KRC Serves Notice of Intent To Sue Kentucky, EPA Over End To Vehicle Testing Program In Jefferson County, Kentucky.

September 10, 2003

Ms. Marianne Horinko, Acting Administrator

U.S. Environmental Protection Agency

Washington, D.C. 20460

Hon. Paul Patton, Governor

Commonwealth of Kentucky

State Capitol

Frankfort, Kentucky 40601

Jimmy Palmer, Regional Administrator

U.S. Environmental Protection Agency

Atlanta Federal Center

61 Forsyth Street

Atlanta GA 30303

Henry Clay List, Secretary

Natural Resources and Environmental Protection Cabinet

Fifth Floor, Capital Plaza Tower

Frankfort, Kentucky 40601

Re: Notice of Intent To Commence Civil Action Pursuant To

Section 304 of the Clean Air Act

Dear Acting Administrator Horinko, Governor Patton, Regional Administrator Palmer and Secretary List:

I am writing on behalf of the Board and membership of the Kentucky Resources Council, Inc., to serve notice of the intent of the Kentucky Resources Council, Inc. to commence a civil action under Section 304 of the Clean Air Act, as amended, to enforce that Act and certain requirements promulgated pursuant to that Act. Section 304(b) of the Clean Air Act requires the giving of notice as a prerequisite to commencement of a citizen suit to enforce the Act.

While it is my hope and expectation that the U.S. Environmental Protection Agency and Commonwealth of Kentucky will take such actions as are necessary to assure that the Clean Air Act and Kentucky's approved State Implementation Plan continue to be implemented unless and until changes are approved by the EPA Administrator in accordance with law, this notice is necessary in the event that EPA and the Commonwealth fail to act to prevent the Jefferson County Air Pollution Control District from terminating its I/M program, which is a required program under the approved Kentucky State Implementation Plan.

The Jefferson County Air Pollution Control District (JAPCD) has repealed, effective November 1, 2003, District regulations implementing a vehicle inspection and maintenance (I/M) program for that District, and has asked the Commonwealth of Kentucky to submit this proposed change to the approved State Implementation Plan (SIP).

Before the review and approval of that proposed SIP change by the U.S. Environmental Protection Agency, however, the District has indicated that it will cease, as of November 1, 2003, implementation of a vehicle inspection and maintenance program within that District, under a state-law mandate to end that program as of that date.

The unilateral legislative termination of a pollution control strategy that is a component of the approved SIP, interferes with the obligations of the state to maintain, administer and enforce the SIP component requirements unless and until the SIP is revised. I am writing to respectfully demand that both the U.S. Environmental Protection Agency and Commonwealth of Kentucky take the necessary actions, within the next sixty (60) days, to prevent the termination of a vehicle emissions testing program within Jefferson County until that proposed program termination is submitted to your agency, reviewed and approved upon proper demonstration that elimination of the program will neither interfere with further progress towards attainment of the eight-hour ozone standard nor interfere with the maintenance of the one-hour ozone and carbon monoxide standards.

Persons Giving Notice

This notice of intention to commence civil action pursuant to Section 304 of the Clean Air Act is served by the Kentucky Resources Council, Inc., a non-profit environmental advocacy organization whose membership includes individuals who are and will be adversely affected, within the meaning of Section 304 of the Clean Air Act, unless the U.S. Environmental Protection Agency takes certain steps to assure compliance by the Commonwealth of Kentucky and its delegee Jefferson County Air Pollution Control Agency, with the approved Kentucky State Implementation Plan.

Persons Receiving Notice

Pursuant to 40 CFR 54.2(a), notice is being sent by certified mail to the Acting Administrator, and to the Regional Administrator of Region IV, USEPA, which includes the Commonwealth of Kentucky.

Additionally, notice is being given by certified mail as required by 405 CFR 54.2(b), to Henry Clay List, Secretary, Natural Resources and Environmental Protection Cabinet, as the authorized representative of the state agency charged with responsibility for air pollution control in the Commonwealth, and also on Governor Paul Patton.

Finally, notice is being sent by certified mail to the Director of the Jefferson County Air Pollution Control District, Arthur L. Williams, and to the Mayor of Metro Louisville, Jerry Abramson.

Basis for Notice

40 CFR 54.3(a) requires that a notice of intention to commence civil action alleging a failure of the Administrator to perform an act or duty which is not discretionary "shall identify the provisions of the Act which requires such act or creates such duty" and "shall describe with reasonable specificity the action taken or not taken by the Administrator which is claimed to constitute a failure to perform such act or duty[.]"

40 CFR 54.3(b) provides that notices to the Administrator and states regarding violation of an emission standard or limitation "shall include sufficient information to permit the recipient to identify the specific standard, limitation, or order which has been violated, the activity alleged to be in violation, the person or persons responsible for the alleged violation," and the location and date or dates of such violation.

