### Case 1:09-cv-02109-MSK Document 1 Filed 09/03/2009 

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IN THE UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLORADO

Civil Action No.
_ WILDEARTH GUARDIANS, Plaintiff,


### v. LISA JACKSON, in her official capacity as Administrator ofthe Environmental Protection Agency, Defendant.

COMPLAINT

I. Introduction I. Under the theory of"cooperative federalism" guiding the implementation ofthe Clean Air Act, 42 U.S.c. §§ 7401-767Iq, individual states are allowed to develop State Implementation Plans ("SIPs") to comply with National Ambient Air Quality Standards ("NAAQS") promulgated by the Federal government through the Environmental Protection Agency ("EPA"). See 42 U.S.C. § 7410. States must submit their SIPs to EPA for approval. EPA reviews each SIP to ensure it meets the minimum requirements oftheClean Air Act ("CAA"). Ifthe SIP meets the requirements ofthe Act, EPAmust approve it. Alternatively, ifthe SIP does not meet the minimum requirements ofthe Act, EPAmust disapprovethe SIP. Id.**"------,~----~-_._--- _._-_.~-----------** Case 1 :09-cv-02109-MSK Document 1 Filed 

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2. An approved SIP remains open to modification as necessary. EPA must initiate rulemaking proceedings to call for a SIP revision whenever it finds that a previously approved SIP has become inadequate or otherwise fails to meet the current requirements ofthe Clean AirAct. 42 U.S.c. § 74l0(k)(5) 3. The State ofUtah's SIP contains aprovisionthat allows regulated facilities to exceed airpollution emission limits, including those designed to protect human health, during "breakdowns" (hereinafter the "breakdownexemption"). This provision is inconsistent with the Clean Air Act, which does not allow automatic exemption ofcompliance with emission limits during breakdowns, malfunctions, orany other similar event. By automatically allowing sources ofair pollutionto exceed emission limits during "breakdowns," Utah's breakdown exemption is contraryto the requirements oftheAct. 4. Seven years ago, in 2002, and at various times since then, EPA has found that Utah's breakdown exemption is inconsistent with the Clean Air Act and told the State to fix it. Utah promised to "work with" EPA to revise its breakdown exemption. However, nothing has happened. Utah has not fixed its breakdownexemption and EPA has not required it to do so. Tired ofthe continual foot-dragging by Utah andbyEPA's lack ofwill to enforce the law, on December 31,2007, Plaintifffiled apetition, pursuant to the Administrative Procedure Act, 5U.S.c. § 553(e), and the Clean Air Act, 42 U.S.c. § 7410(k)(5), requesting EPAto issue a rule requiring Utah to revise its breakdown exemption. Now, nearlytwo years later, faced with EPA's refusal to take any action on its Petition, and afterproviding over 180 days notice to EPA ofits intentto sue, Plaintiff is forced to file the instant lawsuit to prompta response to its Petition.

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II. Jurisdiction, Venue, and Notice 5. This Courthasjurisdictionoverthe action pursuant to 28 U.S.c. § 1331 (federal question), 42 U.S.c. § 7604(a).(citizen suit provision ofthe CAA), 5 U.S.C. § 706 (Administrative Procedure Act), 28 U.S.c. § 2201 (declaratoryjudgment); 28 U.S.C. § 2202 (injunctive relief); 28 U.S.c. § 1346 (U.S. as a defendant), 42 U.S.C. § 7604(d) (costs and attorney fees provisionofthe CAA), and/or 28 U.S.C. 

