Appendix — Virginia ex rel. Air Pollution Control Board v. Train

Supreme Court brief1976

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Supreme Court, U. &

FILED

JAN 26 1976

APPENDIX

MR., CLERK

Supreme Court of the United States

9 751050

COMMONWEALTH OF VIRGINIA, EX EL.,

STATE AIR POLLUTION CONTROL BOARD,

Petitioner,

RUSSELL E. TRAIN, AbuiNisTRATOR, AND

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

JUDGMENT OF THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

ANDREW P. MILLER

Attorney General of Virginia

WaLTER A. McFARLANE

Deputy Attorney General

J. THomas STEGER

RICHARD K. C. SuTHERLAND

Assistant Attorne ys General

Supreme Court Building

1101 E. Broad Street

Richmond, Virginia 23219

(804) 786-8364

- ree Abort S

TABLE OF CONTENTS

Appendices

A. Decision of Court of Appeals for the District of Columbia

Circuit. Decided and Entered October 28, 1975.

B. Clean Air Act sections; § 46.1-32 of Code of Virginia (1950) as

amended; Washington Metropolitan Area Transit Regulation

Compact, Pub. L. 89-774, 80 Stat. 1324 (Va. Acts 1966, Cr.

2), Title III, Article VII, § 16.

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

DISTRICT OF COLUMBIA,

etc., Petitioner,

Russell E. TRAIN, Administrator, Envi-

ronmental Protection Agency and En-

vironmental Protection Agency, etc.,

Respondents,

Washington Area Bicyelist Association,

Inc., Metropolitan Washington Coali-

tion for Clean Air, Inc., Breathers for

the Reduction of Atmospheric Haz-

ards to the Environment, Intervenors.

The COUNTY OF PRINCE WILLIAM,

VIRGINIA, Petitioner,

ENVIRONMENTAL PROTECTION

AGENCY, Respondent.

STATE OF MARYLAND, Petitioner,

Russell E. TRAIN. Administrator, and

Environmental Protection Agency,

Respondent.

CITY OF FAIRFAX, VIRGINIA, a

Municipal Corporation, Petitioner,

Russell E. TRAIN, Administrator and

Environmental Protection Agency,

Respondent.

CITY OF ALEXANDRIA, a Municipal

Corporation of Virginia, Petitioner,

Russell E. TRAIN, Administrator, and

Environmental Protection Agency,

Respondents.

COMMONWEALTH OF VIRGINIA ex

rel. STATE AIR POLLUTION CON-

TROL BOARD, Petitioner,

Russell E. TRAIN, Administrator and

Environmental Protection Agency,

Respondent.

Nos. 74-1013, 74-1575 and 74-1579

to 74-1582.

United States Court of Appeals,

District of Columbia Circuit.

Argued May Mont oatore

Decided Oct. 29, 1975this dsat-

Petitions for Review of an Order of

the Environmental Protection Agency.

John C Salyer, Asst. Corp. Counsel for

the District of Columbia, Washington, D.

C., with whom C. Francis Murphy, Corp.

Counsel, Louis P. Robbins, Principal

sst. Corp. Counsel, and David Eisen-

berg, Asst. Corp. Counsel, Washington,

D. C., were on the brief for petitioner in

No. 74-1013.

J. Thomas Steger, Asst. Atty. Gen.,

Commonwealth of Virginia for petitioner

in No. 74-1582 also argued for petition-

ers in Nos. 741575, 741579, 741580

and 741581.

John S. Battle, Jr., and William H.

King, Jr., Richmond, Va., were on the

brief for petitioner in No. 74-1575.

Stephen M. Pratt, Fairfax, Va., was on

the brief for petitioner in No. 741580.

Thomas P. Dugan, Fairfax, Va., also en-

274 DISTRICT OF COLUMBIA v. TRAIN

tered an appearance for petitioner in No.

741580.

J. Howard Middleton, Jr., Alexandria,

Va., was on the brief for petitioner in

No. 741581.

Bruce J. Chasan, Atty., Dept. of Jus-

tice, with whom Wallace H. Johnson,

Asst. Atty. Gen., Edmund B. Clark, Mar-

tin Green, Attys., Dept. of Justice, and

Robert V. Zener, Gen. Counsel, E. P. A.,

were on the brief for respondent. Rich-

ard G. Stoll, Jr., Atty., E. P. A., also

entered an appearance for respondent.

Joel D. Joseph, Washington, D. C., for

intervenors in Nos. 74 1013 and 74—1579.

Before MacKINNON and ROBB, Cir-

cuit Judges, and CHRISTENSEN,” Sen-

ior United States District Judge for the

District of Utah.

Opinion for the court filed by Circuit

Judge MacKINNON.

MacKINNON, Circuit Judge:

The State of Maryland, the Common-

wealth of Virginia, the District of Co-

lumbia, the County of Prince William,

Virginia, and the Cities of Alexandria

and Fairfax, Virginia, petition this court

for review of the action by the Adminis-

trator of the Environmental Protection

Agency (EPA) in promulgating “trans-

portation control” regulations to be in-

cluded in the air quality implementation

plans for the National Capital Interstate

Air Quality Control Region.“ 38 Fed.

Reg. 33702 (Dec. 6, 1973). These regula-

tions were adopted pursuant to section

110 of the Clean Air Act, 42 U.S.C.

§ 1857c—5. We affirm the regulations in

* Sitting by designation pursuant to 28 U.S.C.

§ 294(d).

I. The National Capital Interstate Air Quality

Control Region consists of Montgomery and

Prince George Counties in Maryland; Arling-

ton, Fairfax, Loudoun and Prince William

part and remand the remainder to the

EPA for revision and further proce .-

ings in light of this opinion.

I. Background.

A. The Statutory Scheme

Under the regulatory scheme estab-

lished by the Clean Air Act Amendments

of 1970, 84 Stat. 1679, 42 U.S.C. § 1857

et seq., the Administrator of the EPA

was directed to promulgate national pri-

mary and secondary ambient air quality

standards (section 109). The standards

were promulgated at 36 Fed.Reg. 8186

(April 30, 1971). Each state? was then

required to develop and submit for EPA

approval by January 30, 1972, a plan for

the implementation, maintenance and

enforcement of these standards in each

air quality control region within the

state (section 110(aX(1)). The Adminis-

trator was directed to approve any state

plan or portion thereof which satisfied

the criteria enumerated in section

110(aX2A)(H) and disapprove the re-

mainder.

If a state fails to submit a plan, sub-

mits an inadequate one, or fails to revise

its plan when required, the Administra-

tor is to publish proposed regulations

which are to be promulgated as the im-

plementation plan for the state within

six months of the deadline for the state

submission (section 11@(c)). Thereafter

the EPA-promulgated plan governs the

regulation of air quality in that state.

Under section 113, the EPA is authorized

to enforce implementation plans through

compliance orders, civil actions or crimi-

nal penalties. Although the statute calls

Counties, and the cities of Alexandria, Fairfax

and Falls Church in Virginia; and the District

of Columbia.

2. Unless otherwise indicated, the term “state”

includes the District of Columbia. See 42

U.S.C. § 1857h(d).

DISTRICT OF COLUMBIA v. TRAIN 275

for achieving the primary standard by

May 31, 1975, it also provides for an

extension of up to two years upon sub-

mission by the state of an application

satisfying the requirements of section

110(e).

B. The Development of a Transporta-

tion Control Plan for the National

Capital Region

Since automobile exhaust emissions

are the chief source in the ambient air of

three of the six pollutants for which

standards were issued (40 CFR, Part 50),

the Administrator determined that in

some areas, transportation control plans

would be necessary to reduce concentra-

tions of carbon monoxide, hydrocarbons

and photochemical oxidants to acceptable

levels. However, because of the lack of

experience with such plans, the deadline

for the states to submit them was ex-

tended to February 15, 1973. 87 Fed.

Reg. 10842 (May 31, 1972). For the

same reason, many states were given

two year extensions of the deadline for

attainment of the primary standards.

On January 31, 1973, this court decided

NRDC v. EPA, 154 U.S.App.D.C. 384,

475 F.2d 968 (1973), which held that the

Clean Air Act did not permit either de-

lay in the submission of transportation

control plans or the granting of blanket

extensions of the attainment date of

mid-1977. The states were accordingly

directed to submit transportation control

strategies by April 15, 1973, designed to

attain the national air quality standards

by mid-1975.3

The various governmental units com-

prising the National Capital Region cre-

3. See 38 Fed Reg. 30626-27 (Nov. 6, 1973) for

a more extensive discussion of these develop-

ments.

4. Hydrocarbons, combined with sunlight and

nitrogen dioxide, form oxidants. Thus sepa

ated an Air Quality Planning Committee

to formulate a coordinated transporta-

tion control plan. Its recommendations

were largely followed by the District of

Columbia, Maryland and Virginia in the

plans they submitted to the EPA during

April and May, 1973. The plans included

proposals for improved mass transit,

parking disincentives, emission inspection

programs, vehicle retrofit, control of gas-

oline evaporation during transfer, elimi-

nation of dry cleaning vapor losses, a

ban on truck deliveries during certain

hours, and aircraft taxiing emissions re-

ductions. They were designed to bring

about a 56 percent reduction in carbon

monoxide emissions and a 67 percent

rollback of hydrocarbon emissions.“

On June 15, 1973, the Administrator

approved some portions and disapproved

other portions of the Maryland, Virginia

and District of Columbia plans, noting

that they contained certain regulatory

and enforcement deficiencies, including a

failure of the jurisdictions to guarantee

that their legislatures would adopt laws

and approve appropriations necessary to

carry out the proposed measures. 38

Fed. Reg. 16556-57, 16558-59, 16563

(June 22, 1973). After the jurisdictions

submitted supplemental material to cure

some deficiencies, the Administrator, act-

ing pursuant to section 11((c), published

a proposed plan for each of the three

portions of the Region and scheduled the

necessary public hearings thereon. 38

Fed. Reg. 20758, 20779. 20789 (Aug. 2,

1973). At the same time, EPA an-

nounced its determination that the pri-

mary ambient air quality standards could

rate figures for reduction in photochemical ox-

idants are not given. The relationship be-

tween reduction of hydrocarbons and reduc-

tion of oxidants is shown by the graph in Ap-

pendix J of 40 C.F.R. § 51.

276 DISTRICT OF COLUMBIA v. TRAIN

not be achieved in the Region before

May 31, 1977, and accordingly proposed

to give each jurisdiction a two-year ex-

tension pursuant to section 110. A

“preamble” to the EPA’s transportation

control plan was promulgated on Novem-

ber 6, 1973, 38 Fed.Reg. 30626, and regu-

lations for the preconstruction review of

parking facilities were released a week

later, 38 Fed. Reg. 31536 (Nov. 15, 1973).

On December 6, 1973, the balance of the

regulations in the National Capital

transportation control plan were issued,

including a two-year extension of the at-

tainment dates for each jurisdiction.’ 38

Fed.Reg. 33702-31. This plan was incor-

porated in essentially identical form into

the implementation plans for each juris-

diction. 40 C.F.R. Part 52, Subparts J(D.

C.), V(Maryland), and VV(Virginia).

These regulations are set out as an Ap-

pendix to this opinion and form the basis

for this appeal.“

C. The Structure of the Transportation

Control Regulations

As promulgated, the EPA’s plan im-

poses the following transportation con-

trol measures:

(1) A commitment to purchase 475 ad-

ditional buses for the regional bus

fleet by 1977, costs to be spread over

the three jurisdictions. (40 C. F. R.

§§ 52.476(g), 52.1080(g), 52.2435(e)); “

(2) The creation of reversible, exclu-

sive express bus lanes on specified cor-

ridors within the Region by January 1,

1975. (40 C. F. R. §§ 52.476(h), 52.-

1080(h), 52.2435(f));

5S. 40 C.F.R. §§ 52.481, 52.1072(b), 52.2422(b).

6. 42 U.S.C. § 1857h-5(bX(1) gives this court

jurisdiction to entertain petitions for review of

actions of the Administrator promulgating im-

plementation plans covering any Region that

includes the District of Columbia. Several of

the instant petitions were initially filed in the

(3) The adoption of an inspection and

maintenance program by each of the

three jurisdictions, applicable to all ve-

hicles registered in the Region except

antiques. The initial inspection cycle

is to be completed by January 1, 1976.

Failed vehicles must be retested with-

in two weeks, and the jurisdictions

must also adopt a program of enforce-

ment to prevent intentional readjust-

ment subsequent to the inspection.

(40 C.F.R. §§ 52.490, 52.1089, 52.2441);

(4) The creation of a network of at

least 60 miles of bicycle lanes, built to

EPA specifications, in each jurisdiction

by July 1, 1976, and a requirement

that all operators of automobile park-

ing lots containing more than 50

spaces provide bicycle storage facili-

ties. (40 C.F.R. §§ 52.491, 52.1090, 52.-

2442);

(5) The retrofit of pre-1973 medium-

duty vehicles, not required to be retro-

fitted with an oxidizing catalyst, with

an Air/Fuel Control device. This is an

unspecified system which is designed

to increase the air/fuel ratio on which

the engine operates and which must

result in a 15 percent reduction in hy-

drocarbons and a 30 percent reduction

in carbon monoxide emissions. The ret-

rofit is to be completed by May 31,

1976. (40 C.F.R. §§ 52.492, 52.1091,

52.2444);

(6) The retrofit of all heavy-duty vehi-

cles with an Air/Fuel Control device

by May 31, 1977. This is the same

type of system as in (5), but it must

result in a 30 percent reduction in hy-

Fourth Circuit and were transferred here pur-

suant to that court's order of June 4, 1974.

7. The citation of three successive sections of

40 C.F.R. Part 52 denotes the respective provi-

sions of the District of Columbia, Maryland

and Virginia implementation plans.

DISTRICT OF COLUMBIA v. TRAIN 277

drocarbons and a 40 percent reduction

in carbon monoxide emissions. (40

C.F.R. §§ 52.494, 52.1092, 52.2446);

(7) The retrofit of light-duty fleet ve-

hicles (taxis, etc.) and medium-duty

vehicles of model years 1971 through

1975 with an oxidizing catalyst device.

(40 C.F.R. §§ 52.495, 52.1093, 52.2446).

(The EPA states in its Brief, p. 41,

that this regulation is being revoked in

light of recent disclosures that catalyt-

ic converters emit sulphuric acid mists

which may pose a significant health

hazard);

(8) The retrofit of all pre-1968 light-

duty vehicles (i. e. passenger cars)

with a Vacuum Spark Advance Dis-

connect (VSAD) by January 1, 1976.

This is an unspecified device that pre-

vents the ignition vacuum advance

from working at slow speeds or in low

gear. It must produce at least 25 per-

cent reduction in hydrocarbons and 9

percent reduction in carbon monoxide

emissions. (40 C.F.R. §§ 52.496, 52.-

1094, 52.2447).

The plan originally contained provi-

sions for parking surcharges,’ elimina-

8. 40 C.F.R. §§ 52.476(d\3), 52.1080(d)(3), 52.-

2435(b)(3).

9. Id. §§ 52.476(e), 52.1080(e), 52.2435(c).

10. Id. §§ 52.476(f), 52.1080(f), 52.2435(d).

11. Id. §§ 52.486, 52.1085, 52.2437.

12. EPA Brief at 32-33.

13. 40 C.F.R. §§ 52.487, 52.488, 52.1086, 52.-

1087, 52.2438, 52.2439. The rulemaking with

respect to the regulations for control of vapor

emissions during vehicle refueling has been re-

opened, 39 Fed.Reg. 21049 (June 18, 1974),

and compliance dates have been deferred until

the EPA approves a test procedure for certifi-

cation of vapor recovery devices. 40 Fed Reg

1126-27 (Jan. 6, 1975). This court has ordered

consolidation of four petitions for review of

these regulations and deferred their considera-

tion. Texaco, Inc. v. EPA, No. 74-1016 and

tion of free on-street commuter parking,’

elimination of free employee parking

and the establishment of fees for federal

parking facilities." The surcharge regu-

lations were subsequently revoked, 39

Fed.Reg. 1848 (Jan. 15, 1974), and Con-

gress has since prohibited their use. See

42 U.S.C. § 1857 -( B). While the

others apparently have not yet been spe-

cifically revoked, the EPA concedes ®

that the regulations relating to employee

parking and federal parking facilities

fall within the definition of “parking

surcharge regulation” in section 18576

52 Di) and thus are void. The EPA

rejected the state-proposed ban on deliv-

eries by heavy-duty vehicles during cer-

tain hours in favor of a retrofit strategy

because of enforcement problems and

uncertainties in the amount of pollution

abatement which would be achieved.

Finally, the transportation control plans

include gasoline vapor recovery regula-

tions," parking management regula-

tions “ and provisions for the control of

dry cleaning solvent evaporation “ which

are not challenged by the instant peti-

tioners.

consolidated cases, order entered December

30, 1974.

14. 40 C.F.R. §§ 52.493, 52.1103, 52.2443. Sec-

tion 510 of Pub.L. 93-563, 88 Stat. 1822 (Dec.

