1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

28

ROBERT UKEILEY

Admitted Pro Hac Vice

Law Office of Robert Ukeiley

255 Mountain Meadows Road

Boulder, CO 80302

Tel: (303) 442-4033

rukeiley@igc.org

KRISTIN HENRY (Cal. Bar No. 220908)

Sierra Club 

85 Second Street, 2nd Floor 

San Francisco, CA 94105 

Telephone: (415) 977-5716 

Facsimile: (415) 977-5793

Kristin.Henry@sierraclub.org

Counsel for Plaintiff Sierra Club

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

)

) Case No. 4:14-cv-3198-JSW

)

SIERRA CLUB, ) 

) FIRST AMENDED COMPLAINT 

) FOR DECLARATORY AND

 Plaintiff, ) INJUNCTIVE RELIEF

)

 v. ) 

) (Clean Air Act, 42 U.S.C. §§ 7401 et. seq.)

GINA MCCARTHY, ) 

in her official capacity as Administrator of the )

United States Environmental Protection Agency, )

)

 Defendant. ) 

)

Case4:14-cv-03198-JSW Document29 Filed12/12/14 Page1 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

28

1

FIRST AMENDED COMPLAINT

INTRODUCTION

1. Plaintiff Sierra Club files this first amended complaint to which Defendant has 

consented. Sierra Club brings this Clean Air Act citizen suit to compel the United States 

Environmental Protection Agency (“EPA”) to undertake overdue mandatory duties. 

Specifically, Sierra Club challenges the failure of Defendant, Gina McCarthy, in her official 

capacity as Administrator of the EPA, to perform certain mandatory duties required by the Clean 

Air Act, 42 U.S.C. §§ 7401-7671q. These duties include failure to approve or disapprove under 

42 U.S.C. § 7410(k)(2) - (4) state implementation plan elements submittals from Alabama, 

Arizona, Colorado, Connecticut, Georgia, Idaho, Illinois, Indiana, Iowa, Maryland, Mississippi, 

Montana, Nebraska, New Hampshire, North Carolina, Ohio, Oregon, Rhode Island, South 

Carolina, Texas, Utah, and West Virginia and failure to make a finding of failure to submit a 

state implementation plan element for Tennessee, all for the 2008 ozone National Ambient Air 

Quality Standard.

JURISDICTION

2. This case is a Clean Air Act citizen suit. Therefore, the Court has jurisdiction over this 

action pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and 42 U.S.C. § 7604(a)(2) 

(citizen suits for failure to perform a non-discretionary duty required by the Clean Air Act). 

NOTICE

3. Plaintiff Sierra Club mailed four letters via certified mail, return receipt requested, to 

EPA Administrators stating that Sierra Club intends to sue the EPA Administrators for the 

violations alleged in the original Complaint in this case. Sierra Club mailed via certified mail, 

Case4:14-cv-03198-JSW Document29 Filed12/12/14 Page2 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

28

2

FIRST AMENDED COMPLAINT

return receipt requested, an additional notice of intent to sue letter regarding Iowa, Montana, 

Nebraska, and Utah on August 18, 2014. Sierra Club mailed via certified mail, return receipt 

requested, a final notice of intent to sue letter regarding Kansas and North Dakota on October 8, 

2014. More than sixty days have passed since Sierra Club mailed these notice of intent to sue 

letters. To date, Defendant has not remedied the violations alleged in this First Amended 

Complaint. Therefore, an actual controversy exists.

VENUE

4. Defendant EPA resides in this judicial district. This civil action is brought against an 

officer of the United States acting in her official capacity and a substantial part of the events or 

omissions giving rise to the claims in this case occurred in the Northern District of California. In 

addition, Plaintiff Sierra Club is headquartered in San Francisco and Sierra Club’s counsel is 

located in San Francisco. Therefore, venue is proper in this Court pursuant to 28 U.S.C. § 

1391(e).

INTRADISTRICT ASSIGNMENT

5. A substantial part of the events and omissions giving rise to the claims in this case 

occurred in the County of San Francisco. Accordingly, assignment to the San Francisco 

Division or the Oakland Division is proper pursuant to Civil L.R. 3-2(c) and (d).

PARTIES

6. Plaintiff SIERRA CLUB is a national grassroots nonprofit conservation organization 

formed in 1892. 

Case4:14-cv-03198-JSW Document29 Filed12/12/14 Page3 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

28

3

FIRST AMENDED COMPLAINT

7. Sierra Club’s purpose includes practicing and promoting the responsible use of earth’s 

ecosystems and resources, and protecting and restoring the quality of the natural and human 

environment. Sierra Club has over 600,000 members nationally. 

8. Members and staffs of Sierra Club live, work, recreate, and travel throughout the States 

at issue in this case and will continue to do so on a regular basis. Ozone in the affected States 

threatens and damages, and will continue to threaten and damage, the health and welfare of 

Plaintiff’s staffs and members. Ozone diminishes Sierra Club staff’s and members’ability to 

enjoy the aesthetic qualities and recreational opportunities of the respective areas. 

