EPA Motion for Stay 2/14/2014 SW ND

8/12/2019 EPA Motion for Stay 2/14/2014 SW ND

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UNITED STATES DISTRICT COURT

DISTRICT OF NORTH DAKOTA

STATE OF NORTH DAKOTA, et al.,

Plaintiffs,

vs. Case No. 1:13-cv-109-DLH-CSM

GINA McCARTHY, Administrator of the

United States Environmental Protection

Agency,

Defendant.

/

MOTION TO HOLD CASE IN ABEYANCE

Defendant Gina McCarthy, Administrator of the United States

Environmental Protection Agency (EPA), respectfully requests that this matter

be held in abeyance until further ordered for the following reasons.

1. This case concerns claims by the States of North Dakota, South

Dakota, Nevada, and Texas (Plaintiffs) that EPA failed to perform a

nondiscretionary action under the Clean Air Act (CAA). ECF No. 1at 1 (citing

42 U.S.C. 7407(d)(1)(B)(i)). Specifically, Plaintiffs allege that EPA has failed to

designate areas of the country as attaining or not attaining the revised National

Ambient Air Quality Standard (NAAQS) for sulfur dioxide as required by CAA

Section 107(d)(1)(B), 42 U.S.C. 7407(d)(1)(B). ECF No. 1 at 1.

Case 1:13-cv-00109-DLH-CSM Document 19 Filed 02/14/14 Page 1 of 7


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2. The CAAs citizen suit provision allows any person to sue in district

court to compel EPAs Administrator to perform any nondiscretionary act or duty

under the CAA. 42 U.S.C. 7604(a)(2) (The district courts shall have

jurisdiction . . . to order the Administrator to perform such [nondiscretionary act or

duty under the CAA].)

3. Several parties have filed separate actions against EPA in three

different district courts seeking to compel EPA to perform the alleged

nondiscretionary duty at issue here. The Sierra Club and Natural Resources

Defense Council, Inc. filed the first such complaint in the Northern District of

California on August 26, 2013. Sierra Club et al. v. McCarthy, N.D. Cal. Case No.

13-cv-3953-SI, ECF No. 1 (Attachment 1). The Plaintiffs in this action filed their

complaint on September 12, 2013. ECF No. 1. And the State of North Carolina

filed a complaint in the Eastern District of North Carolina on October 9, 2013.

State of North Carolina v. McCarthy, E.D.N.C. Case No. 5:13-cv-710-F, ECF No.

1 (Attachment 2).

4. Motions to intervene as plaintiff-intervenors in the Sierra Club matter

were filed by three of the Plaintiffs in this case (the States of North Dakota,

Nevada, and Texas), as well as the States of North Carolina and Arizona, the

Commonwealth of Kentucky Energy and Environment Cabinet, and the State of



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Louisiana Department of Environmental Quality. Sierra Club, N.D. Cal. Case No.

13-cv-3953-SI, ECF Nos. 16 and 23. The district court granted the motions to

intervene on December 6, 2013.1 Sierra Club, N.D. Cal. Case No. 13-cv-3953-SI,

ECF No. 79 at 1, 3 (Attachment 3).

5. In the same order, the Northern District of California granted

plaintiffs Sierra Club and the Natural Resources Defense Councils motion for

summary judgment on the issue of liability. Sierra Club, N.D. Cal. Case No. 13-

cv-3953-SI, ECF No. 79 at 1, 3 (Attachment 3). The court directed the parties to

confer on the issue of remedy and, if no agreement could be reached on remedy, to

propose a briefing schedule regarding remedy. Id. at 4. The parties in that case,

including parties in the instant case States of North Dakota, Nevada, and Texas,

and EPA, are currently engaged in the process of conferring as to a remedy and

have held conference calls and exchanged information and proposals. The next

telephonic conference is scheduled for February 18, 2014. The parties in the Sierra

Club case also proposed briefing schedules to the court, and a briefing schedule

has been entered in the event the parties fail to reach a mutually agreeable remedy.

1 In response to the motions to intervene, EPA asserted that the proposed

intervenors were not entitled to intervene as a matter of right, but took no position

on permissive intervention. Sierra Club, N.D. Cal. Case No. 13-cv-3953-SI, ECF

No. 79.



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Sierra Club, N.D. Cal. Case No. 13-cv-3953-SI, ECF No. 85. (Attachment 4)

(providing for briefing to be completed by May 14, and a hearing to be held on

May 30, 2014).

6. Any remedy that is stipulated to or ordered in the Sierra Club matter

in the Northern District of California would address the concerns that EPA

anticipates the Plaintiffs would raise in this matter, and would obviate the need to

litigate the issues again before this Court. EPA further anticipates that the remedy

will be entered or decided by the district court in Sierra Club in the relatively near

term, and likely well before the same issue could be briefed and decided by this

Court.

7. For these reasons, EPA did not oppose the motion of the State of

North Carolina to hold in abeyance the action filed by North Carolina in the

Eastern District of North Carolina. State of North Carolina, E.D.N.C. Case No.

5:13-cv-710-F, ECF No. 16 (Attachment 5). The State of North Carolinas motion

was made on the same grounds as this motion. Id. The court granted that motion

on January 8, 2014, and ordered that the parties file a status report no later than

May 8, 2014 (120 days from the date of the order). State of North Carolina,

E.D.N.C. Case No. 5:13-cv-710-F, ECF No. 17 (Attachment 6).



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8. For reasons of economy of resources of both the parties and the

judicial system, there is little value in proceeding in this case in the District of

North Dakota at this time.

Therefore, for all of the foregoing reasons, EPA respectfully requests that

the Court order that:

1. this matter be held in abeyance;

2. all pending deadlines be continued;

3. the parties file a joint status report within 120 days of the date of this

Courts order, setting forth any developments in the Sierra Club matter (or any

other related matter) that may affect the status of this case;

4. any party be allowed at any time to move this Court for an order

terminating, in whole or in part, the order of the Court holding the matter in

abeyance.

