Amoco Oil Company v. Environmental Protection Agency

543 F.2d 270, 177 U.S. App. D.C. 123

• Court: Court of Appeals for the D.C. Circuit
• Decided: July 15, 1976
• Docket: 74-2131
• Status: Published

Opinions

MacKINNON, Circuit Judge:

We here review for the second time regulations promulgated by the Administrator of the Environmental Protection Agency (EPA) for the protection of catalytic converter emission control devices pursuant to section 211(c)(1)(B) of the Clean Air Act of 1970, which provides:

(c)(1) The Administrator may, from time to time on the basis of information obtained under subsection (b) of this section or other information available to him, by regulation, control or prohibit the manufacture, introduction into commerce, offering for sale, or sale of any fuel or fuel additive for use in a motor vehicle or motor vehicle engine .

(B) if emission products of such fuel or fuel additive will impair to a significant degree the performance of any emission control device or system which is in general use, or which the Administrator finds has been developed to a point where in a reasonable time it would be in general use were such regulation to be promulgated.

42 U.S.C. § 1857f-6c(c)(l)(B) (1970). Because lead emissions interfere with the operation of the catalytic converters now installed on most new cars,¹ the Administrator on January 10, 1973 issued regulations requiring the sale of unleaded gasoline for the protection of those devices.² Those regulations were challenged by 16 branded refiners, including the 11 petitioners here, and in Amoco Oil v. EPA³ (hereafter Amoco I) were upheld in all but one respect by this court on May 1, 1974. The Amoco I court invalidated the liability sections of the first regulations which imposed liability upon a refiner for sales of contaminated (leaded) gasoline as unleaded by a retailer irrespective of the actual fault of the refiner.⁴ In reaching such conclusion we found that the EPA had improperly incorporated into the liability sections an irrebuttable presumption of refiner fault: even if the refiner could prove that the contamination resulted from an unforeseeable act of vandalism by a third party or from an unpreventable breach of contract by a distributor or a jobber, he would still be held liable.⁵

Following the decision in Amoco I, the Administrator redrafted the liability section of the regulations and reissued it.⁶ It is this section which is the subject of this appeal.⁷

The petitioners originally made two arguments against the new liability section; but on appeal following oral argument, at our suggestion, the parties met and agreed upon a modification of the regulations which has mooted one of those arguments.⁸ The remaining issue in the case, characterized as the “retail dealer” issue by the parties, requires this court again to consider the extent to which a refiner may be held liable for the actions of retail dealers who sell its products.

The “retailer dealer” issue centers around subsection (b)(2)(iv) of the new regulation, 40 C.F.R. § 80.23(b)(2)(iv) (1975), which allows the refiner to escape the general liability imposed by section 80.23(a) for the acts of directly-supplied retail distributors of its products if it can demonstrate that the violation in question was not caused by it or its employee or agent, and:

(iv) That the violation was caused by the action of a retailer who is supplied directly by the refiner (and not by a reseller), and whose assets or facilities are not substantially owned, leased, or controlled by the refiner, in violation of a contractual undertaking imposed by the refiner on such retailer designed to prevent such action, and despite reasohable efforts by the refiner (such as periodic sampling) to insure compliance with such contractual obligation .

(Emphasis added). See note 7 supra. The provision to which petitioners object is the phrase which allows the refiner to escape liability only if it can show that the guilty retailer is one “whose assets or facilities are not substantially owned, leased, or controlled by the refiner.” Under this provision, the refiner would always be liable for the actions of a retailer who leases his station from a refiner, unless one of the special exceptions in the regulations applied.⁹ The petitioners object to this blanket imposition of liability as mandated by subsection (b)(2)(iv). We agree that this language goes too far in imposing liability without proof of fault and that it should be stricken from the regulation.