9. EPA’s failure to timely perform the mandatory duties described herein also adversely 

affect Sierra Club, as well as its staff and members, by depriving them of procedural protection 

and opportunities, as well as information that they are entitled to under the Clean Air Act. The 

failure of EPA to perform the mandatory duties also creates uncertainty for Sierra Club’s staff 

and members as to whether they are exposed to excess air pollution.

10. The above injuries will continue until the Court grants the relief requested herein.

11. Defendant Gina McCarthy is the Administrator of the United States Environmental 

Protection Agency. In that role Administrator McCarthy has been charged by Congress with the 

duty to administer the Clean Air Act, including the mandatory duties at issue in this case.

LEGAL BACKGROUND

12. Congress enacted the Clean Air Act to “speed up, expand, and intensify the war against 

air pollution in the United States with a view to assuring that the air we breathe throughout the 

Nation is wholesome once again.” H.R.Rep. No. 1146, 91st Cong., 2d Sess. 1,1, 1970 U.S.Code 

Cong. & Admin. News 5356, 5356. To promote this, the Clean Air Act requires EPA to set 

Case4:14-cv-03198-JSW Document29 Filed12/12/14 Page4 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

28

4

FIRST AMENDED COMPLAINT

National Ambient Air Quality Standards establishing maximum allowable concentrations for 

certain pollutants, including ozone. 

13. Adverse impacts arise from ground-level ozone (“ozone”) pollution, commonly referred 

to as smog. Exposure to ozone pollution causes numerous impacts to human respiratory 

systems, including asthma, pneumonia, and bronchitis, and can result in the permanent scarring 

of lung tissue. Moreover, the detrimental effects extend beyond public health. Ozone pollution 

also interferes with vegetation’s ability to function properly. This interference results in injuries 

such as decreased crop yields and damage to native ecosystems.

14. The Clean Air Act requires each state to submit a state implementation plan for every 

promulgation or revision of a National Ambient Air Quality Standard, within three years of that 

standard’s promulgation or revision, that provides for the “implementation, maintenance, and 

enforcement” of the standard. 42 U.S.C. § 7410(a)(1). These are often referred to as 

“Infrastructure” state implementation plans. An Infrastructure state implementation plan 

submittal must meet the requirements listed under 42 U.S.C. § 7410(a)(2). See 42 U.S.C. §§ 

7410(a)(2)(A)-(M).

15. The Clean Air Act requires EPA to determine whether any state implementation plan 

submittal is administratively complete. 42 U.S.C. 7410(k)(1)(B). EPA must make this 

determination by “no later than 6 months after the date, if any, by which a State is required to 

submit the plan or revision.” Id.

16. EPA has a mandatory duty to take final action on any administratively complete state 

implementation plan submittal by approving in full, disapproving in full, or approving in part 

and disapproving in part, or conditionally approving, within 12 months of the date the submittal 

is deemed administratively complete. 42 U.S.C. § 7410(k)(2), (3) and (4).

Case4:14-cv-03198-JSW Document29 Filed12/12/14 Page5 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

28

5

FIRST AMENDED COMPLAINT

17. If a state fails to submit any required state implementation plan, there is no submittal that 

may be deemed administratively complete, and EPA must make a determination stating that the 

state failed to submit the required state implementation plan. 42 U.S.C. § 7410(k)(1)(B). This is 

referred to as a “finding of failure to submit.”

CLAIMS FOR RELIEF

CLAIM ONE

(EPA’s Failure to find that Tennessee has not Submitted an 110(a)(2)(D)(i)(I) element of a 2008 

ozone National Ambient Air Quality Standards Infrastructure State Implementation Plan) 

18. Plaintiff incorporates by reference paragraphs 1 through 17.

19. Pursuant to the Clean Air Act, each state must submit an “Infrastructure” state 

implementation plan that provides for the “implementation, maintenance, and enforcement” of a 

National Ambient Air Quality Standard within three years of a standard’s promulgation or 

revision. 42 U.S.C. § 7410(a)(1). 

20. The Clean Air Act requires EPA to determine whether a state implementation plan 

submittal is administratively complete. See 42 U.S.C. 7410(k)(1)(B). 

21. If a state fails to submit any required state implementation plan, there is no submittal that 

may be deemed administratively complete. Therefore EPA must make a determination stating 

that the state failed to submit the required state implementation plan. See 42 U.S.C. § 

7410(k)(1)(B). This is referred to as a “finding of failure to submit.”

22. Thus, if a state does not submit a state implementation plan, EPA must make a finding of 

failure to submit no later than six months after the date by which the state implementation plan 

submittal was due. See 42 U.S.C. § 7410(k)(1)(B).

