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Notice of Motion and Motion To Intervene as Plaintiffs and
Memorandum of Points and Authorities In Support Of Motion to
Intervene As Plaintiffs - Case No. 4:13-cv-03953-KAW
TIMOTHY J. CARLSTEDT (CA Bar No. 168855)Special Assistant
Attorney General Hunton & Williams LLP 575 Market St., #3700
San Francisco, CA 94105 [email protected] Telephone: (415)
975-3700 Facsimile: (415) 975-3701 WAYNE STENEHJEM, Attorney
General MARGARET I. OLSON (ND Bar No. 06352)1 Assistant Attorney
General Office of Attorney General 500 North 9th Street
[email protected] Bismarck, ND 58501-4509 Telephone: (701) 328-3640
Facsimile: (701) 328-4300 PAUL M. SEBY (CO Bar No. 27487) 1 MARIAN
C. LARSEN (CO Bar No. 36514)1 Special Assistants Attorney General
Seby Larsen LLP 165 Madison Street Denver, CO 80206
[email protected] [email protected] Telephone:
(303) 248-3772 Facsimile: (720) 306-7226 Counsel for Proposed
Plaintiffs-Intervenors (Parties Listed on Signature Page)
IN THE UNITED STATES DISTRICT COURT FOR THE 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.
Case No. 4:13-cv-03953-KAW NOTICE OF MOTION AND MOTION TO
INTERVENE AS PLAINTIFFS AND MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION TO INTERVENE AS PLAINTIFFS BY THE STATE OF NORTH
DAKOTA, THE STATE OF ARIZONA, THE COMMONWEALTH OF KENTUCKY ENERGY
AND ENVIRONMENT CABINET, THE STATE OF LOUISIANA DEPARTMENT OF
ENVIRONMENTAL QUALITY, THE
1 Application for Admission Pro Hac Vice Pending
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STATE OF NEVADA, AND THE STATE OF TEXAS Date: November 7, 2013
Time: 11:00 A.M. Location: Oakland Courthouse
Courtroom 4 3rd Floor 1301 Clay Street Oakland, CA 94612
Magistrate Judge: Kandis A. Westmore
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i
TABLE OF CONTENTS
NOTICE OF MOTION INTERVENE
...........................................................................................1
MEMORANDUM OF POINTS AND AUTHORITIES
................................................................2
ISSUE TO BE DECIDED
..............................................................................................................2
STATEMENT OF RELEVANT FACTS
.......................................................................................2
I. Legal and Factual Background
........................................................................................2
II. Description of Proposed Plaintiffs-Intervenors
..............................................................4
A. North Dakota
..................................................................................................................4
B. Arizona
...........................................................................................................................5
C. Kentucky
........................................................................................................................5
D. Louisiana
........................................................................................................................6
E. Nevada
............................................................................................................................6
F. Texas
...............................................................................................................................6
G. Combined Interests of the Intervenor States
..................................................................7
III. Other Pending Litigation Against EPA
.........................................................................7
ARGUMENT
..................................................................................................................................8
I. The Intervening States Are Entitled To Intervention As A
Matter Of Right .................8
A. The Intervening States Intervention Is Timely
.............................................................9
B. The Intervening States Have Significantly Legally Cognizable
Interests That Are
Affected By This Litigation
................................................................................................10
1. North Dakota Has Significantly Legally Cognizable Interests
That Are Affected By This
Litigation.
............................................................................................................................11
2. Arizona Has Significantly Legally Cognizable Interests That
Are Affected By This
Litigation.
............................................................................................................................14
3. Kentucky Has Significantly Legally Cognizable Interests That
Are Affected By This
Litigation.
............................................................................................................................17
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4. Louisiana Has Significantly Legally Cognizable Interests That
Are Affected By This
Litigation.
............................................................................................................................18
5. Nevada Has Significantly Legally Cognizable Interests That
Are Affected By This
Litigation.
............................................................................................................................20
6. Texas Has Significantly Legally Cognizable Interests That Are
Affected By This
Litigation.
