KRC Asks 6th Circuit Court of Appeals To Stay End of Northern Kentucky I/M Program

IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

KENTUCKY RESOURCES COUNCIL, INC.
Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY,
and STEPHEN JOHNSON, in his capacity
as Administrator of the ENVIRONMENTAL
PROTECTION AGENCY,

Respondents.

Case No. 05-4349
_________________________

EMERGENCY MOTION FOR STAY
Ruling Requested Before Nov. 2
_________________________

Petitioner Kentucky Resources Council, Inc. hereby moves this Court pursuant to FRAP Rule 18 and 5 U.S.C. 705 for an emergency stay pending judicial review of a final rule published by the Environmental Protection Agency (EPA) pursuant to the Clean Air Act (CAA) approving revisions to the State Implementation Plan (SIP) for the Northern Kentucky area, 70 Federal Register 57750 (October 4, 2005), and made effective by that agency on November 3, 2005. Petitioner also moves this Court to allow this motion to exceed the page limit of twenty (20) pages by seven (7) additional pages. The EPA action approved the movement of the motor vehicle inspection and maintenance (I/M) program for Northern Kentucky from the active (?regulatory”) to the contingency portion of the plan, thus allowing the Commonwealth of Kentucky to terminate the vehicle emissions testing program for three Northern Kentucky counties (Boone, Kenton and Campbell). Kentucky has notified the testing contractor that as of 12:01 AM November 3, 2005, the contract will terminate and the program will be discontinued.

The EPA action, allowing a state to remove a control measure from an approved State Implementation Plan while the area is still in non-attainment of two applicable air quality standards, violates the plain language of EPA’s own regulations as well as Section 110(l) of the CAA. Additionally, even assuming that EPA could lawfully allow termination of a control measure, the administrative record reflects that the replacement measures approved by the agency will not offset the lost reductions from termination of the vehicle testing program, and thus violate Section 110(l) of the CAA.

Absent issuance of a stay of the effective date of the EPA rulemaking, the motor vehicle inspection and maintenance program for the Northern Kentucky area will terminate at midnight on November 2, 2005; effectively foreclosing the ability of this Court to provide meaningful relief in the event that it is determined that the EPA approval of the movement of that program from the active (“regulatory”) to the “contingency” category was inconsistent with law.

BACKGROUND

This emergency motion for a stay is filed in order to protect the ability of this Court to fashion meaningful relief in the event that the Court determines that EPA’s action in approving the revisions to the Northern Kentucky State Implementation Plan were inconsistent with law. A Request for Stay has been filed with the agency, and as of this filing, no response has been received.

The Petition for Review in this case was filed on October 28, 2005 in accordance with Section 307(b)(1) of the CAA, 42 U.S.C. 7607(b)(1), which authorizes the filing of a petition for review of the Administrator's action “in approving . . . any implementation plan under section 7410 of this title” within sixty (60) days from the date that notice appears in the Federal Register.

Pursuant to the CAA, the EPA Administrator has established national ambient air quality standards (NAAQS) for ozone and fine particulate matter as pollution limits in order to protect public health and welfare. Under 42 U.S.C. 7407(a), each state has the primary responsibility for assuring that the national ambient air quality standards will be achieved within the state by submitting a SIP, and by maintaining and implementing that approved SIP. The CAA requires that the state provide "necessary assurances" "that the State . . . will have adequate personnel, funding, and authority under State (and as appropriate, local) law to carry out such implementation plan (and is not prohibited by any provision of Federal or State law from carrying out such implementation plan or portion thereof)" and that the state has provided the assurance that "where the State has relied on a local or regional government, agency or instrumentality for the implementation of any plan provision, the State has responsibility for ensuring adequate implementation of such plan provision[.]" 42 U.S.C. 7410(a)(2)(E).

The CAA further provides that states and local agencies implementing the SIP "may not adopt or enforce any emission standard or limitation which is less stringent than the standard or limitation under such plan or section.” 42 U.S.C. 7416. The EPA reviews the proposed SIPs, and the approved SIPs become federally enforceable once approved by EPA. The Kentucky SIP is codified at 40 C.F.R. 52.920 through 52.939.

