June 4, 2004
John Lyons, Director
Division for Air Quality
803 Schenkel Lane By Email and mail
Frankfort, Kentucky 40601
Re: Proposed SIP Revision; Northern Kentucky
I am writing to you in response to the June 2, 2004 solicitation of public comment on a proposed revision to the state implementation plan (SIP) to remove the northern Kentucky vehicle inspection and maintenance (I/M) program from the maintenance portion of the 1-hour ozone SIP. According to the News Release, the Division for Air Quality (DAQ) is conducting the meeting to ?discuss alternate sources to replace the vehicle emissions testing program in Boone, Campbell and Kenton Counties.
After reviewing the text of Senate Joint Resolution 3, as enacted, and consistent with the obligations of the Commonwealth of Kentucky under the approved State Implementation Plan, the Kentucky Resources Council (KRC) offers these comments:
1. The news release reflects a construction of SJR 3 by the Cabinet that requires the submission to EPA by August 1, 2004 of an amendment to the State Implementation Plan (SIP) to remove the requirement for vehicle emissions testing in northern Kentucky. KRC believes that the construction of SJR 3 Section 1 presented by the agency is the only lawful of two possible constructions of an inartfully drafted section. Section 1 provides in full that:
The Natural Resources and Environmental Protection Cabinet is directed to
submit to the United States Environmental Agency a revision of the State Implementation Plan for the 1-hour ozone standard that would remove the vehicle emissions testing program provided for in 401 KAR 65:010 in the area served by the Northern Kentucky Emissions Check program not later than August 1, 2004.
The section, reportedly drafted in coordination with the Cabinet, is amenable to two interpretations: the first, requiring that the SIP revision request is to be submitted by August 1; the second, requiring that the program be removed by no later than August 1 whether approved by EPA before that date or not.
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. Additionally, a state law that interferes with the states 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).
The only way to construe the state resolution in a manner that does not render it inconsistent with federal law and void under the supremacy clause, is to read it so that the end of the program is contingent on receipt of federal approval. Since the other interpretation would irreconcilably conflict with the mandatory, non-discretionary obligation of the state to maintain the approved state implementation plan until an amendment of the plan is approved by EPA, and would render the state resolution void and of no consequence under the Supremacy Clause to the U.S. Constitution, the Cabinets construction is the only construction that saves the statute. See: Kentucky Resources Council v. US EPA, 304 F.Supp.2d 920, 930 (WD Ky. 2004).
In the event that the Cabinet reverses it current interpretation and undertakes any action to terminate the Northern Kentucky Emissions Check program prior to or absent lawful approval by U.S. EPA of such a SIP revision, KRC reserves the right to initiate a citizen suit or to seek other appropriate remedies to assure that the SIP obligations are followed.
2. KRC seeks clarification from the agency that the June 8, 2004 public meeting is not intended to satisfy the obligations of the state and EPA to conduct public hearings concerning a SIP amendment to eliminate the I/M program from the maintenance plan. Once a draft plan amendment is prepared, a separate public comment period and opportunity for hearing must be conducted prior to transmittal of the plan amendment in August.
3. In reviewing other emission reduction options, KRC respectfully suggests that these factors be considered:
a. The Division for Air Quality should prepare for consideration by the public of 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. A comparative cost-benefit analysis should be applied to each control measure. As noted in the recent submittal by the Louisville Metro Air Pollution Control District to the U.S. District Court for the Western District of Kentucky, the cost per ton of removal of ozone precursors and carbon monoxide from the vehicle testing program was 300-500$ per ton; whereas the cost of comparable reductions of VOCs by industry and business, according to the Air Pollution Control District, would be well over $10,000 per ton. Only after that assessment will DAQ be in a position to make a responsible decision on the continuation of a vehicle inspection and maintenance program. The public at large deserves to know the costs associated with replacement control measures and on which sectors those costs will fall.
b. A consideration of the comparative emissions of ozone precursors from various sectors, and the direct and indirect impacts of elimination of the program on each sector.
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 likely be required to look to new regulations to reduce emissions from small businesses, or potentially more intrusive measures on mobile sources in order to offset mobile source emissions. The costs and the fairness of requiring other sectors to bear the additional burden of offsetting the costs of the increased lack of maintenance of mobile source vehicles, should be evaluated.
c. Prior to adoption of an amendment, the Northern Kentucky legislative caucus should be briefed on the array of control measures, the costs associated with the replacement reductions, and on which sectors those costs fall.
d. In reviewing other control measures, the state must bear in mind that Section 110(L) demands that the SIP revision not interfere with attainment of the 8-hour standard, and that such equivalent reductions be surplus, quantifiable, enforceable and permanent. Additionally, recent EPA guidance to the Metro Louisville Air Pollution Control District indicates that equivalent reductions would have to represent actual new emissions reductions achieved in a contemporaneous time frame to the time the existing SIP measure is terminated[.] Promises of future emissions reductions, and claiming credit for past reductions (as Louisville is trying with the Kosmos plant reductions) will obviously not suffice since they are neither actual new emissions nor contemporaneous.
In closing, KRC believes that full disclosure of the costs and on whom the costs will fall is essential to selection of replacement emissions. In the event that the agency cannot satisfy the General Assemblys direction with respect to the 1-hour standard without interfering with progress towards attainment of the 8-hour standard, Section 5 of SJR 3 trumps Section 1 and demands that the program be maintained as a component of the 1-hour maintenance plan and a potential 8-hour standard control measure.