Agenda Number 9.c. Attachment 1.

Transcription

1 Agenda Number 9.c. Attachment 1. Mark Wenzler D.C. Bar ID: National Parks Conservation Association th Street, NW, Suite 700 Washington DC mwenzler@npca.org IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NATIONAL PARKS CONSERVATION ASSOCIATION A non-profit corporation headquartered in Washington, D.C th Street NW, Suite 300 Washington D.C WILDEARTH GUARDIANS A non-profit corporation headquartered in Santa Fe, NM 312 Montezuma Avenue Santa Fe, NM GRAND CANYON TRUST A non-profit corporation headquartered in Flagstaff, Arizona 2601 N. Fort Valley Rd Flagstaff, AZ NORTHWEST ENVIRONMENTAL DEFENSE CENTER A non-profit corporation headquartered in Portland, Oregon SW Terwilliger Blvd. Portland, OR SAN JUAN CITIZENS ALLIANCE A non-profit corporation headquartered in Durango, Colorado /2 Main Avenue Durango, Colorado CENTER FOR BIOLOGICAL DIVERSITY A non-profit corporation headquartered in Tucson, Arizona 351 California St., Ste. 600 San Francisco, CA WASHINGTON WILDLIFE FEDERATION A non-profit corporation headquartered in Bellevue, Washington P.O. Box 1656 Bellevue, WA Civil Action No. 1

2 TO NIZHONI ANI A non-profit corporation headquartered in Arizona Ten miles north of Hard Rock Chapter P.O. Box 657 Kykotsmovi Village, AZ DOODA DESERT ROCK P.O. Box 7838 Newcomb, Navajo Nation New Mexico Plaintiffs, v. UNITED STATES DEPARTMENT OF THE INTERIOR and UNITED STATES DEPARTMENT OF AGRICULTURE Defendants. COMPLAINT I. STATEMENT OF THE CASE 1. This is a civil action for declaratory and injunctive relief brought pursuant to the Administrative Procedure Act ( APA ), 5 U.S.C. 706(1) and 555(b). This action seeks an order finding that defendants Departments of Interior and Agriculture ( DOI and DOA ) have failed to act without unreasonable delay on three of plaintiffs petitions that seek formal certification of visibility impairment in national parks and wilderness areas. By not acting on plaintiffs petitions, defendants have failed to fulfill their statutory and regulatory duty under the federal Clean Air Act to determine the extent to which individual sources of air pollution are impairing the visibility in federal Class I areas. 42 U.S.C. 7491(b)(2)(A); 40 C.F.R (c). DOI and DOA have failed to act on plaintiffs petitions from between 11 and 20 2

3 months. Plaintiffs respectfully request an order establishing a prompt deadline for DOI and DOA to act on plaintiffs petitions. II. JURISDICTION AND VENUE 2. This court has subject matter jurisdiction over the claims set forth in this complaint pursuant to 28 U.S.C (federal question statute), 5 U.S.C. 706(1) (Administrative Procedure Act), and 28 U.S.C (declaratory judgment statute). The relief requested is authorized by 5 U.S.C. 706(1), and 28 U.S.C and Venue is proper in the District of Columbia pursuant to 28 U.S.C. 1391(e)(1) because both the Departments of Interior and Agriculture reside in the District of Columbia. Venue is also proper in the District of Columbia pursuant to 28 U.S.C. 1391(e)(3) because plaintiff National Parks Conservation Association resides in the District of Columbia. III. PARTIES 4. The National Parks and Conservation Association is America s only private, nonprofit citizen organization dedicated solely to preserving, protecting and enhancing the U.S. National Park System. NPCA was founded in 1919, and today has approximately 320,000 members nationwide. NPCA s mission is to protect and enhance the natural and cultural resources of America s National Park System through research, public education and advocacy. NPCA is headquartered in Washington, D.C. 5. WildEarth Guardians is a non-profit environmental organization, with offices in Colorado, Arizona, and New Mexico. WildEarth Guardians protects and restores wild rivers, wildlife and wild places in the American West. A critical component of this work is helping to foster an ethic of appreciation by allowing people to enjoy these wildlife, wild rivers and wild places. WildEarth Guardians is headquartered in Sante Fe, New Mexico. 3

