IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. ________________

WILDEARTH GUARDIANS 

Plaintiff,

v.

LISA P. JACKSON, in her official capacity as

ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL 

PROTECTION AGENCY

Defendant.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION

1. Plaintiff WildEarth Guardians (“Guardians”) brings this Clean Air Act citizen suit 

to compel the Defendant, Lisa Jackson, Administrator of the U.S. Environmental Protection 

Agency (“EPA”), to perform her non-discretionary duty to grant or deny a petition filed by 

Guardians on March 24, 2011. See 42 U.S.C. § 7661d(b)(2) (authorizing such petitions). 

Guardians’ petition (“the Petition”) asks EPA to object to an air pollution permit (the “Permit”) 

issued by the Colorado Department of Public Health and Environment, Air Pollution Control 

Division, to CF&I Steel, d/b/a EBRAZ Rocky Mountain Steel for operation of its steelmaking 

facility in Pueblo, Colorado (hereafter referred to as the “Steel Mill”). 

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2. Title V of the Clean Air Act establishes a mandatory 60-day deadline for EPA to 

grant or deny a citizen petition for an objection to a Title V permit. 42 U.S.C. § 7661d(b)(2). 

Although more than 60 days have passed, the EPA Administrator has not acted on Guardians’ 

Petition and is in violation of a nondiscretionary duty under the Act. Guardians seeks a 

declaration that the Administrator is in violation of the Clean Air Act and an order compelling 

the Administrator to grant or deny its Petition. 

JURISDICTION, NOTICE, AND VENUE

3. This is an action against the Administrator where there is alleged a failure of the 

Administrator to perform an act or duty under the Clean Air Act which is not discretionary with 

the Administrator. Thus, this Court has jurisdiction over Guardians’ claims herein pursuant to 42 

U.S.C. § 7604(a)(2) (citizen suit provision of the Clean Air Act) and 28 U.S.C. § 1331 (federal 

question).

4. The requested declaratory relief is authorized by 28 U.S.C. § 2201(a) and 42 

U.S.C. § 7604(a). The requested injunctive relief is authorized by 28 U.S.C. § 2202 and 42 

U.S.C. § 7604(a). 42 U.S.C. § 7604(d) authorizes this Court to award Guardians its costs and 

attorneys’ fees.

5. By letter dated June 7, 2011, Guardians provided the Administrator with written 

notice of Guardians’ claims concerning EPA’s failure to take action on the Petition and of 

Guardians’ intent to bring suit to remedy this violation of the Clean Air Act. Guardians provided 

this notice pursuant to 42 U.S.C. § 7604(b)(2), and 40 C.F.R. §§ 54.2 and 54.3. Although more 

than 60 days have elapsed since Guardians gave notice, EPA has not yet granted or denied 

Guardians’ Petition and remains in violation of the law. There exists now between the parties an 

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actual, justiciable controversy within the meaning of the Declaratory Judgment Act, 28 U.S.C. § 

2201.

6. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(e) because a 

substantial part of the events and omissions giving rise to Guardians’ claim occurred in the 

District of Colorado. Guardians’ Petition concerns a Permit issued by an administrative agency 

of the State of Colorado regulating air pollution from the Steel Mill in Pueblo, Colorado. 

Additionally, Guardians maintains a major office in Denver, Colorado.

PARTIES

7. Plaintiff WILDEARTH GUARDIANS is a non-profit conservation organization. 

Guardians is dedicated to protecting and 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 order to safeguard public health, welfare, and 

the environment. Guardians has approximately 4,500 members, many of whom live, work, 

and/or recreate in areas affected by pollution from the Steel Mill.

8. Guardians is a “person” within the meaning of 42 U.S.C. § 7602(e). As such, 

Guardians may commence a civil action under 42 U.S.C. § 7604(a).

9. Guardians’ members live, raise their families, work, recreate, and conduct 

educational, research, advocacy, and other activities in areas that will be affected by pollution 

from the Steel Mill. The Permit allows the Steel Mill to release pollutants that degrade the air, 

environment, economy, and scenery used by Guardians’ members. These pollutants harm the 

economic, health, aesthetic, recreational, procedural, and organizational interests of Guardians’ 

members. EPA’s failure to respond to Guardians’ Petition creates doubt and concern for 

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Guardians’ members about whether the Steel Mill Permit complies with the requirements of the 

Clean Air Act and protects them from exposure to pollutants to the extent required by law. 

10. Guardians regularly participates in the public permitting process for facilities that 

emit air pollution. Guardians spends money and time on these processes with the aim of 

ensuring that permits, such as that issued to the Steel Mill, protect and improve air quality, as 

well as comply with relevant laws and regulations. Guardians and its members have a 

substantial interest in ensuring that EPA complies with federal law, including the requirements of 

the Clean Air Act. 

