Case 3:20-cv-06020-WHA Document 1 Filed 08/27/20 Page 1 of 19
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`Lalli Venkatakrishnan (Cal. Bar # 323747)
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`CENTER FOR BIOLOGICAL DIVERSITY
`1212 Broadway, Suite 800
`Oakland, CA 94612
`Phone: 510-676-0438
`Fax: 510-844-7150
`Email: lvenkat@biologicaldiversity.org
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`Attorney for Plaintiffs Center for Biological Diversity and
`Center for Environmental Health
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`Civ. No.
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`COMPLAINT
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`(Clean Air Act, 42 U.S.C. §§ 7401 et seq)
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`CENTER FOR BIOLOGICAL DIVERSITY
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`and
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`CENTER FOR ENVIRONMENTAL
`HEALTH
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`ANDREW R. WHEELER, in his official
`capacity as Administrator of the United States
`Environmental Protection Agency,
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`Plaintiffs,
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`vs.
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`Defendant.
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`INTRODUCTION
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`1. This action is brought under the federal Clean Air Act, 42 U.S.C. §§ 7401 – 7671q,
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`and seeks to compel the Administrator of the United States Environmental Protection Agency
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`(“EPA”) to carry out his outstanding legal obligations to: (1) promulgate a Federal
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`Implementation Plan (“FIP”) addressing a permitting rule for the Mendocino County Air Quality
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`Management District; (2) take final action on 51 state implementation plan elements submitted
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`by the state of California to implement the 2008 8-hour ozone NAAQS for the Eastern Kern
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`(Kern County) nonattainment area; (3) take final action on the Rule No. 428 (New Source
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`Review Requirements for New and Modified Major Sources in Federally Designated
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`Nonattainment Areas) submitted by the state of California to meet the moderate nonattainment
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`requirements under the 2008 8-hour ozone NAAQS for the Northern Sierra Air Quality
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`Management District; and (4) take final action on 7 state implementation plan elements
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`submitted by the state of Colorado to implement the 2008 8-hour ozone NAAQS for the Denver
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`Metro/North Front Range nonattainment area.
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`2.
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`Ozone air pollution has profound effects on human health. EPA has found that
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`short and long-term exposure to ozone can result in “enhanced respiratory symptoms in
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`asthmatic individuals, school absences, and premature mortality.” 73 Fed. Reg. 16,436, 16,440
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`(Mar. 27, 2008). Individuals particularly sensitive to ozone exposure include older adults, people
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`with heart and lung disease, people who work and exercise outdoors, and children. See 78 Fed.
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`Reg. 3086, 3088 (Jan. 15, 2013); 62 Fed. Reg. 38,653, 38,668 (July 18, 1997); 73 Fed. Reg.
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`16,436, 16,440 (Mar. 27, 2008).
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`3.
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`EPA also found that some plant species are especially sensitive to ozone
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`pollution, which stunts growth, interferes with photosynthesis, and increases susceptibility to
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`disease, weather, and insects. These negative impacts have a damaging effect on the surrounding
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`ecosystem, including loss of biodiversity, habitat degradation, and water, nutrient, and carbon
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`cycling. Studies link long-term ozone exposure to adverse health effects in birds such
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`inflammation, ruptured blood vessels, lung failure, decreases in egg production and hatching,
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`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF
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`Case 3:20-cv-06020-WHA Document 1 Filed 08/27/20 Page 3 of 19
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`brood abandonment, and reduced growth.1
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`4.
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`Accordingly, Plaintiffs CENTER FOR BIOLOGICAL DIVERSITY and
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`CENTER FOR ENVIRONMENTAL HEALTH bring this action against Defendant ANDREW
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`R. WHEELER, in his official capacity as Administrator for the EPA, to compel him to perform
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`his mandatory duties to ensure health and public welfare protections promised under the Clean
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`Air Act.
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`JURISDICTION
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`5.
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`This case is a Clean Air Act “citizen suit.” Therefore, the Court has jurisdiction
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`over this action pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and 42 U.S.C. §
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`7604(a) (Clean Air Act citizen suits).
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`6.
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`An actual controversy exists between the parties. This case does not concern
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`federal taxes, is not a proceeding under 11 U.S.C. §§ 505 of 1146, and does not involve the
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`Tariff Act of 1930.
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`7.
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`Thus, this Court has jurisdiction to order declaratory relief under 28 U.S.C. §§
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`2201. If the Court orders declaratory relief, 28 U.S.C. § 2202 authorizes this Court to issue
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`injunctive relief.
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`8.
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`Plaintiffs mailed by certified mail, return receipt requested, written notice of
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`NOTICE
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`intent to sue regarding Claims 1 - 3 of this Complaint. EPA received the notice letter regarding
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`these claims in this Complaint on or about November 21, 2019.
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`9.
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`Plaintiffs subsequently mailed by certified mail, return receipt requested, written
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`notice of intent to sue regarding Claim 2 of this Complaint. EPA received the notice letter
