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ROBERT UKEILEY (Admitted Pro Hac Vice)

Law Office of Robert Ukeiley

255 Mountain Meadows Road

Boulder, CO 80302

Telephone: (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 Plaintiffs Sierra Club and WildEarth Guardians

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

)

) Case No. 4:14-cv-5091-YGR

)

SIERRA CLUB and WILDEARTH GUARDIANS, ) 

) FIRST AMENDED COMPLAINT

) FOR DECLARATORY AND

 Plaintiffs, ) 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. ) 

) 

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INTRODUCTION

1. Plaintiffs are filing this first amended complaint to add in Alabama, Florida, Mississippi 

and North Carolina as states for which Defendant has failed to make a finding that these states 

have failed to submit their “Good Neighbor” state implementation plan (SIP) provisions for the 

2008 ozone national ambient air quality standard. Plaintiffs became aware that these additional 

four states failed to submit when Defendant updated its web page which tracks SIP submittals. 

Plaintiffs Sierra Club and WildEarth Guardians bring this Clean Air Act “citizen suit” to 

compel the United States Environmental Protection Agency (“EPA”) to undertake overdue 

mandatory duties. Specifically, Plaintiffs challenge 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 are the failure to make findings of 

failure to submit under 42 U.S.C. § 7410(k)(1)(B) for Good Neighbor provisions of State 

Implementation Plan (“SIP”), 42 U.S.C. § 7410(a)(2)(D)(i)(I), to redress interstate transport of 

ozone pollution for the 2008 ozone National Ambient Air Quality Standard. The states which 

have failed to submit their 2008 ozone NAAQS Good Neighbor provisions are: Alabama, 

Arkansas, California, Connecticut, Florida, Georgia, Iowa, Illinois, Kansas, Massachusetts, 

Maine, Michigan, Minnesota, Mississippi, Missouri, New Hampshire, New Mexico, North 

Carolina, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Virginia, Washington, and 

West Virginia (collectively “States”).

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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. Plaintiffs Sierra Club and WildEarth Guardians mailed via certified mail, return receipt 

requested, to Defendant Gina McCarthy a letter stating that they intend to sue Defendant for the 

violations alleged in this Complaint with regard to Arkansas, California, Connecticut, Georgia, 

Iowa, Illinois, Kansas, Massachusetts, Maine, Michigan, Minnesota, Missouri, New Hampshire, 

New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Virginia, Washington, 

and West Virginia. This letter was mailed no later than August 28, 2014. Defendant received 

the notice of intent to sue letter no later than September 10, 2014. Plaintiffs Sierra Club and 

WildEarth Guardians mailed via certified mail, return receipt requested, to Defendant Gina 

McCarthy a second letter stating that they intend to sue Defendant for the violations alleged in 

this Complaint with regard to Alabama, Florida, Mississippi and North Carolina. This second 

letter was mailed no later than October 8, 2014. Defendant received the notice of intent to sue 

letter no later than October 14, 2014. More than sixty days have passed since Plaintiffs’ mailed 

their notice of intent to sue letters and since Defendant received the letters. To date, Defendant 

has not remedied the violations alleged in this Complaint. Therefore, an actual controversy 

exists.

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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. 

One of the claims in this Complaint concerns EPA’s failure to perform mandatory duties with 

regard to California. EPA Region 9, whose jurisdiction includes California, is headquartered in 

San Francisco. Thus several of the events and omissions at issue in this action occurred at 

EPA’s Region 9 headquarters in San Francisco. In addition, Plaintiff Sierra Club is 

headquartered in San Francisco and one of 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. 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. 

7. Plaintiff, WILDEARTH GUARDIANS ("Guardians") is a conservation and

environmental protection organization with approximately 5,000 members. It is organized as a

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non-profit corporation. Guardians and its members are dedicated to protecting and restoring 

wildlife, wild rivers, and wild places in the American West, and to safeguarding the Earth's 

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

to safeguard public health and welfare, and the environment. 

