*2 titlе, low the or allow the MERRITT, WEICK, Before LIVELY and operation streets, roads, on or highways Judges. Circuit any light-duty, control of *3 spark-ignition-powered motor vehicle LIVELY, Judge. Circuit subject inspection program(s) to the es- Act, Air This case arises under the Clean pursuant tablished to this section that 7401, amended, (the Act) 42 et as U.S.C. § comply does not applicable with the stan- seq.1 appeal The issue on concerns the en- procedures, para- dards and as defined in powers forcement of the United En- States graph (d)(2) of this section. This shall Agency (EPA) vironmental Protection apply not to the initial perform a state which fails to an new vehicles. required provision act of it a of an Upon adoption, regulation this became part implеmentation plan promulgated by EPA. of the implementation plan.2 Ohio specific question The to be decided is County up Cincinnati and Hamilton set subject whether the of Ohio is inspection complied facilities which with the provisions Act’s enforcement for its failure requirements regulation. of the deny registration to vehicles which have of Ohio has refused to withhold passed inspection and maintenance registration from vehicles which have not required by EPA-promul- emission tests an passed inspection. issuing emission After gated provision of the state 15, notice of on violation March 1976 and an plan. 22, 1976, comply order to on June brought this action in the district I. court Act, pursuant to section of the Act, required by As State of Ohio 7413(a)(1), 18, U.S.C. on November 1976. § adopted implementation plan an for each 113(a)(1) (then Section codified at 42 U.S.C. quality region air control within the State 1857c-8(a)(1)) provides: § metropolitan and several regions. interstate proce- 1857c-8. Federal enforcement § Upon finding plan the Ohio was not dures adequate to assure attainment and mainte- primary photo-
nance of the
standard for
(a)
applica-
Determination of violation of
area,
chemical oxidants in the Cincinnati
standard;
implementation plan
ble
or
approval
portion
EPA denied
to a
of the
violator;
notification of
issuance of
110(c)
plan.
permitted by
Ohio
As
compliance order or initiation of civil
Act,
7410(c),
on Novem-
U.S.C.
correct;
§
upon
action
failure to
effect
8, 1973,
supplemented
ber
the state
order;
compliance
contents of com-
implementation plan by publishing
regu-
pliance order
lation which
a vehicle
(1) Whenever,
any
on the basis of
in-
program
for Cincinnati
him,
formation available to
the Adminis-
County,
and Hamilton
Ohio. 40 C.F.R.
trator
any person
finds that
is in violation
52.1878.
§
any requirement
applicable
of an
im-
regulation
This
in
provides
part:
plementation
plan,
the Administrator
52.1878(e)
challenged by
1. The
Air
2.
Clean
Act was first enacted
Section
was not
amendments,
frequent
petition
and there have been
for review.
we treat
it as a
notably
only
most
At
lawful
and are concerned
with
the time
proper interpretation
regulation,
litigation began
this
Act was codified at 42
1976,
validity
seq.
of the order of June
referred
U.S.C.
et
The 1977 amendments
§
to, infra,
power
rearranged many provisions
and the
of EPA enforce
of the Act and
Wrecking
seq.
court action.
See Adamo
Co. v.
recodified it at 42
et
U.S.C.
