**IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA**  SIERRA CLUB,

Plaintiff,
vs. LISA JACKSON, ADMINI STRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:1 1
- CV
- 00100
- JDB

**[PROPOSED] ANSWER BY BCCA APPEAL GROUP** Intervenor BCCA Appeal Group (“BCCAAG”), intervening on behalf of Defendant Lisa Jackson, Administrator of the United States Environmental Protection Agency ( “Defendant” or “EPA”), hereb y

responds to the correspondingl y numbered paragraphs of Plaintiff’s Complaint:

**I. INTRODUCTION**  1. With respect to the first sentence of Paragraph 1, BCCAAG admits that ground

level ozone is commonly referred to as “smog.” With respect to Paragraph 1 generally, BCCAAG lacks sufficient information on which to admit or deny the allegations about specific effects of ground

- level ozone. P aragraph 1 also contains expressions of opinion to which no response is required. 2. With respect to the first sentence of Paragra ph 2, BCCAAG admits that EPA promulgated a National Ambient Air Quality S tandard for ozone in 1979 based on one -hour measurements and that this standard may b e referred to as the “1
-hour ozone standard.” With respect to the second and third sentences of P aragraph 2, BCCAAG admits that certain air quality c ontrol regions were designated as nonattainment for the 1
-hour ozone standard. The2

remainder of the second and third sentences of Paragraph 2 characterize statutory provisions that speak for themselves and are the best evidence of their contents, and therefore, no response is required. The second and third sentences of Paragraph 2 also contain conclusions of law thatno require no response. 3. The first three sentences of Paragraph 3 characterize statutory provisions that speak for themselves and are the best evidence of their contents, and therefore, no response is required. The first three sentences of Paragraph 3 also contain conclusions of law that require no response. The fourth and fifth sentences of Paragraph 3 characterize Plaintiff’s complaint and the relief sought, and therefore, no response is required. T o the extent a response is required, the allegations are denied. **II. JURISDICTION**  4. The first sentence of Paragraph 4 characterizes Plaintiff’s complaint and therefore
no response is required. The second sentence of Paragraph 4 contains conclusions of law that require no response. T o the extent a response is required, BCCAAG denies that the Court has jurisdiction over this action. 5. Paragraph 5 contains conclusions of law that require no response. T o the extent a response is required, BCCAAG denies that the Court has the authority to order the relief requested. **III. NOTICE**  6. With respect to the first and second sentences of Paragraph 6, BCCAAG lacks
sufficient information on which to admit or deny the allegations. The third and fourth sentences of Paragraph 6 contain conclusions of law to which no response is required.3 **IV. VENUE**  7. The first sentence of Paragraph 7 characterizes Plaintiff’s complaint and therefore
no response is required. B CCAAG lacks sufficient information on which to admit or deny the allegations in the second and third sentences of Paragraph 7. The fourth and fifth sentences of Paragraph 7 contain conclusions of law to which no response is required. **V. PARTIES**  8. BCCAAG is without knowledge or information sufficient to form a belief as to the truth or falsity

of the allegations in Paragraph 8. 9. BCCAAG is without knowledge or information sufficient to form a belief as to the truth or falsity

of the allegations in Paragraph 9. 10. Paragraph 10 contains conclusions of law to which no response is required. BCCAAG is without knowledge or information sufficient to form a belief as to the remaining allegations in Paragraph 10. 11. BCCAAG is without knowledge or information sufficient to form a belief as to the allegations in Paragraph 11. 12. The first sentence of Paragraph 12 is admitted. The second sentence of Paragraph 12 characterizes statutory provisions that speak for themselves and are the best evidence of their contents, and therefore, no response is required. **VI. GENERAL ALLEGATIONS**  13. The first sentence of Paragraph 13 characterizes a legislative document that speaks for itself and is the best evidence of its contents, and therefore, no response is re quired. The second and third sentences of Paragraph 13 characterize statutory p rovisions that speak for themselves and are the best evidence of their contents, and therefore, no response is required.4

