(dissenting):
The only issue left in this case is whether refiners may be held vicariously liable for contamination of unleaded gasoline negligently caused by their lessee-retailers. It ought to be dispatched in one sentence. This court has already ruled on it in favor of EPA, and all the current petitioners were parties to that lawsuit. Amoco Oil Co. v. EPA, 163 U.S.App.D.C. 162, 501 F.2d 722 (1974) (Amoco I). In Amoco I we passed on the original liability provisions— which were too strict — and we set forth carefully the limits any new provisions would have to meet: ■
Refiners and distributors must have the opportunity to demonstrate freedom from fault. A distributor which can show that its employees and agents did not cause the contamination at issue may not be held liable * * *. 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).1
*280EPA expressly relied on this passage from our opinion in promulgating its new regulations. 39 Fed.Reg. 42357-42358 (December 5,1974), JA 2-3. Those regulations conform precisely to our mandate. They give refiners an opportunity to demonstrate freedom from fault, but they also hold refiners responsible when contamination results from the negligent act of an employee, agent, or lessee.
Petitioners, eleven refining companies who were among the petitioners in Amoco 1, now challenge the new regulations and assert that we meant something other than what we plainly said in the earlier case. Even if their assertion had any merit, it cannot be pressed in this fashion. It should have been raised on a petition for rehearing in Amoco I. The petitioners never filed such a petition, nor did they seek further review of bur decision there. That judgment is final, and it controls this case.
Assuming, as the majority has, that we are to consider the matter anew, I still find that EPA’s regulations are unquestionably valid. In the first place, the dispute rages over a very small class of contamination incidents — those caused by lessee negligence. If the lessee deliberately brings about contamination, the refiner escapes liability under 40 C.F.R. § 80.23(b)(2)(H) or § 80.23(e) (1975).2 And 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, JA 386-388, and maintains substantial control over the equipment that will handle the gasoline at the station, since the refiner initially installed the equipment and remains the owner of it, charged with its continuing care.
More importantly, the majority overstates the showing required before society may validly impose vicarious liability, and then relies on speculation that finds no support in the record in order to conclude that its overblown requirements have not been met. I take issue on both points.
The majority indicates that there must be “some closely integrated relationship”3 or “compelling evidence of control” before refiners may be held vicariously liable. Majority op. 177 U.S.App.D.C. at -, 543 F.2d 276. We may assume that the Due Process Clause of the Fifth Amendment and the Administrative Procedure Act’s ban on arbitrary or capricious agency action, 5 U.S.C. § 706 (1970), do require some degree of relationship and control as a predicate for imposing vicarious liability, but the majority never reveals why it insists on such a very high degree.
The majority does express some shock at the notion that vicarious liability may occasionally result in loss to a refiner that has “made every human effort possible” to avoid contamination. Majority op. 177 U.S. App.D.C. at -, 543 F.2d at 274. But 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. Dean Prosser, in the very passage of his treatise cited by the majority, makes this unsurprising proposition entirely clear.4 *281Employers’ vicarious liability is no longer controversial. No one suggests that its imposition is either arbitrary or unconstitutional. EPA was entitled to conclude that the same factors which make vicarious liability for employee torts acceptable also render acceptable EPA’s much more limited ruling that refiners shall assume responsibility for lessee-caused contamination.
Vicarious liability — like other forms of strict liability — is imposed not because there is “compelling evidence of control,” but rather 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. The determination may rest on the judgment that it is more just to impose liability on the party who entered the business knowing of the general hazards, rather than risk leaving the entire loss on the innocent injured party.5 Or — more importantly for our purposes — it may derive from the judgment that vicarious liability will create incentives which lead, in the long run, to reducing the number of injuries.6 Here it is hardly irrational to conclude that making refiners liable for contamination caused by lessee negligence will serve to reduce contamination. Under the regulations refiners are given a clear incentive to choose their lessees carefully and to refuse to renew the leases of operators with poor contamination records. Moreover, the regulations work to encourage the refiner-owners to install equipment which itself minimizes the chances that lessee negligence will result in contamination. The regulations thus plainly serve the paramount goal of protecting the consumer and keeping emission control devices functioning properly.
The majority acts as though the tests for vicarious liability have been cast in concrete, as though liability must always turn upon the familiar dichotomy between employee and independent contractor.7 This may well be a serviceable distinction when applied to exonerate the refiner of responsibility for most negligent torts committed by a lessee-retailer or the lessee’s employees. But it simply does not apply here. EPA is not trying to hold refiners liable for every personal injury caused by lessees or their employees. Its regulations are narrowly focused on one specific evil, and in this limited area, because of the realities of the gasoline distribution system, JA 386-388, vicarious liability of refiner-lessors is a sensible and permissible control strategy.
