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`Case 3:20-cv-05436-EMC Document 25 Filed 10/29/20 Page 1 of 16
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`
`
`Jonathan Evans (Cal. Bar No. 247376)
`CENTER FOR BIOLOGICAL DIVERSITY
`1212 Broadway, Suite 800
`Oakland, CA 94612
`Phone: 510-844-7118
`Fax: 510-844-7150
`Email: jevans@biologicaldiversity.org
`
`Robert Ukeiley (CO Bar No. 26747), pro hac vice
`CENTER FOR BIOLOGICAL DIVERSITY
`1536 Wynkoop St., Ste. 421
`Denver, CO 80202
`Phone: 720-496-8568
`Email: rukeiley@biologicaldiversity.org
`
`Ashley Palomaki (CO Bar No. 46252), pro hac vice
`CENTER FOR BIOLOGICAL DIVERSITY
`P.O. Box 1178
`Flagstaff, AZ 86002
`Phone: 928-666-0731
`Email: apalomaki@biologicaldiversity.org
`
`Counsel for Plaintiffs Center for Biological
`Diversity, Center for Environmental Health, and
`Sierra Club
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`_______________________________________
` CENTER FOR BIOLOGICAL DIVERSITY, )
` CENTER FOR ENVIRONMENTAL
`)
` HEALTH, AND SIERRA CLUB,
`)
`
`
`)
`
`Plaintiffs,
`)
`
`) Civil Action No. 3:20-cv-5436-EMC
` v.
`)
`
`
`)
`) AMENDED COMPLAINT FOR
` ANDREW R. WHEELER,
`) DECLARATORY AND INJUNCTIVE
`
`) RELIEF
` in his official capacity as Administrator,
` United States Environmental Protection
`)
` Agency,
`)
`
`)
`Defendant.
`
`)
`________________________________________
`
`(Clean Air Act, 42 U.S.C. §§ 7401 et. seq.)
`
`AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`3:20-cv-05436-EMC
`
`
`
`
`1
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`

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`Case 3:20-cv-05436-EMC Document 25 Filed 10/29/20 Page 2 of 16
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`INTRODUCTION
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`1.
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`All areas of the country are legally entitled to healthy, clean air. Not all areas have it.
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`This is a Clean Air Act “deadline” suit against Andrew R. Wheeler, Administrator of the United
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`States Environmental Protection Agency (EPA), for his failure to protect people, ecosystems,
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`and wildlife from dangerous exposure to sulfur oxides (SOx) air pollution. Plaintiffs file this
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`Amended Complaint to add additional claims to Plaintiffs’ original Complaint.
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`2.
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`SOx, which is formed primarily from the combustion of fuel with sulfur, such as coal and
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`diesel, harms human health and the environment. Even short-term exposure to SOx has
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`significant health impacts, including decrements in lung function, aggravation of asthma, and
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`respiratory and cardiovascular morbidity. SOx also contributes to the formation of acid rain,
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`which damages trees, crops, historic buildings, and monuments, and alters the acidity of both
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`soils and water bodies.
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`3.
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`The Clean Air Act requires EPA to establish health- and welfare-protective National
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`Ambient Air Quality Standards (NAAQS) to limit the amount of SOx in the outdoor air. Areas
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`with SOx pollution levels that exceed the standards must clean up their air.
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`4.
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`To better protect the public from SOx, the EPA promulgated a new sulfur dioxide (SO2)
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`NAAQS in 2010. In response to the 2010 NAAQS, EPA designated several areas that are at
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`issue here as nonattainment, meaning that the air quality in these areas has SO2 pollution that
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`violates the standard. More than 1.45 million people live and work in these areas with air
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`pollution that exceeds the SO2 NAAQS.
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`5.
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`EPA has failed to meet several deadlines that Congress prescribed in the Clean Air Act.