Initially, it should be made clear that we are concerned here only with the liability for negligent contamination, since the refiner is able to escape liability for deliberate acts of contamination on the part of the retailer under the provisions of 40 C.F.R. §§ 80.23(b)(2)(ii) or 80.23(e) (1975).¹⁰ The only means under the regulation by which the refiner can avoid liability for the negligent or inadvertent acts of his directly-supplied retailers, however, is to prove under 40 C.F.R. §§ 80.23(b)(2)(i) and (iv) that all of the following are true:

(1) that the violation was not caused by an employee or agent; and

(2) that the violation was caused by the action of an independent (non-lessee) retailer; and

(3) that the retailer’s action was in violation of a contractual undertaking imposed by the refiner upon the retailer and designed to prevent such action; and

(4) that the refiner had made reasonable efforts to insure compliance with that contractual obligation.

Our objection to this new regulation is that, even assuming the fault of the lessee can be proved, we do not believe that the lessee’s negligence can be imputed to the refiner in all cases. The second element which must be proved under section (b)(2) in order for the refiner to escape liability is that the violation was caused by an independent (non-lessee) retailer. Thus, if condition (2) is not met because the retailer’s facilities are leased to him by the refiner, the escape provisions of subsection (b)(2)(iv) can never apply even if the refiner has imposed upon the retailer a strict contractual undertaking to avoid contamination and made every human effort possible to insure compliance with it. Such result is arbitrary.

In defense of the capricious results¹¹ die-. tated by this EPA rule, the dissent observes that “this, in itself, is no ground for striking down the regulation. Employers — to use the most common example of vicarious liability — are held responsible every day for torts of employees even where they have taken all possible steps to avoid the injury.” Dissent 177 U.S.App.D.C. at ---, 543 F.2d at 270-280. It is argued that the EPA is entitled to impute liability to refiners generally on the ground that “vicarious liability is imposed . . . because some properly authorized agency of government — court, legislature, or administrative body — has determined that such an allocation of responsibility will serve society’s ends,” dissent 177 U.S.App.D.C. at -, 543 F.2d at 281 (emphasis added), and that the “EPA is, beyond doubt, the properly authorized body to choose the liability standards that will best achieve the purposes of the Clean Air Act.” Dissent 177 U.S.App.D.C. at ---, 543 F.2d at 282 (emphasis added). But where is the authority in the relevant statute to alter the settled law which establishes the legal responsibility of the instant parties? It is true, of course, that vicarious liability is often imposed despite the fact that the party to whom negligence is imputed has taken all possible steps to avoid the injury or harm. But that generalization does not justify the EPA’s action here, since the Administrator’s rule goes well beyond the bounds of traditional vicarious liability.

As a starting point, it should be noted that the EPA is not “properly authorized” to impose a blanket vicarious liability. There is nothing in the statutory grant of power to the Administrator “by regulation [to] control or prohibit the manufacture, introduction into commerce, offering for sale, or sale of any fuel or fuel additive for use in a motor vehicle or motor vehicle engine . . . ,” 42 U.S.C. § 1857f-6c(c)(1), that expressly or impliedly authorizes him to alter the settled law between lessor and lessee as to their respective responsibilities in tort¹² so as to make the refiner liable for independent lessees as though they were mere subservient employees. The single fact that a refiner may have leased certain real estate and appurtenances to an individual who sells his products does not, without more, furnish any logical or legal basis for imposing blanket responsibility upon the owner for offenses or tortious acts committed by the lessee on the premises. In the absence of any indication of a specific intent on the part of Congress to create a “new tort,”¹³ the traditional common law rules of vicarious liability must apply. Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783, 72 S.Ct. 1011, 1014, 96 L.Ed. 1294 (1952). The authority given to the EPA by Congress did not vest the EPA with power to supplant those rules with the doctrine of strict liability. There is a well defined body of law which determines when negligence may be imputed from one party to another and it is therefore to this law that we must look to judge the legality of the EPA’s new liability regulations.

