Law Office of Robert Ukeiley

255 Mountain Meadows Road ◦ Boulder, Colorado 80302 ◦ tel. 303-442-4033 

Robert Ukeiley

rukeiley@igc.org

August 27, 2014

Gina McCarthy

Administrator

United States Environmental Protection Agency

Ariel Rios Building

1200 Pennsylvania Avenue, NW

Washington, D.C. 20460

Re: Notice of Intent to File Suit over Failure to Find that States Have not 

Submitted State Implementation Plans to Attain and Maintain the 2008 

Ozone National Ambient Air Quality Standards

Dear Administrator McCarthy,

Pursuant to Section 304 of the Clean Air Act, this letter is to inform you that Sierra Club 

and WildEarth Guardians intends to sue you for "a failure of the Administrator [of the United 

States Environmental Protection Agency (“EPA”)] to perform an[] act or duty under this chapter 

which is not discretionary with the Administrator" within the meaning of the Clean Air Act. 42 

U.S.C. § 7604(a)(2). Specifically, EPA has failed to find that Arkansas, California, Connecticut, 

the District of Columbia, Georgia, Iowa, Illinois, Kansas, Massachusetts, Maine, Michigan, 

Minnesota, Missouri, Montana, New Hampshire, New Jersey, New Mexico, Oklahoma, 

Pennsylvania, Rhode Island, South Carolina, Virginia, Vermont, Washington, and West 

Virginia1 (collectively “States”) have failed to submit State Implementation Plans (“SIPs”) to 

meet various requirements under Section 110(a) of the Clean Air Act with regards to the 2008 

revised National Ambient Air Quality Standards (“NAAQS”) for ozone. These States were 

required to submit such SIPs within three years of the promulgation of the 2008 ozone NAAQS, 

or by no later than March 27, 2011. EPA has failed to make such findings, in violation of a 

nondiscretionary duty set forth under the Clean Air Act. 

 1 See http://www.epa.gov/air/urbanair/sipstatus/reports/map_i.html, last viewed 8/13/14. 
Administrator Gina McCarthy

August 27, 2014

Page 2

Public health and welfare protection from the harmful impacts of ground-level ozone, 

often referred to as smog, will be closer to the protection envisioned by Congress once EPA 

remedies this violation of its mandatory duty. Ozone has numerous harmful effects on human 

respiratory systems which include inducing asthma attacks in asthmatics and aggravating chronic 

lung diseases like emphysema and bronchitis. EPA, Smog—Who Does it Hurt?, 2-3 (available 

at http://www.epa.gov/air/ozonepollution/pdfs/smog.pdf (last viewed Oct. 3, 2011)). Long-term 

exposure may even result in the permanent scarring of lung tissue. EPA, Ozone and Your 

Health, U.S. Environmental Protection Agency (available at

http://www.epa.gov/air/ozonepollution/pdfs/health.pdf (last viewed Oct. 3, 2011)). Exposure to 

ozone can also lead to “chronic, adverse effects on lung development in children from the age of 

10 to 18 years....” See Gauderman, W. James, et al., The Effect of Air Pollution on Lung 

Development from 10 to 18 Years of Age, N. Engl. J. Med. 351:11, at 1057 (Sept. 9, 2004). The 

greatest harm “may occur later in life, since reduced lung function is a strong risk factor for 

complications and death during adulthood.” Id. at 1063. 

Moreover, ozone’s detrimental effects are not limited to human health. Ozone also 

interferes with vegetation’s ability to properly function, damaging commercial crops and natural 

ecosystems alike. See 62 Fed. Reg. 38855, 38875 (July 18, 1997). Thus, it is imperative that 

EPA remedy its failure to perform its mandatory duty in order to strengthen protection of the 

public’s health and welfare against ozone.

We intend to bring a suit 60 days from the date of this letter, or shortly thereafter, under 

the Clean Air Act, 42 U.S.C. § 7604(a)(2), against the EPA over the failure to perform 

nondiscretionary duties set forth in 42 U.S.C. § 7410(k)(1)(B). The suit will seek injunctive 

relief, declaratory relief, the cost of litigation, and other relief as may be necessary.

Clean Air Act Requirements

On March 12, 2008, the EPA promulgated NAAQS for ozone, a harmful air pollutant that 

in small concentrations can trigger asthma attacks, aggravate emphysema, and permanently 

damage the lungs of children. See 73 Fed. Reg. 16436-16514 (March 27, 2008). EPA set a new 

standard limiting ozone concentrations to no more than 0.075 parts per million over an 8-hour 

period. See 40 C.F.R. § 50.15.