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`The congressionally mandated deadline has passed for four states and territories to submit to
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`EPA plans, called State Implementation Plans (SIPs), to clean up the SOx pollution in the
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`AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`3:20-cv-05436-EMC
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`Case 3:20-cv-05436-EMC Document 25 Filed 10/29/20 Page 3 of 16
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`following nonattainment areas: Piti-Cabras, Guam; Huntington, Indiana; Evangeline Parish,
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`
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`Louisiana; and Guyama-Salinas and San Juan, Puerto Rico. EPA has a mandatory duty to make
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`a finding that a state has failed to submit a SIP to reduce air pollution within six months after a
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`SIP submittal is due. 42 U.S.C. § 7410(k)(1)(B). This deadline has passed as well. Yet EPA
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`has not published the required findings.
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`6.
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`When a state does submit a SIP to EPA, the Clean Air Act requires that EPA review it
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`within specified time frames. Illinois submitted a SIP to EPA for the Alton Township
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`nonattainment area, but EPA has not met the deadline to review the SIP and determine whether it
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`meets the requirements of the Clean Air Act. See 42 U.S.C. § 7410(k)(2)-(4).
`
`7.
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`Last, all nonattainment areas must attain the NAAQS within a specified time. No later
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`than six months after the attainment date for a nonattainment area, EPA has a mandatory duty to
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`determine whether an area has attained the NAAQS and publish notice of that determination. 42
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`U.S.C. § 7509(c). EPA has failed to perform this mandatory duty for the following nine areas:
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`Hayden and Miami, Arizona; Southwest Indiana (parts of Daviess and Pike Counties);
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`Muscatine, Iowa; St. Bernard Parish, Louisiana; Detroit, Michigan; Jackson County, Missouri;
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`Sullivan County, Tennessee; and Rhinelander, Wisconsin.
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`JURISDICTION AND NOTICE
`
`8.
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`This case is a Clean Air Act “citizen suit.” Therefore, the Court has jurisdiction over this
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`action pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and 42 U.S.C. § 7604(a)
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`(Clean Air Act citizen suits).
`
`9.
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`This case does not concern federal taxes, is not a proceeding under 11 U.S.C. § 505 or
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`1146 of Title 11, and does not involve the Tariff Act of 1930. Thus, this Court has jurisdiction to
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`AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`3:20-cv-05436-EMC
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`Case 3:20-cv-05436-EMC Document 25 Filed 10/29/20 Page 4 of 16
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`order declaratory relief under 28 U.S.C. § 2201. If the Court orders declaratory relief, 28 U.S.C.
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`
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`§ 2202 authorizes this Court to issue injunctive relief.
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`10.
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`Plaintiffs mailed to EPA by certified mail, return receipt requested, written notice of
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`intent to sue regarding the violations alleged herein. The notice letter for the violations alleged
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`in the original Complaint was postmarked May 28, 2020. EPA received it no later than June 5,
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`2020. More than 60 days have passed since Plaintiffs mailed this notice letter. EPA has not
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`remedied the violations alleged in the original Complaint. On August 11, 2020, Plaintiffs mailed
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`to EPA by certified mail, return receipt request, a second written notice of intent to sue regarding
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`the additional violations that are included in this Amended Complaint. EPA received this second
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`notice letter no later than August 17, 2020. More than 60 days have passed since Plaintiffs
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`mailed this second notice letter. EPA has not remedied the violations alleged in this Amended
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`Complaint. Therefore, a present and actual controversy exists between the parties.
`
`VENUE
`
`11.
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`Venue is proper in this Court under 28 U.S.C. § 1391(e) for several reasons. First,
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`Plaintiffs Center for Environmental Health and Sierra Club reside in the district with their
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`headquarters in Oakland. Second, Defendant EPA resides and performs its official duties in this
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`district. Third, a substantial part of the events or omissions giving rise to the claims in this case
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`occurred in the Northern District of California. One of the claims in the original Complaint
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`concerns EPA’s failure to perform mandatory duties related to Guam. One of the claims
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`included this Amended Complaint concerns EPA’s failure to perform mandatory duties related to
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`Arizona. EPA Region 9, which is responsible for both Guam and Arizona, is headquartered in
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`San Francisco. Thus, a substantial part of the events and omissions at issue in this action
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`occurred at EPA’s Region 9 headquarters in San Francisco.
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`AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`3:20-cv-05436-EMC
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`Case 3:20-cv-05436-EMC Document 25 Filed 10/29/20 Page 5 of 16
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`Pursuant to Civil L.R. 3-2(c), (d), this case is properly assigned to the San Francisco or
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`12.