EPA’s regulations are designed to deter what amounts to a “new tort” — call it negligent contamination or negligent impairment of an emission control device.8 It is a new form of injury which has resulted from advancing technology coupled with increasing public demand for clean air. Contrary to the majority’s repeated intimations, there is no “settled law” governing responsibility for this particular narrowly-defined class of injuries. Nothing in the Constitution, the Clean Air Act, or the Administra*282tive Procedure Act dictates that the liability rules here must conform precisely to the vicarious liability rules that continue to apply to other, more familiar, types of injuries.
The experience of recent years in the products liability field ought to prompt caution before one adopts a stance as rigid as the majority’s. In that field, strict liability has been found, in an avalanche of recent cases, to serve society’s ends better than the old doctrines of warranty and privity that seemed solidly entrenched only a few years ago.9 Those liability standards changed— rapidly and dramatically — in response to advancing technology, new and more remote relationships between manufacturers and consumers, changing societal perceptions about where the burden should justly fall, and emerging views about what strategies would best deter injuries. In a similar vein, one certainly ought to consider with an open mind the possibility that comparable factors might make appropriate different vicarious liability standards for the narrowly limited class of “torts” upon which EPA focused.
EPA is, beyond doubt, the properly authorized body to choose the liability standards that will best achieve the purposes of the Clean Air Act. This court is not to second-guess EPA’s decision.10 Our only function is to assure that EPA acted within the broad limits set down by statute and the Constitution. We check only to see that the record reveals sufficient control by the refiners over lessee-retailers that EPA’s imposition of liability on the refiners is neither arbitrary nor capricious. See Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-286, 290, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).
EPA explicitly found that refiners have “sufficient control of facilities owned or leased by them to prevent contamination of unleaded gasoline * * 39 Fed.Reg. 13177 (April 11, 1974), JA 11. As support for its position EPA noted that at lessee-operated stations it is the refiner-owners who make “basic decisions respecting the conditions of sale of unleaded gasoline,” particularly decisions about equipment. Id. EPA also observed that a refiner “has sufficient control to limit his exposure to liability in such cases and may, of course, seek indemnity.” Id. at 13178, JA 12.
The record supplies adequate support for EPA’s determinations.11 My colleagues *283themselves even concede that some lease agreements may contain “strong evidence of control by the refiner.” Majority op. 177 U.S.App.D.C. at -, 543 F.2d at 276. They go on, however, to speculate that is is “possible” that a lease may affirm lessee independence. The paucity of record support for this speculation is striking. Although a number of refiners commented on the proposed regulations, only one even bothered to refer specifically to the lessee-retailer issue. JA 34-36. That refiner— who is not a petitioner here — rested content with a generalized disclaimer of control over lessees. Not a single refiner submitted a sample lease agreement or any other documentation that would support that disclaimer. They failed to do so despite EPA’s careful request, in the notice of proposed rulemaking, that “comments addressed to the relationships between branded refiners and other elements of the distribution system be factual and specific and that examples of contracts or other documents illustrating those relationships be submitted where pertinent.” 39 Fed. Reg. at 13178, JA 12.
The cases cited by the majority furnish no better support for its position. They all arose in drastically different contexts. To the extent they relate to the issue of lessee independence at all, they decide only that lessees are sufficiently independent to justify particular applications of the antitrust laws, e. g. Simpson v. Union Oil Co., 377 U.S. 13, 20, 84 S.Ct. 1051, 12 L.Ed.2d 98 (1964); Peter v. Union Oil Co., 328 F.Supp. 998, 1001 (C.D. Cal. 1971); United States v. Richfield Oil Corp., 99 F.Supp. 280, 293-294 (S.D. Cal.), affirmed, 343 U.S. 922, 72 S.Ct. 665, 96 L.Ed. 1334 (1951), or that lessees are sufficiently independent that their employees will not be considered employees of the refiner under the labor laws. Site Oil Co. v. NLRB, 319 F.2d 86, 93 (8th Cir. 1963). The cases say nothing whatever about imposition of vicarious liability.12 That lessees are *284judged independent for some limited purposes obviously does not mean they must be considered fully independent for all purposes.
EPA properly found “sufficient control” to justify holding refiners liable for negligent contamination at lessee-operated stations. Applying the proper standard of review, this court has no basis whatever for finding EPA’s action irrational or arbitrary or capricious. See Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., supra.
