Case 1:09-cv-021 09-MSK Document 1 Filed 09/03/2009 USDC Colorado Page 1 of 14 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO 

Civil Action No. _ 

WILDEARTH GUARDIANS, 

Plaintiff, 

v. 

LISA JACKSON, in her official capacity as 

Administrator of the Environmental Protection Agency, 

Defendant. 

COMPLAINT
 

I. Introduction 

I. Under the theory of "cooperative federalism" guiding the implementation 

of the 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 of the Clean Air Act ("CAA"). If the SIP meets the requirements of the 

Act, EPA must approve it. Alternatively, if the SIP does not meet the minimum 

requirements of the Act, EPA must disapprove the SIP. Id. 
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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 of the Clean Air Act. 42 U.S.c. § 74l0(k)(5) 

3. The State of Utah's SIP contains a provision that allows regulated 

facilities to exceed air pollution emission limits, including those designed to protect 

human health, during "breakdowns" (hereinafter the "breakdown exemption"). This 

provision is inconsistent with the Clean Air Act, which does not allow automatic 

exemption of compliance with emission limits during breakdowns, malfunctions, or any 

other similar event. By automatically allowing sources of air pollution to exceed 

emission limits during "breakdowns," Utah's breakdown exemption is contrary to the 

requirements of the Act. 

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 breakdown exemption and EPA 

has not required it to do so. Tired ofthe continual foot-dragging by Utah and by EPA's 

lack of will to enforce the law, on December 31,2007, Plaintifffiled a petition, pursuant 

to the Administrative Procedure Act, 5 U.S.c. § 553(e), and the Clean Air Act, 42 U.S.c. 

§ 7410(k)(5), requesting EPA to issue a rule requiring Utah to revise its breakdown 

exemption. Now, nearly two years later, faced with EPA's refusal to take any action on 

its Petition, and after providing over 180 days notice to EPA of its intent to sue, Plaintiff 

is forced to file the instant lawsuit to prompt a response to its Petition. 

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II. Jurisdiction, Venue, and Notice 

5. This Court has jurisdiction over the action pursuant to 28 U.S.c. § 1331 

(federal question), 42 U.S.c. § 7604(a).(citizen suit provision of the CAA), 5 U.S.C. § 

706 (Administrative Procedure Act), 28 U.S.c. § 2201 (declaratory judgment); 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 provision of the CAA), and/or 28 U.S.C. §§ 2412 et seq. (Equal 

Access to Justice Act). 

6. Venue is proper in this judicial district pursuant to 42 U.S.C. § 7604(a) 

because the U.S: District Court for the District of Colorado is a U.S. District Court within 

the Tenth Circuit, the circuit in which Utah's SIP approval would be reviewable under 42 

U.S.c. § 7607(b); and pursuant 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 substantial part of events or 

omissions giving rise to the claims in this Complaint occurred in Denver, Colorado; and 

because Plaintiff maintains 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 of its intent to sue on the 

claims alleged in this Complaint. EPA infonned Plaintiff that it received this notice letter 

on January 5, 2009. Accordingly, Plaintiff properly gave Defendant notice of the 

violations alleged in this Complaint and of Plaintiffs intent to bring suit to remedy these 

violations more than 180 days prior to the filing of this Complaint. See 42 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 a non-profit conservation 

organization with offices in Santa Fe, New Mexico and Denver, Colorado. It brings suit 

on its own behalf and on behalf ofits members. WildEarth Guardians ("Guardians") is 

the successor in interest, via a merger, of Rocky Mountain Clean Air Action, the original 

petitioner. Guardians and its members work to reduce harmful air pollution in order to 

safeguard public health, welfare, and the environment. Guardians has approximately 

10,000 members and supporters, many of whom 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 ensuring they breath 

the cleanest air possible. Guardians and its members also have a substantial interest in 

ensuring that EPA complies with the Clean Air Act and that it responds 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 air pollution 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 act on Guardians' Petition to 

revise Utah's SIP provisions allowing excess air pollution during breakdowns. The relief 

requested in this lawsuit would redress the injuries of Guardians' and its members. 

10. Defendant, LISA JACKSON, is the Administrator of the Environmental 

Protection Agency. She is sued in her official capacity. The Administrator is the federal 

official ultimately responsible for the implementation of the 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 Air Act provides that whenever the Administrator finds that a 

SIP fails comply with any requirement ofthe Act, the Administrator shall require the 

State to revise its SIP as necessary to correct such inadequacies. 42 U.S.c. § 7610(k)(5). 

The Administrator shall publicly notify the State of the inadequacies and may establish a 

reasonable deadline of up to 18 months for the State to submit a revised SIP. Id. 

