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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

Updated Posting: Vehicle Emissions Testing Suit Filed  Posted: November 22, 2003

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

LOUISVILLE DIVISION

CASE NUMBER ________________

KENTUCKY RESOURCES COUNCIL, INC.,

213 St. Clair Street, Suite 200

P.O. Box 1070

Frankfort, Kentucky 40602

and

SARAH LYNN CUNNINGHAM,

a citizen and resident of Metro Louisville, PLAINTIFFS

V. COMPLAINT

MIKE LEAVITT in his official capacity as ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

Ariel Rios Building

1200 Pennsylvania Avenue Room 3000 (1101-A)

Washington, District of Columbia 20460

and

HENRY CLAY LIST in his official capacity as

SECRETARY, NATURAL RESOURCES AND

ENVIRONMENTAL PROTECTION CABINET

5th Floor, Capital Plaza Tower

Frankfort, Franklin County, Kentucky 40601

and

ARTHUR WILLIAMS, in his official capacity as DIRECTOR,

LOUISVILLE METRO AIR POLLUTION CONTROL DISTRICT

850 Barrett Avenue

Louisville, Metro Louisville, Kentucky 40204

and

DR. KAREN CASSIDY, in her official capacity as CHAIRPERSON,

LOUISVILLE METRO AIR POLLUTION CONTROL BOARD

850 Barrett Avenue

Louisville, Metro Louisville, Kentucky 40204

INTRODUCTION

This action arises under the "Citizen Suit" provision of the Clean Air Act, 42 U.S.C. 7604, seeking a determination by this Court that the Louisville Metro Air Pollution Control District (LMAPCD) and its' Board have violated "an emission standard or limitation" under the Clean Air Act (CAA) by unilaterally eliminating the vehicle emissions testing (VET) program component of that SIP on November 1, 2003 without first obtaining approval from the United States Environmental Protection Agency (EPA). The action, taken after receipt by the LMAPCD of notice from the EPA that the proposed SIP revision to eliminate the program would not be approved, and after receipt by the LMAPCD of notice from the state Natural Resources and Environmental Protection Cabinet (NREPC) reminding the LMAPCD of its continuing federal obligation to maintain the VET program, constitutes a violation of a binding and enforceable commitment under federal law to maintain and administer the approved "State Implementation Plan" (SIP) for reducing carbon monoxide and ozone pollutant emissions, and is actionable under 42 U.S.C. 76094(a)(1) against the state and local agency officials.

Plaintiffs seek a determination that defendants List, Williams and Cassidy have violated obligations under the federal CAA with respect to maintenance of the approved Kentucky SIP by eliminating the VET program prior to receipt of approval for the elimination of the program from EPA, and that KRS 77.320, to the extent that it mandated that premature termination, is void ab initio as being violative of the Supremacy Clause of the U.S. Constitution and interfering with the fulfillment of federally enforceable obligations of the state and local agency officials.

Plaintiffs seek preliminary and permanent injunctive relief mandating compliance by the local agency officials with the approved SIP through reinstatement of the vehicle testing program.

Under the federal Clean Air Act, 42 U.S.C. 7401 et seq., when a state has included an emissions control strategy in a "State Implementation Plan" (SIP), that state is obligated as a matter of federal law to continue in effect the approved strategy until the state submits and receives approval from the EPA for removal of that control strategy. A state may delegate the implementation of the state obligations under a SIP to a local unit of government, as has been the case with the defendant Natural Resources and Environmental Protection Cabinet and the defendant Louisville Metro Air Pollution Control District, yet the state remains responsible and accountable along with that delegated local agency, for assuring that the SIP is maintained and enforced as approved by EPA.

In direct and knowing violation of its federal obligation, the LMAPCD Board, construing KRS 77.320 as requiring that it terminate the vehicle emissions testing program, repealed state regulations authorizing the program effective November 1, 2003 and ended the vehicle testing program on that date.

After providing the required 60-day notice for maintenance of a federal citizen suit, Plaintiffs file this action seeking preliminary injunctive relief to minimize further pollution harm from this clear violation by state and local government agencies of their mandatory obligations under federal law, and permanent injunctive relief to compel the maintenance of a vehicle emissions testing program until such time as the program elimination is approved as being consistent with the clean Air Act by the U.S. Environmental Protection Agency.

Absent injunctive relief, the program will remain unlawfully terminated and air quality in Louisville/Jefferson County will incrementally worsen. Immediate judicial intervention is necessary to preserve the ability of this Court to grant meaningful relief to the plaintiffs in the face of this clear violation of Congressional policy and federal statute, and to maintain the last lawful status quo pending a determination by this Court as to whether federal law requires reestablishment of the vehicle testing program and whether the state law and District regulations are preempted and are void.

PARTIES

1. The Kentucky Resources Council, Inc., (KRC), is a non-profit environmental advocacy organization incorporated under the laws of the Commonwealth of Kentucky and dedicated to prudent use and conservation of the natural resources of the Commonwealth. Council members include numerous individuals who reside, work, and recreate within the Metro Louisville area, and who will be adversely affected and aggrieved within the meaning of applicable statutes if the VET program is terminated prior to approval by the U.S. Environmental Protection Agency. The Council has representational standing to maintain this action on behalf of its members in Louisville/Jefferson County Metro area, including without limitation, Ms. Sarah Lynn Cunningham, a member in good standing of the Council and a citizen and resident of Metro Louisville, Kentucky. The Kentucky Resources Council, Inc., on behalf of its membership in the Louisville/Jefferson County Metro area, including without limitation its member Sarah Lynn Cunningham, are persons with health interests that are affected by the termination of the VET program on November 1, 2003.