31, 1974) prohibited the EPA from expending

any funds to regulate parking facilities until

June 30, 1975, and thus effectively stayed im-

plementation of these regulations. The EPA

subsequently suspended the parking manage-

ment regulations indefinitely pending promul-

gation of amendments, 40 Fed.Reg. 2585-86

(Jan. 14, 1975), and has since extended that

suspension in light of legislation pending be-

fore Congress on the subject, 40 Fed. Reg.

29713 (July 15, 1975). These regulations are

presently before this court for review in Sears,

Roebuck & Co. v. EPA, No. 73-2234 and con-

solidated cases.

15. 40 C.F.R. §§ 52.489, 52.1088, 52.2440.

278 DISTRICT OF COLUMBIA v. TRAIN

The vehicle inspection and retrofit reg-

ulations all follow the same basic pat-

tern:

(a) Definitions.

(b) The regulation is made applicable

to each state’s portion of the Na-

tional Capital Region.

particular program and to submit

a detailed compliance schedule

containing the steps it will take to

establish and enfurce the program

and the text of all proposed stat-

utes and regulations needed for

enforcement.

(d) By a set date, the state is ordered

to submit legally adopted regula-

tions establishing the program in

compliance with EPA specifica-

tions.

(e) The state is prohibited from regis-

tering any non-conforming vehicle

or allowing the operation of such

vehicles on its streets and high-

ways.

(f) Vehicle owners are prohibited from

operating or permitting the opera-

tion of non-conforming vehicles.

The express bus lane regulations consist

of an order that the state construct such

lanes along specified corridors according

to EPA blueprint and a requirement for

the submission of a compliance schedule.

The bicycle lane/storage facilities regu-

lations contain similar orders for the en-

actment of the program and the submis-

sion of a compliance schedule and legally

adopted regulations. In addition, they

require each state to conduct a compre-

hensive study of bicycle utilization and

the feasibility of various designs. In the

case of mandatory bus purchases to in-

crease the regional bus fleet, each state

is ordered to submit documents showing

that the necessary financial commit-

ments have been made by the state or

by its local governments.

II.

II] Virginia, Maryland and the local

governments argue that the EPA regula-

tions violate the principles of federalism

embodied in the Tenth Amendment, that

enforcement of the penalty provisions of

the Clean Air Act against state officials

would violate the constitutional guaran-

tee of a republican form of govern-

ment,” that enforcement against local

officials would unconstitutionally inter-

fere with the authority of the state over

its political subdivisions, and that the

Clean Air Act does not authorize the

EPA to require states to enact laws or

enforce federally-imposed implementa-

tion plans. In addition, Virginia and

Maryland assert that various portions of

the EPA plan are arbitrary and capri-

cious. The District of Columbia makes

generally the same points, but it also

argues that elimination of the parking

surcharges has made the implementation

plans insufficient to attain the air quali-

ty standards and therefore the entire

regulatory scheme should be remanded

to the EPA for reevaluation. In keeping

with the general policy of federal courts

that constitutional questions should be

avoided if the case can be decided on

statutory grounds, see Rescue Army v.

Municipal Court, 331 U.S. 549, 568-69, 67

S.Ct. 1409, 91 L.Ed. 1666 (1947), we shall

first consider petitioners’ claim that the

Clean Air Act does not authorize the

EPA to require the states to enact laws

or administer and enforce implementa-

tion plans.

16. U.S.Const., art. IV, Sec. 4.

DISTRICT OF COLUMBIA v. TRAIN 279

A. EPA Powers under the Clean Air

Act

The Clean Air Act places considerable

emphasis on the role of the states in

achieving the national air quality stan-

dards:

Each State shall have the primary

responsibility for assuring air quality

within the entire geographic area com-

prising 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 maintained within each

air quality control region in such

State.

42 U.S.C. § 1857c-2(a). After the states

have fulfilled this “responsibility” by

submitting implementation plans for

EPA approval, the Administrator is di-

rected to disapprove those submissions to

the extent that they fail to contain cer-

tain elements enumerated in section

110(aX2). For purposes of this action,

the relevant elements are subsection (B)

of that section which requires that plans

contain necessary emission limitations

“including, but not limited to.

transportation controls;” subsection

(FXi) which requires plans to contain

“necessary assurances that the State will

17. Direct Federal enforcement and massive,

duplicative Federal programs aimed at vehi-

cles on an individual basis were not the

means contemplated by the Act to solve

these problems. It is clearly necessary that

implementation of transportation control

plans be carried out at the State and local

level. The Chairman of the House Commit-

tee that reported out the amendments to the

Act described their purpose as follows:

If we left it all to the Federal Govern-

ment, we would have about everybody on

the payroll of the United States. We

know this is not practical. Therefore, the

Federal Government sets the standards,

we tell the States what they must do and

have adequate personnel, funding and

authority to carry out such implementa-

tion plan;” and subsection (G) which

prevents approval of a state-submitted

plan unless “it provides, to the extent

necessary and practicable, for periodic

inspection and testing of motor vehicles

to enforce compliance with applicable

emission standards.”

When he concluded that the Maryland,

Virginia and District of Columbia plans

were deficient in certain respects, the

Administrator was required by section

110(c) to promulgate his own regulations

which would be enforced as the “applica-

ble implementation plans.” However, he

also believed that it would be inefficient

and impractical for the federal govern-

ment to assume the responsibility for en-

forcing the regulations he was promul-

gating. In addition he decided that di-

rect federal enforcement was not the

means contemplated by the Act.” The

Administrator’s reasoning is set forth in

detail in the general preamble to all the

transportation control plans, 38 Fed.Reg.

30632-33 (Nov. 6, 1973).

The regulations ultimately issued by

the Administrator are a carefully con-

structed device to get around the dilem-

ma posed by his lack of means for fore-

ing the states to submit adequate imple-

what standards they must meet. These

standards must be put into effect by the

communities and the States, and we ex-

pect them to have the means to do the

actual enforcing.

Equally clear, however, is that the

amendments of 1970 were designed to

cure deficiencies that had resulted from

total reliance upon state and local action

to solve what was increasingly recognized

as a national health problem. The regula-

tions now being promulgated will provide

the necessary assurance that such state

and local action will be forthcoming.

38 Fed.Reg. 30633 (Nov. 6, 1973).

mentation plans under section 11a) U

and his reluctance to undertake enforce-

ment of his own regulations. Exercising

his authority to promulgate implementa-

tion plans under section 11((c), he incor-

porated in each EPA plan requirements

that the states adopt regulations estab-

lishing programs along EPA guidelines.

Since he had shoved the responsibility

for adopting regulations back onto the

states, he also required them to conduct

evaluations of the devices which would

be installed under the retrofit programs

and to conduct other studies which

would be needed to form complete regu-

lations and to establish an evidentiary

basis to support the use of various trans-

portation control strategies. Finally, he

included provisions which will have the

effect of requiring the states to use their

agencies and personnel to administer the

EPA programs and to appropriate state

funds in amounts sufficient to carry out

enforcement of the regulations which

the EPA has promulgated.

Under this federal regulatory scheme,

the failure of a state to enact or admin-

18 See slip page 281, —- U.S.App.D.cC. —,

— F.2d —., infra.

1 The Administrator has stated to this court

that these powers to compel state compliance

with his directives will only be used as a last

resort and that he will rely primarily on coop-

erative efforts.

The Administrator does not intend to seek

criminal penalties against a state legislature

or governor pursuant to section 113(c) of the

Clean Air Act Mis first approach

will be to obtain compliance by means of

administrative orders pursuant to section

IIa!) and administrative con-

ferences pursuant section 113(a)4)

But if moral suasion should fail, it is clear

22 2 ——

EPA Br. at 23-24. See also the Preamble to

the transportation control plans:

DISTRICT OF COLUMBIA v. TRAIN

ister an EPA-imposed program has now

become itself a violation of the imple-

mentation plan, and the state would sup-

posedly be subject to enforcement pro-

ceedings under section 113 if it failed to

comply. This enforcement by the EPA

could include imposition of steep fines

and imprisonment of recalcitrant state

and municipal officials under section

113(c). Petitioners argue that the

Clean Air Act does not confer upon the

Administrator power to compel states to

enact regulatory programs or to require

that they administer and enforce appli-

cable implementation plans. The latter

issue will be the same whether the appli-

cable plan has been adopted by the state

or was promulgated by the Administra-

tor.

[2] The Administrators argument in

support of his authority to promulgate

the instant regulations is based primarily

upon the fact that section 113 provides

for federal enforcement of an “applica-

ble implementation plan” against “any

person” who is in violation of “any re-

Under section 113(a)(1) and (2) of the Act,

the Administrator is authorized to issue or-

ders and to bring civil actions or seek penal-

ties. Although the legal authority to enforce

these plans is clear, the primary effort—as is

true for all implementation plans—will be

directed toward working with the States

both to develop and to implement effective

strategies. This effort should continue even

after these measures have been promulgat-

ed, so that all affected states eventually as-

sume voluntarily the direct responsibility for

enforcement of the plans.

38 Fed. Reg. 30633 (Nov. 6, 1973). We note.

however, that the EPA has recently threatened

to commence enforcement action against the

District of Columbia government for failing to

adopt an inspection program. See Exhibit A

to the D.C. Reply Brief. Thus we believe that

petitioners’ claims are ripe for review.

— — re

DISTRICT OF COLUMBIA v. TRAIN 281

quirement of such plan.” Section 302(e)

of the Act provides:

When used in this chapter

(e) the term “person” includes ..

[a] State, municipality, and political

subdivision of a State.

42 U.S.C. § 1857h(e). On the basis of

this language, the Administrator rea-

soned as follows:

The question remains, what kinds of

requirements must a State or other

governmental entity comply with?

The most obvious situation is one in

which a State is operating a direct

stationary pollution source such as a

municipal incinerator. It is no less

clear, however, that the Act allows the

control of many kinds of direct and

indirect sources relating to mobile pol-

lution. Parking and road facilities

constitute such sources and the control

of them is a valid exercise of the au-

thority in section IIGaN ZKB) and

11Qc) to promulgate such regulations

as may be necessary to attain the na-

tional ambient air quality standards.

The Administrator is also promul-

gating regulations requiring that vehi-

cles allowed to operate on public roads

be inspected or “retrofitted” with

emission control equipment. Use of

public roads by large numbers of pub-

licly registered and regulated vehicles

without either proper maintenance or

adequate control equipment also caus-

es damage to health. The requirement

that the road owners and the licensing

and regulating authorities prohibit

such use is a reasonable means of pre-

venting such damage.

38 Fed.Reg. 30632 33 (Nov. 6, 1973).

Such an interpretation by the officer pri-

marily responsible for federal enforce-

ment of the air quality standards is enti-

tled to considerable deference. Udall v.

Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13

L.Ed.2d 616 (1965).

[3-5] We agree with the Administra-

tor that by including the states and their

subdivisions within the definition of

“person,” Congress clearly intended taat

state-operated activities which are direct

sources of air pollution would be subject

to federal regulation the same as private

pollution sources. Furthermore, the lan-

guage in the statute is broad enough to

include authority to require that the

states conform their transportation sys-

tems to federal standards, e. g. by con-

structing exclusive bus lanes or expand-

ing their bus fleets. However, an analy-

sis of the language of the Act, and par-

ticularly of its enforcement provisions,

does not appear to support the Adminis-

trator’s claim that Congress intended to

authorize him to regulate sources of pol-

lution caused by the general public by

requiring the states to enact statutes

and to administer and enforce the pro-

grams contained in the EPA plan.

When a state fails to submit a plan or

submits an inadequate one under section

11a), the Administrator is directed by

section 110(c) to “promptly prepare and

publish proposed regulations setting

forth an implementation plan, or portion

thereof, for a State Under

section 110(d), an “applicable implemen-

tation plan” is “the implementation plan,

or most recent revision thereof, which

has been approved under subsection (a)

of this section [i. e, a state-submitted

plan] or promulgated under subsection

gated by the Administrator} . . ..”

The federal enforcement procedures of

section 113 are directed to correcting vio-

lations of the provisions of this “applica-

ble implementation plan.”

282 DISTRICT OF COLUMBIA v. TRAIN

[6] Section 11Q(c) is in fact the Ad-

ministrator’s only recourse when he dis-

approves a state-submitted plan in whole

or in part, or if the state fails to submit

a plan, since the Act contains no enforce-

ment mechanisms which could be used to

force a reluctant state to adopt and sub-

mit an adequate plan under section

11Q@(a). See Plan fo: Arcadia v. Anita

Associates, 379 F.Supp. 311 (C.D.Cal.

1973), aff'd, 501 F.2d 390 (9th Cir. 1974):

There is no judicial remedy provided

in the Act or elsewhere for the failure

of the state to adopt and submit a

plan. The only consequence of a

state’s failure to submit a plan is that

the Administrator, then, has the duty

to impose a plan upon the state, and

no other remedy against the state ex-

ists.

379 F.Supp. at 314.

Of course, the Administrator’s authori-

ty to promulgate a plan to replace an

inadequate state plan means that he is

not, as a practical matter, powerless to

remedy deficiencies. In NRDC v. EPA,

478 F.2d 875 (lst Cir. 1973), the court

rejected the Administrator’s protesta-

tions of helplessness and concluded in-

stead:

We hold that these statutory provi-

sions not only empower, but also re-

quire, the Administrator to disapprove

28. We note that section 1 10(a)(2)F)i) requires

state-submitted plans to provide necessary

aft

state statutes and regulations, or por-

tions thereof, which are not in accord-

ance with the requirements of the

Clean Air Amendments. Congress

plainly intended the federal statute

and regulations promulgated thereun-

der to take precedence over state laws

and regulations. By enabling the Ad-

ministrator to insert his own regula-

tions in a state plan, it provided him

with the needed authority to substi-

tute appropriate provisions for inap-

propriate ones. Thereafter, as legal

components of the state plan, the Ad-

ministrator’s regulations may be both

federally and locally enforced; viola-

tions thereof are violations of a state

plan. § 1857c-8(a\1); see §§ 1857c—

Id), 1857¢—9b).

Id. at 888.

[7] In our opinion, the logical inter-

pretation of the procedures established

in section 110 is that Congress intended

the regulations promulgated by the Ad-

ministrator under section 110(c) to be the

actual substantive regulations which

would be enforced against sources of air

pollution. We find nothing in the lan-

guage of the Act which would indicate

Congress felt that state-adopted regula-

tions are essential to achieve the federal

goal of regulating air pollution.“ On

the contrary, section 1100 e) specifically

[G)iven the mechanics of state-federal rela-

tions, it is difficult to imagine what sort of

guarantee the current Rhode Island legisla-

ture could give the EPA to ensure that ade-

quate resources would be devoted to the

Plan. Such assurances might have

a symbolic effect; however, they would have

little more, since a governor, or even a

present session cannot make commitments

on behalf of their successors, nor would

such binding commitments seem to be en-

forceable.

DISTRICT OF COLUMBIA v. TRAIN 283

contemplates that some states would fail

to live up to their “responsibility.” As

the First Circuit indicated in NRDC v.

EPA, supra, the Administrator’s authori-

ty to substitute his own regulations

gives him ample power to correct defi-

cient state plans in those instances.

Had Congress intended to adopt the

novel approach of empowering a federal

agency to order unconsenting states to

enact state statutes and regulations,

thereby converting state legislatures into

arms of the EPA, it most likely would

have made that intent clear in the stat-

ute. It chose instead to adopt the quite

unremarkable procedure of authorizing

the promulgation of federal regulations

to govern an area it believed to be sub-

ject to its commerce power, in those in-

stances where state enactments did not

meet federal standards. The states were

simply given an opportunity to bring

their regulations into line within a speci-

fied time. Nothing in the Act suggests

Congress saw any deficiency in its au-

thority to regulate the subject of air pol-

lution which would require it to utilize

the device of regulating by ordering

state and municipal governmental units

to adopt regulations.

The enforcement provisions of the Act,

contained in section 113, present further

evidence that the Administrator’s power

over the states is not as extensive as he

claims. Section 113(aX1) enables him to

bring federal enforcement procedures to

bear on individual violations of an appli-

cable implementation plan:

Whenever, on the basis of any infor-

mation available to him, the Adminis-

trator finds that any person is in viola-

tion of any requirement of an applica-

ble implementation plan, the Adminis-

trator shall notify the person in viola-

tion 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 Administra-

tor’s notification, the Administrator

may issue an order requiring such per-

son to comply with the requirements

of such plan or he may bring a civil

action in accordance with subsection

(b) of this section.

42 U.S.C. § 1857c-8(aX1). This statute

quite clearly contemplates that “the per-

son in violation of the plan” and “the

State in which the plan applies” may be

two distinct entities. If Congress had

expected that the states would be com-

pelled, under pain of federal penalties, to

enact and use their police power to en-

force the plan, there would have been

little point in requiring that two notices

be given. The most “efficient” enforce-

ment from the standpoint of commit-

ment of federal resources would be to

order the state to take action against the

violator and proceed against state offi-

cials under section 113(b) or (e) if they

fail to act. Furthermore, this section

clearly indicates that of the two parties

who are given notice, enforcement via

compliance order or civil action is to be

directed against the “person in viola-

tion”—i. e., the actual polluter, rather

than the state.