Case4:14-cv-03198-JSW Document29 Filed12/12/14 Page6 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

28

6

FIRST AMENDED COMPLAINT

23. On March 12, 2008, the EPA promulgated National Ambient Air Quality Standards for 

ozone. 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.

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

SIPs to attain and maintain the National Ambient Air Quality Standards within three years of the 

promulgation or revision of a National Ambient Air Quality Standard. See 42 U.S.C. § 

7410(a)(1). In assuring that SIPs attain and maintain the National Ambient Air Quality 

Standards 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). 

25. States must submit Infrastructure SIPs for the 2008 ozone National Ambient Air Quality 

Standards by no later than March 12, 2011. See 73 Fed. Reg. 16436, 16503 (March 27, 2008). 

See also

http://www.epa.gov/air/urbanair/sipstatus/reports/al_infrabypoll.html#x110_a__2__ozone__200

8_

26. The state of Tennessee originally submitted a 2008 ozone infrastructure SIP to cover 

Clean Air Act 110(a)(2)(D)(i)(I). However, via a July 3, 2012 letter, Tennessee withdrew this 

submittal. Therefore, it is currently after September 27, 2011, Tennessee does not have a 2008 

ozone infrastructure SIP 110(a)(2)(D)(i)(I) submittal and EPA has not made a finding of failure 

to submit this element.

27. 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). Thus, EPA must make findings of failure to submit 

Case4:14-cv-03198-JSW Document29 Filed12/12/14 Page7 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

28

7

FIRST AMENDED COMPLAINT

SIPs for the 2008 ozone National Ambient Air Quality Standards by no later than September 12, 

2011. 

28. EPA has not made a finding that Tennessee failed to submit the 110(a)(2)(D)(i)(I) 

element of an Infrastructure SIP for the 2008 ozone National Ambient Air Quality Standard.

29. Thus, EPA is in violation of its mandatory duty with regard to Tennessee for the 

110(a)(2)(D)(i)(I) element.

CLAIM TWO

(EPA Failure to Take Final Action on States’ Infrastructure State Implementation Plan 

Submittals.)

30. Plaintiff incorporates by reference paragraphs 1 through 29.

31. The Clean Air Act requires EPA to determine whether any state implementation plan 

submittal is administratively complete. See 42 U.S.C. 7410(k)(1)(B). 

32. If, six months after a state submits a state implementation plan, EPA has not made the 

completeness finding and has not found the submittal to be incomplete, the submittal is deemed 

administratively complete by operation of law. Id.

33. EPA must take final action on an administratively complete submittal by approving in 

full, disapproving in full, approving in part and disapproving in part or conditionally approving 

within 12 months of the date of the submittal’s completeness finding. 42 U.S.C. § 7410(k)(2) -

(4).

34. EPA has failed to take final action on Alabama’s infrastructure state implementation plan 

submittal for the 2008 ozone 8-hour NAAQS 110(a)(2)(A) – (C), (D)(i)(II)-(H), (J) – (M) 

elements. By no later than December 14, 2012, either EPA or operation of law deemed 

Alabama’s state implementation plan submittal that included the infrastructure requirements 

under 42 U.S.C. § 7410(a)(2)(A) – (C), (D)(i)(II)-(H), (J) – (M) administratively complete. See 

EPA, Status of State SIP Infrastructure Requirements—Alabama (available at 

Case4:14-cv-03198-JSW Document29 Filed12/12/14 Page8 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

28

8

FIRST AMENDED COMPLAINT

http://www.epa.gov/air/urbanair/sipstatus/reports/al_infrabypoll.html#x110_a__2__ozone__200

8_ (last viewed July 14, 2014). 

35. Under the Clean Air Act, EPA is required to take final action on Alabama’s submittal 

that addresses these infrastructure requirements by approving in full, disapproving in full, or 

approving in part and disapproving in part by no later than December 14, 2013. See 42 U.S.C. § 

7410(k)(2) - (4). 

36. EPA has failed to do so.

37. EPA has failed to take final action on Arizona’s infrastructure state implementation plan 

submittal for the 2008 ozone 8-hour NAAQS 110(a)(2)(A) – (H), (J) – (M) elements except for 

elements 110(a)(2)(C), (J), and (D)(i)(II) to the extent these elements refer to the Prevention of 

Significant Deterioration (PSD) requirements in Maricopa County, Pima County, and Pinal County, 

110(a)(2)(D)(ii) to the extent it refers to notification to other states for sources in these three 

counties, and element 110(a)(2)(K) for these three counties. By no later than January 4, 2013, 

either EPA or operation of law deemed Arizona’s state implementation plan submittal that 

included the infrastructure requirements under 42 U.S.C. § 7410(a)(2)(A) – (H), (J) – (M) 

elements except for elements 110(a)(2)(C), (J), and (D)(i)(II) to the extent these elements refer to 

the Prevention of Significant Deterioration (PSD) requirements in Maricopa County, Pima County, 

and Pinal County, 110(a)(2)(D)(ii) to the extent it refers to notification to other states for sources in 

these three counties, and element 110(a)(2)(K) for these three counties administratively complete. 