Generally, vicarious liability may be imposed upon a non-negligent person by reason of some closely integrated relationship existing between him and the negligent party.¹⁴ The essence of such relationship is that the person to whom the negligence is imputed has sufficient control over the acts of the negligent party to justify the conclusion that he is responsible for what happened.¹⁵ The facts and circumstances of each case must be examined individually to determine whether the relationship in question exhibits the necessary degree of control to justify the imputation of negligence from one party to the other. For example, the court must decide in employment situations whether the negligent party was an employee, whose negligence may be imputed to his employer, or an independént contractor, for whose actions no liability will attach to the employer.¹⁶ Similarly, the details of an agency relationship must be examined before negligence will be imputed to the principal.¹⁷

The case now before us presents a question of whether vicarious liability can be imposed on a lessor for the negligent acts of his lessee who sells the lessor’s products. Traditionally, the rule has been that once control of the premises passes to the lessee, the landlord is not vicariously liable for accidents which occur thereon unless he has retained control over the premises.¹⁸ Ignoring this ancient rule, the EPA here seeks to hold lessor-refiners liable regardless of the true nature of their relationship with their retailers. In the complex and difficult situation now before us, we are not prepared to raise the general rule as a complete bar to refiner liability; on the other hand, we do feel it means that vicarious liability cannot be imposed on all refiners for any and all negligent contaminations which occur regardless of the circumstances and the degree of control exerted by the refiner over the retailer-lessee. The mere fact that a retailer sells a refiner’s products and leases his facilities from the refiner are not by themselves such compelling evidence of control by the refiner as to justify conclusive imputation to the refiner of the retailer’s negligence. Oil company lease agreements are not required to follow a prescribed pattern. No doubt some lease agreements may contain such strong evidence of control by the refiner as to justify the imposition of vicarious liability; but it is equally possible that the lease may affirm and protect the independence of the retailer.¹⁹ In the absence of some demonstrated link between a lease agreement and a degree of actual control over gasoline retailers sufficient to justify imputing their negligence to the refiner-lessor, we conclude that the EPA cannot by regulation impose blanket liability upon refiners for all of the negligent acts of their lessees in the sale of gasoline in violation of the applicable statute and regulations.

The dissenting opinion attempts to characterize our position on this point as requiring a “high degree” of control by the refiner over his lessee before negligence may be imputed. Dissent 177 U.S.App.D.C. at -, 543 F.2d at 280. That is an incorrect interpretation of our holding. We are not now attempting to define the nature of the relationship which will justify the imposition of vicarious liability.²⁰ Rather, all we are saying is that the EPA must examine the indicia of control in each refiner-lessee relationship and find it to be sufficient to hold the refiner liable for the negligence of the lessee before the negligence may be imputed to the refiner. In promulgating the regulation under review here, it is true that the EPA found that refiners have “sufficient control of facilities owned or leased by them to prevent contamination of unleaded gasoline. . . . ”²¹ But there is no support for this conclusion in the record. Indeed, as the dissent admits, “[n]ot a single refiner submitted a sample lease agreement.” Dissent 177 U.S.App.D.C. at -, 543 F.2d at 283. The burden of supporting the agency regulation with evidence of control by lessors rests upon the agency and not upon the refiners. Without doubt, the lease agreement is the single most important factor in establishing the lessor-lessee relationship, including the degree of control exerted by the former over the latter. And yet, without considering a single lease, the EPA has here concluded that all refiners exercise a degree of control over all their lessees sufficient to justify the application of vicarious liability in every case. This is the thrust of our holding; what degree of control is “sufficient” is a question which we do not now address.

No contrary result is required by our prior opinion in this case. In striking down the liability provisions of the previous regulations in Amoco I, we held that

[rjefiners and distributors must have the opportunity to demonstrate freedom from fault. ... A refiner which can show that its employees, agents, or lessees did not cause the contamination at issue, and that the contamination could not have been prevented by a reasonable program of contractual oversight, may not be held liable .

163 U.S.App.D.C. at 189, 501 F.2d at 749 (footnote omitted, emphasis added). Curiously, the dissent reads this passage to “plainly” mean that a refiner can be held responsible when contamination results from the negligent act of a lessee, dissent 177 U.S.App.D.C. at -, 543 F.2d at 280, and in its footnotes goes even further by interpreting it to mean that this court held, “on the basis of the record then before it, that EPA had made a sufficient showing to justify placing vicarious liability on refiners — in this narrow context — for contamination caused by lessees.” Dissent 177 U.S.App.D.C. at - n.1, - n.9, 543 F. 2d at 280 n.1, 282 n.9. We, however, can find no language in that opinion addressed to the sufficiency of the EPA’s showing or to the question of when a refiner can be held liable for the actions of his lessee; nor does it “state with some precision the outer boundaries for the new liability regulations that EPA was sure to promulgate.” Dissent 177 U.S.App.D.C. at - n.1, 543 F.2d at 279 n.1. The passage “plainly” addresses only the issue then before this court, i. e., the circumstances under which a refiner may not be held liable.²² It goes no further.

