UNITED STATES DISTRICT COURT

DISTRICT OF NORTH DAKOTA

SOUTHWEST DIVISION
)
STATES OF NORTH DAKOTA, )
SOUTH DAKOTA, NEVADA AND )
TEXAS )
Plaintiffs, )
)
v. ) Civil No. 1:13-cv-109
)
REGINA MCCARTHY, in her official capacity )
as Administrator of the United States )
Environmental Protection Agency )
Defendant, )
)
_______________________________________)
PLAINTIFFS THE STATES OF NORTH DAKOTA, NEVADA AND TEXASS
RESPONSE IN OPPOSITIONTO
DEFENDANTS MOTION TO HOLD CASE IN ABEYANCE
Plaintiff States of North Dakota, Nevada and Texas (the Plaintiff States), by and
through undersigned counsel and pursuant to N.D. Civ. L.R. 7.1 (B), respectfully file their
Response in Opposition to Defendants Motion to Hold Case in Abeyance.
INTRODUCTION
Plaintiff States filed suit on September 12, 2013 to compel the Administrator of the U.S.
Environmental Protection Agency (Administrator or EPA), to take action mandated by the
federal Clean Air Act, 42 U.S.C. 7401 et seq. (the CAA) to designate areas of the country
as attainment, nonattainment or unclassifiable for the revised primary sulfur dioxide
(SO
2
) National Ambient Air Quality Standard (NAAQS). On June 2, 2010 the Administrator
signed and EPA promulgated the revised SO
2
NAAQS. See 75 Fed. Reg. 35,520 (June 22, 2010)
(the SO
2
NAAQS). The CAA provides that the Administrator has no more than three years
after a new NAAQS is promulgated to issue area designations for attainment for the NAAQS.
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EPA has failed to promulgate designations for thousands of areas in the United States
including areas in the Plaintiff States.
EPA does not dispute that the Administrator has failed to meet the CAAs statutory
deadline to designate all areas of the country for the SO
2
NAAQS. In the matter of Sierra Club et
al. v. McCarthy, N.D. Cal. Case No. 13-cv-3953-SI, EPA confessed that it failed to meet its
nondiscretionary duty to promulgate area designations by June 3, 2013. See Defendants
Response to Motion for Summary Judgment at p. 2, Doc. No. 63. EPAs stated reason for
missing the deadline to promulgate area designations is the alleged lack of sufficient data to
make designations of attainment or nonattainment. EPA expects that most areas of the country
would be designated as unclassifiable for the 1-hour NAAQS for SO2, due to a lack of both
monitoring and modeling information concerning the attainment status of areas, in advance of
States conducting further refined modeling according to our anticipated guidance. 75 Fed. Reg.
35,520, 35,574/3 (June 22, 2010). See also 77 Fed. Reg. 46,295, 46,296/3 (Aug. 3, 2013). If EPA
fails to meet the deadline to promulgate area designations, the Act requires the Administrator to
take the nondiscretionary action of promulgating unclassifiable designations for all areas for
which EPA had insufficient information to promulgate designations. CAA 107(d)(1)(A)(iii),
42 U.S.C. 7407(d)(1)(A)(iii).
To hold the Plaintiff States case in abeyance permits EPA to continue to evade its
nondiscretionary duty to promulgate area designations for all undesignated areas of the country.
While the case of Sierra Club et al. v. McCarthy also seeks to address the same underlying CAA
violation by EPA, the case pending in the Northern District of California is proceeding slowly. In
the Northern District of California case, EPA and the Sierra Club have both identified that the
preferred approach for proceeding with area designations is to implement a tiered process over
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the course of the next three to six years to do what EPA was statutorily required to do in June
2013. Settlement negotiations between the parties have been underway since December 2013. As
a result of a lack of progress on settlement, the parties are proceeding to briefing. Plaintiff and
Intervenor-Plaintiffs Opening Briefs on remedy are due to be filed on March 21, 2014 and
briefing in the case is scheduled to be completed on May 19, 2014 with a hearing on the briefs to
follow on May 30. Sierra Club et al. v. McCarthy, N.D. Cal. Case No. 13-cv-3953-SI, Order at 2
(March 14, 2014), Doc. No. 89.
