1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28United States District CourtNorthern District of California U NITED S TATES D ISTRICT C OURT N ORTHERN D ISTRICT OF C ALIFORNIA

W ILD E ARTH G UARDIANS , Plaintiff,

vs. L ISA P. J ACKSON , 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 O RDER G RANTING I N P ART EPA’ S M OTION TO A MEND O RDER

Defendant Lisa Jackson, in her official cap acity as Administrator of the United States Environmental Protection Agency (“EPA”) filed a Motion to Am end Order of October 17, 2012. (Dkt No. 65, “Motion”). EPA also filed a Motio n to Expedite Decision on the Motion to Amend Order. (Dkt No. 66.) Plaintiffs Midwest Envi ronmental Defense Center and Sierra Club opposed the Motion to Amend. (Dkt No. 67.) 1 The Court previously ordered that EPA sign a fi nal 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 appr oving in full, disapproving in full, or approving in part and disapproving in part, by “ no later than Ja nuary 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 or al argument. Accordingly, the Court V ACATES the hearing set for December 18, 2012. Case4:11-cv-05651-YGR Document69 Filed12/07/12 Page1 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28United States District CourtNorthern 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 Su mmary Judgment. (Dkt. No. 64, “Order”.) EPA seeks to amend the Order to de lete, as moot, EPA's obligation to act on the Kentucky and Tennessee submittals because those tw o states withdrew their SIP submittals dated September 8, 2009, and October 19, 2009, respectivel y. 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 wit hdrawal of the SIP subm ittal, 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 provis ion 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 interpre tations “precluding” EP A from taking action on withdrawn SIP submissions, those interpretati ons 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. Re g. 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 “withdraw al” was partial. In the case of Kentucky, the “withdrawal” was coupled with an immediate revision. EPA’s time for review is not rest arted 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.” Case4:11-cv-05651-YGR Document69 Filed12/07/12 Page2 of 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28United States District CourtNorthern District of California in the position of assessing the sufficiency of the withdrawn submissions. (EPA Reply, Dkt No. 68, at 4-5.) To the c ontrary, 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 pa rticular circumstances he re is to find that the states failed to submit a SIP that satisfied the Clean Air Act requi rements and should be sanctioned and subject to imposition of a federal implemen tation plan, such a determination would be consistent with the Court’s ruling that EPA ha s a mandatory duty to take action on the state submissions. Thus, EPA’s Motion to Amend the Court’s Order is G RANTED I N P ART to require EPA to take action on the Kentucky and Tennessee SIP submittals by either: (1) approving in full, disapproving in full, or approvi ng in part and disapproving in part, pursuant to 42 U.S.C. § 7410(k)(2) and (3); or (2) issuing findings of failur e to submit for each of the listed Infrastructure SIP elements for the 2008 ozone National Ambient Ai r Quality Standard, consistent with 42 U.S.C. § 7410(a)(1) and (2). Moreover, in light of the practic al 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 or iginal 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 A MENDED as follows: Defendant shall sign a final rule or rule s taking final action on the 2008 ozone NAAQS Infrastructure SIP submittals from Kentucky (s ubmittal 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 Case4:11-cv-05651-YGR Document69 Filed12/07/12 Page3 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28United States District CourtNorthern District of California three working days of signing to the Office of the Federa l Register for review and publication. This order terminates Docket Nos. 65 and 67. I T I S S O O RDERED . Date: December 7, 2012

_______________________________________ Y VONNE G ONZALEZ R OGERS U NITED S TATES D ISTRICT C OURT J UDGE Case4:11-cv-05651-YGR Document69 Filed12/07/12 Page4 of 4