COMPLAINT 1

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PAUL R. CORT, State Bar No. 184336
Earthjustice
50 California Street
San Francisco, CA 94111
pcort@earthjustice.org
Tel: 415-217-2000/Fax: 415-217-2040

Attorney for Plaintiffs Sierra Club
and Natural Resources Defense Council

ZACHARY M. FABISH, State Bar No. 247535
The Sierra Club
50 F Street, NW - 8th Floor
Washington, DC 20001
zachary.fabish@sierraclub.org
Tel: 202-675-7917/Fax: 202-547-6009

Attorney for Plaintiff Sierra Club


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO/OAKLAND DIVISION




SIERRA CLUB and NATURAL RESOURCES
DEFENSE COUNCIL

Plaintiffs,
v.

REGINA MCCARTHY, in her official capacity as
Administrator of the United States Environmental
Protection Agency,

Defendant.
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Case No: 3:13-cv-03953


COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

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



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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 (SO
2
) air pollution in
communities throughout the nation. On J une 2, 2010, EPA promulgated a strengthened National
Ambient Air Quality Standard (NAAQS) for SO
2
to protect people nationwide from serious harms
due toSO
2
pollution, including breathing impairment, emergency room visits, lost work days, and
other injuries. 75 Fed. Reg. 35,520 (J une 22, 2010) (J une 2010 SO
2
NAAQS, revised SO
2

NAAQS, or standard). The Act expressly required EPA to promulgate and publish, not later than
J une 2, 2013, designations identifying all areas of the nation violating the revised SO
2
standard, 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 J une 4, 2013, and J une 25, 2013, Plaintiffs Sierra Club
and Natural Resources Defense Council (NRDC) provided the Administrator with written notice,in
the 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 SO
2
NAAQS. This advocacy has included Sierra Clubs participation
in EPA stakeholder meetings, analyses of dozens of major sources of SO
2
across 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 SO
2
pollution 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 areas
1
throughout the
nation that EPA has failed to designate for the revised SO
2
NAAQS 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 SO
2
designations adversely affecting their
members, the right to enforce requirements of the Act for preparation and implementation of plans to
remedy violations of the revised SO
2
standard 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 SO
2
NAAQS
(attainment); b) not meeting the revised SO
2
NAAQS (nonattainment); or c) not classifiable as

1
For 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. at
35,552.
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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 SO
2
NAAQS violations nationwide, including
identification of areas that violate the revised SO
2
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
revisedSO
2
NAAQS. Such information would also assist Sierra Club and NRDC members in
determining whether they are exposed to SO
2
levels that violate health standards and in taking action
to protect themselves and their families from SO
2
pollution. 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 in 1970
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 SO
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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 SO
2
, 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. SO
2
has 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 SO
2
has 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 SO
2
NAAQS did not adequately
protect peoples health, on J une 2, 2010, EPA promulgated a revision of that standard. Primary
National Ambient Air Quality Standard for Sulfur Dioxide, 75 Fed. Reg. 35,520 (signed J une 2,
2010, published J une 22, 2010) (to be codified at 40 C.F.R. pts. 50, 53, and 58). Specifically, EPA
established a new one-hour SO
2
standard at a level of 75 parts per billion. 40 C.F.R. 50.17(a).
24. EPA has estimated that implementation of the revised SO
2
NAAQS 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 SO
2
NAAQS triggered the Administrators
nondiscretionary duty to promulgate and publish designations under the revised standard for all areas
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COMPLAINT 8
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of every state pursuant to 42 U.S.C. 7407(d)(1)(B)(i) and 7407(d)(2) as expeditiously as
practicable, but not later than J une 2, 2012, two years from promulgation of the revised SO
2
NAAQS
on J une 2, 2010.
26. The Administrator failed to promulgate and publish area designations pursuant to 42
U.S.C. 7407(d)(1)(B) and (d)(2) for the revised SO
2
NAAQS for any areas in the nation by J une
2, 2012. The Administrator also failed to promulgate and publish such designations for any areas in
the nation by J une 22, 2012, two years from the publication of the revised SO
2
NAAQS in the
Federal Register.
27. On August 3, 2012, EPA announced that it was using its authority under 42 U.S.C.
7407(d)(1)(B)(i) to extend by one year the deadline for promulgating area designations for the
J une 2010 SO
2
NAAQS, stating that[w]ith this extension, the EPA is now required to complete
initial designations for this NAAQS by J une 3, 2013. Extension of Deadline for Promulgating
Designations for the 2010 Primary Sulfur Dioxide National Ambient Air Quality Standard, 77 Fed.
Reg. 46,295 (August 3, 2012).
28. Although the Administrator signed the final rule promulgating the revised SO
2

