Petition — Environmental Protection Agency v. Maryland

Supreme Court, U.% 2

FILED a

JAN 7 1976

MICHAEL RODAK. JR., ClERK

In the Supreme Court of the United States

OCTOBER TERM, 1975

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

Vv.

STATE OF MARYLAND, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT H. BorRK,

Solicitor General,

PETER R. TAFT,

Assistant Attorney General,

HARRIET S. SHAPIRO,

Assistant to the Solicitor General,

EDMUND B. CLARK,

BRUCE J. CHASAN,

NEIL T. PROTO,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

ROBERT V. ZENER,

General Counsel,

Environmental Protection Agency,

Washington, D.C. 20460.

Iu the Supreme Court of the United States

OCTOBER TERM, 1975

No.

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

Vv.

STATE OF MARYLAND, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

The Solicitor General, on behalf of the Environ-

mental Protection Agency, petitions for a writ of

certiorari to review the judgment of the United

States Court of Appeals for the Fourth Circuit in this

case.

OPINION BELOW

The opinion of the court of appeals (App. A, infra,

la-37a) is not yet reported.

JURISDICTION

The judgment of the court of appeals was entered

on September 19, 1975 (App. B, infra, 38a-40a). By

(1)

2

order of December 11, 1975, the Chief Justice ex-

tended the time within which to file a petition for a

writ of certiorari to and including January 12, 1976.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether, upon a State’s failure to adopt an im-

plementation plan meeting the requirements of the

Clean Air Act, the EPA Administrator has authority

under the Act to require the State to inspect motor

vehicles to assure that they are properly maintained

to control airborne pollutants within the State.

2. Whether, if the EPA Administrator has such

statutory authority, the Clean Air Act is in this

respect a valid exercise of Congress’ power under the

Commerce Clause of the Constitution.

CONSTITUTIONAL AND STATUTORY PROVISIONS

AND REGULATIONS INVOLVED

The pertinent provisions and regulations are set

forth in Appendix C, infra, 41a-65a.

STATEMENT

A. The Statutory Scheme

The relevant provisions of the Clean Air Act are

summarized at pages 3-8 of our petition for a writ

of certiorari in Environmental Protection Agency v.

Brown, No. 75-909, which presents the same issues

as this case. (We are serving a copy of our petition

in that case upon respondents here. )

Briefly, the Act requires the Administrator to

promulgate standards for maximum concentrations

of particular pollutants in the air (Section 109). The

States must then develop plans to achieve and main-

tain these standards within each air quality control

region in the State (Section 110(a)(1)). The Ad-

ministrator reviews these state implementaticn plans

for conformity to the statutory standards designed

to assure that they provide for effective enforcement

of the standards (Section 110(a)(2)). If the Ad-

ministrator finds an implementation plan inadequate,

he must promulgate an appropriate plan for the

State (Section 110(c)). When the Administrator

finds “any person”* in violation of any implementa-

tion plan, Section 113 of the Act authorizes him to

undertake enforcement measures, including applica-

tion to an appropriate district court for a temporary

or permanent injunction.

B. The Maryland Transportation Control Plan

On January 28, 1972, the State of Maryland sub-

mitted its implementation plan for achieving and

maintaining the natioral ambient air quality stand-

ards. 37 Fed. Reg. 10870. It did not include trans-

portation control measures since the State had been

advised by the Administrator that adoption of such

measures could be deferred until February 15, 1978.

37 Fed. Reg. 10844, 10871. On May 31, 1972, the

“Person” is defined in Section 302(e) to include a “State,

municipality, and political subdivision of a State”.

4

Administrator found the plan inadequate in several

respects (37 Fed. Reg. 10871). While development

of a revised plan was being negotiated, the United

States Court of Appeals for the District of Columbia

Circuit held that the Administrator had improperly

permitted postponement of submission of the trans-

portation control portions of state implementation

plans beyond the statutory deadline of January 30,

1972. National Resources Defense Council v. En-

vironmental Protection Agency, 475 F.2d 968. The

court ordered the Administrator to rescind all pre-

viously granted extensions for the submission and

implementation of transportation control measures

and to require the States to submit appropriate meas-

ures by April 15, 1973. The court directed the Ad-

ministrator to prepare and publish a plan as required

by the Act if a State failed to submit such measures.

475 F.2d at 970-971.

On March 20, 1973, the Administrator notified the

States of the requirement to submit transportation

control measures. 38 Fed. Reg. 7323. The State of

Maryland submitted a transportation cont: ' plan to

EPA on April 16, 1973, which the Administrator

disapproved on June 22, 1973. 38 Fed. Reg. 16558-

16559, 16565, 16566. Following the procedures re-

quired by the Act, the Administrator signed a sub-

stitute transportation control plan for Maryland on

November 30, 1973 (38 Fed. Reg. 34240).

The Administrator’s plan included specific require-

ments applicable to the various Maryland air quality

control regions and general requirements applicable

5

throughout the State.” One basic requirement was

that the State “establish an inspection and mainte-

nance program applicable to all light duty, medium

duty, and heavy duty vehicles” registered in the

Baltimore area and operating on state-owned streets

and highways (40 C.F.R. 52.1095(c); App. C, infra,

62a). The State was required to submit “a detailed

compliance schedule showing the steps it will take to

establish and enforce” the inspection and mainte-

nance program, including the text of needed statu-

tory proposals and regulations, and a “signed state-

ment from the Governor or his designee identifying

the sources and amount of funds for the program”

(40 C.F.R. 52.1095(f) and (f)(4); App. C, infra,

_ 64a-65a).

The State did not submit the required schedules;

instead, it petitioned the court of appeals for review

of the Administrator’s action pursuant to Section

307(b) (1) of the Act, 42 U.S.C. 1857h-5(b) (1).

C. The Decision Below

The court of appeals noted that the contention that

the Act permits the Administrator to compel the

States to implement EPA promulgated regulations

raises an issue of “unusual constitutional signifi-

cance” (App. A, infra, 23a), and that the constitu-

tional validity of the Administrator’s efforts to com-

pel such state action “is very doubtful at the very

best” (App. A, infra, 27a). In order to avoid reach-

® These requirements are summarized in the opinion below

(App. A, infra, 33a-34a). Some of them have subsequently

been revoked or suspended (App. A, infra, 8a-9a).

6

ing the constitutional issue, the court decided the

case on statutory grounds (App. A, infra, 27a-28a).

It concluded that although Section 110 of the Act

authorizes the Administrator to prepare a substitute

control plan for the State to consider, the Act

does not empower him to direct a state to enact

its own statutes and regulations as prescribed

by the Administrator. In our opinion, the prep-

aration of regulations for a state means regula-

tions to be applied within the boundaries of a

state if it does not act in a manner approved

by the EPA. * * *

+ * * * .

Has Congress abandoned its time honored and

constitutionally approved device of threat and

promise? We think not. The statute here tells

the States to devise implementation plans con-

forming to federal specifications or else the EPA

will promulgate its own plan. The threat is a

federally imposed regulation with federal ad-

ministration; the promise is the invitation for

Maryland to enact a suitable implementation

plan and administer it with state employees,

thus avoiding federal interference. [App. A,

infra, 29a, 3l1a.]°

* The court also struck down the employer incentive regula-

tion, 40 C.F.R. 52.1105, for vagueness and failure to give

adequate notice to the affected parties (App. A, infra, 1la-

18a); it also remanded the vapor recovery regulation, 40

C.F.R. 52.1102, for clarification (App. A, infra, 19a-2la).

We do not seek review of these portions of the decision.

T

REASONS FOR GRANTING THE WRIT

This case, like Environmental Protection Agency

v. Brown, petition for a writ of certiorari pending,

No. 75-909, and District of Columbia v. Train, 521

F.2d 971 (C.A.D.C.), concerns the extent of the

EPA Administrator’s authority to promulgate pollu-

tion control plans for transportation systems regu-

lated by the States, and to require the States to carry

out such plans.* The decision below limits that au-

thority in the same way as the decision of the Ninth

Circuit in Brown, and is thus in direct conflict with

Pennsylvania v. Environmental Protection Agency,

500 F.2d 246 (C.A. 3). Moreover, as we pointed

out in our petition in Brown, it is substantially in-

consistent with the decision in District of Columbia

v. Train.

The same statutory provisions are involved in each

case; the considerations that bear upon their inter-

pretation and constitutionality are accordingly iden-

tical. Therefore, as we explained in our Brown peti-

tion, the existence of the conflict in the circuits con-

cerning the Administrator’s authority to implement

an important federal program, and the significant

constitutional issues concerning the relation between

state and federal powers which underlie that conflict,

merit plenary review by this Court.

* The Solicitor General has authorized the filing of a peti-

tion for certiorari in District of Columbia v. Train.

8

CONCLUSION

For the reasons set forth in the petition for a writ

of certiorari in Environmental Protection Agency Vv.

Brown, supra, the petition for a writ of certiorari

should be granted.

ROBERT H. BorK,

Solicitor General.

PETER R. TAFT,

Assistant Attorney General.

HARRIET S. SHAPIRO,

Assistant to the Solicitor General.

EDMUND B. CLARK,

BRUCE J. CHASAN,

NEIL T. PROTO,

Attorneys.

ROBERT V. ZENER,

General Counsel,

Environmental Protection Agency.

JANUARY 1976.

ta

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 74-1907

STATE OF MARYLAND, PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

No. 74-1026

SAFEWAY STORES, PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

No. 74-1037

SEARS, ROEBUCK & COMPANY, PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

2a

No. 74-1062

GENERAL MOTORS CORPORATION, PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

No. 74-1063

THE MAy DEPARTMENT STORES COMPANY

MONTGOMERY-WARD & Co., INC., and

J. C. PENNEY COMPANY, INC., PETITIONERS

Vv.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

No. 74-1064

BETHELEM STEEL CORPORATION, PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

8a

On petition for review of orders and regulations of

the EPA. |

Argued: December 17th, 1974 Decided: Sept. 19, 1975

Before WIDENER, Circuit Judge, and MACKEN-

ZIE and WARRINER, District Judges.*

Martin A. Ferris, III, Special Assistant Attorney

General of Maryland (Francis B. Burch, Attorney

General of Maryland, on brief) for Petitioner in No.

74-1007; William H. King, Jr., and William F. Pat-

ten (McGuire, Woods and Battle on brief) for Pe-

titioner in No. 74-1026; William F. Patten (Harvey

H. Holland, Jr.; Benjamin Cabell, IV; Wilkes and

Artis; Robert A. Maxwell and Robert A. DiFilippo

on brief) for Petitioner in No. 74-1037; William Gar

Richlin (Roger D. Redden, Frazer F. Hilder and

Raymond T. Murphy on brief) for Petitioner in No.