The second and third sentences of Paragraph 13 also contain legal conclusions to which no response is required. 14. Paragraph 14 characterizes statutory provisions that speak for themselves and are the best evidence of their contents, and therefore, no response is required. P aragraph 14 also contains legal conclusions to which no response is required. 15. Paragraph 15 characterizes statutory provisions that speak for themselves and are the best evidence of their contents, and therefore, no response is required. P aragraph 15 also contains legal conclusions to which noresponse is required. 16. The first two sentences of Paragraph 16 characterize regulatory actions that speak for themselves and are the best evidence of their contents, and therefore, no response is required. The third sentence of Paragraph 16 characterizes regulatory and statutory provisions that speak for themselves and are the best evidence of their contents, and therefore, no response is required. The third sentence of Paragraph 16 also contains legal conclusions to which no response is required. With respect to the fourth sentence of Paragraph 16, BCCAAG admits that the 1979
ozone national ambient air quality standard may

b e referred to as the “1
- Hour Ozone” Standard or NAAQS. 17. The first sentence of Paragraph 17 is admitted. The second sentence of Paragraph 17 characterizes statutory provisions and a regulatory preamble that speak for themselves and are the best evidence of their contents, and therefore, no response is required. P aragraph 17 also contains legal conclusions to which no response is required. 18. Paragraph 18 characterizes statutory and regulatory

p rovisions that speak for themselves and are the best evidence of their contents, and therefore, no response is required.5

19. Paragraph 19 characterizes statutory provisions that speak for themselves and are the best evidence of their contents, and therefore, no response is required. P aragraph 19 also contains legal conclusions to which no response is required. 20. Paragraph 20 characterizes regulatory provisions that speak for themselves and
are the best evi dence of their contents, and therefore, no response is required. P aragraph 20 also contains legal conclusions to which no response is required. 21. Paragraph 21 characterizes regulatory provisions that speak for themselves and
are the best evidence of their c ontents, and therefore, no response is required. P aragraph 21 also contains legal conclusions to which no response is required. 22. Paragraph 22 characterizes regulatory provisions that speak for themselves and
are the best evidence of their contents, and therefore, no response is required. P aragraph 22 also contains legal conclusions to which no response is required. 23. Paragraph 23 characterizes regulatory provisions that speak for themselves and
are the best evidence of their contents, and therefore, no response is required. P aragraph 23 also contains legal conclusions to which no response is required. 24. Paragraph 24 characterizes regulatory provisions that speak for themselves and
are the best evidence of their contents, and therefore, no response is required. P aragraph 24 also contains legal conclusions to which no response is required. 25. Paragraph 25 characterizes regulatory provisions that speak for themselves and
are the best evidence of their contents, and therefore, no response is required. P aragraph 25 also contains legal conclusions to which no response is required.6

26. Paragraph 26 characterizes regulatory provisions that speak for themselves and
are the best evidence of their contents, and therefore, no response is required. P aragraph 26 also contains leg al conclusions to which no response is required. 27. Paragraph 27 characterizes regulatory provisions that speak for themselves and
are the best evidence of their contents, and therefore, no response is required. P aragraph 27 also contains legal conclusions to which no response is required. 28. Paragraph 28 characterizes regulatory provisions that speak for themselves and
are the best evidence of their contents, and therefore, no response is required. P aragraph 28 also contains legal conclusions to which no response is required. 29. Paragraph 29 characterizes regulatory provisions that speak for themselves and
are the best evidence of their contents, and therefore, no response is required. P aragraph 29 also contains legal conclusions to which no response is required. 30. Paragraph 30 characterizes regulatory provisions which speak for themselves and
are the best evidence of their contents, and therefore, no response is required. P aragraph 30 also contains legal conclusions to which no response is required. 31. Paragraph 31 characterizes regulatory provisions that speak for themselves and
are the best evidence of their contents, and therefore, no response is required. P aragraph 31 also contains legal conclusions to which no response is required. 32. Paragraph 32 characterizes regulatory provisions that speak for themselves and
are the best evidence of their contents, and therefore, no response is required. P aragraph 32 also contains legal conclusions to which no response is required.7

