U.S. v. Ohio Dept. of Highway Safety, s. 78-3306
| Decision Date | 05 December 1980 |
| Docket Number | Nos. 78-3306,78-3307,s. 78-3306 |
| Citation | 635 F.2d 1195 |
| Parties | , 11 Envtl. L. Rep. 20,026 UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee, v. OHIO DEPARTMENT OF HIGHWAY SAFETY and Donald D. Cook, Director, Defendants-Appellees, Cross-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
James W. Moorman, Angus Macbeth, Robert L. Klarquist, Barbara H. Brandon, Anne S. Almy, James N. Cahan, Land & Natural Resources Div., U. S. Dept. of Justice, Washington, D. C., James C. Cissell, U. S. Atty., Albert R. Ritcher, Asst. U. S. Atty., Columbus, Ohio, Thomas E. Ferguson, Auditor of State, John F. Birath, Jr., Bricker, Evatt, Barton & Eckler, Columbus, Ohio, for plaintiff-appellant, cross-appellee.
William J. Brown, Atty. Gen. of Ohio, Donald J. Guittar, Halstead L. Stettler, Asst. Attys. Gen., Columbus, Ohio, for defendants-appellees, cross-appellants.
G. Franklin Miller, Dinsmore, Shohl, Coates & Deupree, Cincinnati, Ohio, for amicus curiae.
Before WEICK, LIVELY and MERRITT, Circuit Judges.
This case arises under the Clean Air Act, as amended, (the Act) 42 U.S.C. § 7401, et seq.1 The issue on appeal concerns the enforcement 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 specific 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 required by an EPA-promulgated provision of the state implementation plan.
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 adequate to assure attainment and maintenance of the primary standard for photo-chemical oxidants in the Cincinnati area, EPA denied approval to a portion of the Ohio plan. As permitted by section 110(c) of the Act, 42 U.S.C. § 7410(c), on November 8, 1973, EPA supplemented the state implementation plan by publishing a regulation which required a vehicle inspection and maintenance program for Cincinnati and Hamilton County, Ohio. 40 C.F.R. § 52.1878.
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 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. This shall not apply to the initial registration of new vehicles.
Upon adoption, this regulation became part of the Ohio implementation plan.2
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 district court pursuant to section 113(a)(1) of the Act, 42 U.S.C. § 7413(a)(1), on November 18, 1976. Section 113(a)(1) (then codified at 42 U.S.C. § 1857c-8(a)(1)) provides:
§ 1857c-8. Federal enforcement procedures
(a) Determination of violation of applicable implementation plan or standard; notification of violator; 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 applicable implementation plan, the Administrator shall notify the person in violation of the plan and the State in which the plan applies 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 person to comply with the requirements of such plan or he may bring a civil action in accordance with subsection (b) of this section.
The relief sought by EPA was an injunction ordering the Ohio Department of Highway Safety and its director (collectively "the State" or "the State of Ohio") to comply with the June 22nd order.3
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 considering section 113(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 113(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 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 requirement 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.
The district court summarized its holding as follows:
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 (§ 113), which specifically concerns a case where violations 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 subsection (a)(2) by including specific state enforcement avenues in his § 1857c-5(c) (§ 110(c)) promulgations and then issuing orders against the state under subsection (a) (1).
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 regulation prohibiting registration of automobiles which have not complied with the emission inspection program." Since the State is a "person" within the meaning of the Act, 4 EPA argues that a state which fails to perform a duty imposed upon it by an implementation 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 113(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 enforce 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 productive 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 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 imposing 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."
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 individuals driving vehicles over them. Thus, any pollution which arises from the State's ownership of the roads is that caused by drivers, and EPA's enforcement efforts should be directed to the pollution-causing act. The State concedes that it could be sued under section 113(a)(1) if it operated vehicles which violated the emission limitations. This is quite different, however, from merely owning highways which attract vehicles whose emissions create air pollution, it contends. Thus, the State argues that section 113(a)(1)...
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