A proposed order has been submitted with this motion.

At the case management conference held on January 13, 2014, Plaintiffs

stated that they would oppose a motion for abeyance. See ECF No. 13 at 1 (Order

setting schedule for briefing).

Dated: February 15, 2014 Respectfully Submitted,

/s/ Martha C. Mann

Martha C. Mann



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United States Department of Justice

Environmental & Natural Resources

Division

P.O. Box 7611

Washington, D.C. 20044

[email protected]

Tel: 202.514.2664

Of Counsel:

Michael Thrift

United States Environmental Protection Agency

Office of General Counsel

Air and Radiation Law Office (2344-A)1200 Pennsylvania Ave., N.W.

Washington D.C. 20460



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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I caused a true and correct copy of the

foregoing to be electronically filed on February 14, 2014. All registered counsel

are to receive notice of the filing via the Courts electronic case filing system.

/s/ Martha C. Mann

MARTHA C. MANN

United States Department of Justice

Environment and Natural Resources

Division



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COMPLAINT 1

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PAUL R. CORT, State Bar No. 184336Earthjustice50 California StreetSan Francisco, CA 94111

[email protected]: 415-217-2000/Fax: 415-217-2040

Attorney for Plaintiffs Sierra Cluband Natural Resources Defense Council

ZACHARY M. FABISH, State Bar No. 247535The Sierra Club50 F Street, NW - 8th FloorWashington, DC [email protected]: 202-675-7917/Fax: 202-547-6009

Attorney for Plaintiff Sierra Club

UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF CALIFORNIASAN FRANCISCO/OAKLAND DIVISION

SIERRA CLUB and NATURAL RESOURCESDEFENSE COUNCIL

Plaintiffs,v.

REGINA MCCARTHY, in her official capacity asAdministrator of the United States EnvironmentalProtection Agency,

Defendant.

))))))))))))))))

Case No: 3:13-cv-03953

COMPLAINT FOR DECLARATORYAND INJUNCTIVE RELIEF

(Clean Air Act, 42 U.S.C. 7401 et seq.)

Case3:13-cv-03953 Document1 Filed08/26/13 Page1 of 11

Case 1:13-cv-00109-DLH-CSM Document 19-1 Filed 02/14/14 Page 1 of 13


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COMPLAINT 2

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION

1. This is a suit to compel the Administrator of the U.S. Environmental Protection

Agency (Administrator or EPA), to take action mandated by the Clean Air Act, 42 U.S.C.

7401 et seq.(the Act) to protect human health from sulfur dioxide (SO2) air pollution in

communities throughout the nation. On June 2, 2010, EPA promulgated a strengthened National

Ambient Air Quality Standard (NAAQS) for SO2 to protect people nationwide from serious harms

due toSO2pollution, including breathing impairment, emergency room visits, lost work days, andother injuries. 75 Fed. Reg. 35,520 (June 22, 2010) (June 2010 SO2NAAQS, revised SO2

NAAQS, or standard). The Act expressly required EPA to promulgate and publish, not later than

June 2, 2013, designations identifying all areas of the nation violating the revised SO2standard, as

well as all areas where the standard is met, and all areas where information is inadequate to make a

designation. 42 U.S.C. 7407(d)(1)(B)(i). EPA has failed to complete the required designations,

thereby violating its nondiscretionary duties under the Act and delaying health and welfare

protections to which Plaintiffs members are entitled.

JURISDICTION, NOTICE, VENUE, AND INTRADISTRICT ASSIGNMENT

2. The instant action arises under the Clean Air Act, 42 U.S.C. 7401 et seq. This

Court has jurisdiction over Plaintiffs claims pursuant to 42 U.S.C. 7604(a) and 28 U.S.C. 1331

1361. The relief requested by Plaintiffs is authorized pursuant to 42 U.S.C. 7604 and 28 U.S.C.

2201, 2202, and 1361.

3. By certified letters posted on June 4, 2013, and June 25, 2013, Plaintiffs Sierra Club

and Natural Resources Defense Council (NRDC) provided the Administrator with written notice,inthe form and manner required by 42 U.S.C. 7604(b), and 40 C.F.R. 54.2, 54.3, of the

Administrators failure to perform nondiscretionary duties under the Act as complained of herein

and their intent to commence this action. More than 60 days have elapsed since Sierra Club and

NRDC gave such notice, and the Administrator has continued her failure to perform such

nondiscretionary duties.




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COMPLAINT 3

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

Plaintiff Sierra Club resides in this district; b) this district is one in which Defendant EPA resides

and performs its official duties; and c) a substantial part of the events and omissions giving rise to

this claim has occurred and is occurring in this district because EPAs failure to act as complained of

herein threatens the health and welfare of district residents, including members of Sierra Club and

NRDC (as further detailed herein), and EPAs Regional Office in San Francisco, California, has a

substantial role in implementing the EPA duties at issue in this case.

5. Pursuant to Civil L.R. 3-2(c), (d), this case is properly assigned to the San Francisco

or Oakland Division of this Court because Plaintiff Sierra Club and Defendant EPA both reside in

San Francisco, California.

PARTIES

6. Plaintiff Sierra Club is a national nonprofit conservation organization existing under

the laws of the State of California and headquartered in San Francisco, California. Formed in 1892,

Sierra Clubs mission is to explore, enjoy, and protect the wild places of the Earth, to practice and

promote the responsible use of the Earths resources and ecosystems, to educate and enlist humanity

to protect and restore the quality of the natural and human environment, and to use all lawful means

to carry out those objectives. Sierra Club has been heavily involved in advocacy for effective

implementation of the revised SO2NAAQS. This advocacy has included Sierra Clubs participation

in EPA stakeholder meetings, analyses of dozens of major sources of SO2across the country to

ascertain the impact of those sources on attainment of the NAAQS, submitting comments to federal

and state agencies, and working to educate its members and the public about the scope and

significance of SO2pollution and the NAAQSs implementation.