The background for this Notice is described in detail below, and the specific failures and violations complained of are likewise outlined as required by regulation.

On July 16, 2003, USEPA Region IV received a letter from the Jefferson County Air Pollution Control District (JAPCD) requesting EPA review and comment on a prehearing submittal proposing changes in the Louisville 1-Hour Ozone Maintenance Plan to eliminate the Jefferson County inspection and maintenance (I/M) program, also known as the "Vehicle Emissions Testing Program."

Louisville was originally required to implement an I/M program under the Clean Air Act because the area was unable to attain the health-based National Ambient Air Quality Standards for carbon monoxide (CO) and 1-hour ozone standards by December 31, 1982.

As part of the requirement for an area to receive an extension of the December 31, 1982 date for demonstrating attainment of those standards until December 31, 1987, Jefferson County agreed to implement the required I/M program. That program submittal was approved on October 9, 1984 (49 Fed. Reg. 39547).

Louisville was able in 1990 to demonstrate attainment of the carbon monoxide standard and received approval for the CO redesignation request and the maintenance plan for CO on April 16, 1990 (55 Fed. Reg. 14902).

The 1990 Clean Air Act Amendments reaffirmed the requirement for implementation of an I/M program for this area as a "moderate" nonattainment area for the 1-hour ozone standard.

On October 23, 2001, EPA redesignated the Louisville area as being in attainment for the 1-hour ozone standard and approved the 1-hour ozone maintenance plan for this area. (66. Fed. Reg. 53665). The I/M program is a component of the approved maintenance plan for both the CO and the 1-hour ozone standard.

Additionally, the more rigorous 8-hour ozone and fine particulates (PM2.5) standards have been adopted, and your agency is in the process of receiving designations by the states of those areas that, based on monitoring data, will not reflect attainment of those health-based standard within the applicable timeframe. Available data suggests that Louisville's air quality does not reflect attainment of either of the new standards.

Through two separate bills, the 2002 Kentucky General Assembly modified state law in an effort to compel the termination of the vehicle emissions testing program for Jefferson County, Kentucky. (2002 Ky. Acts chs. 229 and 346). While the state law amendments can be interpreted in a manner that would not compel elimination of the I/M program, (as evidenced in the public comments on the regulations repeal) the Jefferson County Air Pollution Control District has chosen to read the law as mandating elimination the program as of November 1, 2003 and has submitted a SIP revision to the Commonwealth of Kentucky to accomplish that end.

By letter dated August 14, 2003, the Chief of the Air Planning Branch of EPA Region IV notified the JAPCD that the prehearing submittal of the repealed I/M program regulations failed to demonstrate that this proposed SIP revision "will not interfere with attainment or maintenance of the other ambient air quality standards, including the 8-hour ozone and PM2.5 standards."

On August 27, 2003, the Jefferson County Air Pollution Control District forwarded to John Lyons, Director, Division of Air Quality, Commonwealth of Kentucky, a formal request for submittal to the U.S. Environmental Protection Agency, a revision to the Kentucky State Implementation plan (SIP). That letter transmitted four regulations, repealed on August 20, 2003, with the request that EPA approve the removal of the District's Vehicle Emissions Testing (VET) program from the active portion of the SIP, including the maintenance plan for the Kentucky portion of the Louisville 1-hour ozone maintenance area and carbon monoxide maintenance plan for Jefferson County.

With the forwarding by the District of that request for SIP revision, and the repeal of the four I/M regulations, Jefferson County's Air Pollution Control District has made clear that as of November 1, 2003, it will cease to administer, implement and enforce the vehicle emissions testing program for Jefferson County.

This elimination by the District of a required component of the approved State Implementation Plan, prior to review and approval by your agency, is in direct violation of the obligations of the Commonwealth of Kentucky under the approved SIP. This violation, and the failure of the EPA Administrator and the Comonwealth to act so as to prevent the cessation of the I/M program, will become actionable on November 1, 2003.

Jefferson County has been assigned responsibility for carrying out the portion of the State Implementation Plan for Kentucky that includes the Kentucky portion of the Louisville metropolitan area. However, 51.232 makes clear that the authorization by Kentucky to JAPCD "does not relieve the State of responsibility under the Act for carrying out such plan, or portion thereof."

Once an original or revised SIP is approved by the EPA, it becomes federal law, United States v. General Motors Corp., 876 F.2d 1060 (1^st Cir. 1989), affirmed, General Motors Corp. v. U.S., 496 U.S. 530 (1990); and remains the applicable and enforceable state implementation plan "even after the State has submitted a proposed revision." 496 U.S. at 540. Failure by state agency officials to maintain and administer the approved SIP is actionable under a Section 304 citizen suit. Clean Air Council v. Mallory, 226 F.Supp.2d 705 (E.D. Pa. 2002).