Once a pollution reduction measure is included in an approved “state implementation plan” is must be maintained and enforced as a matter of federal law and cannot lawfully be ended until EPA approval is first sought and obtained. A state law that interferes with the state’s obligation to maintain the SIP is void under the U.S. Constitution. Kentucky Resources Council v. US EPA, 304 F.Supp.2d 920, 930 (WD Ky. 2004).

Boone, Kenton and Campbell Counties were designated as "nonattainment" areas under the CAA because the area was unable to attain the health-based National Ambient Air Quality Standards for the 1-hour ozone standard by December 31, 1982. The 1990 Clean Air Act Amendments required that the Northern Kentucky counties implement a vehicle I/M program since the area was designated as a "moderate" nonattainment area for the 1-hour ozone standard. The vehicle testing program began testing vehicles in 1999 to help meet the nonattainment area requirements for the ozone standard effective at the time (the 1-Hour ozone standard). On July 31, 2002, (67 Fed. Reg. 49600), the Northern Kentucky portion of the SIP was redesignated into “attainment” for the 1-hour ozone standard. At the time that the 8-hour ozone standard was adopted, Northern Kentucky was designated as “attainment” for the 1-hour standard and was following the approved “maintenance plan” for that 1-hour standard, which included the operation of the vehicle I/M program. The northern Kentucky region was designated as “non-attainment” under the new, more protective 8-hour ozone standard on April 30, 2004 (69 Fed. Reg. 23857).

Pursuant to Senate Joint Resolution 3 enacted by the 2004 Kentucky General Assembly the state Environmental and Public Protection Cabinet, Division for Air Quality Division was directed to prepare and submit a SIP revision for the 1-hour ozone standard that did not rely on a vehicle I/M program for maintenance of the standard.

The state agency developed and on July 16, 2004 Kentucky submitted a revision to the Northern Kentucky SIP providing for movement of the vehicle inspection and maintenance (I/M) program from the active portion of the SIP into a “contingency” category in which the program would be terminated.

Under the proposed state SIP revision, as approved by EPA, the vehicle testing program would be moved “from the regulatory portion of the Kentucky SIP to the contingency measures section of the Northern Kentucky 1-Hour Ozone Maintenance Plan, which is part of the Kentucky SIP,” and two other regulatory changes that were offered by Kentucky as compensatory reductions for those reductions lost from the closure of the vehicle testing program were approved. The two regulatory changes were revisions to 401 KAR 59.185, an existing state regulation governing “new metal solvent cleaning equipment,” and a new regulation 401 KAR 59:760 governing “Commercial Motor Vehicle and Mobile Equipment Refinishing Operations.”

The EPA rulemaking approved that revision to the Kentucky State Implementation Plan for Northern Kentucky, which was published on October 4, 2005 and made effective on November 3, 2005. The effect of the EPA action is to allow the Commonwealth of Kentucky to terminate the vehicle I/M program as of November 3, 2005.

By letter dated October 4, 2005, Kentucky provided formal notice to the contractor that operates the Vehicle Emissions Testing Program in Boone, Campbell and Kenton Counties in Kentucky, Envirotest Systems Corp., that the Commonwealth was “exercising its right to terminate the contract for the subject counties due to the termination of the requirement for the emissions control program by the federal government” and that the contract would be terminated as of 12:01 a.m. on November 3, 2005. A copy of that letter is attached to Appendix 1. The Governor announced by press release today that he has signed an emergency regulation terminating the program effective November 2, 2005. See: Appendix 2.

STATEMENT OF REASONS FOR GRANTING AN EMERGENCY STAY

FRAP Rule 18 requires that a motion for stay include “the reasons for granting the relief requested and the facts relied on” and also that the Petitioner provide affidavits or other sworn statements supporting facts subject to dispute. FRAP 18(a)(2)(B)(i-ii). There are no facts in dispute here, since this matter arises from an agency rulemaking and is limited to a review of the material contained in the Administrative Record before the agency.