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`regarding this violation in this Complaint on or about January 30, 2020.
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`10.
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`Plaintiffs subsequently mailed by certified mail, return receipt requested, written
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`1 Olivia V. Sanderfoot and Tracey Holloway, Air Pollution Impacts on Avian Species via Inhalation Exposure and
`Associated Outcomes, 12 Environ. Res. Lett. 083002 (2017), available at
`https://iopscience.iop.org/article/10.1088/1748-9326/aa8051/pdf.
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`COMPLAINT FOR DECLARATORY AND
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`Case 3:20-cv-06020-WHA Document 1 Filed 08/27/20 Page 4 of 19
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`notice of intent to sue regarding Claim 1 - 3 of this Complaint. EPA received the notice letter
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`regarding these violations in this Complaint on or about February 24, 2020.
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`11.
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`Plaintiffs subsequently mailed by certified mail, return receipt requested, written
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`notice of intent to sue regarding Claim 4 (2008 8-hour ozone NAAQS for Denver Metro/North
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`Front Range nonattainment area, Colorado) of this Complaint. EPA received the notice letter
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`regarding this violation in this complaint on or about April 2, 2020.
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`12. More than sixty days have passed since EPA received the notice letters discussed
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`above. EPA has not remedied the violations alleged in this Complaint. Therefore, a present and
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`actual controversy exists between the parties.
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`VENUE
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`13.
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`Defendant EPA resides in this judicial district. This civil action is brought against
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`an officer of the United States acting in his official capacity and a substantial part of the events
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`or omissions giving rise to the claims in this case occurred in the Northern District of California.
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`Some of the claims in this Complaint concerns EPA’s failure to perform mandatory duties with
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`regard to California. EPA Region 9, which is responsible for California, is headquartered in San
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`Francisco. Thus, events and omissions at issue in this action occurred at EPA’s Region 9
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`headquarters in San Francisco. Additionally, Plaintiff CENTER FOR ENVIRONMENTAL
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`HEALTH is headquartered in Oakland. Accordingly, venue is proper in this Court pursuant to 28
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`U.S.C. § 1391(e).
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`INTRADISTRICT ASSIGNMENT
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`14.
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`A substantial part of the events and omissions giving rise to the claims in this case
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`occurred in the County of San Francisco. Accordingly, assignment to the Oakland or San
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`Francisco Division is proper pursuant to Civil L.R. 3-2(c) and (d).
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`15.
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`Plaintiff CENTER FOR BIOLOGICAL DIVERSITY is a non-profit 501(c)(3)
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`PARTIES
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`corporation incorporated in California. The Center for Biological Diversity’s mission is to ensure
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`the preservation, protection, and restoration of biodiversity, native species, ecosystems, public
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`COMPLAINT FOR DECLARATORY AND
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`Case 3:20-cv-06020-WHA Document 1 Filed 08/27/20 Page 5 of 19
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`lands and waters, and public health through science, policy, and environmental law. Based on the
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`understanding that the health and vigor of human societies and the integrity and wildness of the
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`natural environmental are closely linked, the Center for Biological Diversity is working to secure
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`a future for animals and plants hovering on the brink of extinction, for the ecosystems they need
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`to survive, and for a healthy, livable future for all of us.
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`Plaintiff the CENTER FOR ENVIRONMENTAL HEALTH is an Oakland,
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`California based non-profit organization that helps protect the public from toxic chemicals and
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`promotes business products and practices that are safe for public health and the environment.
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`The Center for Environmental Health works in pursuit of a world in which all people live, work,
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`learn and play in health environments.
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`17.
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`Plaintiffs’ members live, work, recreate, travel and engage in activities throughout
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`the areas at issue in this Complaint and will continue to do so on a regular basis. Pollution in the
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`affected areas threatens and damages, and will continue to threaten and damage, the health and
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`welfare of Plaintiffs’ members. Pollution diminishes Plaintiffs’ members’ ability to enjoy the
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`aesthetic qualities and recreational opportunities of the affected area.
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`18.
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`EPA’s failure to timely perform the mandatory duties described herein also
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`adversely affects Plaintiffs, as well as their members, by depriving them of procedural
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`protection, opportunities, and information that they are entitled to under the Clean Air Act.
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`Furthermore, EPA’s failure to perform its mandatory duties also creates uncertainty for
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`Plaintiffs’ members as to whether they are exposed to excess air pollution.
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`19.
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`Defendant ANDREW R. WHEELER is sued in his official capacity as the
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`Administrator of the EPA. In that role, EPA has been charged by Congress with the duty to
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`administer the Clean Air Act, including the mandatory duties at issue in this case.
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`The above injuries will continue until the Court grants the relief requested herein.
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`STATUTORY FRAMEWORK
