Opposition — Mountain States Legal Foundation v. Costle

No. 80-1084

IN THE

Supreme Court of the Wnited States

October Term, 1980

MOwuNTAIN STATES LEGAL FOUNDATION, et al.,

Petitioners,

versus

DouG.as M. CosTLe, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MEMORANDUM OF THE STATE OF

COLORADO OPPOSING CERTIORARI

J. D. MacFARLANE

Attorney General

RICHARD F. HENNESSEY

Deputy Attorney General

MARY J. MULLARKEY

Solicitor General

JANICE L. BURNETT

Assistant Attorney General

Natural Resources Section

LAWRENCE A. DeCLAIRE

Assistant Attorney General

Natural Resources Section

Attorneys for State of Colorado

1525 Sherman Street, 3d Floor

Denver, Colorado 80203

Telephone: 839-3611

TABLE OF AUTHORITIES

Cases

Page

DeFunis v. Odegaard, 416 U.S. 312 (1974) ................ 3

ee GPL, Pe CREME <5 on ee ana be Wenn 3

Statutes

Page

C.R.S. 1973, article 4 of title 42, 1980

nc es I A ek vc keane Sbiessewawen 3

I oon) hig ek ad oA eb Le CA ee 2

ee ED, ig vals ska sena thc beuwes pau Mme 2

eee ee OE PR 6 ods ccc swenessee uae eas 2-3

ee ar es Ee I BUONO canes ew b0 eee en keaee bees cade 3

Other

Page

ee ee ec, SR a PR 2

Ng a ca an «kA ek en de kvm ee nan 2

Oe Fe. es ery SO CUPP O evi eae e teen cwenwawn 2

an ga aes 6ks sa week a Meee kee Wi 3

ee es PI OOD a ok eke i hice e ds dean eweceen 3

Se Te. TU, FO es PE TAD ones sane en enatanesvensy 2

]

No. 80-1084

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1980

MOUNTAIN STATES LEGAL FOUNDATION, A non-profit cor-

poration on behalf of its members who are citizens of the State of

Colorado; THE FOLLOWING MEMBERS OF THE SENATE

AND HOUSE OF REPRESENTATIVES OF THE STATE OF

COLORADO IN THEIR RESPECTIVE OFFICIAL CAPACITIES

AS INDIVIDUALLY ELECTED LEGISLATORS OF THE STATE

OF COLORADO: Senator FRED E. ANDERSON; Senator DAN

D. NOBLE; Senator L. DUANE WOODARD; Senator DONALD

A. SANDOVAL; Representative ROBERT F. BURFORD: Repre-

sentative JOHN G. HAMLIN; Representative W.H. (BILL)

BECKER; Representative BOB LEON KIRSCHT; Representative

CARL B. BLEDSOE; Representative C. MICHAEL CALLIHAN;:

Senator RALPH A. COLE; Representative FRANK DE FILIPPO;

Representative STEVEN J. DURHAM; Representative CARL H.

GUSTAFSON; Representative WILLIAM F. HILSMEIER; Sena-

tor DON MacMANUS; Representative JOHN R. McELDERRY;:

Representative RAY POWERS: Representative FRANK H. RAN-

DALL; Representative PAUL D. SCHAUER; Representative BEV

SCHERLING; Representative JAMES M. SHEPARD; Repre-

sentative CARL E. SHOWALTER; Representative A. J. (MICK)

SPANO; Representative KATHY SPELTS; Representative NICK

THEOS; and the STATE OF COLORADO ex rel. MOUNTAIN

STATES LEGAL FOUNDATION,

Petitioners,

V.

DOUGLAS M. COSTLE, in his official capacity as Administrator

of the UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY; ROGER L. WILLIAMS in his official capacity as Re-

gional Administrator of Region VIII of the UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY: AND THE STATE

OF COLORADO ex rel. J. D. MacFARLANE,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MEMORANDUM OF THE STATE OF COLORADO

OPPOSING CERTIORARI

For the reasons discussed in this memorandum, the Siate of

Colorado respectfully requests that the petition for writ of cer-

tiorari be denied because the issues presented are moot.