The standards upon which a stay pending review of an agency rulemaking are evaluated are whether the motion demonstrates that the Petitioner is (1) likely to succeed on the merits; (2) immediate and irreparable harm will occur absent a stay; (3) there is no harm to third parties if a stay is granted; and (4) a stay is in the public interest. See: Virginia Petroleum Jobbers Ass’n. v. FPC, 259 F.2d 921, 925 (D.C.Cir. 1958); Cuomo v. Nuclear Regulatory Commission, 772 F.2d 972, 974 (D.C. Cir. 1985) (a stay may be granted with a showing of “either a high probability of success and some injury, or vice versa”); Serono Laboratories v. Shalala, 158 F.3d 1313, 1318 (D.C.Cir. 1998).

I. Petitioner Is Likely To Succeed On The Merits of the Challenge

Section 110(l) of the CAA, 42 U.S.C. 7410(l), establishes the standard for revisions to a SIP, and in full provides that:

Each revision to an implementation plan submitted by a State under this chapter shall be adopted by such State after reasonable notice and public hearing. The Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 7501 of this title), or any other applicable requirement of this chapter.

42 U.S.C. 7410(l).

The EPA approval of the removal of the vehicle I/M program interferes with attainment of the 8-hour ozone standard and the fine particulate standard and is thus inconsistent with Section 110(l). EPA’s approval of the SIP revision is contrary to Section 110(l) and violates EPA’s own regulations which require that an area which was non-attainment for the 1-hour ozone standard at the time of designation as non-attainment for the 8-hour standard, maintain approved SIP control measures including specifically the I/M program. 40 C.F.R. 51.900(f)(2).

It is not in dispute that, according to the state, the termination of the I/M program will result in the emission of an additional .78 tons per summer day of volatile organic compounds (VOCs) and .29 tons per summer day (tpsd) of Oxides of Nitrogen (NOx), as well as 12.5 tons of Carbon Monoxide (CO) per summer day in year 2005.

Nor it is in dispute that for the purposes of Section 110(l) prohibiting interference with “any applicable requirement concerning attainment” that the 1-hour ozone standard, with which Northern Kentucky is now in attainment; the 8-hour ozone standard, for which Northern Kentucky’s counties are designated as “nonattainment,” and the fine particulate standard are all “applicable requirements.

Section 110(l) is intended to prevent backsliding in progress towards maintaining or achieving attainment with air quality standards. If the only applicable requirement were the 1-Hour ozone standard, Petitioner would agree that the Commonwealth could replace the I/M program with alternative reductions, provided that those substituted reductions were equivalent emissions reductions. According to the EPA, equivalent reductions must be “surplus, quantifiable, enforceable and permanent[,]” and the revised set of controls must be shown to result in equivalent or better air quality benefits.

The 8-Hour standard for ozone, and the new air quality standard for “fine particulates,” both of which are “applicable” requirements, complicate the required demonstration by the state and precluded EPA’s approval of elimination of any current control measure in the Kentucky SIP. Since the attainment demonstrations required of nonattainment areas (including Northern Kentucky’s counties of Boone, Campbell and Kenton) have not yet been submitted, Kentucky has not yet identified those additional reductions (if any) that will need to be achieved and additional controls adopted in order to demonstrate attainment of the more stringent 8-hour standard in the required timeframe.

A state has a certain array of control measures available to achieve the ambient air quality standard - measures that are imposed on mobile, or large or small stationary sources. As part of the SIP revision that will be necessary to satisfy the new 8-hour ozone standard, the Commonwealth of Kentucky will be required to demonstrate that control measures are in place that will result in achievement (attainment) of the air quality standard by the required date. EPA has previously acknowledged that Section 110(l) does not allow removal of control measures from an approved SIP unless it is demonstrated that the revision will not interfere with attainment of the standard. Calling it the “strict interpretation” of Section 110(l) and acknowledging that the law does not allow such revisions, EPA nevertheless has allowed states to make changes in control measures in approved SIPs as a matter of policy.

