Petition — International Ass'n of Machinists & Aerospace Workers v. Iberia Air Lines of Spain

erred |

80-1289 san 30 1968

__ ieee cam tae

| CLER

In The

Supreme Court of The United States

OCTOBER TERM, 1980

OHIO DEPARTMENT OF HIGHWAY SAFETY,

and DONALD D. COOK, Director,

Petitioners,

V.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

WILLIAM J. BROWN

Attorney General

DONALD J. GUITTAR

Assistant Attorney General

Chief, Transportation Section

HALSTEAD L. STETTLER

Assistant Attorney General

Counsel of Record

25 South Front Street

P.O. Box 899

Columbus, Ohio 43216

(614) 466-3036

Attorneys for Petitioners

MIDWEST LAW PRINTERS AND PUBLISHERS, INC., Columbus, Ohio 43216

<>

QUESTIONS PRESENTED

1. Did the Court of Appeals err in holding that the

United States Environmental Protection Agency can,

under the Commerce Power, validly order the Ohio

Highway Safety Department and its Director, to en-

force the pollution control plan promulgated by the

United States EPA, rather than enforcing the plan

itself, when any air pollution does not come from a

state facility, but from vehicles owned by private

individuals.

2. Does the pollution control plan of the EPA for

the Cincinnati area violate the Fifth Amendment by

denying equal protection of the law, because those

driving vehicles in that area who are the class alleged

to cause air pollution, are restricted if their vehicles

are registered in Ohio, but not if registered in Kentucky

or Indiana, thus classifying on a basis unrelated to the

objective of the plan.

3. Does the EPA order violate Article IV, Section

4 of the Constitution because petitioners have no legal

right under Ohio law to comply with the order to re-

voke license plates for spark ignition vehicles.

4, When the EPA writes a pollution control plan

ordering a city and county to control car exhaust

fumes, is it a violation of the Fifth Amendment for the

EPA to order a state official to enforce it after the

time for appeal has passed, when the language does

not clearly include the state officer at all, heavy crim-

inal penalties can be imposed for failure to carry out

the order, and state law does not allow such acts by the

Officer.

PARTIES

‘The plaintiff in the United States District Court was

the United States, specifically the Environmental Pro-

tection Agency. The defendants were Donald Cook,

Director of the Ohio Department of Highway Safety,

and the Department itself. Mr. Cook was replaced by

Robert Chiaramonte while the case was pending in the

trial court. He was replaced in 1979 by Earl Reich,

the present director.

The United States is the respondent, and is some-

times referred to as the “EPA”. Petitioners are alter-

natively referred to as the “State” or “Ohio”.

ii

TABLE OF CONTENTS

CE aS ce aot ooo

Grounds for Jurisdiction ..............

Constitutional Provisions, Statutes and

DO SOE See be eet ea

StatementoftheCase.................

Reasons for Granting the Writ... .....

Ne, se ce ET. Wes eA

ERS Raa aco a ee

I 2. KS. w:

ONS SM ES So SS a are

iii

TABLE OF AUTHORITIES

CITATIONS

Cases Page

Bolling v. Sharp, 347 U.S. 497, (1954) ......... 14

Bowles v. Willingham, 321 U.S. 508, (1944)... 6

Boyce Motor Lines v. U.S., 342, U.S. 337, (1950) 20

Brown v. EPA, 521 F. 2d 827 (9th Cir. 1975)

CREE SE), Set. is Re ev Ra a Rew ee ae 7, 8

Brown v. EPA, 566 F. 2d 665 (9th Cir. 1977)

CORD TED 8 A I Ps ee: Jude ae

Buckeye Power v. Environmental Protection

Agency, 481 F. 2d 162 (6th Cir. 1973), cert.

den. 425 U.S. 934 (1976) ............ 18

City of New Orleans v. Dukes, 427 U.S. 297,

ok). 7 CREA RASSON) RAC To a oe , . AG

Claflin v. Houseman, 93 U.S. 130 (1876) | ; sagt

Cole v. Young, 351 U.S. 536, (1956) ...... - 20, 21

Coyle v. Smith, 221 U.S. 559, (1911) ..... + ae

Crowell v. Benson, 285 U.S. 22, (1982) .......... 7

Diamond Roofing v. Occupational S. & H. Rev.

Commission, 528 F. 2d 645 (5th Cir. 1976) .. 19

District of Columbia v. Train, 521 F. 2d 971 (D.C.

ee ORGS aS Reach: alpen op 9, 12

Environmental Protection Agency v. Brown, 431

SEM SEWER high, Goat mcy be titan Race es ot oa

Federal Power Commission v. Arizona Edison Co.,

194 F. 2d 679 (9th Cir. 1952) ............. 6

iv

-

In re Duncan, 139 U.S. 449 (1891) ............. 16

Johnson v. Robinson, 415 U.S. 361 (1974) ...... 14

Maryland v. EPA, 530 F. 2d 215 (4th Cir. 1975) 16, 25

Maryland v. Wirtz, 392 U.S. 183, (1968) .... 10, 11

Meehan v. Macy, 392 F. 2d 822 (D.C. Cir. 1968) _ 20

M. Kraus & Bros. v. United States, 327 U.S. 614,

ARR Madi Sigs bien sat 19, 20

National League of Cities v. Usery, 426 U.S. 833,

NN Be Os hy 8 OID Yap 8, 10, 11, 16, 24

Pennsylvania v. EPA, 500 F. 2d 246 (8rd Cir.

Bb lerres: wk ate eames See 10

Perine v. William Norton & Co., 509 F. 2d 114

Se od, ee ae a

Sentner v. Colarelli, 145 F. Supp. 569 (E.D. Mo.

1956), aff’d Barton v. Sentner, 353 U.S. 963,

GRAPES. (RNAS vanillin em Ge 19

Spreckels v. Helvering, 315 U.S. 626, (1942) ... 21

Testa v. Katt, 330 U.S. 386, (1947) ......... se ee

U.S. v. Rust Communications oe 425 F. Supp.

Re Sie, PO AIO). ek hoe e ac 20

Yakus v. United States, 321 U.S. 414, (1944) 6

Statutes

APG OU A Get chap reine ob One et 19

Ee BES. up ee ae so kee ee kes 2

Oy SEeee ies ok AOE ee te 4

AP ULES. SIBBTOO.. oor. es ke ies A-36

BO RIOD. okiig hes ss ease Geen es ME 7, 19

Pye Cea 7s a ee eee 8, 6, 7

42 U.S.C. §7410 et seq.................... 8, A-60

PL) a Ree

42 U.S.C. $7412... Oe oe Oa ooh an

Tig Rt) Rae arate te 4, 7, 19, A-99

42 U.S.C. §7607 ................... 8, 6, 7, A-ll2

Ohio Revised Code §3704.4........... 6, A-122

Regulations

88 Fed. Reg. Part 52, pp. 309712-309714 8, A-37

40 C.F.R. §52.1870-52.1884 .............. _ A-50

40 C.F.R. §52.1878 ........ _ 8, 17, 18, 22, A-56

0 CAPR SORIBIe ici Seon glee ye ee 18, A-59

United States Constitution

pO SESE SANE Sa mney aR ota ee ey

Article IV, Section 4 .............--5.5:. 15, 17

Fifth Amendment...............-..-- 7 14, 15

Tenth Amendment ..............-+--:-- Me kn

No.

In The

Supreme Court of The United States

OCTOBER TERM, 1980

OHIO DEPARTMENT OF HIGHWAY SAFETY,

and DONALD D. COOK, Director,

Petitioners,

Vv,

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Sixth Circuit is not yet reported and is repro-

duced in Appendix A. The decision of the United States

District Court for the Southern District of Ohio is not

reported and is reprinted in Appendix B.

The decision of the Court of Appeals was filed on

December 5, 1980, and a Motion for Stay of Mandate

was filed with it on December 24, 1980.

The decision of the Court of Appeals reversed the

District Court’s decision denying enforcement of an air

pollution control plan against petitioners, and it is this

reversal by the Court of Appeals in a two to one deci-

sion that petitioners are requesting this Court to

reverse.

2

GROUNDS FOR JURISDICTION

Jurisdiction is based on 28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISIONS, STATUTES,

AND ADMINISTRATIVE REGULATIONS

UNITED STATES CONSTITUTION

Article I, Section 8, Clause 3

Article III

Article IV, Section 4

Fifth Amendment

Tenth Amendment

STATUTES

5 U.S.C. §703

28 U.S.C. §1254

28 U.S.C. §1345

42 U.S.C. §7401-7642

Ohio Revised Code $3704.14

REGULATIONS

88 Fed. Reg. Part 52, pp. 309712-309714

40 C.F.R. §52.1870-52.1884

40 C.F.R. §52.1878

40 C.F.R. §52.1879

These regulations and sections 110-113 of the Clean

Air Act (42 U.S.C. §§$7410-7413) are reprinted in

Appendix C. The basic statute involved is the Clean Air

Act as amended through 1974. It was codified in 42

U.S.C. 1857 and was renumbered in 1977 as 42 U.S.C.

7401 thru 7642. A cross-reference from the old sections

to the new is included in Appendix C. Also included is

O.R.C. 3704.14.

3

STATEMENT OF THE CASE

Under 42 U.S.C. §7401 et seq. (see §7410), the

states are to set up pollution control plans and submit

them to the United States Environmental Protection

Agency, and the EPA may, if it finds the plan or part

of it to be inadequate, set up its ovn plan. In 1973

Ohio submitted its plan which was approved except for

Cincinnati and the surrounding County of Hamilton.

Pursuant to this authority the EPA set up its own plan

for the metropolitan Cincinnati air quality control

region (App. pg. A-37, 56). The state plan for Cincin-

nati was found to be marginally inadequate (App. pg.

A-41). The Cincinnati air quality control region covers

8,000 square miles in southwestern Ohio and adjacent

areas of Indiana and Kentucky (App. pg. A-41). In 38

Federal Register, part 52 at page 30973 the EPA said

that the State of Ohio should assure maintenance of

motor vehicles registered in Hamilton County by re-

quiring annual inspections (App. pg. A-46).

No appeal was taken to the Sixth Circuit under 42

U.S.C. §1857h-5 within thirty days (now sixty days

under 42 U.S.C. 7607) to protest the plan as being

arbitrary or capricious.

The substitute plan of the EPA provided in Section

52.1878 that Cincinnati and Hamilton County were

required to establish, administer, and enforce the in-

spection program to carry out this objective (App.

pg. A-56). The EPA wanted Ohio to refuse to issue

license plates to cars which inspection showed did not

meet EPA standards. Ohio officials declined to do this.

On March 15, 1976 the EPA issued a notice of violation

to Donald Cook of the Ohio Department of Highway

Safety, the Ohio agency which licenses autos on an

annual basis. On June 22, 1976 an EPA order was

4

issued to the Department of Highway Safety ordering

it to refuse to license cars which had not passed an

inspection test, and whose owners reside in Cincinnati

or Hamilton County.

The notice of violation dated March 15, 1976 and

the order dated June 22, 1976 stated that Highway

Safety was allowing registration of cars and was thus

violating the plan requiring Cincinnati to inspect cars.

The order of June 22, 1976 directed to Mr. Cook of the

Highway Safety Department ordered him to refuse to

issue license plates to cars until the vehicle had been

inspected.

The Director of Highway Safety declined to carry

out this order because he had no legal authority to do

so under state law. To enforce this order the United

States filed a complaint in the Federal District Court

on November 18, 1976, and the Ohio Department of

Highway Safety and Donald Cook filed an answer on

December 14, 1976. Jurisdiction was based on 28 U.S.C.

$1345, and §113(b) of the Clean Air Act (42 U.S.C.

§7413(b).

A motion for summary judgment was filed by the

United States. An affidavit filed with the motion

alleged that the inspection and maintenance program

was in effect and was being enforced by Cincinnati.

The District Court issued a decision on October 14,

1977 denying the motion for summary judgment and

deciding that that EPA order was not enforceable, and

entered final judgment for the defendants on February

23, 1978. A notice of appeal was filed by the United

States and a cross-appeal was filed by the Ohio Depart-

ment of Highway Safety.

The cross-appeal preserved the issue of whether the

pollution control plan, which carries criminal penalties,

ie)"

5

is clearly enough applicable to Ohio at all to be en-

forceable in the courts, or whether it is too vague in

its reference to the State.

The United States moved to dismiss the cross-appeal,

and the Court denied the motion by an order filed on

November 3, 1978.

After the oral argument in the Court of Appeals a

question was raised as to whether new Ohio legislation

(R.C. 3704.14 — see App. pg. A-122) made the appeal

moot. The legislation sets up a board to make a study

of the need for an inspection and maintenance program.

Whether anything will come of this is a matter for

speculation for the future since no action is final before

the end of 1982, and the Court of Appeals ruled that

this did not address the issues before the Court and

therefore the appeal was not moot. Petitioners do not

appeal from this decision.

On December 5, 1980 the Court of Appeals for the

Sixth Circuit issued its decision reversing the District

Court and denying the cross-appeal in a two to one

decision, with a strong dissenting opinion.

This petition now seeks reversal of the Court of

Appeals decision.

7 me a

I. THE COMMERCE POWER DOES NOT ALLOW

THIS USURPATION OF STATE GOVERN-

MENT AND ITS POLICE POWER.

A. The District Court Had Jurisdiction To Hear

All Defenses In Deciding This Case.

thority in spite of the thirty day time limit on chal-

lenges to his actions in former 42 U.S.C. £1857h-5(b),

now sixty days under 42 U.S.C. §7607. The Court held

tutional because it violates Article III. The reason is

found in the separation of powers doctrine. Where

Congress has established courts it may not

aaah cy te X57

. whenever the judicial power

pay, is directly to the

w and no authority can intervene

or aaierte ey

Yakus v.

(1944), justice Rutledge

In Bowles v. Willingham, 321 U.S.

Justice Rutledge, concurring, said

;

Af

iat

in

—

>

i

Ub

of

rather than criminal enforcement is provided for, a

restricted period for challenge may be sustained but

not if the regulation is invalid on its face. So if the

7

statute here, imposing civil and criminal penalties,

does grant authority to order Highway Safety to re-

voke licenses, it is invalid on its face for the reasons

set forth in this brief and must be struck down.

Chief Justice Hughes wrote:

‘In cases brought to enforce constitutional rights,

the judicial power of the United States necessarily

extends to independent determination of all

questions, both of law and fact, necessary to the

performance of that supreme function. . . We

think that the essential independence of the exer-

cise of the judicial power of the United States in

enforcement of constitutional rights requires

that the Federal Court should determine such an

issue its own record and the facts elicited

before it.” Crowell v. Benson, 285 U.S. 22, 60, 64

(1932).

Therefore this Court should hold 42 U.S.C. §1857h-5

(b) (1) and (2) (now 42 U.S.C. §7607 (b) (1) and

(2) unconstitutional for violation of Article III of the

Constitution and thus denying due process to the Di-

rector of Highway Safety.

B. The State Is Not A Person Violating The Clean

Air Act, And The Commerce Power Does Not

Allow The EPA To Order The State To En-

force The EPA Plan.

In Brown v. Environmental Protection Agency, 566

F.2d 665 (9th Cir. 1977) (Brown II) the Court said

that in Brown v. Environmental Protection Agency,

521 F.2d 827 (9th Cir. 1975) (Brown I) that Circuit

_ had held that neither §113(a) (1) nor §118(a) (2)

of the Clean Air Act (42 U.S.C. §1857(c)-8(a) (1)

and (2), which is now 42 U.S.C. §7413), authorized the

EPA to impose sanctions against the state for failing to

’*%

8

comply with orders on reducing exhaust fumes from

autos. The Court then said that having the case before it

again on remand from this Court, Environmental Pro-

tection Agency v. Brown, 431 U.S. 99 (1977), it was

again stating that the above noted ruling was still

the law of the Ninth Circuit except as modified in

Brown II. That aspect of its opinion was not modified,

and in fact the Court went much farther and at page

673 it said that while it was proper to have the state

deny registration if a federal certificate of compliance

was not obtained by a car owner, that it was not proper

for the EPA to order the state to impose an inspection

system and deny registration because the car owner

could not get a state certificate. The Ninth Circuit said

the former procedure fell within the powers of Con-

gress but the latter did not. This is precisely the case

which we are now petitioning this Court to grant a

writ of certiorari for. Here a state inspection program

has been imposed by the EPA, and the Court has up-

held it, but reversing the District Court’s decision in a

two to one opinion.

The Sixth Circuit recognized that Congress had not

- made this explicit in the statute, but it interpreted the

law to allow this to be done. The Ninth Circuit said in

Brown I that it should not be implied that this would

be the intent of Congress in view of the delicate nature

of federal-state relations unless Congress had made it

explicit. Therefore we most strongly urge the Court to

grant the petition for the writ of certiorari and to re-

verse the Sixth Circuit on this point.

The Court of Appeals for the Sixth Circuit has de-

cided this point precisely contrary to the Ninth Cir-

cuit, and has failed to follow the decision of the Court

of Appeals for the District of Columbia Circuit in Dis-

9

trict of Columbia v. Train, 521 F.2d 971i (D.C. Cir.