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` Congress enacted the Clean Air Act to “speed up, expand, and intensify the war
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`against air pollution in the United States with a view to assuring the air we breathe through the
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`COMPLAINT FOR DECLARATORY AND
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`Case 3:20-cv-06020-WHA Document 1 Filed 08/27/20 Page 6 of 19
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`Nation is wholesome once again.” H.R. Rep. No. 1146, 91st Cong., 2d Sess. 1,1, 1970 U.S. Code
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`Cong. & Admin. News 5356, 5356.
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`22.
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`Commensurate with this goal, Congress authorized the Administrator of the
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`United States Environmental Protection Agency to establish National Ambient Air Quality
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`Standards (“NAAQS”) for “criteria pollutants,” which are air pollutants that “cause or contribute
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`to air pollution which may reasonably be anticipated to endanger public health or welfare.” 42
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`U.S.C. § 7408(a)(1)(A).
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`There are primary and secondary NAAQS. Id. § 7409(a)(1)(A). Primary NAAQS
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`provide for “an adequate margin of safety…to protect the public health,” while secondary
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`NAAQS “protect the public welfare from any known or anticipated adverse effects associated
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`with the presence of such air pollutants in the ambient air.” Id. § 7409(b)(1)-(2).
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`24.
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`After promulgating a new or revised NAAQS, EPA determines whether
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`geographic areas are designated nonattainment (areas that do not meet the primary or secondary
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`NAAQS), attainment (areas that meet the primary or secondary NAAQS), or unclassifiable
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`(areas that cannot be classified based on available information). Id. § 7407(d)(1)(A).
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`25.
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`States are required to submit State Implementation Plans (“SIPs”) and plan
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`revisions that “provide for the implementation, maintenance, and enforcement” of any NAAQS.
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`Id. § 7410(a)(1).
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`26. Within six months of a state submitting a SIP, EPA must make a completeness
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`finding. If a determination is not made within six months of submittal, the plan submission is
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`deemed administratively complete by operation of law. Id. § 7410(k)(1)(B).
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`27.
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`EPA is required to take final action to approve, disapprove, or provide a
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`conditional approval or disapproval within twelve months of a SIP submittal being
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`administratively complete. Id. § 7410(k)(2)-(4).
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`28. Within two years of EPA finding that a state failed to submit a required SIP or
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`disapproval of a SIP submittal, EPA must promulgate a Federal Implementation Plan. Id. §
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`7410(c).
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`COMPLAINT FOR DECLARATORY AND
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`Case 3:20-cv-06020-WHA Document 1 Filed 08/27/20 Page 7 of 19
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`FACTUAL BACKGROUND
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`A.
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`Mendocino County Air Quality Management District: 2008 8-hour Ozone
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`NAAQS
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`29.
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`On July 3, 2017, EPA published a final rule, issuing a limited approval and
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`limited disapproval of Mendocino County Air Quality Management District’s revised Rule 1-220
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`for preconstruction review and permitting under the 2008 8-hour ozone NAAQS. 82 Fed. Reg.
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`30, 770 (July 3, 2017).
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`30.
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`EPA issued a limited disapproval because Mendocino County Air Quality
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`Management District’s Rule 1-220 conflicted with the Clean Air Act’s requirement for
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`prevention of significant deterioration of air quality in areas designated “attainment” or
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`“unclassifiable” for pollutants regulated under the National Ambient Air Quality Standards.
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`31.
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`32.
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`EPA’s limited disapproval of Rule l-220 became effective on August 2, 2017. Id.
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`As a result, EPA was required to promulgate a FIP no later than August 2, 2019,
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`unless the state of California submits and EPA approves a revised SIP, correcting the
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`deficiencies, before it is required to promulgate a new source review FIP. 42 U.S.C. §7410(c)(1).
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`33.
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`To date, EPA has neither approved a revised SIP nor published a FIP addressing
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`the disapproval of revised Rule 1-220 for the Mendocino County Air Quality Management
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`District.
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`B.
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`Eastern Kern (Kern County), California: 2008 8-hour Ozone NAAQS
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`34.
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`On December 11, 2017, EPA issued a finding of failure to submit a SIP
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`addressing most of the requirements for the 2008 ozone NAAQS for the Eastern Kern (Kern
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`County) nonattainment area (“Eastern Kern nonattainment area”). 82 Fed. Reg. 58, 118 (Dec. 11,
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`2017).
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`35.
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`The state of California subsequently submitted SIPs addressing 51 nonattainment
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`SIP elements for the 2008 ozone NAAQS for the Eastern Kern nonattainment area.
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`36.
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`EPA has a mandatory duty to take final action on SIP submittals within twelve
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`months of those SIP submittals becoming administratively complete. 42 U.S.C. § 7410(k)(2)-(4).
