Case 3:22-cv-00052-WHO Document 1 Filed 01/05/22 Page 1 of 14
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`Victoria Bogdan Tejeda (Cal. Bar # 317132)
`CENTER FOR BIOLOGICAL DIVERSITY
`1212 Broadway, Suite 800
`Oakland, CA 94612
`Phone: 510-844-7100
`Fax: 510-844-7150
`Email: vbogdantejeda@biologicaldiversity.org
`
`Attorney for Plaintiffs Center for Biological
`Diversity and Center for Environmental Health
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`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`Civil Action No. ______________
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`COMPLAINT FOR
`DECLARATORY AND INJUNCTIVE
`RELIEF
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`(Clean Air Act, 42 U.S.C. § 7410)
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`CENTER FOR BIOLOGICAL DIVERSITY
`and CENTER FOR ENVIRONMENTAL
`HEALTH,
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`Plaintiffs,
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`v.
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`MICHAEL S. REGAN,
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`in his official capacity as Administrator,
`United States Environmental Protection
`Agency,
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` Defendant.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 3:22-cv-00052-WHO Document 1 Filed 01/05/22 Page 2 of 14
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`INTRODUCTION
`Plaintiffs seek declaratory and injunctive relief through the citizen suit provision of the
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`Clean Air Act (the Act) against Michael S. Regan, Administrator of the United States
`Environmental Protection Agency (EPA), for the agency’s failure to complete mandatory duties
`required by the Act’s state implementation plan (SIP) provisions. Specifically, EPA violated 42
`U.S.C. § 7410(k)(1)(B) by failing to make findings that seven areas EPA designated as in
`“Serious” nonattainment for the 2008 ozone National Ambient Air Quality Standards (NAAQS)
`did not submit required SIP elements by deadlines EPA set forth. See Determinations of
`Attainment by the Attainment Date, Extensions of the Attainment Date, and Reclassification of
`Several Areas Classified as Moderate for the 2008 Ozone National Ambient Air Quality
`Standards, 84 Fed. Reg. 44,238 (Aug. 23, 2019) (to be codified at 40 C.F.R. pts. 52, 81); see also
`Table 1, infra. In addition, in violation of 42 U.S.C. § 7410(k)(2)–(4), EPA failed to take final
`action to approve, disapprove, or conditionally approve SIP elements for the West Mojave
`Desert area, which EPA designated as in “Severe-15” nonattainment for the 2008 ozone NAAQs.
`See Air Quality Designations for the 2008 Ozone National Ambient Air Quality Standards, 77
`Fed. Reg. 30,088 (May 21, 2012) (to be codified at 40 C.F.R. pt. 81); see also Table 2, infra.
`Ground-level ozone—commonly known as “smog”—damages both people’s health and
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`the environment. Human exposure to ozone pollution causes “decreased lung function and
`increased respiratory symptoms,” leading to increased emergency department visits and hospital
`admissions. National Ambient Air Quality Standards for Ozone, 73 Fed. Reg. 16,436 (Mar. 27,
`2008) (to be codified at 40 C.F.R. pts. 50, 58); see also EPA, Health Effects of Ozone Pollution,
`https://www.epa.gov/ground-level-ozone-pollution/health-effects-ozone-pollution (last visited
`Dec. 27, 2021). For plants and animals, ozone pollution can alter an ecosystem’s structure and
`function, thereby putting species’ survival at risk. 73 Fed. Reg. at 16,486–89; see also EPA,
`Ecosystem Effects of Ozone Pollution, https://www.epa.gov/ground-level-ozone-
`pollution/ecosystem-effects-ozone-pollution (last visited Dec. 27, 2021). Ozone pollution also
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 3:22-cv-00052-WHO Document 1 Filed 01/05/22 Page 3 of 14
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`contributes to the climate crisis by hindering plant growth, thereby reducing plants’ ability to
`sequester carbon. 73 Fed. Reg. at 16,486–89.
`EPA’s failures to fulfill its duties required under the Act mean that people living in these
`3.
