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United States District Court 

Northern District of California 

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

WILDEARTH GUARDIANS, 

 Plaintiff, 

 vs. 

LISA P. JACKSON, in her official capacity as 

Administrator of the United States 

Environmental Protection Agency,

 Defendant. 

Case No.: 11-CV-5651 YGR 

and Consolid. Case No.: 11-CV-05694 YGR

ORDER GRANTING IN PART EPA’S MOTION 

TO AMEND ORDER

 Defendant Lisa Jackson, in her official capacity as Administrator of the United States 

Environmental Protection Agency (“EPA”) filed a Motion to Amend Order of October 17, 2012. 

(Dkt No. 65, “Motion”). EPA also filed a Motion to Expedite Decision on the Motion to Amend 

Order. (Dkt No. 66.) Plaintiffs Midwest Environmental Defense Center and Sierra Club opposed 

the Motion to Amend. (Dkt No. 67.)1

 

The Court previously ordered that EPA sign a final rule or rules taking final action on the 

2008 ozone NAAQS Infrastructure SIP submittals (Kentucky submittal dated September 8, 2009; 

Tennessee submittal dated October 19, 2009) by approving in full, disapproving in full, or 

approving in part and disapproving in part, by “no later than January 4, 2013.” 

 1

 Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the Court finds this 

motion appropriate for decision without oral argument. Accordingly, the Court VACATES the hearing set for 

December 18, 2012.

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United States District Court 

Northern District of California 

In its Motion to Amend, EPA requests that the Court amend its October 17, 2012 Order 

Granting In Part and Denying In Part Plaintiffs’ Motions for Summary Judgment. (Dkt. No. 64, 

“Order”.) EPA seeks to amend the Order to delete, as moot, EPA's obligation to act on the 

Kentucky and Tennessee submittals because those two states withdrew their SIP submittals dated 

September 8, 2009, and October 19, 2009, respectively. Tennessee withdrew part of its 

submission, the Clean Air Act portion, on July 3, 2012. Kentucky withdrew its submittal entirely 

and replaced it with a new submittal on July 17, 2012. 

The Court cannot find that either a partial withdrawal of the SIP submittal, or a withdrawal 

and submission of a revised SIP, effectively moots EPA’s obligations to act – either in accordance 

with the requirements of 42 U.S.C. §§ 7410(k)(1)(B) & (k)(2)-(3) or 42 U.S.C. § 7410(c). EPA can 

point to no statutory provision or regulation that extends its time to act when a state modifies its 

submittal in these ways. Indeed, Plaintiffs, in their brief in opposition, point to previous EPA 

action consistently interpreting “supplements” to SIP submittals not to affect EPA’s approval 

deadline. While EPA cites to prior interpretations “precluding” EPA from taking action on 

withdrawn SIP submissions, those interpretations likewise acknowledge that withdrawal has 

consequences such as treating the withdrawal as a “failure to submit the required SIP.” (See EPA’s 

Motion at 6, citing 70 Fed. Reg. 25,719, 25,720-21 (May 13, 2005).) 

Under the particular circumstances presented here, the “withdrawal” of the Kentucky and 

Tennessee SIP submittals was, effectively, a revision or supplementation of those submittals. In the 

case of the Tennesee, the “withdrawal” was partial. In the case of Kentucky, the “withdrawal” was 

coupled with an immediate revision. EPA’s time for review is not restarted by those revisions.2

 

Contrary to EPA’s arguments in its reply, this determination does not mean that EPA would be put 

 2

 In addition, the Court notes that, had EPA approved or disapproved the Kentucky and Tennessee 

submittals consistent with the statutory time limits, EPA would have acted upon those submittals more than 

one year prior to their “withdrawal.” 

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United States District Court 

Northern District of California 

in the position of assessing the sufficiency of the withdrawn submissions. (EPA Reply, Dkt No. 68, 

at 4-5.) To the contrary, EPA is being ordered to assess the remaining submissions, i.e. the revised 

SIP from Kentucky and the non-withdrawn portion of the Tennessee SIP. To the extent that EPA 

determines that the “appropriate remedy” under the particular circumstances here is to find that the 

states failed to submit a SIP that satisfied the Clean Air Act requirements and should be sanctioned 

and subject to imposition of a federal implementation plan, such a determination would be 

consistent with the Court’s ruling that EPA has a mandatory duty to take action on the state 

submissions. 

Thus, EPA’s Motion to Amend the Court’s Order is GRANTED IN PART to require EPA to 

take action on the Kentucky and Tennessee SIP submittals by either: (1) approving in full, 

disapproving in full, or approving in part and disapproving in part, pursuant to 42 U.S.C. § 

7410(k)(2) and (3); or (2) issuing findings of failure to submit for each of the listed Infrastructure 

SIP elements for the 2008 ozone National Ambient Air Quality Standard, consistent with 42 U.S.C. 

§ 7410(a)(1) and (2). 

Moreover, in light of the practical realities of the time needed for notice, comment and final 

action by EPA, and the delay caused by EPA’s failure to take action on the original and the revised 

submittals, and the additional delay caused by EPA’s failure to inform the Court of the submittal 

revisions until now, the Court will provide additional time to comply with the Order. Therefore, 

the Court’s Order is AMENDED as follows: 

Defendant shall sign a final rule or rules taking final action on the 2008 ozone NAAQS 

Infrastructure SIP submittals from Kentucky (submittal dated September 8, 2009, revised July 17, 

2012) and Tennessee (submittal dated October 19, 2009, revised/withdrawn in part on July 3, 2012) 

by no later than March 4, 2013. Defendant shall forward the final signed rule or rules within 

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United States District Court 

Northern District of California 

three working days of signing to the Office of the Federal Register for review and publication. 

This order terminates Docket Nos. 65 and 67. 

IT IS SO ORDERED. 

Date: December 7, 2012 _______________________________________ 

 YVONNE GONZALEZ ROGERS

UNITED STATES DISTRICT COURT JUDGE

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