74-1062; David J. Toomey and Leonard E. Santos

(Michael W. Smith; Christian, Barton, Parker, Epps

and Brent; Frank E. Morris; Joseph J. C. Ranalli;

Terrence MacLaren; Pennie and Edmonds; John J.

Ross; Peter W. Tredick; Hogan and Hartson; Allan

D. Shafter; Barbara E. Schur; Alan S. Langer and

* United States District Judges for the Eastern District of

Virginia; sitting by designation.

4a

Mark Curran on brief) for Petitioners in No. 74-

1063; Alan D. Yarbro (Anthony M. Carey; John G.

Lamb, Jr.; and Venable, Baetjer and Howard on

brief) for Petitioner in No. 74-1064; John E. Bonine,

Attorney, Environmental Protection Agency, and

Bruce J. Chasan, Attorney, United States Depart-

ment of Justice, (Wailace H. Johnson, Assistant At-

torney General, Edmund B. Clark, Attorney, United

States Department of Justice, Alan G. Kirk, II, As-

sistant Administrator for Enforcement and General

Counsel, and William F. Pedersen, Attorney, En-

vironmental Protection Agency, on brief) for Re-

spondent in Nos. 74-1007, 74-1026, 74-1037, 74-1062,

74-1063 and 74-1064.

WIDENER, Circuit Judge:

This is a consolidated petition for review under

42 USC § 1857h-5(b)(1)* of certain regulations of

the Environmental Protection Agency (EPA) promul-

gated under the authority of 42 USC § 1857c-5(c)’

1 Section 1857h-5(b) (1) provides in relevant part:

A petition for review of action of the Administrator

. in approving or promulgating any implementation

plan under section 1857c-5 of this title . . . may be filed

only in the United States Court of Appeals for the ap-

propriate circuit.

2 It is provided in § 1857c-5(c) that:

(1) The Administrator shall, after consideration of

any State hearing record, promptly prepare and publish

5a

and 42 USC § 1857g°* and affecting the area known

as the Metropolitan Baltimore Intrastate Air Quality

Control Region. Although not all of the petitioners

challenged the same regulations for the same reasons,

there was sufficient similarity in their claims to con-

solidate the petitions and hear argument together.

The specific regulations challenged by the private

petitioners * are:

Employer’s Provision for Mass Transit Priority

Incentives—40 CFR § 52.1105;

Management of Parking Supply—40 CFR

§ 52.1111;

Control and Prohibition of Sources of Photo-

chemically Reactive Organic Materials—40 CFR

§ 52.1112; and

proposed regulations setting forth an implementation

plan, or portion thereof, for a State if—

(B) the plan, or any portion thereof, submitted for

such State is determined by the Administrator not to be

in accordance with the requirements of this section.

*42 USC § 1857¢ states:

(a) The Administrator is authorized to prescribe such

regulations as are necessary to carry out his function

under this chapter... .

*The private parties originally joined in this action are

Sears Roebuck & Co., General Motors Corp., Montgomery

Ward & Co., Inc., J. C. Penny Co., Inc., May Dept. Stores

Co., Adcor Realty Corp., Texaco, Gulf, Safeway Stores, and

Bethlehem Steel Corp. The Texaco and Gulf cases have been

deferred by agreement. Adcor Realty Corp., and Associated

Dry Goods Corp., have dismissed their petitions without

prejudice.

6a

Control of Evaporative Losses from Vehicular

Tanks—40 CFR § 52.1102.

The State of Maryland challenges the right of, as

well as the justification for, the EPA to require that

it enact programs calling for retrofit of pollution

control devices on certain classes of vehicles and the

establishment of bikeways. 40 CFR §§ 52.1095-52.

1100, 52-1106. Maryland has also called for a com-

plete reevaluation of the Baltimore Transportation

Plan.

The Clean Air Act, as amended, 42 USC § 1857

et seq, provides that the Administrator of the EPA

shall publish national standards for air quality as

to those pollutants which have been determined by

EPA, based on the latest scientific data, to be harm-

ful to the public health or welfare. 42 USC §§ 1857c-

3, 1857c-4. For each pollutant, a primary standard

is to be established to protect the public health and

a secondary standard to protect the public welfare.

On April 30, 1971, the EPA promulgated such regu-

lations for sulfur oxides, particulate matter, carbon

monoxide, photochemical oxidants, hydrocarbons, and

nitrogen dioxide. 40 CFR §§ 40.4-50.11 (April 30,

1971).

The statute provides that the states shall have

the primary responsibility for achieving and main-

taining these air quality standards. 42 USC § 1857c-

2. Each state was given the opportunity to submit

to the EPA, not later than January 1, 1972 (nine

months after the promulgation of the standards),

implementation plans which would achieve the pri-

Ta

mary standards within three years and the secondary

standards within a specified reasonable time. 42

USC §§ 1857c-5(a)(1), 1857c-5(a)(2)(A). Such

plans were to include, among other requirements,

“emission limitations, schedules, and timetables for

compliance with such limitations, and such other

measures as may be necessary to insure attainment

and maintenance of such primary and secondary

standard, including but not limited to, land-use and

transportation controls.” 42 USC §§ 1857c-5(a) (2)

(B). On application by the governor of a state, the

EPA may grant an extension of time, not to exceed

two years, within which to achieve the primary stand-

ard, provided the state has shown that it is unable

to meet the standard with available or alternative

technology. 42 USC § 1857c-5(e). After review of

a state’s plan, the EPA may accept it, or reject it and

issue its own implementation plan for the area. 42

USC § 1857c-5(c) (1).

Maryland submitted its regional plan on January

28, 1972. On May 31, 1972, the EPA also permitted

several states, including Maryland, until February

15, 1973 to amend their implementation plans. 37

Fed. Reg. at 10844. In addition, the EPA granted

Maryland an extension of two years in its attainment

dates for the national carbon monoxide standards.

37 Fed, Reg. 10871.

Subsequently, the United States Court of Appeals

for the District of Columbia, in Natural Resources

Defense Fund v. EPA, 475 F2d 968 (D.C. Cir. 1973),

held that a blanket delay in the submission of plans

8a

or a similar blanket extension of achievement dates

was not permitted. Based on that decision, the EPA

notified Maryland that its extension was canceled and

that complete plans were to be filed by April 15,

1973. 38 Fed. Reg. 7323 (March 20, 1973).

Maryland then filed its plan on April 16, 1973,

along with a request for a two-year extension. The

EPA denied the extension and disapproved portions

of Maryland’s April 16th plan on June 15, 1973.

38 Fed. Reg. 16558-16559, 16565-16566 (June 22,

1973). On August 2, 1973, the EPA published pro-

posed regulations to supplement the Maryland plan.

38 Fed. Reg. 20769-20779 (August 2, 1973). Fol-

“lowing public hearings held in Baltimore on Septem-

ber 5, 1973, the EPA promulgated the balance of the

regulations in issue here. 38 Fed. Reg. 34230-34257

(December 12, 1973). These included provisions

which provided that the “state of Maryland shall”

establish automobile inspection and maintenance pro-

grams as well as retrofit programs. Taken in view of

the preamble published at 38 Fed. Reg. 30626 (No-

vember 6, 1973), the EPA obviously took the position

that these regulations constituted a comprehensive

plan for implementation of the Clean Air Act in the

Baltimore area, and would produce reductions in

pollutants sufficient to meet national standards by

1977. 38 Fed. Reg. 34240 (December 12, 1973).

Thereafter, 1. June of 1974, Congress froze the

standards for lighi duty vehicles and engines manu-

factured during the model years 1975 and 1976.

P.L. 93-319(5) (a). The EPA itself revoked 40 CFR

§ 52.1112, styled the control and prohibition of sources

of photochemically reactive organic material. 40 Fed.

Reg. 5523 (February 6, 1975). It also suspended

indefinitely 40 CFR § 52.1111 providing for the man-

agement of parking supply. 40 Fed. Reg. 2586 (Jan-

uary 14, 1975, pending amendment), 40 Fed. Reg.

29713 (July 15, 1975, without qualification pending

Congressional action). In addition, the EPA has ad-

vised by letter dated March 25, 1975 that it is rescind-

ing 40 CFR § 52.1097, the oxidizing catalyst retrofit

program for medium and light duty vehicles. Finally,

the EPA has taken the position that an indefinite

suspension of any regulation entitled an aggrieved

person, before reimposition of that regulation, to ask

for review upon the same terms as were originally

available.

I

Standard of Review

In reviewing an implementation plan under the

Clean Air Act, the reviewing court must apply sub-

stantially the same standards imposed by the Ad-

ministrative Procedure Act. See Citizens to Preserve

Overton Park v. Volpe, 401 U.S. 402, 413-14 (1970).

The authority to make such regulations must be found

in the statute, the procedures followed must be law-

ful, and the plan must be constitutional. If these

requirements are met, the challenged regulations may

be set aside only where they are found to be “ar-

bitrary, capricious, an abuse of discretion, or other-

wise not in accordance with law.” 5 USC 706(2)

(A). Accord Union Electric Co, v. EPA, 515 F2d

10a

206, 214 (8th Cir. 1975) and authorities cited there-

in. In arriving at such a determination, the court

must: “ ‘engage in substantial inquiry’ into the rea-

sonableness of the agency action . . . and as a part

of that inquiry’ it ‘must consider whether the decision

was based on a consideration of the relevant factors

and whether there has been a clear error of judg-

ment’... since ‘it is’ ‘arbitrary or capricious’ for

an agency not to take into account all relevant factors

in making its determination.” Appalachian Power

Co. v. EPA, 477 F2d 495, 507 (4th Cir. 1973), (cita-

tions omitted). And, under Appalachian Power, which

sets out the standard of review in this circuit, the

courts must not substitute their judgment for that

of the agency which Congress has entrusted with

the responsibility of weighing the many competing

factors. Accord Ethyl Corp. v. EPA F2d .

(D.C. Cir., No. 73-2205, 1975). Nevertheless, the

record must indicate that all such factors were

weighed by the agency, and must support the decision

which was reached.

Numerous objections to the Agency’s plan have

been raised in these consolidated actions. They call

into question the procedural aspects of the EPA’s

rulemaking, the constitutionality of its regulations,

and their rationality. While we find some parts of

the regulations to be contrary to law, in view of the

disposition we make of the case, we do not reach

the many constitutional issues raised or most of the

multitude of procedural questions posed by the

parties.

lla

Il

Employers Provision for Mass Transit

Priority Incentives, 40 CFR 52.1105

(EMTI1)

A

40 CFR § 52.1105 requires each employer within

the region who maintains more than 700 employee

parking spaces (to be later reduced so as to apply

to those maintaining more than 70 such spaces) to

submit to the EPA a plan for encouraging employees

to use mass transit facilities rather than single pas-

senger automobiles. The only criteria governing the

acceptability of such a plan is that:

“ , . the Administrator shall approve such pro-

gram for each employer if he finds it to be ade-

quate, and shall disapprove it if he finds it not

to be adequate.” 40 CFR § 52.1105(c) (empha-

sis added).