2. Sarah Lynn Cunningham, is a citizen of the United States, a resident, homeowner, hybrid automobile owner and taxpayer in Metro Louisville/Jefferson County who lives, works, and breathes within the Louisville/Jefferson County region. Ms. Cunningham is an environmental engineer who understands the role of vehicle testing programs in clean air, drives a hybrid car, and takes the bus to work whenever possible in order to lessen her individual contribution to air pollution. Ms. Cunningham has asthma, which is aggravated by exposure to elevated levels of ozone and fine particulates in the air, particularly summer air. During high ozone days, she has been required to stay indoors in order to protect her health, limiting her quality of life and ability to do her job. The elimination of the VET program will cause an estimated increase of 1.89 tons per summer day of volatile organic compounds and 1.68 tons of nitrogen oxides into the Louisville air, as well as an increase in air toxics, thus lowering air quality and aggravating her health problems. She is a "person" with an interest that is or may be adversely affected, within the meaning of the relevant statutes, and satisfies the statutory and constitutional requisites for standing to maintain this action. There is a direct causal link between the harm she seeks to avoid, which is worsened air quality, and the unlawful actions of the state and local agency defendants in terminating the VET program, and the relief sought in this action, to wit, reinstatement of the VET program pending lawful approval of the termination of the program, will redress the harm alleged. She is a "person" whose interests fall within the "zone of interests" sought to be protected by the Clean Air Act, and specifically within the meaning of 42 U.S.C. 7604(a). She has standing, as an individual, and KRC has representational standing on behalf of Ms. Cunningham and other KRC members in the Metro Louisville area, to maintain this action.

3. Henry Clay List is sued in his official capacity as Secretary of the Natural Resources and Environmental Protection Cabinet, (NREPC), the agency to which the authority and duty to implement an air quality program consistent with the obligations of federal law has been delegated by state law. The Natural Resources and Environmental Protection Cabinet is obligated as a matter of federal law to maintain, administer and enforce the approved SIP, notwithstanding delegation of that responsibility to a local unit of government, and is sued as a necessary party.

4. Arthur L. Williams is sued in his official capacity as Director of the Louisville Metro Air Pollution Control District (LMAPCD), the agency within Metro Louisville government that has responsibility for implementation of Clean Air Act provisions within the county, and which manages through contract with a private provider, and by regulations adopted by the LMAPCD, a vehicle inspection and maintenance program referred to as the vehicle emissions testing or "VET" program.

5. Dr. Karen Cassidy is sued in her official capacity as the chair of the Louisville Metro Air Pollution Control District Board, the governing body of the Louisville Metro Air Pollution Control District.

6. Mike Leavitt is sued in his official capacity as Administrator of the United States Environmental Protection Agency, which is that agency of the federal government to which administration and enforcement of the lean Air Act has been delegated by Congress. The Administrator is named as a necessary party defendant, to assure that any injunctive relief provided is consistent with the obligations of the state and local agency officials under the approved Kentucky SIP and does not interfere with attainment and maintenance of the approved SIP.

JURISDICTION AND VENUE

7. This Court has jurisdiction over this civil action pursuant to 42 U.S.C. 7604(a), which provides in relevant part that:

[A]ny person may commence a civil action on his own behalf-

(1) against any person (including (i) the United States, and (ii)

any other governmental instrumentality or agency to the extent

permitted by the Eleventh Amendment to the Constitution) 1who is

alleged to have violated (if there is evidence that the alleged violation

has been repeated) or to be in violation of (A) an emission standard

or limitation under this chapter or (B) an order issued by the Adminis-

trator or a State with respect to such a standard or limitation.

* * *

The district court shall have jurisdiction, without regard to the amount in

controversy or the citizenship of the parties, to enforce such an emission

standard or limitation[.]

8. Pursuant to 42 U.S.C. 7604(b), no action may be commenced pursuant to 42 U.S.C. 7604(a)(1) "prior to 60 days after the plaintiff has given notice of the violation (i) to the Administrator, (ii) to the State in which the violation occurs, and (iii) to any alleged violator of the standard, limitation, or order[.]" On September 10, 2003, on behalf of the Board and membership of the Kentucky Resources Council, notice was served in accordance with EPA regulations and as required by 42 U.S.C. 7604(b). A copy of that Notice of Intent To Commence Civil Action is annexed to this Complaint.

9. More specifically, notice was sent by certified mail, return receipt requested, in accordance with EPA regulation 40 CFR Part 54, and was received by the Acting Administrator of the United States Environmental Protection Agency, Marianne Horinko, on September 16, 2003; by EPA Regional Administrator Jimmy Palmer on September 12, 2003; by state Natural Resources and Environmental Protection Cabinet Secretary Henry Clay List on September 11, 2003; by Louisville Metro Mayor Jerry Abramson on September 11, 2003; by Metro Louisville Air Pollution Control District Director Arthur Lee Williams on September 11, 2003; and by Governor Paul Patton on September 11, 2003. A copy of the return receipts documenting the date of receipt and of service by mailing are annexed hereto.

10. 42 U.S.C. 7604(b) further provides that no action may be commenced "if the Administrator or State has commenced and is diligently prosecuting a civil action in a court of the United States or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any person may intervene as a matter of right."

11. To the best of Plaintiffs knowledge and belief neither the EPA nor the state NREPC have filed in a court a civil action to compel compliance by the state NREPC or LMAPCD with the mandatory requirements of the approved SIP with respect to the Vehicle Emissions Testing program. EPA, through Assistant Counsel for Air and Radiation Kevin McLean, by letter dated November 7, 2003 did acknowledge receipt of the Notice of Intention to Commence Action and assigned it EPA File No. NCS 0324, but otherwise gave no indication that the Administrator of EPA had filed a civil action such as that contemplated in 42 U.S.C. 7604(b).

12. Venue is appropriate in this District, since the LMAPCD "resides" in this Judicial District and the program unlawfully terminated by local agency Defendants was formerly operated in this District.

13. A vehicle emissions testing program that is a component of an approved state implementation plan is an "emission standard or limitation under this chapter" within the meaning of 42 U.S.C. 7604(a) and the unlawful unilateral termination of that program by a state and local agency is actionable as a violation of an "emission standard or limitation under this chapter" within the meaning of 42 U.S.C. 7604(a)(1). See: 42 U.S.C. 7604(f)(3).

STATUTORY BACKGROUND

12. Paragraphs 1-11 are incorporated herein by reference as if set forth below.

13. Pursuant to the Clean Air Act (CAA), the Administrator of the Environmental Protection Agency (EPA) has established national ambient air quality standards (NAAQS) for carbon monoxide, particulates and ozone as pollution limits in order to protect public health and welfare.

14. Under the CAA, states are required to submit a "state implementation plan" ("SIP") to provide for attainment of the NAAQS. 42 U.S.C. 7410.