8. Members and staffs of Sierra Club and Guardians live, work, recreate, and travel 

throughout the States and will continue to do so on a regular basis. Ozone in the affected States,

including downwind states, threatens and damages, and will continue to threaten and damage, 

the health and welfare of Plaintiffs’ staffs and members. Ozone diminishes Guardians’ and 

Sierra Club’s staffs’ 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 Plaintiffs, as well as their staffs 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 Plaintiffs’ staffs 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 

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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 

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. Ozone represents a serious air quality issue in many parts of the United States. 

Exposure to ozone pollution causes numerous impacts to a person’s respiratory system, 

including asthma, pneumonia, and bronchitis, can result in the permanent scarring of lung tissue

and even death. 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.

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16. 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.”

17. A finding of failure to submit commences a 24 month “clock” during which EPA must 

promulgate a federal implementation plan to address the missing state implementation plan 

submittal. 42 U.S.C. § 7410(c)(1). 

STATEMENT OF THE CASE

18. This case involves the 2008 ozone NAAQS. EPA promulgated the 2008 ozone NAAQS 

on March 12, 2008. See 73 Fed. Reg. 16,436-16,514 (March 27, 2008). The Clean Air Act 

requires that states submit “Infrastructure” state implementation plans (SIP) to the EPA within 

three years of EPA’s promulgation of a NAAQS. 42 U.S.C. § 7410(a)(1). So for the 2008 ozone 

NAAQS, Infrastructure SIPs were due by March 12, 2011. See WildEarth Guardians v. 

McCarthy, 4:11-cv-5651-YGR consolidated with 4:11-cv-5694-YGR, Order Granting In Part 

Plaintiffs’ Motion for Summary Judgment; Granting Defendant’s Cross-Motion for Summary 

Judgment; Vacating Case Management and Other Hearing Dates [Dk.#64] (MSJ Order) at ¶2. 

19. One of the elements of an Infrastructure SIP is referred to as the Good Neighbor 

provision. It is found in 42 U.S.C. § 7410(a)(2)(D)(i)(I). The Good Neighbor provision requires 

that SIPs contain adequate provisions to ensure that pollution from an “upwind” state will not 

significantly contribute to nonattainment in, or interference with maintenance of a NAAQS in 

any “downwind” state. Id.

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20. The Good Neighbor provision is one of the most important provisions of the Clean Air 

Act. It is the legal authority for several of the EPA’s most significant emission reductions 

programs such as the “NOx SIP Call,” the Clean Air Interstate Rule (CAIR), and most recently 

the “Transport Rule.” See, e.g., EPA v. EME Homer City Generation, L.P., 574 U.S. ___, 134 S. 

Ct. 1584, 1593 (2014) (“Homer City”). 

21. However, EPA only designed the Transport Rule to address the 1997 ozone NAAQS. 

EPA has yet to create, or even propose, a rule to deal with interstate transport of ozone in the 

context of the 2008 ozone NAAQS.

22. Thus, EPA had a mandatory duty to make a finding of failure to submit by September 12, 

2011 for any state that has failed to submit its Good Neighbor provision for the 2008 ozone 

NAAQS. Id. 

23. As of today, the following states have failed to submit Good Neighbor provisions for the 

2008 ozone NAAQS:

Alabama, Arkansas, California, Connecticut, Florida, Georgia, Iowa, Illinois, 

Kansas, Massachusetts, Maine, Michigan, Minnesota, Mississippi, Missouri, New 

Hampshire, New Mexico, North Carolina, Oklahoma, Pennsylvania, Rhode 

Island, South Carolina, Virginia, Washington, and West Virginia

24. EPA’s refusal to take a relatively simple step mandated by Congress, referred to as a 

finding of failure to submit, that is critical to protecting the public health and welfare of millions 

of people against ozone pollution, commonly referred to as smog. EPA’s refusal to make these 

findings of failure to submit not only endangers people’s health and very lives, damages native 

ecosystems, exacerbates climate change and decreases crop yields, but it also disadvantages 

certain states which have undertaken significant efforts to reduce their intrastate ozone precursor 

emissions yet still have high levels of ozone pollution because of emissions from upwind states 

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which are transported into the downwind states. See, e.g., EPA v. EME Homer City Generation,

L.P., 574 U.S. ___, 134 S. Ct. 1584, 1593 (2014) (“Left unregulated, the emitting or upwind 

State reaps the benefits of the economic activity causing the pollution without bearing all the 

costs. . . . Conversely, downwind States to which the pollution travels are unable to achieve 

clean air because of the influx of out-of-state pollution they lack authority to control.”).