............................................................................................................................23
C. The Intervening States Face Great Regulatory And Economic
Uncertainty As A Result
Of EPAs Failure
.................................................................................................................25
D. The Disposition Of This Case Threatens To Impair Or Impede
The Intervening States
Interests
...............................................................................................................................27
E. The Intervening States Interests Are Not Adequately
Represented By Existing Parties
.............................................................................................................................................28
II. In The Alternative, The Intervening States Should Be Granted
Permissive Intervention
.............................................................................................................................................31
III. The Court Should Allow Intervention Without Requiring The
Filing Of A Pleading
In Conjunction With The Motion To Intervene
.................................................................34
CONCLUSION
...............................................................................................................................35
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TABLE OF AUTHORITIES
Cases
Arakaki v. Cayetano, 324 F.3d 1078 (9th Cir. 2003)
..........................................................passim
Beckman Indus., Inc. v. Intl Ins. Co., 966 F.2d 470 (9th Cir.
1992) .................................9, 30, 34
Brennan v. New York City Bd. of Educ., 260 F.3d 123 (2d Cir.
2001) .......................................30
Cal. Dump Truck Owners Assn v. Nichols, 275 F.R.D. 303 (E.D.
Cal. 2011) ..........................11
Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S.
129 (1967) ........................11
Citizens for Balanced Use v. Mont. Wilderness Assn, 647 F.3d 893
(9th Cir. 2011) .............8, 10
Ctr. for Biological Diversity v. Lubchenco, No. 0904087 EDL,
2010 WL 1038398, at *9 (N.D.
Cal. Mar. 19, 2010) (Laporte, C. Mag. J.)
..................................................................................32
Donnelly v. Glickman, 159 F.3d 405 (9th Cir. 1998)
........................................................9, 27,
32
EME Homer City Generation, L.P. v. E.P.A., 696 F.3d 7 (D.C. Cir.
2012) ................................2, 3
General Motors Corp. v. United States, 496 U.S. 530 (1990).
........................................................ 3
Golden Eagle Ins. Co. v. Moon Marine (U.S.A.) Corp., No. C
1205438 WHA, 2013 WL 594283,
at *3 (N.D. Cal. Feb. 14, 2013)
................................................................................................29,
33
Golden Gate Rest. Ass'n v. City & Cnty. of San Francisco, C
06-06997 JSW, 2007 WL 1052820 at
*4 (N.D. Cal. Apr. 5, 2007)
............................................................................................................29
Greene v. United States, 996 F.2d 973 (9th Cir. 1993))
................................................................10
Kleissler v. U.S. Forest Serv., 157 F.3d 964 (3rd Cir. 1998)
.......................................................... 9
Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094 (9th Cir.
2002) ..................................29, 31, 33
Mille Lacs Band of Chippewa Indians v. Minnesota, 989 F.2d 994
(8th Cir. 1993) .....................29
NAACP v. New York, 413 U.S. 345 (1973)
.......................................................................................9
Nat'l Envtl. Dev. Ass'n's Clean Air Project v. E.P.A., 686 F.3d
803 (D.C. Cir. 2012) ...................26
Natural Res. Def. Council v. Costle, 561 F.2d 904 (D.C. Cir.
1977) ............................................26
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Cases Contd.
New York v. U.S. E.P.A., 413 F.3d 3 (D.C. Cir. 2005)
...............................................................12
Nw. Forest Res. Council v. Glickman, 82 F.3d 825 (9th Cir. 1996)
................................ 9, 10, 32
Shores v. Hendy Realization Co., 133 F.2d 738 (9th Cir. 1943)
................................................35
Smith v. Pangilinan, 651 F.2d 1320 (9th Cir. 1981)
...................................................................35
Sw. Center for Biological Diversity v. Berg, 268 F.3d 810 (9th
Cir. 2001) .......................... 27, 29
State of North Dakota et al. v. McCarthy, 1:13-cv-00109-CSM
(D.N.D. Sep. 12, 2013) ...... 7, 34
Trbovich v. United Mine Workers, 404 U.S. 528 (1972)
............................................................28
U.S. v. Carpenter, 298 F.3d 1122 (9th Cir. 2002) (per curiam)
..................................................29
United States v. City of Los Angeles, 288 F.3d 391 (9th Cir.
2002) .....................................10, 11
Wilderness Socy v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir.
