PO Box 1070, Frankfort, KY 40602 Phone 502.875.2428, Fax 502.875.2845
Petition Filed Seeking Court of Appeals Review of EPA Decision Approving Closure of Northern Kentucky Vehicle Emissions Testing Program Posted: October 30, 2005
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KENTUCKY RESOURCES COUNCIL, INC.
ENVIRONMENTAL PROTECTION AGENCY,
and STEPHEN JOHNSON, in his capacity as Administrator
of the ENVIRONMENTAL PROTECTION AGENCY,
PETITION FOR REVIEW
1. Pursuant to Rule 15 of the Federal Rules of Appellate Procedure, Section 10 of the Administrative Procedure Act, 5 U.S.C. Section 706; and Section 307(b)(1) of the Clean Air Act ("CAA"), 42 U.S.C. Section 7607(b)(1), the Kentucky Resources Council, Inc. ("KRC") by itself and on behalf of its members, hereby petitions this Court for review of the final agency action taken pursuant to the CAA by respondent United States Environmental Protection Agency ("EPA") approving revisions to the State Implementation Plan (SIP) for the Northern Kentucky area, published at 70 Federal Register 57750 (October 4, 2005) and made effective by that agency on November 3, 2005. A copy of that order is attached to this Petition.
2. This petition for review is timely filed 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.
3. This petition for review is properly filed in this Circuit, in accordance with 42 U.S.C. 7606(b)(1), which directs that review may be had by application to the Circuit Court of Appeals “for the appropriate circuit.”
4. This petition for review is timely filed by the organization on its own behalf and on behalf of their members residing in this Circuit.
5. KRC is a membership organization incorporated under the laws of the Commonwealth of Kentucky and dedicated to prudent use and conservation of the natural resources of the Commonwealth. KRC is headquartered in Frankfort, Kentucky and has approximately 360 individual and organizational members, including numerous individuals who live, work, reside and recreate in the Boone-Kenton-Campbell nonattainment area.
6. KRC members are interested and aggrieved parties whose interests in preserving, protecting and restoring air quality are harmed as a result of the final agency action challenged herein. Petitioners submitted extensive comments and participated vigorously in the proceedings leading to that final agency action. Those comments are contained in the administrative record of the rulemaking.
7. This Petition for Review seeks review of so much of the October 4, 2005 agency action that approved the movement of the vehicle inspection and maintenance program (I/M Program) from the regulatory portion of the Kentucky State Implementation Plan to the contingency measures section, and the approval of a revision to a Kentucky rule providing for control of volatile organic compounds (VOCs) from new solvent metal cleaning equipment and the approval of a new rule affecting commercial motor vehicle and mobile equipment refinishing operations in Northern Kentucky. Petitioner does not seek review of the approval of the updated state motor vehicle emissions budget.
8. Petitioner prays that this Court grant the petition for review and request that the Court hold unlawful, enjoin, set aside, suspend or remand the above-referenced final action, in whole or in part, as arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and as in excess of EPA's statutory authority or limitations, and request all other necessary and appropriate relief to which they may appear entitled.
Dated this 28th day of October, 2005.
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