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`Oakland Division of this Court because a substantial part of the events and omissions giving rise
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`to the claims in this case occurred in the County of San Francisco.
`
`PARTIES
`
`13.
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`Plaintiff CENTER FOR BIOLOGICAL DIVERSITY is a non-profit 501(c)(3)
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`corporation incorporated and existing under the laws of the State of California, with its main
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`California office in Oakland. The Center for Biological Diversity has over 81,000 members
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`throughout the United States and the world. The Center for Biological Diversity’s mission is to
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`ensure the preservation, protection, and restoration of biodiversity, native species, ecosystems,
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`public lands and waters, and public health through science, policy, and environmental law.
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`Based on the understanding that the health and vigor of human societies and the integrity and
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`wildness of the natural environment are closely linked, the Center for Biological Diversity is
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`working to secure a future for animals and plants hovering on the brink of extinction, for the
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`ecosystems they need to survive, and for a healthy, livable future for all of us.
`
`14.
`
`Plaintiff CENTER FOR ENVIRONMENTAL HEALTH is a nonprofit corporation
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`organized and existing under the laws of the State of California, with its headquarters located in
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`Oakland. The Center for Environmental Health protects the public from toxic chemicals by
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`working with communities, consumers, workers, government, and the private sector to demand
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`and support business practices that are safe for public health and the environment. The Center
`
`for Environmental Health works in pursuit of a world in which all people live, work, learn, and
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`play in healthy environments.
`
`15.
`
`Plaintiff SIERRA CLUB is a nonprofit corporation organized and existing under the laws
`
`of the State of California, with its headquarters located in Oakland. Sierra Club is the oldest and
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`AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`3:20-cv-05436-EMC
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`Case 3:20-cv-05436-EMC Document 25 Filed 10/29/20 Page 6 of 16
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`largest grassroots environmental organization in the United States, with more than 795,000
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`
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`members nationally. Sierra Club’s mission is to explore, enjoy, and protect the wild places of
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`the Earth; to practice and promote the responsible use of the Earth’s resources and ecosystems;
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`to educate and enlist humanity to protect and restore the quality of the natural and human
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`environment; and to use all lawful means to carry out these objectives. Sierra Club performs this
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`mission through advocacy, litigation, and educational outreach to its members and state chapters.
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`Sierra Club and its members are greatly concerned about the effects of air pollution on human
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`health and the environment and have a long history of involvement in activities related to air
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`quality.
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`16.
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`Plaintiffs’ members live, work, recreate, travel, and engage in other activities throughout
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`the areas at issue in this Amended Complaint and will continue to do so on a regular basis.
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`Pollution in the affected areas threatens and damages, and will continue to threaten and damage,
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`the health and welfare of Plaintiffs’ members, as well as their ability to engage in and enjoy their
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`other activities. Pollution diminishes Plaintiffs’ members’ ability to enjoy the aesthetic qualities
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`and recreational opportunities of the affected areas.
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`17.
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`The acts and omissions of EPA alleged here harm Plaintiffs’ members by prolonging
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`poor air quality conditions that adversely affect or threaten their health, and by nullifying or
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`delaying measures and procedures mandated by the Act to protect their health from SOx
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`pollution in places where they live, work, travel, and recreate.
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`18.
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`The acts and omissions of EPA alleged here further harm Plaintiffs’ members’ welfare
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`interest in using and enjoying the natural environment. Elevated levels of SOx damage plant life,
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`aquatic life, and natural ecosystems, thus harming Plaintiffs’ members’ recreational and aesthetic
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`interests.
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`AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`3:20-cv-05436-EMC
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`Case 3:20-cv-05436-EMC Document 25 Filed 10/29/20 Page 7 of 16
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`EPA’s failure to timely perform the mandatory duties described herein also adversely
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`19.
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`affects Plaintiffs, as well as their members, by depriving them of procedural protections and
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`opportunities, as well as information that they are entitled to under the Clean Air Act.
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`20.