Plaintiff States desire and deserve a speedy resolution to EPAs admitted failure to
comply with the CAA. It is unknown when an order from the Northern District of California will
be issued. Nor is there any certainty that a settlement of the action brought by Plaintiffs Sierra
Club and the National Resources Defense Council will address the issues and concerns of any of
the States.
1
Plaintiffs in the Northern District of California case and EPA could settle that case
without the States participation in a settlement agreement.
While EPA may prefer not to have to proceed before this Court on Plaintiff States
claims, EPA must demonstrate that it will suffer hardship or inequity should the case proceed.
EPAs Motion fails to demonstrate that it will suffer any hardship or inequity should this case
proceed. Therefore, the Plaintiff States respectfully request that this Court deny EPAs Motion
and issue an order setting an expedited briefing schedule.
I. LEGAL AND FACTUAL BACKGROUND.
A. The NAAQS Area Designation Process.
EPA promulgates NAAQS for certain air pollutants. CAA 109(a) & (b), 42 U.S.C.
7409(a) & (b). EPA is required to review each NAAQS on a five-year cycle and make any
1
The State of South Dakota did not intervene in the Northern District of California case, seeking
instead to have its claims heard by this Court.
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necessary changes to the standards as air quality and public health research requires. CAA
109(d)(1), 42 U.S.C. 7409(d)(1). Once EPA sets a national ambient standard, the Act requires
States to play a leading role in implementing that standard. Adhering to a cooperative
federalism approach, (EME Homer City Generation, L.P. v. E.P.A., 696 F.3d 7, 11 (D.C. Cir.
2012) cert. granted in part, 133 S. Ct. 2857 (U.S. 2013)), the CAA establishes a comprehensive
national program that makes the States and the Federal Government partners in the struggle
against air pollution. General Motors Corp. v. United States, 496 U.S. 530, 532 (1990). In that
partnership, EPA sets various standards and goals, but air pollution prevention . . . and air
pollution control at its source is the primary responsibility of States and local governments.
CAA 101(a)(3), 42 U.S.C. 7401(a)(3) (2013) (emphasis added); see also id. CAA 107(a),
42 U.S.C. 7407(a). Each State shall have the primary responsibility for assuring air quality
within the entire geographic area comprising such State . . . .).
Under CAA 107(d), 42 U.S.C. 7407(d), within one year of EPAs setting of a new
ambient standard, the governor of each State must submit to EPA initial designations indicating
which parts of that State meet that standard (designated attainment areas), which parts of the
State do not meet the standard (nonattainment areas), and which parts of the State cannot be
classified attainment or nonattainment because adequate data are not available to make a
determination one way or another (unclassifiable areas). Each of the Plaintiff States timely
submitted to EPA their area designations for the SO
2
NAAQS. See Complaint at 7, 10 and 12.
EPA must promulgate the designations [a]s expeditiously as practicable, but in no case
later than two years from the date of promulgation of the new or revised [NAAQS], CAA
107(d)(1)(B)(i),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.
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Accordingly, EPA must promulgate designations for all areas of every State within three years
after the promulgation of a new or revised NAAQS. CAA 107(d)(1)(B), 42 U.S.C.
7407(d)(1)(B). These designations must be published by EPA in the Federal Register. CAA
107(d)(2), 42 U.S.C. 7407(d)(2).
B. EPA Failed To Timely Designate All Areas Of The Country For The
SO
2
NAAQS.
EPAs revised SO
2
NAAQS became effective June 2, 2010. 75 Fed. Reg. 35,585. In the
SO
2
NAAQS rulemaking, EPA recognized its firm obligation to designate areas as attainment,
nonattainment or unclassifiable for the new 1-hour SO
2
NAAQS by June 2012 (i.e., two years
following promulgation of the new NAAQS). Id. at 35,552; see also id. at 35,585 (setting June
1, 2012 as the deadline for EPAs designations, since June 2, 2012 would be on a Saturday). In
the preamble to the SO
2
final rule, EPA stated that the Agency expected to designate much of the
country as unclassifiable. 75 Fed. Reg. 35,574/3. EPA also affirmed in its final rule, that the
CAA requires the Agency to make a finding of unclassifiable when it lacks sufficient data to
make findings of attainment or nonattainment. 75 Fed. Reg. 35,552/1. All other areas,
absent monitoring data and air quality modeling results showing no violations, we would expect
to initially designate as unclassifiable, as required by the Clean Air Act. Id. (emphasis
added).