This case arose out of the petition of Mountain States Legal

Foundation and others to the Tenth Circuit Court of Appeals

pursuant to section 307 of the Clean Air Act, 42 U.S.C. §7607,

for judicial review of final rulemaking of the United States

Environmental Protection Agency (EPA) conditionally approv-

ing portions of Colorado’s State Implementation Plan (SIP) on

October 5, 1979 (44 Fed. Reg. 57401(1979)) (See Pet. 3la-

50a).

As part of said final rulemaking, EPA granted conditional

approval to the Denver element of the Colorado SIP as pertains

to control strategies for ozone and to the Denver, Colorado

Springs, and Larimer-Weld elements of the SIP as pertain to

control strategies for carbon monoxide on condition that the

plan be revised to include ‘‘an adequate vehicle emissions con-

trol inspection/maintenance program’”’. 44 Fed. Reg. 57410

(1979). Elsewhere in the same Federal Register, EPA proposed

deadlines by which various conditions would have to be met to

secure approval of those elements of the SIP which had received

conditional approval. These proposed deadlines included a

March 1, 1980 date for submission to EPA of legislation and

schedules for implementation of an adequate vehicle emissions

control inspection/maintenance program. 44 Fed. Reg. 57427,

57428 (1979). The proposed deadline of March 1, 1980 for

submission of an inspection/maintenance program was final-

ized by EPA rulemaking on February 5, 1980. 45 Fed. Reg.

7801, 7802 (1980).

The State of Colorado failed to meet the March 1, 1980

deadline. On March 14, 1980, EPA published a final rule

(1) disapproving the ozone (Denver) and carbon monoxide

(Denver, Colorado Springs, and Larimer-Weld) control por-

tions of the Colorado SIP and (2) imposing (a) resirictions on

construction of major new or modified stationary sources in the

affected ozone and carbon monoxide non-attainment areas

pursuant to section 110(a)(2)(I) of the Clean Air Act, 42 U.S.C.

§7410(a)(2)(I), and (b) a limitation of certain federal assistance

under sections 176(a) and 316 of the Act, 42 U.S.C. §§7506(a) and

3

7616. On March 13, 1980 at the hearing on the petition for

review of the October 5, 1979 rulemaking, the court below

stayed EPA enforcement of such ‘‘sanctions”’ until May 2, 1980.

In response to the court’s order, EPA amended its final rule to

postpone the effective date of its March 14, 1980 action until

May 2, 1980 (45 Fed. Reg. 21634 (April 2, 1980)), when the

sanctions took effect.

On May 7, 1980, the Colorado General Assembly adopted

Senate bill 52 (codified as part of article 4 of title 42, C.R.S.

1973; 1980 Colo. Sess. Laws, ch. 169) establishing an inspec-

tion/maintenance program for Colorado. On May 23, 1980

Governor Richard D. Lamm signed the bill into law and on May

29, 1980, the state submitted the bill to EPA together with

supporting documentation, including detailed schedules for im-

plementation.

After reviewing the submittal, on July 10, 1980 (effective

July 16, 1980), EPA approved the automobile exhaust emis-

sions control program for inclusion in the Colorado SIP and

removed the federal funding and stationary source construction

restrictions. 45 Fed. Reg. 47682-85 (July 16, 1980). The July 16,

1980 EPA rulemaking is included herein as Appendix A.

The issues raised by petitioners no longer present ‘‘a live

controversy.’’ Colorado has adopted an automobile exhaust

emissions control inspection/maintenance program and EPA

has approved that program as meeting the requirements of

section 172(b)(11)(B) of the Clean Air Act, 42 U.S.C.

§7502(b)(11)(B), and has acted to (unconditionally) approve

the Colorado SIP and to remove sanctions. The State of Colo-

rado is not now subject to sanctions nor is it subject to having to

meet any conditions in order to avoid the imposition of sanc-

tions. Because they are no longer live, the issues concerning the

propriety of EPA’s October 5, 1979 conditional approval of the

Colorado SIP and imposition of sanctions under the Clean Air

Act are moot. Sosna v. lowa, 419 U.S. 393 (1975); DeFunis v.