Section 113(aX2) authorizes the Ad-

ministrator to take over direct federal

enforcement of an implementation plan

when he discovers widespread violations:

Whenever, on the basis of informa-

tion available to him, the Administra-

tor finds that violations of an applica-

ble implementation plan are so wide-

spread that such violations appear to

result from a failure of the State in

which the plan applies to enforce the

pian effectively, he shal! so notify the

State. If the Administrator finds such

failure extends beyond the 30th day

after such notice, he shall give public

284 DISTRICT OF COLUMBIA v. TRAIN

notice of such finding. During the pe-

riod 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 Administrator 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 un-

der subsection (b) of this section.

42 U.S.C. § 1857c-S(aX2). Assuming the

Administrator correctly determined that

Congress intended to give him the power

to force the states to administer air

quality regulations, his power to assume

federal enforcement under this subsec-

tion confers no enforcement authority

not already available under subsection

(1) unless one postulates a situation

where the state is unable to comply with

an enforcement order. This provision

draws a clear distinction between “viola-

tions of an applicable implementation

plan” and “a failure of the State in

which the plan applies to enforce the

plan effectively.” Since widespread vio-

lations “result from” a state’s failure to

enforce a plan, the language strongly

suggests Congress did not believe that

inadequate state enforcement was, by it-

self, a “violation.” Rather, the term “vi-

olation” must logically refer to the emis-

sion of pollutants into the air contrary to

the provisions of an applicable imple-

mentation plan.

[8] The procedures to be followed by

the Administrator in commencing the

“period of federally assumed enforce-

ment” are further evidence that Con-

gress intended his powers over the states

to be limited. Upon discovering wide-

spread violations, he gives notice to the

state. If he finds that the state’s failure

to enforce the plan effectively extends

beyond 30 days after this first notice,

the Administrator is directed to issue a

public notice of that finding. The “peri-

od of federally assumed enforcement”

commences with this second notice. Had

Congress intended that a state’s failure

to enforce the plan would be a “viola-

tion,” a single notice would have sufficed

as in subsection (1). Moreover, the fact

that the second notice must be “public

notice” indicates a congressional intent

that the enforcement mechanisms which

become available during the “period of

federally assumed enforcement” (includ-

ing the immediate possibility of daily

fines, see section 113(cX1XAXi)), are to

be used by the Administrator against

those guilty of emitting excess pollutants

rather than against the state. Finally,

the provision for terminating the federal

enforcement period suggests that the

statute contemplates the state’s act of

satisfying the Administrator “that it will

enforce such plan” will be an act of vol-

untary cooperation rather than one made

under the compulsion of a compliance

order or civil action.

{9} In summary, we can find little in

the language of the Act to indicate that

the Administrator has been empowered

to order that legislatures and municipal

bodies in the states enact statutes and

regulations or to bring federal enforce-

ment actions against those governmental

units to do so. Congress did not find it

necessary to provide any means of di-

rectly forcing the states to comply with

the mandate in section 110(aX1) that

they “shall” submit implementation

plans. Under such circumstances the

term is directory and not mandatory.

Nor is there any basis in the Act to infer

that Congress intended the Administra-

tor to accomplish the identical result in-

—ͤ——U—U f1c— — — — —

DISTRICT OF COLUMBIA v. TRAIN 285

directly through his power to promulgate

his own regulations.

[10-12] By ordering the states to en-

act and submit regulations after their

initial plans were found to be inade-

quate, rather than promulgating his own

regulations directing controlling sources

of air pollution, the Administrator has

thus exceeded the authority conferred

upon him by section 11((c) of the Clean

Air Act. Also, to the extent that he has

left to the states the preparation of reg-

ulations needed to implement the clean

air standards, he has failed to perform

his duty under section 110 to promulgate

an “applicable implementation plan”

which provides for the “attainment” and

“maintenance” of those standards and

which can be enforced against “viola-

tions” under section 113. Finally, inso-

far as the various studies of transporta-

tion control methods and evaluations of

retrofit devices which the Administra-

tor’s regulations require the states to

submit are necessary to fill in the details

of the regulations and to create an evi-

dentiary record supporting their

adoption, the Administrator has further

failed to meet his statutory responsibility

under section 110(c).

[13] We therefore must vacate those

portions of the instant regulations which

order the states and municipalities to en-

act statutes and regulations or to take

other actions, such as approving devices

to be installed in vehicles, that are neces-

the Administrator, not the states when

21. With respect to the bicycle lane regulations,

the requirements that the states submit “

state-submitted plans are found to be in-

sufficient. The i regulations

which are affected by this holding are

parts of section (c) and all of section (d)

4 — each retrofit regula tion, portions of

sections (e) and (f) of each inspection

and maintenance regulation and sections

(d), (e), (f) and (g) of the bicycle lanes

and storage facilities regulations.”

Since the regulations and studies which

would have been supplied by the states

under these provisions were necessary

for the formation a complete regula-

tory program, it will be necessary to re-

mand them to the Administrator with

directions that he promulgate a full set

of transportation control regulations for

the attainment of the air quality stan-

dards and insert them in place of the

portions of each state’s implementation

plan which was fourd deficient.

[14] There remains one aspect of the

inspection and retrofit regulations which

has not yet been considered. Each regu-

lation directs the state to affirmatively

establish the particular program to as-

sure the inspection or retrofit of each

vehicle of a certain class registered in

that state. Each also prohibits the state

from registering any non-conforming ve-

hicle or allowing such vehicles to operate

on its streets and highways. Arguably

there is a difference between ordering

the states to adopt a particular statute

and ordering them to enforce a federal

regulation against vehicles which they

the states may not be compelled to enact

statutes to fill in the details of the Ad-

operators of parking facilities to provide bicy-

cle storage areas must also be invalidated as

in excess of the Administrator's authority. Of

course, this latter defect could be corrected

simply by addressing his orders directly to the

operators of such facilities.

236 DISTRICT OF COLUMBIA v. TRAIN

ministrator’s regulations, it may be ar-

gued that they can be ordered to take

actions which implement the federally

imposed regulations. While as a practi-

cal matter the states may have to enact

auxiliary statutes or state regulations to

carry out the federal regulation, the lat-

ter approach would not be directly con-

trary to the requirement in section 110(c)

that the Administrator, and not the

states, promulgate the substitute regula-

tions when state-submitted plans are

found to be inadequate.

1151 As discussed above, the specific

language of the Act suggests that Con-

gress did not confer such authority any

more than it intended that the states

would be ordered to adopt statutes. On

the other hand, nowhere in the Act is

the Administrator specifically told that

he lacks authority to force the states to

administer the plans he has promulgated

when the plan is directed to a traditional!

state function such as registering and

licensing motor vehicles. At least in the

case of inspection and maintenance pro-

grams, it is apparent from the legislative

history that Congress did intend that the

states would be required to cooperate in

administering a federal air quality pro-

gram.

Section 11a\2\G) requires that each

state plan provide “to the extent neces-

sary and practicable, for periodic inspec-

tion and testing of motor vehicles to en-

force compliance with applicable emis-

sion standards” before it can meet with

EPA approval. The House Report on

the bill stated:

[The legislation provides that States

must require inspection of motor vehi-

cles in actual use if the

[Administrator], after consultation

with the State, determines that the

achievement of ambient air quality

standards requires such inspection and

that such inspection is technologically

and economically feasible.

H.Rep.No.91—1146, 91st Cong., 2d Sess.

3-4 (June 3, 1970), U.S. Code Cong. &

Admin.News 1970, pp. 5356, 5359 (em-

phasis added). The Senate Report con-

tains similar language:

The implementation plan section of

the proposed bill would specifically

provide that, to the extent necessary,

each region develop motor vehicle in-

spection and testing programs for

which it is eligible to receive assist-

ance under Section 208 [now 210] of

the proposed bill. The Committee be-

lieves that this is an extremely impor-

tant provision It is also a

class of air pollution sources for which

the regions and the States have better

opportunities to control.

S.Rep.No.91..1196, 91st Cong., 2d Sess. 13

(Sept. 17, 1970) (emphasis added). As

the court noted in Pennsylvazia v. EPA,

500 F.2d 246, 258 (3d Cir. 1974), if Con-

gress intended to require the states to

establish inspection programs. it possibly

would have no objection to the states

also being forced to administer other

EPA-imposed programs. There were in

fact certain statements made during the

course of congressional debate which

suggest an intent to confer this broader

power. For example, Congressma

Staggers, the Committee Chairman and

floor manager of the bill in the House,

stated:

If we left it all to the Federal

Government, we would have about ev-

erybody on the payroll of the United

States. We know this is not practical.

Therefore, the Federal Government

sets the standards, we tell the States

what they must do and what stan-

dards they must meet. These stan-

dards must be put into effect by the

communities and the states, and we

DISTRICT OF COLUMBIA v. TRAIN 287

expect them to have the means to do this is true whether the function being

the actual enforcing.

116 Cong.Rec. 19204 (June 10, 1970) (Em-

phasis added).”

As we have seen, the actual language

of the Act does not in every instance

necessarily support these broad asser-

tions in the legislative history. How-

ever, since the Act itself does not specifi-

cally reject the Administrator's claim of

power to force the states to administer

EPA-promulgated transportation control

programs, we shall consider the question

of whether Congress may constitutional-

ly regulate the states in this manner.

B. The Permissible Extent of Con-

gressional Regulation of State Ac-

tivities under the Commerce Clause

[16,17] None of the petitioners chal-

lenge the congressional determination

that air pollution has a substantial effect

on interstate commerce and therefore

may be regulated by the fe eral govern-

ment under the commerce clause. There

is judicial precedent for uphelding this

exercise of federal jurisdiction. See, e.

g., South Terminal Corp. v. EPA, 504

F.2d 646, 677 (Ist Cir. 1974); Pennsylva-

nia v. EPA, 500 F.2d 246, 259 (3d Cir.

1974). With respect to transportation

controls, the federal government thus

clearly has the power to direct owners of

motor vehicles to install emission control

devices and maintain them in proper ad-

justment.

{18} It is equally clear that an activi-

ty is not exempted from federal com-

merce power regulation simply because

it is owned or operated by a state, and

22. See also S. Rep. No 91-1196. 91st Cong, 2d

Sess. 14 (Sept. 17, 1970) (“The States would

be expected to act to improve used vehicle

performance), 116 Cong. Rec. 32903 (Sept.

21, 1970) (Sen. Muskie) (In Title I of this act

we have written a national deadline for the

regulated is characterized as “

menta or “proprietary.” The principal

authority on this issue is Maryland v.

Wirtz, 392 U.S. 183, 88 S.Ct. 2017, 20

L.Ed.2d 1020 (1968), which held that the

wages of employees at state-operated

schools and hospitals are properly subject

to regulation under the minimum wage

and maximum hour provisions of the

federal Fair Labor Standards Act. Re-

jecting an argument that the federal

commerce power must yield when the

state is performing a governmental func-

tion, the Court declared:

[T}t is clear that the Federal Govern-

ment, when acting within a delegated

power, may override countervailing

state interests whether these be de-

scribed as “governmental” or “proprie-

tary” in character. As long ago as

Sanitary District v. United States, 266

U.S. 405 [45 S.Ct. 176, 69 L.Ed. 352],

the Court put to rest the contention

that state concerns might constitution-

ally “outweigh” the importance of an

otherwise valid federal statute regu-

lating commerce.

392 U.S. at 195-96, 88 S.Ct. at 2023.

The Court then turned to the question of

whether the particular statute was “an

otherwise valid regulation ef commerce,”

and concluded:

This court has always recognized that

the power to regulate commerce,

though broad indeed, has limits.

But while the commerce power

has limits, valid general regulations

of commerce do not cease to be reg-

purpose of implementing applicable ambient

air quality standards. This is going to require

every State Governor and the mayor of every

city in this country to impose strict controls

on the use of automobiles before the new car

is a clean one).

ulations of commerce because a

State is involved. If a State is en-

gaging in economic activities that

are validly regulated by the Federal

Government when engaged in by

private persons, the State too may

be forced to conform its activities to

federal regulation.

Id. at 196-97, 88 S.Ct. at 2024. See also

Parden v. Terminal Railway, 377 US.

184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964),

and United States v. California, 297 U.S.

175, 183-85, 56 S.Ct. 421, 80 L.Ed. 567

(1936), both upholding federal regula-

tions as applied to state-owned railroads;

Board of Trustees v. United States, 289

U.S. 48, 53 S.Ct. 509, 77 L.Ed. 1025

(1933), which required a state university

to pay federal customs duties on import-

ed equipment; and Sanitary District v.

United States, 266 U.S. 405, 45 S.Ct. 176,

69 L.Ed. 352 (1925). In its most recent

decision in this area, Fry v. United

States. U.S. ——, 95 S.Ct. 1792, 44

L.Ed.2d 363 (1975), the Court upheld, on

the basis of Wirtz, the application of

federal wage control regulations to the

wages of all state employees.”

[19,20] Once Congress has properly

determined that the emission of pollu-

tants into the air has an effect on inter-

state commerce, it has power to regulate

activities which generate that pollution

either directly or indirectly, and it is ir-

relevant that a particular source of pol-

lution is operated by the state. More-

over, where federal regulations duly

adopted pursuant to the commerce pow-

er come into conflict with state practices

and regulations, the federal regulations

must prevail under the Supremacy

23. The Supreme Court has recently scheduled

reargument in a case involving the application

of the Fair Labor Standards Act to all non-su-

pervisory state and municipal employees, in-

cluding police and firemen. National League

DISTRICT OF COLUMBIA v. TRAIN

Clause. See Fry v. United States,

supra, —— U.S. at —, 95 S.Ct. 1792

(1975); Public Utilities Comm’n v. Unit-

ed States, 355 U.S. 534, 544, 78 S.Ct. 446,

2 L.Ed.2d 470 (1958).

21. 221 In light of the foregoing de-

cisions, it is possible to determine that

certain of the Administrator's regula-

tions are valid exercises of the federal

commerce power. Where a state is di-

rectly operating the source of air pollu-

tion, e. g., a state-owned fleet of auto-

mobiles, Congress has quite properly re-

quired that it conform to EPA regula-

tions. The provisions requiring construc-

tion of exclusive bus lanes and purchases

of additional buses arise from the regu-

lation of “indirect” sources. The streets

and highways and bus systems of the

states are not being regulated by the

Administrator as direct emitters of pol-

lution but rather as factors which influ-

ence the use of pollution sources by oth-

er parties. We believe that these state-

owned transportation systems are analo-

gous to the railroad operated by the

state in United States v. California, su-

pra. This situation is similar to federal

statutes passed in the 1890’s requiring

the railroads to operate safe trains. 45

U.S.C. § 1 et seq. Acting under its com-

merce power, the federal government

thus can order the states to operate their

transportation systems in accordance

with federal regulations designed to pro-

tect the health of the nation’s citizens by

requiring them to purchase buses and

construct exclusive bus lanes. Obviously

this may be financially burdensome, but

“when Congress does act [under the com-

merce power], it may place new or even

of Cities v. Brennan, (D.D.C., Dec. 31, 1974,

Civ.No. 74-1812) (three-judge court), probable

jurisdiction noted, 420 U.S. 906, 95 S.Ct. 823,

42 L.Ed.2d 835, reargument scheduled.

U.S. ——, 95 S.Ct. 1988, 44 L.Ed.2d 475 (1975).

DISTRICT OF COLUMBIA v. TRAIN 239

the

enormous fiscal burdens on the States.”

Employees of the Department of Public

Health aud Welfare v. Department of

Public Health and Welfare, 411 U.S. 279,

284, 93 S.Ct. 1614, 1618, 36 L.Ed.2d 251

(1973).

We have somewhat more difficulty

with the requirement that the states

construct a system of bicycle lanes, since

this requires construction of an addition-

al separate transportation system rather

than simply modifications to those pres-

ently in operation. However, since we

set aside the regulations relating to bicy-

cle lanes and storage facilities in Part

III, D., infra, on the ground that they

were not supported by adequate evidence

in the record, there is no need for fur-

ther discussion of their constitutionality

at this time.

[23-26] The inspection and mainte-

nance regulations and the retrofit regu-

lations involve a regulatory approach of

a quite different nature. The activity

that is the actual target of the federal

commerce power in this case is the oper-

ation of vehicles which are not properly

24. Petitioners also challenge the constitutional-

ity of section 113(c) insofar as it permits the

imposition of penalties upon a state or its offi-

cials for failing to comply with the provisions

of an EPA-promulgated implementation plan.

