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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 201
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FIRST AMENDED COMPLAINT INTRODUCTION
1. Plaintiff Sierra Club files this first amended complaint to which Defendant has
consented. Sierra Club bring s this Clean Air Act citizen suit to compel the United States Environmental Protection Agency (“EPA”) to undertake overdue mandatory duties. Specifically, Sierra Club c hallenge s 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 includ e failure to approve or disapprove under 42 U.S.C. § 7410(k)(2)

- ( 4 ) state implementation plan elements submittals fr om 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 Clea n Air Act).

NOTICE
3. Plaintiff Sierra Club mailed four letter s via certified mail, return receipt requested , to
EPA Administrators stating that Sierra Club intend s to sue the EPA Administrators for the violations alleged in th e original Complaint in this case

. Sierra Club mailed via certified mail, Case4:14-cv-03198-JSW Document29 Filed12/12/14 Page2 of 201
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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
letter s
. To date, Defendant has not remedied the violations alleged in th is First Amended Complaint. Therefore, an actual contr oversy 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 18 9 2. Case4:14-cv-03198-JSW Document29 Filed12/12/14 Page3 of 201
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28 3
FIRST AMENDED COMPLAINT 7. Sierra Club’s purpose includes practicing and pr omoting 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 60 0,000 members nationally.
8. Members and staff s of Sierra Club live, work, recreate, a nd travel throughout the States
at issue in this case and will continue to do so on a regular basis. Ozone in the affected S tates
threatens and damages , and will continue to threaten and damage , the health and welfare of
Plaintiff’ s staff s 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 Sierr a 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 201
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28 4
FIRST AMENDED COMPLAINT National Ambient Air Quality Standards establishing maximum allowable concentrations for

cer tain pollutants, including ozone

. 13. Adverse impacts arise from ground

- level ozone (“ozone”) pollut ion, commonly referred to as smog. Exposure to ozone pollution causes numerous impacts to human respiratory system s , including asthma, pneumonia, and bronchitis, and can result in the permanent scarring of lung tissue. Moreover, the detrimental effects e xtend 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 st andard. 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 201
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28 5
FIRST AMENDED COMPLAINT 17

. I f a state fails to submit any required state implementation plan, there is no submi ttal 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.”

CLAIM S FOR RELIEF
CLAIM ONE (EPA’s Failure to find that Tennessee ha s not Submitted an 110(a)(2)(D)(i)(I) element of a 2008 ozone National Ambient Air Quality Standards Infrastructure State Implementation Plan )

1 8

. Plaintiff incorporate s by reference p aragraphs 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 yea rs 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. §
741 0(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 p lan
submittal was due. See 42 U.S.C. § 7410(k)(1)(B). Case4:14-cv-03198-JSW Document29 Filed12/12/14 Page6 of 201
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28 6
FIRST AMENDED COMPLAINT 23

. On March 12, 2008, the EPA prom ulgated 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 m ore than 0.075 parts per million over an 8

- hour period. See 40 C.F.R. §
50.15.
2 4

. 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 the ir 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, EP A must make findings of failure to submit Case4:14-cv-03198-JSW Document29 Filed12/12/14 Page7 of 201
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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 T WO ( EPA Failure to Take Final Action on States’ Infrastructure State Implementation Plan Submittals. )
30

. Plaintiff incorporate s by reference paragraphs 1 through 29

. 3 1

. 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 completenes s 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, ap proving 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 implementatio n 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 infrastructu re 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 201
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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 par t 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. 3 7

. EPA has failed to take final action on A rizona ’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 , 201 3 , either EPA or operation of law deemed A rizona ’s state implementa tion 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 Deteriorat ion (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 comp lete. See Answer [Dk.# 23] at ¶43

. 38

. Under the Clean Air Act, EPA is required to take final action on A rizona ’s submittal that addresses these infrastructure element s by approving in full, disapproving in full, or approving in part and disapproving in p art by no later than January 4 , 201 4

. See 42 U.S.C. § 7410(k)(2)

- ( 4 ). 39

. EPA has failed to do so. 4 0

. 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 201
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28 9
FIRST AMENDED COMPLAINT 7410(a)(2)(A)

– (H), (J)

– (M) administratively c omplete. 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). 4 1

. Under the Clean Air Act, EPA is requir ed to take final action on Colorado’s submittal that addresses these infrastructure element s 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 ). 4 2

. EPA has failed to do so. 4 3

. 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 J anuary 3, 2013, either EPA or operation of law deemed Co nnecticut ’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 element s 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 ). 4 5

. 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 implem entation plan submittal that included the Case4:14-cv-03198-JSW Document29 Filed12/12/14 Page10 of 201
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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 p art 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 ozo ne 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 element s 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. 5 0

. 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 fai led 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 element s 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 201
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28 11
FIRST AMENDED COMPLAINT 53

. Under the Clean Ai r 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 s o. 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 element s 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_infrabyp oll.html#x110_a__2__ozone__200 8__ (last viewed Dec. 18, 2013). 5 6

. 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 late r 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 I owa ’s infrastructure state implementation plan submittal for the 2008 ozone 8

