# Petition — International Ass'n of Machinists & Aerospace Workers v. Iberia Air Lines of Spain > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1249%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 450 U.S. 999 ## Text 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 belo [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1249%3A1. Public record. Not legal advice.