However, to the extent that the state is subject

to federal regulation under the commerce pow-

er, it will also be subject to the penalties pro-

vided for violation of those regulations. Par-

den v. Terminal Railway, 377 U.S. 184, 84

S.Ct. 1207, 12 L.Ed2d 233 (1964); United

States v. California, 297 U.S. 175, 56 S.Ct. 421,

80 L.Ed. 567 (1936). The Eleventh Amend-

ment is of course no bar to enforcement ac-

tions brought by the federal government. It is

clear that local governmental! units may be re-

quired to comply with valid federal commerce

regulations even when such action is inconsist-

ent with or contrary to state policies. First

lowa Hydro-Electric Cooperative v. FPC, 328

U.S. 152, 168-72, 66 S.Ct. 906, 90 L.Ed. 1143

(1946); Washington Dept. of Game v. Fc.

equipped or maintained. Obviously

responsible parties here are the actual

which prohibits them from operating

intrusion into state sovereignty far be-

yond the regulations approved in Wirtz

and California since the federal govern-

ment is here requiring that the states

regulate interstate commerce and thus

would be appropriating state legislative

and regulatory power to be used te ac-

complish a federal regulatory objective.™

The Administrator began his analysis

of the federal power to regulate the

states by observing that they have con-

tributed to air pollution by adopting cer-

tain transportation policies which en-

courage the use of motor vehicles™ As

207 F.2d 391, 396 (9th Cir. 1953), cert. denied,

347 U.S. 936, 74 S.Ct. 626, 98 LEA 1087

(1954). However, the federal government will

be able to order the subdivisions of the states

to enact, administer and enforce federal regu-

38 Fed.Reg. 30632 (Nov. 6, 1973). If responsi-

bility for correcting air pollution problems

additional buses. Turning to his —

gation of inspection and retrofit regula-

tions, he gave two justifications for re-

quiring the states to enact and enforce

these regulations. First, Id hreet Feder-

al enforcement and massive, duplicative

Federal programs aimed at vehicles on

an individual basis were not the means

contemplated by the Act to solve these

problems.” 38 Fed.Reg. 30633 (Nov. 6,

1973). Second, he concluded “that the

amendments of 1970 were designed to

cure deficiencies that had resulted from

total reliance upon state and local action

to solve what was increasingly recog-

nized as a national health problem.“ Id.

In Pennsylvania v. EPA, 500 F.2d 246

(3d Cir. 1974), the Third Circuit upheld

the Administrator’s power to direct the

states to administer federally promulgat-

ed regulations, concluding:

In enacting the Clean Air Amend-

ments of 1970, Congress created an in-

terlocking governmental structure in

which the Federal Government and

the states would cooperate to reach

the primary goal of the Act—the at-

tainment of national ambient air qual-

ity standards. Under its provisions,

state and local governments retain re-

sponsibility for the basic design and

implementation of air pollution strate-

gies, subject to approval and, if neces-

sary, enforcement by the Administra-

tor. We believe that this approach

represents a valid adaption of federal-

arising from the operation of a regional system

of streets and highways is to be assigned on

DISTRICT OF COLUMBIA v. TRAIN

ist principles to the need for increased

federal involvement. The only alter-

native implementation would be for

the Federal Government to assume

some of the functions of traffic control

and vehicle registration and directly

enforce the programs contained in the

various transportation control plans.

The Administrator has determined

that this would not be a practicable

way of attaining national air quality

standards and we fail to see

how this would represent less of an

intrusion upon state sovereignty.

Id. at 262-63 (emphasis added).

[27] While we have previously held

that the Clean Air Act does not empow-

er the Administrator to order non-con-

senting states to enact statutes or regu-

lations in those areas where it is his duty

to promulgate regulations, we have yet

to consider the validity of those provi-

sions which provide that the “State shall

not register or allow to operate on its

streets or highways any [non-complying!

vehicle{s}.” Is this regulation within the

commerce power? In Gibbons v. Ogden,

22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824),

Chief Justice Marshal! laid the ground-

work for answering this question when

he stated that the power granted by the

commerce clause was a

power to regulate; that is,

to prescribe the rule by which com-

merce is to be governed.

22 U.S. (9 Wheat.) at 196 (emphasis add-

ed). In the provision prohibiting the li-

censing or use of non-complying vehicles,

it is our opinion that the Administrator,

acting pursuant to Congressional! author-

ity, has merely prescribed a rule by

DISTRICT OF COLUMBIA v. TRAIN

which commerce on state streets and

highways is to be governed. Thus, we

find the restraints on vehicle registration

to be valid. In doing so, as we noted

previously, there is a similarity to the

longstanding Federal Safety Appliance

Act which prohibits use of unsafe equip-

ment on railroads. 45 U.S.C. § 1 et seq.

Also, the federal regulation is directly

related to existing activities presently

being carried on by the states, and it

does not specify the manner in which the

state is to comply. A state may comply

with the prohibition on registering non-

conforming vehicles merely by requiring

applicants for vehicle registration to sub-

mit a certificate of compliance obtained

from federal officials or from private

sources not manned by state personnel.

[28,29] Beyond that, we draw the

line and hold that the Administrator, in

the exercise of federal power based sole-

ly on the commerce clause, cannot

against a state’s wishes compel it to be-

come involved in administering the de-

tails of the regulatory scheme promul-

gated by the Administrator. For exam-

ple, the attempt to require the state to

“establish” each of the retrofit programs

and to “evaluate and approve devices for

use in this program,” contained in sec-

tion (c) of each retrofit regulation, is an

impermissible encroachment on state

sovereignty and goes beyond “regula-

tion” by the Congress. It seeks, under

the guise of the commerce power, to sub-

stitute compelled state regulation for

permissible federal regulation. If the

federal government wants to impose a

program under federal authority, it is

limited by the restrictions applicable

thereto.

Actually, in extending the commerce

power to the tremendous limits it has

been pressed in recent years, the Con-

gress and the Courts are most probably

merce among the several States.” I

be started in relation to that

extent, if taken literally, would belong

to it. Yet it is very certain that i

grew out of the abuse

States i

James Madison 14-15. There is no ques-

tion that the commerce power is here

being used not as a “preventive provision

against injustice among the States :

sions presently require.

In essence, the Administrator is here

their personnel and resources, for use in

administering and enforcing a federal

regulatory program against the owners

of motor vehicles. The situation is not

too dissimilar from one that would have

existed during Prohibition if the Federal

Government had sought to compel police

officers in a wet state to enforce the

federal laws on that subject. Under the

regulations here, the states are to func-

tion merely as departments of the EPA,

following EPA guidelines and subject to

federal penalties if they refuse to comply

or if their regulation of vehicles is inef-

fective. We are aware of no decisions of

the Supreme Court which hold that the

federal government may validly exercise

its commerce power by directing uncon-

senting states to regulate activities af-

fecting interstate commerce, and we

doubt that any exist.

130, 311 What is really needed to ac-

complish the federal objective in this sit-

uation is state cooperation in the admin-

istration of a federal regulatory pro-

gram, and Congress has available numer-

ous means of obtaining that

cooperation.“ However, where coopera-

tion is not forthcoming, we believe that

the recourse contemplated by the com-

merce clause is direct federal regulation

of the offending activity and not coerced

state policing of the details of an intri-

cate federal plan under threat of federal

enforcement proceedings. We therefore

conclude that the inspection and retrofit

regulations are invalid to the extent

they require unconsenting states to ad-

minister and enforce the EPA-promul-

26. The federal government traditionally ob-

tains state cooperation and participation in

federal regulatory programs by offering the

states a sufficiently attractive incentive or by

threatening to withdraw a federal benefit they

are presently receiving. A recent example of

both approaches is the Emergency Highway

Energy Conservation Act, Pub.L. 93-239, 87

Stat. 1046 (Jan. 2, 1974). Section 2 of that

DISTRICT OF COLUMBIA v. TRAIN

gated transportation control programs

other than by a mere refusal to license

non-complying cars.

Petitioners attack the constitutionality

of the instant regulations by arguing

that they violate the protection accorded

state sovereignty by the Tenth Amend-

ment, which provides:

The powers not delegated to the

United States by the Constitution, nor

prohibited by it to the States, are re-

served to the States respectively, or to

the people.

Although this amendment does not on its

face purport to place any limitation on

the exercise of powers delegated to the

federal government by the commerce

clause, the Supreme Court recently ob-

served that it does have some substan-

tive meaning:

While the Tenth Amendment has been

characterized as a “truism,” stating

merely that “all is retained which has

not been surrendered,” United States

v. Darby, 312 U.S. 100, 124 [61 S.Ct.

451, 462, 85 L.Ed. 609] (1941), it is not

without significance. The Amendment

expressly declares the constitutional

policy that Congress may not exercise

power in a fashion that impairs the

States’ integrity or their ability to

function effectively in a federal sys-

tem.

Fry v. United States, —— U.S. at —— n.

7, 95 S.Ct. at 1795 n. 7. After consider-

ing the statute under review in that

case, the Court concluded that “we are

Act conditions the receipt of federal highway

aid funds upon each state establishing a 55

DISTRICT OF COLUMBIA v. TRAIN

convinced that the wage restriction reg-

ulations constituted no such drastic inva-

sion of state sovereignty.” Id.

The Court has not yet made clear ex-

actly what sort of restraints the Tenth

Amendment does place on federal action

under the commerce clause. Wirtz ex-

plicitly rejected “the contention that

state concerns might constitutionally

‘outweigh’ the importance of an other-

wise valid federal statute regulating

commerce.” 392 U.S. at 195-96, 88 S.Ct.

at 2023. It relied instead on the limits

inherent in the commerce power as giv-

ing the Court “ample power to prevent

what the appellants purport to fear, ‘the

utter destruction of the State as a sover-

eign political entity“ Id. at 196, 88

S.Ct. at 2024. On the other hand, before

commencing its discussion of the com-

merce power, the Court observed that

the statute under review did not signifi-

caniiy intrude upon state powers:

The Act establishes only a minimum

wage and a maximum limit of hours

unless overtime wages are paid, and

does not otherwise affect the way in

which school and hospital duties are

performed. Thus appellants’ charac-

terization of the question in this case

as whether Congress may, under the

guise of the commerce power, tell the

States how to perform medical and ed-

ucational functions is not factually ac-

curate. Congress has “interfered

with” these state functions only to the

extent of providing that when a State

employs people in performing such

functions it is subject to the same re-

strictions as a wide range of other em-

ployers whose activities affect com-

merce, including privately operated

schools and hospitals.

Id. at 193-94. In Pennsylvania v. EPA,

supra, the Third Circuit discounted the

relevance of this latter statement:

233

Although the Court noted that un-

der the facts of the case, there did not

appear to be an interference with

“sovereign state functions,” it stated

that in any case it is inappropriate to

pose the issue in this way, since any

“interfere” with the power of the

states.

500 F.2d at 259-60. However, when the

Supreme Court itself interpreted Wirtz

in Fry v. United States, supra, it stated:

We noted, moreover, that the statute

at issue in Wirtz was quite limited in

application. The federal regulation in

this case is even less intrusive.

— US. at ——, 95 S.Ct. at 1796.

[32] It would thus appear that the

extent of federal intrusion into state

sovereignty is of some relevance even

where the federal regulations are an ex-

ercise of the commerce power. Since the

Tenth Amendment was described in Fry

as declaring “the constitutional policy

that Congress may not exercise power in

a fashion that impairs the States’ integ-

rity or their ability to function in a fed-

eral system,” the restrictions may be di-

rected to the manner in which the feder-

al government exercises its commerce

power. In other words, the Tenth

Amendment may prevent Congress from

selecting methods of regulating which

are “drastic” invasions of state sover-

eignty where less intrusive approaches

are available. If this is the case, the

mere fact that direct federal regulation

of vehicles would be less “efficient”

would not appear sufficient to override

the serious intrusion on state sovereignty

involved in forcing the states to supplant

federal officials in policing the details of

federal regulations.

294 DISTRICT OF COLUMBIA v. TRAIN

[33] However the Supreme Court ul-

timately determines to reconcile the for-

mulation of the Tenth Amendment in

Fry with the federal commerce power,

we have no doubt that the inspection

and retrofit regulations involve “drastic”

intrusions on state sovereignty. A fed-

eral regulation which compels the states

to enforce federal regulatory programs

clearly “impairs the States’ integrity”

and “their ability to function in a federal

system.”* The Tenth Amendment thus

provides an additional ground {or strik-

ing down these particular regulations.

To summarize our holdings in this

part, the exclusive bus lane regulations

and the bus fleet regulations are valid

federal regulations of state activities

which affect commerce, under United

States v. California, supra. The inspec-

tion and maintenance regulations and

the retrofit regulations are invalid to the

extent that they direct unconsenting

states to enact regulations and thus go

beyond the authority conferred by the

Act, and in part because they require the

states to administer and enforce federal

regulatory programs and thus exceed

constitutional power under the commerce

clause. However, the commerce power

does enable the federal government to

prohibit the states from registering non-

conforming vehicles and thus the provi-

sion to that effect in each regulation is

constitutional.

ating vehicles that do not comply with

applicable standards and prohibit the

states from registering such vehicles.

Although these requirements are valid

exercises of the federal commerce power,

and would by themselves suffice to es-

tablish each federal program, our hold-

ing that unconsenting states cannot be

required to administer these federally-

promulgated programs means that at

present the regulations contain no meth-

od for determining which retrofit devices

are approved for installation and what

the applicable emission standards are. It

is therefore necessary to remand the en-

tire inspection and retrofit regulations

for the National Capital Region to the

Administrator with directions that he

promulgate a complete and enforceable

set of regulations establishing each pro-

gram as promptly as possible and incor-

porate these in the implementation plans

for this area.

[34,35] There is one further matter

which requires some comment. The

foregoing discussion has not attempted

to draw any distinction between the reg-

ulations promulgated for the District of

Columbia and those covering the States

of Maryland and Virginia. As a federal

entity, the District is obviously in a

somewhat different status than the

states with regard to the extent of con-

trol Congress can assert over its affairs

and does not enjoy the independent pro-

tections affora. 1 to the states because of

their sovereign status. However, the

Clean Air Act treats it as a state for

DISTRICT OF COLUMBIA v. TRAIN 2%

purposes of developing implementation

plans. See 42 U.S.C. § 1857h(d). Fur-

thermore, the Administrator has placed

considerable emphasis on assuring that

the transportation control programs are

applied uniformly throughout the Na-

tional Capital Region.“ To preserve this

approach, we shall accordingly vacate

the District of Columbia portions of the

regulations to the same extent as the

Maryland and Virginia regulations have

been determined to be invalid. If the

concept of regional uniformity of regula-

tion is to be abandoned, that determina-

tion is for the Administrator in the first

instance.

[36] As each of the regulations under

review has been upheld to some extent,

we shall next consider the other chal-

lenges raised by petitioners. The appli-

cable standard for review of the Admin-

istrator’s action in promulgating the var-

ious regulations Which comprise the Na-

tional Capital plan is the “arbitrary and

capricious” standard of the Administra-

tive Procedure Act.“ South Terminal

Corp. v. EPA, 504 F.2d 646, 655 (Ist Cir.

1974). Under this test, the petitioners

challenge the validity of the regulations

for VSAD retrofit, retrofit of medium-

and heavy-duty vehicles, development of

exclusive bus lanes and construction of

bicycle lanes.

A. VSAD Retrofit According to the

EPA, the retrofit of all pre-1968 vehicles

with a VSAD device will cost $20.00 per

28. it must be emphasized that, in order to be

effective, each VMT [vehicle miles traveled]

control measure proposed or adopted by the

District of Columbia must be reflected by

identical or equivalent measures in the

neighboring jurisdictions of Maryland and

Virginia for their portions of the National

Capital Interstate Region.

unit “ and will contribute 09 percent of

the total reduction in emissions needed

to reach the national standards.” Peti-

tioners base their opposition to this regu-

lation on a balancing of the very small

reduction in pollution against the cost to

the public. By the time the regulation is

fully implemented in 1976, most of the

vehicles involved would have only a

short period of useful life remaining.

The District of Columbia asserts that

these older cars tend to be owned by

poorer persons who can least afford the

cost of the retrofit. In addition, installa-

tion of a VSAD device causes a small

drop in fuel economy. Finally, the 0.9

percent figure assumes that all vehicles

will be retrofitted, but the regulations

permit the exemption of any car for

which no such device is available. Thus

the actual reduction in emissions could

be considerably less than predicted.

[37] The EPA’s response is that eco-

nomic and sociological considerations are

either subordinate or irrelevant where

the public health is concerned, citing

South Terminal Corp. v. EPA, 504 F.2d

646, 675 (Ist Cir. 1974); NRDC v. EPA,

489 F. 2d 390, 411-12 (5th Cir. 1974). We

have no occasion to consider this argu-

ment, however, since we do not believe

the reduction in pollution to be obtained

by this retrofit has been shown to be so

minimal that it can be said with confi-

dence that adopting this strategy was

arbitrary and capricious. The Adminis-

trator determined that these retrofits

38 Fed.Reg. 20758 (Aug. 2, 1973). See also 42

U.S.C. §§ 1857c-1, 1887-2

29. 5 U.S.C. § 706(2)A).

