Case 1: 12-cv-0034 7 -RLW Document 1 Filed 03/02/12 

SIERRA CLU13, 

UNiTED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

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FILED 

MAR - 2 201?. 

t.:h::rk. US D1stm:t & oa ~.; uprcy 

Couris fur t/1e District o1 Golumbi? 

85 Second Street, 2nd Flour 

San Francisco, CA 94! 05 ) Case: 1 12-cv-00347 

> Assigned To : Wilkins, Robert L. PlaintiCf, 

vs. 

LISA P. JACKSON, 

in her official capacity as 

Administrator 

United States Environmental Protection Agency 

/\riel Rios Building 

1200 Pennsylvania A venue, N. W. 

Washington, DC 20460 

Defendant. 

) Assign. Date : 3/2/2012 

) Description: Admin. Agency Review 

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COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 

I. INTl{ODUCTION 

I. Particulau: matter less than 2.5 microns in diameter (''PM2.5"). sometimes referred to as 

fine particulate, is a major cause of serious air quality problems in many parts of the United 

States. Exposure to PM2.5 causes numerous human respiratory problems, including decreased 

lung function, asthma and bronchitis, and is also associated with premature mortality, hospital 

admissions, cardiopulmonary disease and lung cancer. The detrimental effects of PM2.5 are not 

limited to human health; PM2.5 also contributes to regional haze, thereby contributing to the 

visibility range limitations in some of our Nation's most treasured natural areas. 

2. To better protei.:t the public from the damage C<wsed by PM2.5, the United States 

Environmental Protection Agency ("EPA") promulgated a revision to the PM2.5 National 
Case 1:12-cv-00347-RLW Document 1 Filed 03/02/12 Page 2 of 13 

Ambient Air Quality Standard in 2006. Under the Clean Air Act, each state is required to submit 

a plan, within three years of the promulgation or revision of a new National Ambient Air Quality 

Standard, which addresses specific requirements to provide for the implementation, maintenance 

and enforcement of the new standard. These arc known as "lnfrastmcture" state implementation 

plans ("SIPs"). Without Infrastructure plans, citizens are not afforded full protection against the 

harmful effects of PM2.5. 

3. EPA is required to take final action on a state's Infrastructure state implementation plan 

submittal by approving in full. disapproving in full, or approving in part and disapproving in part 

within 12 months of the date a submittal is deemed administratively complete. Furthennore, if a 

state fails to submit its Infrastructure state implementation plan by the required date, EPA is 

required to issue a finding stating so, known as a ''finding offailure to submit.'' EPA has failed 

to take final action on several states' Infrastructure state implementation plan submittals. 

Additionally, EPA has failed to issue a finding of failure to submit a sufficient Infrastructure 

state implementation plan for at least I state. Accordingly, Plaintiff SIERRA CLUB brings this 

action against Defendant LISA P. JACKSON, in her official capacity as EPA Administrator, to 

compel her to perfonn her mandatory duties with respect to these PM2.5 Infrastructure state 

implementation plans. 

II. JURISDICTION 

4. This case is a Clean Air Act citizen suit. Therefore, the Court has jurisdiction over this 

action pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and 42 U.S.C. § 7604(a)(2) 

(citizen suits for failure to perform a non-discretionary duty required by the Clean Air Act). 

5. J\n actual controversy ex ~ between the parties. This case docs not concern federal 

taxes, is not a proceeding under ll U.S.C. §§ 505 of 1146, and docs not involve the Tariff Act of 

1930. Thus, this Coun has jurisdiction to order declaratory relieC under 28 U.S.C. § 2201. If the 

Court orders declaratory relief, 28 U .S.C. § 2202 authorizes this Court to issue injunctive relief. 

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111. NOTICE 

6. Siena Club mailed to EPA by certified mail, return receipt requested, written notice of 

intent to sue regarding the violations alleged in this Complaint. EPA received notice letters by 

no later than August 17, 201 1 (Missouri, New Jersey, Kentucky), October I, 2011 (Montana, 

New York, Kansas, and Pem1sylvania), December 12, 2011 (Colorado). More than sixty days 

have passed since EPA received these notice letters. EPA has not remedied the violations 

alleged in this Complaint. Therefore, a present and actual controversy exists between the parties. 