Odegaard, 416 U.S. 312 (1974).

Therefore, the petition for a writ of certiorari should be

denied.

Respectfully submitted,

J. D. MacFARLANE

Attorney General

RICHARD F. HENNESSEY

Deputy Attorney General

4

MARY J. MULLARKEY

Solicitor General

JANICE L. BURNETT

Assistant Attorney General

Natural Resources Section

LAWRENCE A. DeCLAIRE

Assistant Attorney General

Natural Resources Section

Attorneys for State of Colorado

1525 Sherman Street, 3d Floor

Denver, Colorado 80203

Telephone: 839-3611

la

APPENDIX A

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL 1539-2]

Approval and Promulgation of State

Implementation Plans; Colorado

AGENCY: Environmental Protection Agency.

ACTION: Final Rule.

SUMMARY: Effective May 2, 1980 (45 FR 16486 and 45

FR 21634), the carbon monoxide and ozone portions of the

Colorado State Implementation Plan (SIP) were disapproved by

the Environmental Protection Agency (EPA) because of the

State’s failure to adopt and submit an acceptable automobile

exhaust emissions control program. This disapproval action

invoked the stationary source construction restrictions required

by Section 110(a)(2)(1) of the Clean Air Act. At the same time,

EPA began exercising its authority under Sections 176(a) and

316 of the Act to withhold certain federal assistance from the

affected nonattainment areas.

On May 29, 1980, the Governor submitted written evi-

dence of the State’s legal authority to implement and enforce an

automobile emissions control program as well as schedules for

implementing that program and a demonstration that it will

achieve a 25% reduction in exhaust emissions by 1987. Today,

EPA is approving this element of the SIP and is removing the

funding and construction restrictions which are currently in

effect.

EFFECTIVE DATE: July 16, 1980.

Under Section 307(b)(1) of the Clean Air Act, judicial

review of this final rulemaking is available on/y by the filing of a

petition for review in the United States Court of Appeals for the

appropriate circuit by September 15, 1980. Under Section

307(b)(2) of the Clean Air Act, the requirements which are the

2a

subject of today’s notice may not be challenged later in the civil

or criminal proceedings brought by EPA to enforce these re-

quirements.

FOR FURTHER INFORMATION CONTACT: Robert R. De-

Spain, Chief, Air Programs Branch, Environmental Protection

Agency, 1860 Lincoln Street, Denver, Colorado 80295, (303)

837-3471.

SUPPLEMENTARY INFORMATION: EPA finds good cause

exists for making the action taken in this notice immediately

effective for the following reasons: (1) implementation plan

revisions are already in effect under state law and EPA poses no

additional regulatory burden, (2) EPA has a responsibility under

the Act to take final action on the portion of the SIP which

addresses Part D requirements by July 1, 1979, or as soon

thereafter as possible, and (3) this action removes federal fund-

ing and construction restrictions which have been in effect in

certain nonattainment areas in Colorado since May 2, 1980.

Background

On January 2, 1979, the Governor of Colorado submitted a

State Implementation Plan (SIP) revision in response to the

requirements of Part D of the Clean Air Act (the ‘‘Act’’), as

amended in 1977. In general, the SIP is required to provide for

the attainment and maintenance of the national ambient air

quality standards for all areas which have been designated

‘“nonattainment” pursuant to Section 107 of the Act. A critical

portion of the control strategy for attainment and maintenance

of the carbon monoxide and ozone standards, in portions of

Colorado, is the implementation of an inspection and mainte-

nance program. “‘Inspection/Maintenance” (I/M) refers to a

program whereby motor vehicles receive periodic inspections to

assess the functioning of their exhaust emission control systems.

Vehicles which have excessive emissions must then undergo

mandatory maintenance. Generally, I/M programs include pas-

senger cars, although other classes can be included as well.