1975) where the Court sa.d at page 991 at the bottom

of the second column that a State could comply with

the registration prohibition by making it necessary

for vehicle owners to produce a certificate of compli-

ance obtained from federal officials but beyond that

they could not order the State to enforce the federal

regulatory scheme.

Therefore this decision of the Sixth Circuit Court

of Appeals is in direct conflict with the decisions of

the Ninth Circuit and the District of Columbia Cir-

cuit and this Petition for Certiorari should be granted

and this conflict resolved by this Court, because this

Court has never ruled on the point at issue.

The decision of the Court of Appeals for the Sixth

Circuit discussed this Court’s decision in National

League of Cities v. Usery, 427 U.S. 888 (1976) in de-

ciding why upholding this action against the State did

not violate the Constitution. The Court said (App.

A-20) that the EPA does not seek to revamp Ohio

vehicle licensing or the Ohio system of operating its

streets and highways. The Court had already reached

the conclusion that the state is not polluting the air

because it owns the streets and highways; it therefore

was accepting the argument of petitioners that the state

is not “operating” anything by owning the streets,

but that it is persons who drive vehicles on them who

are operating the pollution causing device. Thus the

opinion is not consistent on its own terms. Further-

more, the Court said that the plan would not require

the state to adopt legislation, when as pointed out in

this argument below,the record conclusively establishes

as a matter of law for this litigation that the state

would in fact have to do just that. The Court then said

10

requiring denial of registration would not impair the

integrity of the state and hence the Tenth Amendment

would not be violated. The Court did not discuss the

fact that the only Court of Appeals which has upheld

such interference with state government under the

Clean Air Act was the Third Circuit in Pennsylvania

v. EPA, 500 F.2d 246 (3rd Cir. 1974) where the Court

relied explicitly on the decision of this Court in Mary-

land v. Wirtz, 392 U.S. 183 (1968). The Sixth Circuit

does not discuss at all the fact that this Court specifi-

cally overruled Maryland v. Wirtz in National League

of Cities, and therefore the only judicial expression on

this point which is in accord with the present opinion

has been overruled. In addition the Sixth Circuit spe-

cifically quotes the concurring opinion of Mr. Justice

Blackmun in the National League of Cities where he

wrote in 426 U.S. at 856:

“In my view, the result with respect to the statute

under challenge here is necessarily correct. I may

misinterpret the Court’s opinion, but it seems to

me that it adopts a balancing approach, and does

not outlaw federal power in areas such as environ-

mental protection, where the federal interest is

demonstrably greater and where state facility

compliance with imposed federal standards would

be essential.” /

It seems to petitioners that what this language means

is what other Courts of Appeals have said, namely that

where state facilities such as automobiles, or power

houses, are being operated by the State they must com-

ply with United States pollution control standards.

There would be some interference with the integrity

of state government by making it comply with the na-

11

tional standard on these points, but this is necessary

and is well within the federal-state relations of our

national system. There is no basis in this language, or

in National League of Cities itself, for saying that

the federal agency may order the State to simply carry

out the orders of the federal agency and thereby be-

come a police officer for the federal government. No

court so far as our research can discover has ever

issued such a decision, nor has this Court ever ap-

proved it.

The proper method of administering this plan is

for the federal agency to enforce its own plan by its

agents, and then if a car owner cannot produce a fed-

eral certificate of compliance, then the car owner

should be ordered by the State to stop driving in order

to comply with federal law. In that instance if the

State should refuse to enforce the federal law and not

cancel the registration, then the federal law could be

enforced either in federal court or in the state courts

themselves. The state courts must enforce federal law

in such a case. Testa v. Katt, 330 U.S. 386 (1947);

Claflin v. Houseman, 93 U.S. 180 (1876). This is the

constitutional method of administering the Clean Air

Act, whereas the decision of the Court of Appeals here

makes a state official a puppet of a federal agency and

requires him to act without reference to the State as a

unit of government in our federal system. This is in

fact the destruction of the states as sovereign political

entities which this Court said “the inherent limitations

in the Commerce clause give it power to prevent.”

Maryland v. Wirtz, 392 U.S. 188, 196 (1968).

The opinion in this case also discusses the legislative

history of the Clean Air Act. When the amendments of

-%

>.

12

1970 were passed there was no discussion of the con-

stitutionality of the statutes. The Court relies on com-

ments made when Congress was considering the 1977

amendments and quotes a lengthy section of comments

from a committee. None of the committee comments

support the decision of the Sixth Circuit in this case.

One comment of the committee explicitly states that

the committee agrees with the decision of the Court of

Appeals in District of Columbia v. Train on the pro-

hibition of state registration of a noncomplying motor

vehicle. This decision said that the state could be or-

dered to do something if there were no federal certif-

icate of compliance, and also said that a state inspec-

tion and registration ban could not be imposed by the

EPA. Thus the legislative history does not support the

Sixth Circuit’s decision except insofar as the comments

of Senator Muskie reprinted in the Congressional Rec-

ord $9168 (June 8, 1977) can support it.’ Senator

Muskie said that the EPA’s authority to promulgate

control measures requiring the states to take action

and to compel compliance with them is clear in the

existing sections of the Clean Air Act even if this is a

delicate area of federal-state relations. As to Senator

Muskie’s comments however we urge the Court to

adopt the view of the Ninth Circuit in Brown II, 566

F.2d at page 671, where the Court said that they were

more impressed by what Congress did not do in the

1977 amendments than by what Senator Muskie be-

lieved was done in passing the legislation in 1970. The

Court said since Congress had not changed the law

after the previous decisions of Courts of Appeals, in-

1For legislative history and Sen. Muskie’s comments see

Opinion, App. A pp. A-14 et seq.

13

cluding the Ninth Circuit’s decision that merely build-

ing and owning roads and highways did not make the

state a source of pollution, that Congress had not

meant that owning the roads was itself a cause of pol-

lution. We submit that if building the roads and own-

ing them, and governing them under the state police

power, does not make the state a polluting person, then

ipso facto, failing to enforce the federal EPA plan

could not in itself make the state a pollution causing

person. It is very simple, the persons driving the cars

are causing the pollution and are the ones to be re-

stricted by the federal EPA where it has promulgated

a plan and the state plan has been superseded. The

order of the EPA, which has been upheld by the Court

of Appeals in this case, is a violation of the Tenth

Amendment and is not authorized by the Clean Air

Act itself or the Commerce Power under Article I,

Section 8, Clause 3, and this Court should therefore

grant the petition for a writ of certiorari and reverse

this decision of Sixth Circuit.

Il. THE EPA PLAN FOR THE CINCINNATI

AREA IS A DENIAL OF EQUAL PROTECTION

.. AND IS UNCONSTITUTIONAL.

The Environmental Protection Agency has ordered

that motor vehicles owned and operated in Cincinnati

and Hamilton County be denied license plates for caus-

ing air pollution. This administrative act is a denial of

equal protection to these citizens, because of the way

the law passed by Congress is applied to them. The ob-

jective is to clean up the air in Hamilton County, and

the means selected to accomplish this result is to reduce

air pollution from automobile exhausts because it has

14

apparently been determined that auto fumes are a haz-

ard. The class thus excludes diesel trucks, diesel buses,

and any other type of engine such as jet engines or

other types. The class also excludes airplanes and

riverboat engines and all industrial stationary pollu-

tion sources.

If it is determined that fumes from motor vehicles

are a hazard which requires action against them re-

gardless of all other pollution producing sources, then

this is a proper legislative classification. But within

this classification all persons must be treated equally

in order for it to be concluded that the class is reason-

able for the purpose aimed at, is based on justifiable

distinctions for that purpose, and is not clearly arbi-

trary. Although the right to equal protection does not

deny the power to treat different classes of persons in

different ways, it does mean that it is forbidden that

different treatment be accorded to persons placed into

different classes on the basis of criteria wholly unre-

lated to the objective of the statute. Johnson v. Robi-

son, 415 U.S. 861 (1974). This Court has held that a

classification invalid under the Equal Protection clause

of the Fourteenth Amendment is a violation of the

Fifth Amendment. Bolling v. Sharpe, 347 U.S. 497,

(1954) ; Johnson v. Robison, supra, n. 4.

Applying these principles to this case we find that

only those persons owning cars in Cincinnati and Ham-

ilton County are placed within the class. The class thus

excludes all those from outside the city and county who

work there and regularly drive their motor vehicles

there every day, not to speak of those who visit or pass

through on trips. It is obvious that the class thus dis-

criminates by covering only part of the people who con-

15

tribute to the pollution and who shouid be considered

within the objective to be achieved. Someone who lives

in Cincinnati and owns a car there may take a bus or

walk to work and thus contribute little or nothing to

automobile exhaust fumes, while someone who lives in

Kentucky, just across the river, and drives into the

' city would contribute a great deal to motor vehicle

exhaust pollution every day. Yet the class excludes the

latter without any reasonable basis considering the

purpose of the law. This is not a case of economic reg-

ulation on a local level where legislative action is given

deference by the courts, but involves Federal-State

relations of great importance. City of New Orleans v.

Dukes, 427 U.S. 297 (1976). Therefore, the agency’s

actions here are a denial of equal protection and a vio-

lation of the Fifth Amendment.

Il. THE ENVIRONMENTAL PROTECTION

AGENCY’S ORDER VIOLATES ARTICLE IV,

SECTION 4 BECAUSE THE STATE WOULD

- HAVE TO ENACT LEGISLATION TO AU-

THORIZE REVOCATION OF LICENSES FOR

SUCH PURPOSE.

To comply with the EPA orders in this case would

mean that the state would have to pass a law giving

the defendant legal authority to revoke license plates

from motorists in Cincinnati. The defendant has no

power to do this at the present time. An affidavit of

George S. Jupinko, Esq., legal counsel to the Highway

Safety Department attesting to this fact was filed in

the District Court. The Court of Appeals opinion states

that Ohio would not be required to adopt any legislation

-~%

i |

16

to revoke licenses. See App. A p. A-20). But the affi-

davit referred to was submitted to the District Judge

in answer to the Motion for Summary Judgment, and

it was never disputed or rebutted in any way; there-

fore it is admitted as true, and the Sixth Circuit opinion

is wrong.

In Maryland v. EPA, 530 F.2d 215 (4th Cir. 1975),

the Court said at page 225 that while some attributes

of state sovereignty have been reduced, if there is any

attribute of sovereignty left to the states it is their

right in their legislatures to pass, or not to pass, laws.

The Court cited In re Duncan, 139 U.S. 449, (1891),

where it is said at page 461 that:

“ .. A republican form of government is guaran-

teed to every state in the Union, and the distin-

guishing feature of that form is the right of the

people to choose their own officers for govern-

mental administration, and pass their own laws

in virtue of the legislative power reposed in rep-

resentative bodies. . .”

The Fourth Circuit further held that the Clean Air

Act authorizes the EPA to prepare regulations for a

state, but it does not empower it to direct a state to

enact such statutes as it prescribes. This Court has

said that it has repeatedly recognized that the sover-

eignty attached to the state governments has attributes

which may not be impaired by Congress because the

Constitution prohibits it. An example is the right to

locate its own seat of government and appropriate its

own public funds for that purpose. National League of

Cities v. Usery, supra. The Court relied on Coyle v.

Smith, 221 U.S. 559 (1911), which voided an act of

Congress denying a state the right to locate its own

17

capitol, on the grounds that this violated Article IV,

Section 4, of the Constitution.

In the same way here the attempt of the federal

agency to require the state to pass legislation and

engage in the exercise of its police powers in inspection

of cars, instead of carrying out its responsibilities it-

self, is a violation of Article IV, Section 4, of the

Constitution.

IV. BECAUSE THIS POLLUTION CONTROL

PLAN CAN IMPOSE CRIMINAL PENALTIES,

IT WAS ERROR FOR THE COURT TO CON-

STRUE ITS TERMS TO APPLY TO THE

STATE.

A. The Language Of The Plan Does Not Order

Any Action By The State Of Ohio, Only By

The City And County.

The Cincinnati area plan (App. p. A-58) states in

40 C.F.R. 52.1878(e) :

“(e) After December 31, 1975, no program in

the County of Hamilton, the City of Cincinnati,

the State of Ohio shall allow the registration of

title, or allow the operation on streets, roads, or

highways under its control of any light-duty,

spark-ignition-powered motor vehicle subject to the

inspection program(s) established pursuant to

this section that does not comply with the appli-

cable standards and procedures, as defined in

paragraph (d) (2) of this section.”

In the complaint filed in the District Court the

United States quoted this section but inserted the word

“and” between the word “Cincinnati” and the phrase

-*%

7s

18

“the State of Ohio’’, in line 3 of this section. In the

Motion for Summary Judgment below, they have in-

serted the word “or” in the same place, because without

such a connective word this plan does not apply to the

State. The United States has supplied words which

would have shown a clear intent to make the state, as

well as the city and county, subject to the plan.

Section 52.1878 states that it applies in Hamilton

County. All of the sections state that the city and

county should do various things. An example is sub-

section (g) which requires them to submit to the EPA

a compliance schedule, and in subsection (3) under (g)

to find the money to do it. All of these things show that

it is the city and the county that the plan is directed

toward.

In Section 52.1879 the EPA ordered the Director of

the Ohio Environmental Protection Agency to take

certain action regarding stationary sources of pollu-

tion. This shows plainly that when the EPA wanted to

involve an agency of the state government of Ohio they

knew exactly how to do it and no one needs to insert

words to show that this was what they meant.

Several years after this plan was promulgated,

Respondent seeks for the first time to involve the state

and the Director of Highway Safety in it and does so

under a statutory provision allowing for fines and

imprisonment. We submit that the Court should not

allow this ex post facto action.

Since petitioners were not included in the plan as

promulgated and were not affected by it, the thirty-day

time limit does not apply here and petitioners are en-

titled to raise all possible defenses. As the Court said in

Buckeye Power, Inc. v. Environmental Protection

Agency, 481 F. 2d 162, 173 (6th Cir. 1973) cert. den.

19

425 U.S. 934 (1976), where there was not an adequate

hearing, all claims can be asserted as a defense in

federal or state enforcement proceedings under 5

U.S.C. §703. This section provides:

“Except to the extent that prior, adequate, and

exclusive opportunity for judicial review is pro-

vided by law, agency action is subject to judicial

review in civil or criminal proceedings for judicial

enforcement.”

The Court held that this applies in the face of the

thirty-day review period. Since here there was no

adequate prior opportunity for review, defendants are

entitled to assert all defenses.

B. Criminal Penalties Require Precise Regula-

tions.

The statute imposes criminal penalties of $25,000 a

day fines and a year in prison for violation of an order

of the EPA. 42 U.S.C. §1857¢-8(¢c) (1) (now §7418).

The Administrator has issued an order to the state

and the Director of Highway Safety and thus they are

subject to those criminal penalties if the regulation

applies to them. Administrative regulations, especially

those bearing criminal penalties, are subject to the

same requirements of definiteness as statutes are. M.

Kraus & Bros. v. United States, 327 U.S. 614 (1946) ;

Sentner v. Colarelli, 145 F. Supp. 569, 578 (E.D. Mo.

1956), aff’d., Barton v. Sentner, 353 U.S. 963 (1957).

In Diamond Roofing v. Occupational S. & H. Rev.

Commission, 528 F. 2d 645 (5th Cir. 1976) at page

649 the Court held that where violation of a regulation

imposes criminal or civil penalties, regulations cannot

be interpreted to mean what the agency intended to

say, but did not adequately express. Meehan v. Macy,

392 F. 2d 882 (D.C. Cir. 1968); Cole v. Young, 351

U.S. 536 (1956).

In Cole the Court held that ambiguities should be

resolved against the government where it was the

government that wrote the order and failed to explicitly

state what it meant to say.

C. Administrative Interpretation Is Not Deferred

To Where Criminal Penalties Are Imposed.

In U.S. v. Rust Communications Group, 425 F. Supp.

1029 (E.D. Va. 1976) it was held that ordinarily the

administrative agency’s interpretation is given great

deference, but this does not apply if there is a criminal

penalty, citing M. Kraus & Bros. v. U.S., and Boyce

Motor Lines v. U.S., 342 U.S. 337 (1950). In Kraus

this Court said, 327 U.S. 614, 621, that administrative

rules defining who suffers the criminal penalties con-

tained in a statute passed by Congress, are subject to

the same strict rules of construction as criminal

statutes are. Further this Court said on the next page

that “Not even the Administrator’s interpretations of

his own regulations can cure an omission or add cer-

tainty and definiteness to otherwise vague language.”

The Administrator’s interpretation had been consistent

but this Court rejected it.

This Court also noted that in other regulations in-

volved in Kraus more precise language was used. The

District Court here found that it was open to doubt

whether Ohio was included, and noted that other

regulations were more precise, but then ruled that

Ohio was included if the regulation was read fairly.

The Court of Appeals affirmed.

