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James Jay Tutchton (CA Bar No. 150908)

WildEarth Guardians

6439 E. Maplewood Ave.

Centennial, CO 80111

Telephone: (720) 301-3843

Email:jtutchton@wildearthguardians.org

Attorney for Plaintiff

a'T

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

yv-11 5651

Case No.

WILDEARTH GUARDIANS,

Plaintiff,

v.

LISA JACKSON, in her official capacity as

Administrator ofthe Environmental Protection

Agency

Defendant.

INTRODUCTION

1. Ground-level ozone pollution, commonly referred to as smog, is linked to a

number of adverse human health impacts, including asthma attacks, coughing, wheezing, lung

deterioration, increases in emergency room visits, and even premature death. In addition to

harming human health, ground-level ozone pollution also harms the environment, interfering

with vegetation's ability to function properly,and consequently decreases crop yields and

damages native ecosystems. As scientificunderstanding ofthe harmful impacts of ground-level

ozone pollution has increased, and to better protect public health and the environment, in 2008,

the United States Environmental Protection Agency ("EPA") promulgateda revised National

Complain1

COMPLAINT
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Ambient Air Quality Standard("NAAQS") for ozone pollution pursuant to the Clean Air Act.

EPA's revised 2008 NAAQS for ground-level ozone pollution (the "2008 Ozone NAAQS")

lowered the allowable concentration of ozone in the ambient air to no more than 0.075 parts per

million over an eight-hour period.

2. Unfortunately, EPA has yetto follow through with two keynondiscretionary

duties necessary to implement its 2008 Ozone NAAQS, andthus hasfailed to actually protect

public health and the environmentfrom the dangers of ground-level ozone pollution which

compelled the Agency to tighten the NAAQS in the first place. This lawsuit seeks to force EPA

to perform its nondiscretionary duties underthe Clean Air Act concerning the 2008 Ozone

NAAQS and actually begin protecting people and the environment from smog.

3. The first ofthese nondiscretionary duties, which EPA has neglected, is to

establish rules to ensure that States "prevent significantdeterioration" of air quality with regard

to ground-level ozone. The Clean Air Act required EPA to promulgate these "PSD" rules within

two years after the issuance ofthe 2008 Ozone NAAQS. As ofthe date of this Complaint, EPA

has not promulgated the required PSD rules.

4. The second ofthese nondiscretionary duties, which EPA has neglected, is to

ensure that all States have adequate plans to implement and enforce the 2008 Ozone NAAQS.

All States were required to adopt and submit such plans to EPA for approval within three years

after the promulgation ofthe 2008 Ozone NAAQS. As of the date ofthis Complaint, only two

States, Kentucky and Tennessee, have submitted the required plans to EPA for approval. Under

the Clean Air Act, when States fail to submit required plans by the applicable deadline, EPA is

required to make a finding within six months that the relevant States have failed to submit the

required plans. Such a finding by EPA then triggers a duty upon the Agency to either prepare a

Federal plan for that State or fully approve a State plan within two years. As ofthe date ofthis

Complaint, EPA has yet to make any findings that States have failed to submit the required plans

to attain and maintain the 2008 Ozone NAAQS even though only two States have done so.

5. Accordingly, Plaintiff WildEarth Guardians ("Guardians") brings this citizen suit

pursuant to the Clean Air Act to compel Defendant, Lisa P. Jackson, in her official capacity as

Administrator ofthe EPA, to comply with her nondiscretionary duties.

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JURISDICTION

6. Guardians bring thisaction undertheClean AirAct's citizen suit provision, 42

U.S.C. § 7604(a)(2), which authorizes civil actions against EPA for itsfailure to perform non

discretionary duties. Thus, this case raises a federal question. The Court has subject matter

jurisdiction overGuardians' claims pursuant to 28 U.S.C. § 1331 (federal question jurisdiction).

The requested reliefis authorized by 28 U.S.C. §§ 2201-02 (declaratory and injunctive relief).

