On Petition for Review of Implementation Plan of the Environmental Protection Agency.
Van Dusen, Weis and Garth, Circuit Judges.
VAN DUSEN, Circuit Judge.
This case is before this court on a petition of the Commonwealth of Pennsylvania to review the action of the Administrator of the Environmental Protection Agency ("EPA") in promulgating a transportation control plan for Pennsylvania, 40 C.F.R. Part 52, Subpart NN, 38 Fed. Reg. 32884 (November 28, 1971).*fn1 The issues presented are: (1) whether the Administrator erred in including in such plan a regulation requiring the Commonwealth to establish a program to ensure that by June 1, 1976, an air bleed to intake manifold retrofit will be installed on all pre-1968 light-duty motor vehicles in the Pennsylvania portion of the Metropolitan Philadelphia Interstate Air Quality Control Region and the Allegheny County portion of the Southwest Pennsylvania Intrastate Air Quality Control Region, 40 C.F.R. § 52.2039, 38 Fed. Reg. 32894 (November 28, 1973); and (2) whether the federal enforcement procedures set forth in § 113 of the Clean Air Act (the "Act"), 42 U.S.C. § 1857c-8, may be constitutionally applied to the Commonwealth if it fails to enforce the air bleed retrofit program, or any other provision of the implementation plan promulgated for Pennsylvania, 40 C.F.R. § 52.23, 38 Fed. Reg. 30633 (November 6, 1973).
Pursuant to the requirements of § 109 of the Act, 42 U.S.C. § 1857c-4, the Administrator promulgated, on April 30, 1971, national primary and secondary air quality standards for particular pollutants.*fn2 Under § 110 of the Act, 42 U.S.C. § 1857c-5, the states were required to submit a control strategy or implementation plan whereby the quantities of these prescribed air pollutants would be reduced to acceptable levels as defined by the primary and secondary standards.
Three of the pollutants for which states had to develop control strategies -- carbon monoxide, hydrocarbons, and photo-chemical oxidants -- are largely attributable to motor vehicles. As a consequence, Pennsylvania, as well as many other states, had to formulate a strategy capable of controlling emissions from mobile sources and could not rely on previous plans designed to control pollution from stationary sources. Because of the general lack of experience in this area, the Administrator, on May 31, 1972, permitted those states who could not rely on a stationary source approach to defer submission of their transportation control strategies for approximately one year beyond the statutory deadline, until February 15, 1973, and granted 21 states, including Pennsylvania, a two-year extension for the attainment date of the standards, until mid-1977, although their plans had not yet been submitted. 37 Fed. Reg. 10842. These actions by the Administrator were held to be beyond his authority under the Act in Natural Resources Defense Council v. Environmental Protection Agency, 154 U.S. App. D.C. 384, 475 F.2d 968 (1973). Thereafter, the Administrator notified the Commonwealth that its extensions were cancelled and that its implementation plan had to be submitted by April 15, 1973, and had to contain a strategy to meet the national ambient standards by mid-1975.
Pennsylvania was one of eight states to submit a control strategy by the April 15, 1973, deadline. On June 15, 1973, the Administrator approved the general strategies proposed by the Commonwealth but disapproved certain provisions of the plan dealing with the methods adopted for implementing the strategies. On July 3, 1973, pursuant to his authority under § 110(c) (2) of the Act, 42 U.S.C. § 1857c-5(c) (2), the Administrator proposed regulations to bring the Pennsylvania plan into compliance with the Act and to achieve further emission reductions in the Pittsburgh and Philadelphia areas. After public hearings on these proposals were held in Philadelphia and Pittsburgh, a transportation control plan was promulgated on November 28, 1973, for the Metropolitan Philadelphia and Southwest Pennsylvania Air Quality Control Regions, 40 C.F.R. Part 52, Subpart NN, 38 Fed. Reg. 32884.
In addition to the air bleed retrofit program, the Pennsylvania Transportation Control Plan requires the Commonwealth to establish an inspection system for certain motor vehicles to ensure that they do not emit carbon monoxide and hydrocarbons above the level prescribed by EPA, to set up bikeways in the Southwest Pennsylvania and Philadelphia Regions, to establish a computer carpool matching system for those Regions, to create exclusive bus and carpool lanes throughout Metropolitan Philadelphia and Pittsburgh, to limit public parking in the above-mentioned Regions, and to monitor carbon monoxide and hydrocarbon emissions to determine if the measures prescribed by EPA are effective. These parts of the plan were not challenged by the petition for review.