15. The EPA reviews the proposed SIPs, and the approved SIPs become federally enforceable. The Kentucky SIP is codified at 40 C.F.R. 52.920 through 52.939.

16. Louisville and Jefferson County were designated as "nonattainment" areas under the CAA 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.

17. As part of the federal condition for receiving an extension of time from December 31, 1982 to December 31, 1987 for demonstrating attainment of those standards, Jefferson County agreed to implement the required vehicle inspection and maintenance (I/M) program, which became known as the "vehicle emissions testing" or "VET" program. That program submittal was approved on October 9, 1984 (49 Fed. Reg. 39547) as part of the SIP plan for the Commonwealth of Kentucky.

18. Louisville was able in 1990 to demonstrate to the EPA that it had attained the carbon monoxide standard and received approval by EPA for the redesignation of the area as attainment for carbon monoxide (CO). As part of the requirement for redesignation as an attainment area for carbon monoxide, the County and State submitted a maintenance plan for CO, which was approved on April 16, 1990 (55 Fed. Reg. 14902).

19. The 1990 Clean Air Act Amendments reaffirmed the requirement that Jefferson County implement a vehicle I/M program since the area was designed as a "moderate" nonattainment area for the 1-hour ozone standard.

20. On October 23, 2001, EPA redesignated the Louisville Jefferson County area as being in attainment for the 1-hour ozone standard, and EPA approved the 1-hour ozone maintenance plan for this area. (66. Fed. Reg. 53665). That approval resulted in incorporation into the SIP Plan for Kentucky and for Jefferson County, a "maintenance plan" that include a list of regulatory programs. Specifically, the Commonwealth of Kentucky's NREPC and the LMAPCD committed to maintain the vehicle emissions testing program:

7.5 Plan to Maintain Air Quality

The DAQ [Kentucky Division of Air Quality], APCD, and EPA have instituted

programs that will remain enforceable and are hereby submitted as a plan to

maintain air quality which meets the 1-hour ozone standard for the Kentucky

portion of the Louisville 1-hour ozone attainment area. Sources are prohibited

from reducing emissions controls following the redesignation of the area unless

such a relaxation is first approved by the EPA as a revision to the Kentucky

SIP.

The following regulatory programs will remain in place in the Louisville 1-hour

ozone attainment area:

* * *

Improved Basic Vehicle Emissions Testing Program (Jefferson County)

66 Fed. Reg. 53665 (October 23, 2001). (Emphasis added).

21. Upon EPA's approval effective November 23, 2001, that unambiguous commitment to maintain the VET program became a component of the approved maintenance plan for both the CO and the 1-hour ozone standard in the Louisville Jefferson County area.

22. 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). Those measures were codified at KRS 77.320, which provides in relevant part that:

(1) If on the date of the approval of a consolidated local government, the

county containing the adopted consolidated local government is in attainment

of the air quality standards established by the Federal Environmental Protection

Agency for ozone, carbon monoxide, and nitrogen dioxide, the air pollution

control district board in that county shall take the necessary actions to

eliminate any vehicle emissions testing program operating in the county by

November 1, 2003. The air pollution control district board shall not enter into

or renew any contracts with any vendors for the operation of a vehicle

emissions testing program which would extend beyond this date.

23. The state law amendments can be interpreted in a manner that would not compel elimination of the I/M program, if the "date of approval" of the consolidated "metro" form of government is interpreted to mean the date that the voters ratified the new form of government, since at the time of that election (November 2000) Louisville and Jefferson county remained in nonattainment for the 1-hour ozone standard. However, the LMAPCD chose to interpret the state law as mandating elimination the program as of November 1, 2003. On or about that date, the program was terminated.

24. 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 by LMAPCD 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. A copy of the August 27, 2003 letter is attached.

25. The state Division of Air Quality transmitted that request to EPA on September 23, 2003, and by letter dated October 27, 2003, EPA Regional Administrator Jimmy Palmer, Jr. notified NREPC Secretary List that "our only option at this time is to disapprove this SIP revision." A copy of that October 27, 2003 Letter is attached.

26. The October 27, 2003 letter indicated an intent to disapprove the SIP submittal for two reasons: first, because although a State may submit a SIP revision at the time of its redesignation request to remove to reduce the stringency of control measures, which can be approved by EPA "if it provides for compensating equivalent reductions[,]" the Regional Administrator found that:

the Commonwealth's SIP submittal does not provide for "compensating equivalent reductions" that would offset the emissions increases that would result from eliminating the Vehicle Emissions Testing program. Thus, the submittal

clearly cannot be approved on this basis.

27. The October 27, 2003 letter indicated that it appeared the Commonwealth was "relying on another provision in our guidance which states that "[a]lternatively, a State might be able to demonstrate (through EPA approved modeling) that the measures are not necessary for maintenance of the standard." EPA noted that pursuant to Section 110(L) of the Clean Air Act, a proposed SIP revision cannot be approved "if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 171), or any other applicable requirement of this Act."

28. That same letter noted that the new, more rigorous 8-hour ozone air quality standard and fine particulate air quality standard are among the "applicable standards" that must be considered in reviewing any SIP revision, and that absent information demonstrating that removal of the VET program would not interfere with attainment of the 8-hour ozone and fine particulate standards in the Louisville Metropolitan area (Bullitt, Oldham, and Jefferson Counties) the SIP revision could not be approved.

29. The October 27, 2003 letter concluded that "[i]t is our intent in the next few weeks to propose an action in the Federal Register disapproving the September 23, 2003 SIP submittal revision."

30. By letter dated October 28, 2003, NREPC's Commissioner of Environmental Protection Robert Logan transmitted the October 27, 2003 EPA letter to Mayor Abramson and LMAPCD Director Williams, with this message:

Please find enclosed an October 27, 2003 letter from J.I. Palmer, Jr.,

administrator of the U.S. Environmental Protection Agency (EPA),

Region IV, denying Kentucky's State Implementation Plan (SIP)

submittal proposing changes to the Louisville 1-Hour Ozone Maintenance

Plan. This means that the SIP, as codified at 40 CFR 52.920

to 52.939, continued to have full force and effect pursuant to the

federal Clean Air Act, 42 U.S.C. 7401 et seq. Louisville/Jefferson County

Metro, through the Louisville/Jefferson County Air Pollution Control

District, must as a matter of federal law continue implementing its 1-Hour

Maintenance Plan, which includes operation of the vehicle

emissions testing program.