`nonattainment areas are, and will continue to be, subjected to unhealthy levels of ozone
`pollution, and further environmental degradation will occur because the areas in nonattainment
`have not submitted the required plan elements to chart a course towards attainment of ozone
`standards.
`Plaintiffs ask this Court to find that EPA violated the Act when it failed, within the Act’s
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`six-month timeframe pursuant to 42 U.S.C. § 7410(k)(1)(B), to make findings of failure to
`submit for each of the states listed in Table 1, infra. Plaintiffs also ask that this Court order EPA
`to take final action by issuing findings of failure to submit to each state listed in Table 1, infra,
`for each of the SIP elements by a date certain.
`Plaintiffs further ask this Court to find that EPA violated the Act when it failed, within
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`the Act’s twelve-month timeframe pursuant to 42 U.S.C. § 7410(k)(2)–(4), to approve,
`disapprove, or conditionally approve the West Mojave Desert area’s SIP submittals listed in
`Table 2, infra. Plaintiffs ask that this Court order EPA to take final action on the West Mojave
`Desert’s SIP submittals by a date certain.
`Plaintiffs intend to recover all available litigation costs, including reasonable attorneys’
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`fees, under section 304(d) of the Act. 42 U.S.C. § 7604(d).
`JURISDICTION
`Jurisdiction is proper in this Court pursuant to 28 U.S.C. § 1331. This case involves
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`federal questions arising under the Act, 42 U.S.C. § 7410. Jurisdiction is also proper in this Court
`pursuant to id. § 7604(a)(2), as this case is a suit by a person to compel the performance of a
`nondiscretionary duty under the Act.
`This Court has jurisdiction to order declaratory relief under 28 U.S.C. § 2201. This case
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`does not concern federal taxes, is not a proceeding under 11 U.S.C. §§ 505, 1146, and does not
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`Case 3:22-cv-00052-WHO Document 1 Filed 01/05/22 Page 4 of 14
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`involve the Tariff Act of 1930. If this Court orders declaratory relief, 28 U.S.C. § 2202
`authorizes this Court to issue injunctive relief.
`NOTICE
`In satisfaction of 42 U.S.C. § 7604(b) and 40 C.F.R. § 54, Plaintiffs mailed to EPA by
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`certified mail, return receipt requested, written notice of intent to sue regarding the violations
`alleged in this Complaint.
`On September 27, 2021, Plaintiffs sent the first notice letter to EPA via certified mail,
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`alerting the agency that it missed its deadlines, pursuant to 42 U.S.C. § 7410(k)(1)(B), to issue
`findings of failure to submit for areas designated in “Serious” nonattainment for the 2008 ozone
`NAAQS. EPA received the notice letter no later than October 4, 2021. The statutory 60-day
`notice period expired no later than December 3, 2021. EPA has not remedied the violations
`alleged in the notice letter.
`On October 14, 2021, Plaintiffs sent a second notice letter, via certified mail, alerting
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`EPA that it missed its deadline, pursuant to 42 U.S.C. § 7410(k)(2), on certain SIP submittals for
`the West Mojave Desert area. EPA received the notice letter no later than October 19, 2021. The
`statutory 60-day notice period expired no later than December 18, 2021. EPA has not remedied
`the violations alleged in the notice letter.
`
`VENUE
`Venue in this Court is proper under 28 U.S.C. § 1391(e)(1) for several reasons. First,
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`Plaintiff Center for Environmental Health resides in this district, with their headquarters at 2201
`Broadway, Suite 508, Oakland, California. Second, Defendant EPA resides and performs its
`official duties in this district, with a regional headquarters office at 75 Hawthorne St., San
`Francisco, California. Third, two of the claims in this Complaint—concerning San Diego and the
`West Mojave Desert—concern EPA’s failure to perform mandatory duties within EPA Region 9,
`meaning a substantial part of the events or omissions giving rise to the claims in this case
`occurred in the Northern District of California.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 3:22-cv-00052-WHO Document 1 Filed 01/05/22 Page 5 of 14
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`INTRADISTRICT ASSIGNMENT
`Pursuant to Civil L.R. 3-2(c), (d), this case is properly assigned to the San Francisco or
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`Oakland Division of this Court because a substantial part of the events and omissions giving rise
`to the claims in this case occurred in the County of San Francisco, where EPA Region 9 is
`headquartered.