We note complete absence of any established rele-

vant factors which the Administrator considers in

approving or disapproving an implementation plan.

So without any stated criteria, the EPA has unlimited

discretion in deciding which plan will or which will

not be approved, and, of equal significance, the em-

ployer is given no guidance whatsoever as to how

he might draft an acceptable plan other than he must

“encourage the use of mass transit” and “discourage

the use of single passenger automobiles” by his em-

ployees. While several suggested restrictive meas-

12a

ures are set forth in the regulation,’ an employer’s

ingenuity and know-how in implementing the regu-

lation faces an impossible task, for the regulation

does not advise him of a goal to be attained or of the

factors to be considered by the Administrator in de-

termining whether a particular program is “ade-

quate.”

The EPA has admitted in its brief that it is prac-

tically impossible for an employer to ascertain what

will constitute an acceptable plan. According to the

EPA:

“t]he appropriate measures in any given in-

stance will depend upon the location of the em-

ployer and the employees, the availability of mass

transit, traffic patterns, and many other factors.

These matters can be judged only on an ad hoc

basis. It may be that one transit incentive plan

providing for a ten percent reduction in VMT

will be disapproved because a twenty percent

reduction is feasible, while another transit in-

centive plan providing for a five percent reduc-

tion in VMT will be approved because it is the

most feasible plan under the circumstances.”

EPA brief at 33.

*> Section 52.1105 suggests that the program may be ade-

quate if it contains “provisions for subsidies to employees

who use mass transit, reductions in the number of employee

parking spaces, or surcharges on the use of such spaces by

employees, provision of special charter buses or other modes

of mass transit, preferential parking and other benefits to

employees who travel to work by carpool and/or any other

measures acceptable to the Administrator.” (Italics added)

13a

While the EPA brief attempts to cure the regula-

tion by suggesting some factors the Administrator

should consider in his ad hoc determination of ade-

quacy, the regulation itself suggests none. It has

recently been held in a similar case that such vague-

ness invalidated a parking regulation imposed under

the Clean Air Act. In South Terminal Corp. v. EPA,

504 F2d 646 (1st Cir. 1974), the court stated:

“We are concerned, however, by the standard-

lessness of subsection (d). The clause permits

denial of a permit unless the functionary pass-

ing on such requests decides that the facility

‘will not interefere with the attainment or main-

tenance of applicable Federal Air Quality Stand-

ards. ...’ * * * The regulation does not indi-

cate how ‘interference’ is to be judged, nor does

it state who must bear the burden of showing

non-interference. The prospective applicant for

a permit is utterly without guidance as to what

he must prove, and how. And the standard is

so vague that it invites arbitrary and unequal

application.

. . . . We disapprove the ‘interference’ clause

as now worded.” 504 F2d at 670.

We are of the opinion that the regulation in ques-

tion, 40 CFR § 52.1105, is likewise impermissibly

vague. It states neither a goal to be attained, nor

a standard to be applied, nor factors to be used by

the Administrator in his determination as to ade-

quacy. An employer may read the regulation in vain

for guidance as to what his mass transit program

l4a

should contain in order to receive administrative

approval.

Common sense dictates that if the same number

of people are transported to and from their work

by fewer motor vehicles, there will be fewer pollu-

tants discharged into the atmosphere and the laudable

purpose of clean air will be served. But the employer,

and in many instances the employees, who must bear

the brunt of the reduced vehicular traffic, must be

given some reasonable direction as to what is de-

manded of them by the government. Moreover, this

court, before it can make an intelligent determina-

tion as to whether the Administrator’s action is ar-

bitrary or capricious, must know what the relevant

factors are that are to be considered in approving

or disapproving such programs. Accord Union Elec-

tric Co. v. EPA, 515 F2d 206 (8th Cir. 1975).

We do not suggest a solution, but only decide the

case before us. Nothing in the record indicates the

EPA faces an impossible task in framing a regula-

tion of sufficient specificity.

B

Neither the Maryland plan submitted on April

16, 1973 nor the EPA’s proposed rulemaking promul-

gated on August 2, 1973 made any mention of a

program which resembles the Employers Mass Tran-

sit Program set out in 40 CFR § 52.1105. While the

proposed rulemaking mentioned limitations upon on-

street parking, as well as upon construction of ad-

ditional spaces, the only thing the EPA can point to

lba

to show the Employers Mass Transit Incentive Pro-

gram should have been expected in the Baltimore

region is that on the same day the EPA proposed

a measure entitled “Reduction of Employee Park-

ing” for the National Capital Interstate Air Quality

Control Region. 38 Fed. Reg. 20787, § 52.1096 (Au-

gust 2, 1973). Yet, the regulation here under re-

view did not appear in the Baltimore plan until

published in final form on December 12, 1973. It

was only then that the EPA offered to receive com-

ments and limited their receipt to those filed prior

to January 14, 1974.

Clearly, the promulgation of implementation plans

under the Clean Air Act by the EPA is “rulemak-

ing.” ° Buckeye Power Inc. v. EPA, 481 F2d 162,

170-71 (6th Cir. 1973); Wallapoint Oysters, Inc. v.

Ewing, 174 F2d 676, 693 (9th Cir. 1949), cert. den.,

338 US 860 (1949). The Administrative Procedure

Act requires notice be given to proposed rulemaking

and specifies that it include “either the terms or

substance of the proposed rule or a description of the

subject and issues involved.” 5 USC § 553(b) (3).

The Clean Air Act itself requires the EPA to con-

sider any State hearing or record and “publish pro-

¢The Administrative Procedure Act defines rulemaking

as the “agency process for formulating, amending, or re-

pealing a rule.” 5 USC § 551(5). A “rule” is defined as:

[T]he whole or part of an agency statement of general

or particular applicability and future effect designed to

implement, interpret or prescribe law or policy. .. .

5 USC § 551(4).

16a

posed regulations setting forth an implementation

plan... for a State... .” 42 USC § 1857c-5(c) (1).

The petitioners argue that at no time prior to

December 12, 1973 were they given notice that em-

ployer mass transit incentive provisions were being

considered, and that, as a result, they have been

denied a reasonable opportunity to evaluate and con-

sider these measures. They argue that the Agency’s

willingness to accept post-promulgation comments

after the fact from interested parties is evidence of

the confusion attendant to the adoption of certain

of the strategies included in the plan and illustrates

a lack of prior information. We agree.

The need for adequate hearing proceedings was

emphasized by this court in Appalachian Power Co.

v. EPA, 477 F2d 495 (4th Cir. 1973). In that case,

we were reviewing the EPA’s approval of a state

pollution control program. We held that the EPA

need not conduct hearings prior to its decision if the

state hearings were adequate and the EPA properly

considered their findings. As we stated:

“This conclusion [that no EPA hearing is re-

quired] . . . is based on the assumption that at

the state hearing interested parties were afford-

ed full opportunity to present their contentions

with respect to the regulations and their drastic

impact, such opportunity might well include the

right to more than merely the opportunity to

comment. [Citation omitted] What is required

in all instances, whatever the character of the

administrative action, is ‘the reality of an oppor-

tunity to submit an effective presentation,’ and,

17a

if in the context of the issues involved, ‘cross

examination on the crucial issues’ is found

proper, such right should be recognized and up-

held.” 477 F2d 495, 503.

At the hearing on September 5, 1973, no one dis-

cussed the Employers Mass Transit Incentive Pro-

gram. This adds weight to the petitioners’ conten-

tion that they were denied “an opportunity to par-

ticipate in the rulemaking.” 5 USC §553(c). In

South Terminal, the notice mentioned reducing off-

street parking, and during the subsequent hearing

there was discussion of “reducing parking facilities

where plants . . . [could] be served by mass transit.”

504 F2d at 659. Here, however, the notice did not

mention off-street parking, and at the hearing there

was no discussion of reducing employee parking

spaces. Since the disputed regulations were not sub-

ject to hearings at a state level, were not a part of

the proposed regulations that were subject to com-

ment, and were not mentioned prior to December

12, 1973 when they were issued in final form, it is

clear that the intensive pre-promulgation inquiry

anticipated by Appalachian Power was not afforded

the petitioners. The reception of comments after all

the crucial decisions have been made is not the same

as permitting active and well prepared criticism to

become a part of the decision-making process.

We are, therefore, of opinion that the regulation

is invalid as a result of the lack of notice required

by Appalachian Power, and failure to comply with

the notice and publication requirements of the Ad-

18a

ministrative Procedure Act, 5 USC § 553(b) (3), and

the statute itself, 42 USC § 1857c-5(c) (1). We em-

phasize again, as we did in Appalachian Power, that,

in light of the “drastic impact” which compliance

with regulations such as this will have, adherence to

applicable statutory provisions is necessary.

Ill

Management of Parking Supply 40 CFR § 52.1111

Given the fact that the EPA has indefinitely sus-

pended 40 CFR § 52.1111, while at the same time

taking the position that such suspension entitles one

aggrieved to a new right of review upon reinstate-

ment, we do not feel that the issues raised by the

petitioners should be considered at this time. When,

and if, the EPA reimposes the provisions of this

regulation, the parties will have ample opportunity

to present their objections to its implementation.

Accord County of Contra Costa v. EPA, —— F2d

(9th Cir. 1975). In declining to rule on the

regulation involved, we in no way imply that we

would not follow the holding in South Terminal with

respect to a similar interference clause there deemed

to be standardless.

IV

Control and Prohibition of Sources of Photo-

chemically Reactive Organic Materials, 40

CFR § 52.1112

The EPA concluded that 40 CFR § 52.1112 regu-

lating sources of photochemically reactive organic

19a

materials was vague and, on January 31, 1975, re-

scinded it. 40 Fed. Reg. 5523 (January 31, 1975).

Thus, this regulation is no longer part of the Mary-

land plan and will not be considered at this time.

V

Control of Evaporation Losses from Vehicular Tanks,

40 CFR § 52.1102

40 CFR § 52.1102 was designed to prevent the dis-

charge into the atmosphere of gasoline vapors from

the nozzles used in filling automobile gasoline tanks.

It was also intended to provide for the recovery of

at least 90% of the organic compounds displaced from

such tanks upon filling, and to prevent overfills and

spillage arising therefrom.

On June 18, 1974, the EPA relaxed the compliance

schedules and reopened the comment period due to

the “substantial confusion” which had “arisen as to

the type of equipment and necessary recovery effi-

ciency required to comply.” 39 Fed. Reg. 21049-53,

esp. 31051.