Therefore, to validate the existing regulations, the phrase “whose assets or facilities are not substantially owned, leased, or controlled by the refiner” must be stricken from 40 C.F.R. § 80.23(b)(2)(iv) (1975). This will then permit refiners to escape liability if they can prove that the contamination was caused by the action of a directly-supplied lessee. Otherwise, the regulation exceeds the authority conferred on the Administrator by the statute, 42 U.S.C. § 1857f-6c(c)(l), and is “arbitrary . . [and] not in accordance with law.” 5 U.S.C. § 706(2). As we view the law the refiner cannot be held liable for the negligence of every retailer merely because he owns and leases the premises where his products are sold.

Judgment accordingly.

1 . See Amoco Oil Co. v. EPA, 163 U.S.App.D.C. 162, 166 & n.3, 501 F.2d 722, 726 & n.3 (1974).

2 . 38 Fed.Reg. 1254-56 (Jan. 10, 1973). The proposed regulations had been published on February 23, 1972, 37 Fed.Reg. 3882-84, at which time comments were solicited from the public. Hearings were thereafter held in three cities. The final regulations appear in 40 C.F.R. part 80 (1975).

The regulations at issue here must be distinguished from those which the EPA has issued under section 211(c)(1)(A) of the Clean Air Act, 42 U.S.C. § 1857f-6c(c)( 1 )(A) (1970), to protect the public health. 38 Fed.Reg. 33741 (Dec. 6, 1973). The latter regulations, which limit the lead content of all gasoline, have elsewhere been upheld by this court in a divided vote. Ethyl Corp. v. EPA, 176 U.S.App.D.C. 373, 541 F.2d 1 (1976).

3 . 163 U.S.App.D.C. 162, 501 F.2d 722 (1974). The regulations which were there under review are set out as an addendum to that opinion. Id at 193-97, 501 F.2d at 753-57.

4 . 40 C.F.R. §§ 80.23(a)(1), (a)(2) (1973).

5 . 163 U.S.App.D.C. at 188, 501 F.2d at 748.

6 . 39 Fed.Reg. 42360 (Dec. 5, 1974); 39 Fed.Reg. 43284 (Dec. 12, 1974). The new regulation appears in 40 C.F.R. § 80.23 (1975). The revised liability section was first proposed a month before our decision in Amoco I, see 39 Fed.Reg. 13174 (April 11, 1974), because the “EPA has concluded that certain of petitioners’ objections [in Amoco I] are valid and should be recognized in the provision for apportionment of liability.” Id. The Amoco I court took note of the proposed revisions, but observed that they were “not before us in this litigation.” 163 U.S.App.D.C. at 189 n.3, 501 F.2d at 749 n.3.

7 . § 80.23 Liability for violations.

Liability for violations of paragraph (a) of § 80.22 shall be determined as follows:

(a)(1) Where the corporate, trade, or brand name of a gasoline refiner or any of its marketing subsidiaries appears on the pump stand or is displayed at the retail outlet or wholesale purchaser-consumer facility from which the gasoline was sold, dispensed, or offered for sale, the retailer or wholesale purchaser-consumer, the reseller (if any), and such gasoline refiner shall be deemed in violation. Except as provided in paragraph (b)(2) of this section, the refiner shall be deemed in violation irrespective of whether any other refiner, distributor, retailer, or wholesale purchaser-consumer or the employee or agent of any refiner, distributor, retailer, or wholesale purchaser-consumer may have caused or permitted the violation.

(2) Where the corporate, trade, or brand name of a gasoline refiner or any of its marketing subsidiaries does not appear on the pump stand and is not displayed at the retail outlet or wholesale purchaser-consumer facility from which the gasoline was sold, dispensed, or offered for sale, the retailer or wholesale purchaser-consumer and any distributor who sold that person gasoline contained in the storage tank which supplied that pump at the time of the violation shall be deemed in violation.