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`COMPLAINT FOR DECLARATORY AND
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`Case 3:20-cv-06020-WHA Document 1 Filed 08/27/20 Page 8 of 19
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`37.
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`It has been more than 12 months since the nonattainment SIP elements in Table 1
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`were deemed or found administratively complete.
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`38.
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`To date, EPA has not taken final action to approve, disapprove, or conditionally
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`approve these nonattainment SIP elements for the Eastern Kern nonattainment area listed in
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`Table 1 below.
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`TABLE 1
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`Element
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`SIP Requirement
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`Submittal Date
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`Completion
`Date (no later
`than)
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`Final Action
`Due Date
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`1
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`2
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`3
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`4
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`5
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`Contingency Measures
`Volatile Organic
`Compounds (“VOC”)
`and Nitrogen Oxides
`(“NOx”)
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`10/25/17
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`4/25/2018
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`4/25/2019
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`Emission Inventory
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`10/25/2017
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`4/25/2018
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`4/25/2019
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`Emission Statement
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`10/25/2017
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`4/25/2018
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`4/25/2019
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`Nonattainment NSR
`rules - Serious
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`Ozone Attainment
`Demonstration
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` Available Control
`Technology (“RACT”)
`Non-Control
`Technique Guidelines
`(“CTG”) Volatile
`Organic Compound
`(“VOC”) for Major
`Sources
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`RACT VOC CTG
`Aerospace
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`RACT VOC CTG
`Auto and Light-Duty
`Truck Assembly
`Coatings (2008)
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`5/23/2018
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`8/28/2018
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`8/28/2019
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`10/25/2017
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`4/25/2018
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`4/25/2019
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`8/9/2017
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`2/9/2018
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`2/9/2019
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`8/9/2017
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`2/9/2018
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`2/9/2019
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`8/9/2017
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`2/9/2018
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`2/9/2019
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`COMPLAINT FOR DECLARATORY AND
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`RACT VOC CTG
`Bulk Gasoline Plants
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`RACT VOC CTG
`Equipment Leaks from
`Natural Gas/Gasoline
`Processing Plants
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`RACT VOC CTG
`Factory Surface
`Coating of Flat Wood
`Paneling
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`RACT VOC CTG
`Fiberglass Boat
`Manufacturing
`Materials (2008)
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`RACT VOC CTG Flat
`Wood Paneling
`Coatings (2006)
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`RACT VOC CTG
`Flexible Packaging
`Printing Materials
`(2006)
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`RACT VOC CTG
`Fugitive Emissions
`from Synthetic
`Organic Chemical
`Polymer and Resin
`Manufacturing
`Equipment
`RACT VOC CTG
`Graphic Arts -
`Rotogravure and
`Flexography
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`RACT VOC CTG
`Industrial Cleaning
`Solvents (2006)
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`8/9/2017
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`2/9/2018
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`2/9/2019
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`8/9/2017
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`2/9/2018
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`2/9/2019
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`8/9/2017
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`2/9/2018
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`2/9/2019
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`8/9/2017
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`2/9/2018
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`2/9/2019
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`8/9/2017
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`2/9/2018
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`2/9/2019
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`8/9/2017
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`2/9/2018
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`2/9/2019
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`8/9/2017
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`2/9/2018
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`2/9/2019
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`8/9/2017
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`2/9/2018
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`2/9/2019
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`8/9/2017
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`2/9/2018
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`2/9/2019
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`COMPLAINT FOR DECLARATORY AND
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`Case 3:20-cv-06020-WHA Document 1 Filed 08/27/20 Page 10 of 19
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`RACT VOC CTG
`Large Appliance
`Coatings (2007)
`
`RACT VOC CTG
`Large Petroleum Dry
`Cleaners
`
`
`RACT VOC CTG
`Leaks from Gasoline
`Tank Trucks and
`Vapor Collection
`Systems
`
`RACT VOC CTG
`Leaks from Petroleum
`Refinery Equipment
`
`RACT VOC CTG
`Lithographic Printing
`Materials and
`Letterpress Printing
`Materials (2006)
`
`RACT VOC CTG
`Manufacture of High-
`Density Polyethylene,
`Polypropylene, and
`Polystyrene Resins
`
`RACT VOC CTG
`Manufacture of
`Pneumatic Rubber
`Tires
`
`RACT VOC CTG
`Manufacture of
`Synthesized
`Pharmaceutical
`Products
`
`RACT VOC CTG
`Metal Furniture
`Coatings (2007)
`
`8/9/2017
`
`2/9/2018
`
`2/9/2019
`
`8/9/2017
`
`2/9/2018
`
`2/9/2019
`
`8/9/2017
`
`2/9/2018
`
`2/9/2019
`
`8/9/2017
`
`2/9/2018
`
`2/9/2019
`
`8/9/2017
`
`2/9/2018
`
`2/9/2019
`
`8/9/2017
`
`2/9/2018
`
`2/9/2019
`
`8/9/2017
`
`2/9/2018
`
`2/9/2019
`
`8/9/2017
`
`2/9/2018
`
`2/9/2019
`
`8/9/2017
`
`2/9/2018
`
`2/9/2019
`
`
`
`
`
`9
`
`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF
`
`
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`1
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`2
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`3
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`28
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`
`
`