The Natural Resources and Environmental Protection

Cabinet is evaluating EPA's denial. We will share with you

our assessment at the earliest opportunity. However, we

wanted to make you aware of the denial, and of the continuing

obligation imposed by federal law.

(Emphasis added). A copy of the October 28, 2003 letter is attached.

31. Despite having been informed on October 28, 2003 by the Commonwealth of Kentucky that the VET program must as a matter of federal law be continued, and with knowledge of its mandatory obligation under federal law to maintain the approved SIP program until EPA approved a revision to that SIP, the Mayor of Louisville/Jefferson County Metro issued a press release on October 29 indicating that "the Vehicle Emissions Testing (VET) Program will close Friday, Oct. 31, as mandated by the state legislature last year."

32. On November 1, 2003, the Vehicle Emissions Testing program was unlawfully ended by LMAPCD.

33. The Kentucky Resources Council, Inc. filed the requisite 60-notice of intent to sue on September 10, 2003, after LMAPCD approved on August 27, 2003 regulatory revisions repealing the VET program effective November 1, 2003, and it became clear that the LMAPCD, notwithstanding the ongoing mandatory federal obligation to maintain the VET program under the approved SIP, would end the program under a perceived state law mandate.

34. Plaintiffs KRC and Ms. Cunningham sought declaratory and injunctive relief under the Kentucky Declaratory Judgment Act, in the case of Kentucky Resources Council, Inc., v. Paul Patton et al., Civil No. 03-CI-09572, (Jefferson Circuit Court, Div. 10, October 31, 2003). On November 4, 2003, the state circuit court dismissed the civil action and denied injunctive relief "as this Court lacks jurisdiction to address the issues raised for the failure to the Plaintiff to give proper notice under Tile 42 U.S.C.A [Section] 7604."2 A copy of the Final Order dismissing that action is attached.

35. After expiration of the requisite notice period for commencement of a federal citizen suit under 42 U.S.C. 7604(a)(1), this civil action follows.

COUNT I

THE STATE AND LOCAL AGENCY OFFICIALS HAVE VIOLATED

AN EMISSIONS STANDARD OR LIMITATION UNDER THE CLEAN

AIR ACT BY TERMINATING AND FAILING TO MAINTAIN AND

ADMINISTER THE VEHICLE EMISSIONS TESTING PROGRAM UNTIL ELIMINATIONOF THAT PROGRAM AS A COMPONENT OF

THE STATE IMPLEMENTATION PLAN IS APPROVED BY EPA

36. Paragraphs 1-35 are incorporated herein by reference as if fully

set forth below.

37. Pursuant to 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. 42 U.S.C. 7410(a)(2)(E) requires that the state provides "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 relies on a local or regional government, agency or instrumentality for the implementation of any [plan revision, the State has responsibility for ensuring adequate implementation of such plan provision[.]"

38. 42 U.S.C. 7416 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."

39. Once a State Implementation Plan (SIP) has been approved by EPA, a state is obligated to comply with it unless and until a replacement SIP has been formally approved.

40. The Kentucky SIP, which includes within the Louisville/Jefferson County Metro region, a VET program as a component of the SIP maintenance plan for carbon monoxide and the 1-hour ozone standard, has not received approval by EPA to remove the VET program.

41. Unilateral termination of that program by the Louisville/Jefferson County Metro Mayor and LMAPCD, violates the obligations of the county and the Commonwealth under federal law to maintain in effect that program until a revised SIP is approved. Merely submitting a proposed revision does not allow a state or local agency to change the SIP and terminate federal commitments, since federal law is clear that "revisions of a plan, or any portion thereof, will not be considered part of an applicable plan until such revisions have been approved by the Administrator in accordance with this part.

42. Termination of the VET program constitutes adoption and enforcement of an emissions standard or limitation less stringent that the existing SIP plan and is in clear violation of the state and county obligations under 42 U.S.C. 7416 and is actionable under 42 U.S.C. 7604(a)(1).

43. The EPA Administrator, acting through EPA Regional Administrator Palmer, notified LMAPCD and the NREPC that the proposed revision eliminating the VET program would not be approved. Until such a revision is approved, the program could not be lawfully terminated consistent with the approved and federally-enforceable SIP plan.

44. According to estimates from the LMAPCD, based on modeling using an EPA-approved model "Mobile 6", elimination of the VET program will result in an increase in the two precursor pollutants responsible for ozone, of approximately 1.89 tons per summer day of volatile organic compounds (an 8.6% increase) and 1.68 tons per summer day of nitrogen oxides (a 3% increase).

45. The state agency defendant officials and the local government defendants acted in a manner that is inconsistent with the CAA and which constitutes a violation of "an emission standard or other limitation" under that Act. The violation is ongoing, since until the program is reinstated the violation continues and the harm sought to be avoided is daily recurring.

46. Termination of the VET program constitutes adoption and enforcement of a limitation less stringent that the existing SIP plan and is in violation of the state and county obligations under 42 U.S.C. 7416.

COUNT II

KRS 77.320, TO THE EXTENT THAT IT MANDATED

TERMINATION OF THE I/M PROGRAM FOR JEFFERSON

COUNTY, IS SUPERCEDED AND VOID AB INITIO

AS BEING IN CONFLICT WITH THE PURPOSES, GOALS

AND REQUIREMENTS OF FEDERAL LAW

47. Paragraphs 1-46 are incorporated herein by reference as if fully set forth below.

48. Termination of the VET program constitutes adoption and enforcement of a limitation less stringent that the existing SIP plan and is in violation of the state and county obligations under 42 U.S.C. 7416, which unequivocally states 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.

49. 2002 Ky. Acts Chapters 229 and 346, codified at KRS 77.320, purport to require termination of the VET program effective November 1, 2003.

50. LMAPCD ceased, as of November 1, 2003, implementation of a vehicle inspection and maintenance program within that District, representing to the Jefferson Circuit Court that it interpreted the state law as a mandate to end that program as of that date.

51. To the extent that the state law does require such unilateral cessation of a component of the State Implementation Plan prior to receipt of EPA approval, that state law is in direct conflict with federal law and is preempted under the Supremacy Clause of the U.S. Constitution.