### §§2412 etseq. (Equal Access to Justice Act). 6. Venue is proper in thisjudicial districtpursuant to 42 U.S.C. 

### §7604(a) because the U.S:District Courtfor the District ofColorado is a U.S. District Court within the Tenth Circuit, the circuit in which Utah's SIP approval would bereviewable under42 U.S.c. § 7607(b); andpursuant to 28 U.S.C. §§ 1391(e)(l), (2), & (3) because Defendant (the "Administrator") maintains a Regional EPA Office responsible for reviewing Utah's SIP, and Plaintiffs Petition, in Denver, Colorado; because a substantialpart ofevents or omissions giving rise to the claims in this Complaint occurred in Denver, Colorado; and because Plaintiffmaintains an office, responsible for drafting the Petition, in Denver, Colorado. 7. On December 22, 2008, after waiting a year for a ruling on its Petition, Plaintiffwrote the Administrator and provided fonnal notice ofits intent to sue on the claims alleged inthis Complaint. EPA infonnedPlaintiffthat it received this notice letter
on January 5, 2009. Accordingly, Plaintiffproperly gave Defendant notice ofthe violations alleged in this Complaint and ofPlaintiffs intent to bring suit to remedy these violations more than 180 days prior to the filing ofthis Complaint. See42 U.S.C. § 7604(a)(2). To date, the Administrator has neither granted nor denied Plaintiffs Petition.

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III. Parties 8. Plaintiff, WILDEARTH GUARDIANS, is anon-profit conservation organization with offices in Santa Fe, New Mexico and Denver, Colorado. Itbrings suit
on its own behalfand on behalfofits members. WildEarth Guardians ("Guardians") is the successor in interest, via a merger, ofRocky Mountain Clean AirAction, the original petitioner. Guardians and its members work to reduce harmful airpollution in orderto safeguard public health, welfare, and the environment. Guardians has approximately 10,000 members and supporters, many ofwhom live, work and/or recreate in Utah. 9. Guardians' members who live, work, recreate, and conduct other activities in Utah are effected by air quality and have a substantial interest in ensuringthey breath the cleanest airpossible. Guardians and its members also have a substantial interest in ensuring that EPA complies with the Clean AirAct and that itresponds to citizen petitions. Guardians invested time and money in preparing the Petition and is harmed by EPA's failure to respond to it. Because EPA has not responded to Guardians' Petition, Guardians' members are exposed to excess airpollution emitted by facilities in Utah during "breakdowns." Guardians' and its members' interests have been, are being, and will continue to be irreparably harmed by EPA's failure to actonGuardians' Petition to revise Utah's SIP provisions allowing excess air pollution during breakdowns. The relief requested in this lawsuit would redress the injuries ofGuardians' and its members. 10. Defendant, LISA JACKSON, is the Administrator ofthe Environmental Protection Agency. She is sued in her official capacity. The Administrator is the federal official ultimately responsible for the implementation ofthe Clean Air Act. EPA maintains a Regional Office, responsible for its activities in Utah, in Denver, Colorado.

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IV. Legal Framework A. The Clean Air Act 11. The Clean AirActprovides that whenever the Administrator finds that a SIP fails comply with any requirement ofthe Act, the Administrator shall requirethe State to revise its SIP as necessaryto correct such inadequacies. 42 U.S.c. 

### § 7610(k)(5). The Administrator shall publicly notify the State ofthe inadequacies and may establish a reasonable deadline ofup to 18 months for the State to submit a revised SIP. Id. 12. The Clean AirAct further provides that anyperson may commence a civil action against the Administratorwhen the Administrator fails to perform any nondiscretionary act orduty. 42 U.S.C. § 7604(a)(2). 13. Additionally, the Clean Air Actprovides the district courts ofthe United States havejurisdictionto compel unreasonably delayed agency action. 42 U.S.C. § 7604(a). B. The Administrative Procedure Act 14. The AdministrativeProcedure Act ("APA") requires each agency "shall give an interested person the right to petition for the issuance, amendment, orrepeal ofa rule." 5 U.S.C. § 553(e). 15. TheAPA further requires that any agency, such as EPA, shall" within a reasonable time" "proceedto conclude a matter presented to it." 5 U.S.c. § 555(b). 16. The APA further provides forjudicial review, 5 U.S.C. § 702, andrequires
a reviewing court to "compel agency actionunlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1).