21

The opposite result should be reached. The Court

based its finding on the fact that Cincinnati is not the

one who registers cars so the regulations must have

meant Ohio since only it has the legal power to do this.

But this Court said that uncertainty cannot be cured

by supplying what the administrative agency omitted,

that where criminal penalties apply precision is re-

guired, and that an interpretation should be based on

the inexorable command of relevant language. That

standard is not met here and the cross-appeal should

be sustained.

The basis for judicial deference to an administrative

agency’s interpretation of its regulation is usually the

expertise of the agency in its own area. Perine v. Wil-

liam Norton & Co., 509 F. 2d 114 (2d Cir. 1974). Here

no expertise is involved in interpreting the language.

The usual rule that the specific controls the general

applies to administrative law. In Spreckels v. Helver-

ing, 315 U.S. 626 (1942), it was held that a general

regulation defining items included in a program is not

controlling when a specific regulation excludes some

items in the general class. Here Ohio is generally in-

cluded in a preamble, but the specific plan for the

Cincinnati area does not include it and therefore Ohio

is not a party to this plan. As in Cole v. Young, 351

U.S. 536 (1956), failure of the government to state

explicitly what was meant is the government’s fault

and ambiguity should be resolved against it. Because

the regulation does not clearly apply to the state and

the Director, it was error for the Court to rule that it

does.

The District Court held that since only the state can

revoke license plates the plan should be construed to

include it and the Court of Appeals affirmed. But

-s%

22

Cincinnati has an inspection program and it is being

enforced. Since the United States says that the rejected

Ohio plan was only marginally inadequate, and then

imposed the inspection plan which is being enforced

by the city, revocation of license plates is not required

to attack pollution. In any event the plan provides two

methods of enforcement. After December 31, 1975, no

program in the County of Hamilton, the City of Cin-

cinnati, the State of Ohio, shall allow the registration

of title, or allow the operation on streets, roads, or high-

ways under its control of any light-duty, spark-

ignition-powered motor vehicle.

For the Court to say that since registration is done

by the state, the state must be deemed included, is to

ignore the fact that enforcement by the city is occurr-

ing. Under these circumstances the Court in striving

to interpret the regulation, has by-passed the enforce-

ment of the city, and supplies words that the agency did

not include. It has rewritten the regulation to cure the

defect.

The Court of Appeals says that since this enforce-

ment action is civil, not criminal, very strict construc-

tion is not required. This begs the question, since peti-

tioners are now bound by the interpretation and could

not raise the defense in a subsequent criminal proceed-

ing, because the judicial ruling on the meaning of the

language would be res judicata between these parties.

Thus, the reasons advanced by the District Court

for including Ohio are not correct. The regulation is

too ambiguous to sustain criminal penalties and con-

trols are being enforced.

Therefore the cross-appeal should be sustained and

the portion of the District Court’s decision applying

regulation 40 C.F.R. 52.1878(e) to Ohio should be

23

reversed and final judgment entered for cross-appel-

lants.

CONCLUSION

The Court of Appeals for the Sixth Circuit has de-

cided that it is constitutional for a United States Dis-

trict Court to issue an injunction against a state

government ordering it to enforce a pollution control

plan promulgated by the United States Environmental

Protection Agency, rather than the EPA proceeding

to enforce the pollution control plan itself when the

state fails to do so. The Court finds that when the state

refuses to enforce the EPA plan that the state is then

itself a person violating the implementation plan and

thus subject to the enforcement procedures authorized

by Congress to be taken against persons violating

pollution control plans. No other Court of Appeals has

made this kind of a decision interpreting the Clean Air

Act and other Courts of Appeals have specifically ruled

that the EPA has no such authority and therefore the

Courts should not issue such an injunction. There is

thus a direct conflict between this decision of the Court

of Appeals for the Sixth Circuit and the decisions of

the Court of Appeals for the Fourth Circuit and the

Ninth Circuit. The Court in upholding the order to the

state to ban registration of the cars not meeting the

EPA exhaust fume standards, also relies on the deci-

sion of the Court of Appeals for the District of Co-

lumbia Circuit, which it interprets as upholding the

inspection and maintenance regulations including a

registration ban. The decision of the District of Co-

lumbia Circuit however does not uphold such a ban

unless the vehicle owner was unable to produce a

federal certificate of compliance, so the Court of Ap-

24

peals for the Sixth Circuit differs sharply from the

decision of the District of Columbia Circuit on this

point. The D. C. Circuit specifically held that the EPA

could not compel a state to become involved in adminis-

tering the regulatory scheme promulgated by the

Administrator, and there is a specific conflict here as

well.

The Court purported to follow this Court’s decision

in National League of Cities v. Usery, 426 U.S. 833

(1976), but the Court specifically ruled that there was

no state facility involved here, and therefore the Court

has expanded on this Court’s rulings on limitations of

the commerce power and has done so without a proper

basis.

The pollution control plan promulgated by the EPA

is invalid on its face as a denial of equal protection.

Cars registered in Ohio are controlled but cars which

are registered in Kentucky and Indiana within the

same air quality control region are not, even when

they drive in Cincinnati and contribute to air pollu-

tion. Thus the plan discriminates between people who

drive cars in Cincinnati without any rational basis

considering the objectives of the plan and is a denial

of equal protection.

The plan itself is directed entirely towards the City

and the County and details several things that they

are required to do to control exhaust fumes from spark

ignition vehicles. More than two years after expiration

of the time for appeal to the United States Court of

Appeals concerning the terms of the plan, the EPA

suddenly interprets the plan to require the State of

Ohio to do something. It is submitted that since the

statute provides heavy criminal penalties of twenty-

five thousand dollars a day fines and up to a year in

25

prison as punishment, that the EPA cannot interpret

the plan this way without clear language making it

applicable to the petitioners. There is no such language

in the plan and therefore this decision is a denial] of

due process and a violation of the Fifth Amendment.

The Court says (see App. pg. A-18) that to proceed

by displacing the state as regulator of motor vehicles

during a “period of federally assumed enforcement”,

would be a more drastic remedy than the one chosen

by the EPA. But the Fourth Circuit said in 530 F.2d

at 227 that administrative expediency is not a reason

for violating constitutional principles, and whether or

not many federal employees go into a state to enforce

a law is beside the point.

This decision upholds a violation of the Constitution

and should be reversed.

Respectfully submitted,

WILLIAM J. BROWN

Attorney General

DONALD J. GUITTAR

Assistant Attorney General

Chief, Transportation Section

HALSTEAD L. STETTLER

Assistant Attorney General

Counsel of Record

25 South Front Street

P.O. Box 899

Columbus, Ohio 43216

(614) 466-3036

Attorneys for Petitioners

January.3@ , 1980

APPENDIX

A-1

APPENDIX A

No. 78-3306

No. 78-3307

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

Cross-Appellee,

V.

OHIO DEPARTMENT OF HIGHWAY SAFETY

AND DONALD D. COOK, DIRECTOR

Defendants-A ppellees,

Cross-A ppellants.

APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN

DISTRICT OF OHIO

Decided and Filed December 5, 1980.

Before: WEICK, LIVELY and MERRITT, Circuit

Judges.

LIVELY, Circuit Judge, delivered the opinion of the

Court, in which MERRITT, Circuit Judge, joined.

WEICK, Circuit Judge, (pp. 21-23) filed a separate

dissenting opinion.

LIVELY, Circuit Judge. This case arises under the

Clean Air Act, as amended, (the Act) 42 U.S.C. |

§ 7401, et seg.’ The issue on appeal concerns the en-

1 The Clean Air Act was first enacted in 1955 and there have

been frequent amendments, most notably in 1970 and 1977. At

the time this litigation began the Act was codified at 42 U.S.C.

§ 1857, et seg. The 1977 amendments rearranged many pro-

visions of the Act and recodified it at 42 U.S.C. § 7401, et seq.

A-2

forcement powers of the United States Environmental

Protection Agency (EPA) against a state which fails

to perform an act required of it by a provision of an

implementation plan promulgated by EPA. The spe-

cific question to be decided is whether the State of Ohio

is subject to the Act’s enforcement provisions for its

failure to deny registration to vehicles which have not

passed inspection and maintenance emission tests re-

quired by an EPA-promulgated provision of the state

implementation plan.

a

1.

As required by the Act, the State of Ohio adopted an

implementation plan for each air quality control region

within the State and several metropolitan interstate

regions. Upon finding that the Ohio plan was not ade-

quate to assure attainment and maintenance of the

primary standard for photochemical oxidants in the

Cincinnati area, EPA denied approval to a portion of

the Ohio plan. As permitted by section 110(<) of the

Act, 42 U.S.C. § 7410(c), on November 8, 1973, EPA

supplemented the state implementation plan by pub-

lishing a regulation which required a vehicle inspec-

tion and maintenance program for Cincinnati and

Hamilton County, Ohio. 40 C.F.R. § 521878.

This regulation provides in part:

(e) After December 31, 1975, no program in the

County of Hamilton, the City of Cincinnati, the

State of Ohio shall allow the registration of title, or

allow the operation on streets, roads, or highways

under its control of any ligh uty, spark-ignition-

powered motor vehicle subject to the inspection pro-

aoe (s) established pursuant to this section that

oes not comply with the applicable standards and

A-3

procedures, as defined in paragraph (d) (2) of this

section This shall not apply to the initial registration

of new vehicles.

Upon adoption, this regulation became part of the Ohio

implementation plan.”

Cincinnati and Hamilton County set up inspection

facilities which complied with the requirements of the

regulation. However, the State of Ohio has refused to

withhold registration from vehicles which have not

passed emission inspection. After issuing a notice of

violation on March 15, 1976 and an order to comply

on June 22, 1976, EPA brought this action in the dis-

trict court pursuant to section 118(a) (1) of the Act,

42 U.S.C. § 7413(a) (1), on November 18, 1976. Sec-

tion 113(a) (1) (then codified at 42 U.S.C. § 1857-8

(a) (1) ) provides.

§ 1857c-8. Federal enforcement procedures

(a) Determination of violation of applicable imple-

mentation plan or standard; notification of vio-

lator; issuance of compliance order or initiation

of civil action upon failure to correct; effect of

compliance order ; contents of compliance order.

(1) Whenever, on the basis of any information

available to him, the Administrator finds that any

person is in violation of any requirement of an ap-

plicable implementation plan, the Administrator

shall notify the person in violation of the plan and

the State in which the plan applies of such finding.

* Section 52.1878(e) was not challenged by a petition for re-

view. Thus, we treat it as a lawful regulation and are concerned

only with the proper interpretation of the regulation, the

validity of the order of June 22, 1976, referred to, infra, and

the power of EPA to enforce it by court action. See Adamo

Wrecking Co. v. United States, 484 U.S. 275, 282 (1978).

A-4

If such violation extends beyond the 30th day after

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

ministrator may issue an order Pip pp lap person

to comply with the requirements of such plan or he

may bring a civil action in accordance with subsec-

tion (b) of this section.

The relief sought by EPA was in injunction ordering

the Ohio Department of Highway Safety and its direc-

tor (collectively “the State” or “the State of Ohio”) to

comply with the June 22nd order.*

After considering submissions of the parties and of

amici curiae, the district court granted the State’s

motion to dismiss. In an unpublished memorandum the

district court found that section 113 (a) (1) does not

provide an enforcement mechanism against a state

which fails to comply with the requirements of an

implementation plan.

The district court reached its conclusion by con-

sidering section 118(a) (2) along with section 113(a)

(1). The court determined that the statutory scheme

permits an action pursuant to section 113(a) (1)

against individual violators of the requirements of a

plan but not against a state for failing to enforce the

plan. On the other hand, the court found that section

118(a)(2) is the proper vehicle when failure of a

state to enforce a plan results in widespread violations.

Section 113(a) (2) provides:

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

able to him, the Administrator finds that violations

of an applicable implementation plan are so wide-

spread that such violations appear to result from a

8 Section 113(b) permits an action for an injunction, or to

assess a penalty of not more than $25,000 per day of violation,

against violators of state implementation plans.

A-5

failure of the State in which the plan applies to en-

force the plan effectively, he shall so notity the State.

If the Administrator finds such failure extends be-

yond the 30th day after such notice, he shall give

ublic notice of such finding. During the period

ginning with such public notice and ending when

such State satisfies the Administrator that it will

enforce such plan (hereafter referred to in this sec-

tion 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 re-

quirement, or

(B) by bringing a civil action under subsection

(b) of this section.

The district court summarized its holding as follows:

I am convinced that if the Administrator is con-

fronted with a non-enforcing state, his procedure

under this statute is governed by subsection (a) (2)

of § 1857c-8 [§ 113], which specifically concerns a

case where violations are so widespread that they

ap to result from the state’s non-enforcement.

I do not believe that the Administrator can avoid

proceeding under subsection (a)(2) by including

specific state enforcement avenues in his § 1857c-5

AY [§110(c)] promulgations and then issuing

orders against the state under subsection (a) (1).

Il.

A.

EPA contends that highways are treated the same

under the Act as state-owned automobiles or power

plants. That is, highways are themselves sources of

pollution. Thus it argues that the only thing involved

in this case “is the State’s duty, as owner and operator

of its highways, to comply with a valid federal regula-

-*%

>.

A-6

tion prohibiting registration of automobiles which

have not complied with the emission inspection pro-

gram.” Since the State is a “person” within the mean-

ing of the Act, EPA argues that a state which fails

to perform a duty imposed upon it by an implemen-

tation plan is a person in violation of such plan within

the meaning of § 113(a) (1). According to EPA, the

district court misunderstood the different roles which

section 118(a) (1) and section 113(a) (2) play in the

enforcement of implementation plans. EPA argues

that section 113(a)(1) is designed for enforcement

against individual polluters including the state itself.

Section 113(a) (2) offers the alternative of a “period

of federally assumed enforcement” where the state has

permitted widespread violations by its failure to en-

force a plan. The fundamental error of the district

court, according to EPA, was its failure to realize

“that this regulation [the registration ban contained

in 42 C.F.R. § 52.1878(e) ] does not invoke the power

of the Administrator to force a state to regulate others

but rather invokes the power of the Administrator to

regulate the State itself.”

EPA supports its arguments with references to the

legislative history, particularly that pertaining to the

1977 amendments. It maintains that vehicle inspection

and maintenance programs are an integral part of the

Act which Congress has found to be feasible and pro-

ductive in the reduction of emissions. EPA points out

that vehicle registration has long been used by the

State as a means of regulating use of public highways

* Section 208(e) of the Act, 42 U.S.C. § 7602(e) provides:

“the term ‘person’ includes an individual corporation, partner-

ship, association, state, municipality . . .,.” when used in the

Act.

A-7

as well as raising revenue for their construction and

maintenance. Thus, the purpose of the registration ban

is to require the State to modify the management of a

facility which contributes to pollution. Rather than im-

posing some far-reaching new or expensive program

on the State, contends EPA, the regulation merely

requires it to change the manner in which it uses a

“proprietary management tool.”

B.

The State of Ohio views the matter in a sharply

different light. In the first place, the State denies it is

an “operator” of highways. It is the builder and owner

of the roads, but the only “operation” consists of in-

dividuals driving vehicles over them. Thus, any pollu-

tion which arises from the State’s ownership of the

roads is that caused by drivers, and EPA’s enforce-

ment efforts should be directed to the pollution-causing

act. The State concedes that it could be sued under sec-

tion 113(a) (1) if it operated vehicles which violated

the emission limitations. This is quite different, how-

ever, from merely owning highways which attract

vehicles whose emissions create air pollution, it con-

tends. Thus, the State argues that section 113(a) (1)

is designed to require compliance by persons whose

activities cause the pollution, not as a mechanism for

requiring the states to enforce an EPA plan. The term

“any person” as used in section 118(a)(1) refers to

active polluters, not to the mere owners of facilities

which at most indirectly cause pollution.

As the State views the statutory scheme, Congress

has given the states the first opportunity to enforce

implementation plans. If the default of a state consists

of failure to enforce a plan, there is no authority for

A-8

direct action against the state under section 113(a)

(1). Rather, in this situation, EPA is authorized to

enforce the requirements of the plan directly against

violators during a “period of federally assumed en-

forcement.” 42 U.S.C. § 7413(a) (2).

The State contends that nothing in the Act indicates

a Congressional intent to treat the states as viclators

of implementation plans by reason of their ownership

of highways. It disputes EPA’s argument that the

legislative history, consisting primarily of post-1970

remarks of individual members of Congress, supports

its theory. The State maintains that the Act is obvi-

ously structured in contemplation of cooperation be-

tween state and federal authorities. When this cooper-

ation breaks down, for any reason, EPA is authorized

to enforce a plan directly pursuant to section 113(a)

(2). However, this is done by displacing the state as

enforcer, not by requiring the state to enforce pro-

visions of a plan which were devised by EPA. The

State of Ohio asserts that if Congress had intended to

authorize direct actions against the states, a departure

from traditional state-federal relations, it would have

made its intention clear and would not have moved

into this sensitive area by indirection.

