District of Columbia v. Train

Decision Date28 October 1975
Docket NumberNos. 74-1013,74-1575 and 74-1579,s. 74-1013
Citation521 F.2d 971,172 U.S.App.D.C. 311
Parties, 172 U.S.App.D.C. 311, 6 Envtl. L. Rep. 20,007 DISTRICT OF COLUMBIA, etc., Petitioner, v. Russell E. TRAIN, Administrator, Environmental Protection Agency and Environmental Protection Agency, etc., Respondents, Washington Area Bicyclist Association, Inc., Metropolitan Washington Coalition for Clean Air, Inc., Breathers for the Reduction of Atmospheric Hazards to the Environment, Intervenors. The COUNTY OF PRINCE WILLIAM, VIRGINIA, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. STATE OF MARYLAND, Petitioner, v. Russell E. TRAIN, Administrator, and Environmental Protection Agency, Respondent. CITY OF FAIRFAX, VIRGINIA, a Municipal Corporation, Petitioner, v. Russell E. TRAIN, Administrator and Environmental Protection Agency, Respondent. CITY OF ALEXANDRIA, a Municipal Corporation of Virginia, Petitioner, v. Russell E. TRAIN, Administrator, and Environmental Protection Agency, Respondents. COMMONWEALTH OF VIRGINIA ex rel. STATE AIR POLLUTION CONTROL BOARD, Petitioner, v. Russell E. TRAIN, Administrator and Environmental Protection Agency, Respondent. to 74-1582.
CourtU.S. Court of Appeals — District of Columbia Circuit

John C. Salyer, Asst. Corp. Counsel for the District of Columbia, Washington, D. C., with whom C. Francis Murphy, Corp. Counsel, Louis P. Robbins, Principal Asst. Corp. Counsel, and David Eisenberg, Asst. Corp. Counsel, Washington, D. C., were on the brief for petitioner in No. 74-1013 J. Thomas Steger, Asst. Atty. Gen., Commonwealth of Virginia for petitioner in No. 74-1582 also argued for petitioners in Nos. 74-1575, 74-1579, 74-1580 and 74-1581.

John S. Battle, Jr., and William H. King, Jr., Richmond, Va., were on the brief for petitioner in No. 74-1575.

Stephen M. Pratt, Fairfax, Va., was on the brief for petitioner in No. 74-1580. Thomas P. Dugan, Fairfax, Va., also entered an appearance for petitioner in No. 74-1580.

J. Howard Middleton, Jr., Alexandria, Va., was on the brief for petitioner in No. 74-1581.

Bruce J. Chasan, Atty., Dept. of Justice, with whom Wallace H. Johnson, Asst. Atty. Gen., Edmund B. Clark, Martin Green, Attys., Dept. of Justice, and Robert V. Zener, Gen. Counsel, E. P. A., were on the brief for respondent.

Joel D. Joseph, Washington, D. C., for intervenors in Nos. 74-1013 and 74-1579.

Before MacKINNON and ROBB, Circuit Judges, and CHRISTENSEN, * Senior United States District Judge for the District of Utah.

Opinion for the court filed by Circuit Judge MacKINNON.

MacKINNON, Circuit Judge:

The State of Maryland, the Commonwealth of Virginia, the District of Columbia, the County of Prince William, Virginia, and the Cities of Alexandria and Fairfax, Virginia, petition this court for review of the action by the Administrator of the Environmental Protection Agency (EPA) in promulgating "transportation control" regulations to be included in the air quality implementation plans for the National Capital Interstate Air Quality Control Region. 1 38 Fed.Reg. 33702 (Dec. 6, 1973). These regulations were adopted pursuant to section 110 of the Clean Air Act, 42 U.S.C. § 1857c-5. We affirm the regulations in part and remand the remainder to the EPA for revision and further proceedings in light of this opinion.

I. Background.
A. The Statutory Scheme

Under the regulatory scheme established by the Clean Air Act Amendments of 1970, 84 Stat. 1679, 42 U.S.C. § 1857 Et seq., the Administrator of the EPA was directed to promulgate national primary and secondary ambient air quality standards (section 109). The standards were promulgated at 36 Fed.Reg. 8186 (April 30, 1971). Each state 2 was then required to develop and submit for EPA approval by January 30, 1972, a plan for the implementation, maintenance and enforcement of these standards in each air quality control region within the state (section 110(a)(1)). The Administrator was directed to approve any state plan or portion thereof which satisfied the criteria enumerated in section 110(a)(2)(A)-(H) and disapprove the remainder.

If a state fails to submit a plan, submits an inadequate one, or fails to revise its plan when required, the Administrator is to publish proposed regulations which are to be promulgated as the implementation plan for the state within six months of the deadline for the state submission (section 110(c)). Thereafter the EPA-promulgated plan governs the regulation of air quality in that state. Under section 113, the EPA is authorized to enforce implementation plans through compliance orders, civil actions or criminal penalties. Although the statute calls for achieving the primary standard by May 31, 1975, it also provides for an extension of up to two years upon submission

by the state of an application satisfying the requirements of section 110(e).