See Answer [Dk.# 23] at ¶43. 

38. Under the Clean Air Act, EPA is required to take final action on Arizona’s submittal that 

addresses these infrastructure elements by approving in full, disapproving in full, or approving in 

part and disapproving in part by no later than January 4, 2014. See 42 U.S.C. § 7410(k)(2) - (4). 

39. EPA has failed to do so.

40. EPA has failed to take final action on Colorado’s infrastructure state implementation plan 

submittal for the 2008 ozone 8-hour NAAQS 110(a)(2)(A) – (H), (J) – (M) elements. By no 

later than January 2, 2013, either EPA or operation of law deemed Colorado’s state 

implementation plan submittal that included the infrastructure requirements under 42 U.S.C. § 

Case4:14-cv-03198-JSW Document29 Filed12/12/14 Page9 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

28

9

FIRST AMENDED COMPLAINT

7410(a)(2)(A) – (H), (J) – (M) administratively complete. See EPA, Status of State SIP 

Infrastructure Requirements—Colorado (available at 

http://www.epa.gov/air/urbanair/sipstatus/reports/co_infrabypoll.html#x110_a__2__ozone__200

8_

(last viewed July 14, 2014). 

41. Under the Clean Air Act, EPA is required to take final action on Colorado’s submittal 

that addresses these infrastructure elements by approving in full, disapproving in full, or 

approving in part and disapproving in part by no later than January 2, 2014. See 42 U.S.C. § 

7410(k)(2) - (4). 

42. EPA has failed to do so.

43. EPA has failed to take final action on Connecticut’s infrastructure state implementation 

plan submittal for the 2008 ozone 8-hour NAAQS 110(a)(2)(A) – (C), (D)(i)(II), (D)(ii), (E) –

(H), (J) - (M) elements. By no later than January 3, 2013, either EPA or operation of law 

deemed Connecticut’s state implementation plan submittal that included the infrastructure 

elements under 42 U.S.C. § 7410(a)(2)(A) – (C), (D)(i)(II), (D)(ii), (E) – (H), (J) - (M) 

administratively complete. See EPA, Status of State SIP Infrastructure Requirements—

Connecticut (available at 

http://www.epa.gov/air/urbanair/sipstatus/reports/ct_infrabypoll.html#x110_a__2__ozone__200

8_

(last viewed July 14, 2014). 

44. Under the Clean Air Act, EPA is required to take final action on Connecticut’s submittal 

that addresses these infrastructure elements by approving in full, disapproving in full, or 

approving in part and disapproving in part by no later than January 3, 2014. See 42 U.S.C. § 

7410(k)(2) - (4). 

45. EPA has failed to do so.

46. EPA has failed to take final action on Georgia’s infrastructure state implementation plan 

submittal for the 2008 ozone 8-hour NAAQS. By no later than September 6, 2012, either EPA 

or operation of law deemed Georgia’s state implementation plan submittal that included the 

Case4:14-cv-03198-JSW Document29 Filed12/12/14 Page10 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

28

10

FIRST AMENDED COMPLAINT

infrastructure elements under 42 U.S.C. § 7410(a)(2)(A) – (C), (D)(i)(II) - (H), (J)-(M) 

administratively complete. See EPA, Status of State SIP Infrastructure Requirements—Georgia 

(available at 

http://www.epa.gov/air/urbanair/sipstatus/reports/ga_infrabypoll.html#x110_a__2__ozone__200

8_ (last viewed Dec. 18, 2013). 

47. Under the Clean Air Act, EPA is required to take final action on Georgia’s submittal by 

approving in full, disapproving in full, or approving in part and disapproving in part by no later 

than September 6, 2013. See 42 U.S.C. § 7410(k)(2) - (4). 

48. EPA has failed to do so.

49. EPA has failed to take final action on an Idaho submittal of the infrastructure state 

implementation plan for the 2008 ozone NAAQS. By no later than September 15, 2008, June 

25, 2010, and October 25, 2010, Idaho submitted to EPA a SIP submittal intended to meet the 

infrastructure elements for the 2008 ozone NAAQS including Section 110(a)(2)(D)(i)(I). See

WildEarth Guardians v. EPA, 11-cv-5651-YGR (N.D.Cal.), “Defendant’s Statement of Material 

Facts in Support of Cross-Motion for Summary Judgment,” Dk. No. 44-3, Fact 2. Either EPA or 

operation of law deemed these submittals administratively complete by no later than April 25, 

2011. 