(b)(1) In any case in which a retailer or wholesale purchaser-consumer and any gasoline refiner or distributor would be in violation under paragraphs (a)(1) or (2) of this section, the retailer or wholesale purchaser-consumer shall not be liable if he can demonstrate that the violation was not caused by him or his employee or agent.

(2) In any case in which a retailer or wholesale purchaser-consumer, a reseller (if any), and any gasoline refiner would be in violation under paragraph (a)(1) of this section, the refiner shall not be deemed in violation if he can demonstrate:

(i) That the violation was not caused by him or his employee or agent; and

(ii) That the violation was caused by an act in violation of law (other than the Act or this part), or an act of sabotage, vandalism, or deliberate commingling of leaded and unleaded gasoline, whether or not such acts are violations of law in the jurisdiction where the violation of the requirements of this part occurred, or

(iii) That the violation was caused by the action of a reseller or a retailer supplied by such reseller, in violation of a contractual undertaking imposed by the refiner on such reseller designed to prevent such action, and despite reasonable efforts by the refiner (such as periodic sampling) to insure compliance with such contractual obligation, or

(iv) That the violation was caused by the action of a retailer who is supplied directly by the refiner (and not by a reseller), and whose assets or facilities are not substantially owned, leased, or controlled by the refiner, in violation of a contractual undertaking imposed by the refiner on such retailer designed to prevent such action, and despite reasonable efforts by the refiner (such as periodic sampling) to insure compliance with such contractual obligation, or

(v) That the violation was caused by the action of a distributor subject to a contract with the refiner for transportation of gasoline from a terminal to a distributor, retailer or wholesale purchaser-consumer, in violation of a contractual undertaking imposed by the refiner on such distributor designed to prevent such action, and despite reasonable efforts by the refiner (such as periodic sampling) to insure compliance with such contractual obligation, or

(vi) That the violation was caused by a distributor (such as a common carrier) not subject to a contract with the refiner but engaged by him for transportation of gasoline from a terminal to a distributor, retailer or wholesale purchaser-consumer, despite reasonable efforts by the refiner (such as specification or inspection of equipment) to prevent such action, or

(vii) That the violation occurred at a wholesale purchaser-consumer facility: Provided, however, That if such wholesale purchaser-consumer was supplied by a reseller, the refiner must demonstrate that the violation could not have been prevented by such reseller’s compliance with a contractual undertaking imposed by the refiner on such reseller as provided in paragraph (b)(2)(iii) of this section.

(c) In any case in which a retailer or wholesale purchaser-consumer, a reseller, and any gasoline refiner would be in violation under paragraph (a)(1) of § 80.23, the reseller shall not be deemed in violation if he can demonstrate that the violation was not caused by him or his employee or agent.

(d) In any case in which a retailer or wholesale purchaser-consumer and any gasoline distributor would be in violation under paragraph (a)(2) of this section, the distributor will not be deemed in violation if he can demonstrate that the violation was not caused by him or his employee or agent.

(e)(1) In any case in which a retailer or his employee or agent or a wholesale purchaser-consumer or his employee or agent introduced leaded gasoline from a pump from which leaded gasoline is sold, dispensed, or offered for sale, into a motor vehicle which is equipped with a gasoline tank filler inlet designed for the introduction of unleaded gasoline, only the retailer or wholesale purchaser-consumer shall be deemed in violation.

(2) If a retailer or a wholesale purchaser-consumer establishes that the conduct referred to in paragraph (e)(1) of this section was in response to the requirements of a bona fide emergency (such as when the gasoline tank of a vehicle is almost empty and no unleaded gasoline is available within a several mile radius), the retailer or wholesale purchaser-consumer will not be deemed in violation: Provided, however, That the amount of leaded gasoline which was introduced into the vehicle was limited to no more than was reasonably required to alleviate the circumstances of the particular emergency situation.