7. OnSeptember 8, 2011, Guardians mailed to EPA, bycertified mail, return receipt

requested, a letterproviding written notice of Guardians' intent to sue EPA regarding itsfailure

to promulgate PSD rules for the 2008 Ozone NAAQS. On October 31, 2011, EPA sent

Guardians a letteracknowledging receipt of thisnotice letter. According to the certified mail,

return receipt records, EPA received Guardians' PSD notice letter on September 15, 2011. On

September 13, 2011, Guardians mailed to EPA, by certified mail, return receipt requested, a

letter providing written notice of Guardians' intent to sue EPA regarding its failure to make

findings that the overwhelming majority of States hadfailed to submit the required plans to

implement and enforce 2008 Ozone NAAQS. On November 3,2011, EPA sent Guardians a

letter acknowledgingreceipt of this notice letter. According to the certified mail, return receipt

records, EPA received this notice letter on September 19,2011. Guardians provided the two

separate notice letters described above pursuant to 42 U.S.C. § 7604(b)(2) and 40 C.F.R. §§

54.2(a) and 54.3(a). More than sixty days have passed since EPA received Guardians' notice

letters. EPA has not remedied the violations of law alleged in this Complaint. Accordingly, an

actual controversy exists between the parties within the meaning ofthe Declaratory Judgment

Act. 28 U.S.C. §2201.

VENUE

8. Venue is proper in this judicial district under 28 U.S.C. § 1391(e) because EPA

maintains a major regional headquarters office in this district, EPA Region 9, located in San

Francisco, and because a substantial part of the events and omissions alleged in this Complaint

occurred in this district. EPA Region 9 enforces the relevant provisions ofthe Clean Air Act in

California and other states. EPA's failure to perform the nondiscretionary duties alleged in this

Complaint directly impacts air quality in the Northern District ofCalifornia and elsewhere.

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1NTRADISTRICT ASSIGNMENT

9. Pursuant to Civil L.R. 3-2(c)and (d)this case should be assigned to the San

| Francisco or Oakland Division because EPA's Region 9, Pacific Southwest Regional

Headquarters are located in SanFrancisco County and a substantial part of the events and

omissions alleged in this Complaintoccurred in this judicial division.

PARTIES

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

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

non-profit corporation. Therefore, Guardians is a "person"within themeaning of theClean Air

Act, 42 U.S.C. § 7602(e),and may commence a civil action under 42 U.S.C. § 7604(a)(2).

Guardians brings this action on its own behalfand on behalfof its adversely affected members.

Guardians and its members are dedicated to protectingand 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 orderto safeguard public

health and welfare, and the environment. Guardians members work or recreate in States,

including California, where EPA's failure to perform its nondiscretionary duties is having a

negative effect on air quality and harming human health and the plants and animals Guardians

and its members strive to protect.

11. Guardians' members' work, recreational, and other activities and aesthetic

pursuits arc harmed by ozone pollution. EPA's failures to act at issue in this Complaint deny

Guardians' members the certainty they need not only that unhealthy levels of ozone pollution

will be addressed in order to attain the 2008 Ozone NAAQS, but that air quality will not become

unhealthy and in violation ofthe 2008 Ozone NAAQS in areas where it is currently in

compliance. EPA's failure to timely perform its mandatory duties at issue in this Complaint also

adversely affects Guardians and its members, by depriving them of procedural protection and

opportunities as well as information to which they are entitled under the Clean Air Act.

Guardians' and its members' interests have been, are being, and will continue to be harmed by

EPA's failure to perform the nondiscretionary duties at issue in this Complaint.

12. The continuing injuries suffered by Guardians and its members are traceable to

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EPA's failure to comply with itsmandatory duties at issue inthis Complaint, and would be

remedied by the requested relief.

13. Defendant, Lisa Jackson, is the Administrator ofthe EPA. She issued in her

official capacity. As Administrator, Ms. Jackson isresponsible for insuring EPA's compliance

with the Clean AirAct including the mandatory duties at issue inthis Complaint.

GOVERNING LAW

14. Congress enacted theClean 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 theNation iswholesome once again." H.R.Rep. No. 1146, 91s'Cong., 2dSess. 1,1,

1970 U.S. Code Cong. & Admin. News 5356, 5356.

15. Under the Clean Air Act, EPA is required to establish National Ambient Air

Quality Standards "NAAQS" for criteria pollutants. 42 U.S.C, § 7409(a)(1). Criteria pollutants

are thosepollutants that"causeor contribute to air pollution which mayreasonably be

anticipated to endanger public health or welfare" andare emitted by "numerous or diverse

mobile or stationarysources." 42 U.S.C. §§ 7408(a)(1)(A) and (B).

16. EPA must establish primary NAAQS at a level "requisite to protect the public

health." 42 U.S.C. § 7409(b)(1). EPA must also establish secondary NAAQS at a level

"requisite to protect the public welfare." 42 U.S.C. § 7409(b)(2). Once EPA has established

NAAQS for criteria pollutants, the agency is obligated to review and revise the relevant NAAQS

"at five-year intervals." 42 U.S.C. § 7409(d)(1).