The State also argues that if the Act should be con-

strued in accordance with EPA’s contentions it must

be held unconstitutional. The State cites Article IV,

Section 4 of the Constitution and the Fifth and Tenth

Amendments, and places particular reliance on Na-

tional League of Cities v. Usery, 426 U.S. 833 (1976).

Ii.

The precise issue in this case — whether EPA may

proceed directly against a state to require enforcement

A-9

of an EPA-promulgated provision of an implementa-

tion plan — appears not to have been treated by any

court, at least in its present setting. However, EPA

regulations prescribing vehicle inspection and mainte-

nance programs have been the subject of petitions for

review by a number of states. The results have not

been uniform. In Brown v. EPA, 521 F.2d 827 (9th

Cir. 1975) (Brown I), the court held that the Act

does not authorize sanctions against a state or its offi-

cials for failure to regulate pollution-creating activi-

ties of others than itself. “Tersely put, the Act, as we

see it, permits sanctions against a state that pollutes

the air, but not against a state that chooses not to

govern polluters as the Administration directs.” Id. at

832. EPA did not contend in Brown I that the State

of California was a polluter by reason of its ownership

of highways. It merely sought to treat the State as a

violator for its failure to enforce an implementation

plan.

In District of Columbia v. Train, 521 F.2d 971 (D.C.

Cir. 1975), the District of Columbia, the State of

Maryland, the Commonwealth of Virginia and several

political subdivisions in the metropolitan Washington

area sought review of a regulation establishing a

vehicle inspection and maintenance program. After a

thorough analysis of the Act, the court concluded that

authority to require the states to deny registration to

non-complying vehicles had been neither expressly

granted nor withheld by Congress.

5 Friends of the Earth v. Carey, 552 F.2d 25 (2d Cir.3, cert.

denied, 434 U.S. 902 (1977), is distinguishable in several re-

spects. It was a citizen suit rather than an action by EPA.

Moreover, the provisions in question had been formulated by

the State and City of New York, not by EPA.

A-10

As discussed above, the on language of the

Act suggests that Congress did not confer such au-

thority 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 spe-

cifically 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 func-

tion such as he gant and licensing motor vehicles.

At least in the case of inspection and maintenance

programs, it is id inten from the legislative history

that Congress did intend that the states would be

required to cooperate in administering a federal air

ue program.

521 F.2d at 987. Noting the broad authority granted

to the Administrator in the formulation of implemen-

tation plans, and giving due deference to that official’s

interpretation of the Act, Udall v. Tallman, 382 U.S. 1

(1965), the court upheld the inspection and mainte-

nance regulations, including the registration ban.

A similar determination was made in Common-

wealth of Pennsylvania v. EPA, 500 F.2d 246 (3d Cir.

1974). The court’s conclusion that EPA is authorized

to require a state to enforce EPA’s transportation con-

trol plan was buttressed by the “great deference’’ re-

quired to be given the agency’s interpretation that

direct federal enforcement was not the means contem-

plated by the Act. Jd. at 257. On the other hand, on

petition for review, a set of regulations which directed

the State of Maryland to adopt binding regulations

and enact legislation to include vehicle inspection and

maintenance requirements was held invalid in State

of Maryland v. EPA, 530 F.2d 215 (4th Cir. 1975).

The judgments of the courts of appeals in the cases

from California (Brown I), the District of Columbia

A-11

and the State of Maryland were vacated by the Su-

preme Court in EPA v. Brown, 481 U.S. 99 (1977).

The action o2 the Supreme Court was based on EPA’s

determination not to seek review of the invalidation of

certain regulations and its concession that the remain-

ing ones were invalid unless modified. Thus, the Su-

preme Court did not reach the question now before this

court.

In Brown v. EPA. 566 F.2d 665 (9th Cir. 1977)

(Brown II), the court consolidated a new petition by

the State of California to review revised regulations

with the case remanded by the Supreme Court. In

Brown II the Court adhered to its previous decision

that neither section 113(a) (1) nor section 118(a) (2)

of the Act authorized sanctions against the State or its

officials for failing to comply with transportation con-

trol regulations. In support of its revised regulations

EPA made the argument upon which it relies in the

present case — that the State is itself a polluter by

reason of its ownership of streets and highways and

that it can be required under section 113(a)(1) to

comply with measures designed to reduce pollution

caused by emissions from vehicles owned by others

and operated on such public ways.

The court in Brown IT noted that the Clean Air Act

contained no mention of “indirect sources” of pollu-

tion prior to the 1977 amendments. The 1977 amend-

ments provided for “indirect source review programs”

at the election of the states, but denied EPA the right

to require such programs.® The court reasoned that the

“limited” authority granted the Administrator to pro-

mulgate indirect source review programs was incon-

® 42 U.S.C. § 7410(a) (5) (1976 ed., Supp. I).

ss

A-12

sistent with the “expansive indirect source concept”

urged by EPA. 566 F.2d at 671. However, Brown II

was also a review of EPA regulations and the court

was not required to determine whether section 113

empowers EPA to proceed directly against a state for

failure to comply with a provision of a plan.

IV.

A.

We look first to the language of the Act itself, par-

ticularly section 110 (42 U.S.C. § 7410) which deals

with state implementation plans. Each state is re-

quired to adopt a plan for implementation. mainte-

nance and enforcement of the national primary am-

bient air quality standard in each air quality control

region of the state within nine months after promul-

gation of the national standard by EPA. 42 U.S.C.

§ 7410(a) (1). The administrator of EPA is required

either to approve or disapprove each plan, or any por-

tion thereof, within four months after the date re-

quired for submission. 42 U.S.C. § 7410(a) (2). In

order to be approved each state implementation plan

must provide, inter alia, “to the extent necessary and

practicable, for periodic inspection and testing of

motor vehicles to enforce compliance with applicable

emission standards... .” 42 U.S.C. § 7410(a) (2) (G).

EPA construes this provision as a more particular

statement of the general requirement that each plan

include emission limitations and other measures neces-

sary for attaining and maintaining the primary air

quality standard, including “transportation controls.”

42 U.S.C. § 7410(a) (2) (B).

EPA is authorized to disapprove a state implemen-

tation plan if it is determined that the plan fails to

A-13

provide for vehicle inspection ‘“‘to the extent necessary

and practicable.” Further, EPA is authorized to pro-

mulgate a state implementation plan, or portion there-

of, upon finding that one adopted by a state is deficient.

42 U.S.C. § 7410(c) (1) (B). However, we find nothing

in the language of section 110 which indicates a Con-

gressional intent either to permit EPA to require a

state to enforce a portion of an implementation plan

promulgated by EPA or to treat a state as a polluter

by reason of its ownership of streets and highways.

B.

We next look to the language of section 113, which

was added to the Act as part of the 1970 amendments.

Pub. L. 91-604, § 4(a), 84 Stat. 1686. This section is

captioned ‘Federal Enforcement.” Laws of 91st Cong.

2d Sess., [1970] 1 U.S. Code Cong. & Adm. News at

1966. Read in its entirety this section appears to deal

with direct enforcement by EPA. Section 113(a) (1)

requires that notice of a finding of a violation be given

to “the person in violation of the plan and the State in

which the plan applies ....” If the violation continues

for 30 days, EPA may issue an order or bring a civil

action against the violator. The logical interpretation

of these provisions is that the notice to the state is

designed to give the state an opportunity to bring

about an abatement of a violation. If this is not accom-

plished within 30 days, EPA is authorized to act di-

rectly against the violator. Section 113(a)(2) pro-

vides identical remedies to EPA when widespread vio-

lations have occurred as a result of failure of the state

to enforce the plan effectively. Other than including

states within the meaning of “any person” there is no

A-14

explicit authorization in the Act for EPA to bring a

direct action against a state under section 112(a) (1).

C.

EPA argues that the legislative history makes it

clear that Congress intended to provide for direct

action against states under section 113(a) (1). Section

113 was added to the Act as part of the Clean Air

Amendments of 1970. There is little contemporaneous

legislative history concerning this section. However,

when Congress was considering the 1977 amendments

to the Act, there were several references in reports

and debate to section 113.

In reporting on a committee proposal, the Committee

on Interstate and Foreign Commerce made the follow-

ing statement:

This section envisions that the States will under-

take to adopt and enforce the inspection and main-

tenance program.** In the event a State to which

this section applies fails or refuses to adopt such an

I/M system in its plan,*® then the Administrator

would be required to promulgate such a program for

the tie? region(s) in that State under sec-

tion 110(c) of the Act.

*4* This does not mean that the I/M system must be State-

owned and operated. It may be State licensed, but operated

by private service stations or by a turnkey contractor. It may

be operated in conjunction with, or separate from, safety in-

spection and maintenance programs and facilities, although the

Committee encourages coordination of safety and emission I/M

programs. These are decisions which the State is permitted to

make if it adopts and enforces such an I/M program under this

section.

25 The State may, of course, adopt more stringent standards

and/or test procedures under section 116 of the Act and these

would be approvable by the Administrator.

A-15

Once the I/M program has become part of an

“applicable implementation plan” (whether by State

adoption and EPA approval or by promulgation of

the Administrator), then enforcement and imple-

mentation can occur in several possible ways. Most

preferably, the State may agree voluntarily to im- |

plement and enforce the I/M program. Other options

include (1) inducing the State to do so, by offering

grants under section 210 of the Act or by withholdin

part of a State program grant under section 105 o

the Act or by such other means as have been held

ermissible by the Court in District of Columbia v.

rain; (2) delegating authority to general purpose

local governments to implement and enforce the pro-

gram under section 303 of the bill; (3) if feasible,

providing for Federal me a and enforce-

ment of the program (including Federal licensing of

private I/M centers, or turnkey operations, and im-

osing Federal inspection fees) ; or (4) seeking in-

junctive relief under section 113 of the Act; or (5) a

combination of the above. It should be noted that the.

various mechanisms for obtaining voluntary com-

pliance (¢.g., withholding of program grants) are

intended to provide alternatives to enforcement ac-

tions under section 113, thus allowing the Adminis-

trator to avoid compulsion where implementation of

the necessary actions can be assured by other means.

In addition, in accordance with the decision of the

Court in District of Columbia v. Train, the Com-

mittee has concluded that effective enforcement of

this section requires a prohibition on the State regi

tration (including licensing) of any gran ba

movor vehicle.“ The Committee agreed with that

26 Such a prohibition is to be included in each “applicable im-

plementation plan” to which this section applies and may be

enforced under section 118 of the Act against the State. The

regulations, however, should permit operation of noncomplying

vehicles for a reasonable temporary period to permit appropri-

ate repair or adjustment.

~~

A-16

enn that such a measure would be constitutionally

valid.

H. Rep. No. 95-294, reprinted in [1977] 2 U.S. Code &

Cong. Adm. News at 1369-70.

In discussing the Senate version of the 1977 amend-

ments Senator Muskie one of the principal authors of

the 1970 amendments, made the following statement:

In view of the time that has elapsed since enact-

ment of the 1970 amendments, it is regrettable that

legal uncertainties have held up implementation of

inspection and maintenance programs and other

necessary measures. EPA’s authority to promulgate

transportation control measures requiring the States

to take action, where necessary, and to compel com-

pliance with such requirements, where necessary, is

clear in sections 110 and 113 of existing law. Al-

though this is a delicate area of Federal-State rela-

tions, it is appropriate to require affirmative State

action in the field of transportation controls where

this proves necessary to protect the public health.

By providing roads and highways that facilitate

and encourage extensive use of motor vehicles, the

States have played a substantial, if unintentional

role in causing the pollution problems that result.

And, as a practical matter, State and local govern-

ments are in a better position than EPA to attack

those problems, which involve millions of motor

vehicles, phen inspection and maintenance pro-

grams and similar measures.

In addition, the scheme contemplated by the act

is a reasonable approach to this problem, one that is

designed to involve the least possible intrusion into

State affairs consistent with the task that is neces-

sary. The 1970 amendments were carefully drawn

to provide the States with maximum flexibility and

discretion in developing plans under section 110 of

the act, so long as the essential objective — attain-

A-17

ment and maintenance of the national ambient air

quality standards — was met. Thus, the States ma

make the basic policy choices, if they wish in devel-

oping inspection and maintenance programs and

simliar measures: Federal promulgation is required

only if the States default.

For all these reason, I hope that further progress

in this area will not be stalemated by legal uncer-

tainties, and I urge EPA to continue to press for

implementation of the necessary programs.

It should be noted that the various mechanisms

provided to induce voluntary State implementation

of approved or promulgated measures, such as cut-

offs of highway funds for failure to implement such

measures, are intended to provide alternatives to

injunctive actions under section 113, thus allowing

the Administrator to avoid compulsion where he

believes that implementation can be assured by other

means.

Cong. Rec. $9168 (June 8, 1977).

It should be noted that references both in the report

and statement were to section 113, without distinguish-

ing between 113(a) (1) and 113(a) (2). The regulation

which makes a violator subject to an enforcement

action is equally imprecise. It provides that failure to

comply with “any approved regulatory provision of a

state implementation plan’ renders the person or gov-

ernmental entity so failing “subject to enforcement

action under section 113 of the Clean Air Act.” 40

C.F.R. § 52.23 (1976). However, a reasonable mean-

ing of these comments is that both procedures set forth

in section 113 are available when violations of an im-

plementation plan result from failure of a state to

carry out a duty imposed upon it by a plan. There is

no indication in the legislative history that EPA is

'*%

A-18

limited to proceeding under section 113(a) (2) in every

situation where a state is an offending party.

D.

The district court was faced with a difficult problem

of statutory construction and properly sought an inter-

pretation which would not require a decision on the

constitutionality of the Act. However, when section

113 is examined in its entirety it is not clear that (a)

(1) and (a) (2) prescribe different means of enforce-

ment under different sets of circumstances as con-

tended by the State. They may be read to provide alter-

native mechanisms for dealing with a state’s failure

to comply with the provisions of an implementation

plan. Both subsections permit proceedings against “any

person” in violation of “any requirement” of an im-

plementation plan. 40 C.F.R. § 52.1878(e) makes it a

requirement of the Ohio plan that vehicles which do

not comply with inspection and maintenance standards

be denied registration and the right to operate on the

public streets and highways of Cincinnati and Hamil-

ton County. By refusing to comply with this require-

ment the State of Ohio became a “person” in violation

of a provision of the plan. To proceed under section

113(a) (2), in effect displacing the State as regulator

of motor vehicles during a “period of federally assumed

enforcement,”’ would be a more drastic remedy than

the one chosen by EPA in this case.

As the legislative history makes clear, EPA has at

its disposal several mechanisms for obtaining volun-

tary compliance by a state. When these fail, and resort

is had to section 113, we find nothing in the language

of the Act which requires EPA to utilize (a) (2)

A-19

rather than proceeding directly against the state, as

it could against any other person in violation, pursuant

to section 1138(a) (1). Under these circumstances we

are constrained to agree with the interpretation of the

Act adopted by the Administrator and hold that EPA

properly proceeded against the State under section

113(a) (1). Therefore, we conclude that the district

court erred in its holding to the contrary.

We do not reach this conclusion on the basis of EPA’s

argument that the State is itself a polluter by reason

of its ownership of streets and highways. We find

nothing in the Act or legislative history to support this

strained construction. Senator Muskie’s reference to

the “substantial, if unintentional. role” of the states

in causing pollution does not support EPA’s argument.

Ownership and control of streets and highways along

with the historic practice of licensing vehicles, how-

ever, do combine to provide a completely rational basis

for placing upon the State the obligation to prevent

use of these facilities by noncomplying vehicles. When

the State fails to perform that duty it becomes a person

in violation of a requirement of the implementation

plan. As a violator, the State is subject to the enforce-

ment procedures of section 113(a) (1). We prefer this

straightforward interpretation of the Act to the con-

voluted arguments of EPA.

V.

Our holding above requires treatment of the consti-

tutional arguments put forward by the State. The

State of Ohio does not dispute the fact that air pollu-

tion is a national problem and that its control by Con-

gress is within the authority granted by the Commerce

A-20

Clause. The State maintains, however, that requiring

it to enforce part of a plan promulgated by EPA repre-

sents an unconstitutional intrusion into its activities

ac a state.

In National League of Cities v. Usery, 426 U.S. 833

(1976), the Supreme Court held that the 1974 amend-

ments to the Fair Labor Standards Act were uncon-

stitutional in attempting to extend minimum wage and

maximum hour provisions to employees of states and

political subdivisions. The Court considered the costs

which the states would incur if required to comply

with the FLSA. Beyond that, however, the Court con-

cluded that the effect of the 1974 amendments would

be to displace state decisions and policies and possibly

require substantial restructuring of the traditional

ways in which states have chosen to manage their

affairs.

The critical question, as stated by the Supreme Court

in National League of Cities, supra, 426 U.S. at 851,

is whether the federal action “will impermissibly inter-

fere with the integral governmental functions . . .” of

the state. It cannot be questioned that any injunctive

action by the United States against a state puts stress

on our federal system. Nevertheless, a scheme which

seeks to enforce state cooperation in an effort to deal

with a national problem will not fall under the pro-

scription of the Tenth Amendment if it leaves the

states free to make choices which are essential to their

functions as states. In the present action, EPA does

not seek to revamp the Ohio system of vehicle licensing

or, for that matter, of operating its streets and high-

ways. The regulation which EPA seeks to enforce does

not require the State to adopt legislation, establish new

A-21

regulatory agencies or change its procedures for regis-

tering vehicles. It merely requires the State to deny

use of state-owned facilities to those whose use adds

to the national problem of pollution. Further it does

not appear that compliance will entail large expendi-

tures by the State.

