpart J as "any facility engaged in 

producing gasoline, kerosene, distillate fuel oils, residual 

fuel oils, lubricants, or other products thr ough distillation 

of petroleum or through redistillation, cracking or reforming 

of unfinished petroleum derivatives." 40 C.F.R. S 60.101(a). 

Moreover, the EPA concedes that Motiva's Repowering

Project is a cogeneration facility that generates only 

electricity and steam and that the Repowering Pr oject 

resides in a separate, free-standing electric power plant 

complex. The EPA also concedes that none of the processes 

described in the definition of "petroleum refinery" set forth 

in S 60.101(a) takes place as a part of the Repowering 

Project or even within the building in which the Repowering 

Project resides. Nonetheless, the EP A contends that a 

"broad definition" of "petroleum refinery" to include 

operations essential to its purpose is consistent with the 

language of Subpart J. Using this broad definition, the EPA 

concluded: 

 The Star [petroleum] refinery is engaged in the 

 processes described in the NSPS Subpart J definition 

 of "petroleum refinery." The [Repowering] Project is an 

 integral part of the refinery. It gasifies coke generated 

 by refinery process units, producing synthesis gas, 

 combusts the synthesis gas and is also capable of 

 combusting other types of refinery fuel gas. The sulfur 

 compounds (mainly H2S) stripped during the 

 gasification process will be sent to the modified Claus 

 sulfur recovery plant. The steam and most of the 

 electricity produced by the project will be routed back 

 to other refinery process units. 

Star Applicability Determination. The EPA's reasoning is 

flawed because the Repowering Project is not essential to 

the operation of Motiva's petroleum refinery. Were the 

Repowering Project essential to the operation of the 

refinery, the EPA might be able to convince us that the 

Repowering Project was part of Motiva's petr oleum refinery 

and that the stationary gas turbines located in the

Repowering Project are "in" a "petroleum refinery." However, 

as mentioned above, Motiva does not need electricity from 

the Repowering Project to power its refinery. Motiva could 

 18 
just as easily purchase electricity from the local power 

company. Nor is the Repowering Project necessary for coke 

disposal. Rather than using the petroleum coke, produced 

in its refinery, to power the turbines at issue here, Motiva 

could ship the coke off-site for use at other industrial 

facilities or for disposal. Indeed, because Motiva's 

petroleum refinery operated for many years prior to the 

conception of the Repowering Project, it is har d to 

understand how the EPA concludes that the Repowering 

Project is essential to the operation of the adjacent 

petroleum refinery.14Moreover, the EPA's claim that"[i]f the 

current power plant did not exist, Star would not be able to 

operate the refinery at its current capacity" is also 

inaccurate for the reasons articulated above. Presumably, 

the only limitations on refinery capacity would be 

limitations on available power and available raw materials. 

The Repowering Project in no way affects the availability of 

raw materials, and although the Repowering Pr oject would 

supply power to Motiva's petroleum refinery, Motiva could 

just easily purchase that power (and any additional power 

needed) from a commercial supplier . 

Finally, in support of its initial determination, the EPA 

contends that: 

 The coke gasification project is not a stand-alone 

 facility. . . . In Star's case, the refinery in its current 

 form could not operate without the curr ent "power 

 plant" or without the planned Project, and it is not 

 likely that the current "power plant" or planned Project 

 would exist (they certainly would not exist in their 

 current or planned form) without the r emainder of the 

 refinery. 

_________________________________________________________________ 

14. Were we to accept the EPA's logic, if Motiva purchased electricity 

from the local electric company, generated by a generator located in a 

free-standing building on land adjacent to its petroleum refinery, and 

then, at a later date, Motiva purchased outright the entire local electric 

company, any stationary gas turbines that wer e a part of the 

aforementioned generator facility would (quite suddenly) become subject 

to regulation under Subpart J, since these turbines would be literally 

transformed into "affected facilitiesin [a] petroleum refinery[ ]." This 

sort 

of reasoning, and the outcome dictated by it, are untenable. 

 19 
Star Applicability Determination. For the same reasons 

detailed above, this argument is unpersuasive. Put simply, 

the Repowering Project is a stand-alone facility and could 

operate absent the existence of Motiva's petr oleum refinery 

by obtaining petroleum coke from another commercial

supplier (rather than Motiva's adjacent petr oleum refinery) 

and selling all of the steam and electricity pr oduced by the 

Repowering Project to commercial customers such as 

Delmarva. 

While it is undisputed that a mutually beneficial 

relationship exists between Motiva's Repowering Project and 

Motiva's petroleum refinery, the EP A's determination that 

the stationary gas turbines at Motiva's Repowering Project 

are subject to regulation under Subpart J is not only 

plainly erroneous but also inconsistent with the language of 

Subpart J itself. In short, the EPA's deter mination that the 

stationary gas turbines at Motiva's Repowering Pr oject are 

"affected facilities" subject to r egulation under Subpart J 

ignores the requirement that r egulated turbines be located 

"in" a "petroleum refinery." 