33. Paragraph 33 characterizes regulatory provisions that speak for themselves and
are the best evidence of their contents, and therefore, no response is required. P aragraph 33 also contains legal conclusions to which no response is required. 34. Paragraph 34 characterizes regulatory provisions that speak for themselves and
are the best evidence of their contents, and therefore, no response is required. P aragraph 34 also contains legal conclusions to which no response is required. 35. Paragraph 35 characterizes regulatory provisions that speak for themselves and
are the best evidence of their contents, and therefore, no response is required. P aragraph 35 also contains legal conclusions to which no response is required. 36. Paragraph 36 characterizes regulatory provisions that speak for themselves and
are the best evidence of their contents, and therefore, no response is required. P aragraph 36 also contains legal conclusions to which no response is required. 37. Paragraph 37 characterizes regulatory provisions that speak for themselves and
are the best evidence of their contents, and therefore, no response is required. P aragraph 37 also contains legal conclusions to which no response is required. 38. Paragraph 38 characterizes statutory provisions that speak for themselves and are the best evidence of their contents, and therefore, no response is required. P aragraph 38 also contains legal conclusions to which no response is required. 39. Paragraph 39 characterizes statutory provisions that speak for themselves and are the best evidence of their contents, and therefore, no respon se is required. P aragraph 39 also contains legal conclusions to which no response is required.8

40. Paragraph 40 characterizes statutory provisions that speak for themselves and are the best evidence of their contents, and therefore, no response is required. Paragraph 40 also contains legal conclusions to which no response is required. 41. Paragraph 41 characterizes statutory provisions that speak for themselves and are the best evidence of their contents, and therefore, no response is required. P aragraph 41 also contains legal conclusions to which no response is required. 42. Paragraph 42 characterizes regulatory actions that speak for themselves and are the best evidence of their contents, and therefore, no response is required. P aragraph 42 also contains legal conclusions to which no response is required. 43. Paragraph 43 characterizes regulatory provisions that speak for themselves and
are the best evidence of their contents, and therefore, no response is required. P aragraph 43 also contains legal conclusions to which no response is required. 44. Paragraph 44 characterizes a court opinion that speaks for itself and is the best evidence of its contents, and therefore, no response is required. 45. Paragraph 45 characterizes a court opinion that speaks for itself and is the best evidence of its contents, and therefore, no response is required. Paragraph 45 also contains legal conclusions to which no response is required. 46. Paragraph 46 characterizes a court opinion that speaks for itself and is the best evidence of its contents, and therefore, no response is required. Paragraph 46 also contains legal conclusions to which no response is required. 47. Paragraph 47 characterizes a proposed regulatory preamble that speaks for itself and is the best evidence of their contents, and therefore, no response is required. P aragraph 47 also contains legal conclusions to which no response is required.9

48. Paragraph 48 characterizes a court opinion that speaks for itself and is the best evidence of its contents, and therefore, no response is required. Paragraph 48 also contains legal conclusions to which no response is required. 49. Paragraph 49 characterizes a court opinion and regulatory preambles thatspeak for themselves and are the best evidence of its contents, and therefore, no response is required. Paragraph 49 also contains legal conclusions to which no response is required. **V. CLAIMS FOR RELIEF**  **CLAIM ONE** (EPA’s Failure to Make a Determination of Attainment by the Applicable Attainment Date for Nonattainment Areas Classified as Severe or Higher f

or the 1

- Hour Ozone Standard) 50. BCCAAG incorporates its responses to Paragraphs 1

- 49 of the Complaint. 51. Paragraph 51 characterizes statutory provisions that speak for themselves and are the best evidence of their contents, and therefore, no response is required. Paragraph 51 also contains legal conclusions to which no response is required. 52. Paragraph 52 characterizes statutory provisions that speak for themselves and are the best evidence of their contents, and therefore, no response is required. Paragraph52 also contains legal conclusions to which no response is required. 53. Paragraph 53 characterizes statutory provisions that speak for themselves and are the best evidence of their contents, and therefore, no response is required. Paragraph 53 also contain s legal conclusions to which no response is required. 54. Paragraph 54 characterizes regulatory provisions that speak for themselves and are the best evidence of their contents, and therefore, no response is required. Paragraph 54 also contains legal conclus ions to which no response is required.10