50. The Clean Air Act requires EPA to take final action by approving in full, disapproving in 

full, or approving in part and disapproving in part Idaho’s submittals by no later than April 25, 

2012. 42 U.S.C. § 7410(k)(2) - (4). 

51. EPA has failed to do so for Section 110(a)(2)(D)(i)(I).

52. EPA has failed to take final action on Illinois’ infrastructure state implementation plan 

submittal for the 2008 ozone 8-hour NAAQS. By no later than January 2, 2013, either EPA or 

operation of law deemed Illinois’ state implementation plan submittal that included the 

infrastructure elements under 42 U.S.C. § 7410(a)(2)(A), (E), & (J) (visibility) administratively 

complete. See EPA, Status of State SIP Infrastructure Requirements—Illinois (available at 

http://www.epa.gov/air/urbanair/sipstatus/reports/il_infrabypoll.html#x110_a__2__ozone__2008

_ (last viewed April 21, 2014). See also 79 Fed. Reg. 62,042, 62,046 (Oct. 16, 2014). 

Case4:14-cv-03198-JSW Document29 Filed12/12/14 Page11 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

28

11

FIRST AMENDED COMPLAINT

53. Under the Clean Air Act, EPA is required to take final action on this Illinois submittal by 

approving in full, disapproving in full, or approving in part and disapproving in part by no later 

than January 2, 2014. See 42 U.S.C. § 7410(k)(2) - (4). 

54. EPA has failed to do so.

55. EPA has failed to take final action on Indiana’s infrastructure state implementation plan 

submittal for the 2008 ozone 8-hour NAAQS. By no later than June 12, 2012, either EPA or 

operation of law deemed Indiana’s state implementation plan submittal that included the 

infrastructure elements under 42 U.S.C. § 7410(a)(2)(A) – (H), (J)-(M) administratively 

complete. See EPA, Status of State SIP Infrastructure Requirements—Indiana (available at 

http://www.epa.gov/air/urbanair/sipstatus/reports/in_infrabypoll.html#x110_a__2__ozone__200

8__ (last viewed Dec. 18, 2013). 

56. Under the Clean Air Act, EPA is required to take final action on this Indiana submittal by 

approving in full, disapproving in full, or approving in part and disapproving in part by no later 

than June 12, 2013. See 42 U.S.C. § 7410(k)(2) - (4). 

57. EPA has failed to do so.

58. EPA has failed to take final action on Iowa’s infrastructure state implementation plan 

submittal for the 2008 ozone 8-hour NAAQS. By no later than July 17, 2013, either EPA or 

operation of law deemed Iowa’s state implementation plan submittal that included the 

infrastructure elements under 42 U.S.C. § 7410(a)(2)(A) – (C), (D)(i)(II), (D)(ii), (E)-(H), (J)-

(M) administratively complete. See EPA, Status of State SIP Infrastructure Requirements—

Indiana (available 

athttp://www.epa.gov/air/urbanair/sipstatus/reports/ia_infrabypoll.html#x110_a__2__ozone__20

08_ (last viewed Nov. 24, 2014). 

59. Under the Clean Air Act, EPA is required to take final action on this Iowa submittal by 

approving in full, disapproving in full, or approving in part and disapproving in part by no later 

than July 17, 2014. See 42 U.S.C. § 7410(k)(2) - (4). 

60. EPA has failed to do so.

Case4:14-cv-03198-JSW Document29 Filed12/12/14 Page12 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

28

12

FIRST AMENDED COMPLAINT

61. EPA has failed to take final action on part of Kansas’ infrastructure state implementation 

plan submittal for the 2008 ozone 8-hour NAAQS. By no later than September 19, 2013, either 

EPA or operation of law deemed Kansas’ state implementation plan submittal that included the 

infrastructure elements under 42 U.S.C. § 7410(a)(2)(J)(visibility) administratively complete. 

63. Under the Clean Air Act, EPA is required to take final action on Kansas’ submittal by 

approving in full, disapproving in full, or approving in part and disapproving in part by no later 

than September 19, 2014. See 42 U.S.C. § 7410(k)(2) - (4). 

64. EPA has failed to do so.

65. EPA has failed to take final action on Maryland’s infrastructure state implementation 

plan submittal for the 2008 ozone 8-hour NAAQS. By no later than January 2, 2013, either EPA 

or operation of law deemed Maryland’s state implementation plan submittal that included the 

infrastructure elements under 42 U.S.C. § 7410(a)(2)(D)(i)(I) administratively complete. See 

EPA, Status of State SIP Infrastructure Requirements—Maryland (available at 

http://www.epa.gov/air/urbanair/sipstatus/reports/il_infrabypoll.html#x110_a__2__ozone__2008

_ (last viewed Nov. 24, 2014). 

66. Under the Clean Air Act, EPA is required to take final action on this Maryland submittal 

by approving in full, disapproving in full, or approving in part and disapproving in part by no 

later than January 2, 2014. See 42 U.S.C. § 7410(k)(2) - (4). 