IV. VENUE 

7. This civil action is brought against an officer of' the United States acting in her official 

capacity. EPA is headquartered in this judicial district. Furthermore, Defendant Lisa P. Jackson 

officially resides in the District of Columbia. A substantial part of the events or omissions 

giving ris.:: to the claims in this case oc<.:urred in the District of Columbia. Accordingly. venue is 

proper in this Court pursuant to 28 U.S.C. § 1391(e). 

V. PARTIES 

8. Plaintiff SIERRA CLUB is a national grassroots nonprofit conservation organization 

formed in 1892. Sierra Club's purpose includes practicing and promoting the responsible use of 

earth's ecosystems and resources. and protecting and restoring the quality of the natural and 

human environment. 

9. Sierra Club has over 600,000 members nationally. Members and staff of Sierra Club 

live, work, recreate, and travel throughout the areas at issue in this cast! and will continue to do 

so on a regular basis. PM2.5 in the affected states and territories threatens, and will continue to 

threaten, the health and welfare of the Sierra Club's stall and members. Sierra Club stafrs and 

members', as well as the public's, ability to enjoy the aesthetic qualities and recreational 

opportunities is diminished in the affected areas due to impacts from PM2.5 pollution. 

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I 0. EPA's failure to timely perform the mandatory duties described herein also adversely 

affects Sierra Club, as well as its staff and members, by depriving it of procedural protection and 

oppontmitics as well as information which it is entitled to under the Clean Air Act. The failure 

of EPA to perform the mandatory duties also creates uncertainty for Sierra Club's staff and 

members as to whether they are exposed to excess air pollution. 

ll. The above injuries will continue until the Court grants the relief requested herein. 

12. Defendant LISA P. JACKSON is the Administrator o r the United States Environmental 

Protection Agency. In that role Administrator Jackson has been charged by Congress with the 

duty to admi nister the Clean Air Act. including the mandatory duties at issue in this case. 

VI. LEGAL BACKGROUND 

13. Congress enacted the Clean 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 the 

Nation is wholesome once again." H.R.Rcp. No. 1146, 91 st Cong., 2d Sess. I, I, 1970 U.S.Codc 

Cong. & Admin. News 5356, 5356. To promote this, the Act requires EPA to set National 

Ambient Air Quality Standards for certain pollutants. including PM2.5. National Ambient Air 

Quality Standards establish maximum allowable concentrations in the air of these pollutants. 

14. Each National Ambient Air Quality Standard must be stringent enough to prot~.: ct public 

health and welfa re. Effects on welfare include, but are not limited to, effects on soils. water, 

vegetation, manmade materials, wildlife, visibility (i.e., haze), climate, damage to property, 

economic impacts and effects on personal comfort and well-being. 

15. The Clean Air Act requires each state to submit a state implementation plan for every 

promulgation or revision of a National Ambient Air Quality Standard, within three years of that 

standard's promulgation or revision, that provides for the "implementation, maintenance, and 

enforcement'' ofthe standard. 42 U.S.C. § 7410(a)(l). These are often referred to as 

" infrastructure" state implementation plans. 

16. An infrastructure state implementation plan submittal must meet the requirements listed 

under 42 U.S.C. § 741 O(a)(2). See 42 U.S.C. §§ 741 0(a)(2)(A)-(M). 

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17. The Clean Air Act requires EPA to determine whether any state implementation plan 

submittal is administratively complete. See 42 U.S.C. 7410(k)(I)(B). If, six months aficr a state 

submits a state implementation plan, EPA has not made the completeness finding and has not 

found the submittal to be incomplete, the submittal is deemed administratively complete by 

operation of Jaw. !d. 

18. EPA has a mandatory duty to tak~:: Jinal al:tion on any administratively complt::te state 

impkmentation plan submittal by approving in full, disapproving in Cull or approving in part and 

disapproving in part within 12 months ofthe date it is deemed administratively complete. 42 

U.S.C. § 7410(k)(2) and (3). 

19. If a state fails to submit any n:quircd state implementation plan, there is no submittal that 

may be deemed administratively complete and EPA must make a determination stating that the 

state failed to submit the required state implementation plan. 42 U.S.C. § 7410(k)(l)(B). This is 

referred to as a ··finding or failure to submit.'' 