25. For example, George Aburn is the Director of the Air and Radiation Management 

Administration within the Maryland Depart of the Environment (“MDE”). See Declaration of 

George S. Aburn in Opposition to EPA’s Motion to Extend (“Aburn Dec.”) in Maryland v. EPA, 

13-1070 (D.C. Cir. 5/30/13). Mr. Aburn has plainly stated that “unless ozone [interstate] 

transport is effectively reduced, Maryland can not, by itself, comply with the Clean Air Act. 

More importantly, over 4 million Marylanders continue to breather unhealthy air. Without an 

effective solution to the ozone transport issue, public health in Maryland remains at risk.” Aburn 

Dec. at ¶3. 

26. MDE’s research establishes that the influx of ozone transported from upwind states into 

Maryland can be higher than 80 ppb at times. Id. at ¶7. Recall that the 2008 ozone NAAQS is 75 

ppb. Thus, at certain times, even if Maryland’s instate emissions contribution to its ozone 

pollution was zero, Maryland would still be violating the 2008 ozone NAAQS because of ozone 

transported from other states. In order to attain the 75 ppb 2008 ozone NAAQS by the 

December 31, 2015 due date for the parts of Maryland that are in the Metro-D.C. and MetroPhiladelphia nonattainment areas, “Maryland must have upwind reductions of [ozone precursors] 

emissions as soon as possible.” Id. at ¶10. This is because attainment by the December 31, 2015 

is based on a three year average of data from 2013, 2014 and 2015. In other words, states like 

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Maryland need upwind reductions which EPA is required to provide if upwind states fail to do so 

and the clock is already running for these reductions. 

27. The scale of the problem is significant. For example, there are over 1 million people 

living in the Baltimore ozone nonattainment area who are particularly at risk from exposure to 

ozone because they have asthma, COPD, or cardiovascular disease.

PROCEDURAL HISTORY

28. This is not the first time this matter is before this Court. On November 22, 2011, 

WildEarth Guardians filed a complaint alleging, among other claims, EPA had failed to make a 

finding of failure to submit for 48 states for the 2008 ozone Infrastructure SIPs. See Case 4:11-

cv-5651-YGR, Dk.#1. On November 28, 2011, Midwest Environmental Defense Center filed a 

complaint alleging EPA had failed to make a finding of failure to submit for numerous states for 

the 2008 ozone NAAQS Infrastructure SIPs. See Case 3:11-cv-5694, Dk.#1. On December 13, 

2011, Midwest Environmental Defense Center filed an amended complaint which added Sierra 

Club as a plaintiff as well as additional claims not relevant to the current case. See Case 3:11-

cv-5694-JSC, Dk.#6. On March 16, 2012, the Court consolidated these two cases. See Case 

4:11-cv-5651-YGR, Dk.#28.

29. On April 13, 2012, Plaintiffs filed a motion for summary judgment on all of their then 

pending claims, including the claim that EPA had failed to make findings of failure to submit for 

2008 ozone NAAQS Infrastructure SIPs. See Case 4:11-cv-5651-YGR, Dk.#36. Plaintiffs 

supported their motion for summary judgment with extensive affidavits, including the affidavit 

of David Howekamp, who had for 18 years been in charge of EPA’s Air Division in EPA’s 

Region 9. See Case 4:11-cv-5651-YGR,Dk.#37-4 at ¶2. Mr. Howekamp explained that in his 

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opinion, EPA could make a finding of failure to submit within 30 days of a court order because it 

is not a highly technical or complicated regulatory action. Id. at ¶¶5-6.