7. Plaintiff Natural Resources Defense Council (NRDC), a corporation organized and

existing under the laws of the State of New York, is a national nonprofit organization whose purpose

includes safeguarding the Earth, its people, flora, fauna and natural ecosystems, and restoring the

integrity of the elements that sustain life air, land and water. NRDC is headquartered in New

York, New York, and has long maintained an office in San Francisco, California.




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COMPLAINT 4

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8. Sierra Club has more than 598,000 members nationally residing in all fifty states, the

District of Columbia and Puerto Rico, including more than 144,000 members in California and more

than 59,000 in the Northern District of California. NRDC has more than 363,000 members

nationwide residing in all fifty states, the District of Columbia and Puerto Rico, including more than

60,000 members in California and more than 21,000 in the Northern District of California. Sierra

Club and NRDC members live, work, recreate, and conduct other activities in areas1throughout the

nation that EPA has failed to designate for the revised SO2NAAQS as required by the Act. Sulfur

dioxide pollution in such areas adversely affects or threatens the health and welfare of Plaintiffs

members. The acts and omissions of EPA alleged herein cause injury to plaintiffs members by

prolonging air quality conditions that adversely affect or threaten their health and welfare, and by

nullifying or delaying measures and procedures mandated by the Act to protect their health and

welfare from sulfur dioxide pollution in places where they live, work, recreate and conduct other

activities. Accordingly, the health, recreational, aesthetic, and procedural interests of plaintiffs and

their members have been and continue to be adversely affected by the acts and omissions of EPA

alleged herein.

9. The acts and omissions of EPA alleged herein further deprive Plaintiffs and their

members of procedural rights and protections to which they would otherwise be entitled, including,

but not limited to, the right to judicially challenge final SO2designations adversely affecting their

members, the right to enforce requirements of the Act for preparation and implementation of plans to

remedy violations of the revised SO2standard in nonattainment areas and prevent violations in

attainment areas, and the right to comment on and judicially challenge such plans.

10. The EPA acts and omissions alleged herein further injure plaintiffs and their members

by depriving them of information to which they are entitled by law, including, but not limited to,

EPAs published identification of each area in the nation as: a) meeting the revised SO2NAAQS

(attainment); b) not meeting the revised SO2NAAQS (nonattainment); or c) not classifiable as

1For purposes of the Acts designation requirements, EPA ordinarily defines an area as one or

more contiguous counties (or portions thereof), or a metropolitan area. See, e.g., 75 Fed. Reg. at35,552.




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COMPLAINT 5

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meeting or not meeting the NAAQS on the basis of available information (unclassifiable). If

Plaintiffs had access to such information, they would use it to, among other things: educate their

members and the public about the scope of SO2NAAQS violations nationwide, including

identification of areas that violate the revised SO2 NAAQS and areas that meet the NAAQS;

advocate for adoption of adequate measures to bring nonattainment areas into compliance with the

NAAQS and prevent significant deterioration of air quality in attainment areas; advocate for

appropriate action by EPA to determine whether unclassifiable areas meet or do not meet the

NAAQS; and more efficiently target Plaintiffs actions to promote effective implementation of the

revisedSO2 NAAQS. Such information would also assist Sierra Club and NRDC members indetermining whether they are exposed to SO2levels that violate health standards and in taking action

to protect themselves and their families from SO2pollution. The acts and omissions complained of

herein deprive Plaintiffs and their members of the benefits of such information and thus cause them

injury.

11. For all the foregoing reasons, the acts and omissions complained of herein cause

Plaintiffs and their members injuries for which they have no adequate remedy at law. Granting the

requested relief would redress these injuries.

12. Defendant Regina McCarthy is the Administrator of the United States Environmental

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

duty to administer the Clean Air Act, including the mandatory duties at issue in this case.

LEGAL FRAMEWORK

13. Congress enacted the Clean Air Act to speed up, expand, and intensify the war

against air pollution in the United States with a view to assuring that the air we breathe throughout

the Nation is wholesome once again. H.R. Rep. No. 91-1146 at 1 (1970), reprinted in1970

U.S.C.C.A.N. 5356, 5356.

14. Under Section 109 of the Act, EPA is required to establish NAAQS for criteria

pollutants in order to protect public health and welfare. 42 U.S.C. 7409. Criteria pollutants are

those pollutants that cause or contribute to air pollution which may reasonably be anticipated to

endanger public health or welfare and are emitted by numerous or diverse mobile or stationary




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COMPLAINT 6

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sources. 42 U.S.C. 7408(a)(1)(A)-(B). The NAAQS establish maximum allowable

concentrations in the air of these pollutants, including SO2.

15. EPA must establish primary NAAQS at a level requisite to protect the public health

with an adequate margin of safety. 42 U.S.C. 7409(b)(1). Once EPA has established NAAQS

for criteria pollutants, the agency is obligated to review and revise the relevant NAAQS at five-year

intervals[.] 42 U.S.C. 7409(d)(1).

16. The Act requires the Governor of each state to submit to the EPA, not later than one

year after promulgation or revision of a NAAQS, a list designating all areas (or portions thereof) in

the State as nonattainment, attainment, or unclassifiable for that NAAQS. 42 U.S.C.

7407(d)(1)(A).

17. A nonattainment area is any area that does not meet (or that contributes to ambient

air quality in a nearby area that does not meet) the [NAAQS] for the pollutant. 42 U.S.C.

7407(d)(1)(A)(i). An attainment area is any area...that meets the [NAAQS] for the pollutant. Id.

at 7407(d)(1)(A)(ii). An unclassifiable area is any area that cannot be classified on the basis of

available information as meeting or not meeting the [NAAQS] for the pollutant. Id. at

7407(d)(1)(A)(iii).