In a May 11, 2004 letter to Jefferson County Metro Louisville Air Pollution Control District, EPA indicated that a “strict interpretation” of Section 110(l) would delay any approval of changes to SIP control measures since 110(l) would allow EPA to approve a SIP revision removing a SIP requirement only after determining through development of appropriate demonstrations that it would not interfere with applicable requirements concerning attainment and reasonable further progress. Since that attainment demonstration was not yet made by the state or approved by EPA, EPA indicated a belief that such a “strict interpretation is [not] necessary or appropriate[]” and that

[p]rior to the time that attainment demonstrations are due for the new standards, EPA believes it is appropriate to interpret 110(l) to allow substituting equivalent emissions reductions for a control measure in the SIP. EPA believes that it would be defensible to interpret the statute as allowing such a substitution, so long as actual emissions in the air are not increased. We believe that this would represent noninterference with the obligation to demonstrate attainment of the new standards in the period prior to submission of the attainment plan. Our Office of General Counsel advises that in order to defend this interpretation, the equivalent reductions would have to represent actual new emissions reductions achieved in a contemporaneous time frame to the time the existing SIP measure is terminated, in order to preserve the status quo level of emissions in the air. Thus, an area could not claim as substitute emissions reductions those reductions that had already occurred and achieved actual reductions in the air at a time not contemporaneous with the termination of the existing SIP control measure.

* * *

Although we cannot give you a firm definition of “contemporaneous” for this purpose, we believe a rule of reason would apply.

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Additionally, a State cannot claim a promulgated Federal control measure for equivalent reductions. These Federal control measures will occur in any event without any state action. Thus, such reductions would not provide equivalent new excess reductions to substitute for termination of an existing State program. Furthermore, without an approved attainment demonstration, it is not known what measures the area needs in order to attain the new NAAQS.

EPA thus concedes that a “strict” (or one might say a plain) reading of Section 110(l) prohibits approval of a proposed SIP revision to remove a maintenance measure adopted to maintain the 1-hour ozone SIP, until that state had undertaken the attainment demonstration for the 8-hour ozone standard and demonstrated that the elimination of the measure would not result in interference with reasonable further progress towards attainment of the standard. This “strict” interpretation is the only interpretation consistent with the plain language of Section 110(l), and removal of an approved and implemented control measure controlling both precursors of ozone and particulates, at a time when it is not known what additional reductions will be needed to attain the 8-hour ozone and fine particulates standard, is of dubious legality.

In addition to violating the plain language of Section 110(l), the action by EPA approving the shifting of the vehicle I/M program for Northern Kentucky to the contingency category violates the plain language of EPA’s own regulation on the implementation of the 8-Hour Ozone Rule.

On April 15, 2004, EPA published the Final Rule To Implement the 8-Hour Ozone National Ambient Air Quality Standard – Phase I. That final rule addressed several key components of the proposed implementation strategy for the 8-hour ozone standard, including the classification of areas for purposes of the 8-hour ozone NAAQS and the obligations of states during the transition from the 1-hour to 8-hour ozone standard. The April 15, 2004 final rule specifically addressed how antibacksliding principles would be applied to areas to ensure continued progress towards attainment of the 8-House Ozone NAAQS.

Since Northern Kentucky was in attainment and maintenance status with respect to the 1-hour ozone standard at the time that the area was designated by EPA as being in nonattainment with the 8-hour ozone standard, the region fell within the category of “8-Hour NAAQS Nonattainment/1-Hour NAAQS Maintenance” under 40 C.F.R. 51.905(a)(2) which provides that:

An area designated nonattainment for the 8-hour NAAQS that is a maintenance area for the 1-hour NAAQS at the time of designation for the 8-hour NAAQS for that area remains subject to the obligation to implement the applicable requirements as defined in section 51.900 (f) to the extent such obligations are required by the approved SIP, except as provided in paragraph (b) of this section. Applicable measures in the SIP must continue to be implemented; however, if these measures were shifted to contingency measures prior to designation for the 8-hour NAAQS for the area, they may remain as contingency measures, unless the measures are required to be implemented by the CAA by virtue of the area’s requirements under the 8-hour NAAQS. The State may not remove such measures from the SIP.