EPAs June 1, 2012 deadline passed without action by EPA. On July 27, 2012 the EPA
Administrator issued its Extension of Deadline for Promulgating Designations for the 2010
Primary SO
2
NAAQS (SO
2
Designation Extension Notice) 77 Fed. Reg. 46,295 (Aug. 3,
2013). In that Extension Notice, EPA announced that it was invoking its authority under the
CAA to extend by one year the deadline for making the SO
2
area designations to June 3, 2013.
77 Fed. Reg. 46,295. Then- EPA Administrator Jackson explained that EPA had expected states
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would generally submit designation recommendations of unclassifiable [for the new 1-hour SO
2
NAAQS], and that most areas information records would be insufficient to support initial
designations of attainment or nonattainment (75 FR 35571). 77 Fed. Reg. 46,296/2. Further,
Administrator Jackson relied upon guidance to the States issued by EPA in March 2011, to
support EPAs determination that as of June 2012 due to an expected absence of monitoring or
modeling information showing whether areas were meeting or not meeting the revised NAAQS,
most areas would likely be initially designated as unclassifiable (March 2011 Guidance at p. 2).
77 Fed. Reg. 46,296/3.
On February 6 and 7, 2013, in letters sent to the States, EPA stated that the EPA
Administrator had decided not to promulgate designations for the 1-hour SO
2
NAAQS at that
time, and would do so in future actions. In the letters received by the States, EPA affirms the
initial designations submitted by the Governors to EPA. Specifically, EPA affirmed that its
review of the most recent monitored air quality data from 2009-2011 shows no violations of the
2010 SO
2
standard in any area in North Dakota, Nevada or Texas. See Complaint, Docs. 1-6, 1-
8, and 1-9. However, rather than proceed with promulgating the initial designations submitted by
the Plaintiff States, EPA stated that, consequently, the EPA is not yet prepared to propose
designation action [for the Plaintiff States], and is therefore, currently deferring action to
designate areas. Id.
Under the CAA, EPA shall promulgate the designations of all areas (or portions thereof)
submitted by the Governor of each State. CAA 107(d)(1)(B)(i), 42 U.S.C. 7407(d)(1)(B)(i).
EPA may only modify a States initial designation if the Administrator deems [it] necessary to
do so. Id. 107(d)(1)(B)(ii), 7407(d)(1)(B)(ii). As of February 2013, EPA affirmed that its
review of the Plaintiff States air quality data found no violations of the 2010 SO
2
NAAQS. See
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Complaint, Docs. 1-6, 1-8, and 1-9. As such, EPA was required under the CAA to proceed to
promulgate the initial designations submitted by these States to EPA. However, EPA instead
decided only to proceed with designations of nonattainment for any area with an SO
2
air quality
monitor that was evidencing a violation of the SO
2
NAAQS. EPA explained to the States the
Agencys intent unsupported by law or any other authority - to defer designations for all other
areas until after the June 2013 deadline. See id. Significantly, despite the fact that EPA stated
that it was proceeding to designate all areas with monitoring data showing nonattainment with
the 1-hour SO
2
NAAQS as nonattainment, EPA refused to designate any areas with monitors
showing attainment with the NAAQS as attainment or even as unclassifiable. For all areas
that EPA asserts it lacks sufficient data to promulgate a designation of attainment or
nonattainment, rather than designate those areas as unclassifiable as the CAA requires -
and proceed with redesignation of the areas as future data becomes available, EPA has simply
decided sua sponte, to do nothing at all.
At the same time EPA notified the States that the Agency was not going to make area
designations by June 2013, it issued its Next Steps for Area Designations and Implementation of
the Sulfur Dioxide National Ambient Air Quality Standard, dated February 6, 2013. (EPAs
Updated Strategy Paper). In its Updated Strategy Paper, EPA sets forth its preferred schedule
for the designations process. According to EPAs preferred approach, in late 2013, EPA would
propose a data requirements rule,
2
which would be finalized in late 2014. This data
requirements rule would provide States information on implementation of new SO
2
air quality
monitoring networks to be established in the States. Further, States would be required to conduct
2
The data requirements rule has yet to be issued to the public for comment and review.