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`PARTIES
`Plaintiff CENTER FOR BIOLOGICAL DIVERSITY is a non-profit 501(c)(3)
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`corporation. The Center for Biological Diversity has approximately 89,610 members throughout
`the United States and the world. Approximately 14,000 of these members live in the areas at
`issue here that are designated as in “Serious” nonattainment for the 2008 ozone NAAQS. The
`Center for Biological Diversity’s mission is to ensure the preservation, protection, and
`restoration of biodiversity, native species, ecosystems, public lands and waters, and public health
`through science, policy, and environmental law.
`Plaintiff CENTER FOR ENVIRONMENTAL HEALTH is a 501(c)(3) nonprofit
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`corporation organized and existing under the laws of the State of California. Its headquarters is
`located in Oakland. The Center for Environmental Health protects the public from toxic
`chemicals by working with communities, consumers, workers, government, and the private
`sector to demand 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 play in healthy environments.
`Plaintiffs are “persons” as defined by the Act, 42 U.S.C. § 7602(e).
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`17.
`As a result of EPA’s failures of its mandatory duties to (1) hold the states in Table 1,
`infra, accountable for missing their deadlines to submit SIP elements; and (2) take final action on
`complete SIP submittals in Table 2, infra, for the West Mojave Desert area, Plaintiffs have
`suffered and will continue to suffer harm from ozone pollution.
`At least 14,000 of Plaintiffs’ members live, work, recreate, travel, and engage in other
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`activities throughout the areas at issue in this complaint and will continue to do so on a regular
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 3:22-cv-00052-WHO Document 1 Filed 01/05/22 Page 6 of 14
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`basis. Pollution in the affected areas threatens and damages, and will continue to threaten and
`damage, the health and welfare of Plaintiffs’ members, as well as their ability to engage in and
`enjoy activities, particularly outdoor activities such as walking, biking, hiking, and playing with
`their children.
`EPA’s failures alleged herein also harm Plaintiffs’ members’ welfare interest in using and
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`enjoying the natural environment. Elevated levels of ground-level ozone damage plant life and
`natural ecosystems, thus harming Plaintiffs’ members’ recreational and aesthetic interests in the
`nonattainment areas at issue in this complaint.
`In addition, EPA’s failure to timely perform its mandatory duties described herein
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`adversely impacts Plaintiffs’ members by depriving them of procedural protection and
`opportunities, as well as information they are entitled to under the Act. For example, the
`Emissions Inventory SIP element that many areas listed in Table 1, infra, have not provided
`information—such as the pollution discharged into the atmosphere broken down by specified
`source categories—that the Act explicitly says the public is entitled to. Plaintiffs may use the
`information provided in the Emissions Inventory to identify priorities for advocacy, or to better
`understand the health impacts of particular sources in the nonattainment areas. For Plaintiffs to
`try and create an Emissions Inventory-type document on their own would require large amounts
`of organizational resources and expenses, meaning that this information provided as part of SIP
`submittal saves Plaintiffs time and money.
`The above injuries will continue until the Court grants the relief requested herein. A court
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`order requiring EPA to undertake its mandatory duties would redress Plaintiffs’ and Plaintiffs’
`members’ injuries.
`Defendant MICHAEL S. REGAN is the Administrator of the EPA. Administrator Regan
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`is charged with the duty to uphold the Clean Air Act and to take required regulatory actions
`according to the schedules established by the Act, including the mandatory duties at issue in this
`case. Administrator Regan is sued in his official capacity.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`STATUTORY AND REGULATORY BACKGROUND
`The Clean Air Act seeks “to protect and enhance the quality of the Nation’s air resources
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`so as to promote the public health and welfare and the productive capacity of its population.” 42
`U.S.C. § 7401(b)(1).