30. EPA filed its “opposition” on May 29, 2012, essentially admitting liability except as to 

states that had recently submitted SIPs and asking for a due date of January 4, 2013. See Case 

4:11-cv-5651-YGR, Dk.#44. On October 8, 2012, Plaintiffs filed a reply agreeing to the January 

4, 2013 due date in the interest of compromise but also asking that EPA be required to forward 

the signed rule to the Office of Federal Register within three days of signature. See Case 4:11-

cv-5651-YGR, Dk.#63. The delay in Plaintiffs filing their reply was due to long settlement 

negotiations which never actually came to fruition. 

31. On October 17, 2012, the Court granted Plaintiffs summary judgment requiring EPA to 

make a finding of failure to submit for all states which had not yet at that point submitted their 

2008 ozone NAAQS Good Neighbor provisions by January 4, 2013 and requiring EPA to 

forward the rule to the Office of Federal Register within 3 days of signature. See Case 4:11-cv5651-YGR, Dk.#64. 

32. On January 4, 2013, pursuant to the Court’s order, EPA issued a finding that numerous 

states had failed to submit 2008 ozone Infrastructure SIPs except as to the Good Neighbor 

provisions. 78 Fed. Reg. 2,882 (Jan. 15, 2013). As to the Good Neighbor provisions, despite the 

Court’s order and the fact that numerous states had actually failed to submit, EPA refused to 

make a finding of failure to submit. 78 Fed. Reg. at 2,884. EPA chose to interpret the D.C. 

Circuit’s decision in EME Homer City Generation v. EPA, 696 F.3d 7, 31 (D.C. Cir. 2012) as 

concluding that “a SIP cannot be deemed to lack a required submission or deemed deficient for 

failure to meet the 110(a)(2)(D)(i)(I) obligation until after the EPA quantifies that obligation.” 78 

Fed. Reg. at 2,884. Rather than quantifying states obligations under the Good Neighbor 

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provisions, EPA simply said because it failed to make this quantification, it could not make 

findings of failure to submit pursuant to the D.C. Circuit’s Homer City decision. Ignoring the 

plain language of the Clean Air Act, EPA found that states did not have an obligation to submit 

Good Neighbor provisions and therefore EPA did not have an obligation to make findings of 

failure to submit. Plaintiffs refer to the January 4, 2013 notice as EPA’s “non-finding.” 

33. Sierra Club, Environmental Defense Fund, along with the states of Maryland, 

Connecticut, Delaware and the District of Columbia appealed EPA’s January 4, 2013 “nonfinding” to the D.C. Circuit. See Maryland v. EPA, 13-1070 (consolidated with No. 13-1072). 

34. While that appeal was pending, the Supreme Court reversed the D.C. Circuit’s Homer 

City decision. See EPA v. EME Homer City Generation, L.P., 574 U.S. ___, 134 S. Ct. 1584 

(2014). The Supreme Court held the plain language of the Clean Air Act mandated that states 

submit Good Neighbor provisions within three years of EPA promulgating a NAAQS, and that 

EPA need not undertake any action to trigger this obligation. Homer City, 134 S.Ct. at 1600. 

35. In light of the Supreme Court’s decision, EPA agreed to Sierra Club, EDF, Maryland, 

Connecticut, Delaware and the District of Columbia’s request that EPA seek a voluntary vacatur 

and remand of EPA’s January 4, 2013 non-finding. Thus, on August 1, 2014 the D.C. Circuit 

vacated and remanded EPA’s January 4, 2013 non-finding. See Maryland v. EPA, 13-1070 (D.C. 

Cir. Aug 1, 2014) Order [Document#1505606] at 1. 

36. As it is wont to do, subsequent to the D.C. Circuit’s vacating the January 4, 2013 nonfinding, EPA has done nothing despite repeated requests for prompt action by Sierra Club, EDF, 

Maryland, Connecticut, Delaware and the District of Columbia. 