8 . Petitioners objected to provisions in the new regulations which required a refiner, in order to avoid strict liability, to prove affirmatively that the violation “was caused” by another party. See 40 C.F.R. § 80.23(b) (2) (ii) — (vii), supra note 7. Because the Clean Air Act provides that “violators” are to be held liable, 42 U.S.C. § 1857f-6c(d) (1970), it was argued that the statute does not allow the Administrator to impose absolute liability on one who fails to prove that he is not a “non-violator.” Therefore, petitioners maintained that the regulations should be revised to make it clear that the burden of proof lies with the Administrator.

At the suggestion of this court, the parties met following oral argument and drafted the following additional subsection which they agree disposes of the “burden of proof’ issue in a manner satisfactory to both sides:

(viii) In subparagraphs (ii) through (vi) hereof, the term “was caused” means that the refiner must demonstrate by reasonably specific showings by direct or circumstantial evidence that the violation was caused or must have been caused by another.

The new subsection will appear in 40 C.F.R. § 80.23(b)(2)(viii).

9 . See 40 C.F.R. §§ 80.23(b)(2)(ii), 80.23(e) (1975), supra note 7.

10 . The dissent argues that “the lessee has precious few opportunities to cause non-deliberate —negligent—contamination. The refiner both controls deliveries of gasoline to the station by tank truck . and maintains substantial control over the equipment that will handle the gasoline at the station^ . . Dissent 177 U.S.App.D.C. at -, 543 F.2d at 28Ó. This", of course, assumes the very point at issue here: who actually controls the retailer’s facilities? The fact that the refiner initially installed the equipment is certainly not dispositive, and whether the refiner “remains the owner of it, charged with its continuing care” will depend upon the terms of the individual lease agreement.

11 . Under the Administrative Procedure Act, 5 U.S.C. § 706(2) (1970), we are to “hold unlawful and set aside agency actions found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” That standard justifies the disposition we make of this case.

12 . Generally, the landlord is not responsible for injuries or harm caused by conditions which develop or are created by the tenant after possession (and thus control over the premises) has been transferred; nor is the landlord responsible for activities which the tenant carries on upon the land after the transfer. W. Prosser, Law of Torts § 63 (4th ed. 1971). See also 2 Restatement (Second) of Torts §§ 355-56 (1965). Control over the premises is often a decisive factor. 2 Restatement, supra, at § 360; Steffen, Independent Contractor and the Good Life, 2 U.Chi.L.Rev. 501, 520 (1935).

13 . Our dissenting colleague speaks of a “new tort” but what he really attempts to bring about is a new liability for an old tort, i. e., negligent contamination. There is nothing new about that tort. It is as old as merchandising— and from time to time it appears in new forms. That the dissenting opinion would radically and lightly change long established law is implicitly admitted 177 U.S.App.D.C. at---•, 543 F.2d at 281-282, infra. The change is massive and legislative in character and if Congress wants to impose such liability without fault it can be authorized in a proper way; but Congress has not done so in the existing act. How imposing liability for another’s tort on one who is without fault may operate to serve “society’s ends,” dissent 177 U.S.App.D.C. at -, 543 F.2d at 281, is not explained. Actually, the real objective is to strengthen the arbitrary hand of the agency and ease its burden of collecting its penalties.

14 . See W. Prosser, supra note 12, at 458.

15 . See Douglas, Vicarious Liability and Assumption of Risk, 38 Yale L.J. 584, 594 (1929); Harper, The Basis of the Immunity of an Employer of an Independent Contractor, 10 Ind. L.J. 494 (1935); Morris, The Torts of an Independent Contractor, 29 Ill.L.Rev. 339, 343 (1935); Steffen, Independent Contractor and the Good Life, 2 U.Chi.L.Rev. 501 (1935).

16 . See generally W. Prosser, supra note 12, at §§ 70-71.

17 . See W. Prosser, supra note 12, at 467; W. Seavey, Law of Agency, 138, 142 (1964).

18 . See note 12 supra.

19 . See, e. g., Simpson v. Union Oil Co. of California, 377 U.S. 13, 20, 84 S.Ct. 1051, 1056, 12 L.Ed.2d 98 (1964); FTC v. Sinclair Refining Co., 261 U.S. 463, 473-75, 43 S.Ct. 450, 453-54, 67 L.Ed. 746 (1923); Gray v. Shell Oil Co., 469 F.2d 742 (9th Cir. 1972); Site Oil Co. of Mo. v. NLRB, 319 F.2d 86 (8th Cir. 1963); Peter v. Union Oil Co. of California, 328 F.Supp. 998 (N.D.Cal.1971); United States v. Richfield Oil Co., 99 F.Supp. 280, 288-89 (S.D.Cal.), affd, 343 U.S. 922, 72 S.Ct. 665, 96 L.Ed. 1334 (1951).