17. Upon revisionof a NAAQS, two key "downstream" deadlines are triggered to

ensure the standards are implemented and enforced, and that air quality if attained and/or

maintained in compliance with the NAAQS.

18. The first of these key deadlines is that within two years after the revision or

establishmentof a NAAQS after 1977, EPA must "promulgate regulations to prevent the

significant deterioration of air quality" (commonly known as PSD rules). 42 U.S.C. § 7476(a).

The Clean Air Act requires that such regulations address several pollutants, including

photochemical oxidants,otherwise known as ozone. Id. The Statute actually refers to

"photochemical oxidants." However, EPA has determined "[ojzone is the oxidant found in the

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largest quantities in the atmosphere." 70 Fed. Reg. 59582, 59590 (Oct. 12 2005). EPA

originally promulgated national ambient air quality standards for photochemical oxidants in

1971. EPA laterchanged the chemical designation from "photochemical oxidants" to "ozone."

See 44Fed. Reg. 8202 (Feb. 8, 1979). Thus, the reference to "photochemical oxidants" in the

Statute is considered to be a reference to "ozone."

19. Such PSD regulations must "provide specific numerical measures against which

permit applications [for stationarysources of air pollution] may be evaluated, a framework for

stimulating improved control technology, protection of air quality values, and fulfill thegoals

and purposes set forth in section 101 and section 160 [of theClean Air Act]." 42 U.S.C. §

7476(c). The goalof the PSDregulations is to "protect and enhance the quality of the Nation's

airresources soas to promote the public health and welfare and theproductive capacity of its

population." 42 U.S.C. § 7401(b)(1).

20. The second ofthe key downstream deadlines flowing from the revision of a

NAAQS is thatwithin three years of the revision of a NAAQS, all States are required to submit

State Implementation Plans ("SIPs") to attain and maintain the NAAQS. 42 U.S.C. § 7410(a)(1).

The Clean Air Act's definition of States includes the District ofColumbia, Puerto Rico, the

Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands, 42 U.S.C. §

7602(d). To assure that the SIPs includeand meet the requirementsset forth in the Clean Air

Act, States, and ultimately EPA, must ensure that the SIPsincludeand meet the requirements

regarding the implementation and enforcement of standardsfound in 42 U.S.C. §§

7410(a)(2)(A)-(M). These requirements include: setting enforceable emission limits, 42 U.S.C. §

7410(a)(2)(A); establishment and operation of monitoring systems, Id- § 7410(a)(2)(B);

enforcement programs, Id. § 7410(a)(2)(C); limits on interstate transport, Id. § 7410(a)(2)(D);

assurancesof adequateauthority. Id. § 7410(a)(2)(E); monitoring of emissions from stationary

sources, id. § 7410(a)(2)(F); authority to exercise emergency powers, Id. § 7410(a)(2)(G);

provisions that provide for the revision of SIPs, Id- § 7410(a)(2)(H); meeting consultation, public

notification, and PSD requirements. Id. § 7410(a)(2)(J); providingfor the modeling of air

quality, Id. § 7410(a)(2)(K); establishingpermitting fees.Id. § 7410(a)(2)(L); and ensuring

consultation and participationby local entities, Id. § 7410(a)(2)(M). These requirements arc

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collectively referred to asthe "general infrastructure elements." See EPA, State Implementation

PlanOverview, available at http://www.cpa.gov/air/urbanair/sipstatus/ovcrview.htmI- hence,

such SIPs are often referred toas "Infrastructure SIPs." However, the requirements of42 U.S.C.

§ 7410(a)(2)(D) are often also referred to asthe "good neighbor elements," because they require

States to limit the transport ofair pollution to neighboring States. Additionally, the requirements

of42 U.S.C. § 7410(a)(2)(I) relate toareas designated as "nonanainment areas," and are subject

to separatedeadlines set forth under other provisions of the Clean Air Act, rather than the threeyear deadline under 42 U.S.C. § 7410(a)(1).