37. When EPA undertakes a mandatory duty under the Clean Air Act but that undertaking is 

later vacated by a court, EPA once again has a mandatory duty. For example, in Environmental 

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Defense v. Leavitt, 329 F. Supp. 2nd 55 (D.D.C. 2004), EPA had promulgated a regulation 

implementing the Clean Air Act’s Best Available Retrofit Technology (BART) standards. Id., 

329 F. Supp. 2nd at 60. The D.C. Circuit subsequently vacated and remanded EPA’s BART 

rule. Id., 329 F. Supp. 2nd at 61. Environmental Defense then sued EPA for violating its 

mandatory duty by failing to promulgate a BART rule. The D.C. District Court found that it had 

jurisdiction to enforce such a mandatory duty. The D.C. District Court explained: 

When a court vacates an agency's rules, the vacatur restores the status quo before 

the invalid rule took effect and the agency must "initiate another rulemaking 

proceeding if it would seek to confront the problem anew." Indep. U.S. Tanker 

Owners Comm. v. Dole, 258 U.S. App. D.C. 6, 809 F.2d 847, 854 (D.C. Cir. 

1987); Sugar Cane Growers Co-op. of Florida v. Veneman, 351 U.S. App. D.C. 

214, 289 F.3d 89, 97 (D.C. Cir. 2002) (same).

Id., 329 F. Supp. 2nd at 64.

38. Thus, on September 9, 2014, Sierra Club and WildEarth Guardians filed a Rule 60(b) 

Motion to Modify Judgment in Case 4:11-cv-5651-YGR requesting that the Court modify its 

previous summary judgment order to set a new date by which EPA must make findings of failure 

to submit 2008 ozone NAAQS Good Neighbor provisions for those states which had still failed 

to submit those provisions. See Case 4:11-cv-5651-YGR, Dk#90. 

39. The Court denied Plaintiffs Rule 60(b) motion. See Case 4:11-cv-5651-YGR, Dk#95. 

However, in denying Plaintiffs Rule 60(b) motion, the Court stated: “It is clear enough that EPA 

should now take action and make findings as to which states are not in compliance with the 

Good Neighbor provisions.” Id. at 4.

40. The Court also stated: “As the parties acknowledge, plaintiffs can bring a new action to 

enforce EPA’s mandatory duty concerning the Good Neighbor provision relative to the 2008 

ozone NAAQS[.]” Id. Thus, Plaintiffs are filing this current action. 

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CLAIM FOR RELIEF

CLAIM ONE

(EPA’s Failure to find that States have not Submitted 2008 ozone National Ambient Air Quality 

Standard Good Neighbor Provisions) 

41. Plaintiffs incorporate by reference paragraphs 1 through 40.

42. 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, including the Good Neighbor provisions found in 42 

U.S.C. § 7410(a)(2)(D)(i)(I), within three years of a standard’s promulgation or revision. 42 

U.S.C. § 7410(a)(1). 

43. 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). 

44. 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. See 42 U.S.C. § 7410(k)(1)(B). 

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

45. 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).

46. 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 standard of 0.075 parts per 

million. See 40 C.F.R. § 50.15.

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47. 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). These requirements 

include, but are not limited to:

• Limits on interstate transport (42 U.S.C. § 7410(a)(2)(D)(i));

48. 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_

49. As of today, the following states have failed to submit Good Neighbor provisions for the 

2008 ozone NAAQS:

Alabama, Arkansas, California, Connecticut, Florida, Georgia, Iowa, Illinois, 

Kansas, Massachusetts, Maine, Michigan, Minnesota, Mississippi, Missouri, New 

Hampshire, New Mexico, North Carolina, Oklahoma, Pennsylvania, Rhode 

Island, South Carolina, Virginia, Washington, and West Virginia

50. 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 

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FIRST AMENDED COMPLAINT

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

2011. 

51. EPA has not made findings that any of the States listed in paragraph 49 have failed to 

submit Good Neighbor provisions for the 2008 ozone National Ambient Air Quality Standard.

52. Thus, EPA is in violation of its mandatory duty with regard to the States listed in 

paragraph 49. 

REQUEST FOR RELIEF

WHEREFORE, WildEarth Guardians and Sierra Club respectfully request 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 and effectuating the Court’s 

order;

D. Grant WildEarth Guardians and Sierra Club their 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

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FIRST AMENDED COMPLAINT

Boulder, CO 80302

Telephone: (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 Sierra Club and WildEarth Guardians

Dated: January 15, 2015

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