52. KRS 77.320 is preempted under the Supremacy Clause of the United States Constitution and is without legal effect because the state law conflicts with federal law and constitutes an obstacle to the accomplishment and execution of the full objectives of Congress.

53. Additionally, the August 20, 2003 repeal of the regulations of the LMAPCD (Regulations 8.01, 8.02 and 8.03) which ended the VET program on November 1, 2003 violates the federal obligations of that agency under 42 U.S.C. 7410 and 7416 to maintain and administer the approved SIP and are preempted as a matter of federal law.

COUNT III

PLAINTIFFS HAVE DEMONSTRATED ENTITLEMENT TO

PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF IN ORDER

TO PREVENT THE STATE AND LOCAL AGENCIES FROM

CONTINUED VIOLATION OF FEDERAL OBLIGATIONS TO MAINTAIN AND

ENFORCE THE VET PROGRAM

54. Paragraphs 1-53 are incorporated herein by reference as if fully set out below.

55. On October 29, 2003, despite notification by EPA that the proposed termination of the VET program would not be approved and notification by the state NREPC that Louisville/Jefferson County Metro was obligated under federal law to continue the VET program, Louisville/Jefferson County Metro Mayor Abramson announced that the VET program would be terminated. The program was terminated effective November 1, 2003.

56. Termination of that program constitutes a clear and knowing violation of a federal obligation to maintain the program, and was done with notice by the federal agency that the attempted SIP revision would not be approved and by the state agency that a continuing federal obligation existed to maintain the program in effect.

57. Pursuant to 42 U.S.C. 7509, the failure of the state and county to implement this requirement of the approved SIP is subject to federal sanctions that are to be imposed by the EPA Administrator until the State has come into compliance. 42 U.S.C. 7509(a).

58. An 18-month period is granted under 42 U.S.C. 7509(a) for correction of the deficiency prior to mandatory imposition of sanctions.

59. Nothing in the Clean Air Act precludes or limits the availability of injunctive relief by a person under 42 U.S.C. 7604 to seek prospective injunctive relief against a state agency official or local agency official to maintain and enforce the approved SIP. The only exhaustion of remedies required under the CAA is the 60-day notice period, and the possibility of imposition of administrative sanctions under 42 U.S.C. 7509(a) does not bar or limit this civil action, inasmuch as it is only where a "civil action in a court of the United States" has been commenced by the state or EPA Administrator that a citizen suit may not be commenced. 42 U.S.C. 7604(b)(1)(B).

60. Absent entry of a preliminary injunction enjoining the unlawful termination of the VET program, and mandating reinstatement of the program pending the final disposition of this action, additional ozone pollution will be emitted into the area in the Louisville/Metro Government region and will adversely affect the health interests of the Plaintiffs and other residents of that air quality region. Additionally, according to press accounts, some 100 employees have lost their jobs due to the unlawful actions of the local agency defendants and their application of the void KRS 77.320.

61. Plaintiffs have demonstrated a substantial likelihood of prevailing on the merits of the claim that federal law requires continuation of a VET program that has been included into a federally-approved SIP plan until the elimination of that program is approved by EPA, and that to the extent that state law and local regulation repeals purport to sanction or require termination of that program prior to EPA approval, they are void and of no effect.

62. The equities favor issuance of interim injunctive relief due to the clear violation of federal law and the harm that will be inflicted to the public health by the continued elimination of the program.

CONCLUSION AND PRAYER FOR RELIEF

WHEREFORE, for the reasons above stated, Plaintiffs respectfully request that this Court:

1. Accept jurisdiction over this action,

2. Determine that the named state agency defendants and the local government defendants are obligated to maintain and enforce the approved SIP, including the Louisville/Jefferson County Metro VET program, until termination of that program is approved by EPA;

3. Determine that to the extent that KRS 77.320 requires termination of the Louisville/Jefferson County Metro VET program, that the law is preempted under the Supremacy Clause of the United States Constitution and is void and without legal effect;

4. Determine and declare that the August 20, 2003 repeal of the regulations of the LMAPCD (Regulations 8.01, 8.02 and 8.03) violated the federal obligations of that agency to maintain and administer the approved SIP and that the attempted repeal is preempted as a matter of federal law;

5. Enter an order directing the local agency officials and state agency officials to take such actions as are necessary to assure that the VET program be promptly reinstated and be continued in force and effect, and restraining and enjoining the Secretary of the Natural Resources and Environmental Protection Cabinet and his agents and employees, and the Louisville/Jefferson County Metro Air Pollution Control District Director and Board Chair and their agents and employees, from taking any actions to terminate that program unless and until such termination is approved by EPA; and

6. For any and all other relief, including all costs and expenses (including attorney and expert witness fees) incurred herein, to which plaintiffs may appear entitled.

Respectfully submitted,

__________________________

Thomas J. FitzGerald

Kentucky Resources Council, Inc.

P.O. Box 1070

Frankfort, Kentucky 40602

(502) 875-2428

(502) 875-2845 fax

Counsel for Plaintiffs

Certificate of Service

I hereby certify that, in addition to service by summons as provided in the Federal Rules of Civil Procedure, a courtesy copy of this complaint and accompanying Motion and Memorandum In Support of Motion For Preliminary Injunction was served on the following:

Kevin McLean, Esq.

Assistant Counsel, Office of Air and Radiation

US EPA

Washington D.C. 20460

John Horne, Esq.

Mike Haines, Esq.

Office of Legal Services, NREPC

Fifth Floor, Capital Plaza Tower

Frankfort KY 40601

Hon. Ben Chandler, Attorney General

(for whom this constitutes notice pursuant to KRS 418.075)

Commonwealth of Kentucky

State Capitol

Frankfort, KY 40601

Hon. Scott Lilly

Suite 1001

531 Court Place

Louisville, Kentucky 40202

Hon. William O'Brien

Room 2086

600 W. Jefferson Street

Louisville, Kentucky 40202

Hon. Lauren Anderson

Louisville-Metro Air Pollution Control District

850 Barrett Avenue

Louisville, KY 40204

Hon. Jon Ackerson

Hon. Brent Ackerson

11420 Bluegrass Parkway

Louisville KY 40299

this 17th day of November, 2003.