21. Under theClean Air Act, EPA isrequired tomake a finding as to whether a State

hassubmitted a required SIP no laterthan sixmonths after the date by which the Statewas

j j Irequired to submit such a SIP. 42 U.S.C. § 7410(k)(I)(B). If EPA finds that a State has failed to

j2 !make the required SIP submission (commonly called a"finding of failure to submit"), the EPA

has two years bywhich it must promulgate a Federal Implementation Plan ("F1P") or approve

the required SIP,in whole or part. A FIP is "a plan (or portion thereot) promulgated by [EPA] to

fill allor a portion of a gap or otherwise correct all or a portion of an inadequacy in a [SIP], and

which includes enforceable emission limitations or othercontrol measures, means or techniques

(including economic incentives, such as marketable permitsor auctions of emissions

allowances), and provides for attainment of the relevant [NAAQS]. 42 U.S.C. § 7602(y).

FACTUAL ALLEGATIONS

22. On March 12, 2008, EPA revised the ozone NAAQS from0.080parts permillion

over an eight-hourperiod to 0.075 parts per million over an eight-hourperiod, an effective

strengthening of the NAAQS to protect public health and welfare. 73 Fed. Reg. 16511 (Mar. 27,

2008); 40 C.F.R. § 50.15(a).

23. The promulgationof the 2008 Ozone NAAQS triggered nondiscretionary

deadlinesby which EPA was required to promulgate the two significant downstream rules to

prevent significant deterioration of air quality and make findings the States had failed to submit

required SIPs as appropriate.

24. According to the Clean Air Act, 42 U.S.C. § 7476(a), EPA was required to

promulgate PSD rules forthe 2008 Ozone NAAQS within two years of the promulgation of the

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NAAQS. Thus, EPA was obligated to promulgate the PSD rules for the2008 Ozone NAAQS by

March 12, 2010.

25. As of thedate of this Complaint, EPA has notpromulgated rules to prevent

significantdeterioration of air quality for the 2008 OzoneNAAQS.

26. According to the Clean Air Act, 42 U.S.C. § 7410(a), States were required to

submit Infrastructure SIPs that include and meet the requirements of 42 U.S.C. § 7410(a)(2)(A)-

(M) with regard to the implementation and enforcement of the 2008 Ozone NAAQS within three

years of the promulgationof the NAAQS. Thus, States were required to submit the

Infrastructure SIPs by March 12,2011.

27. Under theClean Air Act, 42 U.S.C. § 7410(k)(l)(B), EPAwasrequired to make a

finding offailure to submit within six months of March 12, 2011 for any Statethatfailed to

submit all or a portion of the required Infrastructure SIP forthe 2008 Ozone NAAQS. Thus, if

any Statefailed to make the required submission, EPAwasrequired to makea finding of failure

to submit by September 12, 2011.

28. As of the date ofthis Complaint, only two States, Kentucky and Tennessee, have

made the required Infrastructure SIP submissions including the requirements of42 U.S.C. §

7410(a)(2)(A)-(M) for the 2008 Ozone NAAQS. EPA deemed Kentucky's Infrastructure SIP

submission complete on March 8, 2010 and deemed Tennessee's Infrastructure SIP submission

complete on April 19, 2010. See EPA, Status ofState SIP InfrastructureRequirements,

Kentucky, available at

http:.7www.epa.gov/airquality/urbanair/sipstatus/reports/ky_infrabypoll.html#xl 10 a 2 O7one_

2008 and EPA, Status of State SIP Infrastructure Requirements, Tennessee, available at

http://www.epa.gov/airqualitv/urbanair/sipstams/reports/tn infrabvpoll.htmltfl 10_a_2_ozone_20

08-

29. As ofthe date of this Complaint, and based on information and belief, no other

State has made the required Infrastructure SIP submission for the 2008 Ozone NAAQS, either in

full or in part.

30. As ofthe date ofthis Complaint, EPA has not made a finding or findings that any

State, excluding Kentucky and Tennessee, have failed to submit the required infrastructure SIP

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SECOND CLAIM FOR RELIEF

19 (EPA's Failure to Make Findings that States Have Failed to Submit Required Infrastructure SIPs

for the 2008 Ozone NAAQS)

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submission for the 2008 Ozone NAAQS to meet the requirements of42 U.S.C. §7410(a)(2)(A)-

(M).

FIRST CLAIM FOR RELIEF

(EPA's Failure to Promulgate PSD Rules for the 2008 Ozone NAAQS)

31. All allegations in the proceeding paragraphs ofthis Complaint are incorporated

herein by reference,

32. OnMarch 12, 2008, EPA promulgated a revised ozone NAAQS.

33. EPA was required to promulgate rules to prevent thesignificant deterioration of

airquality for the 2008 Ozone NAAQS to later than March 12, 2010. 42 U.S.C, § 7476(a).