4 6. The Grand Canyon Trust is a non-profit, regional conservation organization dedicated to conserving the natural and cultural resources of the Colorado Plateau. The Trust advocates an ecologically responsible and sustainable balance between resource use and preservation, along with the protection of areas of beauty and solitude. The Trust recognizes that clear air and vast panoramas are defining characteristics of the Colorado Plateau, and has been involved in air quality issues since its founding in The Trust is headquartered in Flagstaff, Arizona. 7. Northwest Environmental Defense Center is an independent, non-profit organization working to protect the environment and natural resources of the Pacific Northwest. The Northwest Environmental Defense Center is headquartered in Portland, Oregon. 8. To Nizhoni Ani ( beautiful water speaks ) is a non-profit, Navajo grass-roots organization committed to protecting the health and environment of the Navajo people. To Nizhoni Ani is located ten miles north of Hard Rock Chapter, Hard Rock, Arizona. 9. Washington Wildlife Federation, an affiliate of the National Wildlife Federation, is a non-profit, membership organization that works to protect the wildlife of Washington State. Washington Wildlife Federation is based in Bellevue, Washington. 10. The Center for Biological Diversity is a non-profit organization that works to secure a future for all species, great and small, hovering on the brink of extinction. The Center for Biological Diversity is based in Tucson, Arizona. 11. The San Juan Citizens Alliance is a grass roots organization dedicated to social, economic and environmental justice in the San Juan Basin. The Alliance helps citizens protect the water and air, public lands, rural character, and unique quality of life in the San Juan Basin, while embracing the diversity of the region s people, economy and ecology. San Juan Citizens Alliance is headquartered in Durango, Colorado. 4

5 12. Dooda ( No ) Desert Rock is a grass-roots Navajo organization working to protect the air quality of the Navajo Nation and neighboring national parks including the Grand Canyon National Park. Dooda Desert Rock is located in Newcomb, Navajo Nation, New Mexico. 13. Plaintiffs bring this action on behalf of their adversely affected members. 14. Individual members of the plaintiff groups regularly visit and enjoy the national parks and wilderness areas that are the subject of plaintiffs visibility impairment petitions. Individual members of the plaintiff groups breathe, use, and enjoy the ambient air in and surrounding the national parks and wilderness areas described in the petitions. Pollution from large industrial facilities, including coal-fired power plants, degrade the air and scenery used by plaintiffs members. 15. The health, aesthetic, and recreational interests of plaintiffs members are being and will continue to be adversely affected by the failure of DOI and DOA to act without unreasonable delay on plaintiffs petitions to certify conditions of reasonably attributable visibility impairment. DOI and DOA s unreasonable delay in deciding whether plaintiffs petitions demonstrate the existence of reasonably attributable visibility impairment is frustrating the visibility protection provisions of the Clean Air Act. If DOI and DOA were to grant plaintiffs petitions, large sources of air pollution that are presently causing visibility impairment in many national parks and wilderness areas would more likely be required to reduce their emissions. DOI and DOA s failures to act harms, and will continue to harm, plaintiffs and their members. IV. FACTS 16. On May 5, 2009, Petitioners National Parks Conservation Association, Sierra Club, Grand Canyon Trust, San Juan Citizens Alliance, To Nizhoni Ani and Diné CARE formally petitioned DOI to certify that nitrogen oxide and particulate matter emissions from the Navajo 5

6 Generating Station in Arizona are impairing visibility in the Grand Canyon National Park. Grand Canyon National Park is a mandatory Class I area under the Clean Air Act. 40 C.F.R. Part 81. Petitioners petition was submitted pursuant to the Administrative Procedure Act, 5 U.S.C. 553(e). 17. On June 24, 2009, Petitioners National Parks Conservation Association, Washington Wildlife Federation, Sierra Club, and Northwest Environmental Defense Center formally petitioned DOI to certify that nitrogen oxide emissions from the Centralia Power Plant in Washington are impairing visibility in Mount Rainier and Olympic National Parks. Mount Rainier and Olympic National Parks are both mandatory Class I areas under the Clean Air Act. 40 C.F.R. Part 81. Petitioners petition was submitted pursuant to the Administrative Procedure Act, 5 U.S.C. 553(e). 18. On February 16, 2010, Petitioners National Parks Conservation Association, Earthjustice, Sierra Club, San Juan Citizens Alliance, Grand Canyon Trust, Center for Biological Diversity, Diné CARE, Dooda Desert Rock and Wild Earth Guardians formally petitioned DOI and DOA to certify that nitrogen oxide, sulfur dioxide and particulate matter emissions from the Four Corners Power Plant in New Mexico are impairing visibility in sixteen national parks and wilderness areas administered by the National Park Service and the U.S. Forest Service in Arizona, Utah, New Mexico and Colorado. The sixteen national parks and wilderness areas named in the petition are all mandatory Class I areas under the Clean Air Act. 40 C.F.R. Part 81. Petitioners petition was submitted pursuant to the Administrative Procedure Act, 5 U.S.C. 553(e). 19. Pursuant to the EPA s regulations, the Federal Land Manager of any mandatory Class I area may certify to a state that it is reasonable to attribute visibility impairment to a single, or 6