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## v. FactualAllegations 17. EPA has approved a SIP for the State ofUtah. 18. The "breakdown exemption" in the Utah SIP contains six sections that allow facilities to exceed airpollution emission limits in the event ofa normal breakdown. A normal breakdown is defmed in Utah Regulation R307-101-2 as "any malfunction orprocedural error, to include but not limited to any malfunction or procedural error during start-up and shutdown, which will result in the inoperability or sudden loss ofperformance ofthe control equipment or process equipment causing emissions in excess ofthose allowed by approval order orTitle R307." 19. The breakdown exemption also allows a facility to exceed air pollution emission limits in the event ofan "unavoidable" breakdown. Unavoidable breakdowns
are notdefined in the Utah regulations. 20. The breakdown exemption begins by stating that all excess emissions during unavoidable breakdowns do not constituteviolations ofUtah's air quality regulations. Utah Regulation R307-107-1 specifically states: R307-107 applies to all regulatedpollutants including those for which there are National Ambient Air Quality Standards. Except as otherwiseprovided in R307­ 107, emissions resulting from an unavoidable breakdown will not be deemed a violation ofthese regulations. Ifexcess emissions are predictable, they must be authorized under the varianceprocedurein R307-102-4. Breakdowns that are caused entirely or in partby poormaintenance, careless operation, or any other preventable upset condition orpreventable equipment breakdown shall not be considered unavoidable breakdown. 21. The breakdown exemption goes on to state that even normal breakdowns
are allowed to exceed air pollution emission limits, providedthe breakdown does not last for more than two hours. See Utah Regulation R307-107-2. A violation ofthis section



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will only occurwhen breakdowns lasting for more than twohours are not reported. See id. at 107

-3. 22. Utah's Regulations attempt to provide limits on the application ofthe unavoidable breakdown exemption. Utah Regulation R307-107-4 states: The owner or operator ofan installation suffering an unavoidable breakdown shall assure that emission limitations and visible emission limitations are exceeded for only as short a period oftime as reasonable. The owner oroperator shall take all reasonable measures which may include but are not limited to the immediate curtailment ofproduction, operations, or other activities at all installations ofthe source ifnecessary to limit the total aggregate emissions from the source [
...] In the eventthatproduction, operations, or activities cannotbe curtailed so as to limit the total aggregate emissions withoutjeopardizing equipment or safety or measures taken would result in even greater excess emissions, the owneror operator ofthe source shall use the most rapid, reasonableprocedure to reduce emissions. 23. A violation ofSection 107-4 will only occurwhen the owneror operator ofan installation fails to comply with the curtailment actions required by this section. See id. at 107-5. 24. Considered in its entirety, Utah's breakdown exemption serves to allow polluters to use breakdowns, unavoidable or otherwise, as a means to avoid compliance with Utah's air quality regulations. 25. Nothing in the federal Clean Air Actprovides for the automatic exemption ofcompliance during breakdowns, malfunctions, or any similar event. There are no provisions for "unavoidablebreakdowns" anywhere in the CAA or its 1990 amendments. The CMrequires that SIPs ensure absolute compliance with national ambient air quality standards ("NAAQS") and prevention ofsignificant deterioration ("PSD") provisions. See42 V.S.c. §§ 7407(a) and 7410(a)(1).

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26. In 1978, EPA adopted an excess emissions policy, which considers all periods ofexcess emissions to be violations ofthe CAA. In subsequent EPA policy statements, CAA interpretations, guidance documents, and administrative rules and orders, EPA has consistently and clearly reaffirmed this position. 27. EPA has also stated that automatic exemptions will not be allowed. An affirmative defense may be permitted only with respect to penalties, not to injunctive relief, and only when no single source or small group ofsources has the potential to cause exceedance ofNAAQS orPSD requirements and when there is no violation ofa federally promulgated performance standard or emission limitation. In those cases, a state director must exercise his or her enforcement discretion and cannot avoid this case-by-case obligation by allowing an automatic exemption. 28. EPA's policy ofidentifying all excess emissions as CAA violations and its disallowance ofautomatic exemptions is consistent with the CAA. SIPs protect ambient air quality based standards. Emissions above the allowable limits may cause or contribute to violations ofthe NAAQS and are therefore illegal and inexcusable. EPA has determined that ifthere are circumstances preventing sources from complying with SIPs during breakdowns, then the Statemust address these problems in the underlying rules applicable to those particular sources and not through overarching excess emission provisions. The CAA does not allow for automatic exemptions from compliance with applicable SIP emission limits duringperiods or start-up, shutdown, malfunctions or upsets. Breakdowns typically result from equipment failure or impropermaintenance and
can result in excess emissions. EPA has stated that it has a fundamental responsibility under the CAA to ensure that SIPs provide for attainment and maintenance ofthe