67. EPA has failed to do so.

68. EPA has failed to take final action on Mississippi’s infrastructure state implementation 

plan submittal for the 2008 ozone 8-hour NAAQS. By no later than December 18, 2012, either 

EPA or operation of law deemed Mississippi’s state implementation plan submittal that included 

the infrastructure elements under 42 U.S.C. § 7410(a)(2)(A) – (C), (D)(i)(II) - (H), (J)-(M) 

administratively complete. See EPA, Status of State SIP Infrastructure Requirements—

Mississippi (available at 

http://www.epa.gov/air/urbanair/sipstatus/reports/ms_infrabypoll.html#x110_a__2__ozone__20

08_ (last viewed November 24, 2014). 

Case4:14-cv-03198-JSW Document29 Filed12/12/14 Page13 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

28

13

FIRST AMENDED COMPLAINT

69. Under the Clean Air Act, EPA is required to take final action on this Mississippi 

submittal by approving in full, disapproving in full, or approving in part and disapproving in part 

by no later than December 18, 2013. See 42 U.S.C. § 7410(k)(2) - (4). 

70. EPA has failed to do so.

71. EPA has failed to take final action on Montana’s infrastructure state implementation plan 

submittal for the 2008 ozone 8-hour NAAQS. By no later than July 8, 2013, either EPA or 

operation of law deemed Montana’s state implementation plan submittal that included the 

infrastructure elements under 42 U.S.C. § 7410(a)(2)(A) – (C), (D)(i)(II) - (H), (J) - (M) 

administratively complete. See EPA, Status of State SIP Infrastructure Requirements—Montana 

(available at 

http://www.epa.gov/air/urbanair/sipstatus/reports/mt_infrabypoll.html#x110_a__2__ozone__200

8_ (last viewed Nov. 24, 2014). 

72. Under the Clean Air Act, EPA is required to take final action on this Montana submittal 

by approving in full, disapproving in full, or approving in part and disapproving in part by no 

later than July 8, 2014. See 42 U.S.C. § 7410(k)(2) - (4). 

73. EPA has failed to do so.

74. EPA has failed to take final action on Nebraska’s infrastructure state implementation plan 

submittal for the 2008 ozone 8-hour NAAQS. By no later than August 11, 2013, either EPA or 

operation of law deemed Nebraska’s state implementation plan submittal that included the 

infrastructure elements under 42 U.S.C. § 7410(a)(2)(A) – (H), (J) - (M) administratively 

complete. See EPA, Status of State SIP Infrastructure Requirements—Nebraska (available at 

http://www.epa.gov/air/urbanair/sipstatus/reports/ne_infrabypoll.html#x110_a__2__ozone__200

8_ )(last viewed Nov. 24, 2014). 

75. Under the Clean Air Act, EPA is required to take final action on this Nebraska submittal 

by approving in full, disapproving in full, or approving in part and disapproving in part by no 

later than August 11, 2014. See 42 U.S.C. § 7410(k)(2) - (4). 

76. EPA has failed to do so.

Case4:14-cv-03198-JSW Document29 Filed12/12/14 Page14 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

28

14

FIRST AMENDED COMPLAINT

77. EPA has failed to take final action on North Carolina’s infrastructure state 

implementation plan submittal for the 2008 ozone 8-hour NAAQS. By not later than November 

15, 2012, either EPA or operation of law deemed North Carolina’s state implementation plan 

submittal that included the infrastructure elements under 42 U.S.C. § 7410(a)(2)(A) – (C), 

(D)(i)(II) - (H), (J)-(M) administratively complete. See EPA, Status of State SIP Infrastructure 

Requirements—North Carolina (available at 

http://www.epa.gov/air/urbanair/sipstatus/reports/nc_infrabypoll.html#x110_a__2__ozone__200

8_ (last viewed November 15, 2014). 

78. Under the Clean Air Act, EPA is required to take final action on this North Carolina 

submittal by approving in full, disapproving in full, or approving in part and disapproving in part 

by no later than November 15, 2013. See 42 U.S.C. § 7410(k)(2) - (4). 

79. EPA has failed to do so.

80. EPA has failed to take final action on North Dakota’s infrastructure state implementation 

plan submittal for the 2008 ozone 8-hour NAAQS. By not later than September 8, 2013, either 

EPA or operation of law deemed North Dakota’s state implementation plan submittal that 

included the infrastructure elements under 42 U.S.C. § 7410(a)(2)(A) – (H), (J)-(M) 

administratively complete. See EPA, Status of State SIP Infrastructure Requirements—North 

Dakota (available at 

http://www.epa.gov/air/urbanair/sipstatus/reports/nd_infrabypoll.html#x110_a__2__ozone__200

8_ )(last viewed Nov. 24, 2014). 