7 small group of air pollution sources. Accordingly, 40 C.F.R (c)(1) provides that [t]he affected Federal Land Manager may certify to the State, at any time, that there exists reasonably attributable impairment of visibility in any mandatory Class I Federal area. Upon certification, states must identify and analyze for BART [best available retrofit technology] each existing stationary facility which may reasonably be anticipated to cause or contribute to impairment of visibility in the Class I area. 40 C.F.R (c)(4). 20. The term reasonably attributable visibility impairment is defined as visibility impairment that is caused by the emission of air pollutants from one, or a small number of sources. 40 C.F.R The term visibility impairment is defined as any humanly perceptible change in visibility (light extinction, visual range, contrast, coloration) from that which would have existed under natural conditions. Id. EPA s regulations state that [a] single source that is responsible for a 1.0 deciview change or more should be considered to cause visibility impairment and that determining whether a source contributes to visibility impairment should not be higher than 0.5 deciviews. 40 C.F.R. 51 Appendix Y Guidelines for BART Determinations Under the Regional Haze Rule, Section III A A deciview is a perceptually correct haze index such that uniform changes in haziness correspond to uniform incremental changes in perception across the entire range of conditions, from pristine to highly impaired. 40 C.F.R As set forth in Petitioners May 5, 2009 petition, the Navajo Generating Station in Arizona annually impairs visibility more than 0.5 deciviews at each of the eleven mandatory Class I areas within 300 kilometers of the facility, including an average of 2.5 deciviews of impairment on at least eight days every year to Grand Canyon National Park alone. The Navajo 7

8 Generating Station causes more than 19 deciviews of maximum cumulative impact across the eleven mandatory Class I areas within 300 kilometers of the facility. 24. As set forth in Petitioners June 24, 2009 petition, the Centralia Power Plant in Washington annually impairs visibility more than 0.5 deciviews at each of the thirteen mandatory Class I areas within 300 kilometers of the facility, including impairment over 0.5 deciviews for 148 days every year at Mt. Rainier National Park, and impairment over 0.5 deciviews for 69 days every year at Olympic National Park. The Centralia Power Plant causes an average impairment of 3.9 deciviews on at least eight days every year at Mt. Rainier National Park and an average impairment of 2.6 deciviews on at least eight days at Olympic National Park. The Centralia Power Plant causes more than 24 deciviews of maximum cumulative impact across the thirteen mandatory Class I areas within 300 kilometers of the facility. 25. As set forth in Petitioners February 16, 2010 petition, the Four Corners Power Plant in New Mexico annually impairs visibility more than 0.5 deciviews at each of the sixteen mandatory Class I areas within 300 kilometers of the facility. The Four Corners Power Plant causes an average impairment of 3.1 deciviews on at least eight days every year at Mesa Verde National Park and an average impairment of 2.2 deciviews on at least eight days at Canyonlands National Park. The Four Corners Power Plant causes more than 25 deciviews of maximum cumulative impact across the sixteen mandatory Class I areas within 300 kilometers of the facility 26. On September 3, 2009, NPCA, Minnesota Center for Environmental Advocacy, Friends of the Boundary Waters Wilderness and Voyageurs National Park Association submitted a petition to DOI asking the agency to certify that impairment of visibility at Voyageurs and Isle Royale National Parks, and Boundary Waters Canoe Area Wilderness was reasonably 8