11. During the permitting process for the Steel Mill, Guardians provided comments 

critical of the Permit’s terms and limits. Subsequently, Guardians petitioned EPA to object to 

the issuance of this Permit. The Clean Air Act gives Guardians a procedural right to a timely 

decision on its Petition. This interest and Guardians’ organizational interest in participating in 

the permitting process are injured by EPA’s failure to respond to Guardians’ Petition. 

Guardians’ and its members’ interests have been, are being, and will continue to be, irreparably 

harmed by EPA’s failure to act on Guardians’ Petition for an objection to the Steel Mill Permit.

12. EPA’s failure to take action on Guardians’ Petition prevents Guardians and its 

members from challenging an unfavorable EPA decision or from benefiting from a favorable 

decision on the Petition. EPA’s decision on the Petition, if favorable, is likely to result in 

changes to the Permit that would reduce pollution from the facility. An unfavorable decision on 

the Petition would allow Guardians to bring a challenge to EPA’s decision. The Clean Air Act 

violations alleged in this Complaint have injured and continue to injure the interests of Guardians 

and its members. Granting the relief requested in this lawsuit would redress these injuries by 

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compelling EPA action that Congress determined to be an integral part of the regulatory scheme 

for protecting human health from the effects of unregulated air pollution.

13. Defendant LISA JACKSON is the Administrator of the EPA. The Administrator 

is responsible for implementing the Clean Air Act, including the requirement to grant or deny 

Guardians’ Petition within 60 days. Ms. Jackson is sued in her official capacity.

LEGAL FRAMEWORK

14. The Clean Air Act aims “to protect and enhance the quality of the Nation’s air 

resources.” 42 U.S.C. § 7401(b)(1). To help meet this goal, the 1990 amendments to the Clean 

Air Act created the Title V permit program—an operating permit program that applies to all 

major sources of air pollution. See 42 U.S.C. §§ 7661-7661f.

15. A primary purpose of the Title V permitting program is to reduce violations of the 

Clean Air Act and improve enforcement by recording in a single document all of the air pollution 

control requirements that apply to a major source of air pollution. Major sources of air pollution 

cannot legally discharge pollutants into the air unless they have a valid Title V operating permit. 

See 42 U.S.C. § 7661a(a).

16. The Clean Air Act provides that the Administrator may approve state programs to 

administer the Title V permitting program with respect to sources within their borders. See 42 

U.S.C. § 7661a(d). The Administrator approved Colorado’s administration of its Title V permit 

program in 2000. See 65 Fed. Reg. 49,919 (Aug. 16, 2000). The Colorado Department of Public 

Health and Environment, Air Pollution Control Division (“APCD”) is responsible for issuing 

Title V permits in Colorado.

17. Before a state with an approved Title V permit program can issue a Title V 

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permit, the State must forward the proposed Title V permit to EPA. See 42 U.S.C. § 

7661d(a)(1)(B). EPA then has 45 days to review the proposed permit. EPA must object to the 

issuance of the permit if EPA finds that the permit does not comply with all applicable 

provisions of the Clean Air Act. See 42 U.S.C. § 7661d(b)(1).

18. After EPA’s 45-day review period expires, and if EPA does not object to the 

permit issuance, “any person may petition the Administrator within 60 days” to object to the 

proposed permit. 42 U.S.C. § 7661d(b)(2).

19. Once EPA receives such a petition, the Clean Air Act requires that “[t]he 

Administrator shall grant or deny such petition within 60 days after the petition is filed.” 42 

U.S.C. § 7661d(b)(2).

20. If EPA objects to a permit, the permit must be revised. 42 U.S.C. § 7661d(b)(3).

21. If EPA fails to comply with a non-discretionary duty, such as acting on a petition

within the statutorily mandated timeframe, the Clean Air Act allows any person to bring suit to 

compel EPA to perform its duty. See 42 U.S.C. § 7604(a)(2).

FACTUAL ALLEGATIONS

22. The Steel Mill is a major stationary source of air pollution located in Pueblo, 

Colorado. The facility consists of an electric arc furnace that melts scrap steel, along with 

various additives, to produce specific grades of steel. 

23. According to the Technical Review Document for the Title V permit, the Steel 

Mill has the potential to emit nearly 3,000 tons of toxic air pollutants, including: 1,540.2 tons of 

carbon monoxide, 531.4 tons of nitrogen oxides, 242.1 tons of particulate matter, including 193.5 

tons of particulate matter less than 10 microns in diameter, 170.2 tons of sulfur dioxide, 179.3 

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tons of volatile organic compounds, and 18.5 tons of hazardous air pollutants, including mercury, 

lead, and other toxic pollutants.