18. EPA must promulgate the designations of all areas (or portions thereof) submitted by

each Governor under 42 U.S.C. 7407(d)(1)(A), with such modifications as EPA deems necessary,

as expeditiously as practicable, but in no case later than two years from the date of promulgation of

the new or revised [NAAQS]. 42 U.S.C. 7407(d)(1)(B)(i). Such period may be extended for up

to one year in the event the Administrator has insufficient information to promulgate the

designations. Id. If the Governor of a state fails to submit the list of designations required by 42

U.S.C. 7407(d)(1)(A) in whole or in part, 42 U.S.C. 7407(d)(1)(B)(ii) requires the Administrator

(as part of the action required by 42 U.S.C. 7407(d)(1)(B)(i)) to promulgate the designation that the

Administrator deems appropriate for any area (or portion thereof) not designated by the State. 42

U.S.C. 7407.

19. Thus, at the outside, EPA must promulgate designations for all areas of every state

within three years after the promulgation of a new or revised NAAQS. 42 U.S.C. 7407(d)(1)(B).




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COMPLAINT 7

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Within the same time frame, the Administrator must publish notice in the Federal Register

promulgating the designations required by 42 U.S.C. 7407(d)(1)(B)(i)&(ii). 42 U.S.C.

7407(d)(1)(B)(i), 7407(d)(2)(A).

20. Promulgation of nonattainment designations triggers deadlines for states to submit

plans for attaining the new or revised NAAQS for which the designations are made, and deadlines

for attaining those NAAQS. For SO2, states must submit such plans for areas designated

nonattainment within 18 months of the designation, and those plans must provide for attainment of

the NAAQS as expeditiously as practicable, but no later than 5 years from the date of a

nonattainment designation. 42 U.S.C. 7514(a), 7514a(a).

21. If EPA fails to perform a non-discretionary duty, such as the duty to promulgate and

publish designations of all areas no later than (at the outside) three years from the date of

promulgation of a new or revised NAAQS, 42 U.S.C. 7407(d)(1)(B)(i), the Clean Air Act

authorizes any person to bring suit to compel EPA to perform its duty. 42 U.S.C. 7604(a)(2).

STATEMENT OF FACTS

22. SO2has numerous harmful effects on human respiratory systems, including

narrowing of the airways that can constrict breathing (bronchoconstriction) and increased asthma

symptoms. Short-term exposure to SO2has also been linked to increased hospital and emergency

room admissions for respiratory illness, particularly among children, the elderly, and asthmatics.

23. Based on scientific evidence that the pre-existing SO2NAAQS did not adequately

protect peoples health, on June 2, 2010, EPA promulgated a revision of that standard. Primary

National Ambient Air Quality Standard for Sulfur Dioxide, 75 Fed. Reg. 35,520 (signed June 2,

2010, published June 22, 2010) (to be codified at 40 C.F.R. pts. 50, 53, and 58). Specifically, EPA

established a new one-hour SO2standard at a level of 75 parts per billion. 40 C.F.R. 50.17(a).

24. EPA has estimated that implementation of the revised SO2NAAQS would annually

prevent up to 5,900 premature deaths, 3,900 nonfatal heart attacks, 54,000 cases of asthma

exacerbation, and 290,000 work loss days.

25. Promulgation of the revised SO2NAAQS triggered the Administrators

nondiscretionary duty to promulgate and publish designations under the revised standard for all areas




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COMPLAINT 10

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35. The Administrator did not promulgate or publishnotice in the Federal Registerpromulgating final designations for all areas in each State for the revised SO2NAAQS within three

years of promulgation of that NAAQS.

36. As of the filing of this Complaint, the Administrator has neither promulgated final

designations for all areas in each State for the revised SO2NAAQS, nor has she published notice in

the Federal Register promulgating such designations for all areas in each State.

37. For all the foregoing reasons, the Administrator has failed to perform acts and duties

that are not discretionary with the Administrator within the meaning of the Clean Air Acts citizen

suit provision. 42 U.S.C. 7604(a). EPAs violations are ongoing, and will continue unless

remedied by this Court.

38. Accordingly, an order from this Court is warranted declaring that the Administrator

has failed to perform the above-referenced nondiscretionary acts and duties, and directing her to

perform such acts and duties forthwith.

REQUEST FOR RELIEF

WHEREFORE, Sierra Club and NRDC respectfully request that the Court:

1. Declare that EPA is in violation of the Clean Air Act with regard to its failure to

perform each mandatory duty listed above;

2. Issue a mandatory injunction requiring EPA to perform its mandatory duties by a

certain date forthwith;

3. Retain jurisdiction of this matter for purposes of enforcing the Courts order;

4. Grant Sierra Club and NRDC their reasonable costs of litigation, including attorneys

and expert witness fees; and

5. Grant such further relief as the Court deems proper.

Respectfully submitted,

Dated: August 26, 2013 /s/ Paul R. CortPAUL R. CORT, State Bar No. 184336Earthjustice50 California StreetSan Francisco, CA [email protected]: 415-217-2000/Fax: 415-217-2040




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(SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

(Firm Name, Address, and Telephone Number) (If Known)

(Place an X in One Box Only) (Place an X in One Box for Plain(For Diversity Cases Only) and One Box for Defendant)

(U.S. Government Not a Party) or

and (Indicate Citizenship of Parties in Item III)

(Place an X in One Box Only)

(Place an X in One Box Only)

(specify)

(Do not cite jurisdictional statutes unless diversity)

(See instructions):

IX. DIVISIONAL ASSIGNMENT (Civil L.R. 3-2)

Case3:13-cv-03953 Document1-1 Filed08/26/13 Page1 of 2

Injunctive and Declaratory Relief

SIERRA CLUB and NATURAL RESOURCES DEFENSE COUNCIL

San Francisco

(see attachment)

REGINA MCCARTHY, Administrator, United States EnvironmentalProtection Agency

Clean Air Act, 42 U.S.C. 7401 et seq.

Suit to compel U.S. EPA to promulgate area designations for 2010 sulfur dioxide standard .