55. Paragraph 55 characterizes regulatory provisions that speak for themselves and are the best evidence of their contents, and therefore, no response is required. Paragraph 55 also contains legal conclusions to which no response is required. 56. Paragraph 56 contains legal conclusions to which no response is required. 57. Paragraph 57 contains legal conclusions to which no response is required. 58. With respect to Paragraph 58, BCCAAG admits that EPA has not made a determinationwhether the Houston

- Galveston

- Brazoria area has met its 1

- hour ozone attainment date. To the extent that Paragraph 58 characterizes this determination as “required,” this is a legal conclusion to which no response is required. 59. With respect to Paragraph59, BCCAAG admits that EPA has not published notice in the Federal Register of a determination whether the Houston

- Galveston

- Brazoria area has met its 1

-hour ozone attainment date. To the extent that Paragraph 59 characterizes this determination as “required,” this is a legal conclusion to which no response is required. 60. Paragraph 60 characterizes regulatory provisions that speak for themselves and are the best evidence of their contents, and therefore, no response is required. Paragraph 60 also contain s legal conclusions to which no response is required. 61. Paragraph 61 characterizes regulatory provisions that speak for themselves and are the best evidence of their contents, and therefore, no response is required. Paragraph 61 also contains legal conclus ions to which no response is required. 62. Paragraph 62 contains legal conclusions to which no response is required. 63. Paragraph 63 contains legal conclusions to which no response is required. 64. With respect to Paragraph 64, BCCAAG lacks sufficient information on which to admit or deny

whether EPA has made a determination whether the Baltimore area has met its 1

-11

hour ozone attainment date. To the extent that Paragraph 64 characterizes this determination as “required,” this is a legal conclusion to which no resp onse is required. 65. With respect to Paragraph 65, BCCAAG lacks sufficient information on which to admit or deny

whether EPA has published notice in the Federal Register of a determination whether the Baltimore area has met its 1

-hour ozone attainment date. To the extent that Paragraph 65 characterizes this determination as “required,” this is a legal conclusion to which no response is required. 66. Paragraph 66 characterizes regulatory provisions that speak for themselves and are the best evidence of their contents, and therefore, no response is required. Paragraph 66 also contains legal conclusions to which no response is required. 67. Paragraph 67 characterizes regulatory provisions that speak for themselves and are the best evidence of their contents, and therefore, no response is required. Paragraph 67 also contains legal conclusions to which no response is required. 68. Paragraph 68 contains legal conclusions to which no response is required. 69. Paragraph 69 contains legal conclusions to which no response is req uired. 70. With respect to Paragraph 70, BCCAAG lacks sufficient information on which to admit or deny

whether EPA has made a determination whether the New York portion of the New York

-Northern New Jersey

- Long Island area has met its 1

-hour ozone attainment date. To the extent that Paragraph 70 characterizes this determination as “required,” this is a legal conclusion to which no response is required. 71. With respect to Paragraph 71, BCCAAG lacks sufficient information on which to admit or deny

whether EPA has published notice in the Federal Register of a determination whether the New York portion of the New York

-Northern New Jersey

- Lo ng Island area has met12

its 1

-hour ozone attainment date. To the extent that Paragraph 71 characterizes this determination as “re quired,” this is a legal conclusion to which no response is required. 72. Paragraph 72 characterizes regulatory provisions that speak for themselves and are the best evidence of their contents, and therefore, no response is required. Paragraph 72 also contains legal conclusions to which no response is required. 73. Paragraph 73 characterizes regulatory provisions that speak for themselves and are the best evidence of their contents, and therefore, no response is required. Paragraph 73 also contains legal conclusions to which no response is required. 74. Paragraph 74 contains legal conclusions to which no response is required. 75. Paragraph 75 contains legal conclusions to which no response is required. 76. With respect to Paragraph 76, BCCAAG lacks sufficient information on which to admit or deny

whether EPA has made a determination whether the New Jersey portion of the New York