Noncomplying vehicles can be prohibited from operating by

requiring proof of compliance to purchase license plates or to

register a vehicle. In certain cases, a windshield sticker system

can be used, much like many safety inspection programs.

Section 172 of the Clean Air Act requires that State Imple-

mentation Plans which include nonattainment areas meet cer-

tain criteria. These criteria have been discussed in detail in the

General Preamble for Proposed Rulemaking on Approval of

Plan Revisions for Nonattainment Areas, 44 FR 20377 (April 4,

3a

1979), and its various supplements, 44 FR 38583 (July 2, 1979),

44 FR 50371 (August 28, 1979), and 44 FR 53761 (September

17, 1979), and 44 FR 67182 (November 23, 1979). For areas

which demonstrate that they will not be able to attain the

ambient air quality standards for ozone or carbon monoxide by

the end of 1982, despite the implementation of all reasonably

available measures, an extension up to 1987 may be granted. In

such cases, Section 172(b)(11)(B) requires that: “the plan pro-

visions shall establish a specific schedule for implementation of

a vehicle emission control inspection and maintenance pro-

gram. ..’’ In Colorado the areas which are required to have an

I/M program are portions of Larimer, Weld, Adams, Arapahoe

and El Paso Counties, and the Counties of Denver, Boulder,

Douglas, and Jefferson.

EPA issued guidance on February 24, 1978, on the general

criteria for SIP approval including I/M, and on July 17, 1978,

regarding the specific criteria for I/M SIP approval. Both of these

items are part of the SIP guidance material referred to in the

General Preamble for Proposed Rulemaking (44 FR 20372,

20373, n 6). Although the July 17, 1978, guidance should be

consulted for details, the key elements for I/M SIP approval are

as follows:

Legal Authority. States or local governments must have

adopted the necessary statutes, regulations, ordinances, etc., to

implement and enforce the inspection/maintenance program.

(Section 172(b)(10).)

Commitment. The appropriate governmental unit(s) must

be committed to implement and enforce the I/M program. (Sec-

tion 172(b)(10).)

Resources. The necessary finances and resources to carry

out the I/M program must be identified and committed. (Section

172(b)(7).)

Schedule. A specific schedule to esstablish the /M program

must be included in the State Implementation Plan. (Section

172(b)(11)(B).) Interim milestones are specified in the July 17,

1978, memorandum in accordance with the general require-

ment of 40 CFR 51.15(c).

Program effectiveness. As set forth in the July 17, 1978,

guidance memorandum, the I/M program must achieve a 25%

reduction in passenger car exhaust emissions of hydrocarbons

and a 25% reduction for carbon monoxide. This reduction is

measured by comparing the levels of emissions projected to

December 31, 1987, with and without the I/M program. This

policy is based on Section 172(b)(2) which states “the plan

«

4a

provisions ... shall ... provide for the implementation of all

reasonably available control measures... .

Specific detailed requirements of these five provisions are

discussed below:

To be acceptable, I/M legal authority must be adequate to

implement and effectively enforce the program and must not be

conditioned upon further legislative approval or any other sub-

stantial contingency. However, the legislation can delegate cer-

tain decision making to an appropriate regulatory body. For

example, a state department of environmental protection or

department of transportation may be charged with im-

plementing the program, selecting the type of test procedure as

well as the type of program to be used, and adopting all neces-

sary rules and regulations. I/M legal authority must be included

with any plan revision which must include i/M (i.e., a plan

which establish an attainment date beyond December 31, 1982)

unless approved extension to certify legal authority is granted by

EPA. The granting of such an extension, however, is an excep-

tional remedy to be utilized only when a state legislature has had

no opportunity to consider enabling legislation.

Written evidence is also required to establish that the

appropriate governmental bodies are ““committed to implement

and enforce the appropriate elements of a plan.”’ (Section

172(b)(10).) Under Section 172(b)(7), supporting commit-

ments for the necessary financial and manpower resources are

also required.

A specific schedule to establish an inspection/maintenance

program is required. (Section 172(b)(11)(B).) The July 17,

1978, guidance memorandum established as EPA policy the key

milestones for the implementation of various I/M programs.