The Commonwealth of Kentucky is responsible for implementing and maintaining the SIP that has been approved by the EPA. Sweat v. Hull, 200 F.Supp.2d 1162, 1168 (D.Ariz 2001), (citing 42 U.S.C. 7407(a)). The State is also required to provide 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)[.]" Section 110(a)(2)(E), 42 U.S.C. 7410(a)(2)(E).

Additionally, where as here the state relies on a local governmental authority "for the implementation of any plan provision," Section 110(a)(2)(E)(iii) requires "necessary assurances that . . . . the State has responsibility for ensuring adequate implementation of such plan provision[.]" EPA regulations at 40 CFR 51.232 make clear that while the state agency may delegate or "assign" responsibility for carrying out a portion of the SIP to a local governmental authority, the state must demonstrate to the Administrator's satisfaction that "the State governmental agency has the legal authority necessary to carry out the portion of plan." The authorization by EPA of such assignment "does not relieve the State of responsibility under the Act for carrying out such plan, or portion thereof."

Finally, 42 U.S.C. 7416 does not preclude a state or political subdivision from adopting or enforcing any standard or limitation respecting emissions of air pollutants except that "if an emission standard or limitation is in effect under an applicable implementation plan . . . such State or political subdivision may not adopt or enforce any emission standard or limitation which is less stringent than the standard or limitation under such plan or section."

Plainly, elimination of the vehicle testing program regulations and termination of that program by the JAPCD on November 1, 2003, interferes with the state's obligation to comply with, administer and implement the approved SIP until a replacement SIP is submitted, reviewed by EPA and approved. The repeal and subsequent non-enforcement of the [VET] program on November 1, 2003 will constitute a violation of the Clean Air Act because it alters the approved SIP without prior EPA approval. Sweat v. Hull, 200 F.Supp.2d 1162, 1171 (D.Ariz. 2001) (finding that the repeal of a vehicle testing program by the state legislature in Arizona, and the subsequent non-enforcement by Arizona of the EPA-approved SIP, constituted a violation of federal law.) As with the Arizona state law that removed the authority of the Arizona state agency to implement a vehicle remote-sensing program, the provisions of the Kentucky statute purporting to eliminate the vehicle emissions testing program in Jefferson County prior to submittal to, review by, and approval of that program elimination as part of a revised State Implementation plan, "is ineffective and preempted by federal law." Sweat, supra, at 1172 (citing Nathan Kimmel, Inc. v. Dowelanco, 255 F.3d 1196, 1199 (9^th Cir. 2001; and Coalition for Clean Air, 1999 U.S. Dist. LEXIS 16106 at p. 14.

According to most recent estimates from the District, elimination of the I/M program will result in an increase in ozone precursor emissions in year 2005 of 8.6% more volatile organic compounds (1.89 tons per summer day more in the air) and 14% increase in year 2012 (1.65 tons more per day in summer air). For NOx, the increases in year 2005 are 3% (1.68 tons more per summer day) and in 2012, 8.7% (2.13 tons more per summer day). For carbon monoxide, which remains a concern in "hot spot" congested traffic corridors in this community, the loss of the I M program will add 30.19 tons more each day of CO in year 2005 and 32.34 tons per summer day in 2012, for an increase in 10.2% and 16.6% respectively. Rough estimates of air toxic emission increases from ending the I/M program show that without the I/M program, some 7.45 more tons of toxic air emissions more each summer day will be emitted.

Before this program is eliminated as a control measure for attaining and maintaining air quality in the Metro Louisville area, the public has a right to expect, and the State has an obligation to demonstrate, that other enforceable measures will be in place to assure no interference with attainment and maintenance of attainment status. For each of these reasons, the Kentucky Resources Council, Inc., on behalf of its members living, working and breathing in the Jefferson County area, who will be adversely affected by the attempted unilateral elimination of the I/M program, respectfully demands that the Commonwealth of Kentucky and U.S. Environmental Protection Agency take immediate steps to assure that an I/M program continues in force and effect for the Jefferson County area unless and until the SIP program revision proposing the elimination of that program is submitted to and approved by U.S. EPA as being consistent with Section 110 of the Clean Air Act and interfering neither with maintenance of the CO and 1-hour ozone standards nor the achievement of the 8-hour ozone standard.

In the event that such action is not taken, the persons giving notice may, without further notice at any time after the 60^th day, commence a civil action seeking declaratory and injunctive relief, to compel compliance against one or more of the agencies or persons on whom this notice was served.

Cordially,

Tom FitzGerald

Director and Counsel