08/26/2013 /s/ Paul R. Cort



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CIVIL COVER SHEET

Attachment

I. (c) AttorneysPAUL CORTEarthjustice50 California Street, STE 500San Francisco, CA 94111(415) 217-2000

ZACHARY M. FABISHSierra Club50 F Street, NW - 8th FloorWashington, DC 20001(202) 675-7917

Case3:13-cv-03953 Document1-1 Filed08/26/13 Page2 of 2



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THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISIONNo. 5:13-CV-710

STATE OF NORTH CAROLINA,

Plaintiff,

v.

REGINA MCCARTHY, in her official Capacityas Administrator of the United States

Environmental Protection Agency,

Defendant.

)

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COMPLAINT FOR DECLARATORY

AND INJUNCTIVE RELIEF

28 USCS 2201 and Clean Air Act, 42

U.S.C. 7401 et seq.

The State of North Carolina, by authority of the Attorney General of North Carolina and

through the undersigned attorneys, alleges:

INTRODUCTION

1. The State of North Carolina (Plaintiff) files this suit to compel theAdministrator of the U.S. Environmental Protection Agency (Administrator or EPA), to take

action mandated by the Clean Air Act, 42 U.S.C. 7401 et seq.(CAA) to designate areas

within North Carolina as nonattainment, attainment, or unclassifiable for the revised National

Ambient Air Quality Standard (NAAQS) for sulfur dioxide (SO2). On June 2, 2010, EPA

promulgated a revision of the primary NAAQS for SO2(revised SO2NAAQS). 75 Fed. Reg.

35,520 (June 22, 2010). This promulgation triggered a nondiscretionary duty for EPA to

promulgate designations of areas throughout the country as attainment, nonattainment, or

unclassifiable with respect to the revised SO2NAAQS. EPA did not promulgate such

designations for any areas in North Carolina for the revised SO2NAAQS. At the time of the

filing of this Complaint, EPA continues to fail to promulgate such designations for any areas for

the revised SO2NAAQS within the State of North Carolina.

Case 5:13-cv-00710-F Document 1 Filed 10/09/13 Page 1 of 7



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8. Defendant Regina McCarthy is the Administrator of the United StatesEnvironmental Protection Agency. In that role, Administrator McCarthy has been charged by

Congress with the duty to administer the Clean Air Act, including the mandatory duties at issue

in this case.

STATUTORY BACKGROUND

9. The CAA requires the EPA to promulgate NAAQS for certain pollutants in theambient air which are known as criteria pollutants, such as SO2. 42 U.S.C. 7408(a)(1).

10. The CAA states that within one year after promulgation of new or revisedNAAQS, the Governor of each State shall submit to the Administrator of EPA a list designating

all areas (or portions thereof) in the State as nonattainment, attainment, or unclassifiable

for that NAAQS. 42 U.S.C. 7407(d)(1)(A).

11. Upon promulgation or revision of a NAAQS, the Administrator shall promulgatethe designation of all areas submitted by the Governor of each State as expeditiously as

practicable, but in no case later than two years from the date of promulgation of the new or

revised [NAAQS]. Id. 7407(d)(1)(B)(i). The Administrator must publish a notice in the

Federal Register promulgating such designations and the deadline for doing so may be extended

for up to one year in the event the Administrator determines that additional information is

needed. Id. 7407(d)(2)(A).

STATEMENT OF FACTS

12. On June 2, 2010, EPA promulgated a revision of the primary NAAQS for SO2.75 Fed. Reg. 35,520 (June 22, 2010). This promulgation triggered the States obligation to

submit designations by June 3, 2011. 42 U.S.C. 7407(d)(1)(a).




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13. North Carolina complied with this obligation and submitted designations for SO2by June 3, 2011. In particular, North Carolina requested that its five counties with monitored

attainment be designated as attainment, that 32 counties be designated as attainment due to

having no or only small SO2sources, and that the remaining 63 counties be designated as

unclassifiable/attainment.

14. The promulgation of the revised SO2NAAQS also triggered the Administratorsnondiscretionary duty to promulgate designations of nonattainment, attainment or unclassifiable

for the revised SO2NAAQS for all areas pursuant to CAA Section 107(d)(1)(B) by no later than

June 2, 2012, and to publish a notice in the Federal Register promulgating those designations. 42

U.S.C. 7407(d)(1)(B)(i).

15. On August 3, 2012, EPA announced in the Federal Register that it was using itsauthority under Section 107(d)(1)(B)(i) of the CAA to extend the deadline for promulgating area

designations for the revised SO2NAAQS by one year. 77 Fed. Reg. 46,295 (Aug. 3, 2012). The

notice stated that, [w]ith this extension, the EPAis now required to complete . . . designations

for this NAAQS by June 3, 2013. Id.

16. On February 6, 2013, EPA acknowledged that no monitors showed violations ofthe revised SO2NAAQS in North Carolina. EPA stated that it was not yet prepared topropose

designation action in North Carolina, and therefore, in direct contravention of the CAA,

indicated that it was deferring action to designate areas in North Carolina. EPA stated that it

anticipated that it would proceed with designation action in North Carolina once additional data

are gathered pursuant to our comprehensive implementation strategy.

17. On April 8, 2013, the Secretary of the North Carolina Department of Environmentand Natural Resources responded to EPA, noting that there is no deferral option for




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designations under the CAA and requesting that EPA designate all areas in North Carolina as

attainment/unclassifiable.

18. On August 2, 2013, pursuant to Section 304(b)(2) of the CAA, 42 U.S.C. 7604(b)(2), North Carolina gave notice to Defendant of North Carolinas intent to sue Defendant

for failure to designate areas for the revised SO2NAAQS.

19. On August 5, 2013, EPA published in the Federal Register final air qualitydesignations for the revised SO2NAAQS for only 29 areas, encompassing parts of only sixteen

states. 78 Fed. Reg. 47,191 (Aug. 5, 2013). EPA only promulgated designations for areas that

included air quality monitors showing nonattainment. EPA did not designate any areas as

attainment even if monitors in those areas showed attainment. EPA did not designate any areas

in North Carolinaincluding areas with monitored attainmentfor the revised SO2NAAQS.

