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Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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

EPA ASKED TO STAY EFFECTIVE DATE OF CLOSING VEHICLE TESTING IN NORTHERN KENTUCKY PENDING JUDICIAL REVIEW  Posted: October 30, 2005
Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone
(502) 875-2845 fax
e-mail: fitzKRC@aol.com
www.kyrc.org

October 28, 2005

Mr. Jimmy Palmer
Regional Administrator
Region IV
U.S. Environmental Protection Agency
61 Forsyth Street S.W.
Atlanta, Georgia 30303

Re: Request For Stay Of Effective Date of Decision
Approval of Revisions to State Implementation Plan
Northern Kentucky Area

Dear Mr. Palmer:

I am writing to request a stay of the effective date of the approval by EPA Region 4 of the State Implementation Plan revisions for the Northern Kentucky area, which was published in the Federal Register on October 4, 2005. EPA is authorized to stay the effective date of the rulemaking pending judicial review pursuant to 5 U.S.C. 705, and I ask that you exercise that authority in this case in order to preserve the status of the I/M program and to prevent irreparable injury.

According to the Federal Register notice, November 3, 2005 is the effective date of the rulemaking which approves the movement of the regulation underlying the Northern Kentucky inspection and maintenance (I/M) program from the regulatory portion of the Kentucky SIP to the contingency measures section of the Northern Kentucky 1-Hour Ozone Maintenance Plan, and which also approves revisions to the Kentucky rule on new solvent metal cleaning equipment and a new Kentucky rule affecting commercial motor vehicle and mobile equipment refinishing operations.

My reasons for requesting a stay of the effective date of the rulemaking are these:

1. The Kentucky Resources Council (KRC), on behalf of members residing in the affected region who are adversely affected by the approval, intends to file a Petition for Review in the U.S. Court of Appeals for the Sixth Circuit before November 3, 2005. Rule 18 of the Federal Rules of Appellate Procedure requires parties seeking a judicial stay to ordinarily seek a stay from the administrative agency pending review of its decision or order.

2. Absent issuance of a stay, the ability of KRC to obtain meaningful relief in the event that the Court determines that the approval was not consistent with the Clean Air Act, will be foreclosed since the Commonwealth of Kentucky has already indicated by letter to the contractor that the Commonwealth will exercise its option to terminate the contract as of November 3, 2005. I have attached that letter for your reference. If that occurs, the ability of the Court to fashion meaningful relief will be eliminated since the restarting of an I/M program may take a significant amount of time due to state bidding, contracting and other requirements.

3. A stay is appropriate also because of the significance of the legal questions presented by the approval, and the untested nature of the policies by which the agency determined Section 110 of the Act to be satisfied and by which the agency approved the removal of a control measure from the 1-hour maintenance plan for an area that has been determined to be non-attainment for the 8-hour ozone standard. Given the importance of these issues and the distinct possibility that the Court on review will determine that the plain language of Section 110 compels the continuation of control measures until the “applicable” 8-hour standard is achieved, a stay will allow these matters to be determined and meaningful remedy provided if appropriate.

4. A stay would be consistent with the public interest, since the maintenance of the I/M program results in demonstrated reduction of ozone precursors in the affected area.

For these reasons, and on the basis of the comments submitted by KRC during the formal comment period, KRC respectfully requests that EPA stay the effective date of the October 4, 2005 decision for a period of time sufficient to enable a Petition for Review to be filed and briefed before the U.S. Court of Appeals for the Sixth Circuit. Due to the issuance by the state of a letter terminating the program effective November 3, 2005, I request your review and a decision on this request as soon as possible, since in the absence of an agency stay I will have to seek an emergency stay from the 6th Circuit Court of Appeals in advance of November 3.

Thanks you very much in advance for your consideration of this matter,

Cordially,

Tom FitzGerald
Director


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