The dissent criticizes our use of these antitrust cases as saying “nothing whatever about imposition of vicarious liability.” Dissent 177 U.S.App.D.C. at -, 543 F.2d at 283 (footnote eliminated). But we cite them only for the proposition that some, if not many, retail dealers “have all or most of the indicia of entrepreneurs.” Simpson, supra, 377 U.S. at 20, 84 S.Ct. at 1056. The Supreme Court in these cases examined individual refiner-lessee relationships and found that the lessee was an independent businessman. This, although certainly not dispositive of the issue in the present case, does cast doubt upon the EPA’s finding that all lessees are mere appendages of the refiner.

20 . In using the term “closely integrated” to characterize the relationship which must be shown to exist between the employer and his “employee,” text 177 U.S.App.D.C. at --, 543 F.2d at 276 supra, we only signify "that their relationship must meet the traditional legal tests. By defending the imposition of blanket vicarious liability upon refiners for the acts of their retailer-lessees, the dissent demonstrates that it is unfamiliar with the factors and elements which establish the employment relationship or its equivalent. The statutes and decisions in the unemployment compensation area furnish a good example.

Many states have incorporated into their unemployment insurance statutes a three-fold test of what constitutes an employer-employee relationship. See, e. g., 11 Del.Code Ann. § 19-3302(9)(A) (1975); 16 Code Ga.Ann. § 54-657(h)(6) (1975 Supp.); Bums Ind.Stat.Ann. § 22-4-8-l(a) (1974); 23 La.Rev.Stat. § 1472(12)(E) (1950); 8A Ann.Code Md.1957, Art. 95A, § 20(6) (1975 Supp.); 48 Neb.Rev. Stat. § 604(5) (1971 Supp.); 9 Va.Code Ann. § 60.1-14(b) (1973); 11 Rev.Code Wash. § 50.-04.140 (1958); 17 Wis.Stat.Ann. § 108.02(3)(b) (1974). Under this test, the employer can prove that no employment relationship exists by showing that (1) the worker is free from control or direction in the performance of his work under his contract of service and in fact, and (2) the service is outside the usual course of the business for which it is performed, or it is performed outside of all the places of business of the enterprise for which such service is performed, and (3) the worker is customarily engaged in an independently established trade, occupation, profession or business. It is extremely likely that a great many service station lessees would meet this test and thus be held not to be employees of the refiner-lessor. In fact, lessees have been found to be independent contractors under these statutes where the necessary elements of control and direction were lacking. Compare Huiet v. Great A&P Tea Co., 66 Ga.App. 602, 18 S.E.2d 693 (1942), with Johnson v. Huiet, 67 Ga.App. 638, 21 S.E.2d 437 (1942), and Young v. Bureau of Unemployment Comp., 63 Ga.App. 130, 10 S.E.2d 412 (1940); and compare Wolff Co. v. Riley, 24 Wash.2d 62, 163 P.2d 179 (1945), with State v. Goessman, 13 Wash.2d 598, 126 P.2d 201 (1938), and McDermott v. State, 196 Wash. 261, 82 P.2d 568 (1938).

Under the federal unemployment insurance statute, 26 U.S.C. §§ 3121(d)(2), 3306(i) (1970), common law rules are used to determine if the relationship between the worker and the person for whom he performs the services is the legal relationship of employer and employee. Generally, such relationships have been found to exist when the person for whom the services are performed has the right to control and direct the worker, not only as to the result to be accomplished by the work but also as to the details and means by which such result is accomplished. Treas.Reg. § 31.3121(d)-l(c) (1956). A wide range of factors and elements that bear on a finding of control are discussed in Social Security Handbook, DHEW No. (SSA) 73-10135, §§ 804-24 (5th ed. 1974). Under the federal statute, the Internal Revenue Service has found several service station lessees to be “employees” of the lessor oil company, but has also found others not to be employees. Compare, e. g., Rev.Rul. 70-443, 1970-2 Cum.Bull. 212, with Rev.Rule. 69-305, 1969-1 Cum.Bull. 259. See also United States v. Wholesale Oil Co., 154 F.2d 745 (10th Cir. 1946). It is thus arbitrary action to decree that all refiners are liable for the negligent acts of their lessees.