I respectfully dissent.
. The majority makes much of the fact that this passage from Amoco I is phrased negatively: “We * * * can find no language in [Amoco I] addressed * * * to the question of when a refiner can be held liable for the actions of his lesseej.] * * * The passage ‘plainly’ addresses only * * * the circumstances under which a refiner may not be held liable. It goes no further.” Majority op. 177 U.S.App. D.C. at -, 543 F.2d at 279 (emphasis in original; footnote omitted).
For the majority to read the passage in this fashion is mechanical to say the least. Of course the passage does go further. Though phrased in the negative, it plainly imports an affirmative holding. The Amoco I court was presented with the question of what statutory and constitutional limits liability regulations must meet. The court found that the original regulations exceeded the limits, but it did not stop with that bare holding; it went on, in accordance with sound principles of judicial economy, to state with some precision the out*280er boundaries for the new liability regulations that EPA was sure to promulgate. And in the quoted passage the 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. I find it impossible to understand how anyone could be misled by the stylistic choice of negative phrasing; the passage is clearly meant to provide affirmative guidance for EPA as it considered new regulations.
. The regulations are set out in full in footnote 7 of the majority opinion.
. The majority cites Dean Prosser for this requirement, but Prosser speaks only of “some relation” and breathes no hint of a requirement that the relation be closely integrated. W. Prosser, Law of Torts 458 (4th ed. 1971).
. A is negligent, B is not. “Imputed negligence” means that, by reason of some relation existing between A and B, the negligence of A is to be charged against B, although B has played no part in it, has done nothing whatever to aid or encourage it, or indeed has done all that he possibly can to prevent jf * * *
*281W. Prosser, supra note 3, at 458 (emphasis added).
. See id at 459; Smith, Frolic and Detour, 23 Colum.L.Rev. 444, 452-457 & n.34 (1923).
. See Calabresi, The Decision for Accidents: An Approach to Nonfault Allocation of Costs, 78 Harv.L.Rev. 713, 727-728 (1965); Seavey, Speculations as to “Respondeat Superior”, quoted in H. Shulman & F. James, Cases and Materials on Torts 116-118 (2d ed. 1952).
. The traditional vicarious liability rules are of course relevant in deciding whether EPA’s action here accords with the Constitution and the Administrative Procedure Act, but they are by no means dispositive.
. Perhaps it is not entirely accurate to consider EPA’s regulations under the “tort” rubric. EPA does not purport to alter the standards that would govern in a private suit brought, for example, by someone whose catalytic converter was fouled by contaminated gasoline. It appears that such suits will still be governed by the traditional common law rules which the majority tirelessly invokes, depending, of course, upon the law of the state where the injury occurs. Rather, EPA’s regulations impose vicarious liability only for the civil penalties which Congress authorized under § 211(d) of the Clean Air Act, 42 U.S.C. § 1857f-6c(d) (1970). This is all the more reason to refrain from importing wholesale into the administrative scheme the common law distinction between employees and independent contractors.
. See W. Prosser, supra note 3, at 654-658; Restatement (Second) of Torts § 402A (1965); Prosser, The Assault Upon the Citadel, 69 Yale L.J. 1099 (1960); Prosser, The Fall of the Citadel, 50 Minn.L.Rev. 791 (1966).
. I would observe that where no responsible government agency is authorized to act, this court has in the past itself imposed on lessors a high standard of responsibility to lessees and to the public. See Javins v. First National Realty Corp., 138 U.S.App.D.C. 369, 428 F.2d 1071, cert. denied, 400 U.S. 925, 91 S.Ct. 186, 27 L.Ed.2d 185 (1970).
. For example, The Federal Trade Commission’s Report on Anticompetitive Practices in the Marketing of Gasoline was made a part of the record before EPA. JA 130-204. The FTC noted the coercive power which the short-term lease gives to refiners to control marketing practices. JA 158-164. It wrote:
There Eire approximately two hundred thousand lessee dealers operating in today’s gasoline market. Their individual investments in their businesses range from a few hundred dollars to several thousand. These dealers operate stations pursuant to leases which may be cancelled at the option of the lessor. In the great majority of cases, the duration of the lease is one year.
A dealer whose lease is terminated at his supplier’s option frequently finds himself faced with a severe financial set-back. He may have a considerable sum of money invested in equipment for which he cannot obtain what he considers the true market value or which he cannot use in whatever new location he may be able to secure. The customer good-will and employee relationships he has built up over the years are completely lost unless he can obtain a new location within the same marketing area. And, the complainants allege, dealers terminated for failure to follow supplier “suggestions” [as to retail price] frequently are unable to obtain leases from other suppliers because of “bad reputation.”