`Central to the Act is the requirement that EPA establish NAAQS for certain widespread
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`air pollutants that endanger public health and welfare, referred to as “criteria pollutants.” 42
`U.S.C. §§ 7408–7409. One criteria pollutant is ozone. See 40 C.F.R. §§ 50.9, 50.10, 50.15, 50.19.
`The NAAQS establish allowable concentrations of criteria pollutants in ambient air.
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`Primary standards must be stringent enough to protect public health. 42 U.S.C. § 7409(b)(1).
`Secondary standards must be stringent enough to protect public welfare, including, but not
`limited to, effects on soils, water, vegetation, manmade materials, wildlife, visibility (i.e., haze),
`climate, damage to property, economic impacts, and effects on personal comfort and well-being.
`Id. §§ 7409(b)(2), 7602(h).
`After EPA sets or revises a NAAQS, the Act requires EPA to take steps to ensure that the
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`standard is met. One of the first steps EPA must take is to identify, or “designate,” areas of the
`country that either meet or do not meet the standard. 42 U.S.C. § 7407(d)(1)(A)–(B). Areas that
`meet the standard are in “attainment,” whereas those that do not meet the standard are designated
`as in “nonattainment.” Id. § 7407(d)(1)(A). Areas designated as in nonattainment are also
`classified according to the severity; classification categories for ozone nonattainment areas are
`Marginal, Moderate, Serious, Severe, and Extreme. Id. § 7511. Nonattainment areas are then
`subject to specific mandatory measures depending on their level of classification. Id. § 7511a.
`These plans, which must be submitted to EPA, are called a state implementation plan (SIP). Id. §
`7410(a)(2)(I).
`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
`providing the required documentation, there is no submittal that can be deemed administratively
`complete, and EPA has a non-discretionary duty to make a determination stating that the state
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`failed to submit the required SIP. Id. This determination is commonly referred to as a “finding of
`failure to submit.”
`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
`implementation plan (FIP) to reduce a criteria pollutant’s levels to below the NAAQS. 42 U.S.C.
`§ 7410(c).
`Under the Act, EPA also has a nondiscretionary duty to take final action to approve,
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`disapprove, or conditionally approve a SIP submittal within twelve months of the submittal
`either being deemed, or found, administratively complete. 42 U.S.C. § 7410(k)(2)–(4).
`FACTUAL BACKGROUND
`Ground-level ozone forms when other pollutants, known as ozone precursors, react in the
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`presence of sunlight. See EPA, Ozone and Ozone Standards: The Basics,
`https://www.epa.gov/sites/default/files/2016-04/documents/20151001basicsfs.pdf (last visited
`Dec. 28, 2021). Ozone is found both in the Earth’s stratosphere and at ground level, though the
`impacts of ozone in each region are distinct. Stratospheric ozone protects the Earth from harmful
`radiation from the sun’s rays, whereas ground-level ozone—a key component of smog—is
`harmful to human health and the environment. Id.
`Serious negative health effects occur in individuals exposed to ozone pollution. These
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`health impacts include throat irritation, lung tissue damage, and exacerbation of asthma,
`bronchitis, heart disease, and emphysema. National Ambient Air Quality Standards for Ozone,
`80 Fed. Reg. 65,292, 65,302–11 (Oct. 26, 2015) (to be codified at 40 C.F.R. pts. 50–53, 58).
`Exposure to elevated levels of ground-level ozone is also linked increased emergency department
`visits, hospitalizations, and even death. Id. at 65,302; see also Ana M. Vicedo-Cabrera, et al.,
`Short term association between ozone and mortality: global two stage time series study in 406
`locations in 20 countries, BMJ 368 (2020), https://www.bmj.com/content/368/bmj.m108.
`Certain populations are especially susceptible to harm from ozone pollution, such as children, the
`elderly, those with existing lung disease, and individuals who work primarily outside. 80 Fed.
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`Reg. at 65,310–11. People of color and those living below the federal poverty line are likely to
`face greater risks of harms from ozone exposure. Review of the Ozone National Ambient Air
`Quality Standards, 85 Fed. Reg. 49,830, 49,849–50 (Aug. 14, 2020) (to be codified at 40 C.F.R.