Case 1:13-cv-00109-DLH-CSM Document 23 Filed 03/21/14 Page 7 of 13
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air quality modeling to determine compliance in areas that lacked monitors.
3
The new monitoring
and/or modeling data would be used to make the initial area designations for the 2010 SO
2
NAAQS. For areas that would be designated based on modeling alone, EPA would finalize
designations by December 2017 three and a half years after the Administrators non-
discretionary duty to make the initial SO
2
NAAQS designations. For areas with new monitors,
final designations would not be promulgated until six and a half years after the June 2013
deadline, i.e., December 2020.
EPAs Updated Strategy Paper affirms the Agencys deliberate steps to avoid designating
any area in the country as unclassifiable. In 2012, EPA stated that it has insufficient data to
promulgate designations, (77 Fed. Reg. 46,297/3), and under the CAA the only remedy for such
a finding is the promulgation of unclassifiable designations (CAA 107(d)(1)(A)(iii), 42
U.S.C. 7407(d)(1)(A)(iii)). Nothing has changed since June 2012, when EPA concluded it
lacked sufficient data to promulgate designations for the 1-hour SO
2
NAAQS, and June 2013
when EPA was required under the CAA to promulgate designations for the NAAQS. In fact, the
EPAs Updated Strategy Paper confirms what then-Administrator Jackson declared in 2012
EPA does not believe it has sufficient data to promulgate SO
2
NAAQS designations for the
majority of the country. Rather than comply with the CAA and designate the remaining areas in
the country as unclassifiable, EPA is instead seeking to create its own extra-statutory process
to collect data and information in the future so that it may make only attainment or
nonattainment designations three to six years from now.
3
The Plaintiff States contend that this modeling requirement is unprecedented and ill-founded
because modeling is a predictive tool and is not the type of data contemplated by the Clean Air
Act to be used to determine whether a state is currently in attainment or nonattainment.
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II. THE STATES ARE HARMED BY EPAS CONTINUED FAILURE TO
PROMULGATE DESIGNATIONS
In requesting that this case be held in abeyance, EPA has the high burden of
demonstrating that the balance of the competing interests of the parties weighs in favor of
holding a case in abeyance. Dellinger v. Mitchell, 442 F.2d 782, 786 (D.C. Cir. 1971) ([T]he
suppliant for a stay [of litigation] must make out a clear case of hardship or inequity in being
required to go forward, if there is even a fair possibility that the stay for which he prays will
work damage to someone else.) (quoting Landis v. N. Am. Co., 299 U.S. 248, 255 (1936)). In
its Motion seeking to hold this case in abeyance, EPA states that there is little value in
proceeding in this case in the District of North Dakota at this time. Motion at 5. While EPA
may believe there is little value in proceeding with the case before this Court, Plaintiff States
strenuously disagree.
The Plaintiff States continue to be harmed as a result of EPAs admitted and inexcusable
delay. See Complaint at 13. The States are partners with EPA in the struggle against air
pollution. General Motors Corp. v. United States, 496 U.S. 530, 532 (1990). Each State
implements and enforces various environmental regulatory programs through their respective
environmental and/or health agencies. These programs include CAA programs to implement new
and revised NAAQS and programs for the issuance of preconstruction permits to those seeking
to locate new sources in the State or expand existing sources in the State. The CAA
preconstruction permitting program applicable in attainment and unclassifiable areas is the
prevention of significant deterioration of air quality (PSD) program. CAA 160-169, 42
U.S.C. 7470-7479. The CAAs more onerous preconstruction permitting program, applicable
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in nonattainment areas, is the nonattainment new source review (NNSR) program. CAA
171-179, 42 U.S.C. 7501-7509.
EPAs failure to make area designations for the 1-hour SO
2
NAAQS in accordance with
monitoring and emission data (and unclassifiable for those areas without sufficient information),
prevents the States from confirming that their individual regulatory programs for SO
2
are
adequate. The States collectively are charged with protecting public health and the environment;
if there are areas that are in nonattainment, the States need to know that as quickly as possible so
that they may address the causes of the nonattainment and be protective of public health.