EPA also did not designate any areas in North Carolina as unclassifiable.

20. At the time of the filing of this Complaint, EPA continues to fail to designate anyareas for the revised SO2NAAQS within the State of North Carolina.

21. North Carolina is prejudiced by EPAs failure to follow the requirements of theCAA. North Carolina is charged with submitting a plan that provides for implementation,

maintenance, and enforcement of the revised SO2NAAQS. 42 U.S.C. 7410(a). North

Carolinas efforts to implement the requirements of the CAA are adversely impacted by EPAs

failure to promulgate designations. EPAs failure to designate areas as required by the CAA

subjects North Carolina to a detrimental uncertainty that will negatively affect the States

economy, private development, and the public interest.




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CLAIM FOR RELIEF

Failure to Perform Nondiscretionary Duty to Promulgate Designations of Areas in North

Carolina Regarding the Revised SO2NAAQS

22.

All allegations in paragraphs 1 to 19 of this Complaint are incorporated into this

Claim for Relief as if they were set forth fully herein.

23. The CAA required the Defendant to promulgate designations of all areas in NorthCarolina as attainment, nonattainment or unclassifiable by no later than June 3, 2013.

24. The Defendant failed to perform that duty by said deadline and the Defendantcontinues to fail to perform that duty.

25. Section 304 of the CAA, 42 U.S.C. 7604, permits any person, which includes aState, to bring an action for injunctive relief to compel the Defendant to perform the aforesaid

nondiscretionary duty.

26. The Plaintiff has satisfied the prerequisites to suit set forth in the CAA as set forthabove.

27. For all of the foregoing reasons, the Administrator is in violation of thenondiscretionary duty imposed by 42 U.S.C. 7407(d)(1) and (d)(2) and the Plaintiff is entitled

to a declaration of such violation under 28 U.S.C. 2201 and injunctive relief compelling the

Defendant to perform her duty under 42 U.S.C. 7604.

REQUEST FOR RELIEF

WHEREFORE, the State of North Carolina respectfully requests that the Court:

1. Declare that the Administrator is in violation of the CAA with regard to herfailure to perform the mandatory duties as established above;

2. Issue a mandatory injunction requiring the Administrator to perform hermandatory duties by a certain date set by the Court;




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3. Retain jurisdiction of this matter for purposes of enforcing the Courts order;4. Grant North Carolina its reasonable costs of litigation, including attorneys and

expert witness fees; and

5. Grant such further relief as the Court deems proper.

This 9th day of October, 2013.


ROY COOPER

Attorney General

By: /s/ Marc Bernstein

Marc Bernstein

Special Deputy Attorney GeneralNC State Bar No. 21642

E-mail Address: [email protected]

North Carolina Department of JusticeP.O. Box 629

Raleigh, NC 27602

Phone Number: (919)716-6600

Fax Number: (919) 716-6767

Attorneys for Plaintiff State of North Carolina




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CIVIL COVER SHEET

(SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

. (a) PLAINTIFFS DEFENDANTS

(b)

(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

(c) (Firm Name, Address, and Telephone Number) (If Known)

I. BASIS OF JURISDICTION (Place an X in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an X in One Box for(For Diversity Cases Only) and One Box for Defendan

PTF DEF PTF

(U.S. Government Not a Party) or

and

(Indicate Citizenship of Parties in Item III)

V. NATURE OF SUIT(Place an X in One Box Only)CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES

PERSONAL INJURY PERSONAL INJURY

PROPERTY RIGHTS

LABOR SOCIAL SECURITY PERSONAL PROPERTY

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS FEDERAL TAX SUITS

Habeas Corpus:

IMMIGRATION

Other:

V. ORIGIN(Place an X in One Box Only)

(specify)

VI. CAUSE OF ACTION

(Do not cite jurisdictional statutes unless diversity)

VII. REQUESTED INCOMPLAINT:

CLASS ACTION

DEMAND $

JURY DEMAND:

VIII. RELATED CASE(S)IF ANY

(See instructions):

FOR OFFICE USE ONLY


See Attachment to Civil Cover Sheet

REGINA MCCARTHY, Administrator, United States EnvironmenProtection Agency

Clean Air Act, 42 U.S.C. 7401 et seq.

Suit to compel U.S. EPA to promulgate area designations for 2010 sulfur dioxide standard

0/09/2013 /s/ Marc Bernstein

Case 5:13-cv-00710-F Document 1-1 Filed 10/09/13 Page 1 of 2



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Attachment to Civil Cover Sheet for State of North Carolina v.

Regina McCarthy, Administrator, United States Environmental Protection Agency

Response to Item I. (c)

Marc BernsteinSpecial Deputy Attorney General

North Carolina Department of Justice

P.O. Box 629

Raleigh, NC 27602

NC State Bar No. 21642

Phone Number: (919) 716-6956

Fax Number: (919) 716-6763





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AO 440 (Rev. 06/12) Summons in a Civil Action

UNITED STATES DISTRICT COURTfor the

__________ District of __________

)

)))))))))))

Plaintiff(s)

v. Civil Action No.

Defendant(s)

SUMMONS IN A CIVIL ACTION

To: (Defendants name and address)

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) or 60 days if you

are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.P. 12 (a)(2) or (3) you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 ofthe Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney,whose name and address are:

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.You also must file your answer or motion with the court.

CLERK OF COURT

Date:Signature of Clerk or Deputy Clerk

Eastern District of North Carolina


REGINA MCCARTHY, Administrator, United StatesEnvironmental Protection Agency

REGINA MCCARTHY, Administrator of the United States Environmental ProtectionAgencyUnited States Environmental Protection AgencyWilliam Jefferson Clinton Federal Building1200 Pennsylvania Avenue, NW, Washington, DC 20460(Additional representatives of defendant to be served per Fed. R. Civ. P. 4(i)(1)&(2)are listed on Continuation Page)

Marc Bernstein, Special Deputy Attorney GeneralN.C. Department of JusticeP.O. Box 629Raleigh, NC 27602




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AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)

Civil Action No.