21 . 39 Fed.Reg. 13177 (April 11, 1974) [J. App. 11]. The EPA explained the bases for its conclusions about control as follows:

In its determination that branded refiners control or have the ability to control the distribution of branded product to the consumer, EPA relied upon (1) the branded refiners’ legal obligation as marketers of a trademarked and nationally advertised product to protect the quality of the trademarked product, (2) the extensive quality control system already operated by the branded oil companies to meet this obligation and to protect business good will, and (3) the success of the American Oil Company in developing and implementing quality control procedures for distribution of unleaded gasoline.

39 Fed.Reg. 13175 (April 11, 1974) [J. App. 9], Thus the EPA’s decision that the refiners have “sufficient control” over their lessees to prevent contamination was made in the abstract, without descent to the particulars of the individual contractual relationships. The EPA also appears to have interpreted a willingness on the part of a refiner to stand behind the quality of its branded product as evidence that the refiner controls the actions of its retailers. 39 Fed.Reg. 13177 (April 11, 1974) [J. App. 11], While that may indicate a commitment toward providing the best distribution system possible, it does not demonstrate day-to-day control of operations. In contrast to these speculations by the agency, we note the general disclaimer of responsibility for the actions of retailers issued by all refiners, id., and the EPA’s own comments regarding its amendments to the proposed new liability section:

The amendments proposed qualified the liability of branded refiners for violations caused by illegal acts and for certain violations occurring in the jobber distribution chain. This proposal was in response to the objections of branded refiners that they lacked sufficient control of the branded distribution chain to prevent affirmative misconduct by retailers or distributors resulting in a violation.

39 Fed.Reg. 42357 (December 5, 1974) [J. App. 2]. It is interesting that the EPA could accept the refiners’ argument that they do not have sufficient control over their retailers to be held responsible for affirmative misconduct and yet still determine that there is sufficient control to hold the refiners liable for the negligent actions of their lessees.

The dissent argues that the EPA relied on an FTC Report on Anticompetitive Practices in the Marketing of Gasoline as demonstrating the “coercive power which the short-term lease gives to refiners to control marketing practices.” Dissent 177 U.S.App.D.C. at-n.11,

543 F.2d at 282 n.11. When read, however, the report makes only one point of significance: retail dealers operate pursuant to leases that can be cancelled at the option of the lessor-refiner. We seriously doubt whether such a lease provision could be relied upon to the exclusion of other provisions which may detail the division of responsibility for the station’s operations; and we note that the statement quoted by the dissent from the report deals with price-fixing rather than with control over equipment maintenance and station procedures. The sort of possible control over the otherwise independent retail dealer which the FTC Report condemns, and which the dissent relies upon, has been held illegal. See, e. g., Simpson v. Union Oil of California, 377 U.S. 13, 84 S.Ct. 105, 12 L,Ed.2d 98 (1964). Since oil refiners are likely to be wary of engaging in the future in conduct which has been held to violate the antitrust laws, the EPA’s total reliance on this Report is not justified. In any case, we do not think a generalized statement such as this would justify imposing vicarious liability on all retail-lessees; the facts and circumstances of the individual relationship must be examined.

22 . The fact that these petitioners were given a chance in Amoco I to attack the agency record for the regulations at issue there, which were struck down, cannot be thought to deprive them of a right to attack the evidentiary basis of the new regulations. After Amoco I, the agency was well aware of petitioners’ objections that the imposition of vicarious liability was not sufficiently supported by the record. See Amoco I, 163 U.S.App.D.C. at 171, 501 F.2d at 731. Our opinion cannot fairly be read otherwise. To allow petitioners to again raise the question after the EPA has had an opportunity to correct the record is no “ambush.”