`pt. 50).
`Ozone pollution is also harmful to the environment. Ground-level ozone can be
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`especially harmful to sensitive vegetation—including trees such as the black cherry, quaking
`aspen, white pine, and ponderosa pine. EPA, Ecosystem Effects of Ozone Pollution,
`https://www.epa.gov/ground-level-ozone-pollution/ecosystem-effects-ozone-pollution (last
`visited Dec. 27, 2021). Ozone pollution harms soils, water, and wildlife, and their associated
`ecosystems, leading to diminished clean air and water. 73 Fed. Reg. 16,436, 16,485–86. Excess
`ground-level ozone also contributes to the climate crisis, as ozone pollution hinders plant growth,
`thereby reducing the natural carbon sequestration potential of plants. Id. at 16,486; see generally
`Biological Carbon Sequestration, Univ. of Cal. Davis,
`https://climatechange.ucdavis.edu/science/carbon-sequestration/biological/ (last visited Dec. 28,
`2021).
`On March 27, 2008, EPA published revised NAAQS for ozone. 73 Fed. Reg. 16,436.
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`On August 23, 2019, EPA classified the areas listed in Table 1, infra, as “Serious”
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`nonattainment for the 2008 ozone NAAQS. 84 Fed. Reg. 44,238. More than 42 million people
`live in these areas. See EPA, Nonattainment and Maintenance Area Population Tool: 2008
`Ozone,
`https://epa.maps.arcgis.com/apps/MapSeries/index.html?appid=7935a00e2554440a8daf6cc035b
`9455e (last visited Dec. 28, 2021).
`The “Serious” nonattainment designation triggered a duty for the state air agencies to
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`submit SIP revisions and implement controls to satisfy the Act’s statutory and regulatory
`requirements according to deadlines EPA set forth in the 2019 final rule. EPA gave the “Serious”
`nonattainment states until August 3, 2020 to submit their required SIP elements, with the
`exception for the element addressing Reasonably Available Control Technology (RACT)
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`CT
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`RACTMeasures Tied to Attainment
`e
`e RACT Measures NotTied to Attainment
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`Sept. 23, 2021
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`Feb. 3, 2021
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`Dallas-Fort Worth,
`IX
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`e
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`RACTMeasures NotTied to Attainment
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`Sept. 23, 2021
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`e Clean-Fuel Vehicle Programs
`| Contingency Measures for Attainment
`e Contingency Provisions for RFP Milestones
`e Emissions Invento
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`Feb. 3, 2021
`e Enhanced Monitoring
`Greater Connecticut,|® Emissions Inventory
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`Case 3:22-cv-00052-WHO Document1 Filed 01/05/22 Page 10 of 14
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`measuresnottied to attainment, which was 18 months after the effective date of the final rule
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`redesignating these areas to the serious classification, that is March 23, 2021. 84 Fed. Reg.at
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`44,245, 44,246.
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`The states did not submitall of their required SIP elements by these deadlines.
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`2021 and September 23, 2021 based on the SIP element—toissue findings that the states missed
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`their deadlines. 42 U.S.C. § 7410(k)(1)(B). EPA hasnotyet issued these findings for the
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`elements andstates listed in Table 1. EPA is therefore in violation of its mandatory duty to issue
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`findings of failure to submit for the areas and elements listed in Table 1.