- hour NAAQS. By no later than Ju ly 1 7 , 201 3 , either EPA or operation of law deemed I owa ’s state implementation plan submittal that included the infrastructure element s 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
at http://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 I owa subm ittal by approving in full, disapproving in full, or approving in part and disapproving in part by no later than Ju ly 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 201
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28 12
FIRST AMENDED COMPLAINT 61

. EPA has failed to take final action on part of Kansas ’ infra structure state implementation plan submittal for the 2008 ozone 8

- hour NAAQS. By no later than September 19 , 201 3 , either EPA or operation of law deemed Kansas ’ state implementation plan submittal that included the infrastructure element s under 42 U.S.C. § 7410(a)(2)( J)(visibility) administratively complete. 6 3

. Under the Clean Air Act, EPA is requir ed 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 Septe mber 19, 2014

. See 42 U.S.C. § 7410(k)(2)

- (4). 6 4

. EPA has failed to do so. 6 5

. 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 element s under 42 U.S.C. § 7410(a)(2)( D ) (i)(I) administratively complete. See EPA, Status of State SIP I nfrastructure 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 ). 6 6

. 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 ). 6 7

. 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 element s 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 2 4, 2014 ). Case4:14-cv-03198-JSW Document29 Filed12/12/14 Page13 of 201
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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 ). 7 0

. EPA has failed to do so. 7 1

. EPA has failed to take final action on M ontana ’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 M ontana ’s state implementation plan submittal that included the infrastructure element s 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 Requir ements

— M ontana (available at http://www.epa.gov/air/urbanair/sipstatus/reports/mt_infrabypoll.html#x110_a__2__ozone__200 8_ (last viewed Nov. 2 4, 2014). 7 2

. Under the Clean Air Act, EPA is required to take final action on this M ontana submittal by approvin g 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). 7 3

. EPA has failed to do so. 7 4

. EPA has failed to take final action on Nebraska ’s infrastructure state impleme ntation 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 element s 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. 2 4, 2014). 7 5

. 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). 7 6

. EPA has failed to do so. Case4:14-cv-03198-JSW Document29 Filed12/12/14 Page14 of 201
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FIRST AMENDED COMPLAINT 7 7

. 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 st ate implementation plan submittal that included the infrastructure element s 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 ht tp://www.epa.gov/air/urbanair/sipstatus/reports/nc_infrabypoll.html#x110_a__2__ozone__200 8_ (last viewed November 15 , 2014). 7 8

. 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 ). 7 9

. 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 element s u nder 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_ ) (las t 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 , 201 4

. 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 ope ration of law deemed New Hampshire’s state implementation plan submittal that included the infrastructure element s under 42 U.S.C. § 7410(a)(2)(A)

– (C), Case4:14-cv-03198-JSW Document29 Filed12/12/14 Page15 of 201
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28 15
FIRST AMENDED COMPLAINT (D)(i)(II)

- (H), (J)

- (M) administratively complete. See EPA, Status of State SIP Infrastructure Requi rements

— 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 subm ittal by approving in full, disapproving in full, or approving in part and disapproving in part by no later than January 3 , 201 4

. 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 infrastructu re 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 element s under 42 U.S.C. § 7410(a) (2)(C ) (PSD), (D)(i)(I) (prongs 1 and 2), (D)(i)(II) (Prong s 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_inf rabypoll.html#x110_a__2__ozone__200 8_ (last viewed Nov. 24, 2014 ). See also 79 Fed. Reg. 62,019, 62,021 (Oct. 16, 2014). 8 7

. 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 ). 8 8

. EPA has failed to do so. 8 9

. EPA has failed to take final action on an Oregon submi ttal 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 requiremen ts 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 su bmittal administratively complete by no later than December 23, 2010. Case4:14-cv-03198-JSW Document29 Filed12/12/14 Page16 of 201
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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 tha n January 3, 2013, either EPA or operation of law deemed Rhode Island’s state implementation plan submittal that included the infrastructure element s 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 t o 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

s ubmittal that included the infrastructure element s 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/ur banair/sipstatus/reports/sc_infrabypoll.html#x110_a__2__ozone__200 8_ (last viewed November 24, 2014 ). 9 6

. 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 approvi ng in part and disapproving in part by no later than April 24, 2013. See 42 U.S.C. § 7410(k)(2) and (3). 9 7

. EPA has failed to do so. Case4:14-cv-03198-JSW Document29 Filed12/12/14 Page17 of 201
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28 17
FIRST AMENDED COMPLAINT 9 8

. 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 element s under 42 U.S.C. § 7410(a)(2)(A)

– (H), (J)

- (M) administratively complete. See EP A, 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). 9 9

. Under the Clean Air Act, EPA is required to take final ac tion 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, 201 3

. See 42 U.S.C. § 7410(k)(2)

- ( 4 ). 100

. EPA has failed to do so. 10 1. EPA has failed to take final ac tion 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 element s 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 v iewed November 24 , 2014). 10 2. 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). 10 3. 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 op eration 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 201
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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 request s 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 Administrato r 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 201
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28 19
FIRST AMENDED COMPLAINT Telephone: (415) 977

- 5716 Facsimile: (415) 977

- 5793 Kristin.Henry@sierraclub.org
Counsel for Plaintiff Sierra Club
Dated: December 1 1 , 2014 Case4:14-cv-03198-JSW Document29 Filed12/12/14 Page20 of 20