NAAQS on J une 2, 2010, EPAs August 3, 2012 Federal Register notice took the position that the
NAAQS revision was not promulgated until J une 3, 2010 because it was not publicly disseminated
until J une 3, 2010. 77 Fed. Reg. at 46,295 n.1. Plaintiffs contend that J une 2, 2010 constituted the
promulgation date for purposes of calculating the deadline for designations under 42 U.S.C.
7407(d)(1)(B)(i). For purposes of this action, however, the difference is immaterial because, as
further stated below, EPA failed to complete the required designations by either J une 2 or J une 3,
2013.
29. The Administrator failed to promulgate and publish designations pursuant to 42
U.S.C. 7407(d)(1)(B) and (d)(2) for the revised SO
2
NAAQS for any areas in the nation by J une
3, 2013.
30. Even if promulgation of theJ une 2010 SO
2
NAAQS is deemed to have occurred on
the publication date of that NAAQS in the Federal Register, J une 22, 2010, EPA also failed to
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COMPLAINT 9
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promulgate and publish designations for that NAAQS for any areas in the nation within three years
of such publication date; that is, by J une 22, 2013.
31. On August 5, 2013, EPA published in the Federal Register its final air quality
designations for a handful of areas in the United States for the 2010 primary SO
2
NAAQS. Air
Quality Designations for the Revised SO
2
NAAQS, 78 Fed. Reg. 47,191 (August 5, 2013) (to be
codified at 40 C.F.R. pt. 81). Specifically, EPA made area designations for only 29 areas in only 16
states (none in California), finding those areas to be in nonattainment for the standard based on
monitored air quality data. 78 Fed. Reg. at 47,193. EPA expressly stated that it was not yet
prepared to issue designations for any other areas in the nation and that it intended to address such
designations in separate future actions. 78 Fed. Reg. at 47,191.
32. The Clean Air Act requires the Administrator to promulgate designations for the SO
2

NAAQS for all areas in each state, 42 U.S.C. 7407(d)(1)(B), and to publish a Federal Register
notice promulgating such designations as required by 42 U.S.C. 7407(d)(2). Because EPA has
promulgated designations for only 29 areas in 16 states, EPA is in violation of its nondiscretionary
duty under 42 U.S.C. 7407(d)(1)(B) and (d)(2) to promulgate designations for the J une 2010 SO
2

NAAQS for all areas within three years of promulgation of the J une 2010 SO
2
NAAQS, and to
publish a Federal Register notice promulgating such designations within the same three year period.
CLAIM FOR RELIEF
Failure to Promulgate Designations of All Areas in Each State
Under the New One-Hour SO
2
NAAQS
33. Sierra Club and NRDC incorporate the allegations in all preceding paragraphs of this
Complaint as if set forth in full herein.
34. The Administrator had a nondiscretionary duty to promulgate and publish notice in
the Federal Register promulgating final designations of all areas in each State for the revised SO
2

NAAQS no later than three years from promulgation of the revised SO2 NAAQS. 42 U.S.C.
7407(d)(1)(B), 7407(d)(2).
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COMPLAINT 10
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35. The Administrator did not promulgate or publishnotice in the Federal Register
promulgating final designations for all areas in each State for the revised SO
2
NAAQS 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 SO
2
NAAQS, 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. Cort
PAUL R. CORT, State Bar No. 184336
Earthjustice
50 California Street
San Francisco, CA 94111
pcort@earthjustice.org
Tel: 415-217-2000/Fax: 415-217-2040
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COMPLAINT 11
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Counsel for Plaintiffs Sierra Club and NRDC


ZACHARY M. FABISH, State Bar No. 247535
The Sierra Club
50 F Street, NW - 8th Floor
Washington, DC 20001
zachary.fabish@sierraclub.org
Tel: 202-675-7917/Fax: 202-547-6009


Counsel for Plaintiff Sierra Club
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