In so doing, the Agency noted that:

“Tt}he Administrator has concluded that there

have been sufficient developments since the regu-

lations were drafted, and that there is sufficient

uncertainty about which system will be approv-

able as to be in compliance with these regula-

tions to warrant a reopening of the opportunity

for public comment on this issue until July 31,

1974. In addition, an EPA-funded testing pro-

gram is being carried out in San Diego County

20a

to attempt to measure the performance of various

systems with results expected by August 1,

1974.” Id. at 21051.

We have not been advised of the results of the

testing program, and, so far as we are informed,

neither have the parties. It may be that the Admin-

istrator will soon be able to advise what devices are

approved and end the uncertainty. The court has had

an indication that such may be the case in the allied

cases of Texaco, Inc. v. EPA, No. 74-1011, and Gulf

Oil Corp. v. EPA, No. 74-1052, which were severed

from these cases and action deferred.

The EPA takes the position that a requested stay

filed by Bethlehem Steel, one of the numerous pri-

vate parties herein, is premature because no appli-

cation has been made to the Agency. See Fed. R.

App. P. 18. While this position may have some merit,

a literal application of Rule 18 of the Federal Rules

of Appellate Procedure during the pendency of a re-

view and in the midst of changing regulations would

seem of doubtful value. Nevertheless, we decline to

grant a stay of the regulation.

We are thus faced w:th the problem of the proper

course to take. If the Administrator does not know

what device will be approved, it is obvious that neither

the court nor the petitioners do. The compliance

schedule dates were extended so that the last construc-

tion date fell on May 1, 1975. 39 Fed. Reg. 21051.

Hopefully, the technical data is available and has

been distributed so this aspect of the case may be

dismissed as moot. If it has not, the petitioners may

2la

begin anew for all practical purposes if they feel

harmed.

We, therefore, are of opinion to remand this reg-

ulation to the EPA for such further consideration

as may be appropriate. It may be the EPA will

simply reimpose the regulation. If such should be the

ease, all objections available now or later may be

made at that time, including requests for stays and

reinstatement of this matter on the docket.

All matters relating to 40 CFR § 52.1102 will be

consolidated with those of the Texaco and Gulf cases,

Nos. 74-1011 and 74-1052, and jurisdiction of the

matter retained. We feel certain the parties will

advise us should a need for our further action be re-

quired,

VI

Claims of the State of Maryland

As mentioned before, Maryland submitted its plan

to the Administrator, who approved parts of it and

disapproved parts of it. For the purposes of our

discussion, we consider only the inspection and main-

tenance program, 40 CFR § 52.1095; vacuum spark

advance disconnect retrofit of pre-1968 light duty ve-

hicles, 40 CFR § 52.1096; air/fuel control retrofit of

certain 1968-71 light duty vehicles, 40 CFR § 52.-

1098, certain pre-1974 medium duty vehicles, 40 CFR

§ 52.1099, heavy duty vehicles, 40 CFR § 52.1100;

and the establishment of bikeways, 40 CFR § 52.1106.

While certain parts of Maryland’s Transportation

Plan were accepted, some were rejected by the EPA

22a

because, among various reasons, the “legal authority”

was not submitted in the plan. The EPA then re-

quired Maryland to “establish” an inspection and

maintenance program, § 52.1095, various retrofit pro-

grams, §§ 52.1096-1100, and a system of bikeways

and parking facilities, § 52.1106. The regulations con-

cerning inspection and maintenance, retrofit and bike-

way programs all required Maryland to submit “le-

gally adopted regulations” which established or im-

plemented the programs as promulgated by the EPA.

The inspection and maintenance regulations required

Maryland to submit “the text of needed statutory pro-

posals and regulations that it will propose for adop-

tion” as well as the “text of needed legislation” for

funding (if not otherwise available. The retrofit pro-

gram regulations required Maryland to forward to

the Administrator “the text of statutory proposals,

regulations, and enforcement procedures” that it sub-

mits for adoption.

The complications inherent in these astonishing

regulations are compounded by 42 USC § 1857h-5(b)

(2) which provides that such actions of the adminis-

trator “with respect to which review could have been

obtained . . . [as it is here] shall not be subject to

judicial review in civil or criminal proceedings for

enforcement.”

In a nutshell, the EPA has directed Maryland and

her legislature to legislate under pain of civil and

criminal penalties, 42 USC § 1857c-8, for a State is

a person within the meaning of the statute. 42 USC

§ 1857h(e). The government does not beg the issue,

but boldly takes the position just set forth in its

brief as it describes the questioned regulations:

“these EPA regulations which require the State to

enact enabling legislation. . . .” It then argues that

it is immaterial whether the activity regulated under

the commerce clause is proprietary or governmental,

see New York v. United States, 326 US 572, 583

(1946), and United States v. California, 297 US 175,

183 (1936), and that a construction of the commerce

clause which does not include the power of the United

States to direct the legislature of a state to legis-

late is “narrow and restrictive.”

The EPA takes the position that “direct federal

action” to enforce its own regulations, similar to

these, would be “inefficient and impract.cal” and that

“ijt is clearly necessary that implementation and

transportation control plans be carried out at the

State and local level.” 38 Fed. Reg. 30633 (Novem-

ber 6, 1973).

But we do not agree with the Agency that the

issue presented is not of unusual constitutional sig-

nificance. Rather, we are of the opinion that it is.

The Supreme Court “has always recognized that the

power to regulate commerce, though broad indeed, has

limits.” Maryland v. Wirtz, 392 US 193, 196 (1968).

In New York v. United States, the Court empha-

sized that “[u]sual governmental functions ... are

immune from federal taxation in order to preserve

the necessary independence of the State.” 326 US

at 580. It went on to note that “[t]here are of course

State activities and State-owned property that par-

take of uniqueness from the point of view of inter-

24a

governmental relations.” Id. at 582. It is doubt-

less true that the imposition of a burden upon a state

by Congress in the exercise of its power under the

commerce clause, even though the burden be onerous

and unexpected, does not render the “ederal action

invalid. See, e.g., Maryland v. Wirtz, supra; New

York v. United States, supra; United States v. Cali-

fornia, supra Parden v. Terminal Railway, 377 US

184 (1964). But it is yet true, as it was at the time

of the first great exposition of the breadth of the

commerce clause, that “[ajlthough many of the

powers, formerly exercised by the states, are trans-

ferred to the government of the Union, yet the state

governments remain, and constitute the most im-

portant part of our system.” Gibbons v. Ogden, 9

Wheat. 1, 197 (1824).’

And, while it may be true that some, or even many,

of the attributes of state sovereignty have been di-

minished by the exercise by Congress of the broad

rights accorded the nation under the commerce clause,

it is equally true that if there is any attribute of

sovereignty left to the states it is the right of their

legislatures to pass, or not to pass, laws. As the

Court stated in In re: Duncan, 139 US 449 (1891):

“By the Constitution, a republican form of gov-

ernment is guaranteed to every State in the

Union, and the distinguishing feature of that

form is the right of the people to choose their own

officers for governmental administration, and

* This case rejected an analogy between the taxing power

and the commerce power. 9 Wheat. 1, 199.

25a

pass their own laws in virtue of the legislative

power reposed in representative bodies, . . .”

139 US 449, 461.

Not far afield is the rejection by the Philadelphia

Convention of Charles Pinkney’s constitutional plan

which would have enabled Congress to “revise,” “ne-

gative,” or “annul” the laws of a state. See Elli-

ot’s Debates (Michie Ed., Vol. I, Book I, pp. 149,

400-01).

If the national legislature may not revise, negative

or annul a law of a state legislature, how an Act of

Congress may be construed to permit an agency of

the United States to direct a state legislature to legis-

late is difficult to understand.

We have found no appellate case save one, Penn-

sylvania v. EPA, 500 F2d 246 (3rd Cir. 1974), which

may be construed as holding that the nation may

direct the legislature of a state to act, for it is one

thing to strike down a state law under the sup»»macy

clause, or to decide that a state which chooses to

engage in activities which Congress has a right to

control must do so on Congress’ terms, or to hold

that Congress may induce a state to act by offering

favors or exacting financial penalties if it does not,

but it is quite another thing to extract from a state

a most fundamental attribute of its soverignty. “ “The

Court has ample power to prevent what appellants

purport to fear, the utter destruction of the State as

a sovereign political entity.’” Maryland v. Wirtz, at

p. 196, |

We, therefore, do not consider the problem routine,

or one which we should meet directly absent the most

26a

compelling circumstances. With the Fifth Circuit,

we are of opinion the question is weighty. Texas v.

EPA, 499 F2d 289, 320 (5th Cir. 1974). We are, of

course, aware that in Pennsylvania v. EPA, 500 F2d

246 (3rd Cir. 1974), that court approved an EPA

imposed plan with many of the features here claimed

objectionable. But it is also true that the First Cir-

cuit in National Resources Defense Fund v. EPA,

478 F2d 875 (1st Cir. 1973), described as “difficult

to imagine. . . [t]he sort of guarantee the current

Rhode Island executive or legislature could give the

EPA to insure that adequate resources would be de-

voted to the Plan.” Id. at 883-84. This was so

“given the mechanics of state-federal relations,” id

at 883, and its opinion that while “[s]uch assurances

might have a symbolic effect; they would have little

more, since a governor or even a present session of

the legislature cannot make binding commitments on

behalf of their successors, nor would such representa-

tions seem to be enforceable.” Id. at 884.

Of equal significance is the recent decision of the

Ninth Circuit in Brown v. EPA, No. 73-3306, ——

F2d —— (9th Cir. 1975). There, the court was

faced with similar EPA regulations directing the

State of California to take certain affirmative actions

to insure the attainment of ambient air quality stan-

dard. It, too, was of the opinion that in enacting the

Clean Air Act, Congress did not intend “to make

the states departments of the Environmental Protec-

tion Agency, no less obligated to obey its Administra-

tor’s command than. . . its subordinates.” Slip opin-

ion, p. 21. Thus, it interpreted the Act accordingly.

27a

While not reaching the constitutional issues raised

by the EPA’s claimed authority, the court, neverthe-

less, felt compelled to suggest its general evaluation

of these issues so as to “reveal the intensity of [their]

desire to avoid them.” Slip opinion, p. 18. In so

doing, the court noted that acceptance of the broad

interpretation of the Commerce Clause which the

EPA urged was appropriate “would reduce the states

to puppets of a ventriloquist Congress.” Id. at 22.

The court refused to attribute to Congress any such

purpose unless it was expressed unequivocally. This,

in its view, was not done in the Clean Air Act.