VII. STATE IMPL11:MENTATION PLAN SUBMITTALS 

20. On October 17, 2006, EPA promulgated a revision to the PM2.5 24-hour National 

Ambient Air Quality Standard. 71 Fed. Reg. 61144 (Oct. 17, 2006). The effective date ofthc 

new standard is December 18, 2006. Jd. 

2 1. On June 28,2010 either EPA or operation of law deemed Missouri's 2006 PM2.5 

infrastructure state implem~..:ntation plan submittal addressing the requirements of 42 U.S.C. § 

7-l IO(a)(2)(A)-lC'), D)(i)(II)(Pr~)ng 3 PSD on ly), (D)(ii), (E)-( 11 ), ami (J)-(M) complete. See 

EPA. Status of State SIP Infrastructure Requirements-Missouri (available at 

http://www epa.gov air urbanair sipstatusir~?por s/mo _ill frabypoll.html#x 1 I 0 _u _1 __pm2.5 2006) (last viewed Oct. 18, 20 II). 

22. On July 20,2010 either EPA or operation ofluw deemed New Jersey's 2006 PM2.5 

infrastructure state implementation plan submittal addressing the requirements of 42 U.S.C. § 

741 O(a)(2)(A)-(C), (D)(i)(II)(Prong 3 PSD only), (O)(ii), (E)-(H), and(J)-(M), complete. See 

L::PA, Status of tate SIP Infrastructure Requirements- New Jersey (available at 

http://\\" ''d~pa.gov air urbanair sipstatus/repor nj infrab):·poll.htrnl#>.. II 0 a 1 pm2.5 2006_) (last viewed Oct. 18, 201 1). 

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23. On August 10, 20 10, either EPA or operation of law deemed Montana's 2006 PM2.5 

infrastructure state implementation plan submittal addressing the requirements under 42 U.S.C. § 

741 Ota){2)(A)-(C), (D)(i)(l). (D)(ii), (E)-(1 1), and (J)-(M ), complew. S'ee EPA, Status of State 

SIP lnfrastrU(;tun.: Requirements- Montana (available at 

http://w'W'\o\'.epa.gov/air/urbanairlsipstatus/reports/mt infrabypoll.html#x II 0 a .., pm-

~. 5 2006 ) (last viewed Oct. 1 0, 20 11 ). 

24. On August 23,2010, either EPA or operation of law deemed New York's 2006 PM2.5 

infrastructure state implementation plan submittal addressing the requirements under 42 U.S.C. § 

741 O(a)(2)(A)-(C), (D)(i)(II)(Prong 3 PSD only), (D)(ii). (E)-(H), and (J)-(M) complete. See 

EPA, Status ol' State SIP Infrastructure Requirements- New York (available at 

http://v,:ww.t!pa.gov/air/urbanair/sipsti.ltus/repo11s/ny infrabypoll.html#x II 0 a ? pm2.5 2006 ) (lastviewed0t:t.l7,2011). 

25. On October 12, 2010. either EPA or operation of law deemed Kansac;' 2006 PM2.5 

infrastructure state implementation plan submittal addressing the rt:quirements under 42 U.S.C. § 

741 O(a)(2)(A)-(C), (D)(i)(ll)(Prong 3 PSD only), (D)(ii), (E)-(H), and (J)-(M) complete. See 

EPA. Status of State SIP Infrastructure Requirements- Kansas (available at 

http://\\\\\-\ .epa. go\/air/urbanai /s ipstat r~p rts/ s infrabypoll.hunl#x I I 0 u 2___Q[!l: 

2.5 2006 )(last viewed Oct. 10. 2011). 

26. On October 26,2010, either EPA or operation of law deemed Pennsylvania's 

infrastructure state implementation plan submiual addressing the requirements under 42 U.S.C. § 

7410(a)(2)(A)-(C), (E)-(H), and (J)-(M) complete. See 76 Fed. Reg. 54410 (Sept. I, 2011). 