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`The above injuries will continue until the Court grants the relief requested herein. A
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`court order requiring EPA to promptly undertake its mandatory duties would redress Plaintiffs’
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`and Plaintiffs’ members’ injuries.
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`21.
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`Defendant ANDREW R. WHEELER is the Administrator of the EPA. Administrator
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`Wheeler is charged with the duty to implement the Clean Air Act and to take required regulatory
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`actions according to the schedules established by the Act, including the mandatory duties at issue
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`in this case. Administrator Wheeler is sued in his official capacity.
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`FACTUAL BACKGROUND: SULFUR DIOXIDE
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`22.
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`Sulfur pollution consists of sulfur oxide (SOx) gases. Of the SOx gases, sulfur dioxide
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`(SO2) is the most common. See Sulfur Dioxide (SO2) Pollution: Sulfur Dioxide Basics, EPA,
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`https://www.epa.gov/so2-pollution/sulfur-dioxide-basics#effects (last visited Oct. 28, 2020).
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`The largest source of SO2 originates from the combustion of fossil fuels containing sulfur by
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`power plants and other industrial facilities. Id. SO2 is also produced during certain industrial
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`processes, such as extracting metal from ore and in some oil refining processes, and by ships and
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`other vehicles and heavy equipment that burn fuel with a sulfur content. Id.; Primary NAAQS
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`for Sulfur Dioxide, 75 Fed. Reg. 35,520, 35,524 (June 22, 2010).
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`23.
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`Human health can be dangerously impacted by SOx emissions in as little as five minutes.
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`Primary NAAQS for Sulfur Dioxide, 75 Fed. Reg. at 35,525. SOx pollution contributes to
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`respiratory problems by impacting lung function and aggravating asthma, particularly for
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`3:20-cv-05436-EMC
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`Case 3:20-cv-05436-EMC Document 25 Filed 10/29/20 Page 8 of 16
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`children and the elderly. Id. at 35,525-29. SOx emissions can also aggravate existing heart and
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`lung diseases, and cause respiratory and cardiovascular morbidity. Id.
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`24.
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`SOx emissions also impact the environment. Acute and chronic exposures to SOx lead to
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`foliar injury, decreased photosynthesis, and decreased vegetation growth. Secondary NAAQS
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`for Oxides of Nitrogen and Sulfur, 77 Fed. Reg. 20,218, 20,224 (Apr. 3, 2012). In addition,
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`because SOx emissions may be transmitted long distances, they contribute to visibility
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`impairment problems in many national parks and wilderness areas. See Sulfur Dioxide (SO2)
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`Pollution: Sulfur Dioxide Basics, EPA, https://www.epa.gov/so2-pollution/sulfur-dioxide-
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`basics#effects (last visited Oct. 28, 2020). Furthermore, SOx emissions have the potential to
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`negatively affect endangered species. See Secondary NAAQS for Oxides of Nitrogen and
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`Sulfur, 77 Fed. Reg. at 20,234. Finally, SOx emissions contribute to the formation of acid rain,
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`which in turn impacts both the human and natural environment. Sulfur Dioxide (SO2) Pollution:
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`Sulfur Dioxide Basics, EPA, https://www.epa.gov/so2-pollution/sulfur-dioxide-basics#effects
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`(last visited Oct. 28, 2020). For example, acid rain damages trees, crops, historic buildings, and
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`monuments, and alters the acidity of both soils and water bodies. Effects of Acid Rain, EPA,
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`https://www.epa.gov/acidrain/effects-acid-rain (last visited Oct. 28, 2020).
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`25.
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`SOx can also react with other compounds in the atmosphere to form small particles,
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`which contribute to particulate matter (PM) pollution. Secondary NAAQS for Oxides of
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`Nitrogen and Sulfur, 77 Fed. Reg. at 20,222. PM can penetrate deeply into the lungs and can
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`contribute to health problems and death. See Sulfur Dioxide (SO2) Pollution: Sulfur Dioxide
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`Basics, EPA, https://www.epa.gov/so2-pollution/sulfur-dioxide-basics#effects (last visited Oct.
