Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone (502) 875-2845 fax
January 14, 2004
The Kentucky Resources Council opposes SJR 3, and respectfully urges the Committee not to approve the resolution, which would mandate the termination of the northern Kentucky vehicle testing program by November, 2004 and termination of the existing contract with the testing company. KRC’s concerns include these:
a. Termination of the program is premature in light of the new, tougher 8-hour ozone standard and northern Kentucky’s likely redesignation to nonattainment with that new standard.
With the three northern Kentucky counties almost certain to be formally redesignated this year to “nonattainment” for the tougher 8-hour ozone standard, a vehicle testing program may be a necessary or advisable tool for inclusion in the revised State Implementation Plan. The formal designation of the 3 northern Kentucky counties, and the guidance for preparation of the implementation plans, are expected this summer, and by this time next year, the necessity or advisability of maintaining the program will be able to be assessed.
b. Termination without federal approval is unlawful and unwise.
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 that unilaterally ends enforcement of a portion of the SIP plan subjects the state to EPA sanctions, including loss of highway money. A state law that interferes with the state’s obligation to maintain the SIP is void under the U.S. Constitution. Sweat v. Hull, 200 F.Supp. 2d 1162 (D. Ariz. 2001); Clean Air Council v. Mallory, 226 F.Supp.2d 705 (E.D. Pa. 2002). Loss of the program may also interfere with the demonstration of transportation conformity.
If the General Assembly intends to force an end to the vehicle testing program, which KRC believes is unwise, it must make the end of the program contingent on receipt of federal approval, in order to avoid creating a constitutional conflict and inviting litigation.
c. Termination of the program will shift the pollution reduction burden to stationary major and area sources (less than 100-ton emission sources).
Elimination of the vehicle testing program will result in the requirement to identify other sources from which those lost reductions will be obtained. There are generally speaking only three categories from which the ozone reductions can be gained – major stationary sources (smokestack industries), “area” sources, which are generally smaller sources such as bakeries, dry cleaners, automotive paint shops and the like. Given the relative lack of major stationary sources in the area, the state will be required to look to new regulations to reduce emissions from small businesses.
d. Termination of the contract sends the wrong message to other companies doing business with the state, and will complicate reinstatement of the program.
The contract with the private company that invested in the land, structures, equipment and personnel necessary to operate the program, has some four years remaining. I assume that the contract was reviewed by the legislative committee at the time it was proposed and was found to be consistent with applicable law. It sends the wrong message to those who would do business with the state that the state will encourage and invite private investment, only to breach the contract thereafter. Additionally, if and, more likely when, the program is needed in the future to achieve attainment of the ozone standard, the state will find it hard to attract private companies willing to bid on restarting and operating the program.
A proposed alternative:
As an alternative to the proposed resolution, KRC recommends that the resolution be rewritten to direct the Division for Air Quality to develop during the interim, for consideration by the committees of jurisdiction, a report reflecting the current ozone emissions inventory for the Kentucky portion of the northern Kentucky-Cincinnati air quality region, identifying sources of VOC and NOx emissions, and identifying those measures that are available to secure creditable reductions from various sources and the cost-effectiveness of the various emissions control measures. After publication of the anticipated EPA guidance on the 8-hour ozone standard attainment, the General Assembly will be in a better position to make a responsible decision on the continuation of a vehicle inspection and maintenance program.
Thank you for your consideration of these concerns.1
1 Prepared by Tom FitzGerald, KRC Director.