### Law Office of Robert Ukeiley

255 Mountain Meadows Road ◦ B oulder, Colorado 80302 ◦ tel. 303

- 442

- 4033

Robert Ukeiley rukeiley@igc.org

August 27 , 2014

Gina McCarthy

Administr ator 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 Maint ain 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 Administr ator [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 f ailed 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, Sout h Carolina, Virginia, Vermont, Washington, and West Virginia 1 (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 viola tion 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 (availab le

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

Healt h, 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, adver se 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 abil ity 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 publ ic’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 pollutan t 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 p er 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” elem ents.

Under the Clean Air Act, the Administrator is required to ma ke 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 pr omulgate a Federal Implementation Plan (“FIP”) or
approve the required SIP. See 42 U.S.C. § 7410(c)(1)(A).

The Admi nistrator’s Failure to Perform Nondiscretionary Duties

In this case, Arkansas, California, Connecticut, the District of Columbia, Georgia, Io wa, 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 require d 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 App eals 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 requir ed by 40 C.F.R. § 54.3, the person s providing this notice is :

Sierra Club

85 Second St. 2 nd Floor San Francisco, CA 94105

Phone: (415) 977

- 5500Administrator Gina McCarthy August 27 , 2014 Page 4

WildEarth Guardians

516 Alto Street Santa Fe, NM 87501 Phone: (505) 988

- 9126

While EPA regulations require th is 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