Proposed Resolution Re: VET in Louisville

 

http://www.lrc.state.ky.us/record/04rs/SR79/bill.doc

 

A RESOLUTION supporting the Louisville/Jefferson County Metro Government's efforts to finalize a State Implementation Plan revision meeting the requirements of the federal Clean Air Act, the Order of the United States District Court, Western District of Kentucky, and the wishes of the majority of people in Louisville/Jefferson County.

WHEREAS, the General Assembly of the Commonwealth of Kentucky, after Jefferson County had come into attainment status for ozone standards, enacted House Bill 618 in 2002, codified as KRS 77.320, requiring the elimination of the vehicle emissions testing (VET) program in Jefferson County; and

WHEREAS, one year after the effective date of the statute, on July 7, 2003, the Air Pollution Control District of the Louisville/Jefferson County Metro Government (the "District") proposed to the United States Environmental Protection Agency (EPA) various revisions to the State Implementation Plan (SIP) which governs the Commonwealth's standards and programs under the Clean Air Act; and

WHEREAS, the EPA advised the District that the SIP revisions must consider the Louisville metropolitan area's impending nonattainment status with regard to new, eight-hour ozone and 2.5 particulate matter (PM) standards; and

WHEREAS, on August 27, 2003, the District formally submitted a revised SIP to EPA, eliminating the VET, and on October 27, 2003, the EPA notified the District that it would not approve the revision to the SIP because it did not address the new PM and ozone standards and did not offer compensating control measures in the absence of VET; and

WHEREAS, on November 17, 2003, the Kentucky Resources Council filed suit in the United States District Court, Western District of Kentucky, in Louisville seeking injunctive relief that would reinstate the VET program; and

WHEREAS, on January 5, 2004, the District provided to the Court an EPA-proposed rule, 69 Fed. Reg. 302, dated January 5, 2004, that would appear to permit termination of the VET; and

WHEREAS, on January 29, 2004, the Court found that the District violated the Clean Air Act by closing the VET program without an approved revision to the SIP; and

WHEREAS, in its Order, the Court required that plans be submitted to the Court by March 1, 2004, for reinstatement of the VET, but stayed its final Order and remedy pending the Court's review of subsequent filings; and subsequent filings are to include statements from the EPA and counsel for the plaintiffs, as well as a requested clarification from EPA that the EPA-proposed rule does, indeed, permit a Kentucky SIP without VET testing in Louisville/Jefferson County; and

WHEREAS, throughout its Memorandum Opinion and Order, the Court does not take issue with the elimination of the VET, per se, but rather with what the Court finds to be a breakdown in the Clean Air Act's process of cooperation and agreement among federal, state, and local authorities regarding air quality standards, controls, and programs;

NOW, THEREFORE,

Be it resolved by the Senate of the General Assembly of the Commonwealth of Kentucky:

Section 1. House Bill 618 of the 2002 Regular Session of the General Assembly, which became effective on July 15, 2002, provided no less than 14 months for the District to obtain EPA approval for the end of the vehicle emissions testing program on November 1, 2003. Providing adequate time for the District to make a good faith effort to finalize this step demonstrates the expectation of the General Assembly that the vehicle emissions testing program in Louisville/Jefferson County would be ended in a manner that complied with federal law and would ensure the continued protection of air quality in Jefferson County through a properly revised State Implementation Plan developed by local decision makers to meet the needs of the local community. Therefore, the effort of Louisville/Jefferson County Metro Government to continue seeking federal approval of a revised State Implementation Plan is consistent with this expectation and is supported.

Section 2. In order to account for local variations in air emission sources, local geography, and local preferences on allocating resources, the federal Clean Air Act has set in place a partnership between the EPA, the states, and local communities to attain standards for good air quality with maximum flexibility granted to the states and local communities to achieve those standards. In passage of House Bill 618 in 2002, a wide majority of state legislators representing the citizens of Louisville/Jefferson County determined that the local resources of Jefferson County should be reallocated to achieve the federal clean air standards without vehicle emissions testing. Therefore, the effort of Louisville/Jefferson County Metro Government to continue seeking federal approval of a revised State Implementation Plan is consistent with this majority position of the people of Louisville/Jefferson County and is supported.

Section 3. In consideration of the expressed wishes of a majority of the people of Louisville/Jefferson County that good air quality of Louisville/Jefferson County be maintained without a vehicle emissions testing program, and the certainty that a restart of a vehicle emissions testing program will waste local resources because the flexibility of the Clean Air Act will ultimately allow a revision of the State Implementation Plan without a VET program to be approved by the EPA, the Louisville/Jefferson County Metro Government is herein supported in seeking, if necessary, an alternative equitable remedy from the United States District Court for the Western District of Kentucky that does not require restarting the vehicle emissions testing program. Such an alternative equitable remedy may include directing specific resources to health care services for identified population groups that may be adversely affected in the upcoming ozone period if national air quality standards are exceeded, as demonstrated through monitoring.

Section 4. The Director of the Legislative Research Commission is directed to expeditiously send a copy of this Resolution to John G. Heyburn II, Chief Judge, U.S. District Court, Western District of Kentucky at Louisville, and to further request that this Resolution be entered into the record of Civil Action No. 3:03CV-712-H.

Section 5. The Director of the Legislative Research Commission is directed to expeditiously send copies of this Resolution to the Mayor of the Louisville/Jefferson County Metro Government and the Director of the Louisville Metro Air Pollution Control District.