2011) ....................................9, 31
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Federal Statutes
18 U.S.C. 1151
..........................................................................................................................14
28 U.S.C. 1367(a)(2011)
...........................................................................................................31
Clean Air Act, 42 U.S.C. 7401, et seq. (2013)
CAA 101(a)(3), 42 U.S.C. 7401(a)(3)
....................................................................3,
28
CAA 107(a), 42 U.S.C. 7407(a)
................................................................................3,
6
CAA 107(d), 42 U.S.C. 7407(d)
................................................................................3,
7
CAA 107(d)(1)(A), 42 U.S.C. 7407(d)(1)(A)
......................................................passim
CAA 107(d)(1)(A)(iii), 42 U.S.C. 7407(d)(1)(A)(iii)
.............................................16, 22
CAA 107(d)(1)(B), 42 U.S.C. 7407(d)(1)(B)
...............................................................4
CAA 107(d)(1)(B)(i), 42 U.S.C. 7407(d)(1)(B)(i)
.................................................passim
CAA 107(d)(1)(B)(ii), 42 U.S.C. 7407(d)(1)(B)(ii)
..................................................3, 4
CAA 107(d)(3), 42 U.S.C. 7407(d)(3)
..........................................................................16
CAA 107(d)(3)(A), 42 U.S.C. 7407(d)(3)(A)
............................................................16,
22
CAA 107(d)(3)(B), 42 U.S.C. 7407(d)(3)(B)
............................................................16,
22
CAA 109(a), 42 U.S.C. 7409(a)
.......................................................................................2
CAA 109(b), 42 U.S.C. 7409(b)
.......................................................................................2
CAA 109(d)(1), 42 U.S.C. 7407(d)(1)
..............................................................................2
CAA 110(b)(1), 42 U.S.C. 7410(b)(1)
................................................................................11
CAA 160-169, 42 U.S.C. 7470-7479
............................................................................5
CAA 165, 42 U.S.C. 7475
......................................................................................5,
11, 12
CAA 171-179, 42 U.S.C. 7501-7509
...........................................................................5
CAA 173, 42 U.S.C. 7503
...............................................................................................12
CAA 304(a)(2), 42 U.S.C. 7604(a)(2)
..............................................................................2
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Federal Statutes Contd.
CAA 304(a)(3), 42 U.S.C. 7604(a)(3)
........................................................................33
CAA 304(b), 42 U.S.C. 7604(b)
.............................................................................8,
17
CAA 307(d)(1)(B)(i), 42 U.S.C. 7407(d)(1)(B)(i)
...........................................................2
Federal Regulations
40 C.F.R. 52.21(78 Fed. Reg. 3281, Jan. 15, 2013)
..........................................................21
40 C.F.R. 54.2 (36 Fed. Reg. 23386, Dec. 9, 1971)
...........................................................8
40 C.F.R. 54.3 (36 Fed. Reg. 23386, Dec. 9, 1971)
..............................................................8,
17
40 C.F.R. 58 (78 Fed. Reg. 3281, Jan. 15, 2013)
...............................................................20,
22, 23
Federal Rules
Fed. R. Civ. P. 24(a)
.................................................................................................................1,
2, 9
Fed. R. Civ. P. 24(a)(2)
..........................................................................................................8
Fed. R. Civ. P. 24(b)
...............................................................................................................
passim
Fed. R. Civ. P. 24(b)(1)(B)
.............................................................................................................31
Fed. R. Civ. P.
24(b)(3)...................................................................................................................32
Fed. R. Civ. P. 24(c)
....................................................................................................................34,
35
Federal Register
54 Fed. Reg. 36307 (Sept. 1, 1989)
.......................................................................................5
75 Fed. Reg. 35520 (June 22, 2010)
............................................................................................4,
26
78 Fed. Reg. 47191 (Aug. 5, 2013)
..........................................................................................passim
State Statutes
Louisiana
La. R.S. 30:2011.A.(1)
....................................................................................................................6
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State Regulations
Kentucky
401 KAR 51:017
.............................................................................................................................5
401 KAR 51:052
.............................................................................................................................6
Louisiana
LAC 33:III. Chapter 5
......................................................................................................19
LAC 33:III.509
................................................................................................................19
LAC 33:III.Chapter 15
.....................................................................................................19
Nevada
NAC 445B.22097
............................................................................................................21
NAC 445B.308
................................................................................................................21
Nevada Air Quality Regulations, Articles 12 and 13 (1974)
...........................................21
North Dakota
ND Admin. Code Chapter 33-14-03(2010)
.....................................................................12
ND Admin. Code Chapter 33-15-02(2010)
.....................................................................12
ND Admin. Code Chapter 33-15-06
................................................................................13
ND Admin. Code Chapter 33-15-14
................................................................................12
ND Admin. Code Chapter 33-15-14-03
...........................................................................12
Texas
30 Texas T.A.C., Chapter 101, General Air Quality Rules
.............................................23
30 T.A.C. Chapter 112
.....................................................................................................23
30 T.A.C. Chapter 116
.....................................................................................................