27. EPA has proposed to approve the portions of Pennsylvania, s infrastructure state 

implementation plan submittal that address the requirements of 42 U.S.C. § 74.1 O(a)(2)(A)-(C), 

(I·.)-( II). and (J)-(M). S'ee 76 f ed. Reg. 54410 (Sept. l. 20 11 ), but such proposals do not have 

any legal effect. 

28. On De(;ember 4, 2010, either EPA or operation of lav .. , deemed Colorado's infrastructure 

state implementation plan submittal addressing the requirements under 42 U.S.C. § 

741 O(a)(2)(A)-(C), (E)-( H), and (J)-(M) complete. See EPA, Status of State SIP lnfrastrut:ture 

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Requirements- Colorado (available at 

http://vvvvw.epa.gov/air/urbanair/sipstatus/reports/co infrabypoll.h~ml x l I 0 a 2 pm2.5 2006 ) (last viewed Jan. 12, 2012). 

VIII. CLAIMS FOR RELIEF 

CLAIM ONE 

ll:J>A 's Failure to Take Final Action on several States' 2006 PM2.5 Infrastructure State 

Implementation Plan Submittals) 

29. Plaintiffs incorporate by reference paragraphs I through 28. 

30. The Clean Air Act requires EPA to detennine whether any state implementation plan 

submittal is administratively complete. See 42 U.S.C. 74lO(k)(l )(B). 

31. If, six months after a state submits a state implementation plan, EPA has not made the 

completeness finding and has not found the submittal to be incomplete, the submittal is deemed 

administratively complete by operation of law. !d. 

32. EPA must take rimtl action on an administratively complete submittal by approving in 

full, disapproving in full, or approving in part and disapproving in part within I 2 months of the 

date of the submittal's completeness finding. 42 U.S.C. § 7410(k)(2) and (3). 

33. For the purposes of this claim only, nothing in this claim alleges that EP !\ has a 

mandatory duty to address the visibility portion of the requirements under 42 U.S.C. § 

74 I 0(a)(2)(D)(i)(ll), or the requirements under 42 U.S.C. § 74IO(a)(2)(1), even ii'EPA has 

deemed those submittals complete. 

34. On June 28,2010 either EPA or operation of law deemed Missouri's 2006 PM2.5 

infrastructure state implementation plan submittal addressing the requirements of 42 U.S.C. § 

741 O(a)(2)(A)-(C), (D)(i)(li)(Prong 3 PSO only), (D)(ii), (E)-(H), and (J)-(M) complete. See 

EPA, Status or State SIP lnfrastructme Requirements- Missouri (available at 

http://wv'vw .epa.gov/air/urbanair/sipstatus/reports/mo_infrabypoll.hun l#x I I 0 _a_ 2 _ pm2.5 2006 _) (lnst viewed Oct. 18, 2011 ). 

35. Pursuant to 42 U.S.C. § 741 0(k)(2) and (3 ). EPA has a mandatory duty to take tina! 

action on Missouri's 2006 PM2.5 infrastructure staie implementa6on plan submittal addressing 

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the requirements of 42 U.S.C. § 74 10(a)(2)(A)-(C), (D)(i)(II)(Prong 3 PSD only), (D)(ii), (E)-

( II), and (J)-(M) by no later than June 28, 20 II. 

36. LPA has failed to perform this mandatory duty by not approving in full, disapproving in 

full, or approving in pan and disapproving in pan Missouri's 2006 PM2.5 infrastructure state 

implementation plan submittal addressing the requirements of 42 U.S.C. § 741 O(a)(2)(A)-(C), 

(D)(i)(II)(Prong 3 PSD only). (D)(ii), (E)-( H), und (J)-(M) by no later than June 28. 20 II. 

37. On July 20, 20 I 0 either EPA or operation of law deemed New Jersey's 2006 PM2.5 

infrastructure state implementation plan submittal addressing the requirements of 42 U.S.C. § 

741 O(a)(2)(A)-(C), (D)(i)(li)(Prong 3 PSD only), (D)(ii), (E)-( H), and(J)-(M), complete. See 

I·PA, Status of State SIP Infrastructure Requirements-New Jersey (available at 

hllp.r '' ''''.epa. go\ air/urbanair/sipstatus/reponslnj infrubypoll.lnml#x II 0 a :!___.!l!!l: 

2.5 2006 ) (last viewed Oct. 18, 20 I I). 