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`28, 2020). SOx also facilitates mercury methylation, which results in a form of mercury that is
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`especially dangerous to humans and wildlife. EPA, Integrated Science Assessment for Oxides of
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`3:20-cv-05436-EMC
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`Case 3:20-cv-05436-EMC Document 25 Filed 10/29/20 Page 9 of 16
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`Nitrogen, Oxides of Sulfur, and Particulate Matter – Ecological Criteria, Executive Summary at
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`19 (2020), available at https://cfpub.epa.gov/ncea/isa/recordisplay.cfm?deid=349473.
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`STATUTORY AND REGULATORY BACKGROUND
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`26.
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`Congress enacted the Clean Air Act “to protect and enhance the quality of the Nation’s
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`air resources so as to promote the public health and welfare and the productive capacity of its
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`population.” 42 U.S.C. § 7401(b)(1). In so enacting, Congress wanted to “speed up, expand, and
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`intensify the war against air pollution in the United States with a view to assuring that the air we
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`breathe throughout the Nation is wholesome once again.” H.R. Rep. No. 1146, 91st Cong., 2d Sess.
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`1,1, 1970 U.S. Code Cong. & Admin. News 5356, 5356 (emphasis added).
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`27.
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`Central to the Act is the requirement that EPA establish national ambient air quality
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`standards (NAAQS) for certain widespread air pollutants that endanger public health and
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`welfare, referred to as “criteria pollutants.” 42 U.S.C. §§ 7408-7409. One criteria pollutant is
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`sulfur dioxide. See 40 C.F.R. §§ 50.4, 50.5, 50.17.
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`28.
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`The NAAQS establish allowable concentrations of criteria pollutants in ambient air, i.e.
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`outdoor air. Primary standards must be stringent enough to protect public health. 42 U.S.C.
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`§ 7409(b)(1). Secondary standards must be stringent enough to protect public welfare, including,
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`but not limited to, effects on soils, water, vegetation, manmade materials, wildlife, visibility (i.e.,
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`haze), climate, damage to property, economic impacts, and effects on personal comfort and well-
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`being. Id. §§ 7409(b)(2), 7602(h).
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`29.
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`After EPA sets or revises a standard, the Clean Air Act requires EPA to take steps to
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`implement the standard. Within two years of revising a standard, EPA must “designate” areas as
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`not meeting the standard, known as “nonattainment,” or meeting the standard, known as
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`“attainment.” 42 U.S.C. § 7407(d)(1)(A)-(B).
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`AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`3:20-cv-05436-EMC
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`Case 3:20-cv-05436-EMC Document 25 Filed 10/29/20 Page 10 of 16
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`For each area designated nonattainment, states must develop a plan to attain the NAAQS.
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`30.
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`These plans, which must be submitted to EPA, are called State Implementation Plans (SIPs). See
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`42 U.S.C. §§ 7410(a)(2)(I), 7501 – 7509a, 7514 – 7514a. Under the Clean Air Act, the term
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`“State” includes Guam and Puerto Rico. 42 U.S.C. § 7602(d).
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`31.
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`EPA is required to determine whether a SIP submittal is administratively complete. 42
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`U.S.C. § 7410(k)(1)(B). If, six months after a submittal is due, a state has not complied by
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`providing the required documentation, there is no submittal that can be deemed administratively
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`complete, and EPA must make a determination stating that the state failed to submit the required
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`state implementation plan. Id. This determination is referred to as a “finding of failure to
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`submit.”
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`32.
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`A finding of failure to submit is critical because it triggers a two-year clock for EPA to
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`step into the void left by the state’s failure to submit a SIP by promulgating a federal
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`implementation plan (FIP) to reduce SOx levels to below the NAAQS. 42 U.S.C. § 7410(c).
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`33.
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`If and when a state does submit a SIP to EPA, EPA has six months to determine whether
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`the submittal is administratively complete. 42 U.S.C. § 7410(k)(1)(B). If EPA does not make
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`such a finding, the SIP submittal is “deemed by operation of law” to meet the minimum
`
`requirements of the Clean Air Act. Id. EPA then has one year from either an affirmative
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`determination or a determination deemed by operation of law to approve or disapprove the SIP
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`submittal in full or in part. 42 U.S.C. § 7410(k)(2)-(4).
`
`34.