These milestones were the general SIP requirement for com-

pliance codified at 40 CFR 51.15(c). This section requires that

increments of progress be incorporated for compliance sched-

ules of over one year in length.

To be acceptable an I/M program must achieve the requisite

25% reductions in both hydrocarbons and carbon monoxide

exhaust emissions from passenger cars by the end of calendar

year 1987. The Act mandates “Implementation of all reasonably

available control measures as expeditiously as practicable.”’

(Section 172(b)(2).) At the time of passage of the Clean Air Act

Amendments of 1977, several inspection/maintenance pro-

grams were already operating. Mandatory programs in New

Jersey and Arizona provide for a stringency of approximately

20%. (The stringency of a program is defined as the initial

5a

proportion of vehicles which would have failed the program’s

standards if the affected fleet had not undergone I/M before.

Because some motorists tune their vehicles before I/M tests, the

actual proportion of vehicle failing is usually a smaller number

than the stringency of the program.) Depending on the program

type (private garage or centralized inspection) a mandatory I/M

program may be implemented as late as December 31, 1982,

and the attainment date may be as late as December 31, 1987.

Based on an implementation date of December 31, 1982, and a

20% stringency factor, EPA predicts the reductions of both CO

and HC exhaust emissions of 25% can be achieved by December

31, 1987. Earlier implementation of I/M will produce greater

emission reductions. Thus, because of the Act’s requirement for

the implementation of all reasonably available control measures

and because New Jersey and Arizona have effectively demon-

strated practical operation of I/M programs with a 20% stringen-

cy factor, itis EPA policy to use a 25% emission reduction as the

criterion to determine compliance of the I/M portion with Sec-

tion 172(b)(2).

In an October 5, 1979, final rulemaking on the Colorado

SIP (44 FR 57401), EPA stated that the State of Colorado had

satisfied the condition for an extension of the deadline for certi-

fication of adequate legal authority for a motor vehicle exhaust

emissions control program. The reason for the extension was

confusion during the 1979 legislative session over the approva-

bility of the Bill under consideration. During the closing days of

the 1979 Legislative Session, some of the legislators misunder-

stood whether EPA could approve the program established in

Senate Bill 1 which included a commitment to study alternative

approaches to controlling motor vehicle exhaust emissions and

pass appropriate additional legislation by March 1, 1980, to

meet requirements in the Clean Air Act. Senate Bill 1 also

established a motor vehicle exhaust emissions control program

which would go into effect automatically if the Legislature did

not adopt additional legislation by March |, 1980. However, in

the October 5, 1979, rulemaking EPA indicated that the pro-

gram established in Senate Bill 1 was not acceptable and noted

specific deficiencies (44 FR 57404-57405). EPA conditionally

approved this element of the SIP with the provision that the

State certify and submit to EPA by March 1, 1980, evidence of

adequate legal authority for the required program and correc-

tions to other deficiencies noted in the October 5, 1979, rule-

making. EPA also notified the public of its intention to impose

the federal funding and new source constructions restrictions,

6a

authorized by Sections 176(a), 316, and 110(a)(2)(J) of the Act,

if the State failed to comply with this condition.

On March 14, 1980 (45 FR 16486), EPA published a final

rule disapproving the carbon monoxide and ozone portions of

the Colorado State Implementation Plan, thereby invoking the

restrictions on construction of major new or modified stationary

sources required by Section 1 10(a)(2)(I) of the Clean Air Act. In

that rule, EPA also announced that it would begin exercising its

authority under Section 176(a) and 316 of the Act to withhold

certain federal assistance from the affected nonattainment areas.

These actions superseded EPA’s October 5, 1979, con-

ditional approval of the I/M portion of the SIP and were based

on the State of Colorado’s failure to satisfy a condition of

approval, i.e., failure to submit evidence of adequate legal au-

thority to implement and enforce an acceptable automobile

exhaust emissions control program by March 1, 1980. See 44 FR

57401 (October 5, 1979) and 45 FR 7801 (February 5, 1980).