38. Pursuant to 42 U.S.C. § 7410(k)(2) unci (3), EPA has a mandatory duty to take final 

action on New Jersey's 2006 PM2.5 infrastructure state implementation plan submittal 

addressing the requirements of 42 U.S.C. § 741 O(a)(2)(A)-(C). (D)(i)(H)(Prong 3 PSD only), 

(D)(ii), (E)-(H), and(J) (M) by no later than July 20. 2011. 

39. EPA has failed to pt!rform this mandatory duty by not approving in full , disapproving in 

full, or approving in pH11 and disapproving in pan New Jersey's 2006 PM2.5 infrastructure stall.! 

implementation plan submittal addressi ng the requirt:mcnts or 42 U.S. C. ~ 74 1 O(a)(2)(A)-(C), 

(D)(i)(H)(Prong 3 PSD only), (D)(ii), (E)-(H), and(J)-(M) by no later than July 20. 201 1. 

40. On August I 0, 20 I 0, either EPA or operation oflaw deemed Montana's 2006 PM2.5 

infrastructure state implementation plan submi\tal addressing the requirements under 42 U.S.C. § 

741 O(a)(2)(A)-(C), (D)(i)(l). (D)(ii), (E)-(11), and (J)-(M), complete. See EPA, Stmus of State 

SIP Infrastructure Rcyuirl.!mcnts- Montana (available at 

Y hllp://www . ..:pa gov air urbnnair sipstatuslrcport~/mt infi·abypoll.html#x 110 a 2 p_m2.5 2006 ) (last viewed Oct. 18, 20 II). r-;.;; 

~ Pursuant to 42 U.S.C. § 74lO(k)(2) and (3), EPA has a mandatory duty to take final 

action on Montana's 2006 PM2.5 infrastructure state implementation plan submittal addressing 

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the requirements under 42 U.S.C. § 7410(a)(2)(A)-(C), (D)(i)(l), (D)(ii), (E)-(1-l), and (J)-(M) by 

no later than August l 0, 20 I J. 

42. EPA has failed to perform this mandatory duty by not approving in full, disapproving in 

full, or approving in part and disapproving in part Montana's 2006 PM2.5 infrastructure state 

implementation plan submittal addressing the requirements under 42 U.S.C. § 741 O(a)(2)(A)-(C), 

(D)(i)(l), (D)(ii), (E)-(H), and (J)-(M) by no later than August 10,201 L 

43. On September 23,2010, either EPA or operation oflaw deemed New York's 2006 

PM2.5. infrastructure state implementation plan submittal addressing the requirements under 42 

U.S.C. § 741 O(a)(2)(A)-(C), (D)(i)(ll)(Prong 3 PSD only), (D)(ii), (E)-(H), and (J)-(M) 

complete. See EPA, Status of State SIP Infrastructure Requirements- New York (available at 

http://www.epa.gov/air/urbanair/sipstatus/rcports/nv infrabypoll.html#x I 10 a 2 pm2.5 2006 ) (last viewed Oct. 1 . 201 1 ). 

44. Pursuant to 42 U.S.C. § 741 0(k)(2) and (3), EP 1\ has a mandatory duty to take final 

action on New York's 2006 PM2.5 infrastructure state implementation plan submittal addressing 

the requirements under 42 U.S.C. § 741 O(a)(2)(A)-(C), (D)(i)(Il)(Prong 3 PSD only), (D)(ii), 

(E)-( H), and (J)-(M) by no later than September 23, 20 II. 

45. EPA has failed to perform this mandatory duty by not approving in full, disapproving in 

full, or approving in part and disapproving in part New York's 2006 PM2.5 infrastructure state 

implementation plan submittal addressing the requirements under 42 U.S.C. § 741 O(a)(2)(A)·(C), 

(D)(i)(ll)(Prong 3 PSD only). (D)(ii), (E)-(H), and (.1 )-(M) by no later than September 23, 2011. 