In accordance with Section 110(a)(1) of the Clean Air Act, States are required to submit 

SIPs to attain and maintain the NAAQS within three years of the promulgation or revision of a 

NAAQS. See 42 U.S.C. § 7410(a)(1). In assuring that SIPs attain and maintain the NAAQS in 

accordance with Section 110(a)(1), States must ensure their SIPs include requirements set forth 

under Section 110(a)(2). See 74 U.S.C. § 7410(a)(2). These requirements, include, but are not 

limited to:

• Limits on interstate transport (42 U.S.C. § 7410(a)(2)(D)(i));
Administrator Gina McCarthy

August 27, 2014

Page 3

The requirements in 42 U.S.C. § 7410(a)(2)(D)(i)(I) is generally referred to as the “Good 

Neighbor” elements.

Under the Clean Air Act, the Administrator is required to make a finding as to whether a

State has submitted the required SIP no later than six months after the date by which the State

was required to submit such a SIP. See 42 U.S.C. § 7410(k)(1)(B). Upon making such a finding,

EPA has two years by which it must promulgate a Federal Implementation Plan (“FIP”) or

approve the required SIP. See 42 U.S.C. § 7410(c)(1)(A).

The Administrator’s Failure to Perform Nondiscretionary Duties

In this case, Arkansas, California, Connecticut, the District of Columbia, Georgia, Iowa, 

Illinois, Kansas, Massachusetts, Maine, Michigan, Minnesota, Missouri, Montana, New 

Hampshire, New Jersey, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, 

Virginia, Vermont, Washington, and West Virginia have failed to submit SIPs to meet the 

infrastructure requirements of Sections 110(a)(1) and 110(a)(2)(D)(i)(I) of the Clean Air Act 

within three years of the promulgation of the 2008 revised ozone NAAQS. As EPA noted in its 

final rule adopting the 2008 ozone NAAQS, States were required to submit their infrastructure 

SIPs by March 12, 2011. See 73 Fed. Reg. 16,503. 

Thus, in accordance with Section 110(k)(1)(B), the Administrator was required to make a

finding by no later than September 27, 2011 that States had failed to submit SIPs to meet the 

aforementioned requirements of Section 110(a)(1) and Section 110(a)(2) of the Clean Air Act. 

See 42 U.S.C. §7410(k)(1)(B). On January 15, 2013, EPA published a notice in the Federal 

Register in which EPA refused to make a finding that states had failed to submit their Good 

Neighbor provisions for the 2008 ozone NAAQS. See 78 Fed. Reg. 2,882, 2,884 (Jan. 15, 2013). 

However, on August 1, 2014, that notice of EPA’s refusal to make a finding of failure to submit 

was vacated by the U.S. Court of Appeals for the D.C. Circuit. See Maryland v. EPA, 13-1070, 

Order (August 1, 2014). When an agency action is vacated, any mandatory duty that the vacated 

action fulfilled is reinstated. See e.g. Environmental Defense v. Leavitt, 329 F. Supp. 2d 55, 64 

(D.D.C. 2004). Thus, EPA currently has a mandatory duty to promulgate a finding of failure to 

submit Good Neighbor elements for the 2008 ozone NAAQS. EPA has not made such a finding, 

in violation of a nondiscretionary duty under the Clean Air Act.

As required by 40 C.F.R. § 54.3, the persons providing this notice is:

Sierra Club

85 Second St. 2nd Floor

San Francisco, CA 94105

Phone: (415) 977-5500
Administrator Gina McCarthy

August 27, 2014

Page 4

WildEarth Guardians

516 Alto Street

Santa Fe, NM 87501

Phone: (505) 988-9126

While EPA regulations require this information, please direct all correspondences and 

communications regarding this matter to the undersigned counsel.

Sierra Club, WildEarth Guardians and their counsel would prefer to resolve this matter 

without the need for litigation. Therefore, we look forward to EPA contacting undersigned 

counsel to resolve this matter. If we do not hear from EPA in 60 days, however, we will have to 

assume that you are not interested in settling this matter and file or amend a complaint.

Sincerely,

Robert Ukeiley

Counsel for Sierra Club

& WildEarth Guardians