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NAAQS andprotection ofPSD increments. Accordingly, a breakdown exemption that would undermine the fundamental requirement ofattainment and maintenance ofthe NAAQS or any other requirement ofthe CAA is illegal. 29. On several occasions, EPA has found and publicly stated that Utah's breakdown exemption violates the Clean Air Act. 30. EPA has urged Utah to revise its SIP to correct the breakdown exemption since at least 2002. In 2002, Utah committed to revising the breakdown exemption. Despite attempts, since 2002, Utah has yet to revise its breakdown exemption. 31. In an October 22, 2004 letterto Rick Sprott, Director ofthe Utah Division ofAir Quality, EPA Region 8 Director ofthe Air and Radiation Program, Richard Long, stated: "We appreciate your efforts to develop a rule to address concerns we have previously raised with the state's 'Unavoidable Breakdown' rule. Unfortunately, our preliminaryreview ofthe proposedrule indicates that it is not approvable as a state implementation plan (SIP) revision." 32. In December, 2004, comments on a proposed air pollutionpermitfor a power plant in Utah County, Utah, EPA stated: "Utahhas been advised on a number of occasions that the unavoidable breakdown rule is not consistent with EPA interpretation ofthe Clean Air Act." EPA's December, 2004 letter further recognized that Utah had committed to work to address EPA's concerns with its breakdown exemption through a SIP revision, but that Utah had not yet done so. 33. Similarly, inAugust, 2006, EPA commented on aproposedpermit for a cement plant in MorganCounty, Utah stating: "Utah has been advised on a number of occasions that the unavoidable breakdown rule is not consistent with EPA's interpretation

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ofthe Clean Air Act and that therule should not be referenced in Utah's permits. Also, under EPA's interpretationofthe Clean Air Act, PSD BACT [best available control technology] limits apply at all times. PSD BACT emission limits in the permitcannot be subject to this orany other exemption." 34. EPAhas found that Utah'sbreakdown exemption in the State's SIP is inconsistent with the Clean AirAct. 35. EPA haspublicly stated in various letters to Utah air quality officials responsible for Utah's SIP that Utah's breakdown exemption is inconsistent with the Clean Air Act. 36. EPA has yet to issue a SIP call under42 U.S.c. 

### §7410(k)(5) requiring Utah to revise its SIP to make its breakdown exemption consistent with the CleanAir Act. 37. On December 31,2007, Rocky Mountain Clean Air Action, now Plaintiff, WildEarth Guardians, submitted a Petitionto Require Revision ofthe Utah SIP Provisions onExcess Emissions During Breakdowns. Guardians specificallyrequested that EPArequire elimination ofthe breakdown exemption and/or require revision ofthe Utah SIP to meet the requirements ofthe CAA. Guardians further pointed to Colorado's breakdown rule as an acceptable model to revise Utah's breakdown exemption. 38. As ofthe filing ofthis Complaint, EPA has not responded to Guardians' Petition.



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### VI. Claimsfor Relief Guardians brings the following three claims for reliefin the alternative. 

### A. FirstClaim for Relief: CAA

- Violation ofa Non-DiscretionaryDuty 39. Plaintiffincorporations all preceding allegations in this Complaint by reference. 40. 42 U.S.c. § 741O(k)(5) provides whenever the Administrator finds that a SIP fails to comply with any requirement ofthe Clean Air Act, the Administrator shall require the State to revise the SIP as necessary to correct such inadequacies. The Administrator shall notify the State ofthe inadequacies in its SIP and may establish reasonable deadlines, not to exceed 18 months, for the Stateto submit the required SIP revisions. Id. Such finding and notice shall bepublic. Id. 41. EPA has found Utah's breakdown exemption fails to comply with the requirements ofthe Clean Air Act. EPA has notified Utah ofthis inadequacy. Both EPA's finding and notification to Utah have been repeated publicly in various letters to the responsible Utah air quality officials. However, despite making such a finding and publicly notifying Utah oftheinadequacy in its SIP, EPA has failed to require Utah to correct the inadequacy and has not established reasonable deadlines, not to exceed 18 months, for Utah to submit the required SIP revision. 42. EPA's failure to require Utah to revise its SIP to remove or amend its breakdown exemption in compliance with the Clean Air Act violates 42 U.S.C. 