And, also in point is our language in Appalachian

Power Co. v. EPA, 477 F2d 495 (4th Cir. 1973),

where, in discussing the rejection of a state plan by

the EPA under this statute, we said:

“TIjf .. . [the Administrator] finds it [the

plan] reasonably unlikely to achieve such results

within fixed time-tables, whether for technologi-

cal or economic reasons, or otherwise, he should

reject the plan and return it to the state author-

ities with instructions to consider alternative

procedures that might meet the statutory re-

quirements as established by the Administrator.”

* 477 F2d 495, 506.

So, far from believing the regulations are plainly

valid, we are of opinion their constitutional validity

is very doubtful at the very best, and refrain from

ruling on their validity only because of two canons

of construction which, in the exercise of proper re-

straint and constitutional limitations, courts should

use in construing an Act of Congress. The first of

28a

these is that given a valid and invalid construction,

courts should, when possible, construe the statute as

valid. Graham v. Richardson, 403 US 365, 383

(1971). The second is that if a case can be decided

on either of two grounds, one involving a constitu-

tional question, and the other, a question of statutory

construction or general law, the court should decide

on the basis of the latter. Ashwander v. TVA, 297

US 288, 347 (1936) (Justice Brandeis concurring) ;

Alma Motor Co. v. Timken Co., 329 US 129, 136

(1946).

The statute itself in pertinent part provides that

a state shall “submit . ..a plan” to comply with

the statutory mandate (and achieve the goals set out

therein), 42 USC § 1857c-5(a) (1), and the Admin-

istrator shall “approve or disapprove such plan,” 42

USC § 1857c-5(a) (2). To merit approval, the plan

must contain the “necessary assurances that the

State will have . . . authority to carry out such im-

plementation plan.” 42 USC § 1857c-5(a) (2) (f). If

an implementation plan submitted by a state is “de-

termined by the Administrator not to be in accord-

ance with the requirements of the statute, the Ad-

ministrator “shall . . . promptly prepare and publish

proposed regulations setting forth an implementation

plan, or a portion thereof, for a State.” 42 USC

§ 1857c-5(a)(1)(B). As is seen from the table ap-

pended hereto, part of the Maryland plan was ap-

proved and part was disapproved. So far as we are

presently concerned, such disapproval was based on

a lack of authority.

292

Instead of referring the matter back to the state

to “consider alternative procedures that might meet

the statutory requirements,” Appalachian Power at

506, the EPA imposed its own plan for Maryland.

Assuming the EPA he~« the right to impose such a

plan on Maryland under 42 USC § 1857c-5(c) (1),

having once found Maryland’s proposal lacking in

authority, we find nothing in the statute which au-

thorizes the Administrator to direct the state to sup-

ply “legal authority,” or “statutory proposals” or the

like for the “assurances” offered to the Administra-

tor. The statute in plain words authorizes the Ad-

ministrator to “prepare ... regulations ... for a

State;’”’ it does not empower him to direct a state to

enact its own statutes and regulations as prescribed

by the Administrator. In our opinion, the prepara-

tion of regulations for a state means regulations to

be applied within the boundaries of a state if it does

not act in a manner approved by the EPA. The fact

that the EPA may prepare regulations for a state

“to consider”, Appalachian Power at 506, implies

no authority to order Maryland to legislate, “submit

legally adopted regulations,” etc.

The EPA argues that federal administration of

the federal law will be “inefficient and impractical’’,

and that the same may be better administered by the

states. Assuming this to be true, and assuming the

debates of Congress cited by the Agency support this

contention, and accepting the stated intent of the

statute that the control of air pollution remains the

primary responsibility of the state and local govern-

30a

ments, we still find nothing in any of them which

indicates the statute should be construed with such

sweeping breadth as the government claims. We are

of opinion that constitutional principles may not be

violated for administrative expediency, Thompson v.

Smith, 155 Va. 367, 379, 154 S.E. 579 (1930), and

the acceptance or rejection of hordes of federal em-

ployees enforcing an EPA plan for Maryland, as

argued by the EPA, unpalatable as that may be, is

a political judgment entrusted by the Constitution to

the Maryland General Assembly and the State of

Maryland.

We acknowledge that the construction of a statute

by the agency administering it is to be accorded

great weight. See, eg., Social Security Board v.

Nierotko, 327 US 358, 368 (1946). But if the acts

of the administering agency are not in accorance with

law, it actions must be set aside. 5 USC § 706.

It should be noted that many forms of pressure

on the states have been held not to viviate those

rights reserved by the Tenth Amendment, and none

of them have been included in this statute. The al-

ternative whip of economic pressure and seductive

favor was approved in Steward Machine Co. v. Davis,

301 US 548 (1937) (unemployment tax); Oklahoma

v. Civil Service Comm’n., 330 US 127 (1937) (with-

holding of highway funds conditioned on removal of

a member of the highway commission of state) ; Ver-

mont v. Brinegar, 379 F.Supp. 606 (D. Vt. 1974)

(highway funds withholding for non-compliance with

Highway Beautification Act); and many other cases.

8la

Statutes are common which invite state regulation or

administration in lieu of federal control, see 49 USC

§ 1671 et seq, on National Gas Pipeline Safety; or

which withhold federal aid for failure to comply with

federal standards, see P.L. 92-239, withholding fed-

eral approval of highway projects for states which

have a speed limit of more than 55 m.p.h.; or making

federal grants for state plans invoking federal stand-

ards, Occupational Safety and Health Act, 29 USC

§ 651, et seq. And it should be noted, as did the

Fifth Circuit in Texas v. EPA at 320, that no simi-

lar available administrative alternatives have been

proposed by the EPA in this case. The EPA has

simply construed the statute to suit its administra-

tive convenience with a direction to Maryland to per-

form, leaving no alternative. Maryland could not,

as Oklahoma did in Oklahoma v. Civil Service

Comm’n., 330 US 127, 143 (1946), “adopt the simple

expedient of not yielding.” Moreover, the statute

itself, 42 USC § 1857-5(b) (2), provides that Mary-

land must litigate now or forfeit the defense later.

Has Congress abandoned its time honored and con-

stitutionally approved device of threat and promise?

We think not. The statute here tells the States to

devise implementation plans conforming to federal

specifications or else the EPA will promulgate its

own plan. The threat is a federally imposed regula-

tion with federal administration; the promise is the

invitation for Maryland to enact a suitable implemen-

tation plan and administer it with state employees,

thus avoiding federal interference. Nothing in the

statute presently brought to our attention should

32a

prevent the EPA from, for example, promulgating

substantive regulations and inviting Maryland to ad-

minister them upon proper “assurances” by Maryland

as required by the statute.

But in the promulgation of its own plan, the EPA

may not, under the statute, direct Maryland to act

in the manner and form prescribed under these regu-

lations. This would be construing the statute to have

a breadth Congress never intended. Inviting Mary-

land to administer the regulations, and compelling

her to do so under threat of injunctive and criminal

sanctions, are two entirely different propositions. We

are thus of the opinion, and so hold, that the EPA

was without authority under the statute, as a matter

of statutory construction, to require Maryland to es-

tablish the programs and furnish legal authority for

the administration thereof.

VI

Conclusions

From what has been said, it is apparent that we

must decline to approve parts of the EPA plan for

Maryland. The State of Maryland asserts without

contradition that as a result of the amendment to the

statute providing for the clean car, the plan as

presently devised will require 56% gasoline rationing

by 1977. It requests, therefore, that the entire mat-

ter be reconsidered by the Agency. The economic and

social consequences of such restrictions on a com-

munity of hundreds of thousands are impossible to

predict and it would be an understatement to say

they will be immense. The EPA apparently does not

ee eee meee

33a.

especially oppose this approach, although nothing in

its brief may be construed as acquiescence. But we

must consider that Congress has set deadline dates

for attainment of the statutory goals and those parts

of the Maryland plan not reviewed are a begin-

ning on a very complex problem.

In view of the advice we have received from the

EPA that the Congressional amendment to the clean

car program “has a serious impact on the capability

of the transportation control plans to attain ambient

air quality standards by May 31, 1977,” pecially

when coupled with the fact that catalytic converters

may be discharging sulfuric acid emissions into the

atmosphere, the EPA may wish to reconsider the en-

tire program for Maryland. This, however, is a mat-

ter the Administrator should decide.

We will, then, set out specifically the regulations

with respect to which we take action.

40 CFR § 52.1105, employer provisions for mass

transit priority incentives, is remanded to the EPA

for action not inconsistent with this opinion.

40 CFR § 52.1111, management of parking supply,

having been suspended indefinitely, with the right

of review reserved, the petitions for review are dis-

missed from the active docket of this court, without

prejudice, and with leave to reinstate the same for

good cause shown.

40 CFR § 52.1112, control and prohibition of pho-

tochemically reactive organic materials, the regulation

having been rescinded, the petitions are dismissed as

moot.

34a

40 CFR § 52.1102, control of evaporation losses

from vehicular tanks, this regulation is remanded to

the Administrator for action not inconsistent with

this opinion, although jurisdiction of the matter is

retained. For purposes of further action by this

court, the petition of Bethlehem Steel, in case No.

74-1064, as it may concern 40 CFR § 52.1102, is con-

solidated with the petitions of Texaco, No, 74-1011,

and Gulf, No. 74-1052.

40 CFR § 52.1097, oxidation catalyst retrofit pro-

gram for light and medium duty vehicles. Since EPA

advises the regulation is being rescinded, the peti-

tion is dismissed, as moot, without prejudice to re-

instate the same or file another petition should we

be mistakenly advised.

40 CFR §§ 52.1095, inspection and maintenance

program, 52.1096, vacuum spark advance disconnect

retrofit program, 52.1098, light duty air/fuel con-

trol retrofit program, 52.1100, heavy duty air/fuel

control retrofit program, and 52.1106, study and

establishment of bikeways program, are all set aside

as contrary to law.

40 CFR § 52.1080, compliance schedule. In the

prayer of the petition, Maryland asked for the first

time to have this regulation set aside. The regulation

covers a multitude of subjects from boilers to bus

lanes and no attempt was made to enlighten us as to

the specific defects claimed. Accordingly, the peti-

tion for review as to § 52.1080 is dismissed without

prejudice to reinstate the same for good cause

shown.

ee OS 3

TABLE 1.—EPA TRANSPORTATION CONTROL PLAN

EPA proposal

STATIONARY SOURCE CONTROLS

Maryland plan

EPA promulgation

Limitation of major source emissions.

Control of dry cleaning losses.

covery.

Control of dry cleaning losses.

Limitation of major source emissions. Control of organic solvents.

Service station pump vapor recovery. Service station pump vapor re- Service station pump vapor recovery.

Prohibition of new major sources.

Service station tank vapor recovery. Service station tank vapor recovery. Service station tank vapor recovery.

Control of dry cleaning losses.

MOBILE SOURCE CONTROLS

Inspection-maintenance.

Inspection-maintenance.

Inspection-maintenance.

HDV catalytic retrofit.