30. 38 Fed.Reg. 33709 (Dec. 6, 1973).

31. Id at 33708.

32. EPA White Paper on Transportation Con-

trols 5-6 (August 1973), It. App at 529-30.

296 DISTRICT OF COLUMBIA v. TRAIN

were needed in order to achieve the

overall reduction in emissions required to

attain the national standards in this Re-

gion, and we find no basis for holding

that this determination was clearly

wrong.

{38} Maryland and Virginia also con-

tend that the retrofit regulations in gen-

eral are arbitrary and unreasonable be-

cause the states are unable to determine

what retrofit devices are practicable and

approvable. They argue that instead

there must be a single, uniform program

of evaluating such devices. In light of

our prior holding that the Act requires

the Administrator to adopt complete reg-

ulations, including specification of ap-

proved devices, rather than leaving the

job of supplying the details to the states,

this argument has been mooted Fur-

ther, we note that the EPA has already

taken steps to establish a retrofit device

evaluation program of its own. 40 Fed.

Reg. 3495-3507 (Jan. 22, 1975).

B. Medium- and Heavy-Duty Vehicle

Retrofit The attack by Maryland and

Virginia on these regulations is based on

the lack of certain information which is

claimed to be needed to promulgate

meaningful regulations, and particularly

on the lack of data relating to the base-

line emission for trucks. The availability

of this data allegedly would enable one

to distinguish between a “clean” and a

“dirty” truck and require that emissions

from the latter be reduced by an appro-

priate amount. In its absence, the states

argue that owners of “clean” trucks will

be required to spend money to make

them cleaner while the same percentage

reduction for “dirty” trucks will still al-

low them to emit excessive pollution.

33. Even if we had held that the Administrator

possesses power to compel the states to evalu-

ate retrofit devices, we would have grave

doubts about the reasonableness of a regula-

[39] The Administrator, however, has

chosen to require that all truck owners

install devices which have been deter-

mined to produce a fixed percentage re-

duction in pollutants emitted. Under

this approach, the data petitioners seek

is simply irrelevant. In light of the

problems which would be involved in tai-

loring the regulations to the different

types of vehicles and to all possible oper-

ating conditions, we cannot say that the

Administrator's choice of tactics is arbi-

trary or unreasonable.

Petitioners also argue that the regula-

tions should be remanded to the Admin-

istrator “for an extension of implemen-

tation dates” in order to enable consider-

ation of evaluation data being developed

in a New York study of truck emissions.

We note that the monthly report on that

study, submitted as Addendum B to the

EPA Brief, indicates that certain retrofit

devices are available which will reduce

emissions by the required amounts. In

any event, neither this court nor the Ad-

ministrator has authority to extend the

implementation deadline beyond 1977.

If the states are seeking an extension of

interim compliance dates, they may do so

by petitioning the Administrator under

section 110(f) of the Act.

[40] C. Exclusive Bus Lanes The

District of Columbia objects to the Ad-

ministrator’s refusal to grant its request

for a delay in the implementation dates

for establishment of exclusive bus corri-

dors based on various funding and plan-

ning difficulties. In rejecting the re-

quest, the Administrator stated that it

had not been adequately justified be-

cause exclusive bus lanes can be easily

tion which permitted each jurisdiction to con-

duct independent evaluations and possibly

adopt different retrofit devices for installation

in each portion of the National Capital Region.

DISTRICT OF COLUMBIA v. TRAIN 2

implemented but that EPA will con-

sider limited extension requests warrant-

ed by the specific facts.“ It. App. 507.

While he has been somewhat insensitive

to the problems his regulations have

caused the various jurisdictions, we do

not believe the Administrator acted arbi-

trarily in denying this particular request

for extension.

41 D. Bicycle Lanes/Storage Fa-

cilities The original notices of proposed

rulemaking on the implementation plans

made no mention of a possible promulga-

tion of bicycle regulations. Instead, the

impetus for these regulations came from

testimony given at the hearings by area

bicycle enthusiasts. Petitioners argue

that these regulations are invalid be-

cause the Administrator failed to comply

with the notice and hearing require-

ments of section 110(c) and 5 U.S.C.

§ 553(b) prior to promulgating them.

However, the original notices stated that

alternate forms of transportation con-

trols would be considered at the hear-

ings, and thus they were sufficient to

give the parties notice that the agency

might rely on comments tendered at the

hearing in promulgating regulations, as

it is allowed to do. South Terminal

Corp. v. EPA, 504 F.2d 646, 659 (Ist Cir.

1974); International Harvester Co. v.

Ruckelshaus, 155 U.S.App.D.C. 411, 478

F.2d 615, 632 n. 51 (1973). Furthermore,

the EPA afforded the interested parties

an opportunity to submit comments after

the regulations were promulgated, but

there was no attack made at that time

nor was there any request for additional

34. The Philadelphia study consisted of ques-

tionnaires distributed at random to 500 per-

sons in parked motor vehicles in the city's

central business district. Of the 220 question-

naires which were returned, 33 percent indi-

cated they owned bicycles and 38 percent of

that group said they were likely to use bicy-

cles for commuting if safe lanes and secure

hearings. Thus petitioners’ claims that

these regulations suffer from a proce-

dural defect are without merit.

[42,43] The only evidence in this

record indicating a need for bicycle regu-

lations and establishing the connection

between these regulations and a reduc-

tion in air pollution consists of the testi-

mony at the hearing and a study of po-

tential bicycle utilization in Philadelphia

which the EPA later announced justified

its regulations.“ After considering this -

evidence, we must agree with petitioners

that the record is simply not sufficient

to support promulgation of bicycle regu-

lations for the National Capital Region.

In particular, while the Philadelphia

study might be a sufficient basis for pro-

mulgating bicycle regulations for Phila-

delphia, it is not adequate to establish

that such regulations are necessary, de-

sirable or practical for this Region.

These regulations will accordingly be re-

manded to the Administrator for recon-

sideration. Such reconsideration should

include consideration of cost factors as

related to anticipated benefits.

We note that a survey of present and

potential bicycle utilization in the Dis-

trict of Columbia has since been prepar-

ed (see Addendum E of the EPA Brief)

and that its findings tend to support the

EPA regulations. However, the regula-

tions cannot be upheld on the basis of

this new evidence until it has been made

part of the record and petitioners have

been afforded the opportunity to submit

comments thereon.

Storage facilities were provided. Of the 67

percent of the sample that did not own bicy-

cles, 17 percent said they would buy and use

them for commuting if such facilities were

available. No comparison was made of the

likely commuting distances in Philadelphia and

the Washington area.

298 DISTRICT OF COLUMBIA v. TRAIN

[44] E. Increased Bus Fleet The

National Capital plan includes regula-

tions requiring Virginia and Maryland to

submit compliance schedules showing

that they, or their local governments,

and the District of Columbia have made

financial commitments sufficient to en-

able the Washington Metropolitan Area

Transit Authority (WMATA) to purchase

475 new buses. Maryland and Virginia

argue that this creation of parallel

agreements focusing on the same object

contravenes Article I, section 10, of the

Constitution, which prohibits the states

from entering into any agreement or

compact with another state without the

consent of Congress. However, WMA-

TA was established by a compact to

which Congress consented. Pub.L. 89-

774, 80 Stat. 1324 (Nov. 6, 1966). Title

III, Article VII, section 18, of the WMA-

TA compact enables the Northern Vir-

ginia Transportation District, which rep-

resents Virginia, and the Washington

Suburban Transit District, which repre-

sents Maryland, to make commitments

for the acquisition of transit facilities

and equipment. Since Congress has al-

ready approved a compact and provided

means for funding, the most that could

be criticized in the regulation might be a

technical error in leaving open the possi-

bility that these commitments may be

made directly to WMATA by the states

rather than from the states to the Dis-

tricts and thence to WMATA. However,

because the result will be the same in

either case, we conclude that this attack

on the bus fleet regulations is without

merit.

[45] F. Incompleteness of the

Present Transportation Control Plan

The District of Columbia asserts that

withdrawal of various regulations, and

especially the demise of parking sur-

charge regulations, has produced a plan

which is insufficient to attain the nation-

al ambient air quality standard for this

Region by the target date of May 31,

1977. Because it is possible that the

reevaluation of the plan necessitated by

its present insufficiency may result in

abandonment of programs to which the

jurisdictions will have become irretriev-

ably committed in favor of new ap-

proaches, the District argues for a re-

mand of the entire plan to the EPA with

directions that it develop a substitute set

of regulations creating a comprehensive

and coordinated program for attaining

the air quality standards. The EPA con-

cedes that its present plan is not suffi-

cient to bring about the needed reduc-

tion in emissions, but it argues that it

should be allowed to implement those

regulations which are valid in order to

make some progress toward the ultimate

goal.

We believe that the EPA has taken

the correct position on this issue. There

has been no showing that any of the

regulations in the present plan are likely

to be proven unnecessary in the future.

Furthermore, if we were to demand the

promulgation of a perfect plan before

any part of it may be enforced, the air

quality standards might never be at-

tained.

IV.

The exclusive bus lane regulations and

the increased bus fleet regulations are

affirmed. To the extent that the bicycle

lane and storage facilities regulations or-

der the states to enact statutes and reg-

ulations, they are vacated as in excess of

the Administrator’s powers under the

Clean Air Act. The remainder of the

bicycle lane regulations are remanded to

the Administrator because of an absence

of evidence in the record supporting the

need for such facilities and their feasibil-

DISTRICT OF COLUMBIA v. TRAIN 299

ity. The inspection and maintenance

regulations and the retrofit regulations

are vacated to the extent that they have

been held to be in excess of the Adminis-

trator’s powers under the Act or to be

unconstitutional, and are affirmed to the

extent they prohibit the states from reg-

istering non-conforming vehicles and

prohibit vehicle owners from operating

them. These latter regulations are re-

manded to the Administrator with di-

rections that he take prompt action to

promulgate complete and enforceable

regulations to replace the deficient im-

plementation plans submitted by the

states.

Judgment accordingly.

APPENDIX

The following is the text of the regula-

tions under review in this case, as pro-

mulgated in 40 C.F.R. Part 52, Subparts

J(District of Columbia), V(Maryland),

and VV(Virginia):

Subpart J—District of Columbia

§ 52.476 Compliance schedules.

> * 5 6 0 6

(g) With respect to the measure for

increased bus fleet and service approval

in § 52.472: The District of Columbia

shall no later than January 31, 1974, sub-

mit a compliance schedule to put the

program into effect. The compliance

schedule shall, at a minimum, provide

that the District of Columbia shall, on or

before March 1, 1974, submit to the Ad-

ministrator a statement, signed both by

a representative of the Washington Met-

ropolitan Area Transit Authority (WMA-

TA) indicating that, in the judgment of

both of them, financial commitments

have been made by the District of Co-

lumbia for the purchase of buses. This

statement, taken in conjunction with the

commitments made by the Common-

wealth of Virginia and the State of

Maryland, must be sufficient to enable

WMATA to purchase in the fiscal year

beginning the next July 1, the number

of buses below:

Fiscal Year 1975—175 buses

Fiscal Year 1976—150 buses

Fiscal Year 1977—150 buses

The statement shall also indicate that

WMATA has in fact committed to pur-

chase that number of buses.

(h) With respect to the express bus

lane measure approved in § 52.472:

(1) The District of Columbia shall no

later than January 1, 1975, establish ex-

clusive bus lanes in the following corri-

dors:

(i) U.S. Route 50 from District of Co-

lumbia-Maryland boundary to Wash-

ington Central Business District (hereaf-

ter CBD).

(ii) Pennsylvania Avenue from the

District of Columbia-Maryland boundary

to the Washington CBD.

(iii) South Capitol Street from Bolling

Air Force Base to Independence Avenue.

(iv) U.S. Route 50 from the District of

Columbia-Virginia boundary to the

Washington CBD.

(v) In the District of Columbia portion

of a route connecting the Dulles Access

Road from the Reston Interchange to

the Washington CBD.

(vi) Georgia Avenue-138th Street from

the District of Columbia-Maryland

boundary to the Washington CBD.

(vii) U.S. Route 240 from the District

of Columbia-Maryland boundary to Sher-

idan Circle.

(viii) New Hampshire Avenue from

the District of Columbia-Maryland

boundary to Grant Circle.

300 DISTRICT OF COLUMBIA v. TRAIN

Such lanes shall be inbound during the

morning peak and outbound during the

evening peak period.

(2) The District of Columbia shall sub-

mit to the Administrator, no later than

March 1, 1974, a schedule showing the

steps which it will take to establish ex-

clusive bus lanes in those corridors enu-

merated in paragraph (h)(1) of this sec-

tion. Each schedule shall be subject to

the approval by the Administrator and

shall include as a minimum the follow-

ing:

(i) Identification of streets or high-

ways that shall have portions designated

for exclusive bus lanes.

(ii) The date by which each street or

highway shall be designated.

(3) Exclusive bus lanes must be promi-

nently indicated by distinctively painted

lines, pylons, overhead signs, or physical

barriers.

(4) Application for substitution of a

corridor for any of those listed in para-

graph (h)(1) of this section shall be made

by the District of Columbia for the Ad-

ministrator’s approval no later than

March 1, 1974.

* * * * . .

§ 52.490 Inspection and maintenance

program.

(a) Definition:

(1) “Inspection and maintenance pro-

gram” means a program for reducing

emissions from in-use vehicles through

identifying vehicles that need emission

control-related maintenance and requir-

ing that such maintenance be performed.

(2) “Light-duty vehicle” means a gaso-

line-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 gas-

oline-powered motor vehicle rated at 10,-

000 Ib GVW or more.

(5) All other terms used in this section

that are defined in Part 51, Appendix N,

of this chapter are used herein with the

meanings so defined.

(b) This section is applicable within

the District of Columbia portion of the

National Capital Interstate AQCR.

(e) In connection with the light duty

vehicle inspection and maintenance pro-

gram for the District of Columbia ap-

proved by the Administrator pursuant to

§ 52.472 the District shall establish an

inspection and maintenance program ap-

plicable to all medium duty and heavy

duty vehicles registered in the District

that operate on public streets or high-

ways over which it has ownership or con-

trol. The District may exempt any class

or category of vehicles that the District

finds is rarely used on public streets or

highways (such as classic or antique ve-

hicles). No later than April 1, 1974, the

District shall submit legally adopted reg-

ulations to the Administrator establish-

ing such a program. The regulations

shall include:

(1) Provisions for inspection of all me-

dium-duty and heavy-duty motor vehi-

cles at periodic intervals not more than 1

year apart by means of a loaded emis-

sion test.

(2) Provisions for inspection failure

criteria consistent with the failure of 30

percent of the vehicles in the first in-

spection cycle.

(3) Provisions to ensure that failed ve-

hicles receive within two weeks the

maintenance necessary to achieve com-

pliance with the inspection standards.

These shall include sanctions against in-

DISTRICT OF COLUMBIA v. TRAIN 301

dividual owners and repair facilities, re-

test of failed vehicles following mainte-

nance, use of a certification program to

ensure that repair facilities performing

the required maintenance have the nec-

essary equipment, parts, and knowledge-

able 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 en-

sure that vehicles are not intentionally

readjusted or modified subsequent to the

inspection and/or maintenance 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 adjustment and/or a

suitable type of physical tagging. This

program shall include penalties for viola-

tion.

(5) Provisions for beginning the first

inspection cycle by January 1, 1975, com-

pleting it by January 1, 1976.

(6) Designation of an agency or agen-

cies responsible for conducting, oversee-

ing, and enforcing the inspection and

maintenance program.

(d) After January 1, 1976, the District

shall not register or allow to operate on

public streets or highways any medium-

duty or heavy-duty vehicle that does not

comply with the applicable standards

and procedures adopted pursuant to

paragraph (c) of this section. This shall

not apply to the initial registration of a

new motor vehicle.

(e) After January 1, 1976, no owner of

a medium-duty or heavy-duty vehicle

shall operate or allow the operation of

such vehicle that does not comply with

the applicable standards and procedures

adopted pursuant to paragraph (c) of

this section. This shall not apply to the

initial registration of a new motor vehi-

cle.

(f) The District shall submit, no later

than February 1, 1974, a detailed compli-

ance schedule showing the steps it will

take to establish and enforce an inspec-

tion and maintenance program pursuant

to paragraph (c) of this section.

§ 52.491 Bicycle lanes and bicycle stor-

age facilities.

(a) Definitions:

(1) “Bicycle” means a two-wheel, non-

motor powered vehicle.

(2) “Bicycle lane” means a route for

the exclusive use of bicycles, either con-

structed specifically for that purpose or

converted from an existing lane.

(3) “Bicycle parking facility” means

any storage facility for bicycles, which

allows bicycles to be locked securely.

(4) “Parking space” means the area al-

located by a parking facility for the tem-

porary storage of one automobile.

(5) “Parking facility” means a lot, ga-

rage, building, or portion thereof, in or

on which motor vehicles are temporarily

parked.