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`EPA Deadline to
`Makea Finding of
`Failure to Submit
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`Feb. 3, 2021
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`TABLE1
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`Area
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`Overdue Elements
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`e e
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`Enhanced Monitoring
`Attainment Demonstration- Serious
`e Clean-Fuel Vehicle Programs
`e Contingency Measures for Attainment
`e Contingency Measures for Reasonable Further
`Progress (“RFP”) Milestones
`e Emissions Inventory
`e
`Inspection and Maintenance (“I/M”) Enhanced
`e Non-attainment New Source Review (“NSR”) for
`Serious
`RFPSerious
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`e
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`Chicago-Naperville
`(IL portion)
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`37.|EPA hada statutory duty to, six months after the states’ deadlines—orhere, February 3,
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`CoOaYNDnHW&—WYNY
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`10
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`ll
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`12
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`14
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`Case 3:22-cv-00052-WHO Document 1 Filed 01/05/22 Page 11 of 14
`Case 3:22-cv-00052-WHO Document1 Filed 01/05/22 Page 11 of 14
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`oNONUNekeWeYB
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`Area
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`Overdue Elements
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`New York-North New
`Jersey-LongIsland,
`New York-New
`Jersey-Connecticut
`(CT portion)
`
`e Enhanced Monitoring
`e Attainment Demonstration- Serious
`e Clean-Fuel Vehicle Programs
`e Contingency Measures for Attainment
`e Contingency Measures for RFP Milestones
`e Emissions Inventory
`e
`I/M Enhanced
`e Non-attainment NSRfor Serious
`
`RACTMeasuresTied to Attainment
`e
`e RFP Serious
`e RACT Measures NotTied to Attainment
`
`New York-North New
`Jersey-Long Island,
`New York-New
`Jersey-Connecticut
`(NJ portion)
`
`e Enhanced Monitoring
`e Clean-Fuel Vehicle Programs
`e Contingency Measures for Attainment
`e Contingency Measures for RFP Milestones
`e
`I/M Enhanced
`e RFP Serious
`
`EPA Deadline to
`Makea Finding of
`Failure to Submit
`
`Feb. 3, 2021
`
`Sept. 23, 2021
`
`Feb. 3, 2021
`
`
`Sept. 23, 2021
`
`New York-North New
`Jersey-LongIsland,
`New York-New
`Jersey-Connecticut
`(NY portion)
`
`San Diego County,
`CA
`
`e Non-attainment NSR for Serious
`e
`RFPSerious
`
`Feb. 3, 2021
`
`Feb. 3, 2021
`
`e Enhanced Monitoring
`e Attainment Demonstration- Serious
`e Clean-Fuel Vehicle Programs
`e Contingency Measures for Attainment
`e Contingency Measures for RFP Milestones
`e
`I/M Enhanced
`
`e
`e
`e
`
`RFPSerious
`RACTMeasuresTied to Attainment
`RACTMeasures NotTied to Attainment
`
`38.
`
`Underthe Act, EPA also has a nondiscretionary duty to take final action to approve,
`
`disapprove, or conditionally approve a SIP submittal within twelve months of the submittal
`
`either being deemed, or found, administratively complete. 42 U.S.C. § 7410(k)(2)-(4).
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`
`11
`
`
`
`

`

`Case 3:22-cv-00052-WHO Document 1 Filed 01/05/22 Page 12 of 14
`
`
`On May 21, 2012, EPA classified the West Mojave Desert area, covering parts of Los
`39.
`Angeles and San Bernardino Counties in California, as “Severe-15” nonattainment for the 2008
`ozone NAAQS. 77 Fed. Reg. 30,088. More than 926,000 people live in this area. See EPA,
`Nonattainment and Maintenance Area Population Tool: 2008 Ozone,
`https://epa.maps.arcgis.com/apps/MapSeries/index.html?appid=7935a00e2554440a8daf6cc035b
`9455e (last visited Dec. 28, 2021).
`EPA indicates that certain SIP elements for the West Mojave Desert area—the
`40.
`Reasonable Further Progress (RFP) contingency and attainment contingency measures—were
`administratively complete by no later than June 11, 2019. See EPA, Required State
`Implementation Plan Elements Dashboard,
`https://edap.epa.gov/public/extensions/S4S_Public_Dashboard_2/S4S_Public_Dashboard_2.html
`(search for “West Mojave Desert” and “2008 ozone standard”, and entry for “Contingency
`Provisions for RFP Milestones 182(c)(9)”) (last visited Jan. 3, 2022); see also Clean Air Plans,
`2008 8-Hour Ozone Nonattainment Area Requirements, West Mojave Desert, California, 86 Fed.