40 CFR 51.905(a)(2)

Since the vehicle I/M program was a component of the approved SIP for Northern Kentucky it constitutes an “obligation [ ] required by the approved SIP.” The EPA regulation distinguished those measures required by the approved SIP from those required by the Act to be implemented by virtue of the applicable 8-hour classification category, making clear that even if not required to be maintained by the classification of the area under the 8-hour rule, the maintenance measures contained in the 1-hour plan must be continued, unless shifted to the contingency category before designation. In Northern Kentucky, the vehicle I/M program was not shifted to a contingency measure prior to the designation of the region for the 8-hour ozone National Ambient Air Quality Standard. There is no question also that the I/M program is an “applicable requirement” since 51.905(a)(2) requires that the applicable requirements “as defined in section 51.900(f)” continue to be implemented until the 8-hour standard is attained, and the referenced section, 51.900(f) lists “inspection and maintenance programs” as one of twelve “applicable requirements” that must therefore be continued.

After April 15, 2004, then, by virtue of the mandate that “1-hour maintenance, 8-hour nonattainment” areas continue the control measures in the maintenance plan, whatever flexibility EPA regulations or policies might have previously claimed to allow termination or removal of an I/M program from a 1-hour ozone maintenance area was bounded by the unambiguous requirement that such measures continue after the date of designation as nonattainment for the 8-hour ozone standard.

40 CFR 51.905(a)(2) contains one exception to the unambiguous requirement to continue the maintenance plan requirements.

The regulation provides that an area designated nonattainment for the 8-hour NAAQS that is a maintenance area for the 1-hour NAAQS at the time of designation for the 8-hour NAAQS for that area remains subject to the obligation to implement the applicable requirements as defined in section 51.900(f) to the extent such obligations are required by the approved SIP, “except as provided in paragraph (b) of this section.” The exception provided in paragraph (b) of 40 CFR 51.905 allows an applicable requirement to be shifted to a contingency measure once the area attains the 8-hour standard. The clear conclusion from this language is that applicable requirements (such as the explicitly included inspection and maintenance program) may not be transferred to a contingency measure prior to that time. Because the Northern Kentucky I/M program was not transferred to a contingency measure prior to the 8-hour designations, Kentucky must continue to implement it.

In addition to the plain and unambiguous language of 40 CFR 51.905(a)(2) that precludes shifting of “applicable requirements” to the contingency category, and the inclusion of all I/M programs within the regulatory definition of “applicable requirements,” the regulatory history of the new rule makes clear that the agency did not contemplate an exception that would allow a shift of I/M to a contingency measure pursuant to section 51.372(c). The basis and purpose statement, or “preamble” to the April 15, 2004 rule states that “upon designation as nonattainment for the 8-hour NAAQS, a 1-hour maintenance area will not be able to shift adopted controls (i.e., those identified as ‘applicable requirements’ in the regulation) to contingency measures as those obligations are now defined as ‘applicable requirements.’” 69 Fed. Reg. at 23,979. There is no ambiguity in this language and no exception for I/M programs. Since 40 CFR 51.905(a)(2) specifically requires that maintenance measures such as the Northern Kentucky I/M program be continued until compliance is achieved with the 8-hour standard, the requested SIP revision could not lawfully have been approved. Assuming, arguendo, that the EPA interpretation of Section 110(l) is a permissible one and that in the absence of the submittal by Kentucky of an attainment demonstration for the 8-hour ozone standard and the fine particulate standard, approved control measures for the 1-hour ozone maintenance plan such as the I/M program can be removed and other reductions substituted, EPA acted arbitrarily and capriciously and in a manner inconsistent with law in approving the Commonwealth’s submittal since it failed to provide equivalent, surplus, quantifiable and enforceable emissions reductions to offset those lost in the event of shutdown of the I/M program.