(b) This section shall be applicable in

the District of Columbia portion of the

National Capital Interstate Air Quality

Control Region.

(e) On or before July 1, 1976, the Dis-

trict of Columbia shall establish a net-

work of bicycle lanes linking residential

areas with employment, educational, and

commercial centers in accordance with

the following requirements:

(1) The network shall contain no less

than 60 miles of bicycle lanes in addition

to any in existence as of November 20,

1973.

(2) Each bicycle lane shall at a mini-

mum:

(i) Be clearly marked by signs indicat-

ing that the lane is for the exclusive use

302 DISTRICT OF COLUMBIA v. TRAIN

of bicycles (and pedestrians, if neces-

sary);

(ii) Be separated from motor vehicle

traffic by appropriate devices, such as

physical barriers, pylons, or painted

lines;

(iii) Be regularly maintained and re-

paired;

(iv) Be of a hard, smooth surface suit-

able for bicycles;

(v) Be at least 5 feet wide for one-

way traffic, or 8 feet wide for two-way

traffic;

(vi) If in a street used by motor vehi-

cles, be a minimum of 8 feet wide

whether one-way or two-way; and

(vii) Be adequately lighted.

(3) Off-street bicycle lanes which are

not reasonably suited for commuting to

and from employment, educational, and

commercial centers shall not be con-

sidered a part of this network.

(4) On or before October 1, 1974, the

District of Columbia shall establish 25

percent of the total mileage of the bicy-

cle lane network; on or before June 1,

1975, 50 percent of the total mileage

shall be established; on or before July 1,

1976, 100 percent of the total mileage

shall be established.

(d) On or before June 1, 1974, the Dis-

trict of Columbia shall submit to the Ad-

ministrator a comprehensive study of a

bicycle lane and bicycle path network.

The study shall include, but not be limit-

ed to the following:

(1) A bicycle user and potential user

survey, which shall at a minimum deter-

mine:

(i) For present bicycle riders, the ori-

gin, destination, frequency, travel time,

and distance of bicyele trips;

(ii) In high density employment areas,

the present modes of transportation of

employees and the potential modes of

transportation, including the number of

employees who would convert to the bi-

cycle mode from other modes upon com-

pletion of the bicycle lane network de-

scribed in paragraph (c) of this section.

(2) A determination of the feasibility

and location of on-street bicycle lanes.

(3) A determination of the feasibility

and location of off-street ianes.

(4) A determination of the special

problems related to feeder lanes to

bridges, on-bridge lanes, feeder lanes to

METRO and railroad stations, and feed-

er lanes to fringe parking areas, and the

means necessary to include such lanes in

the bicycle lane network described in

paragraph (c) of this section.

(5) A determination of the feasibility

and location of various methods of safe

bicycle parking.

(6) The study shall make provision for

the receipt of public comments on any

matter within the scope of the study,

including the location of the bicycle lane

network described in paragraph (c) of

this section.

(e) By June 1, 1974, in addition to the

comprehensive study required pursuant

to paragraph (d) of this section, the Dis-

trict of Columbia shall submit to the Ad-

ministrator a detailed compliance sched-

ule showing the steps it will take to es-

tablish this network pursuant to para-

graphs (c) and (h) of this section. The

compliance schedule shall identify in de-

tail the names of streets that will pro-

vide bicycle lanes and the location of any

lanes to be constructed especially for bi-

cycle use. It shall also include a state-

ment indicating the source, amount, and

adequacy of funds to be used in imple-

menting this section, and the text of any

needed statutory proposals and needed

regulations which will be proposed for

adoption.

DISTRICT OF COLUMBIA v. TRAIN 303

(f) On or before October 1, 1974, the

District of Columbia shall submit to the

Administrator legally adopted regula-

tions sufficient to implement and enforce

all of the requirements of this section.

(g) On or before May 1, 1974, the Dis-

trict of Columbia shall establish a pilot

bicycle lane from Key Bridge via Penn-

sylvania Avenue past the White House

to the U.S. Capitol and from the Capitol

along Pennsylvania Avenue to Alabama

Avenue SE.

(h) On or before June 1, 1975, the Dis-

trict of Columbia shall require all owners

and operators of parking facilities con-

taining more than 50 parking spaces (in-

cluding both free and commercial facili-

ties) within the area specified in para-

graph (b) of this section to provide

spaces for the storage of bicycles in the

following ratio: one automobile-sized

parking space (with a bicycle parking fa-

cility) for the storage of bicycles for ev-

ery 75 parking spaces for the storage of

autos. The District shall also require

that:

(1) Bicycle parking facilities shall be

so located as to be safe from motor vehi-

cle traffic and secure f om theft. They

shall be properly repaired and main-

tained

(2) The METRO Subway System shall

provide a sufficient number of safe and

secure bicycle parking facilities at each

station to meet the needs of its riders.

(3) All parking facilities owned, oper-

ated, or leased by the Federal Govern-

ment shall be subject to this paragraph.

(4) Any owner or operator of a park-

ing facility which charges a fee for the

storage of motor vehicles shall store bi-

cycles at a price per unit per hour which

is no greater in relation to the cost of

storing them than is the price of parking

for a motor vehicle in relation to the cost

of storing it. Unless the owner or oper-

ator makes an affirmative showing to

the District of Columbia of different

facts, and agrees to charge in conformity

with that showing, the ratio in costs and

prices shall be determined by the maxi-

mum number of bicycles that can be

stored in a single standard-sized automo-

bile parking space.

§ 52.492 Medium duty air/fuel control

retrofit.

(a) Definitions:

(1) “Air/fuel Control Retrofit” means

a system or device (such as modification

to the engine’s carburetor or positive

crankcase ventilation system) that re-

sults in engine operation at an increased

air fuel ratio so as to achieve reduction

in exhaust emissions of hydrocarbon and

carbon monoxide from 1973 and earlier

medium-duty vehicles of at least 15 and

30 percent, respectively.

(2) “Medium-duty vehicle” means a

gasoline powered motor vehicle rated at

more than 6,000 lb GVW and less than

10,000 lb GVW.

(3) All other terms used in this section

that are defined in Part 51. Appendix

N, of this chapter are used herein with

meanings so defined.

(b) This section is applicable within

the District of Columbia portion of the

National Capital Interstate AQCR.

fied in paragraph (b) of this section, are

equipped with an appropriate air/fuel

control device or other device as ap-

proved by the Administrator that will

304 DISTRICT OF COLUMBIA v. TRAIN

reduce exhaust emissions of hydrocar-

bons and carbon monoxide to the same

extent as an air/fuel control device. No

later than February 1, 1974, the District

of Columbia shall submit to the Adminis-

trator a detailed compliance schedule

showing the steps it will take to estab-

lish and enforce a retrofit program pur-

suant to this section. The compliance

schedule shall include a date by which

the District shall evaluate and approve

devices for use in this program. Such

date shall be no later than September 30,

1974.

(d) No later than April 1, 1974, the

District shall submit legally adopted reg-

ulations to the Administrator establish-

ing such a program. The regulations

shall include:

(1) Designation of an agency responsi-

ble for evaluating and approving devices

for use on vehicies subject to this sec-

tion.

(2) Designation of an agency responsi-

ble for ensuring that the provisions of

paragraph (d\3) of this section are en-

forved.

(3) Provisions for beginning the instal-

lation of the retrofit devices by August

1, 1975, and completing the installation

of the devices on all vehicles subject to

this section no later than May 31, 1976.

(4) A provision that no later than May

31, 1976, no vehicle for which retrofit is

required under this section shall pass the

annual emission tests provided for by

§ 52.490 unless it has been first equipped

with an approved air/fuel control device,

or other device approved pursuant to

this section, which the test has shown to

be installed and operating correctly.

The regulations shall include test proce-

dures and failure criteria for implement-

ing this provision.

(5) Methods and procedures for ensur-

ing that those installing the retrofit de-

vices have the training and ability to

perform the needed tasks satisfactorily

and have an adequate supply of retrofit

components.

(6) Provision (apart from the require-

ments of any general program for peri-

odic inspection and maintenance of vehi-

cles) for emission testing at the time of

device installation or some other positive

assurance that the device is installed and

operating correctly.

(e) After May 31, 1976, the District

shall not register or allow to operate on

its streets or highways any vehicle that

does not comply with the applicable

standards and procedures adopted pur-

suant to paragraph (d) of this section.

(f) After May 31, 1976, no owner of a

vehicle subject to this section shall oper-

ate or allow the operation of any such

vehicle that does not comply with the

applicable standards and procedures im-

plemented by this section.

(g) The District may exempt any class

or category of vehicles from this section

which the District finds is rarely used on

public streets and highways (such as

classic or antique vehicles) or for which

the District demonstrates to the Admin-

istrator that air/fuel control devices or

other devices approved pursuant to this

section are not commercially available.

§ 52.494 Heavy duty air/fuel control

retrofit

(a) Definitions:

(1) “Air/Fuel Control Retrofit” means

a system or device (such as modification

to the engine’s carburetor or positive

crankcase ventilation system) that re-

sults in engine operation at an increased

air/fuel ratio so as to achieve reduction

in exhaust emissions of hydrocarbon and

carbon monoxide from heavy-duty vehi-

cles of at least 30 and 40 percent, respec-

tively.

DISTRICT OF COLUMBIA v. TRAIN

(2) “Heavy-duty vehicle” means a gas-

oline-powered motor vehicle rated at 10,-

000 Ib gross vehicle weight (GVW) or

more.

(3) All other terms used in this section

that are defined in Part 51, Appendix N,

of this chapter are used herein with

meanings so defined.

(b) This section is applicable within

the District of Columbia portion of the

National Capital Interstate AQCR.

(e) The District of Columbia shall es-

tablish a retrofit program to ensure that

on or before May 31, 1977, all heavy-

duty vehicles registered in the area spec-

ified in paragraph (b) of this section are

equipped with an appropriate air/fuel

control device, or other device as ap-

proved by the Administrator that will

reduce exhaust emissions of hydrocar-

bons and carbon monoxide to the same

extent as an air/fuel control device. No

later than April 1, 1974, the District of

Columbia shall submit to the Adminis-

trator a detailed compliance schedule

showing the steps it will take to estab-

lish and enforce a retrofit program pur-

suant to this section. The compliance

schedule shall include a date by which

the District shall evaluate and approve

devices for use in this program. Such

cone D

1975.

(d) No later than September 1, 1974,

the District shall submit legally adopted

regulations to the Administrator estab-

lishing such a program. The regulations

shall include:

(1) Designation of an agency responsi-

ble for evaluating and approving devices

for use on vehicles subject to this sec-

tion.

(2) Designation of an agency responsi-

ble for ensuring that the provisions of

-r

adopted pur-

suant to paragraph (d) of this section.

(f) After May 31, 1977, no owner of a

vehicle subject to this section shall oper-

ate or allow the operation of any such

vehicle that does not comply with the

appliceble standards and procedures im-

plementing this section.

(g) The District may exempt any class

or category of vehicles from this section

which the District finds is rarely used on

306 DISTRICT OF COLUMBIA v. TRAIN

public streets and highways (such as

classic or antique vehicles) or which

the District demonstrates to the Admin-

istrator that air/fuel control or other de-

vices approved pursuant to this section

are not commercially availabie.

§ 52.495 Oxidizing catalyst retrofit.

(a) Definitions:

(1) “Oxidizing catalyst” means a de-

vice that uses a catalyst installed in the

exhaust system of a vehicle (and if nec-

essary includes an air pump) so as to

achieve a reduction in exhaust emissions

of hydrocarbon and carbon monoxide of

at least 50 and 50 percent, respectively,

from light-duty vehicles of 1971 through

1975 model years, and of at least 50 and

50 percent, respectively, from medium

duty vehicles of 1971 through 1975 model

years.

(2) “Light-duty vehicle” means a gaso-

line-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 ib GVW.

(4) “Fleet vehicle” means any of 5 or

more light-duty vehicles operated by the

same person(s), business, or governmen-

tal entity and used principally in connec-

tion with the same or related occupa-

tions or uses. This definition shall also

include any taxicab (or other light-duty

vehicle-for-hire) owned by any individual

or business.

(5) All other terms used in this section

that are defined in Part 51, Appendix N,

are used herein with meanings 80

defined.

(b) This section is applicable within

the District of Columbia portion of the

National Capital Interstate AQCR.

tablish a retrofit program to ensure that

on or before May $1, 1977, all light-duty

fleet vehicles of model years 1971

through 1975 and all medium-duty vehi-

cles of mode! years 1971 through 1975

which are registered in the area speci-

fied in paragraph (b) of this section and

are able to operate on 91RON gasoline

are equipped with an appropriate oxidiz-

ing catalyst retrofit device or other de-

vice, as approved by the Administrator,

that will reduce exhaust emissions of hy-

drocarbon and carbon monoxide to the

same extent as an oxidizing catalyst re-

trofit device. No later than April 1,

1974, the District of Columbia shall sub-

mit to the Administrator a detailed com-

pliance schedule showing the steps it will

take to establish and enforce a retrofit

program pursuant to this section. The

compliance schedule shal! include a date

by which the District shall evaluate and

approve devices for use in this program.

Such date shall be no later than January

1, 1975.

(d) No later than September 1, 1974,

the District shall submit legally adopted

regulations to the Administrator estab-

lishing such a program.

The regulations shall include:

(1) Designation of an agency responsi-

ble for evaluating and approving devices

for use on vehicles subject to this sec-

tion.

(2) Designation of an agency responsi-

ble for ensuring that the provisions of

paragraph (d\3) of this section are en-

forced.

(3) Provisions for beginning the instal-

lation of the retrofit devices by January

1, 1976, and completing the installation

of the devices on all vehicles subject to

this section no later than May 31, 1977.

(4) A provision that starting no later

than May 31, 1977, no vehicle for which

retrofit is required under this section

shall pass the annual emission tests pro-

DISTRICT OF COLUMBIA v. TRAIN 307

vided for by §§ 52.472 and 52.490 unless

it has been first equipped with an ap-

proved oxidizing catalyst device, or other

device approved pursuant to this section,

which the test has shown to be installed

and operating correctly. The regulations

shall include test procedures and failure

criteria for implementing this provision.

(5) Methods and procedures for ensur-

ing that those installing the retrofit de-

vices have the training and ability to

perform the needed tasks satisfactorily

and have an adequate supply of retrofit

components.

(6) Provision (apart from the require-

ments of any general program for peri-

odie inspection and maintenance of vehi-

cles) for emissions testing at the time of

device installation or some other positive

assurance that the device is installed and

operating correctly.

(e) After May 31, 1977, the District

shall not register or allow to operate on

its streets or highways any vehicle that

does not comply with the applicable

standards and procedures adopted pur-

suant to paragraph (d) of this section.

(f) After May 31, 1977, no owner of a

vehicle subject to this section shall oper-

ate or allow the operation of any such

vehicle that does not comply with the

applicable standards and procedures im-

plementing this section.

(g) Any vehicle which is manufactured

equipped with an oxidizing catalyst, or

which is certified to meet the original

1975 light duty vehicle emissions stan-

dards set forth in section 202(b\1)a) of

the Clean Air Act of 1970 (without re-

gard to any suspension of such stan-

dards), shall be exempt from the require-

ments of this section.

§ 52.496 Vacuum spark advance discon-

nect retrofit.

(a) Definitions:

(1) “Vacuum spark advance disconnect

retrofit” means a device or system in-

stalled on a motor vehicle that prevents

the ignition vacuum, advance from oper-

ating either when the vehicle’s transmis-

sion is in the lower gears, or when the

vehicle is traveling below a predeter-

mined speed, so as to achieve reduction

2 ——

carbon monoxide from 1967 and earlier

light-duty vehicles of at least 25 and 9

percent, respectively.

(2) “Light-duty vehicle” means a gaso-

line-powered motor vehicle rated at 6,000

Ib gross vehicle weight (GVW) or less.

(3) All other terms used in this section

that are defined in Part 51, Appendix N,

are used herein with meanings so

defined.

(b) This section is applicable within

the District of Columbia portion of the

National Capital Interstate AQCR.

(e) The District of Columbia shall es-

tablish a retrofit program to ensure that

on or before January 1, 1976, all light-

duty vehicles of model years prior to

1968 registered in the area specified in

paragraph (b) of this section are

equipped with an appropriate vacuum

spark advance disconnect retrofit device

or other device, as approved by the Ad-

ministrator, that will reduce exhaust

emissions of hydrocarbons and carbon

monoxide to the same extent as a vacu-

um spark advance disconnect retrofit.

No later than February 1, 1974, the Dis-

trict shall submit to the Administrator a

detailed compliance schedule showing the

steps it will take to establish and enforce

a retrofit program pursuant to this sec-

tion. The compliance schedule shall in-

clude a date by which the District shall

evaluate and approve devices for use in

this program. Such date shall be no la-

ter than September 30, 1974.

308 DISTRICT OF COLUMBIA v. TRAIN

(d) No later than April 1, 1974, the

District shall submit legally adopted reg-

ulations to the Administrator establish-

ing such a program. The regulations

shall include:

(1) Designation of an agency responsi-

ble for evaluating and approving devices

for use on vehicles subject to this sec-

tion.