PROOF OF SERVICE

(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date) .

I personally served the summons on the individual at(place)

on (date) ; or

I left the summons at the individuals residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date) , and mailed a copy to the individuals last known address; or

I served the summons on (name of individual) , who is

designated by law to accept service of process on behalf of (name of organization)

on (date) ; or

I returned the summons unexecuted because ; or

Other(specify):

.

My fees are $ for travel and $ for services, for a total of $ .

I declare under penalty of perjury that this information is true.

Date:Servers signature

Printed name and title

Servers address

Additional information regarding attempted service, etc:

0.00




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281 Accordingly, the Court finds it unnecessary to address the parties arguments abo

intervention as of right.

2

Department of Environmental Quality, and the states of North Carolina, North Dakota, Arizona, Neva

and Texas (collectively the States) seek to intervene as plaintiffs a matter of right under Federal Ru

of Civil Procedure 24(a), or alternatively permissively under Rule 24(b). Plaintiffs oppose a

intervention by the States, while defendant opposes intervention as of right but takes no position wregard to permissive intervention.

Plaintiffs filed this action for declaratory and injunctive relief seeking to compel defendant

perform her non-discretionary duty under the Clean Air Act to promulgate and publish designatio

identifying all areas of the nation that meet or fail to meet the revised sulfur dioxide national prima

ambient air quality standard (the standard), as well as all areas of the nation where information

inadequate to make a designation. As discussed infra, defendant does not dispute liability, and thus

all that is at issue is the remedy. The States contend that they have a significant protectable interest

this case because, inter alia, the States are responsible for devising and implementing plans to achie

pollution reduction for any areas designated as nonattainment areas. The States argue that they ha

an interest in whatever remedy the Court orders, whether that remedy is limited to setting a deadline f

the EPA to make its designations or also includes requirements that affect the process for makin

designations.

Rule 24(b)(2) provides that on timely application the Court may allow a non-party to interve

when an applicants claim or defense and the main action have a question of law or fact in common

Fed. R. Civ. Proc. 24(b)(2). The language of the rule makes clear that if the would be interveno

claim or defense contains no question of law or fact that is raised also by the main action, interventi

under Rule 24(b)(2) must be denied. But, if there is a common question of law or fact, the requireme

of the rule has been satisfied and it is then discretionary with the court whether to allow intervention

Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1111 (9th Cir. 2002).

The Court exercises its discretion and concludes that the States should be granted permissi

intervenor status.1The States motions are timely, as they were filed one month after this case was file

Even if, as the parties assert, the remedy in this case will be limited to a court-ordered deadline for EP

Case3:13-cv-03953-SI Document79 Filed12/06/13 Page2 of 4Case 1:13-cv-00109-DLH-CSM Document 19-3 Filed 02/14/14 Page 2 of 4


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2 The Court does not find it appropriate to condition the States intervention in any of the wasuggested by the parties. If necessary and at the proper time, the Court will consider issues regardiattorneys fees and the relationship between this action and the other related cases pending in othcourts.

3

to complete its designations, the States will be directly affected because they have an interest in wh

the EPA makes its designations. The States assert that until the EPA acts on the State

recommendations about sulfur dioxide area designations, the States do not know whether th

individual sulfur dioxide programs are adequate, and they claim that they want the designation procecompleted as soon as possible. It is also undisputed that if the EPA designates areas within any of t

intervening states as nonattainment, the States are required to take steps to bring those areas in

compliance with the standard. For the foregoing reasons, the Court GRANTS the States motions

intervene. Docket Nos. 16 and 23.2

II. Plaintiffs motion for summary judgment

Plaintiffs have moved for summary judgment on the issue of liability, and request an ord

determining that defendant is in violation of her non-discretionary duty under the Clean Air Act

promulgate and publish designations for all areas of each state regarding whether those areas meet t

revised sulfur dioxide national primary ambient air quality standard no later than three years fro

promulgation of the standard on June 2, 2010, 75 Fed. Reg. 35,520 (signed June 2, 2010, published Ju

22, 2010).

Defendant does not dispute liability, and accordingly the Court finds as a matter of law th

defendant is in violation of her non-discretionary duty under the Clean Air Act, 42 U.S.

7407(d)(1)(B), (d)(2)(A) to promulgate and publish designations for all areas of each state for t

standard no later than three years from promulgation of the standard.

///



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The parties are directed to meet and confer regarding the remedy, and if they are unable to agr

on the remedy, the parties shall stipulate if possible to a briefing schedule regarding the remedy. T

parties shall file either a joint stipulation or separate submissions regarding a proposed schedule with

21 days of this order.

IT IS SO ORDERED.

Dated: December 6, 2013SUSAN ILLSTONUnited States District Judge



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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SIERRA CLUB, et al.,

Plaintiffs,

v.

REGINA MCCARTHY, in her official capacityas Administrator of the United StatesEnvironmental. Protection Agency,

Defendant. /

No. C 13-3953 SI

ORDER SETTING BRIEFING

SCHEDULE ON REMEDY

The parties and intervenors have filed competing proposals regarding the briefing schedule

on the remedy. The Court hereby adopts the following briefing schedule, which permits for

staggered briefing and separate briefs by the Intervenor States and North Carolina:

Party/Document Due Date Page Limit

Plaintiffs Opening RemedyBrief

March 17, 2014 25 pages

Intervenor-Plaintiffs OpeningRemedy Brief (separate briefsby North Carolina and otherstates permissible)

March 17, 2014 25 pages

Defendants Response April 16, 2014 35 pages

Plaintiffs Response-Reply April 30, 2014 15 pages



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THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINAWESTERN DIVISION

No. 5:13-CV-710


Plaintiff,

v.

REGINA MCCARTHY, in her official

Capacity as Administrator of the UnitedStates Environmental Protection Agency,

Defendant.