`

`Case 3:20-cv-06020-WHA Document 1 Filed 08/27/20 Page 11 of 19
`
`
`
`RACT VOC CTG
`Miscellaneous
`Industrial Adhesives
`(2008)
`
`RACT VOC CTG
`Miscellaneous Metal
`Products Coatings
`(2008)
`
`RACT VOC CTG
`Paper, Film, and Foil
`Coatings (2007)
`
`RACT VOC CTG
`Petroleum Liquid
`Storage in External
`Floating Roof Tanks
`
`
`RACT VOC CTG
`Plastic Parts Coatings
`(2008)
`
`RACT VOC CTG
`Refinery Vacuum
`Producing Systems,
`Wastewater
`Separators, and
`Process Unit
`Turnarounds
`
`RACT VOC CTG
`SOCMI Air Oxidation
`Processes
`
`RACT VOC CTG
`SOCMI Distillation
`and Reactor Processes
`
`RACT VOC CTG
`Shipbuilding/repair
`
`RACT VOC CTG
`Solvent Metal
`Cleaning
`
`1
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`2
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`3
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`28
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`29
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`30
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`31
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`32
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`33
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`34
`
`35
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`36
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`8/9/2017
`
`2/9/2018
`
`2/9/2019
`
`8/9/2017
`
`2/9/2018
`
`2/9/2019
`
`8/9/2017
`
`2/9/2018
`
`2/9/2019
`
`8/9/2017
`
`2/9/2018
`
`2/9/2019
`
`8/9/2017
`
`2/9/2018
`
`2/9/2019
`
`8/9/2017
`
`2/9/2018
`
`2/9/2019
`
`8/9/2017
`
`2/9/2018
`
`2/9/2019
`
`8/9/2017
`
`2/9/2018
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`2/9/2019
`
`8/9/2017
`
`2/9/2018
`
`2/9/2019
`
`8/9/2017
`
`2/9/2018
`
`2/9/2019
`
`10
`
`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF
`
`
`
`
`
`
`
`
`