(2) Designation of an agency responsi-

ble for ensuring that the provisions of

paragraph (dX3) of this section are en-

forced.

(3) Provisions for beginning the instal-

lation of the retrofit devices by January

1, 1975, and completing the installation

of the devices on all vehicles subject to

this section no later than January 1.

1976.

(4) A provision that starting no later

than January 1, 1976, no vehicle for

which retrofit is required under this sec-

tion shall pass the annual emission tests

provided for by § 52.472 unless it has

been first equipped with an approved

vacuum spark advance disconnect retro-

fit device, or other device approved pur-

suant to this section, which the test has

shown to be installed and operating cor-

rectly. The regulations shall include test

procedures and failure criteria for imple-

menting this provision.

(5) Methods and procedures for ensur-

ing that those installing the retrofit de-

vices have the training and ability to

perform the needed tasks satisfactorily

and have an adequate supply of retrofit

components.

(6) Provision (apart from the require-

ments of any general program for peri-

odic inspection and maintenance of vehi-

cles) for emissions testing at the time of

device installation, or some other positive

assurance that the device is installed and

operating correctly.

(e) After January 1, 1976, the District

shal! not register or allow to operate on

its streets or highways any light-duty

vehicle that does not comply with the

applicable standards and procedures

adopted pursuant to paragraph (d) of

(f) After January 1, 1976, no owner of

a vehicle subject to this section shall op-

erate or allow the operation of any such

vehicle that does not comply with the

applicable standards and procedures im-

plementing this section.

(g) The District may exempt any class

or category of vehicles from this section

which the District finds is rarely used on

public streets and highways (such as

classic or antique vehicles) or for which

the State demonstrates to the Adminis-

trator that vacuum spark advance dis-

connect devices or other devices ap-

proved pursuant to this section are not

commercially available.

Subpart V—Maryland

§ 52.1080 Compliance schedule.

(g) With respect to the measure for

increased bus fleet and service approved

in § 52.1073: The State of Maryland

shall no later than January 31, 1974, sub-

mit a compliance schedule to put the

program into effect. The compliance

schedule shall, at a minimum, provide

that the State of Maryland shall, on or

before March 1, 1974, submit to the Ad-

ministrator a statement, signed both by

a representative of the State of Mary-

land, and by a representative of the

Washington Metropolitan Area Transit

Authority (WMATA) indicating that, in

the judgment of both of them, financial

commitments have been made by the

State of Maryland or by its local govern-

DISTRICT OF COLUMBIA v. TRAIN 309

ments for the purchase of buses. This

statement, when taken in conjunction

with the commitments made by the Dis-

trict of Columbia and the Common-

wealth of Virginia, must be sufficient to

enable WMATA to purchase in the fiscal

year beginning the next July 1 the num-

ber of buses indicated below:

Fiscal Year 1975—175 buses

Fiscal Year 1976—150 buses

Fiscal Year 1977—150 buses

The statement shal! also indicate that

WMATA has in fact committed to pur-

chase that number of buses.

(h) With respect to the express bus

lane measure approved in § 52.1073:

(1) The State of Maryland shall no la-

ter than January 1, 1975, establish exclu-

sive bus lanes in the following corridors:

(i) U.S. Route 50 from New Carrollton

to the Maryland-District of Columbia

boundary.

(ii) Pennsylvania Avenue and Mary-

land Route 4 from Andrews Air Force

Base to the Maryland-District of Colum-

bia boundary.

(iii) U.S. Route 240 from Old George-

town Road to the Maryland-District of

Columbia boundary.

(iv) New Hampshire Avenue from

U.S. Route 29 to the Maryland-District

of Columbia boundary.

Such lanes shall be inbound during the

morning peak and outbound during the

evening peak periods.

(2) The State of Maryland shall sub-

mit to the Administrator, no later than

March 1, 1974, a schedule showing the

steps which it will take to establish ex-

clusive bus lanes in those corridors enu-

merated in paragraph (hX1) of this sec-

tion. Each schedule shall be subject to

approva! by the Administrator and shall

include as a minimum the following:

(i) Identification of streets or high-

ways that shall have portions designated

for exclusive bus lanes.

(ii) The date by which each street or

highway shall be designated.

(3) Exclusive bus lanes must be promi-

nently indicated by distinctively painted

lines, pylons, overhead signs, or physical

barriers.

(4) Application for substitution of a

corridor for any of those listed in para-

graph (h\1) of this section shall be made

by the State of Maryland for the Admin-

istrator’s approval no later than March 1,

1974.

§ 52.1089 Inspection and maintenance

program.

(a) Definitions:

(1) “Inspection and maintenance pro-

gram” means a program for reducing

emissions from in-use vehicles through

identifying vehicles that need emission

control-related maintenance and requir-

ing that such maintenance be performed.

(2) “Light-duty vehicle” means a gaso-

line-powered motor vehicle rated at 6,000

Id 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 gas-

oline-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 chapter are used herein with the

meanings so defined.

(b) This section is applicable within

the Maryland portion of the National

Capital Interstate AQCR.

(e) The State of Maryland shall estab-

lish an inspection and maintenance pro-

310 DISTRICT OF COLUMBIA v. TRAIN

gram applicable to all light-duty, medi-

um-duty, and heavy-duty vehicles regis-

tered in the area specified in paragraph

(b) of this section that operate on public

streets or highways over which it has

ownership or control. The State may

exempt any class or category of vehicles

that the State finds is rarely used on

public streets or highways (such as clas-

sic or antique vehicles). No later than

April 1, 1974, the State shall submit le-

gally adopted regulations to the Admin-

istrator establishing 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

leaded emission test.

(2) Provisions for inspection failure

criteria consistent with the failure of 30

percent of the vehicles in the first in-

spection cycle.

(3) Provisions to ensure that failed ve-

hicles receive within two weeks, the

maintenance necessary to achieve com-

pliance with the inspection standards.

These shall include sanctions against in-

dividual owners and repair facilities, re-

test of failed vehicles following mainte-

nance, use of a certification program to

ensure that repair facilities performing

the required maintenance have the nec-

essary equipment, parts, and knowledge-

able 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 en-

sure that vehicles are not intentionally

readjusted or modified subsequent to the

inspection and/or maintenance 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 penal-

ties for violation.

(5) Provisions for beginning the first

inspection cycle by August 1, 1975, and

completing it by July 31, 1976.

(6) Designation of an agency or agen-

cies responsible for conducting, oversee-

ing, and enforcing 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, medi-

um-duty, or heavy-duty vehicle that does

not comply with the applicable standards

and procedures adopted pursuant 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 opera-

tion of such vehicle that does not comply

with the applicable standards and proce-

dures adopted pursuant to paragraph (c)

of this section. This shall not apply to

the initial registration of a new motor

vehicle.

(f) The State of Maryland shall sub-

mit, no later than February 1, 1974, a

detailed compliance schedule showing the

steps it will take to establish and enforce

an inspection and maintenance program

pursuant to paragraph (c) of this section,

including:

(1) The text of needed statutory pro-

posals and regulations that it will pro-

pose for adoption.

(2) The date by which the State will

recommend needed legislation to the

State legislature.

(3) The date by which

equipment will be ordered.

(4) A signed statement from the Gov-

ernor or his designee identifying the

sources and amounts of funds for the

necessary

DISTRICT OF COLUMBIA v. TRAIN 311

program. If funds cannot legally be ob-

ligated under existing statutory authori-

ty, the text of needed legislation shall be

submitted.

§ 52.1090 Bicycle lanes and bicycle

storage facilities.

(a) Definitions:

(1) “Bicycle” means a two-wheel, non-

motor powered vehicle.

(2) “Bicycle lane” means a route for

the exclusive use of bicycles, either con-

structed specifically for that purpose or

converted from an existing lane.

(3) “Bicycle parking facility” means

any storage facility for bicycles, which

allows bicycles to be locked securely.

(4) “Parking space” means the area al-

located by a parking facility for the tem-

porary storage of one automobile.

(5) “Parking facility” means a lot, ga-

rage, building, or portion thereof, in or

on which motor vehicles are temporarily

parked.

(b) This section shall be applicable in

the State of Maryland portion of the Na-

tional Capital Interstate Air Quality

Control Region.

State of Maryland shall establish a net-

work of bicycle lanes linking residential

areas with employment, educational, and

commercial centers in accordance with

the following requirements:

(1) The network shall contain no less

than 60 miles of bicycle lanes in addition

to any in existence as of November 20,

1973.

(2) Each bicycle lane shall at a mini-

mum:

(i) Be clearly marked by signs indicat-

ing that the lane is for the exclusive use

of bicycles (and pedestrians, if neces-

sary);

(ii) Be separated from motor vehicle

traffic by appropriate devices, such as

physical barriers, pylons, or painted

lines;

(iii) Be regularly maintained and re-

paired;

(iv) Be of a hard, smooth surface suit-

able for bicycles;

(v) Be at least 5 feet wide for one-

way traffic, or 8 feet wide for two-way

traffic;

(vi) If in a street used by motor veni-

cles, be a minimum of 8 feet wide

whether one-way or two-way; and

(vii) Be adequately lighted.

(3) Off-street bicycle lanes which are

not reasonably suited for commuting to

and from employment, educational, and

commercial centers shall not be con-

sidered a part of this network.

(4) On or before October 1, 1974, the

State of Maryland shall establish 25 per-

cent of the total mileage of the bicycle

lane network; on or before June 1, 1975,

50 percent of the total mileage shall be

established; on or before July 1, 1976,

100 percent of the total mileage shall be

established.

(d) On or before June 1, 1974, the

State of Maryland shall submit to the

Administrator a comprehensive study of

a bicycle lane and bicycle path network.

The study shall include, but not be limit-

ed to the following:

(1) A bicycle user and potential user

survey, which shall at a minimum deter-

mine:

(i) For present bicycle riders, the ori-

gin, destination, frequency, travel time,

and distance of bicycle trips;

(ii) In high density employment areas,

the present modes of transportation of

employees and the potential modes of

transportation, including the number of

employees who would convert to the bi-

—

cycle mode from other modes upon com-

pletion of the bicycle lane network de-

scribed in paragraph (c) of this section.

(2) A determination of the feasibility

and location of on-street bicycle lanes.

(3) A determination of the feasibility

and location of off-street lanes.

(4) A determination of the special

problems related to feeder lanes to

bridges, on-bridge lanes, feeder lanes to

METRO and railroad stations, and feed-

er lanes to fringe parking areas, and the

means necessary to include such lanes in

the bicycle lane network described in

paragraph (c) of this section.

(5) A determination of the feasibility

and location of various methods of safe

(6) The study shall make provision for

the receipt of public comments on any

matter within the scope of the study,

including the location of the bicycle lane

network described in paragraph (c) of

this section.

(e) By June 1, 1974, in addition to the

comprehensive study required pursuant

to paragraph (d) of this section, the

State of Maryland shall submit to the

Administrator a detailed compliance

schedule showing the steps it will take to

establish this network pursuant to para-

graphs (c) and (g) of this section. The

compliance schedule shall identify in de-

tail the names of streets that will pro-

vide bicycle lanes and the location of any

lanes to be constructed especially for bi-

cycle use. It shall also include a state-

ment indicating the source, amount, and

adequacy of funds to be used in imple-

menting this section, and the text of any

needed statutory proposals and needed

regulations which will be proposed for

adoption.

(f) On or before October 1, 1974, the

State of Maryland shall submit to the

DISTRICT OF COLUMBIA v. TRAIN

Administrator legally adopted regula-

tions sufficient to implement and enforce

all of the requirements of this section.

(g) On or before June 1, 1975, the

State of Maryland shall require all own-

ers and operators of parking facilities

containing more than 50 parking spaces

(including both free and commercial fa-

cilities) within the area specified in para-

graph (b) of this section to provide

spaces for the storage of bicycles in the

following ratio: one automobile-sized

parking space (with a bicycle parking fa-

cility) for the storage of bicycles for ev-

ery 75 parking spaces for the storage of

autos.

(1) Bicycle parking facilities shall be

so located as to be safe from motor vehi-

cle traffic and secure from theft. They

shall be properly repaired and main-

tained.

(2) The METRO Subway System shall

provide a sufficient number of safe and

secure bicycle parking facilities at each

station to meet the needs of its riders.

(3) All parking facilities owned, oper-

ated, or leased by the Federal Govern-

ment shall be subject to this paragraph.

(4) Any owner or operator of a park-

ing facility which charges a fee for the

storage of motor vehicles shall store bi-

cycles at a price per unit per hour which

is no greater in relation to the cost of

storing them than is the price of parking

for a motor vehicle in relation to the cost

of storing it. Unless the owner or oper-

ator makes an affirmative showing to

the State of Maryland of different facts,

and agrees to charge in conformity with

that showing, the ratio in costs and

prices shall be determined by the maxi-

mum number of bicycles that can be

stored in a single standard-sized automo-

bile parking space.

DISTRICT OF COLUMBIA v. TRAIN

§ 52.1091 Medium-duty air/fuel control

retrofit.

(a) Definitions:

(1) “Air/Fuel Control Retrofit” means

a system or device (such as modification

to the engine’s carburetor or positive

crankcase ventilation system) that re-

sults in engine operation at an increased

air/fuel ratio so as to achieve reduction

in exhaust emissions of hydrocarbons

and carbon monoxide from 1973 and ear-

lier medium-duty vehicles of at least 15

and 30 percent, respectively.

(2) “Medium-duty vehicle” means a

gasoline powered motor vehicle rated at

more than 6,000 lb GVW and less than

10,000 lb GVW.

(3) All other terms used in this section

that are defined in Part 51, Appendix N,

of this chapter are used herein with

meanings so defined.

(b) This section is applicable within

the Maryland portion of the National

Capital Interstate AQCR.

lush a retrofit program to ensure that on

or before May 31, 1976, all medium-duty

vehicles of model years prior to 1973

which are not required to be retrofitted

with an oxidizing catalyst or other ap-

proved device pursuant to § 52.1098 of

this chapter, which are registered in the

area specified in paragraph (b) of this

section, are equipped with an appropri-

ate air/fuel control device or other de-

vice as approved by the Administrator

that will reduce exhaust emissions of hy-

drocarbons and carbon monoxide to the

same extent as an air/fuel control de-

vice. No later than February 1, 1974,

the State of Maryland shall submit to

the Administrator a detailed compliance

schedule showing the steps it will take to

establish and enforce a retrofit program

pursuant to this section, including the

text of statutory proposals, regulations,

and enforcement procedures that the

State proposes for adoption. The com-

pliance schedule shall also include a date

by which the State shall evaluate and

a 22 for use in this program.

u te s de no later

ber 30, 1974. ee

(d) No later than April 1, 1974, the

State shall submit legally adopted regu-

lations to the Administrator establishing

such a program. The regulations shall

include:

(1) Designation of an ney responsi-

ble for evaluating and 421 —

for use on vehicles subject to this sec-

tion.

2) Designation of any ageney respon-

sible for ensuring that the provisions of

paragraph (d. 3) of this section are en-

forced.

(3) Provisions for beginning the instal-

lation of the retrofit devices by August

1, 1975, and completing the installation

of the devices on all vehicles subject to

this section no later than May 31, 1976.

(4) A provision that no later than May

31, 1976, no vehicle for which retrofit is

required under this section shal! pass the

annual emission tests provided for by

§ 52.1089 unless it has been first

equipped with an approved air/fuel con-

trol device, or other device approved pur-

suant to this section, which the test has

shown to be installed and operating cor-

rectly. The regulations shall include test

procedures and failure criteria for imple-

menting this provision.

(5) Methods and procedures for ensur-

ing that those persons installing the ret-

rofit devices have the training and abili-

ty to perform the needed tasks satisfac-

torily and have an adequate supply of

retrofit components.

(6) Provision (apart from the require-

ments of any general program for peri-

314 DISTRICT OF COLUMBIA v. TRAIN

odic inspection and maintenance of vehi-

cles) for emissions testing at the time of

device installation or some other positive

assurance that the device is installed and

operating correctly.

(e) After May 31, 1976, the State shall

not register or allow to operate on its

streets or highways any vehicle that does

not comply with the applicable standards

and procedures adopted pursuant to

paragraph (d) of this section.

(f) After May 31, 1976, no owner of a

vehicle subject to this section shall oy er-

ate or allow the operation of any such

vehicle that does not comply with the

applicable standards and procedures im-

plemented by this section.

(g) The State may exempt an

category of vehicles — this —ͤ

which the State finds is rarely used on

public streets and highways (such as

classic or antique vehicles) or for which

the State demonstrates to the Adminis-

trator that air/fuel control devices or

other devices approved pursuant to this

section are not commercially available.

