ELR Citation: ELR 20651
No(s). 74-1007 (4th Cir. Sep 19, 1975)

The Environmental Protection Agency is without authority under the Clean Air Act to require the state of Maryland to enact a vehicle retrofit program and establish bikeways as part of the Baltimore Transportation Control plan. The canons of statutory construction dictate this interpretation of the Act since a contrary view would render portions of the statute unconstitutional. Because of its resolution of the issue through statutory construction, the court declines to rule on these constitutional questions, however. EPA may, if a state implementation plan is inadequate to achieve applicable air quality standards, promulgate an adequate plan itself and enforce it directly against violaters. The agency may not, however, order the state to adopt particular plan provisions under pain of civil or criminal sanctions. The state, if it wishes to avoid federal control of its air pollution control effort, can develop an acceptable plan; it is however free not to do so, in which case EPA control of the programs is the only undesirable consequence it must face. An EPA-promulgated portion of the plan relating to employer mass transit incentive programs is remanded to the agency as being both impermissibly vague and invalid for lack of proper notice. The plan's vapor recovery provision is also remanded in view of the substantial confusion concerning the type of equipment necessary to meet the required level of recovery.

Counsel for Petitioner State of Maryland
Francis B. Burch Attorney General
Martin A. Ferris, III Special Asst. Attorney General
One S. Calvert St.
Baltimore, MD 21202

Counsel for Petitioner Safeway Stores
William H. King Jr.
McGuire, Woods & Battle
1400 Ross Building
Richmond, VA 23219

Counsel for Petitioner Sears, Roebuck & Co.
William F. Patten
Harvey H. Holland Jr.
Benjamin Cabell IV
Wilkes & Artis
1666 K Street, NW Suite 600
Washington, DC 20006

Counsel for Petitioner Bethlehem Steel Corp.
Alan D. Yarbro
Anthony M. Carey
John G. Lamb Jr.
Venable, Baetjer & Howard
1800 Mercantile Bank & Trust Building
2 Hopkins Plaza
Baltimore, MD 21201

Counsel for Respondent
Bruce J. Chasan
Edmund B. Clark
Department of Justice
Washington, DC 20530

John E. Bonine
William F. Pedersen
Environmental Protection Agency
Washington, DC 20460