-Northern New Jersey

- Long Island area has met its 1

-hour ozone attainment date. To the extent that Paragraph 76 characterizes this determinationas “required,” this is a legal conclusion to which no response is required. 77. With respect to Paragraph 77, BCCAAG lacks sufficient information on which to admit or deny

whether EPA has published notice in the Federal Register of a determination whether the New Jersey

portion of the New York

-Northern New Jersey

- Lo ng Island area has met its 1

-hour ozone attainment date. To the extent that Paragraph 77 characterizes this determination as “required,” this is a legal conclusion to which no response is require d. 78. Paragraph 78 characterizes regulatory provisions that speak for themselves and are the best evidence of their contents, and therefore, no response is required. Paragraph 78 also contains legal conclusions to which no response is required.13

79. Paragraph 79 characterizes regulatory provisions that speak for themselves and are the best evidence of their contents, and therefore, no response is required. Paragraph 79 also contains legal conclusions to which no response is required. 80. Paragraph 80 contains legal conclusions to which no response is required. 81. Paragraph 81 contains legal conclusions to which no response is required. 82. With respect to Paragraph 82, BCCAAG lacks sufficient information on which to admit or deny

whether EPA has made a determination whether the Connecticut portion of the New York

-Northern New Jersey

- Long Island area has met its 1

-hour ozone attainment date. To the extent that Paragraph 82 characterizes this determination as “required,” this is a legal conclusion to which no response isrequired. 83. With respect to Paragraph 83, BCCAAG lacks sufficient information on which to admit or deny

whether EPA has published notice in the Federal Register of a determination whether the Connecticut portion of the New York

-Northern New Jersey

- Lo ng Isl and area has met its 1

-hour ozone attainment date. To the extent that Paragraph 83 characterizes this determination as “required,” this is a legal conclusion to which no response is required. 84. Paragraph 84 contains legal conclusions to which no response is required. 85. Paragraph 85 contains legal conclusions to which no response is required. **CLAIM TWO** (EPA’s Failure to Make a Determination of Attainment by the Applicable Attainment Date for Nonattainment Areas Classified as

Serious or lower the 1

- Hour Ozone Standard) 86. BCCAAG incorporates by reference its responses to Paragraphs 1

- 85 of the Complaint. 87. Paragraph 87 contains legal conclusions to which no response is required. 88. Paragraph 88 contains legal conclusions to which no response is required.14

89. Paragraph 89 contains legal conclusions to which no response is required. 90. Paragraph 90 characterizes regulatory provisions that speak for themselves and are the best evidence of their contents, and therefore, no response is required. Paragraph 90 also contains l egal conclusions to which no response is required. 91. Paragraph 91 characterizes regulatory provisions that speak for themselves and are the best evidence of their contents, and therefore, no response is required. Paragraph 91 also contains legal conclusion s to which no response is required. 92. Paragraph 92 contains legal conclusions to which no response is required. 93. Paragraph 93 contains legal conclusions to which no response is required. 94. With respect to Paragraph 94, BCCAAG lacks sufficient information on which to admit or deny

whether EPA has made a determination whether the Springfield (Western Massachusetts) area has met its 1

-hour ozone attainment date. To the extent that Paragraph 94 characterizes this determination as “required,” this is a legal conc lusion to which no response is required. 95. With respect to Paragraph 95, BCCAAG lacks sufficient information on which to admit or deny

whether EPA has published notice in the Federal Register of a determination whether the Springfield (Western Massachusetts) area has met its 1

-hour ozone attainment date. To the extent that Paragraph 95 characterizes this determination as “required,” this is a legal conclusion to which no response is required. 96. Paragraph 96 characterizes regulatory provisions that speak for themselves and are the best evidence of their contents, and therefore, no response is required. Paragraph 96 also contains legal conclusions to which no response is required.15

97. Paragraph 97 characterizes regulatory provisions that speak for themselves and are the best evidence of their contents, and therefore, no response is required. Paragraph 97 also contains legal conclusions to which no response is required. 98. Paragraph 98 contains legal conclusions to which no response is required. 99. Paragraph 99 contains legal conclusions to which no response is required. 100. With respect to Paragraph 100, BCCAAG lacks sufficient information on which to admit or deny

whether EPA has made a determination whether the Greater Connecticut area has met its 1