States,
275, 282,
United
vidual violators of the of a II. plan against failing for but state A. hand, plan. enforce the On the other the 113(a)(2) court found that section is the highways EPA contends that are treated proper vehicle of a when failure state the under the Act as same state-owned plan widespread enforce a results in viola- is, power plants. high- automobiles or That 113(a)(2) provides: tions. Section ways pollution. are themselves sources of (2) Whenever, argues only thing on the basis of informa- Thus it that the involved him, duty, “is tion available to the Administrator in this case the State’s as owner operator applicable highways, finds that violations of an im- of its plementation plan regulation prohibiting widespread are so that with a valid federal which have not appear violations to result from a of automobiles complied inspection pro- plan failure of the in which the with the emission applies plan effectively, gram.” “person” to enforce the he is a with- Since Act,4 notify meaning argues shall so If the Adminis- EPA State. beyond perform duty trator finds such extends that a state which fails to failure notice, day imposed upon 30th after such he shall it an give Dur- of such within public finding. notice of such violation ing period beginning public meaning 113(a)(1). According with such § Act, 113(b) permits 302(e) 7602(e) in- Section an action for an 4. Section 42 U.S.C. § junction, penalty provides: ‘person’ or to assess a of not more “the term includes an indi- $25,000 violation, association, per day corporation, partnership, vio- vidual state, implementation plans. municipality lators of state . . .when used in the Act. EPA, causing court misunderstood act. The the district State concedes that it 113(a)(1) section 113(a)(1) roles which could be sued under section different if it 113(a)(2) play operated in the enforcement vehicles which the emis- violated argues different, sion implementation plans. quite limitations. This is however, 113(a)(1) designed merely for enforce- from owning highways including polluters individual which attract vehicles ment whose emissions cre- 113(a)(2) pollution, the state itself. offers ate air Section contends. “period federally argues 113(a)(1) alternative of a as- State that section is de- has signed require compliance sumed enforcement” where by persons by its fail- permitted widespread violations whose cause pollution, activities not as a plan. The fundamental requiring ure to enforce a mechanism for the statеs to en- court, according error of the district plan. “any person” force an EPA The term EPA, was its failure to realize “that as used in section refers to active registration ban contained polluters, not to the mere owners of facili- [the 52.1878(e)] in 42 C.F.R. does not invoke ties which at indirectly pollu- most cause power of the Administrator to force a tion. regulate state to others but rather invokes scheme, As the statutory State views the power regulate Administrator Congress given has the states the first op- the State itself.” portunity to enforce implementation plans. supports arguments with refer- If the default of a state consists of failure legislative history, ences particularly plan, to enforce a authority there is no *5 pertaining that to the 1977 amendments. against direct action the state under section that inspection Rather, It maintains vehicle and 113(a)(1). situation, in this EPA is programs integral part maintenance are an authorized to requirements enforce the of Act Congress which has found to be plan directly against the during violators productive feasible the reduction of “period federally of assumed enforcement.” points reg- emissions. EPA out that vehicle 7413(a)(2). 42 U.S.C. § long by istration has been used the State as The nothing State contends that regulating public high- means of use of Act Congressional indicates a intent ways raising as well as revenue for their treat the implementa- states as violators of construction and maintenance. the plans by reason of ownership their of purpose require ban is to It disputes argument EPA’s the modify management State to of a legislative history, that consisting pri- facility- pollution. which contributes marily post-1970 remarks of individual imposing far-reaching some ^Rather Congress, supports members of theory. State, expensive program new or on the The State maintains that the Act is obvi- EPA, regulation merely contends ously contemplation structured in cooper- quires change it to the manner in it which ation between state and federal authorities. “proprietary management uses a tool.” down, cooperation When this any breaks reason, EPA is authorized to enforce a
B. directly pursuant to section The State of Ohio views the matter in a by displacing this is done enforсer, sharply light. place, different the first state by requiring as the state “operator” high- provisions State denies it is an to enforce of a which were ways. by builder and owner of the devised EPA. The State of Ohio asserts roads, only “operation” but the Congress consists of that had intended to authorize driving states, individuals vehicles over against depar- them. direct actions Thus, any pollution which arises from the ture from traditional state-federal rela- tions, ownership State’s the roads is that it would have made its intention clear drivers, by caused and EPA’s enforcement and would not have moved into this sensi- pollution- efforts should be directed to the by tive area indirection. argues that if the Act expressly granted
The State also nor withheld Con- gress. should be construеd accordance EPA’s it must be held unconsti- contentions above, As specific discussed lan- IV,
tutional. The cites Article Sec- guage of the Act suggests Congress tion 4 of the and the Fifth and Constitution did not authority any confer such more Amendments, particular places Tenth than it intended that the states would be League reliance on National of Cities adopt ordered to statutes. On the other Usery, 426 S.Ct. hand, nowhere in the Act is the Adminis- L.Ed.2d 245 trator specifically told that he lacks au-
thority to force the states to administer
plans
he
promulgated
has
when the
III.
plan is directed to a traditional
precise
issue in this case-whether
function
registering
such as
licensing
may proceed
directly against a state
motor vehicles. At least in the case оf
EPA-promul-
enforcement of an
inspection and
programs,
maintenance
gated provision
an
plan-
apparent
legislative
from the
history
appears
not to have been
any
treated
that Congress did intend that
the states
court,
present
at least in its
setting.5 How-
cooperate
would be
in admin-
ever,
regulations prescribing
vehicle
istering a federal air quality program.
inspection
programs
have
Noting
F.2d at 987.
the broad authori
subject
been the
petitions
for review a
ty granted to the
Administrator
the for
number of states. The results have not
implementation plans,
mulation of
giv
EPA,
been uniform.