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`EPA must also determine whether the air quality in nonattainment areas is improving.
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`The Clean Air Act requires that SO2 nonattainment areas achieve attainment within five years of
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`the nonattainment designation. 42 U.S.C. § 7514a(a). No later than six months after the
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`AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`3:20-cv-05436-EMC
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`Case 3:20-cv-05436-EMC Document 25 Filed 10/29/20 Page 11 of 16
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`attainment date for a nonattainment area, EPA must determine whether the area has attained the
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`
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`NAAQS and publish a notice in the Federal Register of that determination. 42 U.S.C. § 7509(c).
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`FACTUAL BACKGROUND: FINDINGS OF FAILURE TO SUBMIT
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`35.
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`SO2 is the pollutant that EPA has used as an indicator for regulation of all SOx emissions
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`since first promulgating a NAAQS for SO2 in 1971. See Nat’l Primary and Secondary Ambient
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`Air Quality Standards, 36 Fed. Reg. 8,186 (Apr. 30, 1971). Effective August 23, 2010, EPA
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`revised the primary SO2 NAAQS. Primary NAAQS for Sulfur Dioxide, 75 Fed. Reg. at 35,520.
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`EPA estimated that 2,300 to 5,900 premature deaths and 54,000 asthma attacks a year will be
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`prevented by the 2010 SO2 NAAQS. EPA, Final Regulatory Impact Analysis for the SO2
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`NAAQS, at 5-35 (2010), available at https://www3.epa.gov/ttn/ecas/docs/ria/naaqs-
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`so2_ria_final_2010-06.pdf. However, these lives can only be saved and adverse health outcomes
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`avoided if EPA actually implements the 2010 SO2 NAAQS. EPA is in violation of its mandatory
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`duty to issue a finding of failure to submit nonattainment SIPs for the nonattainment areas listed
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`in Table 1 below.
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`
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`AREA & ELEMENT(S)
`
`TABLE 1
`
`SUBMITTAL
`DEADLINE
`(No later than)
`
`DEADLINE FOR
`FINDING OF
`FAILURE TO
`SUBMIT
`(No later than)
`4/9/2020
`
`10/9/2019
`
`a. Piti-Cabras, Guam: Attainment
`Demonstration, Contingency
`Measures, Emission Inventories,
`Nonattainment New Source Review
`(NSR), Reasonably Available Control
`Measure/Reasonably Available
`Control Technology (RACM/RACT),
`Reasonable Further Progress (RFP)
`b. Huntington, IN: Attainment
`Demonstration, Contingency
`Measures, Emission Inventories,
`
`10/9/2019
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`4/9/2020
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`AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`3:20-cv-05436-EMC
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`Case 3:20-cv-05436-EMC Document 25 Filed 10/29/20 Page 12 of 16
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`
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`10/9/2019
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`4/9/2020
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`10/9/2019
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`4/9/2020
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`10/9/2019
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`4/9/2020
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`
`
`
`
`Nonattainment NSR, RACM/RACT,
`RFP
`c. Evangeline Parish, (Partial), LA:
`Attainment Demonstration,
`Contingency Measures, Emission
`Inventories, Nonattainment NSR,
`RACM/RACT, RFP
`d. Guayama-Salinas, Puerto Rico:
`Attainment Demonstration,
`Contingency Measures, Emission
`Inventories, Nonattainment NSR,
`RACM/RACT, RFP
`e. San Juan, Puerto Rico: Attainment
`Demonstration, Contingency
`Measures, Emission Inventories,
`Nonattainment NSR, RACM/RACT,
`RFP
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`FACTUAL BACKGROUND: FAILURE TO APPROVE OR DISAPPROVE SIP
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`36.
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`Illinois submitted a SIP to EPA for the Alton Township nonattainment area on December
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`3, 2018 with the following elements: Attainment Demonstration, Contingency Measures,
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`Emission Inventory, RACM/RACT, and RFP. Because EPA did not determine by June 3, 2019
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`whether the SIP submittal met the minimum statutory criteria, Illinois’s SIP submittal was
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`“deemed by operation of law” to meet the minimum statutory criteria on June 3, 2019. As a
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`result, EPA was required to approve or disapprove Illinois’s SIP for Alton Township either in
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`full or in part by June 3, 2020. EPA has failed to perform this mandatory duty.