In National League of Cities, the Court reaffirmed

the vitality of its decision in Fry v. United States, 421

U.S. 542 (1975). In Fry the Supreme Court described

the Tenth Amendment as follows:

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 (1941), it is not without

significance. The Amendment expressly declares the

constitutional Spon that Congress may not exercise

power in a fashion that impairs the States’ ngs he!

or a ability to function effectively in a federal

system.

421 U.S. at 547, n. 7

We do not believe requiring Ohio to deny registration

to noncomplying vehicles will impair the integrity of

the State or its ability to function in the federal sys-

tem. The federal interest in controlling air pollution

far outweighs any state interest in permitting non-

complying vehicles to use public streets and highways.

Justice Blackmun filed a concurring opinion in Na-

tional League of Cities in which he wrote:

In my view, the result with respect to the statute

under challenge here is necessarily correct. I may

misinterpret the Court’s opinion, but it seems to me

that it adopts a balancing approach, and does not

outlaw federal power in areas such as environmental

protection, where the federal interest is demonstra-

’.%

A-22

bly greater ond where state facility compliance with

imposed federal standards would be essential.

426 U.S. at 856 (emphasis added).

We conclude that the provision permitting EPA to

enforce a regulation which requires the State to with-

hold registration from vehicles that do not comply with

applicable pollution standards and procedures repre-

sents a lawful exercise by Congress of its power to

regulate interstate commerce.

We have considered the State’s contention that the

proceedings under section 113(a)(1) violate Article

IV, Section 4 of the Constitution (guarantee to each

state of a republican form of government) and the

Fifth Amendment, but find them to have no merit.

VI.

In its cross-appeal the State makes two arguments.

In the first place it contends that 40 C.F.R. § 52.1878

(e) is ambiguous, and properly construed, should be

read to impose duties on Cincinnati and Hamilton

County, but not on the State. This argument is based

on the fact that there is no “connective word” between

the reference to the City and County and to the State.

However, only the State requires registration of title,

and it is clear that this requirement of the regulation

refers to the State. The regulation could have been

drawn more precisely, but we do not find it to be

ambiguous. The State also contends that the regulation

should be construed not to apply to it because it pro-

vides criminal penalties. This argument assumes an

ambiguity which we have found not to exist.

The State makes the somewhat related argument

that EPA’s interpretation of the regulation is entitled

A-23

to no special deference since the enforcement statute

(section 113(c)) provides criminal penalties. In this

action EPA did not seek criminal sanctions. It pro-

ceeded under section 113(b) which provides for an in-

junction or a civil penalty of $25,000 per day of viola-

tion, or both. The decision of the district court that 40

C.F.R. §52.1878(e! applies to the State as well as to

the City and County was made in an action in which

EPA sought an injunction only against the State. The

cross-appeal discloses no error on the part of the dis-

trict court in construing or applying the regulation.

The judgment of the district court is reversed on

direct appeal and affirmed on cross-appeal, and the

cause is remanded for further proceedings.

WEICK, Circuit Judge, dissenting:

I respectfully dissent. As the majority concedes, we

are treading on virgin territory. No court has ever

enforced upon a state any order similar to the one in-

volved here. I believe that District Judge Duncan

arrived at the correct result and I would affirm his

decision.

The Director of the State of Ohio Department of

Highway Safety had no legal authority to withhold

licenses to persons applying for them to operate their

automobiles, in order to enforce regulations adopted

by EPA which were claimed to have been violated not

widespread in Ohio, but only in the Cincinnati, Hamil-

ton County area. It would require legislation to be

enacted by Ohio’s legislature. The state legislature had

not enacted such enabling legislation and in its absence

EPA cannot proceed against a state officer who had

no authority to act nor could EPA order the state to

enact the necessary legislation.

|

A-24

The argument of EPA that because Ohio owns title

to the highways, it is a polluter and may be proceeded

against both criminally and civilly. This argument

borders on being frivolous. It is a non sequiter. If the

state operated a truck on the public highways in viola-

tion of an EPA regulation or operated a plant or

other facility in violation thereof, it could be proceeded

against directly by EPA. By no stretch of the imagina-

tion, however, could the state be held liable civilly or

criminally because of the violation by other persons of

EPA regulations merely because the state legislature

took no action enabling state officers to enforce federal

laws or regulations. This position of EPA was rejected

in Brown v. EPA, 566 F. 2d 695 (9th Cir. 1977). To

proceed against the state of Ohio under these circum-

stances not only deprives the state of due process of

law but of the equal protection of the law as guaran-

teed by the Constitution of the United States. It would

also violate the plainest principles of federalism. Na-

tional League of Cities v. Usery, 426 U.S. 833; United

States v. Best, 573 F. 2d 1095, 1103 (9th Cir. 1978).

The state should no more be required to enforce federal

laws than the federal government should be required

to enforce state laws.

Ohio is a sovereign state and has sovereign immunity

under the Eleventh Amendment to the Constitution. It

may not be sued in Ohio’s courts for damages by pri-

vate individuals. Kraus, Admr. v. State, 31 Ohio St. 2d

132 (1972). A suit against a state agency in Ohio is

in substance and effect a suit against the state and

may not be maintained. Wolf v. Ohio State University

Hospital, 170 Ohio St. 29 (1959); State ex rel. Wil-

liams v. Glander, 148 Ohio St. 188 (1947).

A-25

EPA obviously must not be very confident of the

merits of its case when it moved this court to dismiss

its appeal as moot because Ohio had enacted legislation

to implement its procedures but which in no way

governs, controls or applies to the issues of this appeal.

We ought to comply with EPA’s request and dismiss

its appeal not because the issues are moot but because

its appeal lacks merit and asserts grave constitutional

questions which should not be necessary for us to de-

cide. Cf. United States v. Washington, 573 F. 2d 1118

(9th Cir. 1978).

Other concessions made by EPA of the invalidity of

its own regulations were detailed by the Supreme

Court in EPA v. Brown, 431 U.S. 99 (1977). These

regulations were held invalid in Brown v. EPA, 521 F.

2d 827 (9th Cir. 1975); Arizona v. EPA, 521 F. 2d

825 (9th Cir. 1975); District of Columbia v. Train,

521 F. 2d 971 (1975); Maryland v. EPA, 530 F. 2d

215 (4th Cir. 1975). Because of these concessions the

Supreme Court remanded all four cases for considera-

tion of mootness and other questions. On remand, EPA

made a further concession that the statute does not

permit it to compel state enforcement. Brown v. EPA,

566 F. 2d 665, 659 n. 2 (9th Cir. 1977) ; District of

Columbia v. Costle, 567 F. 2d 1091 (D.C. Cir. 1977)

remanded for further administrative proceedings.

The conduct of EPA in coercing states to enforce

its regulations by withholding federal funds to which

the states were entitled for other purposes has been

condemned. See article in Wall Street Journal entitled

“Exhausting States’ Rights”, August 5. 1980.

-%

7.

A-26

APPLNDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVSION

UNITED STATES OF AMERICA,

Plaintiff

-V-

OHIO DEPARTMENT OF HIGHWAY SAFETY

AND DONALD D. COOK, DIRECTOR

Defendants

Case No. C-2-76-835

MEMORANDUM AND ORDER

On June 22, 1976, a regional administrator of the

Federal Environmental Protection Agency, purporting

to act under § 113(a) (1) of the Clean Air Act Amend-

ments of 1970, P.L. 91-604, 84 Stat. 1679, 42 U.S.C.

§ 1857c-8(a)(1), ordered defendant Department of

Highway Safety of the State of Ohio to comply with 40

C.F.R. § 52.1878(e). After the department and its

director failed and refused to comply with the regional

administrator’s order, the Attorney General of the

United States and the United States Attorney for the

Southern District of Ohio caused this enforcement

action to be filed pursuant to §113(b) of the 1970

amendments, 42 U.S.C. § 1857c-8(b). Plaintiff seeks

only injunctive relief.

Plaintiff has moved for summary judgment. The

facts are not in dispute. The questions presented here

are questions of law: whether defendants may contest

A-27

the legality of the regional administrator’s order be-

fore this Court in an enforcement proceeding and

whether the order is lawful under the statute and the

United States Constitution. The Court has reviewed

the memoranda submitted by the parties and by those

granted leave to appear as amici curiae, Ohio Antique

Automobile Clubs and Pacific Legal Foundation. The

Court has concluded, for reasons set forth hereinbelow,

that the June 22, 1976, order is not enforceable.

I

Put briefly, the Clean Air Act Amendments of 1970

required the Administrator of the EPA to promulgate

national primary and secondary ambient air quality

standards, required the various states to develop and

submit to the EPA an implementation plan covering

each air quality control region within the state, and re-

quired the Administrator to promulgate state imple-

mentation plans for states which failed to submit a

plan or for states whose plans were inadequate. See

$§ 109 and 110 of the amendments, 42 U.S.C. §§ 1857c-

4 and 1857c-5. See also Train v. National Resources

Defense Council, Inc., 421 U.S. 60, 64-67 (1975).

The State of Ohio submitted a state implementation

plan, but the Administrator found it inadequate be-

cause it did not “provide for the attainment and main-

tenance of the national standard for photochemical

oxidants (hydrocarbons) in the Metropolitan Cincin-

nati interstate region by May 31, 1975,” 40 C.F.R.

§ 52.1877

Acting pursuant to §110(c) of the 1970 amend-

ments, 42 U.S.C. §1857c-5(c), the Administrator pre-

pared and published as part of the Ohio implementation

A-28

plan 40 C.F.R. §52.1878, which pertains to Hamilton

County, Ohio, including the City of Cincinnati, see

§52.1878(b). Pursuant to the Administrator’s action,

both the county and the city have established inspection

and maintenance programs involving light-duty moter

vehicles operated within their jurisdictions.

II

Subsection (e) of 40 C.F.R. §52.1878 provides as

follows:

After December 31, 1975, no program in the

County of Hamilton, the City of Cincinnati, the State

of Ohio shall allow the registration of title, or allow

the operation on streets, roads, or highways under its

control of any light-duty, spark-ignition-powered

motor vehicle subject to the inspection program(s)

established pursuant to this section that does not

comply with the applicable standards and procedures,

as defined in paragraph (d) (2) of this section.

bs ee not apply to the initial registration of new

vehicles.

As a threshold matter, defendants argue that this

language imposes no duty upon the State of Ohio or its

Department of Highway Safety. Defendants read the

language to apply only to Cincinnati and Hamilton

County; the phrase “the State of Ohio” is not preceded

by a conjunction, and defendants insist that it merely

completes a legal description of the affected city and

county.

In similar regulations affecting other regions of the

country, the Administrator has done a better job of

indicating that non-registration provisions applies to

A-29

the state and its agencies.’ Although the regulation at

issue here is not as precise as others, in my view it is

both fair and reasonable to construe §52.1878(e) as

having application to the State of Ohio in general and

the Department of Highway Safety in particular.

Under Ohio law this department is required to “ad-

minister and enforce the laws relating to the registra-

tion [and] licensing . . . of motor vehicles.” R.C.

5502.01. The prohibition against registration of motor

vehicles must necessarily apply to the Ohio Department

of Highway Safety, because it is this department, not

Cincinnati or Hamilton County, which is charged under

law with regulating the licensing and registration of

Ohio motor vehicles. To construe the regulation to apply

only to the city and county would be to impose upon

Cincinnati and Hamilton County a responsibility which

they could not fulfill under Ohio law.

While purportedly acting pursuant to 42 U.S.C.

$1857¢-5(c), the Administrator promulgated §52.1878

as a part of Ohio’s implementation plan. Concerning

judicial review of such promulgations, §307(b) (1)

and (2) of the 1970 amendments, 42 U.S.C. §1857h-

5(b) (1) and (2), provides as follows:

A petition for review of the Administrator’s action

in approving or promulgating any implementation

1 The regulation affecting California, 40 C.F.R. §52.242(d),

is typical:

After September 30, 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 (c) of this

section. This shall not apply to the initial registration of a

new motor vehicle.

-*»

>.

A-30

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

filed only in the United States Court of Appeals for

the appropriate circuit. ag such petition shall be

filed within 30 days from the date of such promul-

gation, approval, or action, or after such date if such

tition is based solely on grounds arising after such

Oth day.

Action of the Admnisitrator with respect to which

review could have been obtained under paragraph

(1) shall not be subject to judicial review in civil

or criminal proceedings for enforcement.

The instant action is an enforcement proceeding

brought in a court of appeals. In United States v.

Adamo Wrecking Co., 545 F.2d 1, 6 (6th Cir. 1976),

stating that “there is no doubt that appellant could

have challenged the standard through the procedure

outlined in Section 307(b) (1) had it chosen to do so,”

the United States Court of Appeals for the Sixth Cir-

cuit held that the district court was without jurisdic-

tion to consider in a criminal enforcement proceeding

a defendant’s allegations that an emission standard

was legally invalid. Defendants in the present case do

not argue that they or the State of Ohio could not have

obtained review in the Court of Appeals of the Ad-

ministrator’s action promulgating §52.1878 as part of

Ohio’s implementation plan. Given the fact that the

regulation in question was promulgated as an amend-

ment to the state’s implementation plan, and given my

holding hereinabove that §52.1878(e), read fairly, has

application to the State of Ohio, it would appear that

many if not all of the statutory and constitutional con-

tentions now advanced by defendants are matters with

respect to which review could have been obtained in the

Court of Appeals. Perhaps it would seem to follow

under 42 U.S.C. §1857h-5(b) (2) and Adamo Wreck-

A-31

ing, supra, that this Court has no jurisdiction in this

enforcement proceeding to consider defendants’ col-

lateral attacks upon §52.1878(e).

Ill

Because plaintiff seeks to invoke the equitable powers

of this Court, and because there exists in §52.1878(e)

at least some ambiguity concerning its applicability to

the State of Ohio, the Court is hesitant to grant plain-

tiff summary judgment solely on the ground that the

State of Ohio did not petition the Court of Appeals for

review of subsection (e) when it was promulgated.

Moreover, notwithstanding the limitation upon review

found in §307(b), 42 U.S.C. §1857h-5(b), I perceive

it to be the district court’s responsibility in an en-

forcement proceeding to inquire whether the order

which the Administrator wants enforced was issued

in conformity with applicable statutory requirements.

The 1970 amendments provided that each state must

submit an implementation plan to the federal EPA.

Congress empowered the Administrator to disapprove

part or all of each submitted implementation plan, and,

upon such disapproval, to promulgate for the state an

acceptable plan. The amendments provide that the Ad-

ministrator “shall approve” a state‘s submitted imple-

mentation plan if, among other things, “it provides,

to the extent necessary and practicable, for periodic

inspection and testing of motor vehicles to enforce com-

pliance with applicable emission standards.” Section

110(a) (2) (G), 42 U.S.C. §1857c-5(a) (2) (G). Al-

though plainly contemplating that any approved plan

would include procedures for enforcing ‘compliance

with applicable emission standards” by means of “‘peri-

odic inspection and testing of motor vehicles,” this

>.

A-32

statutory language does not establish a particular kind

of enforcement procedure which must be utilized.

With respect to any approved state implementation

plan, whether drawn by a state pursuant to 42 U.S.C.

§1857c-5(a) or by the Administrator pursuant to 42

U.S.C. §1857c-5(c), the power of the Administrator

to compel compliance in the face of violations is gov-

erned by 42 U.S.C. §1857c-8(a) (1) and (2).? Sub-

242 U.S.C. §1857c-8(a) (1) and (2) provide as follows:

(1) Whenever, on the basis of any information avail-

able to him, the Administrator finds that any person is in

violation of any requirement of an applicable implementa-

tion plan, the Administrator shall notify the person in

violation of the plan and the State in which the plan ap-

plies of such finding. If such violation extends beyond the

30th day after the date of the Administrator’s notification,

the Administrator may issue an order requiring such per-

son to ocmply with the requirements of such plan or he may

bring a civil action in accordance with subsection (b) of

this section.

(2) Whenever, on the basis of information available to

him the Administrator finds that violations of an applicable

implementation plan are so widespread that such violations

appear to result from a failure of the State in which the

plan applies to enforce the plan effectively, he shall so

notify the State. If the Administrator finds such failure

extends beyond the 30th day after such notice, he shall give

public notice of such finding. During the period beginning

with such public notice and ending when such State satisfies

the Administrator that it will enforce such plan (hereafter

referred to in this section as “period of federally assumed

enforcement’’), the Administrator may enforce any require-

ment of such plan with respect to any person —

(A) by issuing an order to comply with such requirement,

or

(B) by bringing a civil action under subsection (b) of

this section.