`Reg. 24,809, 24,811 (May 10, 2021) (to be codified at 40 C.F.R. pt. 52).
`EPA’s mandatory twelve-month deadline for the West Mojave Desert contingency
`41.
`measures SIP elements passed on June 11, 2020. EPA has not taken final action on this submittal
`in violation of the Clean Air Act. 42 U.S.C. § 7410(k)(2)–(4).
`
`
`Area
`
`Elements
`
`TABLE 2
`
`West Mojave
`Desert, CA
`
`
`• Contingency Measures VOC and
`NOx for attainment
`• Contingency Provisions for RFP
`Milestones
`
`
`
`Completeness
`Date
`(no later than)
`
`June 11, 2019
`
`EPA’s Deadline to
`Approve,
`Disapprove, or
`Conditionally
`Approve
`June 11, 2020
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`
`
`
`12
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 3:22-cv-00052-WHO Document 1 Filed 01/05/22 Page 13 of 14
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`CLAIM ONE
`Failure to Perform a Nondiscretionary Duty Pursuant to 42 U.S.C. § 7410(k)(1)(B)
`Plaintiffs incorporate by reference all paragraphs listed above.
`42.
`EPA has a mandatory duty under 42 U.S.C. § 7410(k)(1)(B) to, after six months
`43.
`following SIP submittal deadlines, issue findings of failure to submit to states that do not timely
`submit SIP elements.
`It has been more than six months since the states listed in Table 1, supra, were required
`44.
`to submit the nonattainment SIP elements listed in that table.
`The states listed in Table 1 have not submitted the nonattainment SIP elements listed in
`45.
`that table.
`EPA has not issued findings of failure to submit for the nonattainment SIP elements in
`46.
`the nonattainment areas listed in Table 1.
`EPA is therefore in violation of its mandatory duty under the Act to issue findings of
`47.
`failure to submit within six months after the due date of SIP elements, pursuant to 42 U.S.C. §
`7410(k)(1)(B).
`
`CLAIM TWO
`Failure to Perform a Nondiscretionary Duty Pursuant to 42 U.S.C. § 7410(k)(2)–(4)
`Plaintiffs incorporate by reference all paragraphs listed above.
`48.
`EPA has a mandatory duty under 42 U.S.C. § 7410(k)(2)–(4) to, within twelve months of
`49.
`a SIP submittal being deemed or found to be administratively complete, take final action
`approving, disapproving, or conditionally approving the complete SIP submittal.
`It has been more than twelve months since the state listed in Table 2, supra, submitted
`50.
`SIP elements that EPA determined to be complete.
`EPA has not taken final action to approve, disapprove, or conditionally approve the SIP
`51.
`submittals listed in Table 2 by the deadlines listed in that table.
`EPA is therefore in violation of its mandatory duty to take final action on complete SIP
`52.
`submittals within twelve months, pursuant to 42 U.S.C. § 7410(k)(2)–(4).
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`
`
`
`13
`
`
`
`

`

`Case 3:22-cv-00052-WHO Document 1 Filed 01/05/22 Page 14 of 14
`
`
`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 of the mandatory duties listed above;
`Issue an injunction requiring the Administrator to perform his mandatory duties by
`certain dates;
`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
`Grant such further relief as the Court deems just and proper.
`
`
`
`
`
`(B)
`
`(C)
`
`(E)
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`DATED:
`
`
`January 5, 2022
`
`Respectfully Submitted,
`
`
`
`
`
`
`
`
`
`
`/s/ Victoria Bogdan Tejeda
`Victoria Bogdan Tejeda (Cal. Bar # 317132)
`CENTER FOR BIOLOGICAL DIVERSITY
`1212 Broadway, Suite 800
`Oakland, CA 94612
`Tel: 510-844-7100
`Fax: 510-844-7150
`Email: vbogdantejeda@biologicaldiversity.org
`Counsel for Plaintiffs Center for Biological
`Diversity and Center for Environmental Health
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`
`
`
`14
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`
`