The final rule was to be effective on March 14, 1980.

On March 13, 1980, the United States Court of Appeals for

the Tenth Circuit ordered that ‘‘enforcement by the EPA of all

sanctions against the State of Colorado is stayed to and includ-

ing May 1, 1980.” Therefore, EPA amended the final rule to

respond to the Court order, and stay the effective date of the

action published on March 14, 1980, to May 2, 1980 (45 FR

21634).

On May 2, 1980, the State had not yet adopted legal au-

thority for and automobile exhaust emissions control program.

Therefore, the carbon monoxide and ozone portions of the SIP

were disapproved and funding and construction restrictions

became effective on that date.

State Submittal

On May 7, 1980, the legislature adopted the Bill which is

the subject of this notice. On May 23, 1980, Governor Richard

Lamm signed the Bill into law and on May 29, 1980, the State

submitted the Bill to the EPA together with supporting docu-

mentation, including detailed schedules for implementation

and a demonstration that the program will achieve a 25%

reduction in exhaust emissions by 1987. The supporting docu-

mentation represents a commitment by the Departments of

Health and Revenue to carry out and enforce the program, and

the resources necessary to do so are also identified and com-

mitted.

7a

The law calls for annual emissions inspection for 1968 and

later model year light duty vehicles including light duty trucks in

the Front Range area (basically Denver, Boulder, Colorado

Springs, Fort Collins, and Greeley). The Health Department will

adopt emissions standards for each model year. Standards will

be set so that at least 60% of 1968-1974 vehicles and at least

70% of 1975 and later vehicles can meet the standards.

Cars will be tested using emissions analyzers. If they com-

ply with the standards, they will be issued a certificate of emis-

sions compliance. Model year 1968-1980 vehicles which fail to

comply with the standards at the time of testing will be adjusted

to manufacturers specifications and then retested. If they still fail

to meet standards, they will be issued a certificate of emissions

adjustment and no further repairs or maintenance will be re-

quired, unless emissions control devices have been altered, re-

moved, disabled or rendered inoperative. Visual inspection of

emission control devices will be performed. Owners of model

year 1981 and later vehicles which fail to comply with standards

at the time of testing will be required to repair their vehicles to

meet standards. If these vehicles still fail to meet standards after

expending up to $100 on emissions related repair costs, they

will be issued a certification of emissions adjustment.

The high altitude performance adjustments provided by

Section 215 of the Clean Air Act will be included as part of the

adjustments required.

The full program will begin on January 1, 1982, but a

change of ownership and voluntary program will begin July 1,

1981. The provisions of the program requiring repairs on 1981

and later model year vehicles will begin July 1, 1982.

The emissions tests and adjustments will be conducted by

trained mechanics. The mechanic training and licensing pro-

gram will be run by the Department of Health and mechanics

will have to pass a competency test before being licensed. The

Department of Health will also administer an information pro-

gram to insure public acceptance.

The Department of Health will insure quality control by:

(1) establishing specifications and standards for emissions

analyzers and emissions analyzers to be used by inspection

stations will have to be approved by the Department;

(2) checking and calibrating the analyzers on a regular

basis;

(3) establishing procedures to be used in conducting in-

spections and performing adjustments; and

8a

(4) periodically sending “unmarked” vehicles through in-

spection stations to evaluate program effectiveness.

The Department of Health will also continuously evaluate

the effectiveness of the program and make annual recom-

mendations to the Legislature regarding needed program im-,

provements. The evaluation will focus particularly on whether a

significant number of vehicles are failing to pass the retest after

adjustments are made, developing alternative procedures to be

followed for repairing 1981 and later vehicles which will not be

adjustable and may require repairs or parts replacement to

comply with the standards.

Enforcement of the program will be by the Department of

Revenue through the safety inspection program. If a vehicle

does not have a valid certificate of emissions control at the time

of safety inspection, no safety inspection sticker may be issued

and the vehicle will be prohibited from operating. Penalty provi-

sions are included. The Department of Revenue will also

administer a referee program.