A-33

section (a) (1) is applicable if the Administrator

“finds that any person is in violation of any require-

ment of an applicable implementation plan.” Subsec-

tion (a) (2), on the other hand, is applicable if the

Administrator “finds that violations of an applicable

implementation plan are so widespread that such viola-

tions appear to result from a failure of the State in

which the plan applies to enforce the plan effectively.”

If the subsection (a) (1) finding is made, the remedy

is an agency order against the non-complying person

or an enforcement proceeding in a district court. If,

however, a finding is made under subsection (a) (2),

the remedy is public notice of the finding of non-

enforcement by the state plus imposition of a “period

of federally assumed enforcement.”

In this case, the EPA has made a finding against the

State of Ohio under subsection (a) (1) of 42 U.S.C.

§1857c-8. The regional administrator found on March

15, 1976, that the State of Ohio was in violation of part

of Ohio’s implementation plan, namely, 40 C.F.R.

§52.1878(e). The Administrator has not found under

subsection (a) (2) that there have been widespread

violations appearing to result from a lack of state

enforcement.

I do not read 42 U.S.C. §1857c-8(a) (1) to mean that

if the Administrator includes in a §1857c-5(c) promul-

8In an affidavit submitted by plaintiff in support of its

motion, Stephen K. Goranson, an EPA data analyst, avers

that one air quality analyzer in Cincinnati recorded 190 ve-

hicular emission violations during 1975. This does not suffice

as a 42 U.S.C. §1857c-8(a) (2) finding of widespread viola-

tions by the Administrator, nor does the record reflect that

the Administrator ever gave the required subsection (a) (2)

public notice of such finding. Instead, the Administrator has

proceeded under subsection (a) (1).

A-34

gation a provision such as 40 C.F.R. §52.1878(e),

which specifically defines an enforcement avenue, he

may therefore issue a §1857c-8(a) (1) order to com-

pel the enforcing agency so named to implement such

enforcement. Such a construction would severly under-

cut the statutory preference for state-created and state-

enforced plans, and would shift the statutory emphasis

away from compliance with emission standards, and

towards compliance with federally-chosen enforcement

techniques. I am convinced that if the Administrator

is confronted with a non-enforcing state, his procedure

under this statute is governed by subsection (a) (2) of

§1857c-8, which specifically concerns a case where vio-

lations are so widespread that they appear to result

from the state’s non-enforcement. I do not believe that

the Administrator can avoid proceeding under subsec-

tion (a) (2) by including specific state enforcement

avenues in his §1857c-5(c) promulgation and then

issuing orders against the state under subsection (a)

(1).

IV

This Court will readily admit that many questions

which arise from the statutes and regulations cited

herein have not been addressed. In this enforcement

proceeding, as I see it, this Court should only decide

those questions necessary to determine whether to com-

pel defendants to act. Therefore, what, if any, action

the Administrator could compel against the State of

Ohio after a finding of “widespread non-compliance as

to indicate lack of state enforcement” is not reached.

Likewise, discussion of a possible constitutional issue is

inappropriate.

A-35

V

For the reasons set forth hereinabove, I conclude

that paragraph (A) of the June 22, 1976, order of the

regional administrator issued under 42 U.S.C. §1857c-

8(a) (1) is unenforceable. Plaintiff’s motion for sum-

mary judgment is accordingly DENIED without preju-

dice. The motion of Pacific Legal Foundation for leave

to participate as amicus curiae is GRANTED.

So ORDERED.

/s/ ROBERT M. DUNCAN, Judge

United States District Court

A-36

APPENDIX C

Codification. The Clean Air Act, Act July 14, 1955,

c. 360, 69 Stat. 322, as amended, formerly classified to

this chapter, was completely revised by Pub. L. 95-95,

Aug. 7, 1977, 91 Stat. 685, and is now classified to sec-

tion 7401 et seq. of this title. Under this arrangement

former sections of this title are now set out according

to the following table:

Old Sections New Sections Old Sections New Sections

1857 7401 1857f-6c 7545

1857a 7402 1857f-6d Repealed

1857b 7403 1857f-6e 7546

1857b-1 7404 1857£-6f 7547

1857¢ 7405 1857f-7 7550

1857c-1 7406 1857£-8 Repealed

1857c-2 7407 . 1857£-9 7571

1857c-3 7408 1857f-10 7572

1857c-4 7409 1857f-11 7573

1857c-5 7410 1857f-12 7574

1857c-6 7411 1857g 7601

1857c-7 7412 1857h 7602

1857c-8 7413 1857h-1 7603

1857c-9 7414 1857h-2 7604

1857c-10 Repealed 1857h-3 7605

1857d 7415 1857h-4 7606

1857d-1 7416 1857h-5 7607

1857e 7417 1857h-6 7608

1857f 7418 1857h-7 7609

1857f-1 7521 1857i 7610

1857f-2 7522 1857} 7611

1857f-3 7523 1857j-1 7612

1857f-4 7524 1857)j-2 7613

1857f-5 7525 1857j-3 7614

A-37

Old Sections New Sections Old Sections New Sections

1857f-5ba = 7541 1857k 7615

1857f-6 7542 18571 7616

1857f-6a 7543 1858 7641

1857f-6b 7544 1858a 7642

38 FEDERAL REGISTER

PART 52—APPROVAL AND PROMULGATION OF

IMPLEMENTATION PLANS

Ohio Transportation Control Plan

On June 15, 1973, the Administrator disapproved

the required Ohio air quality control plan revisions

for the Metropolitan Dayton Intrastate, Metropolitan

Toledo Interstate, and Metropolitan Cincinnati Inter-

state Air Quality Control Regions (AQCR) because

they failed to fulfill the requirement for the timely sub-

mittal of transportation and/or land use control plans

(38 FR 16550, June 22, 1973). The plan was to demon-

strate the attainment of the photochemical oxidant air

quality standard in the Regions by May 31, 1975.

Subsequent to this disapproval action, the Governor

of Ohio submitted on July 2, 1973, the “Implementation

Plan to Achieve Ambient Air Quality Standard for

Photochemical Oxidant in the Cincinnati Air Quality

Control Region” and the “Implementation Plan to

Achieve Ambient Air Quality Standard for Photo-

chemical Oxidant in the Toledo Air Quality Control

Region.” Ohio submitted its plan for the Dayton AQCR

on July 24, 1973. EPA, Region V, received these plan

revisions for Cincinnati, Toledo, and Dayton Regions

on July 16 and August 3, 1973, respectively. Receipt

of the Ohio revisions was announced on August 15,

A-38

1973 (38 FR 22045). No comments were received on

the plan revisions during the comment period provided.

On July 2, in response to court order and the require-

ments of the Clean Air Act and based upon information

available to EPA at the time, a notice of proposed rule

making setting forth a transportation control plan

for the Metropolitan Cincinnati Interstate AQCR was

issued (38 FR 17702); no new regulations were pro-

posed for the Metropolitan Toledo Interstate and the

Metropolitan Dayton Intrastate AQCR as it appeared

that existing stationary source regulations in conjunc-

tion with the FMVCP would be adequate to ensure

attainment of the national photochemical oxidant stan-

dard by May 31, 1975.

On July 25, 1973, the EPA held a public hearing on

the proposed Federal plan for the Metropolitan Cincin-

nati AQCR.

PLAN ASSESSMENT

METROPOLITAN DAYTON

INTRASTATE AQCR

EPA tendered a statement regarding the State’s

plan for the Metropolitan Dayton Intrastate AQCR at

the Ohio Environmental Protection Agency hearing

held on May 17, 1973. This statement, based on an

emission inventory for 1972 and air quality data for

1972, indicated that 1972 air quality data should be

used as a basis for determination of adequate strategies

for the attainment of the national photochemical oxi-

dant standard by May 31, 1975. Reevaluation of the

emission inventories for both 1971 and 1972, reanalysis

of air quality data for 1971 and 1972, and considera-

tion of available air quality data for 1973 prompted

reconsideration of the hearing statement. The revised

A-39

emission inventories for 1971 and 1972 are both con-

sidered adequate. With regard to the air quality data

for 1971, an abnormally high pollution level occurred

on August 30. The occurrence of a similar event is

considered unlikely, based upon two subsequent years

of air quality data. It is not considered appropriate to

base transportation control strategies on data resulting

from such an event. All other air quality data for 1971

and 1972 are considered valid for characterization of

oxidant levels occurring in the Dayton area. From the

reanalysis of the 1971 and 1972 air quality data

coupled with consideration of the revised Montgomery

County hydrocarbon emission inventory, it is the opin-

ion of the Administrator that the non-regulatory plan

revisions submitted by the State indicate that the

photochemical oxidant air quality standard will be at-

tained in the Metropolitan Dayton Intrastate AQCR

by May 31, 1975. The strategies outlined in the plan

would rely upon strict engorcement of existing station-

ary source hydrocarbon regulations coupled with the

estimated impact of the Federal Motor Vehicle Control

Program.

Most recently the Region V EPA office has been

apprised of presently invalidated data for September

of 1973 which, while continuing to verify the conclu-

sions reached regarding the abnormality of the August

30, 1971, data, indicates that a further plan revision

may be required to adequately assure attainment and

maintenance of the oxidant standard. This future re-

vision to the State Plan, if found necessary, would

require the implementation of those contingency strate-

gies outlined in the State Plan submitted on July 24,

19738. These strategies include:

(1) A county-wide inspection and maintenance pro-

-*

A-40

gram for light-duty vehicles. This system would re-

quire successful completion of the test on an annual

basis as a prerequisite to vehicle registration. Pro-

grams similar to this are being developed and imple-

mented in several urban areas across the nation.

(2) Improvements to the mass transit system to

reverse the present trend of steadily declining rider-

ship. The program would seek to improve transit rider-

ship through a reduction of fares, a shuttle bus service

for the Dayton Central Business District, and creation

of a park and ride system.

Information employed to reach this determination

of approval may be found in the Evaluation Report for

the submittal plan. This report is available at the Free-

dom of Information Center, EPA, Room 329, 401 M

Street SW, Washington, D.C. 20460; and at the Re-

gion V Offive, 1 North Wacker Drive, Chicago, Illinois

60606.

METROPOLITAN TOLEDO INTERSTATE AQCR

EPA’s evaluation of the Ohio plan indicates that

the non-regulatory plan revision submitted by Ohio

evidences assurance that existing regulations will pro-

vide for the attainment of the air quality standard in

the metropolitan Toledo Interstate AQCR area by May

31, 1975. The original State implementation plan as

submitted January 31, 1972, indicated that a reduction

in hydrocarbon emissions would occur between 1971

and 1975. The effects of the Federal Motor Vehicle

Control Program were estimated, however, using na-

tional, instead of local, averages for vehicle age dis-

tribution and traffic growth and a presently obsolete

method of computing automobile emissions. DeLeuw,

Cather, and Company gathered transportation data

characteristic of Toledo and utilized the presently ap-

A-41

proved methodology for computing motor vehicle emis-

sions that is detailed in Compilation of Air Pollutant

Emission Factors, EPA Publication AP-42. Their cal-

culations, found in Appendix C of the Ohio plan for

Toledo, indicates that mobile sources contribute a

smaller percentage of hydrocarbon emissions than

originally estimated. Therefore, control of stationary

sources was found to have a greater effect on the over-

all reduction of hydrocarbons than originally esti-

mated. Information employed to reach this determina-

tion is documented in the Evaluation Report for the

Metropolitan Toledo Interstate AQCR. This report is

available at the Freedom of Information Center, En-

vironmental Protection Agency, Room 329, 401 M

Street SW., Washington, D.C. 20460, and the Region V

Office, 1 North Wacker Drive, Chicago, Illinois 60606.

METROPOLITAN CINCINNATI

INTERSTATE AQCR

Review of the State plan for the Metropoliton Cin-

cinnati AQCR indicates that the plan as submitted is

marginally inadequate in itself to ensure the attain-

ment of the air quality standard by May 31, 1975.

Thus, it is necessary to supplement the applicable plan

with a Federal inspection/maintenance program. In-

formation employed in reaching this determination

may be found in the Technical Support Document that

is available at the Freedom of Information Center,

EPA, Room 329, 401 M Street, SW., Washington, D.C.

20460; and at the Region V Office, 1 N. Wacker Drive,

Chicago, Illinois 60606.

Pollution in the AQCR. The Metropolitan Cincinnati

AQCR is comprised of approximately 3000 square

miles of land area located in the extreme southwestern

-~%

A-42

portion of Ohio, the adjacent State of Indiana, and the

Commonwealth of Kentucky. The Indiana portion in-

cludes Dearborn and Ohio Counties; the Kentucky

portion includes Boone, Campbell, Kenton, Carroll,

Gallatin, Grant, Owen, and Pendleton Counties; and

the Ohio portion includes Butler, Clermont, Hamilton,

and Warren Counties. Since the Administrator, on

May 31, 1972, approved the plans submitted by Indi-

ana and Kentucky demonstrating the attainment of

the national photochemical oxidant standard in those

states’ portions of the AQCR, this proposal is directed

at attainment of the standard in the Ohio portion of

the AQCR. The population of the AQCR is about 1.7

million persons, approximately 80 percent of whom

reside within the Ohio portion of the AQCR. (Sixty

percent resides within Hamilton County. )

The primary national ambient air qulity standard

for photochemical oxidants is 160 »g/m* (0.08 ppm)

average for a l-hour period not to be exceeded more

than once per year. In 1971 this standard was exceeded

59 times in downtown Cincinnati. The second highest

concentration was 277 »g/m*® (0.14 ppm) and is the

basis for the calculations in the Ohio Implementation

Plan, which requires a 43 percent reduction in total

hydrocarbon emissions according to Appendix J (40

CFR Part 51). There is no reason to believe that 1971

was a year of unusually high oxidant concentrations

in Cincinnati; in fact, comparable concentrations were

measured in previous years. This concentration was

not exceeded during the first two quarters of 1972;

validated air quality data for the last two quarters of

1972 are not yet available. The original implementa-

tion plan included a commitment to enlarge the air

monitoring network for measuring oxidants in the

AQCR.

A-43

Ohio Transportation Control Plan. The State plan

revision estimates that the applicable standards will be

attained by July 1975 in the Metropolitan Cincinnati

Interstate AQCR through the enforcement of previ-

ously adopted stationary source hydrocarbon regula-

tions as submitted with the January 31, 1972, Ohio

State Implementation Plan, through the completion of

various highway improvements, and through the im-

plementation of the Federal Motor Vehicle Control

Program (FMVCP). This plan revision contains a

reevaluation of the effects of the above-named measures

and contains no new control measures. The plan esti-

mates that a 44 percent reduction in hydrocarbon

emissions will occur with implementation of the plan

within Hamilton County between 1971 and mid-1975.

The State plan indicated that the estimated reduc-

tions in hydrocarbon emissions from stationary sources

were the result of an updated emission inventory using

the emission factor techniques outlined in the EPA

document entitled Compilation of Air Pollution Emis-

sion Factors (AP-42). In addition, the State plan pro-

jected considerable reductions in reactive hydrocarbon

emissions through the strict enforcement of State regu-

lation AP-5. Because the claimed emission reductions

rely in many instances upon solvent switching by a

substantial percentage of the total stationary sources,

the EPA believed these estimates to be optimistic at

best, since serious questions exist today regarding not

only the availability of the necessary amounts of non-

reactive solvents, but also the operational problems

expected to occur through the total use of non-reactive

solvents now on the market. However, the Administra-

tor has accepted the stationary source emission reduc-

tions claimed with some reservation, realizing that

some margin of safety could be obtained by not ap-

A-44

proving certain more questionable emission reduction

claimed elsewhere in the State plan.

The estimated impact of the FMVCP was caluculated

by a private consultant to the EPA using 1971 and

1975 traffic data supplied by the City of Cincinnati.

The actual emission factors applied in the analysis were

caluculated using the techniques described in AP-42.

Adjustments were made by EPA to effect the interim

1975 automobile emission standards. The overall esti-

mates of hydrocarbon emission reductions was believed

to be reasonable and was consequently accepted by the

Administrator.

The remainder of the overall hydrocarbon emission

reductions set forth in the State plan was primarily

due to the estimated impact of the completion of sev-

eral bridges in the Metropolitan Cincinnati Area, in

conjunction with the anticipated impact of some asso-

ciated highway improvements. These estimates were

carefully studied by the Administrator based on two

questions:

(1) Will the bridge completions and anticipated

highway improvements actually serve to decrease ve-

hicular congestion and increase average vehicle speeds

to the extent estimated in the State plan?

(2) Will the bridge structures and the necessary

approaches be completed within the timeframe that is

consistent with the required air quality standard

achievement date of May 31, 1975?

With respect to the first issue, analysis performed

by the EPA and supplemental data supplied by a pri-

vate consultant to the EPA indicated that the bridges

and their approaches could have the estimated impact

‘of a 2 mile-per-hour increase in average vehicle speed.

However, the assumption was made by the EPA that

th structures would be fully operational in mid-1975.

A-45

The State plan was found to be inadequate because the

completion dates estimated in the plan were incorrect.