HDV air-fuel control retrofit.

VSAD retrofit, pre-68 LDV.

LDV catalytic retrofit.

VSAD retrofit, pre-68 LDV.

LDV catalytic retrofit.

LDV air-fuel control retrofit.

MDV catalytic retrofit.

MDYV air-fuel control retrofit.

VMT CONTROLS

Transit service improvements.

Carpool locator.

Carpool locator.

Exclusive busways.

Limitation of onstreet parking.

Exclusive buslanes.

Express busways.

Limitation of onstreet parking.

Traffic flow improvements.

Traffic flow improvements.

Episode vehicle exclusion.

Management of parking supply.

Employer’s parking policy.

Study and establishment of bikeways.

Gasoline distribution limitation.

Gasoline distribution limitation.

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38a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 74-1007

STATE OF MARYLAND, PETITIONER

versus

RUSSELL E. TRAIN, Administrator, and

Environmental Protection Agency, RESPONDENT

DISTRICT OF COLUMBIA, a municipal Corp.,

INTERVENOR

WASHINGTON AREA BICYCLIST ASSOC., INC., ET AL.,

INTERVENOR

ON PETITION FOR REVIEW OF AN ORDER

OF THE

ENVIRONMENTAL PROTECTION AGENCY

THIS CAUSE CAME ON to be heard upon the

petition of the State of Maryland for review of En-

vironmental Protection Agency Regulations, Em-

ployer’s Provision for Mass Transit Priority Incen-

tives—40 CFR § 52.1105; Management of Parking

Supply—40 CFR § 52.1111; Control and Prohibition

of Sources of Photochemically Reactive Organic Ma-

terials—40 CFR § 52.1112; and Control of Evapora-

tive Losses from Vehicular Tanks—40 CFR § 52.1102;

and upon a certified list in lieu of a transcript of

the record; and the said cause was argued by counsel.

ON CONSIDERATION WHEREDOPF, it is ordered,

adjudged and decreed by the United States Court of

Appeals for the Fourth Circuit, that:

40 CFR § 52.1105, employer provisions for mass

transit priority incentives, is remanded to the EPA

for action not inconsistent with the opinions of this

Court.

40 CFR §52.1111, management of parking sup-

ply, having been suspended indefinitely, with the

right of review reserved, the petition for review is

dismissed from the active docket of this court, with-

out prejudice, and with leave to reinstate the same

for good cause shown.

40 CFR § 52.1112, control and prohibition of photo-

chemically reactive organic materials, the regulation

having been rescinded, the petition is dismissed as

moot.

40 CFR § 52.1102, control of evaporation losses

from vehicular tanks, this regulation is remanded

to the Administrator for action not inconsistent with

this opinion, although jurisdiction of the matter is

retained. For purposes of further action by this court,

the petition of Bethlehem Steel, in case No. 74-1064,

as it may concern 40 CFR § 52.1102, is consolidated

with the petitions of Texaco, No. 74-1011, and Gulf,

No. 74-1052.

40 CFR § 52.1097, oxidation catalyst retrofit pro-

gram for light and medium duty vehicles. Since

EPA advises the regulation is being rescinded, the

petition is dismissed as moot, without prejudice to

reinstate the same or file another petition should we

be mistakenly advised.

40 CFR §§ 52.1095, inspection and maintenance

program, 52.1096, vacuum spark advance disconnect

retrofit program, 52.1098, light duty air/fuel control

40a

retrofit program, 52.1100, heavy duty air/fuel con-

trol retrofit program, and 52.1106, study and estab-

lishment of bikeways program, are all set aside as

contrary to law.

40 CFR § 52.1080, compliance schedule. In the

prayer of the petition, Maryland asked for the first

time to have this regulation set aside. The regula-

tion covers a multitude of subjects from boilers to

bus lanes and no attempt was made to enlighten the

court as to the specific defects claimed. Accordingly,

the petition for review as to § 52.1080 is dismissed

without prejudice to reinstate the same for good cause

shown.

/s/ WILLIAM K. SLATE, II

Clerk

[Filed Sep. 19, 1975, William K. Slate, II, Clerk]

A True Copy, Teste:

William K. Slate, II, Clerk

By /s/ [lIilegible]

Deputy Cierk

4la

APPENDIX C

CONSTITUTIONAL PROVISIONS, STATUTES

AND REGULATIONS INVOLVED

I. The Constitution of the United States provides

in pertinent part:

Article I, Section 8:

The Congress shall have Power * * *

* * * * *

To regulate Commerce * * * among the

several States * * *

* * * * *

To make all Laws which shall be neces-

sary and proper for carrying into Execu-

tion the foregoing Powers, and all other

Powers vested by this Constitution in the

Government of the United States, or in any

Department or Officer thereof.

Article VI:

* * * * -

This Constitution, and the laws of the

United States which shall be made in Pur-

suance thereof * * * shall be the supreme

Law of the Land * * *.

Tenth Amendment:

The powers not delegated to the United

States by the Constitution, nor prohibited

by it to the States, are reserved to the

States respectively, or to the people.

II. Sections 101, 107, 109, 110, 113 and 302(e) of

the Clean Air Act of 1967, 81 Stat. 485, as amended

42a

by the Clean Air Act Amendments of 1970, 84 Stat.

1676, 42 U.S.C. 1857 et seg., as amended by Section

302, 85 Stat. 464 and Section 4 of the Energy Supply

and Environmental Coordination Act of 1974, Pub.

L. No. 93-319, 88 Stat. 256, provide in relevant part:

Section 101 (42 U.S.C. 1857)

Congressional findings; purposes of subchapter.

(a) The Congress finds—

(1) that the predominant part of the Na-

tion’s population is located in its rapidly expand-

ing metropolitan and other urban areas, which

generally cross the boundary lines of local juris-

dictions and often extend into two or more

States ;

(2) that the growth in the amount and com-

plexity of air pollution brought about by urbani-

zation, industrial development, and the increas-

ing use of motor vehicles, has resulted in mount-

ing dangers to the public health and welfare,

including injury to agricultural crops and live-

stock, damage to and the deterioration of prop-

erty, and hazards to air and ground transporta-

tion;

(3) that the prevention and control of air

pollution at its source is the primary responsi-

bility of States and local governments; and

(4) that Federal financial assistance and

leadership is essential for the development of

cooperative Federal, State, regional, and local

programs to prevent and control air pollution.

(b) The purposes of this subchapter are—

(1) to protect and enhance the quality of the

Nation’s air resources so as to promote the public

48a

health and welfare and the productive capacity

of its population;

(2) to initiate and accelerate a national re-

search and development program to achieve the

prevention and control of air pollution;

(3) to provide technical and financial assist-

ance to State and local governments in connec-

tion with the development and execution of their

air pollution prevention and control programs;

and

(4) to encourage and assist the development

and operation of regional air pollution control

programs.

Section 107 (42 U.S.C. 1857c-2)

Air quality control regions.

(a) Responsibility of State for air quality; sub-

mission of implementation plan.

Each State shall have the primary responsi-

bility for assuring air quality within the en-

tire geographic area comprising such State by

submitting an implementation plan for such

State which will specify the manner in which

national primary and secondary ambient air

quality standards will be achieved and main-

tained within each air quality control region in

such State.

* * * e

Section 109 (42 U.S.C. 1857-4)

National primary and secondary ambient air quality

standards; promulgation; procedure.

(a)(1) The Administrator—

(A) within 30 days after December 31, 1970,

shall publish proposed regulations prescribing a

national primary ambient air quality standard

44a

and a national secondary ambient air quality

standard for each air pollutant for which air

quality criteria have been issued prior to such

date; and

(B) after a reasonable time for interested

persons to submit written comments thereon (but

no later than 90 days after the initial publica-

tion of such proposed standards) shall by reg-

ulation promulgate such proposed national pri-

mary and secondary ambient air quality stand-

ards with such modifications as he deems ap-

propriate.

(2) With respect to any air pollutant for which

air quality criteria are issued after December 31,

1970, the Administrator shall publish, simultaneously

with the issuance of such criteria and information,

proposed national primary and secondary ambient

air quality standards for any such pollutant. The

procedure provided for in paragraph (1)(B) of this

subsection shall apply to the promulgation of such

standards.

(b)(1) National primary ambient air quality

standards, prescribed under subsection (a) of this

section shall be ambient air quality standards the

attainment and maintenance of which in the judg-

ment of the Administrator, based on such criteria

and allowing an adequate margin of safety, are req-

uisite to protect the public health. Such primary

standards may be revised in the same manner as

promulgated.

(2) Any national secondary ambient air quality

standard prescribed under subsection (a) of this sec-

45a

tion shall specify a level of air quality the attainment

and maintenance of which in the judgment of the

Administrator, based on such criteria, is requisite to

protect the public welfare from any known or antici-

pated adverse effects associated with the presence of

such air pollutant in the ambient air. Such secondary

standards may be revised in the same manner as pro-

mulgated.

Section 110 (42 U.S.C. 1857c-5)

State implementation plans for national primary and

secondary ambient air quality standards.

(a)(1) Each State shall, after reasonable notice

and public hearings, adopt and submit to the Ad-

ministrator, within nine months after the promulga-

tion of a national primary ambient air quality stand-

ard (or any revision thereof) under section 109 for

any air pollutant, a plan which provides for imple-

mentation, maintenance, and enforcement of such

primary standard in each air quality control region

(or portion thereof) within such State. In addition,

such State shall adopt and submit to the Adminis-

trator (either as a part of a plan submitted under

the preceding sentence or separately) within nine

months after the promulgation of a national ambient

air quality secondary standard (or revision there-

of), a plan which provides for implementation, main-

tenance, and enforcement of such secondary standard

in each air quality control region (or portion there-

of) within such State. Unless a separate public hear-

ing is provided, each State shall consider its plan

46a

implementing such secondary standard at the hear-

ing required by the first sentence of this paragraph.