An air bleed to intake manifold retrofit is basically a device designed to introduce excess air into the intake system of a motor vehicle; this results in a more complete burning of the fuel and thus reduces the amounts of hydrocarbons (unburned fuel) and carbon monoxide (burned fuel) emitted into the atmosphere. Under the transportation control plan promulgated by the Administrator, the Commonwealth must establish a program to ensure that all pre-1968 automobiles in the Metropolitan Philadelphia and Allegheny County Regions are equipped with an appropriate air bleed retrofit device. In particular, the Commonwealth is required to submit to the Administrator legally adopted regulations necessary to establish such a program, to cease registering or allowing to operate on its streets and highways vehicles which do not comply with the standards and procedures adopted pursuant to those regulations, and to submit to the Administrator a detailed compliance schedule showing the steps it will take to establish and enforce that program. 40 C.F.R. § 52.2039, 38 Fed. Reg. 32894.*fn3
In Delaware Citizens for Clean Air, Inc. v. Administrator, U.S. Environmental Protection Agency, 480 F.2d 972, 976 (3d Cir. 1973), we held that the proper scope of review of the Administrator's approval of state implementation plans under § 110 of the Act, is that such action will be set aside only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" within the meaning of 5 U.S.C. § 706(2)(A). Quoting from the Supreme Court's opinion in Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971), we said:
"'To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. [Citing authorities.] Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.'"
Delaware Citizens for Clean Air, supra, 480 F.2d at 976. Although the action challenged by petitioner here is not the approval of a state implementation plan but rather the promulgation of a federal plan to take the place of a rejected state plan, the latter action by the Administrator is also taken pursuant to his authority under § 110 of the Act and the same standard of review should apply.
The Commonwealth advances a number of arguments why the action of the Administrator in requiring the establishment of an air bleed retrofit program should be set aside. With regard to the application of that program to the Allegheny County portion of the Southwest Pennsylvania Intrastate Air Quality Region, the Commonwealth points out that in devising a strategy for that area, the Administrator relied on readings taken by the Allegheny County Air Pollution Bureau, which tended to over-estimate the amount of carbon monoxide in the ambient air.*fn4 EPA has conceded this error and has informally advised the Commonwealth that:
"As a result of the deficiencies in the carbon monoxide air quality measurements for Pittsburgh, we have agreed that the data base is inadequate for determining and promulgating appropriate CO-oriented strategies . . . . Our initial judgment is that the CO-oriented air bleed retrofit (required by regulation, Section 52.2039, 38 F.R. 32884) should be reevaluated and possibly substituted by an equivalent HC-oriented device, but that the remaining parts of the promulgation would be essentially the same."*fn5
As a result, the Administrator does not contest the Commonwealth's argument that a revision of the transportation control plan for the Pittsburgh area may be necessary and has indicated in its brief that a reevaluation process will be initiated shortly.*fn6 However, the Administrator has yet to revoke § 52.2039 as it relates to Allegheny County or to announce formally a reconsideration of the carbon monoxide elements of the transportation strategy for that area. Since it is undisputed that there is presently no factual support for the establishment of an air bleed retrofit program in Allegheny County, that part of the Pennsylvania Transportation Control Plan requiring the Commonwealth to do so is arbitrary and capricious and must be set aside.
The Commonwealth sets forth several reasons why the application of the air bleed retrofit program to the Pennsylvania portion of the Metropolitan Philadelphia Interstate Air Quality Control Region should also be set aside. First, it argues that this program is not a "practicable" method for achieving the primary ambient standard for carbon monoxide in that area, as required of state implementation plans by the Act.*fn7 In particular, the Commonwealth contends (1) that the Administrator incorrectly assumed, without any support from his own engineering data, that an air bleed retrofit device would achieve a 58% reduction per car in carbon monoxide emissions*fn8 and (2) that the Administrator failed to consider the economic and social impact and cost-effectiveness of an air bleed retrofit program for pre-1968 cars.*fn9 Furthermore, the Commonwealth argues that this matter should be remanded to the Administrator for further proceedings to determine whether an air bleed retrofit program is necessary in light of current petroleum allocation regulations. After a careful review of the record, we have concluded that the above-mentioned arguments of the Commonwealth are without merit and that the Administrator did not act in an arbitrary or capricious manner in requiring the establishment of an air bleed retrofit program for the Metropolitan Philadelphia area.
To begin with, the Administrator's determination that the use of an air bleed retrofit device on pre-1968 automobiles will result in a 58% reduction per car in carbon monoxide emissions is based on the study "Control Strategies for In-Use Vehicles." That study established the 58% reduction figure as the statistical mean of the reductions obtained from a test series involving 18 ...