Written communication from both the Ohio EPA and

the U.S. Department of Transportation Federal High-

way Administration has indicated that the bridge

structures themselves will be completed between late

1973 and mid-1976. In addition, the approaches to the

bridge structures, which are necessary to provide for

full operation and maximum use of the structures,

are not expected to be fully completed before mid-1978.

It is the conclusion of the Admninistrator that, while

the bridges and the associated highway improvements

may be partially operational by mid-1975, too much

question surrounds the emission impacts that could be

estimated to occur by that date, in terms of an overall

reduction in hydrocarbon emission, to give full credit

for this strategy. For this reason, the Administrator

has assigned little credit to the emission reductions

achieved by this strategy by May 31, 1975, with the

intention that any impact actually resulting may serve

as a margin of safety in meeting the photochemical

oxidant standard.

The rejection of the impact of the highway improve-

ment strategy thus dictated the need for a supplemental

contro! strategy to provide for the attainment of the

standard by the required date. To this end, the EPA

found the most acceptable alternative to be the origi-

nally proposed Federal strategy calling for a county-

wide inspection and maintenance program. With utili-

zation of the administrative organization and facilities

of the existing safety inspection program currently in

operation within the City of Cincinnati, the strategy

can be partially implemented by May 31, 1975. A de-

tailed discussion of the Federal rule-making follows:

EPA transportation control plans. The Administra-

A-46

tor requires the State of Ohio to assure that all light-

duty vehicles registered in Hamilton County will be

properly maintained to reduce hydrocarbon emissions

by requiring that all light-duty vehicles registered in

Hamilton County pass an annual idle emission inspec-

tion test. A mandatory annual idle emission inspection

program will provide a means for controlling at a rea-

sonable level hydrocarbon emission from light-duty

vehicles (the major source of hydrocarbon emission

in the AQCR in 1975). This program can achieve the

necessary reduction in a positive manner at minimum

cost and inconvenience to the motoring public.

The implementation schedule for the inspection pro-

gram is as follows:

(1) Submission to EPA of detailed program com-

pliance schedule by February 1, 1974.

(2) Submission of legally enforceable program

by April 1, 1974.

(3) Full operation of the actual inspection sys-

tem to begin by January 1, 1975.

(4) Compliance with standards and procedures

of the inspection/maintenance program prior

to registration of title or operation by Decem-

ber 31, 1975.

As the time schedule indicates, the Administrator

believes that an idle-mode inspection program with the

capacity to inspect all light-duty vehicles within Ham-

ilton County on an annual basis can begin full testing

by January 1975, which is earlier than a similar pro-

gram could begin in some other cities. This decision,

as previously mentioned, was based upon the existence

of a safety lane operation within the City of Cincinnati.

The present operation has an estimated capacity of

approixmately 200,000 vehicles per year. The total

A-47

capacity of this system would have to be doubled in

order to provide for an annual inspection of all of the

light-duty vehicles registered in the city and county.

This is not an unreasonable burden as cost estimates

received by the EPA from the State regarding the

county-wide inspection program show costs below the

national average. The total cost estimates have ad-

dressed the areas of additional inspection lane con-

struction, the purchase of adequate sampling equip-

ment, and the procurement of necessary manpower

and training. This aspect of the Federal rulemaking

is discussed in more detail later in this statement.

Over 4 months are provided to obtain resolution of the

potential administrative and legal problems inherent

to the implementation of an inspection program. Esti-

mates supplied to the EPA by Scott Research Labora-

tories indicate that 5 to 10 months should provide

sufficient time for the ordering and receipt of vehicle

testing equipment. This time interval may then be

overlapped with a phased training program that would

provide for the incremental hiring and training of per-

sonnel as the equipment is received. Therefore, the sys-

tem could be fully operational by January 1, 1975.

With 12 months required for the completion of the

first inspection cycle, nearly half of the impact of the

overall emission reduction will be realized by may 31,

1975.

At the public hearing on the Federal proposal, a

number of persons asserted the impracticability of the

inspection/maintenance program; however, none was

able to document technical or administrative problems.

One party said adding a loaded mode inspection to the

program was necessary and practical. However, the

additional emission reduction that could be achieved

>.

A-48

through such a program is not necessary for attain-

ment of the standard. Secondly, EPA believes that

sufficient technology does not exist for analysis, devel-

opment, and implementation of the loaded mode in-

spection program within the necessary time-frame.

Approximately half of those persons submitting writ-

ten comments to the EPA expressed support for the

implementation of some form of vehicle emission in-

spection program.

Air Pollution Impact of Control Strategy. Based

upon 1971 air quality data, demonstration of attain-

ment of the standard by 1975 must show that hydro-

carbon emissions will be reduced by 43 percent between

1971 and 1975. The emissions in Hamilton County in

1971 were 63,708 tons of hydrocarbons. In order to

demonstrate attainment of the standards by 1975, the

emissions must be reduced to no more than 36,314 tons.

Table 1 is asummary of the effect of the strategy on the

overall reduction necessary in Hamilton County.

TABLE 1.—COMPILATION .OF.CONTROL

STRATEGY EFFECTS

[Tons per year]

Baseline May 31,

1971 1975

Stationary source emissions ........ 24,754 9,464

Mobile source emissions (including

effect of FMVCP and growth) .... 38,954 27,082

Reduction due to inspection/

SEES OR ON —386

so RRR Sap dete ST plan Baie 8 63,708 36,160

Basis for emission reductions. The EPA has pub-

A-49

lished in Appendix N to 40 CFR Part 51 a summary

of reduction in pollutants that can be expected from

the implementation of an automobile emission inspec-

tion program. This document indicates that an idle

mode inspection program based upon a 30 percent re-

jection rate can be expected to reduce hydrocarbon

exhaust emissions from light-duty vehicles by as much

as 10 percent. To obtain an overall impact estimate

this effect must be factored to account for the partial

impact of the program by May 31, 1975, and to account

for the percent of total vehicle miles traveled which

will be affected by the program. The program will

effect a 3 percent reduction in light-duty vehicle ex-

haust emissions, or a 1 percent reduction in overall

HC emission by May 31, 1975.

Social and economic impact of the plan. Cost data

available at this time indicates that the annual cost

per vehicle of an idle-mode inspection program can

range from $1.50 to $7.50 per year. This data, con-

tained within the EPA document entitled “Control

Strategies for In-Use Vehicles” also indicates that the

average maintenance cost for those vehicles that fail

the test would be approximately $25.50. This figure is

not felt to be unreasonable as most vehicles would pass

the test and those that fail would normally undergo an

annual tuneup regardless of the inspection program.

This will net cost per vehicle to $3.00 based on national

estimate as presented in EPA White Paper The Clean

Air Act and Transportation Controls. In addition, cost

data supplied by the State of Ohio, based specifically

upon the Cincinnati safety lane operation, indicates

an annual cost (including updating the system and

converting existing lanes) of approximately $182,000.

>

A-50

This estimate was subdivided as follows:

RAR SCRE SAR hs Sa on $ 17,000

PE ME a A, 53,500

Lane inspectors .....................005. 99,500

ETA. RoE see Cees OE ats 12,000

ONE a ic Ub cauneprrenae cas eee Hialeah 182,000

This estimate for the testing equipment is considered

to represent the lower range of cost estimates. How-

ver, even allowing for a total program cost at the upper

range of $500,000, the total cost per vehicle per year

would be approximately $1, which is substantially

below the national average cost figures.

Several statements were given at the Federal public

hearing pertaining to the potential administrative bur-

dens of an inspection program. However, the Admin-

istrator is of the opinion that sufficient data are avail-

able from similar programs currently in operation to

minimize the problems in regard to this aspect of the

inspection system. Furthermore, the Administrator

will provide assistance where possible in the develop-

ment and implementation of the program.

This notice of final rulemaking is issued under the

authority of sections 110(c) and 301(a) of the Clean

Air Act.

Dated: October 25, 1973.

RUSSELL E. TRAIN,

Administrator

SUBPART KK—OHIO

Source: 87 FR 10886, May 31, 1972, unless otherwise noted.

§52.1870 Identification of plan.

(a) Title of plan: “Implementation Plan for the

A-51

Controi of Suspended Particulates, Sulfur Dioxide,

Carbon Monoxide, Hydrocarbons, Nitrogen Dioxide,

and Photochemical Oxidants in the State of Ohio.”

(b) The plan was officially submitted on January

31, 1972.

(c) The revisions listed below were submitted on

the dates specified.

(1) Request for extensions and a revision of mon-

toring network was submitted on March 20, 1972, by

the Ohio Air Pollution Control Board.

(2) State provisions for making emissions data

available to the public was outlined in a letter of May

8, 1972, by the Ohio Department of Health.

(3) On May 9, 1972, the State provided assurance

that action is being taken in the Assembly to secure

authority for controlling auto emissions.

(4) Amendments to air pollution regulations AP-

3-11, 12, 13, 14 and AP-9-04 were forwarded on July

7, 1972, by the Governor.

(5) Revisions to AP-2-01, 02, 04, 05; AP-3-01, 08,

09, 13; AP-9-01, 02, 03 were submitted on August 4.

1972 by the Governor.

(6) New regulations AP-13-01 and 13-02 were sub-

mitted on October 12, 1972 by the Governor.

(7) Letter from the Director of the Ohio EPA was

submitted on June 6, 1973, indicating that portions of

a and AP-3-12 are for informational purposes

(8) The Governor of Ohio submitted on July 2, 1973,

the “Implementation Plan to Achieve Ambient Air

Quality Standard for Photochemical Oxidant in the

Cincinnati Air Quality Control Region” and the “Im-

= Pian to Achieve Ambient Air

Standard for Photochemical Oxidant in the Toledo Air

Quality Control Region.”

A-52

(9) The Governor of Ohio submitted on July 24,

1973, the “Implementation Plan to Achieve Ambient

Air Quality Standards for Photochemical Oxidants—

Dayton Air Quality Control Region.”

(87 FR 10886, May 31, 1972, as amended at 41 FR 8964,

Mar. 2, 1976)

§52.1871 Classification of regions.

The Ohio plan was evaluated on the basis of the fol-

lowing classifications:

POLLUTANT my

piace ! i:

wo «HHA

ir i;

control dikes c, Pee ye : rs 2

Greater Metropolitan Cleveland

Intrastate I Cty es ae I

Huntington (West Virginia)-

Ashland (Kentucky)-Ports-

mouth-Ironton (Ohio) Inter-

state } Ld >’ Ea Eo

Mansfield-Marion

Intrastate II (8. ia

Metropolitan Cincinnati

Interstate I TI m-—--Il I

Metropolitan Columbus

Intrastate ee ee A I

Metropolitan Dayton

Intrastate I (SED I

Metropolitan Toledo

Interstate I tcp ectiy ae I

Northwest Ohio

Intrastate IT fu TE eae

A-53

Northwest Pennsylvania-

Youngstown Interstate I II III III

Parkersburg (West Virginia) -

Marietta (Ohio) Interstate I I I: Tt

Sandusky Intrastate TB) i (He ae

Steubenville-Weirton-

Wheeling Interstate I 2 ae

Wilmington-Chillicothe-

Logan Intrastate to VIR FS SAREE. Cita | 1

Zanesville-Cambridge

Intrastate II MER 1 i Reams 8

[87 FR 10886, May 31, 1972, as amended at 39 FR 16347,

May 8, 1974]

§52.1872 Extensions.

(a) The Administrator hereby extends from 18

months the statutory timetable for submission of

Ohio’s plan for attainment and maintenance of the

secondary standards for particulate matter in the

Greater Metropolitan Cleveland Intrastate and in the

Ohio portion of the Steubenville-Weirton-Wheeling

and Northwest Pennsylvania-Youngstown Interstate

Regions.

(b) [Reserved]

[87 FR 10886, May 31, 1972, as amended at 38 FR 73828,

Mar. 20, 1973]

852.1873 Approval status.

With the exceptions set forth in this subpart, the

Administrator approves Ohio’s plan for the attainment

and maintenance of the national standards. The State

included various provisions in its plan relating to

AP-3-11 (B) (4) and AP-3-12 (B) (5) which, as de-

scribed in the Governor’s letter of June 6, 1978, were

Il

Ill

III

Ill

III

III

’%

*.

A-54

included for information purposes only and were not

to be considered a part of the plan to implement na-

tional standards. Accordingly, these additional pro-

visions are not considered a part of the applicable plan.

(89 FR 13542, Apr. 15, 1974]

§52.1874 [Reserved ]

§52.1875 Attainment dates for national standards.

The following table presents the latest dates by

which the national standards are to be attained. These

dates reflect the information presented in Ohio’s plan,

except where noted.

POLLUTANT

Particulate Sulfur f

matter oxides g : E 3 is

3 ' :

Air quality ees abe 23 t gif?

control region ceacecr shes s Secs

Greater Metropolitan

Cleveland Intrastate a 04> Bi Bi a a

Huntington (West

Virginia )-Ashland

(Kentucky ) -Ports-

mouth-Ironton

(Ohio) Interstate Be RS i eee e

Mansfield-Marion

Intrastate a ee pa Se e

Metropolitan Cincinnati May 31,

Interstate See ear es ee 1975

Metropolitan Columbus

Intrastate Be A Ee Qe ee a

Metropolitan Dayton ee eee ee ee oe ae

Intrastate 1975

Metropolitan Toledo

Interstate a

Northwest Ohio

Intrastate a

Northwest

Pennsylvania-

Youngstown

Interstate a

Parkersburg (West

Virginia) -Marietta

(Ohio) Interstate a

Sandusky Intrastate a

Steubenville-Weirton-

Wheeling Interstate a

Wilmington-Chillicothe-

Logan Intrastate a

Zanesville-Cambridge

Intrastate . a

A-55

e

a

e

a

e

e

e

NOTE: Dates or footnotes which are underlined are pre-

scribed by the Administrator because the plan did not provide

a specific date or the date provided was not acceptable.

a. July 1975.

b. 5 years from plan approval or promulgation.

c. 18-month extension granted.

d. Air quality levels presently below primary standards.

e. Air quality levels presently below secondary standards.

|87 FR 10886, May 31, 1972, as amended at 37 FR 15088,

July 27, 1972; 37 FR 19808, Sept. 22, 1972; 38 FR 7328, Mar.

20, 1973; 88 FR 12702, May 14, 1978; 38 FR 12921, May 17,

1978; 38 FR 30974, Nov. 8, 1973; 39 FR 16847, May 8, 1974]

§52.1876 [Reserved]

§52.1877 Control strategy: Photochemical oxidants

(hydrocarbons).

(a) The requirements of §51.14 of this chapter are

not met because the Ohio plan does not provide for the

A-56

attainment and maintenance of the national standard

for photochemical oxidants (hydrocarbons) in the

Metropolitan Cincinnati interstate region by May 31,

1975.

§52.1878 Inspection and maintenance program.

(a) Definitions:

(1) “Inspection and maintenance program” means

a program to reduce emissions from in-use vehicles

through identifying vehicles that need emission con-

trol related maintenance and requiring that such

maintenance be performed.

(2) All other terms used in this section that are

defined in 40 CFR Part 51, Appendix N are used here-

in with the meanings so defined.

(b) This section is applicable in Hamilton County,

Ohio (including the City of Cincinnati).

(c) The County of Hamilton and the City of Cin-

nati shall establish an inspection and maintenance

program applicable to all light-duty motor vehicles

owned and operated within their respective geographic

jurisdictions on streets, roads, and highways over

which they have ownership or control.

(d) Not later than April 1, 1974, the County of

Hamilton and the City of Cincinnati shall submit to

the Administrator, for his approval, legally adopted

regulations establishing the inspection/maintenance

program required by paragraph (c) of this section.

The regulations shall include:

(1) (i) Provisions requiring inspection of all light-

duty motor vehicles owned and operated within their

respective geographic jurisdictions on streets, roads,

and highways over which they have ownership and

control (jointly or individually) at periodic intervals

no more than 1 year apart by means of an idle test.

A-57

(ii) The State may exempt any class or category

of vehicles that the State finds are rarely used on

public streets and highways (such as classic or antique

vehicles).

(2) Provisions for inspection failure criteria con-

sistent with an initial failure rate of at least 30 per-

cent of the vehicles tested before maintenance. —

(3) Provisions ensuring that failed vehicles receive

within 2 weeks the maintenance necessary to achieve

compliance with the inspection standards. These shall,

at a minimum, impose sanctions against individual

owners and repair facilities, require retest of failed

vehicles following maintenance, establish a certifica-

tion program to ensure that repair facilities perform-

ing the required maintenance have the necessary

equipment, parts, and knowledgeable operators to per-

form the tests satisfactorily, and provide for such

other measures as necessary or appropriate.

(4) Provisions prohibiting vehicles from being in-

tentionally 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. These might include authorization of spot

checks of idle adjustments and/or requiring a suitable

type of physical tagging of vehicles. These provisions

shall include appropriate penalties for violation.

(5) Designation of an agency or agencies responsi-

ble for conducting, overseeing, enforcing the inspection

and maintenance program. Private parties may be

designated to conduct parts of the program to certify

compliance.