(2) The Administrator shall, within four months

after the date required for submission of a plan un-

der paragraph (1), approve or disapprove such plan

for each portion thereof. The Administrator shall

approve such plan, or any portion thereof, if he de-

termines that it was adopted after reasonable notice

and hearing and that—

(A)(i) in the case of a plan implementing

a national primary ambient air quality stand-

ard, it provides for the attainment of such pri-

mary standard as expeditiously as practicable

but (subject to subsection (e)) in no case later

than three years from the date of approval of

such plan (or any revision thereof to take ac-

count of a revised primary standard) ; and, (ii)

in the case of a plan implementing a national

secondary ambient air quality standard, it speci-

fies a reasonable time at which such secondary

standard will be attained;

(B) it includes emission limitations, sched-

ules, and timetables for compliance with such

limitations, and such other measures as may be

necessary to insure attainment and maintenance

of such primary or secondary standard, includ-

ing, but not limited to, land-use and transporta-

tion controls;

(C) it includes provision for establishment

and operation of appropriate devices, methods,

systems, and procedures necessary to (i) moni-

tor, compile, and analyze data on ambient air

quality and, (ii) upon request, make such data

available to the Administrator ;

47a

(D) it includes a procedure, meeting the re-

quirements of paragraph (4), for review (prior

to construction or modification) of the location

of new sources to which a standard of perform-

ance will apply;

(E) it contains adequate provisions for in-

tergovernmental cooperation, including measures

necessary to insure that emissions of air pollu-

tants from sources located in any air quality

control region will not interfere with the attain-

ment or maintenance of such primary or second-

ary standard in any portion of such region out-

side of such State or in any other air quality

control region;

(F) it provides (i) necessary assurances

that the State will have adequate personnel,

funding, and authority to carry out such imple-

mentation plan; (ii) requirements for installa-

tion of equipment by owners or operators of sta-

tionary sources to monitor emissions from such

sources; (iii) for periodic reports on the nature

and amounts of such emissions; (iv) that such

reports shall be correlated by the State agency

with any emission limitations or standards es-

tablished pursuant to this Act, which reports

shall be available at reasonable times for public

inspection; and (v) for authority comparable to

that in section 303, and adequate contingency

plans to implement such authority;

(G) it provides, to the extent necessary and

practicable, for periodic inspection and testing

of motor vehicles to enforce compliance with ap-

plicable emission standards; and

(H) it provides for revision, after public

hearings, of such plan (i) from time to time as

48a

may be necessary to take account of revisions

of such national primary or secondary ambient

air quality standard or the availability of im-

proved or more expeditious methods of achiev-

ing such primary or secondary standard; or (ii)

whenever the Administrator finds on the basis

of information available to him that the plan is

substantially inadequate to achieve the national

ambient air quality primary or secondary stand-

ard which it implements.

(3)(A) The Administrator shall approve any re-

vision of an implementation plan applicable to an

air quality control region if he determines that it

meets the requirements of paragraph (2) and has

been adopted by the State after reasonable notice and

public hearings.

(B) As soon as practicable, the Administrator

shall, consistent with the purposes of this Act and

the Energy Supply and Environmental Coordination

Act of 1974, review each State’s applicable implemen-

tation plans and report to the State on whether such

plans can be revised in relation to fuel burning sta-

tionary sources (or persons supplying fuel to such

sources) without interfering with the attainment and

maintenance of any national ambient air quality

standard within the period permitted in this sec-

tion. If the Administrator determines that any such

plan can be revised, he shall notify the State that

a plan revision may be submitted by the State. Any

plan revision which is submitted by the State shall,

after public notice and opportunity for public hear-

ing, be approved by the Administrator if the re-

49a

vision relates only to fuel burning stationary sources

(or persons supplying fuel to such sources), and the

plan as revised complies with paragraph (2) of tiis

subsection. The Administrator shall approve or dis-

approve any revision no later than three months

after its submission.

(4) The procedure referred to in paragraph (2)

(D) for review, prior to construction or modification,

of the iocation of new sources shall (A) provide for

adequate authority to prevent the construction or

modification of any new source to which a standard

of performance under section 111 will apply at any

location which the State determines will prevent the

attainment or maintenance within any air quality

control region (or portion thereof) within such State

of a national ambient air quality primary or second-

ary standard, and (B) require that prior to com-

mencing construction or modification of any such

source, the owner or operator thereof shall submit to

such State such information as may be necessary to

permit the State to make a determination under

clause (A).

(b) The Administrator may, wherever he de-

termines necessary, extend the period for submis-

sion of any plan or portion thereof which imple-

ments a national secondary ambient air quality stand-

ard for a period not to exceed 18 months from the

date otherwise required for submission of such plan.

(c)(1) The Administrator shall, after considera-

tion of any State hearing record, promptly prepare

50a

and publish proposed regulations setting forth an im-

plementation plan, or portion thereof, for a State if—

(A) The State fails to submit an implemen-

tation plan for any national ambient air quality

primary or secondary standard within the time

prescribed,

(B) the plan, or any portion thereof, sub-

mitted for such State is determined by the Ad-

ministrator not to be in accordance with the re-

quirements of this section, or

(C) the State fails, within 60 days after no-

tification by the Administrator or such longer

period as he may prescribe, to revise an imple-

mentation plan as required pursuant to a provi-

sion of its plan referred to in subsection (a) (2)

(H).

If such State held no public hearing associated with

respect to such plan (or revision thereof), the Ad-

ministrator shall provide opportunity for such hear-

ing within such State on any proposed regulation.

The Administrator shall, within six months after the

date required for submission of such plan (or re-

vision thereof), promulgate any such regulations un-

less, prior to such promulgation, such State has

adopted and submitted a plan (or revision) which the

Administrator determines to be in accordance with

the requirements of this section.

(2)(A) The Administrator shall conduct a study

and shall submit a report to the Committee on Inter-

state and Foreign Commerce of the United States

House of Representatives and the Committee on Pub-

lic Works of the United States Senate not later than

5la

three months after date of enactment of this para-

graph on the necessity of parking surcharge, manage-

ment of parking supply, and preferential bus/car-

pool lane regulations as part of the applicable imple-

mentation plans required under this section to achieve

and maintain national primary ambient air quality

standards. The study shall include an assessment of

the economic impact of such regulations, considera-

tion of alternative means of reducing total vehicle

miles traveled, and an assessment of the impact of

such regulations on other Federal and State programs

dealing with energy or transportation. In the course

of such study, the Administrator shall consult with

other Federal officials including, but not limited to,

the Secretary of Transportation, the Federal Energy

Administrator, and the Chairman of the Council on

Environmental Quality.

(B) No parking surcharge regulation may be re-

quired by the Administrator under paragraph (1)

of this subsection as a part of an applicable imple-

mentation plan. All parking surcharge regulations

previously required by the Administrator shall be

void upon the date of enactment of this subparagraph.

This subparagraph shall not prevent the Adminis-

trator from approving parking surcharges if they

are adopted and submitted by a State as part of an

applicable implementation plan. The Administrator

may not condition approval of any implementation

plan submitted by a State on such plan’s including a

parking surcharge regulation.

(C) The Administrator is authorized to suspend

52a

until January 1, 1975, the effective date or applica-

bility of any regulations for the management of

parking supply or any requirement that such regula-

tions be a part of an applicable implementation plan

approved or promulgated under this section. The ex-

ercise of the authority under this subparagraph shall

not prevent the Administrator from approving such

regulations if they are adopted and submitted by a

State as part of an applicable implementation plan.

If the Administrator exercises the authority under

this subparagraph, regulations requiring a review or

analysis of the impact of proposed parking facilities

before construction which take effect on or after

January 1, 1975, shall not apply to parking facilities

on which construction has been initiated before Janu-

ary 1, 1975.

(D) For purposes of this paragraph—

(i) The term ‘parking surcharge regulation’

means a regulation imposing or requiring the im-

position of any tax, surcharge, fee, or other charge

on parking spaces, or any other area used for the

temporary storage of motor vehicles.

(ii) The term ‘management of parking sup-

ply’ shall include any requirement providing that any

new facility containing a given number of parking

spaces shall receive a permit or other prior approval,

issuance of which is to be conditioned on air quality

considerations.

(iii) The term ‘preferential bus/carpool lane’

shall include any requirement for the setting aside

of one or more lanes of a street or highway on a

53a

permanent or temporary basis for the exclusive use

of buses or carpools, or both.

(E) No standard, plan, or requirement, relating

to management of parking supply or preferential

bus/carpool lanes shall be promulgated after the date

of enactment of this paragraph by the Administra-

tor pursuant to this section, unless such promulgation

has been subjected to at least one public hearing

which has been held in the area affected and for

which reasonable notice has been given in such area.

If substantial changes are made following public

hearings, one or more additional hearings shall be

held in such area after such notice.

(d) For purposes of this Act, an applicable im-

plementation plan is the implementation plan, or

most recent revision thereof, which has been approved

under subsection (a) or promulgated under subsec-

tion (c) and which implements a national primary or

secondary ambient air quality standard in a State.

(e)(1) Upon application of a Governor of a

State at the time of submission of any plan imple-

menting a national ambient air quality primary

standard, the Administrator may (subject to para-

graph (2)) extend the three-year period referred to

in subsection (a) (2)(A)(i) for not more than two

years for an air quality control region if after re-

view of such plan the Administrator determines

that—

(A) one or more emission sources (or classes

of moving sources) are unable to comply with

the requirements of such plan which implement

54a

such primary standard because the necessary

technology or other alternatives are not available

or will not be available soon enough to permit

compliance within such three-year period, and

(B) the State has considered and applied as

a part of its plan reasonably available alterna-

tive means of attaining such primary standard

and has justifiably concluded that attainment of

such primary standard within the three years

cannot be achieved.

(2) The Administrator may grant an extension

under paragraph (1) only if he determines that the

State plan provides for—

(A) application of the requirements of the

plan which implement such primary standard to

all emission sources in such region other than

the sources (or classes) described in paragraph

(1)(A) within the three-year period, and

(B) such interim measures of control of the

sources (or classes) described in paragraph (1)

(A) as the Administrator determines to be rea-

sonable under the circumstances.

(f)(1) Prior to the date on which any stationary

source or class of moving sources is required to com-

ply with any requirement of an applicable implemen-

tation plan the Governor of the State to which such

plan applies may apply to the Administrator to post-

pone the applicability of such requirement to such

source (or class) for not more than one year. If

the Administrator determines that—

(A) good faith efforts have been made to

comply with such requirement before such date,

55a

(B) such source (or class) is unable to com-

ply with such requirement because the necessary

technology or other alternative methods of con-

trol are not available or have not been available

for a sufficient period of time,

(C) any available alternative operating pro-

cedures and interim control measures have re-

duced or will reduce the impact of such source

on public health, and

(D) the continued operation of such source

is essential to national security or to the public

health or welfare,

then the Administrator shall grant a postponement of

such requirement.

(2)(A) Any determination under paragraph (1)

shall (i) be made on the record after notice to inter-

ested persons and opportunity for hearing, (ii) be

based upon a fair evaluation of the entire record at

such hearing, and (iii) include a statement setting

forth in detail the findings and conclusions upon

which the determination is based.

(B) Any determination made pursuant to this

paragraph shall be subject to judicial review by the

United States court of appeals for the circuit which

includes such State upon the filing in such court

within 30 days from the date of such decision of a

petition by any interested person praying that the

decision be modified or set aside in whole or in part.