-+6. On October 12, 2010, either EPA or operation of law deemed Kansas' 2006 PM2.5 

infrastructure state implementation plan submittal addressing the requirements under 42 U.S.C. § 

741 O(a)(2)(A)-(C), (D)(i)(Il)(Prong 3 PSD only), (Dj(ii), (E)-(H), and (J)-(M) complete. See 

i 

EPA, Status of State SIP Infrastructure Requircrncnts Kansas (available at 

http://www.epa.gov/air/urbanair/sipstatuslreports/ks infrabypol l.html#x II 0 a 2 pm2.5 2006 )(last viewed Oct. 18, 2011 ). 

47. Pursuant to 42 U.S.C. § 7410(k)(2) and (3), EPA has a mandatory duty to take tina! 

action on Kansas· 2006 PM2.5 infrastructure state implementation plan submiltal addressing the 

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addressing the requirements under 42 U.S.C. § 74 10(a)(2)(A)-(C), (D)(i)(II)(Prong 3 PSD only), 

(D)(ii), (F)-(11). and (J)-(M) by no later than October 12, 2011. 

4R. EPA has failed to perform this mandatory duty by not approving in full, disapproving in 

full, or approving in part and disapproving in part Kansas' 2006 PM2.5 infrastructure state 

implementation plan submittal addressing the requirements under 42 U.S.C. § 741 O(a)(2)(A)-(C), 

(D)(i)(li)(Prong 3 PSD only), (D)(ii), (E)-(11), and (J)-(M) by no later than October 12,2011. 

49. On October 26, 20 l 0, either EPA or operation of law deemed Pennsylvania's 

infrastructure state implementation plan submittal addressing the requirements under 42 U.S.C. * 

741 O(a)(2)(A)-(C), (E)-( H), and (J)-(M) complete. See 76 red. Reg. 54410 (Sept. I, 2011 ). 

50. Pursuant to 42 U.S.C. § 741 O(k)(2) and (3), EPA has a mandatory duty to take final 

action on Pennsylvania's 2006 PM2.5 infrastructure state implementation plan submittal 

addressing the requirements under 42 U.S.C. § 74 10(a)(2)(A)-(C), (E)-(H), and (J)-(M) by no 

later than October 26, 2011. 

51. EPA has failed to perform this mandatory duty by not approving in lull, disapproving in 

full, or approving in part and disapproving in part Pennsylvania's 2006 PM2.5 infrastructure 

state implementation plan submittal addressing the requirements under 42 U.S.C. § 

74 1 O(a)(2)(J\)-(C), (E)-(H). and (.1)-(M) by no later than October 26, 20 II. 

( 52. - On Decem bcr 4, 20 I 0, c i I her EPA or operation of I aw deemed Colorado's infrastructure 

) state implementation plan submittal addressing the requiremcms under 42 U.S.C. § 

74lO(a)(2)(A)-(C), (E)-(H), and (J)-(M) complete. See EPA, Status of State SIP Infrastructure 

Requirements- Colorado (available at 

http://v.·ww.cpa.gov/air/urbanair/sipstalus/reports/co infrnbvQQ.!J.html#x 110 a 2 pm2.5 2006 ) (last viewed Jan. 12, 201 2). 

53 . Pursuant to 42 U .S.C. § 741 O(k)(2) and (3), EP !\ has a mandatory duty to take final 

action on Colorado's 2006 PM2.5 infrastructure state implementation plan submittal addressing 

the requirements under 42 U.S.C. § 741 O(a)(2)(A)-(C), (E)-(H), and (J)-(M) by no later than 

December 4, 2011 . 

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54. EPA has failed to perform this mandatory duty by not approving in full, disapproving in 

full, or approving in part and disapproving in part Colorado's 2006 PM2.5 infrastructure state 

implementation plan submittal addressing the requirements under42 U.S.C. § 7410(a)(2)(A)-(C), 

(E)-(H), and (J)-(M) by no later than December 4, 20 II . 

CLAIM TWO 

(EPA's Fuilure to Make Findings of Failure to Submit Sufficient Infrastructure State 

Implementation Plans for the 2006 PM2.5 National Ambient Air Quality Standard) 

55. Plaintiffs incorporate by reference paragraphs 1 through 54. 

56. Pursuant to the Clean Air Act, each state must submit an "infrastructure" state 

implementation plan that provides for the "implementation, maintenance, and enforcement" of a 

National Ambient Air Quality Standard within three years of a standard's promulgation or 

revision. 42 U.S.C. § 7410(a)(l). 