34. Asof the dateof thisComplaint, EPA hasnot promulgated PSD rules for the

2008 Ozone NAAQS.

35. Accordingly, EPAhas violated and continues to violate itsmandatory,

nondiscretionary, dutyto promulgate PSD rules forthe 2008 Ozone NAAQS. 42 U.S.C. §

7476(a).

36. EPA's violation constitutes a "failure to theAdministrator to perform anyact or

duty under thischapterwhich is not discretionary with the Administrator" within themeaning of

theClean Air Act's citizen suit provision. 42 U.S.C. § 7604(a)(2). EPA's violation is ongoing

and will continue unless the requested relief is granted by this Court.

37. All allegations in the proceeding paragraphs of this Complaint are incorporated

herein by reference.

38. On March 12, 2008, EPA promulgated a revised ozone NAAQS.

39. All States were required to submit Infrastructure SIPs to meet the requirements of

42 U.S.C. §§ 7410(a)(1) & (2)(A)-(M)for the 2008 Ozone NAAQS by no later than March 12,

2011. See 42 U.S.C. §§ 7410(a)(1). States were specifically required to submit SIPsthat include

and meet the requirements of42 U.S.C. §§ 7410(a)(2)(A)-(M).

40. Within six months after March 12, 2011, thus by September 12, 2011, EPA was

required by the Clean Air Act to make a findingof failure to submit for any State that failed to

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submit the required Infrastructure SIP for the 2008 Ozone NAAQS before this deadline. See 42

U.S.C. §7410(k)(l)(B).

41. As of the date of this Complaint, all States,except Kentucky and Tennessee, have

failed to submit all or portions oftheir Infrastructure SIPs to implementand enforce the 2008

Ozone NAAQS in accordance with 42 U.S.C. § 7410(a)(2)(A)-(M).

42. As of the date of thisComplaint, EPAhas not madea finding or findings that all

States, excluding Kentucky andTennessee, havefailed to submit the required Infrastructure SIPs

for the 2008 Ozone NAAQS.

43. Accordingly, EPA has violated and continues to violate itsmandatory,

nondiscretionary, duty under 42 U.S.C. § 7410(k)(l)(B),

44. This violation constitutesa "failure of the Administratorto perform any act or

duty under thischapter which is notdiscretionary with the Administrator" within themeaning of

theClean AirAct's citizen suitprovision. 42 U.S.C. § 7604(a)(2). EPA's violation is ongoing

and will continueunless the requested relief is granted by this Court.

REQUEST FOR RELIEF

WHEREFORE, Plaintiffrespectfully requests the Court grant the following relief:

A. A declaratory judgment that Defendant has violated and is in violation of her

mandatory, nondiscretionary, duty under 42 U.S.C. § 7476(a)to promulgate PSD rules for the

2008 Ozone NAAQS;

B. A declaratory judgment that Defendant has violated and is in violation of her

mandatory, nondiscretionary, duty under 42 U.S.C. § 7410(k)(l)(B) to make a finding or

findings that all States, excluding Kentucky andTennessee, have failed to submit the required

Infrastrucmre SIPsfor the 2008 Ozone NAAQS in accordance with 42 U.S.C. §§ 7410(a)(1) &

(2)(A)-(M);

C. An injunction ordering Defendant to perform hermandatory, nondiscretionary,

duty under 42 U.S.C. § 7476(a) to promulgate PSD rules forthe 2008 Ozone NAAQS by a date

certain;

D. An injunction ordering Defendant to perform her mandatory, nondiscretionary,

duty under42 U.S.C. § 7410(k)(l)(B) to make a finding or findings that all States, excluding

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Kentucky and Tennessee, have failed tosubmit the required Infrastructure SIPs for the 2008

2 Ozone NAAQS in accordance with 42 U.S.C. §§ 7410(a)(1) &(2)(A)-(M) by adate certain;

E. An order retaining jurisdiction ofthis action to ensure compliance with the

Court's injunctive orders;

F. An award ofPlaintiffs costs oflitigation, including attorneys' fees, to Plaintiff

pursuant to 42 U.S.C. § 7604(d); and

G. Such other and further relief asthis Court deems justand proper.

DATED: November 20. 2011 Respectfully Submitted,

'James J.Tutchton (CA Bar No. 150908)

WildEarth Guardians

6439 E. Maplewood Ave.

Centennial, CO 80111

Telephone: (720) 301-3843

Email: jtutchtonfajwildearthguardians.org

Attorney for Plaintiff

Complaint 11