As mentioned earlier, if the I/M program terminates, approximately ¾ of a ton of additional VOCs and almost 1/3 of ton of additional NOx will be present in the summer air each day than would have been present had the I/M program been continued. As mentioned previously, to change an accepted control strategy in the SIP, there must be a demonstration of how air quality will be affected both locally and in applicable downwind area for the applicable criteria pollutants. The proposal must demonstrate that the revised strategy or set of controls will result in equivalent or better air quality benefits. The submission by the Commonwealth fails to do so.

The first of the two measures that the Division for Air Quality proposes to rely on to offset the lost I/M reductions is the adoption of regulatory language in 401 KAR 59:185 establishing a vapor pressure limit for solvents used in cold cleaning degreasing operations in the three counties. According to the state proposal approved by EPA, those revisions would generate .71 tpsd of VOC reductions to offset much of what would be lost from terminating the I/M program. The use of those proposed reductions is questionable for a number of reasons. First, the proposed reductions from the current form of the regulation are not surplus. 401 KAR 59:185 is a part of the current SIP, having been approved on June 23, 1994. (59 F.R. 32343). As a current control measure that is part of the SIP, such emissions reductions as may have been achieved by the past application of the regulation when the area was nonattainment and those yet being achieved cannot be considered new or surplus. Only such reductions as can be demonstrated to be surplus, enforceable, quantifiable and permanent from the amendments to the regulation (if any) would be available. Second, the Commonwealth has failed to demonstrate that the proposed amendments to the existing regulation will yield quantifiable, enforceable and permanent reductions. The emissions factors used to project current emissions from cold solvent degreasing are not grounded in actual use data, but appear to have been based on generalized per-capita estimates. There has been no inventory provided to the public for review, of facilities that are actually currently using solvent-based degreasing processes, whether those facilities are operating at higher vapor pressures, nor of facilities selling such solvents for use by facilities in the area. The actual usage and emissions from solvent-based degreasing has not been assessed, and the applicability of historic emissions data has not been validated.

The proposed amendments lack enforceability as well. The Cabinet has not adopted a permitting or licensing process for area sources emitting VOCs from cold solvent degreasing processes by which to determine compliance of users with the vapor pressure and workplace limits. No indication has been provided of the number, location, size and type of degreasing equipment and processes used by actual facilities within the affected counties, nor of the manpower needed to conduct compliance inspections of the facilities to determine whether the new vapor pressure limits will be met. Absent the most rudimentary information concerning solvent sales and usage, the proposed amendments are not enforceable, and actual emissions reductions are not quantifiable. The proposed restrictions and reporting obligations on solvent vendors is likewise problematic absent a demonstration of how such users (located both within and outside the affected area) will be identified, how reporting and vapor limits compliance will be monitored, and how limits will be enforced as a practical matter.

Finally, assuming that the Commonwealth provides documentation of actual reductions that will be achieved, an inventory or sources and vendors, and mechanisms to monitor and enforce compliance in order to yield real, quantifiable and permanent reductions, the proposed regulation amendment provides that compliance with the new vapor pressure limits will not be required until December 15 2007 for sources that become subject to the regulation. The SIP Amendment provides no offsetting reductions for those lost by terminating the I/M program at the end of 2004 and until the enhanced regulation becomes enforceable.

In short, the quantifiable, enforceable emissions reductions of the I/M program are proposed to be replaced by a regulatory measure that assumes the current level of emissions based on generalized per-capita assumptions rather than a genuine inventory, and proposes new regulatory limits un an as-yet unidentified regulated population of vendors and users with no proposed strategy for enforcement and monitoring of the new limits.

For similar reasons, the other regulation proposed by Kentucky to be substituted for the lost I/M reductions, 401 KAR 59:760, failed to provide offsetting reductions that are quantifiable, enforceable and permanent. The regulation, 401 KAR 59:760, according to the Cabinet’s description, would require the use of high transfer-efficiency spray guns for auto body refinishing operations.

