ELR Citation: ELR 20434
No(s). 80-3721 (6th Cir. Apr 17, 1985)

The court holds that the Environmental Protection Agency's (EPA's) disapproval of revisions to Kentucky's ozone state implementation plan (SIP) for three nonattainment counties and its concurrent imposition of a construction moratorium under Clean Air Act §110(a)(2)(I) was neither outside its authority under the Act nor arbitrary and capricious, and did not violate due process or the Tenth Amendment. EPA acted reasonably and in accord with the Act when it disapproved Kentucky's SIP based on the state's failure to enact vehicle emission control inspection and maintenance (I/M) legislation covering the nonattainment areas. Since a state without an approved SIP is subject to a construction moratorium under §110(a)(2)(I), EPA's imposition of this sanction on the three nonattainment counties was proper.

The court next holds that plaintiffs did not have a due process right to an adjudicatory hearing prior to imposition of the construction ban because the only issue tht would have arisen at such a hearing, whether Kentucky had passed the I/M legislation, was not in dispute. Finally, the court rejects the argument that EPA intruded into an integral state function in violation of the Tenth Amendment by imposing the I/M program directly on thestate and counties. The states' role in the federal system is not guaranteed by external limits on the Commerce Clause via the Tenth Amendment, but instead by the constitutional structure of the federal government itself. Thus, EPA's imposition of the construction moratorium was a constitutional exercise of Congress' Commerce Clause power.

Counsel for Petitioner
Larry Holbrook
1 East Fourth St., Cincinnati OH 45202
(606) 344-3109

Counsel for Respondents
Julie Weisman
Department of Justice
P.O. Box 7415, Washington DC 20044
(202) 633-2338

Before: LIVELY, Chief Judge; KEITH, Circuit Judge; BROWN, Senior Circuit Judge.