B. The Development of a Transportation Control Plan for the National Capital Region

Since automobile exhaust emissions are the chief source in the ambient air of three of the six pollutants for which standards were issued (40 CFR, Part 50), the Administrator determined that in some areas, transportation control plans would be necessary to reduce concentrations of carbon monoxide, hydrocarbons and photochemical oxidants to acceptable levels. However, because of the lack of experience with such plans, the deadline for the states to submit them was extended to February 15, 1973. 87 Fed.Reg. 10842 (May 31, 1972). For the same reason, many states were given two year extensions of the deadline for attainment of the primary standards. On January 31, 1973, this court decided NRDC v. EPA, 154 U.S.App.D.C. 384, 475 F.2d 968 (1973), which held that the Clean Air Act did not permit either delay in the submission of transportation control plans or the granting of blanket extensions of the attainment date of mid-1977. The states were accordingly directed to submit transportation control strategies by April 15, 1973, designed to attain the national air quality standards by mid-1975. 3

The various governmental units comprising the National Capital Region created an Air Quality Planning Committee to formulate a coordinated transportation control plan. Its recommendations were largely followed by the District of Columbia, Maryland and Virginia in the plans they submitted to the EPA during April and May, 1973. The plans included proposals for improved mass transit, parking disincentives, emission inspection programs, vehicle retrofit, control of gasoline evaporation during transfer, elimination of dry cleaning vapor losses, a ban on truck deliveries during certain hours, and aircraft taxiing emissions reductions. They were designed to bring about a 56 percent reduction in carbon monoxide emissions and a 67 percent rollback of hydrocarbon emissions. 4

On June 15, 1973, the Administrator approved some portions and disapproved other portions of the Maryland, Virginia and District of Columbia plans, noting that they contained certain regulatory and enforcement deficiencies, including a failure of the jurisdictions to guarantee that their legislatures would adopt laws and approve appropriations necessary to carry out the proposed measures. 38 Fed.Reg. 16556-57, 16558-59, 16563 (June 22, 1973). After the jurisdictions submitted supplemental material to cure some deficiencies, the Administrator, acting pursuant to section 110(c), published a proposed plan for each of the three portions of the Region and scheduled the necessary public hearings thereon. 38 Fed.Reg. 20758, 20779, 20789 (Aug. 2, 1973). At the same time, EPA announced its determination that the primary ambient air quality standards could not be achieved in the Region before May 31, 1977, and accordingly proposed to give each jurisdiction a two-year extension pursuant to section 110. A "preamble" to the EPA's transportation control plan was promulgated on November 6, 1973, 38 Fed.Reg. 30626, and regulations for the preconstruction review of parking facilities were released a week later, 38 Fed.Reg. 31536 (Nov. 15, 1973). On December 6, 1973, the balance of the regulations in the National Capital transportation control plan were issued, including a two-year extension of the attainment dates for each jurisdiction. 5 38 Fed.Reg. 33702-31. This plan was incorporated

in essentially identical form into the implementation plans for each jurisdiction. 40 C.F.R. Part 52, Subparts J(D.C.), V(Maryland), and VV(Virginia). These regulations are set out as an Appendix to this opinion and form the basis for this appeal. 6

C. The Structure of the Transportation Control Regulations

As promulgated, the EPA's plan imposes the following transportation control measures:

(1) A commitment to purchase 475 additional buses for the regional bus fleet by 1977, costs to be spread over the three jurisdictions. (40 C.F.R. §§ 52.476(g), 52.1080(g), 52.2435(e)); 7

(2) The creation of reversible, exclusive express bus lanes on specified corridors within the Region by January 1, 1975. (40 C.F.R. §§ 52.476(h), 52.1080(h), 52.2435(f));

(3) The adoption of an inspection and maintenance program by each of the three jurisdictions, applicable to all vehicles registered in the Region except antiques. The initial inspection cycle is to be completed by January 1, 1976. Failed vehicles must be retested within two weeks, and the jurisdictions must also adopt a program of enforcement to prevent intentional readjustment subsequent to the inspection. (40 C.F.R. §§ 52.490, 52.1089, 52.2441);

(4) The creation of a network of at least 60 miles of bicycle lanes, built to EPA specifications, in each jurisdiction by July 1, 1976, and a requirement that all operators of automobile parking lots containing more than 50 spaces provide bicycle storage facilities. (40 C.F.R. §§ 52.491, 52.1090, 52.2442);

(5) The retrofit of pre-1973 medium-duty vehicles, not required to be retrofitted with an oxidizing catalyst, with an Air/Fuel Control device....

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