`

`Case 3:20-cv-06020-WHA Document 1 Filed 08/27/20 Page 12 of 19
`
`
`
`RACT VOC CTG
`Stage I Vapor Control
`Systems - Gasoline
`Service Stations
`
`RACT VOC CTG
`Storage of Petroleum
`Liquids in Fixed Roof
`Tanks
`
`RACT VOC CTG
`Surface Coating for
`Insulation of Magnet
`Wire
`
`RACT VOC CTG
`Surface Coating of
`Automobiles and
`Light-Duty Trucks
`
`RACT VOC CTG
`Surface Coating of
`Cans
`
`RACT VOC CTG
`Surface Coating of
`Coils
`
`RACT VOC CTG
`Surface Coating of
`Fabrics
`
`RACT VOC CTG
`Surface Coating of
`Large Appliances
`
`RACT VOC CTG
`Surface Coating of
`Metal Furniture
`
`RACT VOC CTG
`Surface Coating of
`Miscellaneous Metal
`Parts and Products
`
`RACT VOC CTG
`Surface Coating of
`Paper
`
`RACT VOC CTG
`Tank Truck Gasoline
`
`1
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`37
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`38
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`39
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`40
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`41
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`42
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`43
`
`44
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`45
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`46
`
`47
`
`48
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`8/9/2017
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`2/9/2018
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`2/9/2019
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`8/9/2017
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`2/9/2018
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`2/9/2019
`
`8/9/2017
`
`2/9/2018
`
`2/9/2019
`
`8/9/2017
`
`2/9/2018
`
`2/9/2019
`
`8/9/2017
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`2/9/2018
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`2/9/2019
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`8/9/2017
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`2/9/2018
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`2/9/2019
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`8/9/2017
`
`2/9/2018
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`2/9/2019
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`8/9/2017
`
`2/9/2018
`
`2/9/2019
`
`8/9/2017
`
`2/9/2018
`
`2/9/2019
`
`8/9/2017
`
`2/9/2018
`
`2/9/2019
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`8/9/2017
`
`2/9/2018
`
`2/9/2019
`
`8/9/2017
`
`2/9/2018
`
`2/9/2019
`
`11
`
`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF
`
`
`
`
`
`
`
`
`

`

`Case 3:20-cv-06020-WHA Document 1 Filed 08/27/20 Page 13 of 19
`
`
`
`
`
`49
`
`50
`
`51
`
`.
`
`Loading Terminals
`
`RACT VOC CTG Use
`of Cutback Asphalt
`
`RACT VOC CTG
`Wood Furniture
`
`Reasonable Further
`Progress (“RFP”)
`Volatile Organic
`Compound (“VOC”)
`and Nitrogen Oxide
`(“NOx”) Moderate
`
`
`8/9/2017
`
`2/9/2018
`
`2/9/2019
`
`8/9/2017
`
`2/9/2018
`
`2/9/2019
`
`10/25/2017
`
`04/25/2018
`
`04/25/2019
`
`C. Northern Sierra Air Quality Management District, California: 2008 8-hour
`
`Ozone NAAQS
`
`39.
`
`On September 6, 2016, the state of California submitted a SIP revising Northern
`
`Sierra Air Quality Management District’s New Source Review regulations to meet the moderate
`
`nonattainment requirements under the 2008 8-hour ozone NAAQS.
`
`40.
`
` EPA determined that the state of California’s submission of Rule No. 428 (New
`
`Source Review Requirements for New and Modified Sources in Federally Designated
`
`Nonattainment Areas) met the minimum criteria for completeness on September 28, 2016. In any
`
`event, the Rule No. 428 submittal would have been deemed complete by no later than March 6,
`
`2017.
`
`41.
`
`EPA has a mandatory duty to take final action on SIP submittals within twelve
`
`months of those SIP submittals becoming administratively complete. 42 U.S.C. § 7410(k)(2)-(4).
`
`42.
`
`On February 19, 2020, the California Air Resource Commission submitted a
`
`revised Rule 428 to EPA for approval into the California SIP, and claimed to “withdraw” its
`
`September 6, 2016 submittal of the prior version of the rule. The February 19, 2020 update of the
`
`September 6, 2016 submittal does not change the due date for EPA’s final action.
`
`
`
`
`
`12
`
`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF
`
`
`
`
`
`
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`1
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`2
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`3
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`28
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`
`
`