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`FACTUAL BACKGROUND: FAILURE TO DETERMINE WHETHER AREAS
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`HAVE ATTAINED BY THEIR ATTAINMENT DATES
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`37.
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` EPA designated all of the areas listed in Table 2 below nonattainment for the 2010 SO2
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`NAAQS effective October 4, 2013. Air Quality Designations for the 2010 Sulfur Dioxide (SO2)
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`Primary NAAQS, 78 Fed. Reg. 47,191, 47,197-47,205 (Aug. 5, 2013). Therefore, these areas
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`had an attainment date of no later than October 4, 2018. As a result, EPA had a mandatory duty
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`AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`3:20-cv-05436-EMC
`
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`Case 3:20-cv-05436-EMC Document 25 Filed 10/29/20 Page 13 of 16
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`to determine whether these areas attained by the attainment date and publish notice of such
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`
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`finding by no later than April 4, 2019. EPA has failed to perform this mandatory duty for the
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`areas listed in Table 2.
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`Table 2
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`
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`STATE
`
`DESIGNATED AREA
`
`a. Arizona
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`b. Arizona
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`c.
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`d.
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`Indiana
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`Iowa
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`Hayden (parts of Gila County and Pinal
`County)
`Miami (part of Gila County)
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`Southwest Indiana (parts of Daviess County and
`Pike County)
`Muscatine (part of Muscatine County)
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`e. Louisiana
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`St. Bernard Parish
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`f. Michigan
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`Detroit (part of Wayne County)
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`g. Missouri
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`Jackson County (part)
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`h. Tennessee
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`Sullivan County (part)
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`i. Wisconsin
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`Rhinelander (part of Oneida County)
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`
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`38.
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`39.
`
`CLAIM ONE
`
`(Failure to make Finding of Failure to Submit)
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`Plaintiffs incorporate by reference all paragraphs listed above.
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`Effective April 9, 2018, EPA designated the following areas nonattainment for the 2010
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`primary SO2 NAAQS: Piti-Cabras, Guam; Huntington, Indiana; Evangeline Parish (partial),
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`Louisiana; and Guayama-Salinas and San Juan, Puerto Rico. Air Quality Designations for the
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`2010 Sulfur Dioxide (SO2) Primary NAAQS – Round 3, 83 Fed. Reg. 1,098, 1,171-72, 1,122,
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`AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`3:20-cv-05436-EMC
`
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`13
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`1,130 (Jan. 9, 2018). These states and territories were required to submit a SIP to EPA for their
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`
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`nonattainment areas by October 9, 2019. Id. at 1,100.
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`40.
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`The states and territories listed in Table 1 above have not submitted nonattainment SIP
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`elements for the nonattainment areas listed in Table 1 above. See Nat’l Designated Area
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`Reports, EPA, https://www3.epa.gov/airquality/urbanair/sipstatus/reports/so2__2010_en.html
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`(last visited Oct. 28, 2020).
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`41.
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`42.
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`It is more than six months after these nonattainment SIP submittals were due.
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`EPA had a mandatory duty to make findings of failure to submit for nonattainment SIP
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`elements for the nonattainment areas listed in Table 1 by the dates listed in Table 1.
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`43.
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`Yet, EPA has not issued findings of failure to submit for the nonattainment SIP elements
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`in the nonattainment areas listed in Table 1 above.
`
`44.
`
`Therefore, EPA is in violation of its mandatory duty to issue findings of failure to submit
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`pursuant to 42 U.S.C. § 7410(k)(1)(B).
`
`CLAIM TWO
`
`(Failure to Approve or Disapprove SIP)
`
`Plaintiffs incorporate by reference all paragraphs listed above.
`
`Illinois submitted a SIP to EPA for the Alton Township nonattainment area on December
`
`45.
`
`46.
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`3, 2018 with the following elements: Attainment Demonstration, Contingency Measures,
`
`Emission Inventory, RACM/RACT, and RFP. See Nat’l Designated Area Reports, EPA,
`
`https://www3.epa.gov/airquality/urbanair/sipstatus/reports/so2__2010_en.html (last visited Oct.
