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 28 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 ofadverse 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 Complain 1 COMPLAINT1 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 28 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 ofozone 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 withtwo keynondiscretionary duties necessary to implement its 2008 Ozone NAAQS, andthus has failed 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 Actconcerning 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 ofthis 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, PlaintiffWildEarth 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. Complaint 21 2 3 4 5 6 7 8 9 10

II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JURISDICTION 6. Guardians bring this action underthe Clean AirAct's citizen suitprovision, 42 U.S.C. § 7604(a)(2), which authorizes civil actions against EPA for its failure 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 questionjurisdiction). 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 ofGuardians' intent to sue EPA regarding its failure to promulgate PSD rules for the 2008 Ozone NAAQS. On October 31, 2011, EPA sent Guardians a letteracknowledging receipt of thisnotice letter. According to thecertified 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 therequired 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 oflaw 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 ofthe 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. Complaint 31 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 28 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. Itis organized as a non-profit corporation. Therefore, Guardians is a "person"within themeaning of the Clean 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 dedicatedto 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 airpollution 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 ofozone 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 ofprocedural 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 Complain! 41 2 i 3 4 5 6 7

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 

### 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 airpollution 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 airpollution 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 criteriapollutants, 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 "promulgateregulations to prevent the significant deterioration ofair 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 Complaint 51 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 28 

### largest quantities inthe atmosphere." 70 Fed. Reg. 59582, 59590 (Oct. 12 2005). EPA originally promulgated national ambient airquality standards forphotochemical oxidants in 1971. EPA laterchanged thechemical designation from "photochemical oxidants" to "ozone." 

### See 44Fed. Reg. 8202 (Feb. 8, 1979). Thus, thereference to "photochemical oxidants" inthe 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 airquality values, and fulfill thegoals andpurposes set forth in section 101 and section 160 [of the Clean Air Act]." 42 U.S.C. § 7476(c). The goalof the PSDregulations is to "protect and enhance the quality ofthe Nation's 

### airresources soas to promote the public health and welfare and theproductive capacity ofits 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 therevision of a NAAQS, all States arerequired 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 ofStates 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 SIPs includeand 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 ofmonitoring systems, Id- § 7410(a)(2)(B); enforcement programs, Id. § 7410(a)(2)(C); limits on interstate transport, Id. § 7410(a)(2)(D); assurances ofadequateauthority. Id. § 7410(a)(2)(E); monitoring ofemissions 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 Complaint 61 2 3 4 5 6 7

9 10

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 

### collectively referred to as the "general infrastructure elements." See EPA, State Implementation Plan Overview, 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 as the "good neighbor elements," because they require States to limit thetransport ofairpollution to neighboring States. Additionally, the requirements 

### of42 U.S.C. § 7410(a)(2)(I) relate toareas designated as "nonanainment areas," and are subjectto 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 is required to make a finding as to whether a State has submitted 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). IfEPA finds that a State has failed to 

## j2 !make the required SIP submission (commonly called a"finding offailure to submit"), the EPA has two years bywhich it must promulgate a Federal Implementation Plan ("F1P") orapprove therequired SIP,in whole or part. A FIP is "a plan (orportion thereot) promulgated by [EPA] to 

### fill allor a portion of a gap orotherwise correct all or a portion of an inadequacy in a [SIP], and which includes enforceable emission limitations or othercontrol measures, means or techniques (including economicincentives, such as marketable permitsor auctions of emissions allowances), andprovides 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 triggerednondiscretionary deadlinesby which EPA was required to promulgate the two significant downstream rules to prevent significant deterioration ofair 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 thepromulgation of the Complaint 71 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 28 

### NAAQS. Thus, EPA was obligated to promulgate the PSD rules for the2008 Ozone NAAQS by March 12, 2010. 

### 25. As of thedate ofthis Complaint, EPA has notpromulgated rules to prevent significantdeterioration of air quality for the 2008 OzoneNAAQS. 26. According to the Clean AirAct, 42 U.S.C. § 7410(a), States were required to 

### submit Infrastructure SIPs that include and meet therequirements 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 the Clean Air Act, 42 U.S.C. § 7410(k)(l)(B), EPAwasrequired to make a finding offailure to submit within six months ofMarch 12, 2011 for any Statethatfailed to submit all or a portion of therequired Infrastructure SIP forthe 2008 Ozone NAAQS. Thus, if any Statefailed to make therequired submission, EPAwasrequired to makea finding offailure 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 ofthis 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 Complain! 81 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 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) 20 21 22 23 24 25 26 27 28 

### submission for the 2008 Ozone NAAQS to meet the requirements of 42 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 the significant deterioration of airquality for the2008 Ozone NAAQS to later than March 12, 2010. 42 U.S.C, § 7476(a). 34. Asof the dateof thisComplaint, EPA hasnotpromulgated PSD rules for the 2008 Ozone NAAQS. 35. Accordingly, EPAhas violated and continues to violate its mandatory, 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 the Clean Air Act's citizen suitprovision. 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 SIPs that 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 Complaint 91 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 28 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 thatall 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 its mandatory, 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 declaratoryjudgment that Defendant has violated and is in violation ofher 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 ofher 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. Aninjunction 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 Complaint 103 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 

### Kentucky and Tennessee, have failed to submit 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 retainingjurisdiction 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 reliefasthis Court deemsjustand 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