(6) Provisions ensuring that, with regard to the

first inspection, the inspection and maintenance neces-

sary to achieve compliance with the applicable emis-

A-58

sion standards referred to in paragraph (d) (2) be

completed by May 31, 1975, for at least five-twelfths

(5/12) of the vehicles subject to the inspection system.

(e) After December 31, 1975, no program in the

County of Hamilton, the City of Cincinnati, the State

of Ohio shall allow the registration of title, or allow

the operation on streets, roads, or highways under its

control of any light-duty, spark-ignition-powered

motor vehicle subject to the inspection program(s)

established pursuant to this section that does not com-

ply with the applicable standards and procedures, as

defined in paragraph (d) (2) of this section. This

shall not apply to the initial registration of new

vehicles.

(f) After December 31, 1975, no person shall oper-

ate or allow the operation of a light-duty motor vehicle

subject to the inspection program(s) established pur-

suant to this section that does not comply with the

applicable standards and procedures, as defined in

paragraph (d) (2) of this section. This shall not apply

to the initial registration of new vehicles...

(g) No later than February 1, 1974, the County of

Hamilton and the City of Cincinnati shall submit to

the Administrator, for his approval, a detailed compli-

ance schedule showing the steps they will take to

establish, operate, and enforce the inspection/mainte-

nance program required by paragraph (c) of this

section including:

(1) A description of the legal authority for estab-

lishing and enforcing the inspection/maintenance pro-

gram, including the text of proposed or adopted legis-

lation and regulations.

(2) Specific dates (day, month, and year) by which

various steps to implement the inspection/maintenance

A-59

system will be completed, such steps to include, at a

minimum, the following: Submitting final plans and

specifications for the system to the Administrator for

his approval, ordering necessary equipment, com-

mencement of on-site construction and/or installation,

completion of on-site construction and/or installation .

and system operation (this last date to be no later than

January 1, 1975).

(3) An identification of the sources and amounts of

funds necessary to implement the system, together

with written assurances from the chief executive offi-

cers of the city and county that they will seek any

necessary funding from the appropriate legislative

bodies.

(4) Other necessary provisions to carry out the

program.

§52.1879 Review of new sources and modifications.

(a) The requirements of §51.18 of this chapter are

not met because the State failed to submit a plan for

review of new or modified indirect sources.

(b) The requirements of §51.18(h) of modified in-

direct sources. The provisions of §52.22(b) are hereby

incorporated by reference and made a part of the

applicable implementation plan for the State of Ohio.

(c) The requirements of §51.18(h) of this chapter

are not met because the State failed to submit proce-

dures providing for public comment on review of new

or modified stationary sources.

(d) Regulation providing for public comment. (1)

For purposes of this paragraph, “Director” shall

mean the “Director of the Ohio Environmental Protec-

tion Agency”.

(2) Prior to approval or disapproval of the con-

%

A-60

struction or modification of a stationary source, the

Director shall:

(i) Make a preliminary determination whether con-

struction or modification of the stationary source

should be approved, approved with conditions or dis-

approved ;

(ii) Make available in at least one location in the

region in which the proposed stationary source would

be constructed or modified, a copy of all materials sub-

mitted by the owner or operator, a copy of the Direc-

tor’s preliminary determination, and a copy or sum-

mary of other materials, if any, considered by the

Director in making his preliminary determination;

and

(iii) Notify the public, by prominent advertisement

in a newspaper of general circulation in the region in

which the proposed stationary source would be con-

structed or modified, of the opportunity for public

comment on the information submitted by the owner

or operator and the Director’s preliminary determina-

tion on the approvability of the new or modified sta-

tionary source.

(3) A copy of the notice required pursuant to this

paragraph shall be sent to the Administrator through

the appropriate regional office and to all other State

and local air pollution control agencies having juris-

diction within the region where the stationary source

will be constructed or modified.

42 U.S.C. § 7410-7413

§ 7410. STATE IMPLEMENTATION PLANS FOR

NATIONAL PRIMARY AND SECONDARY

AMBIENT AIR QUALITY STANDARDS

Adoption of plan by State; submission to Adminis-

A-61

trator; content of plan; revision; new sources; indirect

source review program; supplementa! or intermittent

control systems

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

and public hearings, adopt and submit to the Admin-

istrator, within nine months after the promulgation of

a national primary ambient air quality standard (or

any revision thereof) under section 7409 of this title

for any air pollutant, a plan which provides for im-

plementation. maintenance, and enforcement of such

primary standard in each air quality control region

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

such State shall adopt and submit to the Administrator

(either as a part of a plan submitted under the preced-

ing sentence or separately) within nine months after

the promulgation of a national ambient air quality

secondary standard (or revision thereof), a plan

which provides for implementation, maintenance, and

enforcement of such secondary standard in each air

quality control region (or portion thereof) within such

State. Unless a separate public hearing is provided,

each State shall consider its plan implementing such

secondary standard at the hearing required by the first

sentence of this paragraph.

(2) The Administrator shall, within four months

after the date required for submission of a plan under

paragraph (1), approve or disapprove such plan or

each portion thereof. The Administrator shall approve

such plan, or any portion thereof, if he determines that

it was adopted after reasonable notice and hearing and

that—

(A) Except as may be provided in subpara-

graph (I) (i) in the case of a plan implementing

a national primary ambient air quality standard,

A-62

it provides for the attainment of such primary

standard as expeditiously as practicable but (sub-

ject to subsection (e) of this section) in no case

later than three years from the date of approval

of such plan (or any revision thereof to take ac-

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

in the case of a plan implementing a national

secondary ambient air quality standard, it speci-

fies a reasonable time at which such secondary

standard will be attained;

(B) it includes emission limitations, schedules,

and timetables for compliance with such limita-

tions, and such other measures as may be neces-

sary to insure attainment and maintenance of |

such primary or secondary standard, including,

but not limited to, transportation controls, air

quality maintenance plans, and preconstruction

review of direct sources of air pollution as pro-

vided in subparagraph (D) ;

(C) it includes provision for establishment and

operation of appropriate devices, methods, sys-

tems, and procedures necessary to (i) monitor,

compile, and analyze data on ambient air quality

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

to the Administrator;

(D) it includes a program to provide for the

enforcement of emission limitations and regula-

tion of the modification, construction, and opera-

tion of any stationary source, including a permit

program as required in parts C and D of this

subchapter and a permit or equivalent program

for any major emitting facility, within such re-

gion as necessary to assure (i) that national am-

A-63

bient air quality standards are achieved and main-

tained, and (ii) a procedure, meeting the require-

ments of paragraph (4), for review (prior to con-

struction or modification) of the location of new

sources to which a standard of performance will

apply ;

(E) it contains adequate provisions (i) prohib-

iting any stationary source within the State from

emitting any air pollutant in amounts which will

(I) prevent attainment or maintenance by any

other State of any such national primary or sec-

ondary ambient air quality standard, or (II) in-

terfere with measures required to be included in

the applicable implementation plan for any other

State under part C of this subchapter to prevent

significant deterioration of air quality or to pro-

tect visibility, and (ii) insuring compliance with

the requirement of section 7426 of this title, re-

lating to interstate pollution abatement;

(F) it provides (i) necessary assurances that

the State will have adequate personnel, funding,

and authority to carry out such implementation

plan; (ii) requirements for installation of equip-

ment by owners or operators of stationary sources

to monitor emissions from such sources; (iii) for

periodic reports on the nature and amounts of

such emissions; (iv) that such reports shall be

correlated by the State agency with any emission

limitations or standards established pursuant to

this chapter, which reports shall be available at

reasonable times for public inspection; (v) for

authority comparable to that in section 7603 of

this title, and adequate contingency plans to im-

’%

7.

A-64

plement such authority; and (vi) requirements

that the State comply with the requirements re-

specting State boards under section 7428 of this

title;

(G) it provides, to the extent necessary and

practicable, for periodic inspection and testing of

motor vehicles to enforce compliance with appli-

cable emission standards;

(H) it provides for revision, after public hear-

ings, of such plan (i) from time to time as may

be necesgary to take account of revisions of such

national primary or secondary ambient air qual-

ity standard or the availability of improved or

more expeditious methods of achieving such pri-

mary or secondary standard; or (ii) except as

provided in paragraph (3) (C), whenever the

Administrator finds on the basis of information

available to him that the plan is substantially in-

adequate to achieve the national ambient air qual-

ity primary or secondary standard which it im-

plements or to otherwise comply with any addi-

tional requirements established under the Clean

Air Act Amendments of 1977;

(I) it provides that after June 30, 1979, no

major stationary source shall be constructed or

modified in any nonattainment area (as defined

in section 7501(2) of this title) to which such

plan applies, if the emissions from such facility

will cause or contribute to concentrations of any

pollutant for which a national ambient air qual-

ity standard is exceeded in such area, unless, as

of the time of application for a permit for such

construction or modification, such plan meets the

A-65

requirements of part D of this subchapter (relat-

ing to nonattainment areas) ;

(J) it meets the requirements of section 7421

of this title (relating to consultation), section

7327 of this title (relating to public notification),

part C of this subchapter (relating to prevention

of significant deterioration of air quality and vis-

ibility protection) ; and

(K) it requires the owner or operator of each

major stationary source to pay to the permitting

authority as a condition of any permit required

under this chapter a fee sufficient to cover—

(i) the reasonable costs of reviewing and

and acting upon any application for such a

permit, and

(ii) if the owner or operator receives a

permit for such source, whether before or

after August 7, 1977, the reasonable costs

(incurred after August 7, 1977) of imple-

menting and enforcing the terms and condi-

tions of any such permit (not including any

enforcement action).

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

vision of an implementation plan applicable to an air

quality control region if he determines that it meets

the requirements of paragraph (2) and has been

adopted by the State after reasonable notice and pub-

lic hearings.

(B) As soon as practicable, the Administrator shall,

consistent with the purposes of this chapter and the

Energy Supply and Environmental Coordination Act

of 1974, review each State’s applicable implementation

plans and report to the State on whether such plans

A-66

can be revised in relation to fuel burning stationary

sources (or persons supplying fuel to such sources)

without interfering with the attainment and mainte-

nance of any national ambient air quality standard

within the period permitted in this section. If the Ad-

ministrator determines that any such plan can be re-

vised, he shall notify the State that a plan revision

may be submitted by the State. Any plan revision

which is submitted by the State shall, after public no-

tice and opportunity for public hearing, be approved

by the Administrator if the revision relates only to

fuel burning stationary sources (or persons supply-

ing fuel to such sources), and the plan as revised

complies with paragraph (2) of this subsection. The

Administrator shall approve or disapprove any revi-

sion no later than three months after its submission.

(C) Neither the State, in the case of a plan (or

portion thereof) approved under this subsection, nor

the Administrator in the case of a plan (or portion

thereof) promulgated under subsection (c) of this

section, shall be required to revise an applicable im-

plementation plan because one or more exemptions

under section 7418 of this title (relating to Federal

facilities), enforcement orders under section 7413(d)

of this title, suspensions under section 7410(f) or (g)

of this title (relating to temporary energy or economic

authority) or orders under section 7419 of this title

(relating to primary nonferrous smelters) have been

granted, if such plan would have met the requirements

of this section if no such exemptions, orders, extension,

or variances had been granted.

(D) Any applicable implementation plan for which

an attainment date later than December 31, 1982, is

A-67

provided pursuant to section 7522(a) (2) of this title

shall be revised by July 1, 1979, to include the compre-

hensive measures and requirements referred to in sub-

section (c) (5) (B) of this section.

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

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

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

adequate authority to prevent the construction or mod-

ification of any new source to which a standard of per-

formance under section 7411 of this title will apply at

any location which the State determines will prevent

the attainment or maintenance within any air quality

control region (or portion thereof) within such State

of a national ambient air quality primary or secondary

standard, and (B) require that prior to commencing

construction or modification of any such source, the

owner or operator thereof shall submit to such State

such information as may be necessary to permit the

State to make a determination under clause (A).

(5) (A) (i) Any State may include in a State im-

plementation plan, but the Administrator may not re-

quire as a condition of approval of such plan under

this section, any indirect source review program. The

Administrator may approve and enforce, as part of an

applicable implementation plan, an indirect source re-

view program which the State chooses to adopt and

submit as part of its plan.

(ii) Except as provided in subparagraph (B), no

plan promulgated by the Administrator shall include

any indirect source review program for any air qual-

ity control region. or portion thereof.

(iii) Any State may revise an applicable implemen-

tation plan approved under this subsection to suspend

A-68

or revoke any such program included in such plan, pro-

vided that such plan meets the requirements of this

section.

¢«B) The Administrator shall have the authority to

promulgate, implement and enforce regulations under

subsection (c) of this section respecting indirect

source review programs which apply only to federally

assisted highways, airports, and other major federally

assisted indirect sources and federally owned or oper-

ated indirect sources.

(C) For purposes of this paragraph, the term “in-

direct source” means a facility, building, structure,

installation, real property, road, or highway which

attracts or may attract, mobile sources of pollution.

Such term includes parking lots, parking garages, and

other facilities subject to any measure for manage-

ment of parking supply (within the meaning of sub-

section (c) (2) (D) (ii) of this section), including

regulation of existing off-street parking but such term

does not include new or existing on-street parking. .

Direct emissions sources or facilities at, within, or as-

sociated with, any indirect source shall not be deemed

indirect sources for the purpose of this paragraph.

(D) For purposes of this paragraph the term “in-

direct source review program” means the facility-by-

facility review of indirect sources of air pollution,

including such measures as are necessary to assure, or

assist in assuring, that a new or modified indirect

source will not attract mobile sources of air pollution,

the emissions from which would cause or contribute to

air pollution concentrations—

(i) exceeding any national primary ambient

air quality standard for a mobile source-related

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air pollutant after the primary standard attain-

ment date, or

(ii) preventing maintenance of any such stand-

ard after such date.

(E) For purposes of this paragraph and paragraph

(2) (B), the term “transportation control measure”

does not include any measure which is an “indirect

source review program.”

(6) No State plan shall be treated as meeting the

requirements of this section unless such plan provides

that in the case of any source which uses a supple-

mental, or intermittent control system for purposes of

meeting the requirements of an order under section

7413(d) or section 7419 of this title (relating to pri-

mary nonferrous smelter orders), the owner or oper-

ator of such source may not temporarily reduce the

pay of any employee by reason of the use of such sup-

plemental or intermittent or other dispersion depen-

dent control system.

Extension of period for submission of plans

(b) The Administrator may, wherever he deter-

mines necessary, extend the period for submission of

any plan or portion thereof which implements a na-

tional secondary ambient air quality standard for a

period not to exceed 18 months from the date otherwise

required for submission of such plan.

Preparation and publication by Administrator of pro-

posed regulations setting forth implementation plan;

transportation regulations study and report; parking

surcharge; suspension authority; plan implementation

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

tion of any State hearing record, promptly prepare

and publish proposed regulations setting forth an im-

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

(A) the State fails to submit an implementa-

tion plan which meets the requirements of this

section,

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

ted for such State is determined by the Admin-

istrator not to be in accordance with the require-

ments of this section, or

(C) the State fails, within 60 days after noti-

fication by the Administrator or such longer pe-

riod as he may prescribe, to revise an implemen-

tation plan as required pursuant to a provision of

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

this section.

If such State held no public hearing associated with

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

istrator shall provide opportunity for such hearing

within such State on any proposed regulation. The

Administrator shall, within six months after the date

required for submission of such plan (or revision

thereof), promulgate any such regulations unless,

prior to such promulgation, such State has adopted

and submitted a plan (or revision) which the Admin-

istrator determines to be in accordance with the re-

quirements of this section. Notwithstanding the pre-

ceding sentence, any portion of a plan relating to any

measure described in the first sentence of section 7421

of this title (relating to consultation) or the consulta-

tion process required under such section 7421 shall not

be required to be promulgated before the date eight

months after such date required for submission.

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

and shall submit a report to the Committee on Inter-

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state and Foreign Commerce of the United States

House of Representatives and the Committee on Pub-

lic Works of the United States Senate not later than

three months after June 22, 1974, on the necessity of

parking surcharge, management of parking supply,

and preferential bus/carpool lane regulations as part

of the applicable implementation plans required under

this section to achieve and maintain national primary

ambient air quality standards. The study shall include

an assessment of the economic impact of such regula-

tions, consideration of alternative means of reducing

total vehicle miles traveled, and an assessment of the

impact of such regulations on other Federal and State

programs dealing with energy or transportation. In

the course of such study, the Administrator shall con-

sult with other Federal officials including, but not lim-

ited to, the Secretary of Transportation, the Federal

Energy Administrator, and the Chairman of the Coun-

cil on Environmental Quality.

(B) No parking surcharge regulation may be re-

quired by the Administrator under paragraph (1) of

this subsection as a part of an applicable implemen-

tation plan. All parking surcharge regulations pre-

viously required by the Administrator shall be void

on June 22, 1974. This subparagraph shall not prev

This text is long and has been trimmed here. Open the source document for the complete record.