-hour ozone attainment date. To the extent that Paragraph 100 characterizes this determination as “required,” this is a legal conclusion to which no response is required. 101. With respect to Paragraph 101, BCCAAG lacks sufficient information on which to admit or deny

whetherEPA has published notice in the Federal Register of a determination whether the Greater Connecticut area has met its 1

-hour ozone attainment date. To the extent that Paragraph 101 characterizes this determination as “required,” this is a legal conclusion to which no response is required. 102. Paragraph 102 characterizes regulatory provisions that speak for themselves and are the best evidence of their contents, and therefore, no response is required. Paragraph 102 also contains legal conclusions to which noresponse is required. 103. Paragraph 103 characterizes regulatory provisions that speak for themselves and are the best evidence of their contents, and therefore, no response is required. Paragraph 103 also contains legal conclusions to which no response is required. 104. Paragraph 104 contains legal conclusions to which no response is required. 105. Paragraph 105 contains legal conclusions to which no response is required.16

106. With respect to Paragraph 106, BCCAAG lacks sufficient information on which to admit or deny whether EPA has made a determination whether the New Hampshire portion of the Boston

- Lawrence
- Worcester area has met its 1

-hour ozone attainment date. To the extent that Paragraph 106 characterizes this determination as “required,” this is a legal conclus ion to which no response is required. 107. With respect to Paragraph 107, BCCAAG lacks sufficient information on which to admit or deny

whether EPA has published notice in the Federal Register of a determination whether the New Hampshire portion of the Boston- Lawrence
- Worcester area has met its 1

-hour ozone attainment date. To the extent that Paragraph 107 characterizes this determination as “required,” this is a legal conclusion to which no response is required. 108. Paragraph 108 characterizes regulatory provisions that speak for themselves and are the best evidence of their contents, and therefore, no response is required. 109. Paragraph 109 characterizes regulatory provisions that speak for themselves and are the best evidence of their contents, and therefore, noresponse is required. 110. Paragraph 110 contains legal conclusions to which no response is required. 111. Paragraph 111 contains legal conclusions to which no response is required. 112. With respect to Paragraph 112, BCCAAG lacks sufficient information on which to admit or deny

whether EPA has made a determination whether the Massachusetts portion of the Boston

- Lawrence
- Worcester area has met its 1

-hour ozone attainment date. To the extent that Paragraph 112 characterizes this determination as “required,” this is a leg al conclusion to which no response is required. 113. With respect to Paragraph 113, BCCAAG lacks sufficient information on which to admit or deny

whether EPA has published notice in the Federal Register of a determination17

whether the Massachusetts portion of the Boston
- Lawrence
- Worcester area has met its 1

-hour ozone attainment date. To the extent that Paragraph 113 characterizes this determination as “required,” this is a legal conclusion to which no response is required. 114. Paragraph 114 contains legal conclus ions to which no response is required. 115. Paragraph 115 contains legal conclusions to which no response is required. The remaining allegations in the Complaint are Plaintiff’s Prayer for Relief, which requires no response. To the extent a response is required, BCCAAG denies that Plaintiff is entitled to such relief. **FIRST AFFIRMATIVE DEFENSE Statute of Limitations**  116. Plaintiff’s claims are barred by the applicable statute of limitations. **SECOND AFFIRMATIVE DEFENSE**

**Res Judicata** 117. Plaintiff’s claims are barred by res judicata
.

**THIRD AFFIRMATIVE DEFENSE Failure to State a Claim**  118. Plaintiff has failed to state a claim upon which relief can be granted.

**FOURTH AFFIRMATIVE DEFENSE Lack of Jurisdiction**  119. Plaintiff has failed to allege facts sufficient to establish jurisdiction.18

Dated: June 8, 2011 Respectfully submitted,
/s/ Richard P. Sobiecki Richard P. Sobiecki (D.C. Bar # 500163) Baker Botts L.L.P. 1299 Pennsylvania Ave., N.W. Washington, D.C. 20004 (202) 639

- 7906 rich.sobiecki@bakerbotts.com Zachary L . Craft Baker Botts L.L.P. One Shell Plaza 910 Louisiana Houston, Texas 77002 (713) 229

- 1133 zachary .craft@bakerbotts.com Attorneys for BCCA Appeal Group