9 attributable to pollutant emissions from Xcel Energy s Sherco coal-fired power plant located in Becker, Minnesota. 27. Less than two months later, on October 21, 2009, DOI formally certified that visibility impairment at Voyageurs and Isle Royale National Parks, and Boundary Waters Canoe Area Wilderness, was reasonably attributable to emissions from the Sherco facility. 28. DOI s October 21, 2009 visibility impairment certification states: According to the EPA's BART guidelines, a single source that is responsible for a 0.5 deciview (dv) or more change in visibility should be considered to contribute to visibility impairment. Xcel Energy s regional haze modeling submitted to the MPCA in October 2006, showed that, for the modeling period, combined impacts from Sherco Units 1 and 2 were above the EPA 0.5 dv threshold on 165 days at Voyageurs and 159 days at Isle Royale, with maximum impacts of 2.34 dv and 1.79 dv respectively. 29. DOI s October 21, 2009 visibility impairment certification concludes: Based on Xcel Energy s modeling results, a portion of the existing visibility impairment in Voyageurs and Isle Royale is reasonably attributable to pollution emissions from Sherco Units 1 and DOI and DOA have never acted on the remainder of Petitioners petitions that show far greater deciview impacts than those caused by Sherco. DOI and DOA have unreasonably delayed acting on Petitioners remaining petitions. 31. Plaintiffs incorporate by reference and reallege the allegations contained in paragraphs 1 through 31 for the cause of action below. V. CAUSE OF ACTION FAILURE TO ACT WITHOUT UNREASONABLE DELAY ON PLAINTIFFS PETITIONS 32. Pursuant to the Administrative Procedure Act ( APA ), Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule. 5 U.S.C. 9

10 553(e). 33. The APA provides that within a reasonable time, each agency shall proceed to conclude a matter presented to it. 5 U.S.C. 555(b). Pursuant to the APA, agency action includes an agency s failure to act. 5 U.S.C. 551(13). 34. The APA requires that To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall (1) compel agency action unlawfully withheld or unreasonably delayed. 5 U.S.C Plaintiffs petitioned DOI on May 5, 2009 and June 24, 2009, and both DOI and DOA on February 16, DOI and DOA have not acted on plaintiffs petitions as of the date of this complaint. 36. DOI and DOA have unreasonably delayed taking action on plaintiffs petitions. DOI and DOA s failure to act for the last months represents an unreasonable delay. 10

11 VI. RELIEF REQUESTED WHEREFORE, plaintiffs respectfully request this court to grant the following relief to correct defendants failure to act: DECLARE that defendants have unreasonably delayed taking action on plaintiffs petitions; ORDER defendants to act on plaintiffs petitions with all expedition, but in no event later than 30 days. ORDER defendants to pay plaintiffs their costs of litigation, including but not limited to reasonable attorney fees, as authorized by the Equal Access to Justice Act (EAJA), 5 U.S.C. 504; and GRANT such other relief as the Court deems necessary and proper. FOR PLAINTIFFS National Parks Conservation Association, Grand Canyon Trust, San Juan Citizens Alliance, To Nizhoni Ani, Diné CARE, Washington Wildlife Federation, Northwest Environmental Defense Center, WildEarth Guardians, and Center for Biological Diversity. Dated this 19 th day of January, Mark Wenzler, D.C. Bar ID National Parks Conservation Association th Street NW, Suite 300 Washington DC mwenzler@npca.org 11

12 Agenda Number 9.c. Attachment 2. Reed Zars Attorney at Law 910 Kearney Street, Laramie, WY January 19, 2011 BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED The Honorable Lisa P. Jackson Administrator United States Environmental Protection Agency Ariel Rios Building 1200 Pennsylvania Avenue, N.W. (Mailcode 1101A) Washington, DC RE: Notice of Intent to Sue Pursuant to 304 (b)(2) of the Clean Air Act for Failure of the Administrator to Promulgate Regional Haze FIPs. Dear Administrator Jackson: This letter constitutes notice pursuant to Clean Air Act Section 304(b)(2), 42 U.S.C. 7604(b)(2), and 40 C.F.R. Part 54, that the National Parks Conservation Association, Sierra Club, Grand Canyon Trust, WildEarth Guardians, Montana Environmental Center, Environmental Defense Fund, San Juan Citizens Alliance, Our Childrens Earth Foundation, Plains Justice, and Powder River Basin Resource Council ( Noticing Parties ) intend to file a citizen suit pursuant to Clean Air Act Section 304(a)(2) to address your failure to perform the nondiscretionary duty of promulgating regional haze Federal Implementation Plans for delinquent states by January 15, Congress in 1977 directed EPA to take action to clean up the sullied air in our nation s parks and wilderness areas. Decades of delay in finalizing federal plans to reduce visibility impairing haze in our parks and wilderness areas has deprived citizens of the enjoyment of these precious resources, and has caused visitors, employees, and wildlife to be unnecessarily exposed to harmful levels of air pollution. A. Failure to Perform Nondiscretionary Duties Section 110(c) of the Clean Air Act, 42 U.S.C. 7410(c), requires the Administrator of EPA ( Administrator, you, or EPA ) to promulgate a Federal Implementation Plan ( FIP ) within two years of a finding that a state has failed to make a required a State Implementation Plan ( SIP ) submittal. The pertinent provision of Section 110(c) states: 1