81. Under the Clean Air Act, EPA is required to take final action on this North Dakota

submittal by approving in full, disapproving in full, or approving in part and disapproving in part 

by no later than September 8, 2014. See 42 U.S.C. § 7410(k)(2) - (4). 

82. EPA has failed to do so.

83. EPA has failed to take final action on New Hampshire’s infrastructure state 

implementation plan submittal for the 2008 ozone 8-hour NAAQS. By not later than January 3, 

2013, either EPA or operation of law deemed New Hampshire’s state implementation plan 

submittal that included the infrastructure elements under 42 U.S.C. § 7410(a)(2)(A) – (C), 

Case4:14-cv-03198-JSW Document29 Filed12/12/14 Page15 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

28

15

FIRST AMENDED COMPLAINT

(D)(i)(II) - (H), (J)-(M) administratively complete. See EPA, Status of State SIP Infrastructure 

Requirements—New Hampshire (available at 

http://www.epa.gov/air/urbanair/sipstatus/reports/nh_infrabypoll.html#x110_a__2__ozone__200

8_ (last viewed November 24, 2014). 

84. Under the Clean Air Act, EPA is required to take final action on this New Hampshire 

submittal by approving in full, disapproving in full, or approving in part and disapproving in part 

by no later than January 3, 2014. See 42 U.S.C. § 7410(k)(2) - (4). 

85. EPA has failed to do so.

86. EPA has failed to take final action on Ohio’s infrastructure state implementation plan 

submittal for the 2008 ozone 8-hour NAAQS. By not later than January 3, 2013, either EPA or 

operation of law deemed Ohio’s state implementation plan submittal that included the 

infrastructure elements under 42 U.S.C. § 7410(a)(2)(C) (PSD), (D)(i)(I) (prongs 1 and 2),

(D)(i)(II) (Prongs 3 and 4) & (J) (PSD and visibility) administratively complete. See EPA, Status 

of State SIP Infrastructure Requirements—Ohio (available at 

http://www.epa.gov/air/urbanair/sipstatus/reports/oh_infrabypoll.html#x110_a__2__ozone__200

8_ (last viewed Nov. 24, 2014). See also 79 Fed. Reg. 62,019, 62,021 (Oct. 16, 2014). 

87. Under the Clean Air Act, EPA is required to take final action on this Ohio submittal by 

approving in full, disapproving in full, or approving in part and disapproving in part by no later 

than January 3, 2014. See 42 U.S.C. § 7410(k)(2) - (4). 

88. EPA has failed to do so.

89. EPA has failed to take final action on an Oregon submittal of certain requirements of the 

infrastructure state implementation plan for the 2008 ozone NAAQS. By no later than June 23, 

2010, Oregon submitted to EPA a SIP submittal intended to meet the 110(a)(2)(D)(i)(I) element 

of the infrastructure requirements for the 2008 ozone NAAQS. See WildEarth Guardians v. 

EPA, 11-cv-5651-YGR (N.D. Cal.), “Defendant’s Statement of Material Facts in Support of 

Cross-Motion for Summary Judgment,” Dk. No. 44-3, Fact 4. Either EPA or operation of law 

deemed this Oregon submittal administratively complete by no later than December 23, 2010. 

Case4:14-cv-03198-JSW Document29 Filed12/12/14 Page16 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

28

16

FIRST AMENDED COMPLAINT

90. The Clean Air Act requires EPA to take final action by approving in full, disapproving in 

full, or approving in part and disapproving in part Oregon’s 110(a)(2)(D)(i)(I) submittal by no 

later than December 23, 2011. 42 U.S.C. § 7410(k)(2) - (4). 

91. EPA has failed to do so.

92. EPA has failed to take final action on Rhode Island’s infrastructure state implementation 

plan submittal for the 2008 ozone 8-hour NAAQS. By no later than January 3, 2013, either EPA 

or operation of law deemed Rhode Island’s state implementation plan submittal that included the 

infrastructure elements under 42 U.S.C. § 7410(a)(2)(A) – (C), (D)(i)(II), (D)(ii), (E) – (H), (J) –

(M) administratively complete. See EPA, Status of State SIP Infrastructure Requirements—

Rhode Island (available at 

http://www.epa.gov/air/urbanair/sipstatus/reports/ri_infrabypoll.html#x110_a__2__ozone__2008

_ (last viewed July 14, 2014). 

93. Under the Clean Air Act, EPA is required to take final action on this submittal by 

approving in full, disapproving in full, or approving in part and disapproving in part by no later 

than January 3, 2014. See 42 U.S.C. § 7410(k)(2) - (4). 