)

))

))

)

))

)

UNOPPOSED MOTION TO

HOLD CASE IN ABEYANCE

Plaintiff State of North Carolina respectfully requests that the Court hold this

case in abeyance until further order for the following reasons:

1. This case concerns the Defendant U.S. Environmental Protection

Agencys (EPA) alleged failure to take a nondiscretionary action that is required

by the Clean Air Act (CAA). Compl. 22-27 (ECF Doc. No. 1);see also42

U.S.C. 7407(d)(1)(B)(i). The deadline for EPA to take that action passed on

June 3, 2013. Compl. 15, 23 (ECF Doc. No. 1);see also77 Fed. Reg. 46,295

(Aug. 3, 2012). The CAA allows a party to sue in district court to compel EPA to

perform nondiscretionary actions, but the party must first notify EPA of its intent

to sue and allow sixty days to pass. 42 U.S.C. 7604(b)(2).




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2

2. Since June 3, 2013, several parties, including Plaintiff the State of

North Carolina, issued notices to EPA regarding EPAs alleged failure to perform

the nondiscretionary duty at issue in this case.

3. Beginning in August 2013, several parties filed actions against EPA in

different district courts seeking to compel EPA to perform the nondiscretionary

duty at issue in this case. The Sierra Club and Natural Resources Defense Council,

Inc. filed one such case in the Northern District of California on August 26, 2013.

Sierra Club et al. v. McCarthy, 13-cv-3953 (N.D. Cal.). North Carolina filed this

case in the Eastern District of North Carolina on October 9, 2013.

4. Because Sierra Clubwas filed first, North Carolina sought to

intervene as a plaintiff in that case. The district court allowed North Carolinas

motion on December 6, 2013. Order Granting States Motions to Intervene &

Granting Plfs. Mot. for Summ. J. at 1-3, Sierra Club et al. v. McCarthy, 13-cv-

3953 (N.D. Cal. Dec. 6, 2013) (N.D. Cal. ECF Doc. No. 79).

5. In that same order, the Northern District of California granted

judgment to the plaintiffs on the issue of liability. Id.at 3. The court then ordered

the parties to consult on the issue of remedy and, if no agreement could be reached

on remedy, to propose a briefing schedule regarding remedy. Id.at 4. The parties,

including the Plaintiff and Defendant in this case, are currently engaged in the

process of developing a remedy, or in the alternative, a briefing schedule regarding




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3

remedy, in the Northern District of California. No final substantive or procedural

agreements on those issues have yet been reached.

6. North Carolina anticipates that any remedy that is stipulated or

ordered in the Sierra Clubmatter in the Northern District of California would

address the concerns that it intends to raise in the Eastern District of North

Carolina and vitiate the need to litigate the issues here. North Carolina further

anticipates that the questions surrounding remedy will be resolved by the district

court in Sierra Clubin the relatively near term.

7. North Carolina submits that for reasons of economy of resources of

both the parties and the judicial system, there is little value in proceeding right now

with this case in the Eastern District of North Carolina.

8. North Carolina has shared this motion with EPA and North Carolina

represents that EPA does not oppose the granting of this motion.

Therefore, for all of the foregoing reasons, the Plaintiff respectfully prays

that the Court order that:

1. this matter be held in abeyance;

2. all pending deadlines be continued;

3. the parties file a joint status report within 120 days of the date of this

order setting forth any developments in the Sierra Clubmatter (or any other

matter), and any other facts, that may affect the status of this case.




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4

4. any party be allowed at any time to move this Court for an order

terminating, in whole or in part, the order of the Court holding the matter in

abeyance.

A proposed order has been submitted with this motion.


ROY COOPER

Attorney General


Marc BernsteinSpecial Deputy Attorney GeneralNC State Bar No. 21642


By: /s/ Scott Conklin

Scott ConklinAssistant Attorney General



By: /s/ Brenda Menard

Brenda MenardSpecial Deputy Attorney General



North Carolina Department of Justice

P.O. Box 629

Raleigh, NC 27602Phone Number: (919) 716-6600

Fax Number: (919) 716-6767

Attorneys for Plaintiff State of North

CarolinaJanuary 7, 2014




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5

CERTIFICATE OF SERVICE

I hereby certify that on January 7, 2014, I electronically filed the foregoing

Motion to Hold Case in Abeyance with the Clerk of the Court using the CM/ECF

system which will automatically send notification of such filing to all parties.

ROY COOPER

Attorney General


Marc Bernstein

Special Deputy Attorney GeneralNC State Bar No. 21642

E-mail Address: [email protected] Carolina Department of Justice

P.O. Box 629Raleigh, NC 27602

Phone Number: (919)716-6956Fax Number: (919) 716-6763

Attorney for Plaintiff State of NorthCarolina




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THE UNITED STATES DISTRICT COURTFOR THE E STERN DISTRICT OF NORTH C ROLIN

WESTERN DIVISIONNo. 5:13-CV-710

STATE OF NORTH CAROLINA,Plaintiff,

v. ) OR ER) HOL ING C SE INREGINA MCCARTHY, in her official ) BEY NCECapacity as Administrator of the United )States Environmental Protection Agency, )

Defendant. )The Plaintiff State of North Carolina having moved to hold this case in

abeyance, upon good cause shown including the representation that the Defendantdoes not oppose the motion, the Court GRANTS the motion and ORDERS asfollows:

1 This matter shall be held in abeyance until further order of the Court.2. All pending deadlines are continued.3. The parties file a joint status report within 120 days of the date of this

order setting forth any developments in the matter of Sierra Club t al vMcCarthy 13-cv-3953 N.D. Cal.), or any other matter and any other facts thatmay affect the status of this case.




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4. Any party may at any time to move this Court for an orderterminating in whole or in part the order o the Court holding the matter inabeyance.

SO ORDERED.This the 8th day o January 2014.

~ e tJaj {es C. FoxSenior United States District Judge


EPA Motion for Stay 2/14/2014 SW ND

Documents

Transcript of EPA Motion for Stay 2/14/2014 SW ND