A copy of the petition shall forthwith be sent by

registered or certified mail to the Administrator and

thereupon the Administrator shall certify and file in

such court the record upon which the final decision

56a

complained of was issued, as provided in section

2112 of title 28, United States Code. Upon the filing

of such petition the court shall have jurisdiction to

affirm or set aside the determination complained of

in whole or in part. The findings of the Administra-

tor with respect to questions of fact (including each

determination made under subparagraphs (A), (B),

(C), and (D), of paragraph (1)) shall be sustained

if based upon a fair evaluation of the entire record

at such hearing.

(C) Proceedings before the court under this para-

graph shall take precedence over all the other causes

of action on the docket and shall be assigned for

hearing and decision at the earliest practicable date

and expedited in every way.

(D) Section 307 (a) (relating to subpenas) shall

be applicable to any proceeding under this subsection.

* e a e *

Section 113 (42 U.S.C. 1857c-8)

Federal enforcement procedures.

(a)(1) Whenever, on the basis of any informa-

tion available to him, the Administrator finds that

any person is in violation of any requirement of an

applicable implementation plan, the Administrator

shall notify the person in violation of the plan and

the State in which the plan applies of such finding.

If such violation extends beyond the 30th day after

the date of the Administrator’s notification, the Ad-

ministrator may issue an order requiring such per-

son to comply with the requirements of such plan or

57a

he may bring a civil action in accordance with sub-

section (b).

(2) Whenever, on the basis of information avail-

able to him, the Administrator finds that violations of

an applicable implementation plan are so widespread

that such violations appear to result from a failure

of the State in which the plan applies to enforce the

pian effectively, he shall so notify the State. If the

Administrator finds such failure extends beyond the

30th day after such notice, he shall give public no-

tice of such finding. During the period beginning

with such public notice and ending when such State

satisfies the Administrator that it will enforce such

plan (hereafter referred to in this section as ‘period

of Federally assumed enforcement’), the Adminis-

trator may enforce any requirement of such plan

with respect to any person—

(A) by issuing an order to comply with such

requirement, or

(B) by bringing a civil action under subsec-

tion (b).

(3) Whenever, on the basis of any information

available to him, the Administrator finds that any

person is in violation of section 111(e) (relating to

new source performance standards), 112(c) (re-

lating to standards for hazardous emissions), or 119

(g) (relating to energy-related authorities), or is in

violation of any requirement of section 114 (relating

to inspections, etc.), he may issue an order requir-

ing such person to comply with such section or re-

58a

quirement, or he may bring a civil action in accord-

ance with subsection (b).

(4) An order issued under this subsection (other

than an order relating to a violation of section 112)

shall not take effect until the person to whom it is

issued has had an opportunity to confer with the Ad-

ministrator concerning the alleged violation. A copy

of any order issued under this subsection shall be

sent to the State air pollution control agency of any

State in which the violation occurs. Any order issued

under this subsection shall state with reasonable spe-

cificity the nature of the violation, specify a time for

compliance which the Administrator determines is

reasonable, taking into account the seriousness of

the violation and any good faith efforts to comply

with applicable requirements. In any case in which

an order under this subsection (or notice to a viola-

tor under paragraph (1)) is issued to a corporation,

a copy of such order (or notice) shall be issued to

appropriate corporate officers.

(b) The Administrator may commence a civil ac-

tion for appropriate relief, including a permanent or

temporary injunction, whenever any person—

(1) violates or fails or refuses to comply

with any order issued under subsection (a); or

(2) violates any requirement of an appli-

cable implementation plan (A) during any pe-

riod of Federally assumed enforcement, or (B)

more than 30 days after having been notified by

the Administrator under subsection (a)(1) of

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a finding that such person is violating such re-

quirement; or

(3) violates section 111(e), 112(c), or 119

(g); or

(4) fails or refuses to comply with any re-

quirement of section 114.

Any action under this subsection may be brought in

the district court of the United States for the district

in which the defendant is located or resides or is do-

ing business, and such court shall have jurisdiction to

restrain such violation and to require compliance.

Notice of the commencement of such action shall be

given to the appropriate State air pollution control

agency.

(c)(1) Any person who knowingly—

(A) violates any requirement of an appli-

cable implementation plan (i) during any pe-

riod of Federally assumed enforcement, or (ii)

more than 30 days after having been notified by

the Administrator under subsection (a) (1) that

such person is violating such requirement, or

(B) violates or fails or refuses to comply

with any order issued by the Administrator un-

der subsection (a), or

(C) violates section 111(e), section 112(c),

or section 119(g) shall be punished by a fine of

not more than $25,000 per day of violation, or

by imprisonment for not more than one year, or

by both. If the conviction is for a violation com-

mitted after the first conviction of such person

under this paragraph, punishment shall be by a

fine of not more than $50,000 per day of viola-

60a

tion, or by imprisonment for not more than two

years, or by both.

(2) Any person who knowingly makes any false

statement, representation, or certification in any ap-

plication, record, report, plan, or other document filed

or required to be maintained under this Act or who

falsifies, tampers with, or knowingly renders inac-

curate any monitoring device or method required to

be maintained under this Act, shall upon conviction,

be punished by a fine of not more than $10,000, or

by imprisonment for not more than six months, or

by both.

* x * * *

Section 302 (42 U.S.C. 1857h)

Definitions.

When used in this chapter—

(a) The term “Administrator” means the Admin-

istrator of the Environmental Protection Agency.

(d) The term “State” means a State, the District

of Columbia, the Commonwealth of Puerto Rico, the

Virgin Islands, Guam, and American Samoa.

(e) The term “person” includes an individual,

corporation, partnership, association, State, munici-

pality, and political subdivision of a State.

To

6la

(f) The term “municipality” means a city, town,

borough, county, parish, district, or other public body

created by or pursuant to State law.

* * * * *

(h) All language referring to effects on welfare

includes, but is not limited to, effects on soils, water,

crops, vegetation, manmade materials, animals, wild-

life, weather, visibility, and climate, damage to and

deterioration of property, and hazards to transpor-

tation, as well as effects on economic values and on

personal comfort and well-being.

III. 40 C.F.R. Part 52 provides in pertinent part:

§ 52.23 (as amended Sept. 18, 1974, 39 Fed. Reg. 33512)

Violation and Enforcement.

Failure to comply with any provisions of this

part, or with any approved regulatory provision

of a state implementation plan, or with any per-

mit condition or permit denial issued pursuant

to approved or promulgated regulations for the

review of new or modified stationary or indirect

sources, shall render the person or governmental

entity so failing to comply in violation of a re-

quirement of an applicable implementation plan

and subject to enforcement action under section

113 of the Clean Air Act. With regard to com-

pliance schedules, a person or Governmental en-

tity will be considered to have failed to comply

with the requirements of this part if it fails to

timely submit any required compliance schedule,

if the compliance schedule when submitted does

not contain each of the elements it is required

62a

to contain, or if the person or Governmental

entity fails to comply with such schedule.

* * * * *

Subpart V—Maryland

* * * x *

§ 52.1095 Inspection and maintenance program.

(a) Definitions:

(1) “Inspection and maintenance program”

means a program for reducing emissions from

in-use vehicles through identifying vehicles that

need emission control-related maintenance and

requiring that such maintenance be performed.

(2) “Light-duty vehicle’ means a gasoline-

powered motor vehicle rated at 6,000 lb gross

vehicle weight (GVW) or less.

(3) “Medium-duty vehicle” means a gasoline-

powered motor vehicle rated at more than 6,000

lb GVW and less than 10,000 lb GVW.

(4) “Heavy-duty vehicle” means a gasoline-

powered motor vehicle rated at 10,000 GVW or

more.

(5) All other terms used in this section that

are defined in Part 51, Appendix N, of this chap-

ter are used herein with the meanings so defined.

(b) This section is applicable within the

Metropolitan Baltimore Intrastate AQCR.

(c) The State of Maryland shall establish an

inspection and maintenance program applicable

to all light-duty, medium-duty, and heavy-duty

vehicles registered in the area specified in para-

graph (b) of this section that operate on public

streets or highways over which it has owner-

ship or control. The State may exempt any class

or category of vehicles that the State finds is

63a

rarely used on public streets or highways (such

as classic or antique vehicles). No later than

April 1, 1974, the State shall submit legally

adopted regulations to the Administrator estab-

lishing such a program. The regulations shall

include:

(1) Provisions for inspection of all light-duty,

medium-duty, and heavy-duty motor vehicles at

periodic intervals no more than 1 year apart by

means of a loaded emission test.

(2) Provisions for inspection failure criteria

consistent with the failure of 30 percent of the

vehicles in the first inspection cycle.

(3) Provisions to ensure that failed vehicles

receive within two weeks, the maintenance neces-

sary to achieve compliance with the inspection

standards. These shall include sanctions against

individual owners and repair facilities, retest

of failed vehicles following maintenance, use of

a certification program to ensure that repair

facilities performing the required maintenance

have the necessary equipment, parts, and knowl-

edgeable operators to perform the tasks satis-

factorily, and use of such other measures as may

be necessary or appropriate.

(4) A program of enforcement to ensure that

vehicles are not intentionally readjusted or modi-

fied subsequent to the inspection and/or main-

tenance in such a way as would cause them to

no longer comply with the inspection standards.

This enforcement program might include spot

checks of idle adjustments and/or a suitable type

of physical tagging. This program shall include

appropriate penalties for violation.

64a

(5) Provisions for beginning the first inspec-

tion cycle by August 1, 1975, and completing it

by July 31, 1976.

(6) Designation of an agency or agencies re-

sponsible for conducting, overseeing, and enforc-

ing the inspection and maintenance program.

(d) After July 31, 1976, the State shall not

register or allow to operate on public streets or

highways any light-duty, medium-duty, or heavy-

duty vehicle that does not comply with the ap-

plicable standards and procedures adopted pur-

suant to paragraph (c) of this section. This

shall not apply to the initial registration of a

new motor vehicle.

(e) After July 31, 1976, no owner of a light-

duty, medium-duty, or heavy-duty vehicle shall

operate or allow the operation of such vehicle

that does not comply with the applicable stand-

ards and procedures adopted pursuant to para-

graph (c) of this section. This shall not apply

to the initial registration of a new motor ve-

hicle.

(f) The State of Maryland shall submit no

later than February 1, 1974, a detailed com-

pliance schedule showing the steps it will take

to establish and enforce an inspection and main-

tenance program pursuant to paragraph (c) of

this section, including:

(1) The text of needed statutory proposals

and regulations that it will propose for adoption.

(2) The date by which the State will recom-

mend needed legislation to the State legislature.

(3) The date by which necessary equipment

will be ordered.

65a

(4) A signed statement from the Governor

or his designee identifying the sources and

amounts of funds for the program. If funds

cannot legally be obligated under existing statu-

tory authority, the text of needed legislation

shall be submitted.

=v. 8. GOVERNMENT PRinTiNeG Orrice, 1975 598979 160