12. The Clean Air Act further provides that any person may commence a civil 

action against the Administrator when the Administrator fails to perform any nondiscretionary act or duty. 42 U.S.C. § 7604(a)(2). 

13. Additionally, the Clean Air Act provides the district courts ofthe United 

States have jurisdiction to compel unreasonably delayed agency action. 42 U.S.C. § 

7604(a). 

B. The Administrative Procedure Act 

14. The Administrative Procedure Act ("APA") requires each agency "shall 

give an interested person the right to petition for the issuance, amendment, or repeal of a 

rule." 5 U.S.C. § 553(e). 

15. The APA further requires that any agency, such as EPA, shall" within a 

reasonable time" "proceed to conclude a matter presented to it." 5 U.S.c. § 555(b). 

16. The APA further provides for judicial review, 5 U.S.C. § 702, and requires 

a reviewing court to "compel agency action unlawfully withheld or unreasonably 

delayed." 5 U.S.C. § 706(1). 

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v. Factual Allegations 

17. EPA has approved a SIP for the State of Utah. 

18. The "breakdown exemption" in the Utah SIP contains six sections that 

allow facilities to exceed air pollution emission limits in the event of a normal 

breakdown. A normal breakdown is defmed in Utah Regulation R307-101-2 as "any 

malfunction or procedural 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 of performance of the control equipment or process equipment causing 

emissions in excess of those allowed by approval order or Title R307." 

19. The breakdown exemption also allows a facility to exceed air pollution 

emission limits in the event of an "unavoidable" breakdown. Unavoidable breakdowns 

are not defined in the Utah regulations. 

20. The breakdown exemption begins by stating that all excess emissions 

during unavoidable breakdowns do not constitute violations of Utah's air quality 

regulations. Utah Regulation R307-1 07-1 specifically states: 

R307-107 applies to all regulated pollutants including those for which there are 

National Ambient Air Quality Standards. Except as otherwise provided in R307­

107, emissions resulting from an unavoidable breakdown will not be deemed a 

violation of these regulations. If excess emissions are predictable, they must be 

authorized under the variance procedure in R307-102-4. Breakdowns that are 

caused entirely or in part by poor maintenance, careless operation, or any other 

preventable upset condition or preventable 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, provided the breakdown does not last 

for more than two hours. See Utah Regulation R307-107-2. A violation of this section 

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will only occur when breakdowns lasting for more than two hours are not reported. See 

id. at 107-3. 

22. Utah's Regulations attempt to provide limits on the application of the 

unavoidable breakdown exemption. Utah Regulation R307-107-4 states: 

The owner or operator of an installation suffering an unavoidable breakdown shall 

assure that emission limitations and visible emission limitations are exceeded for 

only as short a period of time as reasonable. The owner or operator shall take all 

reasonable measures which may include but are not limited to the immediate 

curtailment of production, operations, or other activities at all installations of the 

source if necessary to limit the total aggregate emissions from the source [...] In 

the event that production, operations, or activities cannot be curtailed so as to 

limit the total aggregate emissions without jeopardizing equipment or safety or 

measures taken would result in even greater excess emissions, the owner or 

operator of the source shall use the most rapid, reasonable procedure to reduce 

emissions. 

23. A violation of Section 107-4 will only occur when the owner or operator 

of an 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 Act provides for the automatic exemption 

of compliance during breakdowns, malfunctions, or any similar event. There are no 

provisions for "unavoidable breakdowns" anywhere in the CAA or its 1990 amendments. 

The CM requires that SIPs ensure absolute compliance with national ambient air quality 

standards ("NAAQS") and prevention of significant deterioration ("PSD") provisions. 

See 42 V.S.c. §§ 7407(a) and 741 0(a)(1). 

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26. In 1978, EPA adopted an excess emissions policy, which considers all 

periods of excess emissions to be violations of the 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 of sources has the potential to cause 

exceedance ofNAAQS or PSD requirements and when there is no violation of a 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 of identifying all excess emissions as CAA violations and its 

disallowance of automatic exemptions is consistent with the CAA. SIPs protect ambient 

air quality based standards. Emissions above the allowable limits may cause or 

contribute to violations of the NAAQS and are therefore illegal and inexcusable. EPA 

has determined that if there are circumstances preventing sources from complying with 

SIPs during breakdowns, then the State must 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 during periods or start-up, shutdown, malfunctions or 

upsets. Breakdowns typically result from equipment failure or improper maintenance 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 of the 

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NAAQS and protection of PSD increments. Accordingly, a breakdown exemption that 

would undermine the fundamental requirement of attainment and maintenance of the 

NAAQS or any other requirement of the 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 letter to Rick Sprott, Director of the Utah Division 

of Air Quality, EPA Region 8 Director of the 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 

preliminary review of the proposed rule indicates that it is not approvable as a state 

implementation plan (SIP) revision." 