_____________________

Tom FitzGerald

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

LOUISVILLE DIVISION

CASE NUMBER ________________

KENTUCKY RESOURCES COUNCIL, INC.,

and

SARAH LYNN CUNNINGHAM, PLAINTIFFS

V. MOTION AND MEMORANDUM IN

SUPPORT OF MOTION FOR PRELIMINARY

INJUNCTION PURSUANT TO FRCP 65

MIKE LEAVITT, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

and

HENRY CLAY LIST, SECRETARY, NATURAL RESOURCES AND

ENVIRONMENTAL PROTECTION CABINET

and

ARTHUR WILLIAMS, DIRECTOR,

LOUISVILLE METRO AIR POLLUTION CONTROL DISTRICT

and

DR. KAREN CASSIDY, CHAIRPERSON,

LOUISVILLE METRO AIR POLLUTION CONTROL BOARD

DEFENDANTS

MOTION FOR PRELIMINARY INJUNCTION

Come the Plaintiffs, Kentucky Resources Council, Inc. and Sarah Lynn Cunningham, by and through counsel, and move this Court pursuant to Federal Rule of Civil Procedure 65 for a preliminary injunction enjoining the Defendants from further violations of federal regulatory obligations under the approved Clean Air Act "State Implementation Plan" and mandating that the local agency defendant officials reinstate the Jefferson County vehicle emissions testing (VET) program that was unlawfully terminated on November 1, 2003, pending the final resolution of this case.

Respectfully submitted,

______________________

Thomas J. FitzGerald

Kentucky Resources Council, Inc.

P.O. Box 1070

Frankfort, KY 40602

(502) 875-2428

Counsel for Plaintiffs

MEMORANDUM IN SUPPORT OF MOTION

FOR PRELIMINARY INJUNCTION

Come the Plaintiffs, by counsel, and herewith tender this Memorandum In Support of Motion for Preliminary Injunction.

INTRODUCTION

This action arises under the "Citizen Suit" provision of the Clean Air Act, 42 U.S.C. 7604, seeking a determination by this Court that the Louisville Metro Air Pollution Control District (LMAPCD) and it's Board have violated "an emission standard or limitation" under the Clean Air Act (CAA) by unilaterally eliminating the vehicle emissions testing (VET) program component of that SIP on November 1, 2003 without first obtaining approval from the United States Environmental Protection Agency (EPA). The action, taken after receipt by the LMAPCD of notice from the EPA that the proposed SIP revision to eliminate the program would not be approved, and after receipt by the LMAPCD of notice from the state Natural Resources and Environmental Protection Cabinet (NREPC) reminding the LMAPCD of its continuing federal obligation to maintain the VET program, constitutes a violation of a binding and enforceable commitment under federal law to maintain and administer the approved "State Implementation Plan" (SIP) for reducing carbon monoxide and ozone pollutant emissions, and is actionable under 42 U.S.C. 76094(a)(1) against the state and local agency officials.

In the Complaint filed in this action, Plaintiffs seek a determination that defendants List, Williams and Cassidy have violated obligations under the federal CAA with respect to maintenance of the approved Kentucky SIP by eliminating the VET program prior to receipt of approval for the elimination of the program from EPA, and that KRS 77.320, to the extent that it mandated that premature termination, is void ab initio as being violative of the Supremacy Clause of the U.S. Constitution and interfering with the fulfillment of federally enforceable obligations of the state and local agency officials.

Plaintiffs have filed concurrently with the Complaint this Motion and Memorandum in Support of A Preliminary Injunction mandating compliance by the local agency officials with the approved SIP through reinstatement of the vehicle testing program, during the pendency of this action.

Under the federal Clean Air Act, 42 U.S.C. 7401 et seq., when a state has included an emissions control strategy in a "State Implementation Plan" (SIP), that state is obligated as a matter of federal law to continue in effect the approved strategy until the state submits and receives approval from the EPA for removal of that control strategy. A state may delegate the implementation of the state obligations under a SIP to a local unit of government, as has been the case with the defendant Natural Resources and Environmental Protection Cabinet and the defendant Louisville Metro Air Pollution Control District, yet the state remains responsible and accountable along with that delegated local agency, for assuring that the SIP is maintained and enforced as approved by EPA.

In direct and knowing violation of its federal obligation, the LMAPCD Board, construing KRS 77.320 as requiring that it terminate the vehicle emissions testing program, repealed state regulations authorizing the program effective November 1, 2003 and ended the vehicle testing program on that date.

After providing the required 60-day notice for maintenance of a federal citizen suit, Plaintiffs file this action seeking preliminary injunctive relief to minimize further pollution harm from this clear violation by state and local government agencies of their mandatory obligations under federal law, and permanent injunctive relief to compel the maintenance of a vehicle emissions testing program until such time as the program elimination is approved as being consistent with the clean Air Act by the U.S. Environmental Protection Agency.

Absent injunctive relief, the program will remain unlawfully terminated and air quality in Louisville/Jefferson County will incrementally worsen. Immediate judicial intervention is necessary to preserve the ability of this Court to grant meaningful relief to the plaintiffs in the face of this clear violation of Congressional policy and federal statute, and to maintain the last lawful status quo pending a determination by this Court as to whether federal law requires reestablishment of the vehicle testing program and whether the state law and District regulations are preempted and are void.

STANDARDS FOR ISSUANCE OF PRELIMINARY

INJUNCTIVE RELIEF

The decision of whether to enter a preliminary injunction is within the sound discretion of the District Court, and is based on consideration of four factors:

(1) whether the moving party has strong likelihood of success on the merits;

(2) whether the moving party will suffer irreparable injury without the

injunction; (3) whether the issuance of the injunction will cause substantial

harm to others; and (4) whether the public interest would be served by issuance

of the injunction Nightclubs, Inc. v. City of Paducah, 202 F.3d 884,888 (6th Cir.

2002). The four considerations applicable to preliminary injunction decisions

are factors to be balanced, not prerequisites that must be met. In re DeLorean

Motor Company v. DeLorean, 755 F.2d 1223, 1228 (6th Cir. 1985). Moreover,

a district court is not required to make specific findings concerning each of

the four factors used in determining a motion for preliminary injunction if

fewer factors are dispositive of the issue. Id., Mascio v. Public Employees

Retirement System of Ohio, 160 F.3d 310, 312 (6th Cir. 1998)(affirming the

district court's grant of a preliminary injunction based on the district court's

conclusion that the plaintiff had demonstrated a substantial likelihood of

success on the merits).

Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir. 2003)

In this case, the likelihood of success on the merits is overwhelming, since the statutory and case law is uniformly in accord that a state and local agency cannot eliminate component regulatory programs that are part of an approved "State Implementation Plan" and that, to the extent that a state statute seeks to thwart the goal and policy of the Clean Air Act by interfering with the implementation of those federal obligations, that statute runs afoul of the Supremacy Clause and is void ab initio. On the strength of the analysis and conclusion of the 2001 decision of the United States District Court for the District of Arizona in the case of Sweat v. Hull, 200 F.Supp.2d 1162 (D. Ariz. 2001), preliminary injunctive relief is appropriate without regard to the other factors.

In light of the other factors, the case for immediate injunctive relief in order to prevent further violation of the approved SIP plan by allowing the wrongfully terminated program to remain closed, is all the more compelling.

THE TERMINATION OF THE VET PROGRAM WAS A CLEAR

VIOLATION OF FEDERAL LAW OBLIGATIONS OF THE MLAPCD

AND NREPC OFFICIALS

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 (1st 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." Id., 496 U.S. at 540. Failure by state or local agency officials to maintain and administer the approved SIP is actionable under a 42 U.S.C. 7604(a) citizen suit. Clean Air Council v. Mallory, 226 F.Supp.2d 705 (E.D. Pa. 2002).

The Louisville Metro Air Pollution Control Distinct and state Natural Resources and Environmental Protection Cabinet are responsible for implementing and maintaining the Kentucky 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, the Louisville Metro Air Pollution Control District "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." Id.

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 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.)

The Sweat v. Hull decision is directly on point. As was the case with the Arizona state law that unilaterally removed the authority of the Arizona state agency to implement a vehicle remote-sensing program, the provisions of KRS 77.320 purporting to eliminate the vehicle emissions testing program in Jefferson County prior to submittal to, review by, and approval of that program elimination by EPA 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 (9th Cir. 2001); and Coalition for Clean Air, 1999 U.S. Dist. LEXIS 16106 at p. 14.

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 and Metro Louisville APCD have an obligation to demonstrate to EPA and receive approval based on providing EPA with assurances that other enforceable measures will be in place to assure no interference with attainment and maintenance of attainment status for ozone and other regulated air pollutants.

The Sweat decision reinforces what is clear from the statute and Supreme Court decisions the approved SIP, which committed the state and local agencies to continued implementation of a VET program, must be followed until properly amended. The termination of the VET program is a clear violation of federal law, which obligates the state (and any local government to whom the state has delegated program implementation authority) to maintain and administer the approved State Implementation Plan, 42 U.S.C. 7410(a), and prohibits implementation of proposed revisions to State Implementation Plans until a revision to the plan is approved by the EPA Administrator. 40 C.F.R. 51.105. A state law or local agency regulation that is inconsistent with the obligation of federal law to continue in effect the approved SIP, is preempted under the Supremacy Clause of the U.S. Constitution. Sweat v. Hull, 200 F. Supp. 2d 1162 (D. Ariz. 2001) (preempting state law that directed elimination of a state enhanced vehicle testing program that was part of that state's SIP). (A copy of that decision is attached). A preliminary injunction, and indeed, a permanent injunction is justified, and should be entered forthwith.

ISSUANCE OF PRELIMINARY INJUNCTIVE RELIEF

IS JUSTIFIED BY THE OTHER CRITERIA

Issuance of a preliminary injunction mandating reinstatement of the unlawfully-terminated program is justified by each and all of the other criteria.

Without the entry of injunctive relief, the movants will suffer irreparably injury in fact and at law.

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.

The harm to public health was further described by the Air Pollution Control District in a letter to Governor Patton in March, 2002 seeking a veto of the bill (House Bill 618) that became KRS 77.320. A copy of that letter is annexed hereto.

The attached affidavit of Plaintiff Sarah Lynn Cunningham further describes the immediate harm associated with elevated levels of pollutants caused by the unlawful termination of the vehicle testing program.

With respect to the third prong of the standard, that is, whether the moving party will suffer irreparable injury without the injunction, the 6th Circuit jurisprudence is clear that a demonstration that a statute is being violated is sufficient irreparable harm to support an injunction without any further showing of actual harm. Environmental Defense Fund v. Tennessee Valley Authority, 468 F.2d 1164, 1183 (6th Cir. 1972). As the Court noted, a "preliminary injunction . . . is the vehicle by which a declared Congressional policy can be effectuated." Id. at 1184. A demonstration such as that contained in the Complaint and in this memorandum that a federal statute intended to prevent environmental pollution is being violated is sufficient irreparable harm to support an injunction, without more. The

harm-in-fact described in the accompanying documentation provides an additional and sufficient basis to support injunctive relief.

Finally, as to whether the public interest would be served by issuance of the injunction, Congress defined the public policy, which is continued state and local agency adherence to approved State Implementation Plans until EPA approval of changes to such plans. The public interest as defined by Congress and EPA regulations implementing the Clean Air Act, militates towards issuance of injunctive relief.

Anticipating the arguments of the defendants that reinstatement of the program that they unlawfully terminated will impose costs, the 6th Circuit is clear that "where the national policy objectives of a statute have been frustrated . . . the standards of the public interest, not the requirements of private litigation, measure the propriety and need for injunctive relief." Hill v. Tennessee Valley Authority, 549 F.2d 1064, 1075 (6th Cir. 1977) (citing Hecht v. Bowles, 321 U.S. 321 (1944) in rejecting TVA's economic arguments in opposition to injunction on Tellico Dam Project).

NO INJUNCTION BOND SHOULD BE REQUIRED

With respect to posting security for the issuance of the preliminary injunction, Plaintiffs request that the District Court exercise its discretion to waive an injunction bond.

The case law in the Sixth Circuit is clear that in a case of this nature, where the plaintiffs seek to vindicate the interest of the public in full implementation of the Congressional policies and goals enunciated in the Clean Air Act, no injunction bond should be required.