57. The Clean Air Act requires EPA to determine whether a state implementation plan 

submittal is administratively complete. See 42 U.S.C. 7410(k)(l)(B). 

58. If a stale fails to submit any required state implementation plan, there is no submittal that 

may be deemed administratively complete and EPA must make a determination stating that the 

state failed to submit the required state implementation plan. See 42 U.S.C. § 7410(k)(I)(B). 

This is referred to as a ''finding of failure to submit.'' 

50. Thus, if a state docs not submit a state implementation plan, a finding of failure to submit 

must be made no later than six months after the date by which the state implementation plan 

submittal was due. See42 U.S.C. § 74t0(k)(I)(B). 

60. EPA promulgated a revision to the PM2.5 24-hour National Ambient Air Quality 

Standard on October l 7, 2006. 71 fed. Reg. 61144 (Oct. 17, 2006). 

61. The effective date of the 2006 PM2.5 standard is December 18, 2006. ld. 

62. Thus, states and territories are required to submit infrastructure state implementation 

plans for the 2006 PM2.5 24-hour National Ambient Air Quality Standard by no later than 

December 18, 2009. See 42 U.S.C. § 74 JO(a)(l). 

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63. For the purposes of this claim only, nothing in this claim alleges that EP 1\ has a 

mandatory duty to addrt!ss the visibility portion of the requirements under 42 U.S.C. § 

741 0(a)(2)(D)(i)tll). the nonuttuimm:nt requirements under 42 U.S.C. § 741 O(a)(2)(C) or the 

requirements under 42 U.S.C. § 7410(a)(2)(1). 

64. Kentucky has fai led to submit an infrastructure state implementation plan or revision 

addressing the requirements under 42 U.S.C. §§ 741 O(a)(2)(D)(i)(II)(Prong 3 PSD only). See 

EPA, Status of State SIP Infrastructure Requirements- Kentucky (available at 

http://www.epa.gov nir urbanair/sipslatus/r~ports/ky i nfi·abypoll.hunl#x 1 I 0 u_ 2__.12!ll: 

:2.5 2006 ) (''Latest Action" is blank for Kentucky's 42 U.S.C. § 7410(a)(2)(D)(ii)(II)(Prong 3 

PSD onl>) submittal rcquircmcnts)(last viewed Oct. 18. 20 II). 

65. Accordingly, EPA ha~ a mandatory duty under 42 U.S.C. § 741 O(k)( I )(13) to issue a 

finding of failure to submit for Kentucky regarding the 2006 PM2.5 24-hour National Ambient 

Air Quality Standard infrastructure state implementution plan addressing the requirements under 

42 U.S.C. § 741 O(a)(2)(D)(ii)(ll)(Prong 3 PSD only). 

66. EPA has failed, and continues to fail, to make this tinding of failure to submit for 

Kentucky. 

67. At:con.lingl>, f.'PA is violation of its mandatory duty under 42 U.S.C. § 741 O(k)(l)(B) to 

issue a finding of failure to submit sufficient infrastructure stare implementation plans for 

Kentucky. 

REQUEST FOR RELU:F 

WHEREFOKE, Sierra Club respectfully request that the Court: 

A. Declare that the Administrator is in violation of the Ckan Air Act with regard to her 

railurc to performlo!ach mandatory duty listed above; 

8. Issue u mundatory injunction requiring the Administrator to perform her mandatory 

duties by certain dates; 

C. Retain jurisdiction o!'this matter for purposes of enforcing and effectuating the Court's 

order; 

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D. Grunt Sierra Club its reasonable costs of litigation. including attorneys' and expert fees; 

and 

E. Grant such further relief as the Court deems just and proper. 

Dated: Murch l. 2012 

Respectfully submitted, 

I •-~-~ l I "·:-+---

/ 

Robert Ukeilcy ~../ 

DOC Bar No. MD 14062 

Law Ofticc of Robert Ukcilcy 

435R Chestnut Street, Ste. I 

13crea, K Y 40403 

Tel: (859) 986-5402 

fax: (866) 618-1017 

Email: rukeiley@igc.org 

Coun~ct for Sierra Club 

13