32. In December, 2004, comments on a proposed air pollution permit for a 

power plant in Utah County, Utah, EPA stated: "Utah has been advised on a number of 

occasions that the unavoidable breakdown rule is not consistent with EPA interpretation 

of the 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, in August, 2006, EPA commented on a proposed permit for a 

cement plant in Morgan County, 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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of the Clean Air Act and that the rule should not be referenced in Utah's permits. Also, 

under EPA's interpretation of the Clean Air Act, PSD BACT [best available control 

technology] limits apply at all times. PSD BACT emission limits in the permit cannot be 

subject to this or any other exemption." 

34. EPA has found that Utah's breakdown exemption in the State's SIP is 

inconsistent with the Clean Air Act. 

35. EPA has publicly 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 under 42 U.S.c. § 7410(k)(5) requiring 

Utah to revise its SIP to make its breakdown exemption consistent with the Clean Air 

Act. 

37. On December 31,2007, Rocky Mountain Clean Air Action, now Plaintiff, 

WildEarth Guardians, submitted a Petition to Require Revision of the Utah SIP 

Provisions on Excess Emissions During Breakdowns. Guardians specifically requested 

that EPA require elimination of the breakdown exemption and/or require revision of the 

Utah SIP to meet the requirements of the CAA. Guardians further pointed to Colorado's 

breakdown rule as an acceptable model to revise Utah's breakdown exemption. 

38. As of the filing of this Complaint, EPA has not responded to Guardians' 

Petition. 

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VI.	 Claims for Relief
 

Guardians brings the following three claims for relief in the alternative.
 

A. First Claim for Relief: CAA - Violation of a Non-Discretionary Duty 

39. Plaintiff incorporations 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 of the 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 of the inadequacies in its SIP and may establish 

reasonable deadlines, not to exceed 18 months, for the State to submit the required SIP 

revisions. Id. Such finding and notice shall be public. Id. 

41. EPA has found Utah's breakdown exemption fails to comply with the 

requirements of the Clean Air Act. EPA has notified Utah of this 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 of the inadequacy 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 or duty, which is not discretionary in violation of 42 U.S.C. § 

7604(a)(2). 

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B. Second Claim for Relief: CAA - Unreasonable Delay 

43. Plaintiff incorporations all preceding allegations in this Complaint by 

reference. 

44. 42 U.S.C. § 7604(a) provides the district courts of the United States shall 

have jurisdiction to compel agency action unreasonably delayed after a Plaintiff has 

provided the Administrator with 180 days notice before commencing such action. 

45. Guardians petitioned the Administrator to require Utah to revise or remove 

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 of this violation of 

the Clean Air Act. The Administrator has unreasonably delayed ruling on Guardians' 

petition within the meaning of 42 U.S.C. § 7604(a). 

C. Third Claim for Relief: APA - Unreasonable Delay 

46. Plaintiff incorporates all preceding allegations in this Complaint by 

reference. 

47. Pursuant to 5 U.S.c. § 553(e), Guardians petitioned EPA to require 

elimination andlor revision of the 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 delayed responding 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 

judgment providing 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 discretionary under 42 

U.S,C. § 7604(a)(2); 

B. An injunction ordering the Administrator to require Utah to submit a SIP 

revision removing or amending its breakdown exemption by a reasonable deadline, not to 

exceed 18 months, consistent with 42 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 Air Act, 42 

U.S,C. § 7604(a); 

D. An injunction ordering the Administrator to rule on Guardians' Petition 

within 60 days ofthe Court's determination that the Administrator's delay is 

unreasonable; 

E. A declaration that the Administrator's failure to rule on Guardians' 

Petition constitutes agency action unlawfully withheld or unreasonably delayed within 

the meaning ofthe Administrative Procedure Act, 5 U.S.C. §§ 555(b) and 706(1); 

F, An injunction ordering the Administrator to 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 retaining jurisdiction over this matter until such time as the 

Administrator has complied with the Court's Orders; 

H. An order awarding Guardians' its costs of litigation, including reasonable 

attorney's fees; and 

I. Such other and further relief as the Court deems just and proper. 

Respectfully submitted this 3rd day of September 2009. 

s/James J. 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 

Samantha Ruscavage Barz 

17 Orno Creek Road 

Placitas, NM 87043 

Tel: (505) 750-1598 

Samantha. RuscavngeBarz(ci)gmail.com 

Attorneys for Plaintiff Wi/dEarth Guardians 

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