13 (1) The Administrator shall promulgate a Federal implementation plan at any time within 2 years after the Administrator-- (A) finds that a State has failed to make a required submission or finds that the plan or plan revision submitted by the State does not satisfy the minimum criteria established under section 110(k)(1)(A). On January 15, 2009, EPA made a formal finding that 32 states plus the District of Columbia and the U.S. Virgin Islands had failed to submit any of the required regional haze SIP elements set forth at 40 C.F.R Fed.Reg. 2392, 2393 (January 15, 2009). EPA also found that five states had submitted some, but not all, of the required regional haze SIP elements set forth at 40 C.F.R and Id. Specifically, EPA found that the following States and Territories had failed to submit SIPs addressing any of the required regional haze SIP elements of 40 C.F.R : Alaska, California, Connecticut, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Maine, Maryland, Massachusetts, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Texas, Vermont, U.S. Virgin Islands, Virginia, Washington, and Wisconsin. 74 Fed. Reg. at EPA further found that the following states had failed to submit SIPs addressing part of the required regional haze SIP elements: Id. Arizona 40 CFR (g) and 40 CFR (d)(4). Colorado 40 CFR (d) and 40 CFR (e) for two sources. Michigan 40 CFR (d) and 40 CFR (e) for six sources. New Mexico 40 CFR (g) and 40 CFR (d)(4). Wyoming 40 CFR (g). The above-referenced EPA findings of failure to submit all or part of required haze SIPs triggered a nondiscretionary duty under 42 U.S.C. 7410(c)(1)(A) for EPA to promulgate haze FIPs by January 15, 2011 for each of the above named states and territories for which EPA has not fully approved regional haze SIPs by that date. EPA confirmed its obligation to promulgate regional haze FIPs for each of the above-named states, the District of Columbia, and the U.S. Virgin Islands, within two years of its January 15, 2009 notice as follows: In this action, EPA is finding that 37 states, the District of Columbia, and the U.S. Virgin Islands have failed to make all or part of the required SIP submissions to address regional haze. This finding starts the two year clock for the promulgation by EPA of a FIP. EPA is not required to promulgate a FIP if the state makes the 2

14 required SIP submittal and EPA takes final action to approve the submittal within two years of EPA s finding. Id. Unfortunately, EPA has failed to meet the January 15, 2011 deadline through the final promulgation of regional haze FIPs or full approval of regional haze SIPs for any of the states and territories listed above. Accordingly, the Administrator is in violation of her nondiscretionary duty to promulgate regional haze FIPs for each of the above-named states and territories by January 15, B. Notice of Intent to Sue After the expiration of sixty (60) days from the postmark date of this notice of intent to sue, the Noticing Parties intend to file suit against you in federal court for your failure to act in accordance with your non-discretionary duties described in Section A of this letter. C. Noticing Parties Information As required by 40 C.F.R. 54.3, the names and addresses of the Noticing Parties are as follows: National Parks Conservation Association th Street NW, Suite 300 Washington DC Montana Environmental Information Center PO Box 1184 Helena, MT Environmental Defense Fund 257 Park Avenue South New York, NY Sierra Club 85 Second St., 2nd Floor San Francisco, CA Grand Canyon Trust 2601 N. Fort Valley Rd Flagstaff, AZ San Juan Citizens Alliance P.O. Box /2 Main Avenue Durango, Colorado

15 Our Children's Earth Foundation 3701 Sacramento St. #I94 San Francisco, CA Plains Justice 2606 Montana Avenue Billings, Montana Powder River Basin Resource Council 934 N. Main St., Sheridan, WY WildEarth Guardians 3 12 Montezuma Avenue Santa Fe, NM D. Legal Representation The Noticing Parties have retained counsel to represent them in this matter. Their names and addresses are as follows: David Baron Reed Zars Managing Attorney Attorney at Law Earthjustice 910 Kearney Street 1625 Massachusetts Avenue, NW Laramie, WY Suite Washington, DC (202) Ext. 203 We would be happy to discuss the concerns raised in this letter with you. Please contact above-named counsel if you would like to pursue such discussions. We look forward to hearing from you. Yours Sincerely, Reed Zars Attorney at Law 9 10 Kearney Street Laramie, WY