In Brown v.
521 F.2d
ing due
interpre
deference to that official’s
(9th
1975)(Brown I),
Cir.
the court held
Act,
Tallman,
tation of the
Udall v.
the Act does not authorize sаnctions
(1965),
1201 IY. Mary- and the State District of Columbia by Supreme vacated Court land were Brown,
EPA v.
A.
(1977). The action
L.Ed.2d 166
52
language
of the Act
We look first
on EPA’s deter-
Supreme Court was based
itself,
(42
particularly section
U.S.C.
invalida-
review of the
not to seek
mination
7410)
implementa-
which deals with state
§
and its conces-
regulations
of certain
tion
plans.
required
adopt
state is
tion
Each
remaining
were invalid
ones
sion
implementation, maintenance
plan
a
for
Supreme
Court
modified.
unless
primary
the national
and enforcement of
question now before
not reach the
did
in each air
quality
ambient air
standard
court.
region of the state within
quality control
EPA,
(9th Cir.
By providing highways roads and provides that “any failure to encourage facilitate and extensive use of approved regulatory provision of a vehicles, motor played the States have implementation plan” substantial, renders the if unintentional role in governmental entity failing “subject so causing pollution problems And, matter, enforcement action under section 113 of the practical sult. as a Clean Air Act.” 40 52.23 governments and local C.F.R. § are in a better position meaning a reasonable of these prob- EPA to attack those lems, comments is set procedures which involve millions of motor ve- that both forth hicles, through mainte- in section 113 are available when violations inspection and programs nance implementation plan and similar measures. of an result from fail- *9 the under section duty imposed ceeded State carry out a of a state to ure Therefore, the 113(a)(1). we conclude that is no indication by plan. a There upon it holding the erred in its EPA is limited district court history that legislative the contrary. in ev- proceeding under section offending a state is an ery situation where conclusion on the We not reach this do party. that argument EPA’s State basis of by ownership reason of its polluter
itself a D. nothing We find and of streets legislative history support in the Act or with a was faced The district court construction. Musk- this strained Senator statutory problem construction difficult of “substantial, if unin- to the ie’s reference interpretation properly sought an and tentional, causing pol- role” of the states a decision on the which would support argument. EPA’s lution does not constitutionality of the Act. Ownership high- and control of streets and entirety in its section 113 is examined when practice the historic ways, along with (a)(1) (a)(2) prescribe clear that it is not vehicles, however, licensing do combine to under dif means of enforcement different plac- provide completely a rational basis for circumstances as contended ferent sets of prevent ing upon obligation State They may provide be read to the State. by noncomplying of these facilities vehi- use dealing for with a alternative mechanisms perform fails to cles. When the State provisions comply failure to state’s person in violation of a duty it becomes plan. Both subsec implementation an plan. requirement implementation against “any per permit proceedings tions violator, subject As a “any requirement” of in violation of son” 113(a)(1). procedures of section enforcement plan. 40 C.F.R. 52. an straightforward interpreta- prefer 1878(e) of the Ohio requirement makes it a arguments tion of the Act to the convoluted comply with that'vehicles which do not EPA. standards be inspection and maintenance right operate
denied V. highways of public on the streets and Cin County. By refusing holding requires Our above treatment of cinnati and Hamilton arguments put forward requirement with this the State the constitutional does not “person” in violation of a the State. The State of Ohio of Ohio became a dispute pollution the fact that air is a na- provision plan. proceed To 113(a)(2), displacing problem tional and that its control Con- in effect gress authority granted by regulator during as of motor vehicles is within maintains, “period federally assumed enforce Commerce Clause. however, ment,” part it to enforce remedy requiring drastic would be a more plan promulgated by represents by EPA in this case. than the one chosen into its activi- an unconstitutional intrusion clear, legislative history makes As a state. ties as mechanisms disposal EPA has at its several Usery, League of compliance by a In National Cities obtaining voluntary L.Ed.2d 245 fail, and resort is had to S.Ct. state. When these (1976), Supreme Court held nothing languagе we find amendments to the Fair Labor Stan- requires EPA to utilize of the Act which attempt- were unconstitutional (aX2) proceeding directly dards Act rather maxi- wage minimum state, against any ing to extend as it could employees of states violation, provisions hour pursuant to sec- mum other The Court con- political subdivisions. Under these circumstances would the costs which the states agree with the inter- sidered we are constrained to comply with the FLSA. pretation adopted by the Admin- incur Act that, however, the Court concluded Beyond properly pro- istrator and hold that EPA
1205 of the 1974 amendments effectively sys- that the effect function in federal displace state and would be to decisions tem.
policies
require substantial re-
possibly
and
547,
7,
421
at
n.
at
U.S.