`

`Case 3:20-cv-06020-WHA Document 1 Filed 08/27/20 Page 14 of 19
`
`
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`1
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`3
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`5
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`6
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`7
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`8
`
`9
`
`43.
`
`To date, EPA has not taken final action to approve, disapprove, or conditionally
`
`approve this SIP submittal.
`
`D. Denver Metro/North Front Range nonattainment area, Colorado: 2008 8-hour
`
`Ozone NAAQS
`
`44.
`
`On July 3, 2018, EPA issued a final rule regarding SIP revisions for the 2008
`
`ozone NAAQS for the Denver Metro/North Front Range nonattainment area. 83 Fed. Reg. 31,
`
`068 (July 3, 2018). The final rule approved the majority of the SIP submittal except for
`
`Regulation No. 7, Section XVI. D-XIX. Id. At 31, 070-71.
`
`45.
`
`The state of Colorado subsequently submitted SIPs addressing 7 nonattainment
`
`10
`
`SIP elements for the 2008 Ozone NAAQS for the Denver Metro/North Front Range
`
`11
`
`nonattainment area.
`
`12
`
`46.
`
`It has been more than 12 months since the nonattainment SIP elements in Table 2
`
`13
`
`were deemed or found administratively complete.
`
`14
`
`47.
`
`To date, EPA has not taken final action to approve, disapprove, or conditionally
`
`15
`
`approve these nonattainment SIP elements for the Denver Metro/North Front Range
`
`16
`
`nonattainment area listed in Table 2 below.
`
`17
`
`18
`
`19
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`20
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`21
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`22
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`23
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`24
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`25
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`26
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`27
`
`28
`
`
`
`
`
`
`
`TABLE 2
`
`SIP Elements
`
`Submittal Date
`
`Completion Date
`(no later than)
`
`Final Action
`Due Date
`
`Reasonably
`Achievable
`Control
`Technology
`(“RACT”)
`Volatile Organic
`Compound
`(“VOC”)
`Control
`Technique
`Guideline
`(“CTG”) Metal
`Furniture
`Coatings (2007)
`
`5/31/2017
`
`11/30/2017
`
`11/30/2018
`
`13
`
`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF
`
`
`
`
`
`
`
`
`

`

`Case 3:20-cv-06020-WHA Document 1 Filed 08/27/20 Page 15 of 19
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`1
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`2
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`3
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`5
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`6
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`7
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`8
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`9
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`10
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`11
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`12
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`13
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`14
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`15
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`16
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`17
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`18
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`19
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`20
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`21
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`22
`
`23
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`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`RACT VOC
`CTG
`Miscellaneous
`Metal Products
`Coatings (2008)
`RACT VOC
`CTG Wood
`Furniture
`Manufacturing
`Operations
`(1996)
`RACT VOC
`CTG Industrial
`Cleaning
`Solvents (2006)
`
`RACT VOC
`CTG Aerospace
`(1997)
`
`Reg. No. 7,
`Section X (Use
`of Cleaning
`Solvents)
`
`Reg. No. 7,
`Section XIX
`(Control of
`Emissions from
`Specific Major
`Sources of VOC
`and/or NOx in
`the 8-Hour
`Ozone Control
`Area)
`
`5/31/2017
`
`11/30/2017
`
`11/30/2018
`
`5/31/2017
`
`11/30/2017
`
`11/30/2018
`
`5/31/2017
`
`11/30/2017
`
`11/30/2018
`
`5/31/2017
`
`11/30/2017
`
`11/30/2018
`
`5/31/2017
`
`11/30/2017
`
`11/30/2018
`
`5/31/2017
`
`11/30/2017
`
`11/30/2018
`
`CLAIMS FOR RELIEF
`
`FIRST CLAIM
`
`(Failure to promulgate a FIP for part of Mendocino County’s New Source Review
`
`48.
`
`Plaintiffs incorporate by reference all paragraphs listed above.
`
`Program)
`
`
`
`
`
`14
`
`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF
`
`
`
`
`
`
`
`
`

`

`Case 3:20-cv-06020-WHA Document 1 Filed 08/27/20 Page 16 of 19
`
`
`
`1
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`2
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`3
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`4
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`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`49.
`
`It has been more than two years since the effective date of EPA’s final rule,
`
`issuing a limited disapproval of Mendocino County Air Quality Management District’s revised
`
`Rule 1-220 for preconstruction review and permitting. 82 Fed. Reg. 30, 770.
`
`50.
`
`EPA has not promulgated a FIP to address the basis for its disapproval of revised
`
`Rule 1-220 and has not approved a SIP addressing the basis for that disapproval.
`
`51.
`
`Accordingly, EPA is in violation of its mandatory duty under 42 U.S.C. §
`
`7410(C)(1) with regard to revised Rule 1-220.
`
`SECOND CLAIM
`
`(Failure to take final action on the 2008 8-hour ozone SIP submittals for the Kern County
`
`nonattainment area, California)
`
`Plaintiffs incorporate by reference all paragraphs listed above.
`
`It has been more than twelve months since the 2008 8-hour ozone NAAQS SIP
`
`52.
`
`53.
`
`13
`
`elements for the Kern County, California 2008 ozone NAAQS nonattainment area listed in Table
`
`14
`
`1 were administratively complete.
`
`15
`
`54.
`
`EPA has not taken final action to approve, disapprove, or conditionally approve
`
`16
`
`the 2008 8-hour ozone NAAQS SIP elements for the Kern County, California 2008 ozone
`
`17
`
`NAAQS nonattainment area listed in Table 1.
`
`18
`
`55.
`
`Accordingly, EPA is in violation of its mandatory duty under 42 U.S.C. §
`
`19
`
`7410(k)(2)-(4) to take final action on the 2008 8-hour ozone NAAQS SIP elements for the Kern
`
`20
`
`County, California 2008 ozone NAAQS nonattainment area listed in Table 1.
`
`21
`
`22
`
`23
`
`24
`
`25
`
`THIRD CLAIM
`
`(Failure to take final action on the 2008 8-hour ozone SIP submittals for the Northern
`
`Sierra Air Quality Management District, California)
`
`Plaintiffs incorporate by reference all paragraphs listed above.
`
`It has been more than twelve months since the Rule No. 428 SIP submittal for the
`
`56.
`
`57.
`
`26
`
`Northern Sierra Air Quality Management District’s New Source Review regulations to meet the
`
`27
`
`moderate nonattainment requirements under the 2008 ozone NAAQS.
`
`28
`
`
`
`
`
`
`
`15
`
`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF
`
`
`
`
`
`
`
`
`