### § 7410(k)(5). EPA's violation ofCAA Section 7410(k)(5) is a failure by the Administrator to perfonn an act orduty, which is not discretionary in violation of42 U.S.C. 

### § 7604(a)(2).

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B. Second Claim for Relief: CAA - Unreasonable Delay 43. Plaintiffincorporations all preceding allegations in this Complaint by reference. 44. 42 U.S.C. §7604(a) provides the district courts ofthe United States shall havejurisdiction to compel agency action unreasonably delayed after a Plaintiffhas provided the Administrator with 180 days notice before commencing such action. 45. Guardians petitioned the Administrator to require Utah to revise orremove its breakdown exemption consistent with 42 U.S.c. §741O(k)(5) nearly two years ago. Guardians provided the Administrator with more than 180 days notice ofthis violation of the Clean AirAct. The Administrator has unreasonably delayed ruling on Guardians' petition within the meaning of42 U.S.C. § 7604(a). C. Third Claim for Relief: APA - Unreasonable Delay 46. Plaintiffincorporates all preceding allegations in this Complaintby reference. 47. Pursuant to 5 U.S.c. § 553(e), Guardianspetitioned EPA to require elimination andlorrevision ofthe Utah SIP provision allowing excess emissions during breakdowns. 48. EPA has a duty to conclude matters presented to it within a reasonable time, pursuant to 5 U.S.c. §§ 555(b) and 706(1). 49. EPA has unreasonably delayedresponding to and concluding its action on Guardians' Petition within the meaning of5 U.S.c. §§ 555(b) and 706(1).

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VII. Request for Relief WHEREFORE, Plaintiff, WildEarth Guardians requests that this Court enter judgmentproviding the following relief: A. A declaration that by failing to require Utah to revise its SIP to remove or amend its breakdown exemption consistent with 42 U,S.c. § 7410(k)(5), the Administrator has failed to perform an act or duty which its not discretionaryunder 42 U.S,C. § 7604(a)(2); B. An injunction ordering theAdministratorto require Utah to submit a SIP revision removing oramending its breakdown exemption by a reasonable deadline, not to exceed 18 months, consistent with42 U,S.c. § 741O(k)(5); C. A declaration that by failing to rule on Guardians' Petition the Administrator has unreasonably delayed agency action under the Clean AirAct, 42 U.S,C. § 7604(a); D. An injunction orderingtheAdministratorto rule on Guardians' Petition within 60 days ofthe Court'sdetermination that the Administrator's delay is unreasonable; E. A declaration that the Administrator's failure to rule on Guardians' Petition constitutes agency actionunlawfully withheld orunreasonably delayed within the meaning ofthe AdministrativeProcedureAct, 5 U.S.C. §§ 555(b) and 706(1); F, An injunction ordering the Administratorto rule on Guardians' Petition within 60 days ofthe Court's determination that the Administrator's delay is unreasonable;

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G. An order retainingjurisdiction over this matteruntil suchtime as the Administrator has complied with the Court's Orders; H. An order awarding Guardians' its costs oflitigation, including reasonable attorney's fees; and I. Such other and further reliefas the Courtdeemsjust andproper.
Respectfully submitted this 3rd day ofSeptember2009.

s/JamesJ. Tutchton WildEarth Guardians 1536 Wynkoop St., Suite 301 Denver, CO 80202 Tel: (720) 301-3843**.it!Jl!:.htQ12@Y{jJsit;.~Illbgl!?J_Qi~\IJ~"Qrg** OfCounsel SamanthaRuscavage Barz 17 Orno Creek Road Placitas, NM 87043 Tel: (505) 750-1598 Samantha.RuscavngeBarz(ci)gmail.com Attorneys forPlaintiffWi/dEarth Guardians

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