95 S.Ct.
1795 n. 7.
which
structuring
ways
of the traditional
in
We
believe requiring
do not
Ohio to deny
manage
their affairs.
states have chosen
registration to non-complying vehicles will
impair
integrity
the
of the State or its
question,
The critical
as stated
ability to function in
federal system.
the
League
Supreme
the
in National
Court
controlling
The federal interest in
pollu-
air
Cities,
supra,
In National tention that proceedings vitality Court reaffirmed of its decision IV, violate Article 4 of Section States, Fry v. United 95 (guarantee Constitution each state of a Fry S.Ct. In L.Ed.2d republican form government) and the the Supreme Tenth Amendment, Court described the Fifth but them to find have Amendment as follows: no merit.
While the Tenth Amendment has been VI. “truism,” stating
characterized as
mere-
ly that “all is retained which
been
has not
its cross-appeal
the State makes
surrendered,”
Darby,
United States v.
arguments.
place
two
In the
first
con
100, 124,
451, 462,
85 L.Ed.
52.1878(e)
ambigu
tends that
C.F.R.
is
609 (1941), it
not
significance.
ous,
without
construed,
properly
should be read
expressly
Amendment
declares
impose
duties on Cincinnati and Hamil
policy
constitutional
Congress
County,
ton
but not on the State. This
power
exercise
im-
a fashion that
argument
based on the fact that
there is
pairs the
integrity
ability
States’
or their
no
“connective word” between
refer-
County
legislature
had not enacted
City
enabling
ence to the
*11
requires
only the State
legislation
State.
and in its absence EPA cannot
title,
clear that this
and it is
registration of
proceed against a state officer who had no
regulation refers to the
requirement of the
authority to act nor could EPA order the
could have been
regulation
The
State.
necessary legislation.
state to enact
but we do not find it
precisely,
drawn more
argument
The
of EPA that because Ohio
also contends
ambiguous.
to be
The State
highways,
polluter
owns title to thе
it is a
not
regulation
should be construed
may
proceeded against
be
both crimi-
provides
criminal
apply
to it because
nally
civilly.
argument
This
borders on
argument assumes an ambi-
penalties. This
being
sequiter.
frivolous.
It is a non
If the
not to exist.
guity which we have found
operated
public high-
state
a truck on the
The
makes the somewhat re
ways
regulation
in violation of an EPA
or
interpretation
EPA’s
argument
lated
operated
plant
facility
or other
in viola-
special
is entitled to no
thereof,
proceeded against
it could be
deference since the enforcement
statute
directly by
By
EPA.
no stretch
(section 113(c)) provides
penalties.
criminal
however,
imagination,
could the state be
In this action EPA did not seek criminal
civilly
criminаlly
held liable
or
because of
proceeded
It
under
sanctions.
persons
regu-
the violation
other
of EPA
113(b)
provides
injunction
which
for an
or a
lations
$25,000
violation,
merely
legislature
because the state
penalty
per day
civil
both. The
enabling
decision of
district court
took no action
state officers to
52.1878(e) applies
that 40
C.F.R. §
regulations.
enforce federal
laws or
This
City
as
County
State well as to
was
position
rejected
of EPA was
in Brown v.
sought
made in an action in which EPA
an EPA,
(9th
1977).
Other concessions made
invalidity of its were regulations own de- by the EPA v. Supreme
tailed Court
Brown, 52 regulations These were
L.Ed.2d EPA, invalid in Brown v. F.2d 827
held 1975); EPA,
(9th Cir. Arizona v. 521 F.2d 1975); (9th Cir. District v. of Columbia
Train,
(1975); Maryland
EPA,
(4th
1975).
of these all four cases for
manded consideration remand, questions.
mootness other On
EPA made further concession that permit compel
statute does not EPA,
enforcement. Brown v. F.2d (9th 1977);
659 n. 2 Cir. District of Colum- Costle, (D.C.Cir.1977)
bia v.
remanded further administrative
ceedings. coercing
The conduct of EPA states to regulations by withholding fed-
enforce
eral funds to which the were entitled states purposes has
for other been condemned. article in Wall entitled
See Street Journal
“Exhausting August Rights”, States’