`
`28, 2020).
`
`47.
`
`Because EPA did not determine by June 3, 2019 whether the SIP submittal met the
`
`minimum statutory criteria, Illinois’s SIP submittal was “deemed by operation of law” to meet
`
`the minimum statutory criteria on June 3, 2019. Id.; 42 U.S.C. § 7410(k)(1)(B).
`
`AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`3:20-cv-05436-EMC
`
`
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`14
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`Case 3:20-cv-05436-EMC Document 25 Filed 10/29/20 Page 15 of 16
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`
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`It is more than one year since Illinois’s SIP was deemed complete by operation of law.
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`EPA had a mandatory duty to approve or disapprove Illinois’s SIP for Alton Township.
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`EPA has not approved or disapproved Illinois’s SIP for Alton Township either in full or
`
`
`48.
`
`49.
`
`50.
`
`in part.
`
`51.
`
`Therefore, EPA is in violation of its mandatory duty to approve or disapprove a SIP
`
`either in full or in part pursuant to 42 U.S.C. § 7410(k)(2)-(4).
`
`CLAIM THREE
`
`(Failure to Determine Whether Areas Have Attained by Their Attainment Dates)
`
`Plaintiffs incorporate by reference all paragraphs listed above.
`
`EPA designated all of the areas listed in Table 2 above nonattainment for the 2010 SO2
`
`52.
`
`53.
`
`NAAQS effective October 4, 2013. Air Quality Designations for the 2010 Sulfur Dioxide (SO2)
`
`Primary NAAQS, 78 Fed. Reg. at 47,197-47,205.
`
`54.
`
`All of the areas listed in Table 2 above had an attainment date of no later than October 4,
`
`2018. See 42 U.S.C. § 7514a(a).
`
`55.
`
`It is more than six months since the attainment date for all of the areas listed in Table 2
`
`above.
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`56.
`
`EPA has not determined whether the areas listed in Table 2 above attained by the
`
`attainment date and published notice of such finding in the Federal Register.
`
`57.
`
`Therefore, EPA is in violation of its mandatory duty to make attainment findings and
`
`publish notice of such findings in the Federal Register. 42 U.S.C. § 7509(c).
`
`RELIEF REQUESTED
`
`
`Plaintiffs respectfully request that the Court:
`(A) Declare that the Administrator is in violation of the Clean Air Act with regard to his
`
`failure to perform each mandatory duty listed above;
`
`AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`3:20-cv-05436-EMC
`
`
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`15
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`Case 3:20-cv-05436-EMC Document 25 Filed 10/29/20 Page 16 of 16
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`(B) Issue a mandatory injunction requiring the Administrator to perform his mandatory duties
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`by certain dates;
`
`(C) Retain jurisdiction of this matter for purposes of enforcing and effectuating the Court’s
`
`order;
`
`(D) Grant Plaintiffs their reasonable costs of litigation, including attorneys’ and expert fees;
`
`and
`
`(E) Grant such further relief as the Court deems just and proper.
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`Respectfully Submitted,
`
`/s/ Ashley Palomaki
`____________________________
`Ashley Palomaki (CO Bar No. 46252), pro hac vice
`CENTER FOR BIOLOGICAL DIVERSITY
`P.O. Box 1178
`Flagstaff, AZ 86002
`Phone: 928-666-0731
`Email: apalomaki@biologicaldiversity.org
`
`Jonathan Evans (Cal. Bar No. 247376)
`CENTER FOR BIOLOGICAL DIVERSITY
`1212 Broadway, Suite 800
`Oakland, CA 94612
`Phone: 510-844-7118
`Fax: 510-844-7150
`Email: jevans@biologicaldiversity.org
`Robert Ukeiley (CO Bar No. 26747), pro hac vice
`CENTER FOR BIOLOGICAL DIVERSITY
`1536 Wynkoop St., Ste. 421
`Denver, CO 80202
`Phone: 720-496-8568
`Email: rukeiley@biologicaldiversity.org
`
`Counsel for Plaintiffs Center for Biological
`Diversity, Center for Environmental Healt