Conversely, if there are areas in the States that are in attainment or unclassifiable, the States need
to know that so that they do not have to devote substantial resources to evaluating or revising
their existing SIPs and corresponding regulatory programs. Finally, it is important for States to
have the area designations issued so that the States may continue to issue preconstruction permits
under the CAAs PSD program rather than the Acts more burdensome NNSR program. The
States regulated industries are also faced with uncertainty regarding their permitting
applications. In the absence of timely action by EPA, the States have no such certainty. This
statutory process affords States the certainty necessary to conduct required regulatory planning
and permitting activities. Without a prompt resolution of this matter, the States will continue to
suffer adverse impacts from EPAs continued failure.
Further, there is the potential that Plaintiffs - the Sierra Club and the National Resources
Defense Council - and EPA could settle the Northern District of California case without the
States of North Dakota, Nevada or Texas. While North Dakota, Nevada and Texas were granted
intervention in the Northern District of California case, nothing prevents Plaintiffs and EPA from
settling the claims at issue in that case absent the States consent.
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CONCLUSION
For the reasons cited herein, Plaintiff States respectfully request that the Court (1) deny
EPAs Motion to hold the case in abeyance and (2) allow briefing to immediately commence as
set forth below:
1. Within 7-days from entry of the Courts Order, Plaintiff States will file a Motion for
Summary Judgment.
2. EPA shall have 21-days to Respond to Plaintiffs Motion.
3. Plaintiff States shall have 7-days to Reply to EPAs Response.
Dated: March 21, 2014
Respectfully submitted,
STATE OF NORTH DAKOTA
WAYNE STENEHJEM
ATTORNEY GENERAL
/s/Paul M. Seby_________________________
Paul M. Seby
Special Assistant Attorney General
Marian C. Larsen
Special Assistant Attorney General
Seby Larsen LLP
165 Madison Street
Denver, CO 80206
Telephone: (303) 248-3772
Email: paul.seby@sebylarsen.com
Email: mimi.larsen@sebylarsen.com
Office of Attorney General
500 North 9th Street
Bismarck, ND 58501-4509
Telephone: (701) 328-3640
Facsimile: (701) 328-4300
Attorneys for Plaintiff State of North Dakota
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STATE OF NEVADA
CATHERINE CORTEZ MASTO
ATTORNEY GENERAL
_/s/ Belinda A. Suwe_________________
Belinda A. Suwe
Nevada State Bar No. 12499
Deputy Attorney General
100 N. Carson St.
Carson City, NV 89701
Telephone: (775) 720-8319
Email: bsuwe@ag.nv.gov
Attorneys for Plaintiff the State of Nevada,
Department of Conservation and Natural
Resources, Division of Environmental
Protection.
STATE OF TEXAS
GREG ABBOTT
ATTORNEY GENERAL
DANIEL T. HODGE
First Assistant Attorney General
JOHN B. SCOTT
Deputy Attorney General for Civil Litigation
JON NIERMANN
Assistant Attorney General
Chief, Environmental Protection Division
_/s/ Nancy Elizabeth Olinger___________
Nancy Elizabeth Olinger
Assistant Attorney General
Texas State Bar No. 15254230
Mark L. Walters
Assistant Attorney General
Texas State Bar No. 00788611
Environmental Protection Division (MC-066)
P.O. Box 12548
Austin, Texas 78711-2548
Telephone: (512) 463-2012
Fax: (512) 320-0911
Email:nancy.olinger@texasattorneygeneral.gov
Email: mark.walters@texasattorneygeneral.gov
Attorneys for Plaintiff the State of Texas & the
Texas Commission on Environmental Quality.
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CERTIFICATE OF SERVICE
I hereby certify that on March 21, 2014, the foregoing Plaintiffs The States of North
Dakota, Nevada and Texass Response In Opposition to Defendants Motion to Hold Case in
Abeyance was served electronically to all counsel of record through the Courts ECF System.
s/ Paul M. Seby
Paul M. Seby
Special Assistant Attorney General
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