94. EPA has failed to do so.

95. EPA has failed to take final action on South Carolina’s infrastructure state 

implementation plan submittal for the 2008 ozone 8-hour NAAQS. By no later than April 24, 

2012, either EPA or operation of law deemed South Carolina’s state implementation plan 

submittal that included the infrastructure elements under 42 U.S.C. § 7410(a)(2)(A) – (C), 

(D)(i)(II) - (H), (J) - (M) administratively complete. See EPA, Status of State SIP Infrastructure 

Requirements—South Carolina (available at 

http://www.epa.gov/air/urbanair/sipstatus/reports/sc_infrabypoll.html#x110_a__2__ozone__200

8_ (last viewed November 24, 2014). 

96. Under the Clean Air Act, EPA is required to take final action on this South Carolina 

submittal by approving in full, disapproving in full, or approving in part and disapproving in part 

by no later than April 24, 2013. See 42 U.S.C. § 7410(k)(2) and (3). 

97. EPA has failed to do so.

Case4:14-cv-03198-JSW Document29 Filed12/12/14 Page17 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

28

17

FIRST AMENDED COMPLAINT

98. EPA has failed to take final action on Texas’ infrastructure state implementation plan 

submittal for the 2008 ozone 8-hour NAAQS. By no later than December 20, 2012, either EPA 

or operation of law deemed Texas’ state implementation plan submittal that included the 

infrastructure elements under 42 U.S.C. § 7410(a)(2)(A) – (H), (J) - (M) administratively 

complete. See EPA, Status of State SIP Infrastructure Requirements—Texas (available at 

http://www.epa.gov/air/urbanair/sipstatus/reports/tx_infrabypoll.html#x110_a__2__ozone__200

8_ (last viewed July 14, 2014). 

99. Under the Clean Air Act, EPA is required to take final action on this Texas submittal by 

approving in full, disapproving in full, or approving in part and disapproving in part by no later 

than December 20, 2013. See 42 U.S.C. § 7410(k)(2) - (4). 

100. EPA has failed to do so.

101. EPA has failed to take final action on Utah’s infrastructure state implementation plan 

submittal for the 2008 ozone 8-hour NAAQS. By no later than July 31, 2013, either EPA or 

operation of law deemed Utah’s state implementation plan submittal that included the 

infrastructure elements under 42 U.S.C. § 7410(a)(2)(A) – (H), (J) - (M) administratively 

complete. See EPA, Status of State SIP Infrastructure Requirements—Utah (available at 

http://www.epa.gov/air/urbanair/sipstatus/reports/ut_infrabypoll.html#x110_a__2__ozone__200

8_ (last viewed November 24, 2014). 

102. Under the Clean Air Act, EPA is required to take final action on this Utah submittal by 

approving in full, disapproving in full, or approving in part and disapproving in part by no later 

than July 31, 2014. See 42 U.S.C. § 7410(k)(2) - (4). 

103. EPA has failed to do so.

104. EPA has failed to take final action on West Virginia’s infrastructure state implementation 

plan submittal for the 2008 ozone 8-hour NAAQS. By no later than August 22, 2012, either 

EPA or operation of law deemed West Virginia’s state implementation plan submittal that 

included the infrastructure element Section 110(a)(2)(E)(ii) administratively complete. See

Answer [Dk.#23] at ¶97. 

Case4:14-cv-03198-JSW Document29 Filed12/12/14 Page18 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

28

18

FIRST AMENDED COMPLAINT

105. Under the Clean Air Act, EPA is required to take final action on this West Virginia 

submittal by approving in full, disapproving in full, or approving in part and disapproving in part 

by no later than August 22, 2013. See 42 U.S.C. § 7410(k)(2) - (4). 

106. EPA has failed to do so.

REQUEST FOR RELIEF

WHEREFORE, Sierra Club respectfully requests that the Court:

A. Declare that the Administrator is in violation of the Clean Air Act with regard to her 

failure to perform each mandatory duty listed above;

B. Issue a mandatory injunction requiring the Administrator to perform her mandatory 

duties by certain dates;

C. Retain jurisdiction of this matter for purposes of enforcing the Court’s order;

D. Grant Sierra Club its reasonable costs of litigation, including attorneys’ and experts’ fees; 

and

E. Grant such further relief as the Court deems just and proper.

Respectfully submitted,

/s Robert Ukeiley

ROBERT UKEILEY

Admitted Pro Hac Vice

Law Office of Robert Ukeiley

255 Mountain Meadows Road

Boulder, CO 80302

Tel: 303-442-4033

rukeiley@igc.org

Kristin Henry (Cal. Bar No. 220908)

Sierra Club 

85 Second Street, 2nd Floor 

San Francisco, CA 94105 

Case4:14-cv-03198-JSW Document29 Filed12/12/14 Page19 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

28

19

FIRST AMENDED COMPLAINT

Telephone: (415) 977-5716 

Facsimile: (415) 977-5793

Kristin.Henry@sierraclub.org

Counsel for Plaintiff Sierra Club

Dated: December 11, 2014

Case4:14-cv-03198-JSW Document29 Filed12/12/14 Page20 of 20