24. Guardians submitted detailed comments on November 8, 2010, during the 

APCD’s public comment period for the Title V Permit. Guardians raised a number of objections 

to the Title V Permit, including, among other things, that the APCD failed to ensure compliance 

with requirements limiting mercury emissions, requirements to ensure that emissions complied 

with National Ambient Air Quality Standard (“NAAQS”), and requirements related to 

environmental justice.

25. The APCD submitted the proposed Title V permit for the Steel Mill to EPA on 

December 9, 2010. The EPA’s 45-day review period for the permit ended on January 23, 2011. 

EPA did not raise any objections to the permit.

26. On March 24, 2011, Guardians filed a petition requesting that the Administrator 

object to the issuance of the Title V permit for the Steel Mill on the basis that the permit failed to 

ensure compliance with area source maximum achievable control technology requirements;

failed to ensure the Steel Mill would not cause or contribute to violations of the NAAQS; failed 

to include stipulated penalty requirements; and failed to adequately address environmental 

justice.

27. Guardians timely filed its Petition for objection within 60 days following the 

conclusion of EPA’s review period. 42 U.S.C. § 7661d(b)(2).

28. Guardians’ Petition was based on objections that were raised with reasonable 

specificity during the public comment period for the draft permit or arose subsequent to the 

public comment period, in accordance with 42 U.S.C. § 7661d(b)(2).

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29. EPA had 60 days, until May 23, 2011, to grant or deny Guardians’ Petition. 42

U.S.C. § 7661d(b)(2). As of the date of filing of this complaint, EPA has not yet granted or 

denied Guardians’ Petition.

30. By letter dated June 7, 2011, Guardians provided the Administrator with written 

notice of its intent to sue for EPA’s failure to take action on Guardians’ Petition. The 

Administrator received this notice letter via certified mail on or before June 13, 2011. Although 

more than 60 days have elapsed since Guardians gave notice, EPA remains in violation of the 

law.

CLAIM FOR RELIEF

Failure to Grant or Deny Guardians’ Petition

31. Guardians incorporates the allegations in all preceding paragraphs of this 

Complaint as if set forth in full herein.

32. The Administrator had a mandatory duty to grant or deny Guardians’ Petition 

within 60 days after it is filed. See 42 U.S.C. § 7661d(b)(2).

26. It has been more than 60 days since the Administrator received Guardians’ 

Petition requesting that EPA object to the Title V Permit for the Steel Mill.

28. Accordingly, the EPA Administrator has violated and continues to violate the 

Clean Air Act, 42 U.S.C. § 7661d(b)(2).

29. This Clean Air Act violation constitutes a “failure of the Administrator to perform 

any act or duty under this chapter which is not discretionary with the Administrator” within the

meaning of the Clean Air Act’s citizen suit provision. 42 U.S.C. § 7604(a)(2). EPA’s violation 

is ongoing, and will continue unless remedied by this Court.

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REQUEST FOR RELIEF

WHEREFORE, Plaintiff WildEarth Guardians requests that this Court enter judgment 

providing the following relief:

A. A declaration that EPA has violated the Clean Air Act by failing to grant or deny 

Guardians’ Petition requesting that EPA object to the Title V permit for the Steel Mill;

B. An order compelling EPA to grant or deny Guardians’ Petition for an objection to 

the Title V permit for the Steel Mill in accordance with an expeditious schedule prescribed by 

the Court and to publish in the Federal Register a notice granting or denying Guardians’ Petition 

within ten working days of EPA’s decision;

C. An order retaining jurisdiction over this matter until such time as EPA has 

complied with its non-discretionary duties under the Clean Air Act;

D. An order awarding Guardians its costs of litigation, including reasonable 

attorneys’ fees; and

E. Such other and further relief as the Court deems just and proper.

Respectfully submitted this 24th day of August, 2011, 

/s/ Ashley D. Wilmes

 Ashley D. Wilmes

 WildEarth Guardians

 827 Maxwell Avenue, Suite L

 Boulder, Colorado 80304

 Tel. 859-312-4162

awilmes@wildearthguardians.org

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/s/ James J. Tutchton

James J. Tutchton 

WildEarth Guardians 

6439 E. Maplewood Ave. 

Centennial, CO 80111 

Tel. 720-301-3843 

jtutchton@wildearthguardians.org

Attorneys for WildEarth Guardians

Plaintiff: 

WildEarth Guardians 

1536 Wynkoop Street, Suite 301 

Denver, Colorado 80202

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