§ 52.1092 Heavy-duty air/f

. ir / fuel control

(a) Definitions:

(1) Air / Fuel Control Retrofit” means

a system or device (such as modification

to the engine’s carburetor or positive

crankcase ventilation system) that re-

sults in engine operation at an increased

air-fuel ratio so as to achieve reduction

in exhaust emissions of hydrocarbon and

. * from heavy-duty vehi-

cies of at least

— 30 and 40 percent, respec-

(2) “Heavy-duty vehicle” means a gas-

oline-powered motor vehicle rated at 10,-

000 Ib gross vehicle wei

4. eight (GVW) or

(3) All other terms used in this secti

that are defined in Part 51, —

are used herein wi i

po Re, with meanings so

(b) This section is applicable within

the Maryland portion of the National

Capital Interstate ACR.

(e) The State of Maryland shall estab-

lish a retrofit program to ensure that on

or before May 31. 1977, all heavy-duty

vehicles registered in the areas spec fied

in paragraph (b) of this section are

equipped with an appropriate air/fuel

control retrofit or other device as ap-

proved by the Administrator that will

reduce exhaust emissions of hydrocar-

bons and carbon monoxide at least to the

same extent as an air/fuel control retro-

fit. No later than April 1, 1974, the

State of Maryland shall submit to the

Administrator a detailed compliance

schedule showing the steps it will take to

establish and enforce a retrofit program

pursuant to this section, including the

text of statutory proposals, regulations

and enforcement procedures that the

State proposes for adoption. The com-

pliance schedule shall also include a date

by which the State shall evaluate and

approve devices for use in this program

Such date shall be no late

2 ater than January

(d) No later than Se

ptember 1, 1974,

the State shall submit legally adopted

regulations to the Administrator estab-

lishing such a program. Th ;

(1) Designation of an agency responsi-

ble for evaluating and approving devices

for use on vehicles subject to this sec-

tion.

(2) Designation of an agency responsi-

ble for ensuring that the provisions of

— (d 3) of this section are en-

(3) Provisions for beginning the instal-

lation of the retrofit devices by January

DISTRICT OF COLUMBIA v. TRAIN 315

1, 1976, and completing the installation

of the device on all vehicles subject to

this section no later than May 31, 1977.

(4) A provision that starting no later

than May 31, 1977, no vehicle for which

retrofit is required under this section

shall pass the annual emission tests pro-

vided for by § 52.1089 unless it has been

first equipped with an approved air/fuel

control retrofit, or other device approved

pursuant to this section, which the test

has shown to be installed and operating

correctly. The regulations shall include

test procedures and failure criteria for

implementing this provision.

(5) Methods and procedures for ensur-

ing that those installing the retrofit de-

vices have the training and ability to

perform the needed tasks satisfactorily

and have an adequate supply of retrofit

components.

(6) Provision (apart from the require-

ments of any general program for peri-

odie inspection and maintenance of vehi-

cles) for emissions testing at the time of

device installation or some other positive

assurance that the device is installed and

operating correctly.

(e) After May 31, 1977, the State shall

not register or allow to operate on its

streets or highways any vehicle that does

not comply with the applicable standards

and procedures adopted pursuant to

paragraph (d) of this section.

(f) After May 31, 1977, no owner of a

vehicle subject to this section shall oper-

ate or allow the operation of any such

vehicle that does not comply with the

applicable standards and procedures im-

plementing this section.

(g) The State may exempt any class or

category of vehicles from this section

which the State finds is rarely used on

public streets and highways (such as

classic or antique vehicles) or for which

the State demonstrates to the Adminis-

trator that air/fuel control retrofits or

other devices approved pursuant to this

section are not commercially available.

§ 52.1093 Oxidizing catalyst retrofit.

(a) Definitions:

(1) “Oxidizing catalyst” means a de-

vice that uses a catalyst installed in the

exhaust system of a vehicle (and if nec-

essary includes an air pump) so as to

achieve a reduction in exhaust emissions

of hydrocarbon and carbon monoxide of

at least 50 and 50 percent, respectively,

from light duty vehicles of 1971 through

1975 model years, and of at least 50 and

50 percent, respectively, from medium

duty vehicles of 1971 through 1975 model

years.

(2) “Light-duty vehicle” means a gaso-

line-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) “Fleet vehicle” means any of 5 or

more light duty vehicles operated by the

same person(s), business, or governmen-

tal entity and used principally in connec-

tion with the same or related occupa-

tions or uses. This definition shall also

include any taxicab (or other light duty

vehicle-for-hire) owned by any individual

or business.

(5) All other terms used in this section

that are defined in Part 51, Appendix N,

of this chapter are used herein with

meanings so defined.

(b) This section is applicable within

the Maryland portion of the National

Capital Interstate AQCR.

lish a retrofit program to ensure that on

or before May 31, 1977, all light-duty

fleet vehicles of model years 1971

316 DISTRICT OF COLUMBIA v. TRAIN

through 1975, and all medium-duty vehi-

cles of model years 1971 through 1975

which are registered in the area speci-

fied in paragraph (b) of this section and

are able to operate on 91 RON gasoline

are equipped with an appropriate oxidiz-

ing catalyst retrofit device, or other de-

vice, as approved by the Administrator,

that will reduce exhaust emissions of hy-

drocarbons and carbon monoxide to the

same extent as an oxidizing catalyst ret-

rofit device. No later than April 1, 1974,

the State of Maryland shall submit to

the Administrator a detailed compliance

schedule showing the steps it will take to

establish and enforce a retrofit program

pursuant to this section, including the

text of statutory proposals, regulations,

and enforcement procedures that the

State proposes for adoption. The com-

pliance schedule shall also include a date

by which the State shall evaluate and

approve devices for use in this program.

Such data shall be no later than January

1, 1975.

(d) No later than September 1, 1974,

the State shall submit legally adopted

regulations to the Administrator estab-

lishing such a program. The regulations

shall include:

(1) Designation of an agency responsi-

ble for evaluating and approving devices

for use on vehicles subject to this sec-

tion.

(2) Designation of an agency responsi-

ble for ensuring that the provisions of

paragraph (dX3) of this section are en-

forced.

(3) Provisions for beginning the instal-

lation of the retrofit devices by January

1, 1976, and for completing the installa-

tion of the devices on all vehicles subject

to this section no later than May 31,

1977.

(4) A provision that starting no later

than May 31, 1977, no vehicle for which

retrofit is required under this section

shall pass the annual emission tests pro-

vided for by § 52.1089 unless it has been

first equipped with an approved oxidiz-

ing catalyst device, or other device ap-

proved pursuant to this section, which

the test has shown to be installed and

operating correctly. The regulations

shall include test procedures and failure

criteria for implementing this provision.

(5) Methods and procedures for ensur-

ing that those installing the retrofit de-

vices have the training and ability to

perform the needed tasks satisfactorily

and have an adequate supply of retrofit

components.

(6) Provision (apart from the require-

ments of any general program for peri-

odie inspection and maintenance of vehi-

cles) for emissions testing at the time of

device installation, or some other positive

assurance that the device is installed and

operating correctly.

(e) After May 31, 1977, the State shall

not register or allow to operate on its

streets or highways any vehicle that does

not comply with the applicable standards

and procedures adopted pursuant to

paragraph (d) of this section.

(f) After May 31, 1977, no owner of a

vehicle subject to this section shall oper-

ate or allow the operation of any such

vehicle that does not comply with the

applicable standards and procedures im-

plementing this section.

(g) Any vehicle which is manufactured

equipped with an oxidizing catalyst, or

which is certified to meet the original

1975 light duty vehicle emissions stan-

dards set forth in section 202(b)(1)a) of

the Clean Air Act of 1970 (without re-

gard to any suspension of such stan-

dards), shall be exempt from the require-

ments of this section.

—ä — ñ ꝗqUX¶ĩꝗũʒ — —

DISTRICT OF COLUMBIA v. TRAIN 317

§ 52.1094 Vacuum spark advance dis-

connect retrofit.

(a) Definitions:

(1) “Vacuum spark advance disconnect

retrofit” means a device or system in-

stalled on a motor vehicle that prevents

the ignition vacuum advance from ober-

ating either when the vehicle’s transmis-

sion is in the lower gears, or when the

vehicle is traveling below a predeter-

mined speed, so as to achieve reduction

in exhaust emissions of hydrocarbon and

carbon monoxide from 1967 and earlier

light-duty vehicles of at least 25 and 9

percent, respectively.

(2) “Light-duty vehicle” means a gaso-

line-powered motor vehicle rated at 6,000

lb gross vehicle weight (GVW) or less.

(3) All other terms used in this section

that are defined in Part 51, Appendix N,

of this chapter are used herein with

meanings so defined.

(b) This section is applicable within

the Maryland portion of the National

Capital Interstate AQCR.

lish a retrofit program to ensure that on

or before January 1, 1976, all light-duty

vehicles of model years prior to 1968 reg-

istered in the area specified in paragraph

(b) of this section are equipped with an

appropriate vacuum spark advance dis-

connect retrofit device or other device,

as approved by the Administrator, that

will reduce exhaust emissions of hydro-

carbons and carbon monoxide at least to

the same extent as a vacuum spark ad-

vance disconnect retrofit. No later than

February 1, 1974, the State of Maryland

shall submit to the Administrator a de-

tailed compliance schedule showing the

steps it will take to establish and enforce

a retrofit program pursuant to this sec-

tion, including the text of statutory pro-

posals, regulations, and enforcement pro-

cedures that the State proposes for

adoption. The compliance schedule shall

also include a date by which the State

shall evaluate and approve devices for

use in this program. Such date shall be

no later than September 30, 1974.

(d) No later than April 1, 1974, the

State shall submit legally adopted regu-

lations to the Administrator establishing

such a program. The regulations shall

include:

(1) Designation of an agency responsi-

ble for evaluating and approving devices

for use on vehicles subject to this sec-

tion.

(2) Designation of an agency responsi-

ble for ensuring that the provisions of

paragraph (dX3) of this section are en-

forced.

(3) Provisions for beginning the instal-

lation of the retrofit devices by January

1, 1975, and completing the installation

of the devices on all vehicles subject to

this section no later than January 1.

1976.

(4) A provision that starting no later

than January 1, 1976, no vehicle for

which retrofit is required under this sec-

tion shall pass the annual emission tests

provided for § 52.1089 unless it has been

first equipped with an approved vacuum

spark advance disconnect retrofit device,

or other device approved pursuant to

this section, which the test has shown to

be installed and operating correctly.

The regulations shall include test proce-

dures and failure criteria for implement-

ing this provision.

(5) Methods and procedures for ensur-

ing that those installing the retrofit de-

vices have the training and ability to

perform the needed tasks satisfactorily

and have an adequate supply of retrofit

components.

(6) Provision (apart from the require-

ments of any general program for peri-

318 DISTRICT OF COLUMBIA v. TRAIN

odic inspection and maintenance of vehi-

cles) for emissions testing at the time of

device installation or some other positive

assurance that the device is installed and

operating correctly.

(e) After January 1, 1976 the State

shall not register or allow to operate on

its streets or highways any light-duty

vehicle that does not comply with the

applicable standards and procedures

adopted pursuant to paragraph (d) of

this section.

(f) After January 1, 1976, no owner of

a vehicle subject to this section shall op-

erate or allow the operation of any such

vehicle that does not comply with the

applicable standards and procedures im-

plementing this section.

(g) The State may exempt any class or

category of vehicles from this section

which the State finds is rarely used on

public streets and highways (such as

classic or antique vehicles) or for which

the State demonstrates to the Adminis-

trator that vacuum spark advance dis-

connect devices or other devices ap-

proved pursuant to this section are not

commercially available.

Subpart VV—Virginia

§ 52.2435 Compliance schedules.

(e) With respect to the measure for

increased bus fleet and service approved

in § 52.2423. The Commonwealth of

Virginia shall no later than January 31,

1974, submit a compliance schedule to

put the program in effect. The compli-

ance schedule shall, at a minimum, pro-

vide that the Commonwealth of Virginia

shall, on or before March 1, 1974, submit

to the Administrator a statement, signed

both by a representative of the Common-

wealth of Virginia and by a representa-

tive of the Washington Metropolitan

Area Transit Authority (WMATA) indi-

cating that, in the judgment of both of

them, financial commitments have been

made by the Commonwealth of Virginia

or by its local governments for the pur-

chase of buses. This statement, when

taken in conjunction with the commit-

ments made by the District of Columbia

and the State of Maryland must be suf-

ficient to enable WMATA to purchase in

the fiscal year beginning the next July 1

the number of buses indicated below:

Fiscal Year 1975—175 buses

Fiscal Year 1976—150 buses

Fiscal Year 1977—150 buses

The statement shall also indicate that

WMATA has in fact committed to pur-

chase that number of buses.

(f) With respect to the express bus

lane measure approved in § 52.2423:

(1) The Commonwealth of Virginia

shall no later than January 1, 1975, es-

tablish exclusive bus lanes in the follow-

ing corridors:

(i) George Washington Parkway—

Washington Street—Jefferson Davis

Highway from Fort Hunt to National

Airport.

(ii) U.S. Route 50 from Seven Corners

to the Virginia-District of Columbia

boundary.

Such lanes shall be inbound during the

morning peak period and outbound dur-

ing the evening peak period.

(2) The Commonwealth of Virginia

shall submit to the Administrator, no la-

ter than March 1, 1974, a schedule show-

ing the steps which it will take to estab-

lish exclusive bus lanes in those corridors

enumerated in paragraphe(f\1) of this

section. Each schedule shall be subject

to approval by the Administrator and

shall include as a minimum the follow-

ing:

—U p — ů¶ —— d

DISTRICT OF COLUMBIA v. TRAIN 319

(i) Identification of streets or high-

ways that shall have portions designated

for exclusive bus lanes.

(ii) The date by which each street or

highway shall be designated.

(3) Exclusive bus lanes must be promi-

nently indicated by distinctively painted

lines, pylons, overhead signs, or physical

barriers.

(4) Application for substitution of a

corridor for any of those listed in para-

graph (fX1) of this section shall be made

by the Commonwealth of Virginia for

the Administrator’s approval no later

than March 1, 1974.

§ 52.2441 Inspection and maintenance

program.

(a) Definitions:

(1) “Inspection and maintenance pro-

gram” means a program for reducing

emissions from in-use vehicles through

identifying vehicles that need emission

control related maintenance and requir-

ing that such maintenance be performed.

(2) “Light-duty vehicle” means a gaso-

line-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 gas-

oline-powered motor vehicle rated at 10,-

000 Ib GVW or more.

(5) All other terms used in this section

that are defined in Part 51, Appendix N,

are used herein with the meanings so

defined.

(b) This section is applicable within

the Virginia portion of the National Cap-

ital Interstate AQCR.

vehicle inspection and maintenance pro-

gram for the area specified in paragraph

(b) of this section approved by the Ad-

ministrator pursuant to § 52.2423, the

Commonwealth of Virginia shall estab-

lish an inspection and maintenance pro-

gram applicable to all medium-duty and

heavy-duty vehicles registered in any

area specified in paragraph (b) of this

section that operate on public streets or

highways over which it has ownership or

control. The Commonwealth may ex-

empt any class or category of vehicles

that the Commonwealth finds is rarely

used on public streets or highways (such

as classic or antique vehicles). No later

than April 1, 1974, the Commonwealth

shall submit legally adopted regulations

to the Administrator establishing such a

program. The regulations shall include:

(1) Provisions for inspection of all me-

dium-duty and heavy-duty motor vehi-

cles at periodic intervals no more than 1

year apart by means of an idle emission

test.

(2) Provisions for inspection failure

criteria consistent with the failure of 30

percent of the vehicles in the first in-

spection cycle.

(3) Provisions to ensure that failed ve-

hicles receive, within two weeks, the

maintenance necessary to achieve com-

pliance with the inspection standards.

These shall include sanctions against in-

dividual owners and repair facilities, re-

test of failed vehicles following mainte-

nance, use of a certification program to

ensure that repair facilities performing

the required maintenance have the nec-

essary equipment, parts, and knowledge-

able 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 en-

sure that vehicles are not intentionally

readjusted or modified subsequent to the

inspection and/or maintenance in such a

— un ! «⁵ῳu:A⁰

320 DISTRICT OF COLUMBIA v. TRAIN

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 penal-

ties for violation.

(5) Provisions for beginning the first

inspection cycle by January 1, 1975, and

completing it by January 1, 1976.

(6) Designation of an agency or agen-

cies responsible for conducting, oversee-

ing, and enforcing the inspection and

maintenance program.

(d) After January 1, 1976, the Com-

monwealth shall not register or allow to

operate on public streets or highways

any medium-duty or heavy-duty vehicle

that does not comply with the applicable

standards and procedures adopted pur-

suant to paragraph (c) of this section.

This shall not apply to the initial regis-

tration of a new motor vehicle.

(e) After January 1, 1976, no owner of

a medium-duty or heavy-duty vehicle

shall operate or ellow the operation of

such vehicle that does not comply with

the applicable standards and procedures

adopted pursuant to paragraph (c) of

this section. This shall not apply to the

initial registration of a new motor vehi-

cle.

(f) The Commonwealth of Virg

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