B. Physical Location as the Touchstone of S 60.100(a) 

Despite the EPA's arguments to the contrary, in 

determining what facilities are "af fected facilities" that can 

be regulated under Subpart J, and, specifically, in

determining what facilities are "in petroleum refineries," the 

touchstone of such a determination is the physical location 

of the facilities in question. As noted above, 40 C.F.R. 

S 60.100(a) states: 

 The provisions of this subpart are applicable to the 

 following affected facilities in petroleum refineries: fluid 

 catalytic cracking unit catalyst regenerators, fuel gas 

 combustion devices, and all Claus sulfur recovery 

 plants except Claus plants of 20 long tons per day 

 (LTD) or less. The Claus sulfur recovery plant need not 

 be physically located within the boundaries of a 

 petroleum refinery to be an af fected facility, provided it 

 processes gases produced within a petr oleum refinery. 

40 C.F.R. S 60.100(a) (1999) (emphasis added). For the last 

sentence of S 60.100(a) to make any sense, the ultimate 

question to be answered when determining whether certain 

 20 
facilities are "in petroleum refineries" must be: Where are 

the facilities physically located? 

Although the EPA argues strenuously that the term 

"petroleum refinery" must be interpreted broadly to include 

not only Motiva's petroleum refinery but also an adjacent, 

free-standing, independent electric power plant complex 

that produces steam and electricity for use by the refinery 

(as well as other commercial customers including the local 

power company), the stationary gas turbines in this freestanding, independent facility are simply not"in" a

"petroleum refinery" because neither the Repowering Project 

nor the electric power plant complex in which the 

Repowering Project is located engages in the pr oduction of 

"gasoline, kerosene, distillate fuel oils, r esidual fuel oils, 

lubricants, or other products through distillation of 

petroleum or through redistillation, cracking or reforming of 

unfinished petroleum derivatives." 40 C.F .R. S 60.101(a) 

(1999). Moreover, the explicit inclusion in S 60.100(a) of 

Claus recovery plants "not . . . physically located within the 

boundaries of a petroleum refinery," and the corresponding 

absence of a similar inclusion with respect to"fuel gas 

combustion devices" "not . . . physically located within the 

boundaries of a petroleum refinery," further undermines 

the EPA's determination. 

C. Chemical Composition of Synthesis Gas Bur ned in

 the Stationary Gas Turbines 

Although our determination that Subpart J does not 

apply here frees us from having to determine whether the 

synthesis gas to be burned by the stationary gas turbines 

is a "fuel gas" regulated under Subpart J, we do note that 

the chemical composition of the synthesis gas is markedly 

different from the chemical composition of other fuel gases, 

the burning of which is subject to regulation under Subpart 

J. As the petitioners highlight in their brief, and as the 

regulatory history of Subpart J suggests, the exclusive 

focus and purpose of Subpart J is the reduction of sulfur 

emissions (specifically sulfur dioxide (SO2) emissions) by 

limiting the amount of hydrogen sulfide (H 2S) in 

combustible fuel gases combusted in petroleum r efineries. 

According to Motiva, a not insignificant amount of the 

sulfur/SO2, emitted when the synthesis gas at issue is 

 21 
combusted in these turbines, comes not from H 2S in the 

synthesis gas but from COS in the synthesis gas. 

Regardless of the exact source of the sulfur/SO2 

emissions, it appears from the recor d that at least some of 

the sulfur/SO2 emitted when the synthesis gas at issue is 

combusted comes not from H2S in the gas but rather from 

COS in the gas. As mentioned above, compliance with

Subpart J can be established either by measuring and 

monitoring the H2S level in the fuel gas prior to combustion 

or by measuring and monitoring the SO2 level in the 

emissions after combustion. See supra, note 4. If subject to 

regulation under Subpart J, Motiva is without a legally 

acceptable method for measuring the combined 

concentration of COS and H2S in the pre-combustion 

synthesis burned at the Repowering Project. Therefore, 

Motiva will be forced either to monitor and r educe the 

emission of SO2, or to monitor and control the level of H2S 

in the pre-combustion synthesis gas being combusted at 

the Repowering Project (rather than the level of H2S and 

COS in the pre-combustion synthesis gas), even though by 

itself, the level of H2S in the synthesis gas being combusted 

is an arguably poor and clearly inferior measure of Motiva's 

compliance with Subpart J. As the EPA points out, the 

unique chemical composition of the synthesis gas, in and of 

itself, does not and would not exempt the stationary gas 

turbines at issue here from regulation under Subpart J. 

This composition may suggest, however, that another

regulation, for example, Subpart GG,15 regulating stationary 

gas turbines, rather than Subpart J, may be the 

_________________________________________________________________ 

15. 40 C.F.R. S 60.330, entitled"Applicability and Designation of Affected 

Facility," is the first section of Title 40, Subpart GG, and states in 

relevant part: 

 (a) The provisions of this subpart ar e applicable to the following 

 affected facilities: All stationary gas turbines with a heat input 

 at peak load equal to or greater than 10.7 gigajoules per hour, 

 based on the lower heating value of the fuel fir ed. 