Although the language of FRCP 65(c) appears mandatory in nature, the Sixth Circuit Court of Appeals recognizes in the district court a broad discretion over whether to require the posting of security. In allowing the district judge to determine the amount of security it deems "proper," the 6th Circuit has held that the language of Rule 65(c) indicates that the matter of requiring security in a particular case rests in the discretion of the district court. Moltan Co. v. Eagle-Picher Industries, 55 F.3d 1171 (6th cir. 1995); Urbain v. Knapp Bros. Mfg. Co., 217 F.2d 810 (6th Cir. 1954), cert. den. 349 US 930 (1955). As the Moltan court noted:

While we recognize that the language of Rule 65(c) appears to be

mandatory, and that many circuits have so interpreted it, the rule in

our circuit has long been that the district court possesses discretion

over whether to require the posting of security. Roth v. Bank of the

Commonwealth, 583 F.2d 527, 539 (6th Cir. 1978, cert. denied,

440 U.S. 944 (1979); Urbain v. Knapp Bros. Mfg. Co., 217 F.2d 810 (6th Cir. 1954), cert. den. 349 US 930 (1955).

Moltan, supra, at 1176.

The claims of the Plaintiffs fall squarely within a line of cases that have required no injunction bond or a nominal bond where the plaintiffs sought to vindicate important federal rights or public interests. Atlanta v. Metropolitan Atlanta Rapid Transit Authority, 636 F.2d 1084 (5th Cir. 1981), Natural Resources Defense Council v. Morton, 337 F.Supp,.167, 168-9 (D.C.D.C. 1971), Bartels v. Biernat, 405 F.Supp. 1012, 1019 (E.D. Wis. 1975), Anderson Foreign Motors Inc. v. New England Toyota Distributor, Inc., 492 F.Supp. 1383 (D. Mass. 1980), Where, as here, the enforcement of a federal pollution control statute that contemplates a private enforcement of the law and creates a statutory right of action, a waiver of the bond requirement is appropriate. Waiver is appropriate since the injunction is sought by a non-profit environmental group and an individual who would be unable to post a substantial bond, requiring a substantial bond would effectively deny access to judicial review. Natural Resources Defense Council v. Morton, supra, at 168-9.

Additionally, inasmuch as the injunction is sought to restore the status quo ante and is issued in aid of the court's jurisdiction and to protect the ability of the court to grant meaningful relief, no security should be required. See: Bivins v. Board of Public Education and Orphanage, 284 F.Supp. 888 (M.D. GA 1967); Powelton Civic Home Owners Association v. Department of Housing and Urban Development, 284 F.Supp. 809 (E.D. PA. 1968).

Finally, the clear violation of federal law committed in unilaterally terminating the vehicle emissions testing program, make the possibility of error in issuance of preliminary and permanent injunctive relief non-existent, so that the risk of monetary loss is negligible.

CONCLUSION

Wherefore, for each of these reasons, and in order to protect the ability of this Court to grant meaningful relief and to maintain the last lawful status quo ante pending a hearing on the merits of this action, Plaintiff respectfully requests that this court enter a temporary injunction:

(1) directing the local agency official defendants and state agency official defendants to take such actions as are necessary to assure that the VET program be promptly reinstated and be continued in force and effect, and restraining and enjoining the Secretary of the Natural Resources and Environmental Protection Cabinet and his agents and employees, and the Louisville/Jefferson County Metro Air Pollution Control District Director and Board Chair and their agents and employees, from taking any actions to terminate that program unless and until such termination is approved by EPA; and

(2) restraining and enjoining the Natural Resources and Environmental Protection Cabinet, and the Louisville Metro Air Pollution Control District Director and the Louisville Metro Air Pollution Control District Board from taking any actions to terminate that program, including but not limited to, repealing the authorizing District regulations and terminating contracts; unless and until such termination is approved by EPA; and

(3) For any and all other relief, including all costs and expenses (including attorney and expert witness fees) incurred herein, to which plaintiffs may appear entitled.

Respectfully submitted,

__________________________

Thomas J. FitzGerald

Kentucky Resources Council, Inc.

P.O. Box 1070

Frankfort, Kentucky 40602

(502) 875-2428

(502) 875-2845 fax

Counsel for Plaintiffs

Certificate of Service

I hereby certify that, in addition to service by summons as provided in the Federal Rules of Civil Procedure, a courtesy copy of this Motion and Memorandum In Support of Motion For Preliminary Injunction was served on the following:

Kevin McLean, Esq.

Assistant Counsel, Office of Air and Radiation

US EPA

Washington D.C. 20460

John Horne, Esq.

Mike Haines, Esq.

Office of Legal Services, NREPC

Fifth Floor, Capital Plaza Tower

Frankfort KY 40601

Hon. Ben Chandler, Attorney General

(for whom this constitutes notice pursuant to KRS 418.075)

Commonwealth of Kentucky

State Capitol

Frankfort, KY 40601

Hon. Scott Lilly

Suite 1001

531 Court Place

Louisville, Kentucky 40202

Hon. William O'Brien

Room 2086

600 W. Jefferson Street

Louisville, Kentucky 40202

Hon. Lauren Anderson

Louisville-Metro Air Pollution Control District

850 Barrett Avenue

Louisville, KY 40204

Hon. Jon Ackerson

Hon. Brent Ackerson

11420 Bluegrass Parkway

Louisville KY 40299

this 17th day of November, 2003.

_____________________

Tom FitzGerald

1 This action is properly maintained under the Ex Parte Young doctrine, 209 U.S. 123 (1908) since the U.S. Supreme Court and the Sixth Circuit have acknowledged that the Eleventh Amendment does not bar maintenance of a suit against state and local agency officials for prospective injunctive relief where there are alleged violations of federal law and Congress has provided a right of action to citizens for enforcement of those duties. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 n.17 (1996).

2 The court did so notwithstanding the language of 42 U.S.C. 7604(e) creating a savings clause for "any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any emission standard or limitation or to seek any other relief (including relief against the Administrator or a State agency)" and notwithstanding the clear limitation of the 60-day notice requirement of 42 U.S.C. 7604(b) to actions "under subsection (a)(1) of this section", and the lack of any counterpart requirement for advance notice prior to commencement of suit under the state Declaratory Judgment Act.



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