Emissions standards for new vehicles sold at high altitudes

have been proposed by EPA, effective with the 1982 model year.

The existence of these standards will result in the Colorado I/M

program enabling warranty coverage under Section 207(b) of

the Clean Air Act. Properly maintained 1982 and later model

year vehicles failing inspection will have engine components

affecting emissions repaired at the expense of the vehicle manu-

facturer for the first two years or 24,000 miles. Emission control

equipment will be covered for five years or 50,000 miles.

Final Action

On June 13, 1980, (45 FR 40169) EPA proposed approval

of the Governor’s submittal and solicited comments on this

action. One comment was received; however, it did not address

the adequacy of the state I/M program, but rather objected to

EPA’s use of federal funding and stationary source construction

restrictions to obtain State compliance.

EPA believes its actions on an adequate I/M program were

clearly authorized by Sections 176(a), 316 and 110(a)(2)(I) of

the Act. Furthermore, EPA believes the provisions of the Act

authorizing such actions are constitutional. Federal funding

restrictions are the traditional method used by Congress to gain

State cooperation in federal programs. The construction mora-

torium is an interim prohibition on private pollution sources

and is invoked solely for the purpose of protecting public health.

EPA’s position on these issues are explained in more detail in

9a

briefs and other documents filed by the Agency in the Mountain

States Legal Foundation, et al., v Costle lawsuit (Case No. 79-

2261, U.S. Court of Appeals for the Tenth Circuit).

EPA is approving Colorado’s automobile exhaust emis-

sions control program for inclusion in the State Implementation

Plan. Today’s action supersedes EPA’s earlier disapproval of this

portion of the SIP, and also removes the federal funding and

stationary source construction restrictions authorized by Sec-

tions 176(a), 316 and 110(a)(2)(I) of the Act, which have been

in effect since May 2, 1980.

Colorado’s law provides adequate legal authority to imple-

ment and enforce an automobile exhaust emissions control

program beginning January 1, 1982. The law also represents a

commitment to implement and enforce the program and identi-

fies and commits adequate financial and manpower resources.

The detailed schedules provided by the State are also acceptable.

Finally with respect to program effectiveness, the State has

demonstrated the required 25% reduction in HC and CO light

duty vehicle exhaust emissions in 1987. Much of this emission

reduction will come from the inspection and maintenance pro-

gram for 1981 and later models, which features a 30% stringen-

cy with full mechanic training. EPA is concerned about the

effectiveness of the adopted adjustment program for pre-1981

models, especially the lack of a substantive requirement to pass

the retest. Should the first annual program evaluation indicate a

substantial number of these models are failing to pass the retest,

compliance with the 25% requirement will be in jeopardy, and

the State will have to revise the program accordingly.

Under Executive Order 12044, EPA is required to judge

whether a regulation is ‘‘significant’’ and therefore subject to the

procedural requirements of the Order or whether it may follow

other specialized development procedures. EPA labels these

other regulations ‘specialized’. I have reviewed this regulation

and determined that it is a specialized regulation not subject to

the procedural requirements of Executive Order 12044.

This notice of final rulemaking is issued under the authority

of Section 110, 176, and 316 of the Clean Air Act as amended.

Dated: July 10, 1980.

Douglas M. Costle,

Administrator.

10a

Title 40, Part 52 of the Code of the Federal Regulation is

amended as follows:

Subpart G — Colorado

1. Section 52.320(c)(18) is revised as follows:

§52.320 Identification of Plan.

* * * * *

(c) xk * *

(18) On May 29, 1980, the Governor submitted written

evidence of the State’s legal authority to implement and enforce

an automobile emissions control program as well as schedules

for implementing that program and a demonstration that it will

achieve a 25% reduction in exhaust emissions by 1987.

§52.324 [Amended]

2. In §52.324, paragraph (c) is deleted

§52.327 [Amended]

3. In §52.327, paragraph (a) |. is deleted.

§52.328 [Amended]

4. In §52.328, paragraph (a) |. is deleted.