The regulation will apply, by its terms, to “new and existing commercial motor vehicle and mobile equipment refinishing operations in Boone, Campbell and Kenton Counties,” and require that a person applying a finish to mobile equipment shall use one of 9 enumerated methods of applying finishes to mobile equipment, or any other method demonstrated to be equivalent in emissions reductions to HVLP or electrostatic spray application methods. By February 28, 2005, sources “subject to this regulation” shall submit documentation to substantive that “high efficiency transfer application techniques of coatings are in use at their facility.”

The problems with utilizing this regulation as a substitute for the known, quantifiable, enforceable and permanent reductions achieved through the continuation of the VET program, are many. Initially, the evidence in the Administrative Record demonstrates a high level of current compliance with the high efficiency transfer application techniques within the regulated population. Since the newly-regulated population already has achieved these reductions, the claim that adoption of this standard will result in new, contemporaneous, offsetting reductions for the end of the VET program appears from the record to be largely illusory.

Absent an inventory of affected facilities and the current regulatory and emissions status of those facilities, which Petitioners requested during the comment period. EPA’s approval of this regulation for the known reductions achieved in the VET program falls short of the mark. The agency must demonstrate that adoption of the regulation will result in real, contemporaneous reductions comparable in impact to those lost from termination of the program.

Additionally, the proposed regulation lacks enforceability. The Cabinet has not adopted a permitting or licensing process for area sources emitting VOCs from commercial motor vehicle and mobile equipment refinishing operations, nor has the agency provided a meaningful explanation of the manpower needed to conduct compliance inspections of the facilities to determine whether the new requirements will be met. Absent the most rudimentary information concerning the number of affected facilities and their emissions profile and regulatory status, the SIP revision is not enforceable, and actual emissions reductions are not quantifiable.

In order to be approved, the revision must have provided documentation of actual reductions that will be achieved, an inventory of affected sources, and the mechanisms that will be used to monitor and enforce compliance in order to yield real, quantifiable and permanent reductions. The “equivalent” reductions must represent “actual new emissions reductions achieved in a contemporaneous time frame to the time the existing SIP measure is terminated[,]” and it is unclear whether any new reductions will in fact be achieved.

2. In The Absence of A Stay, Irreparable Harm Will Occur

If the EPA rule is not stayed, irreparable harm will occur, since the vehicle testing program will be terminated effective 12:01 a.m. on November 3, 2005 and the harm that Petitioner seeks to avoid will have irrevocably come to pass. The termination of the vehicle emissions testing program will preclude meaningful relief from being crafted by this Court in the event that Petitioner prevails, since if the program is allowed to terminate on November 3, 2005, a significant lapse of time could occur before the vehicle emissions testing program could be restarted due to the time necessary for the state to develop and negotiate a new contract, and for a new contractor to establish testing locations, install equipment, and train personnel.

3. No Third Parties Will be Harmed By The Grant of A Stay

The entry of a stay will maintain the current lawful status quo, and will impose no new regulatory obligatons on any party. The absence of a stay will, to the extent that Petitioners are correct, resulting in increased ambient concentrations of ozone-forming precursor pollutants.

4. The Public Interest Favors Issuance Of An Emergency Stay

The final criteria is whether a stay will serve the public interest. In this case, the public interest is served best by maintenance of a program with demonstrated effect on improving ambient air quality, rather than termination of the program and with it the removal of that control strategy while the community remains one in which healthy air quality has not been achieved.

WHEREFORE, for the reasons stated herein, Petitioner respectfully requests that this court enter an Emergency Stay of the EPA Final Rule, and direct that the Environmental Protection Agency that the final rule is stayed pending judicial review until further orders of this Court, and that EPA is to instruct the Commonwealth of Kentucky of its obligation under federal law to maintain in force and effect the approved SIP including the vehicle inspection and maintenance program, and for any and all other relief to which Petitioner may appear entitled.

Respectfully submitted, Thomas J. FitzGerald
KENTUCKY RESOURCES COUNCIL, Inc.
213 St. Clair Street Suite 200
Post Office Box 1070
Frankfort, Kentucky 40602-1070
Tel: (502) 875-2428
Fax: (502) 875-2845
Attorney for the Kentucky Resources Council, Inc.

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