 (b) Any facility under paragraph (a) of this section which 

 commences construction, modification, or r econstruction after 

 October 3, 1977, is subject to the requir ements of this part 

 . . . . 

40 C.F.R. S 60.330 (1999). It is undisputed by the parties that Subpart 

GG applies to the stationary gas turbines at issue in this case. The 

parties dispute only the applicability of Subpart J, which imposes much 

more stringent requirements than does Subpart GG on emissions from 

these stationary gas turbines. 
 22 
appropriate regulation under which to r egulate emissions 

from these gas turbines. The discontinuity between the 

chemical composition of synthesis gas to be combusted at 

the Repowering Project and the chemical composition of 

other fuel gases, the combustion of which is subject to 

regulation under Subpart J, also suggests that the EPA's 

determination is "inconsistent with the r egulation" at issue 

and should be set aside.16 

D. EPA's Prior Determination Under Subpart OOO 

In arguing that its determination in this case is neither 

plainly erroneous nor inconsistent with Subpart J, the EPA 

relies in part on what it characterizes as a prior, analogous 

determination under Subpart OOO--Standar ds of 

Performance for Nonmetallic Mineral Pr ocessing Plants.17 

The EPA's reliance on this determination is misplaced for 

two reasons. 

First, while the factual background of the EP A's earlier 

determination under Subpart OOO is not entir ely clear (the 

record is incomplete), it is clear that the facts of this earlier 

determination are distinguishable, in at least one key 

respect, from the facts in this case. Unlike the stationary 

gas turbines at issue here, the Cement T reated Base plants 

located at nonmetallic mineral processing plants were 

portable. This fact alone distinguishes the EP A's prior 

determination under Subpart OOO because, as discussed 

above, physical location is the touchstone for deter mining 

which facilities are "affected facilities" as the term is defined 

in Subpart J. Because the Cement Treated Base plants at 

issue in this prior determination were portable, had the 

EPA concluded that these Cement Tr eated Base plants were 

subject to regulation under Subpart OOO based on their 

physical location, the regulatory framework established by 

_________________________________________________________________ 

16. We further note that Motiva's inability to monitor and control the 

level of H2S and COS (prior to combustion) in the gas being combusted 

at the Repowering Project would take on heightened significance if it 

could be shown that monitoring the post-combustion SO2 emissions was 

more costly than monitoring the pre-combustion level of H2S in the 

synthesis gas at issue. 

17. See Standards of Perfor mance for Nonmetallic Mineral Processing 

Plants, 40 C.F.R. SS 60.670-60.676 (1999). 

 23 
Subpart OOO could have been easily circumvented simply 

by moving the Cement Treated Base plants. Phrased 

differently, when portable facilities ar e at issue, physical 

location cannot possibly be the touchstone for deter mining 

if, and/or when, regulation is appropriate. This obvious 

consequence of portability is, of course, irr elevant in the 

present case because the gas turbines her e are stationary. 

Second, and more importantly, even assuming, arguendo, 

that the facts surrounding the prior deter mination under 

Subpart OOO and the present determination under 

Subpart J are sufficiently analogous, this in no way implies 

that the EPA's prior determination under Subpart OOO was 

either correct or consistent with Subpart OOO. Neither this 

Court nor any other court of which we are awar e has 

addressed the propriety and/or legality of this prior 

determination upon which the EPA r elies in part. As such, 

even assuming that the facts surrounding this prior

determination under Subpart OOO and the pr esent 

determination under Subpart J are sufficiently analogous, 

we can only conclude from this that the EP A has addressed 

the issues consistently, not correctly.18 

V. CONCLUSION 

It well-established, as a general proposition, that the 

EPA's interpretation of its own r egulations is entitled to 

"great deference." As the Supr eme Court stated in Udall v. 

Tallman: 

 When faced with a problem of statutory construction, 

 this Court shows great deference to the interpretation 

 given the statute by the officers or agency char ged with 

 its administration. . . . [Moreover, w]hen the 

 construction of an administrative regulation rather 

_________________________________________________________________ 

18. The parties argue extensively as to whether subjecting the stationary 

gas turbines at issue in this case to regulation under Subpart J would 

"yield . . . any environmental benefits." As discussed supra, we hold 

today that Subpart J is inapplicable to these stationary gas turbines 

because the turbines are not located "in" a "petroleum refinery." We 

therefore need not reach the question of whether subjecting the turbines 

at issue in this case to regulation under Subpart J would "yield . . . any 

environmental benefits." 

 24 
 than a statute is in issue, deference is even more 

 clearly in order. 

Udall v. Tallman, 380 U.S. 1, 16 (1965). Such deference, 

however, is not without limitations. The EP A determination 

at issue in this case seemingly ignores the r equirement, set 

forth at 40 C.F.R. S 60.100(a) (1999), that "affected 

facilities" regulated under Subpart J be located "in [a] 

petroleum refinery." In light of this, we conclude that the 

EPA's determination is both "plainly erroneous," and 

inconsistent with Subpart J. We will ther efore grant 

Motiva's petition for review and vacate the EP A's 

Determination. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 25