JA 160-161. The FTC concluded;
As a result of marketing practices on the part of suppliers, the retail dealer’s position is *283largely that of an economic serf rather than that of an independent businessman. * *
JA 172. The FTC report is dated June 30, 1967, but nothing in the record suggests that the situation has changed in relevant respects in the intervening years.
The majority criticizes EPA for what it regards as deficiencies in the record, and especially for EPA’s failure to descend to the particulars of individual lease agreements used by each refiner. Perhaps if EPA were writing on a blank slate, there would be grounds for demanding a more complete record — although I by no means concede that even in that case the record here would be inadequate. But the point is that EPA did not write on a blank slate. It had already presented a very substantial record to this court in Amoco I, and the court held there that, based on the Amoco I record, EPA was justified in imposing vicarious liability on refiners for contamination caused by lessees. 163 U.S.App.D.C. at 189, 501 F.2d at 749. EPA was certainly entitled to conclude that the question was resolved, that it had judicial approval for imposing vicarious liability on refiners for lessee-caused contamination, and that it did not again have to compile a massive record to resolve a question that was already settled.
The majority here gives petitioners an entirely undeserved gift. They were parties to the Amoco I litigation. They permitted that judgment to become final without a murmur against the vicarious liability holding. EPA expressly relied on that holding in promulgating the new regulations, and no doubt that reliance helped shape EPA’s decisions about what kind of information to seek and to place in the record. We surely would be faced with a different record had EPA been considering the matter de novo. For petitioners now to ambush EPA with an attack on the adequacy of the record on this very point is entirely unwarranted- For the majority to let them get away with it is deeply distressing.
. Petitioners have also invoked cases wherein courts declined to impose liability on refiners for personal injuries caused by the tortious behavior of lessees. But these cases likewise are beside the point. This is clear upon examination of Smith v. Cities Service Oil Co., 346 F.2d 349 (7th Cir. 1965), the case which receives principal reliance in petitioners’ brief. A young boy was burned as a result of a Michigan station operator’s negligence while he repaired the boy’s family’s car. The family sued the refiner which owned the station and whose products were sold there. Under Michigan law the refiner-lessor would not be liable unless the station operator could be considered the refiner’s agent in performing the activities that led to the injuries. The court undertook a careful factual inquiry and decided that, under the circumstances, Cities Service did not come within the Michigan requirements. Id. at 352.
*284But the court there was engaged in applying standards already established by Michigan law. In our case, by contrast, EPA is empowered to create the standards for responsibility in the first place. There is no reason whatever to think that Smith’s application of Michigan law marks the outer constitutional and statutory boundaries for the essentially legislative decision entrusted to EPA.
Perhaps the key to the majority’s misapprehension of the real issues in this case lies in its failure to appreciate this distinction between applying given standards and establishing new ones. It repeatedly acts as though Congress had directed EPA to apply — lock, stock, and barrel — the traditional standards of vicarious liability. I do not know what else to make of the majority’s repeated invocation of such phrases as “settled law,” “traditional vicarious liability,” and “ancient rule,” see majority op. 177 U.S.App.D.C. at -, -, and footnotes 12 & 20, 543 F.2d at 275, 276 and footnotes 12 & 20, nor can I otherwise understand its apparent insistence that EPA must find “the employment relationship or its equivalent” before imposing vicarious liability. Id. at footnote 20.
One may scan the Clean Air Act in vain for any hint that Congress meant EPA to take such a crabbed view of its role. Instead, Congress gave EPA broad authority to “control or prohibit the manufacture, introduction into commerce, offering for sale, or sale of any fuel or fuel additive” found to impair emission control devices. 42 U.S.C. § 1857f-6c(c)(1) (1970). The liability regulations are merely a part — a logical and necessary part — of EPA’s control strategy. Moreover, Congress authorized EPA to control such additives “by regulation.” Id. Rulemaking hardly provides EPA the opportunity to perform the impossible task the majority would apparently require: “EPA must examine the indicia of control in each refiner-lessee relationship.” Majority op. 177 U.S.App.D.C. at -, 543 F.2d at 277 (emphasis added). (There are approximately 200,000 lessee-operated stations in the country. JA 160.) Plainly Congress did entrust EPA with a quasi-legislative task. By treating EPA’s role as one of mere application, the majority takes far too narrow a view.