`

`Case 3:20-cv-06020-WHA Document 1 Filed 08/27/20 Page 17 of 19
`
`
`
`1
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`2
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`3
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`4
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`5
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`6
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`7
`
`8
`
`9
`
`10
`
`58.
`
`EPA has not taken final action to approve, disapprove, or conditionally approve
`
`the Rule No. 428 SIP submittal.
`
`59.
`
`Accordingly, EPA is in violation of its mandatory duty under 42 U.S.C. §
`
`7410(k)(2)-(4) to take final action on the Rule No. 428 SIP submittal for the Northern Sierra Air
`
`Quality Management District.
`
`FOURTH CLAIM
`
`(Failure to take final action on the 2008 8-hour ozone SIP submittals for the Denver
`
`Metro/North Front Range nonattainment area, Colorado)
`
`Plaintiffs incorporate by reference all paragraphs listed above.
`
`It has been more than twelve months since the 2008 8-hour ozone NAAQS SIP
`
`60.
`
`61.
`
`11
`
`elements for the Denver Metro/North Front Range nonattainment area listed in Table 2 were
`
`12
`
`administratively complete.
`
`13
`
`62.
`
` EPA has not taken final action to approve, disapprove, or conditionally approve
`
`14
`
`the 2008 8-hour ozone NAAQS SIP elements for the Denver Metro/North Front Range
`
`15
`
`nonattainment area listed in Table 2.
`
`16
`
`63.
`
`Accordingly, EPA is in violation of its mandatory duty under 42 U.S.C. §
`
`17
`
`7410(k)(2)-(4) to take final action on the 2008 8-hour ozone NAAQS SIP elements for the
`
`18
`
`Denver Metro/North Front Range nonattainment area listed in Table 2.
`
`19
`
`REQUEST FOR RELIEF
`
`20
`
`Wherefore, Plaintiffs respectfully request that the Court:
`
`21
`
`64.
`
`Declare that EPA is in violation of the Clean Air Act with regard to its
`
`22
`
`nondiscretionary duty to perform each mandatory duty listed above;
`
`23
`
`65.
`
`Issue a mandatory injunction requiring EPA to perform its mandatory duties by
`
`24
`
`certain dates;
`
`25
`
`26
`
`66.
`
`67.
`
`27
`
`fees; and
`
`28
`
`
`
`
`
`
`
`Retain jurisdiction of this matter for purposes of enforcing the Court’s order;
`
`Grant Plaintiffs their reasonable costs of litigation, including attorneys’ and expert
`
`16
`
`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF
`
`
`
`
`
`
`
`
`

`

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`Case 3:20-cv-06020-WHA Document 1 Filed 08/27/20 Page 18 of 19
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`68.
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`Grant such other relief as the Court deems just and proper.
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`COMPLAINT FOR DECLARATORY AND
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`Case 3:20-cv-06020-WHA Document 1 Filed 08/27/20 Page 19 of 19
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`Dated: August 27, 2020
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`Respectfully submitted,
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`/s/Lalli Venkatakrishnan
`Lalli Venkatakrishnan (Cal. Bar # 323747)
`CENTER FOR BIOLOGICAL DIVERSITY
`1212 Broadway, Suite 800
`Oakland, CA 94612
`Tel: (510) 676-0348
`Email: lvenkat@biologicaldiversity.org
`
`Attorney for Plaintiffs Center for Biological
`Diversity and Center for Environmental Health
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