Law Office of Robert Ukeiley

507 Center Street ◦ Berea, Kentucky 40403 ◦ tel.859-986-5402 

Robert Ukeiley

rukeiley@igc.org

VIA CERTIFIED MAIL - RETURN RECEIPT REQUESTED

February 10, 2014

Gina McCarthy

Administrator

United States Environmental Protection Agency

Ariel Rios Building

1200 Pennsylvania Avenue, NW

Washington, D.C. 20460

Re: Clean Air Act Notice of intent to sue pursuant to 42 U.S.C. § 7604(b)(2) for 

failure to take final action on 2010 sulfur dioxide NAAQS infrastructure 

state implementation plan submittal and failure to make finding of failures

to submit 

Dear Administrator McCarthy:

Pursuant to 42 U.S.C. § 7604(b)(2) and 40 C.F.R. Part 54, Sierra Club is notifying you 

that they intend to file suit against you for "a failure of the Administrator [of the United States 

Environmental Protection Agency (“EPA”)] to perform an[] act or duty under this chapter which 

is not discretionary with the Administrator" within the meaning of the Clean Air Act. 42 U.S.C. 

§ 7604(a)(2). Specifically, EPA has failed to find that multiple States, the District of Columbia

and Puerto Rico (collectively “States”) have failed to submit State Implementation Plans 

(“SIPs”) to meet various requirements under Section 110(a) of the Clean Air Act with regards to 

the 2010 National Ambient Air Quality Standards (“NAAQS”) for sulfur dioxide (SO2). These 

States were required to submit such SIPs within three years of the promulgation of the 2010 SO2

NAAQS, or by no later than June 2, 2013. EPA is also required to take final action on a 2010 

SO2 NAAQS infrastructure state implementation plan submittal for Illinois within 12 months 

after it was deemed administratively complete. 42 U.S.C. § 7410(k)(2) - (4). As explained 

below in detail, EPA has violated these mandatory duties.

EPA should remedy these violations of its mandatory duties to better provide protection 

from the harmful impacts of SO2. SO2 has numerous harmful effects on human respiratory 

systems, including bronchoconstriction and increased asthma symptoms. EPA, Health effects of 
Administrator Gina McCarthy

February 10, 2014

Page 2

SO2 Pollution (available at http://www.epa.gov/airquality/sulfurdioxide/health.html). Short-term 

exposure to SO2 has also been linked to increased hospital and emergency room admissions for 

respiratory illness, particularly among children, the elderly, and asthmatics. Id. Thus, it is 

imperative that EPA remedy its failure to perform its mandatory duties in order to strengthen 

protection of the public’s health and welfare against SO2. 

On June 2, 2010, the Administrator promulgated a primary NAAQS for SO2. 75 Fed. Reg. 

35,520 (June 22, 2010) (2010 SO2 NAAQS). The Clean Air Act requires states to submit state 

implementation plans that provide for the “implementation, maintenance, and enforcement” of a 

new or revised NAAQS within three years of the standard’s promulgation. 42 U.S.C. § 

7410(a)(1). These are known as “infrastructure” state implementation plans. States were 

required to submit these 2010 SO2 NAAQS infrastructure SIPs by no later than June 2, 2013. See 

also 

http://www.epa.gov/air/urbanair/sipstatus/reports/ak_infrabypoll.html#x110_a__2__so2__2010_

(deadline is 06/02/2013)(last visited 1/19/14). 

Under the Clean Air Act, the Administrator has a mandatory duty 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). These are commonly 

referred to as “findings of failure to submit.” Six months after the state’s due date for the 2010 

SO2 NAAQS Infrastructure SIPs was December 2, 2013.

Also under the Clean Air Act, if a state does submit a SIP submittal and six months after 

that submittal, EPA has not made a completeness finding and has not found the submittal to be 

incomplete, the submittal is deemed administratively complete by operation of law. 42 U.S.C. § 

7410(k)(1)(B). Id. EPA must take final action on an administratively complete submittal by 

approving in full, disapproving in full, or approving in part and disapproving in part within 12 

months of the completeness finding. 42 U.S.C. §§ 7410(k)(2) - (4). 

FAILURE TO MAKE A FINDING OF FAILURE TO SUBMIT

As noted above, Infrastructure SIPs for the 2010 SO2 NAAQS were due June 2, 2013. 

Thus, EPA’s mandatory duty to make a finding of failure to submit for states which have not 

submitted was December 2, 2013. December 2, 2013 has passed but the following states have not 

made 2010 SO2 NAAQS Infrastructure SIP submittals:

Alaska, Alabama (Sections 110(a)(2)(D)(i)(I), 110(a)(2)(D)(i)(II)(Prong 4 – visibility), 

Arkansas, Arizona (Sections 110(a)(2)(D)(i)(I)), California, Colorado (Sections 

110(a)(2)(D)(i)(I)), District of Columbia, Florida (Sections 110(a)(2)(D)(i)(I)), Georgia 

(Sections 110(a)(2)(D)(i)(I)), Hawaii, Iowa, Idaho (Sections 110(a)(2)(D)(i)(I)), Indiana, 

Kentucky (Sections 110(a)(2)(D)(i)(I)), Maine, Michigan, Minnesota, Mississippi (Sections 

110(a)(2)(D)(i)(I)), North Carolina, Nebraska, New Hampshire (Section 

110(a)(2)(D)(i)(I)(Prong 1 significant contribution), New Jersey, New Mexico, Ohio, 

Oklahoma, Oregon (Sections 110(a)(2)(D)(i)(I)), Pennsylvania, Puerto Rico, Rhode Island, 

South Carolina, South Dakota, Tennessee, Utah (Sections 110(a)(2)(D)(i)(I)), Virginia, 
Administrator Gina McCarthy

February 10, 2014

Page 3

Vermont, Washington, Wisconsin, West Virginia (Sections 110(a)(2)(D)(i)(I)), and 

Wyoming

See http://www.epa.gov/air/urbanair/sipstatus/reports/map_i.html (last visited February 7, 2014). 

Thus, for these states, EPA is in violation of its mandatory duty to make a finding of failure to 

submit. 

FAILURE TO TAKE FINAL ACTION

EPA has failed to take final action on Illinois’ infrastructure state implementation plan 

submittal for the 2010 SO2 NAAQS. On January 9, 2013, either EPA or operation of law deemed 

Illinois’ state implementation plan submittal that included the infrastructure requirements under 

42 U.S.C. § 7410(a)(2)(A)-(H), (J)-(M) 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__so2__2010_ 

(last viewed February 7, 2014). Under the Clean Air Act, EPA is required to 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 9, 2014. See 42 U.S.C. § 7410(k)(2) - (4). EPA has failed to do so 

in violation of its mandatory duty. 

As required by 40 C.F.R. § 54.3, the persons providing this notice are:

Sierra Club

85 Second St. 2nd Floor

San Francisco, CA 94105

Phone: (415) 977-5500

While EPA regulations require this information, please direct all correspondences and 

communications regarding this matter to the undersigned counsel.

Sierra Club and their counsel would prefer to resolve this matter without the need for 

litigation. Therefore, we look forward to EPA contacting undersigned counsel to resolve this 

matter. If we do not hear from EPA in 60 days, however, we will have to assume that you are 

not interested in settling this matter and file or amend a complaint.

Sincerely,

Robert Ukeiley

Counsel for Sierra Club