23
Tex. Health & Safety Code, Ch. 382
...............................................................................23
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1
NOTICE OF MOTION TO INTERVENE
TO PLAINTIFFS SIERRA CLUB and NATURAL RESOURCES DEFENSE
COUNCIL
and DEFENDANT REGINA McCARTHY AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on November 7, 2013 at 11:00 a.m., or as
soon thereafter
as the matter may be heard in Courtroom 4, 3rd Floor, of the
Oakland Courthouse, located at
1301 Clay Street, Oakland, California 94612, the Proposed
Plaintiff Intervenors will bring for
hearing a motion to intervene in this action.
Pursuant to Federal Rules of Civil Procedure 24(a) and (b),
Civil Local Rule 7-1(a)(1),
and for the reasons set forth in the following memorandum of
points and authorities and the facts
set forth in the supporting Declaration of Terry OClair, the
Declaration of Eric C, Massey, the
Affidavit of Sean Alteri, the Affidavit and Declaration of
Sanford Phillips, the Affidavit and
Declaration of Jasmine K. Mehta, and the Affidavit and
Declaration of Steve Hagle, P.E., the
State of North Dakota, the State of Arizona, the Commonwealth of
Kentucky Energy and
Environment Cabinet, the State of Louisiana Department of
Environmental Quality, the State of
Nevada and the State of Texas, move to intervene as of right in
this case or, alternatively,
permissively. Pursuant to Civil L.R. 7-1(b), Movants
respectfully request that the Court grant
this motion without oral argument.
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MEMORANDUM OF POINTS AND AUTHORITIES
ISSUE TO BE DECIDED
This memorandum addresses whether the State of North Dakota, the
State of Arizona, the
Commonwealth of Kentucky Energy and Environment Cabinet, the
State of Louisiana
Department of Environmental Quality, the State of Nevada and the
State of Texas (the
Intervening States) are entitled to intervene as of right in
this action under Fed. R. Civ. P.
24(a) or, in the alternative, should be granted permissive
intervention under Fed. R. Civ. P.
24(b).
STATEMENT OF RELEVANT FACTS
I. Legal and Factual Background
On August 26, 2013, Plaintiffs Sierra Club and Natural Resources
Defense Council,
(hereafter collectively Plaintiffs) filed a complaint alleging
that the United States
Environmental Protection Agency and its Administrator (hereafter
collectively EPA,
Agency, or Defendant) have failed to promulgate and publish
designations identifying all
areas of the country as (1) attainment, (2) nonattainment, or
(3) unclassifiable for the
revised sulfur dioxide (SO2) national ambient air quality
standard (NAAQS), within three
years from the date that the SO2 NAAQS was promulgated. CAA
307(d)(1)(B)(i), 42 U.S.C.
7407(d)(1)(B)(i) (2013). Compl. 1, 32. Plaintiffs further allege
that the Administrators failure
to take such action constitutes a failure to perform an act or
duty that is not discretionary within
the meaning of sections 109(d)(1) and 304(a)(2) of the Clean Air
Act (CAA or Act), 42
U.S.C. 7409(d)(1) and 7604(a)(2) (2013). Compl. 1, 15, 37.
EPA promulgates NAAQS for certain air pollutants. CAA 109(a)
& (b), 42 U.S.C.
7409(a) & (b) (2013). 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.
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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
information 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). EPA must then publish
final designations of all areas
as attainment, nonattainment, or unclassifiable.
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.
In promulgating the designations submitted by each governor
under CAA 107(d)(1)(A), 42
U.S.C. 7407(d)(1)(A), EPAs Administrator may make such
modifications as are deemed
necessary, CAA 107(d)(1)(B)(ii), 42 U.S.C. 7407(d)(1)(B)(ii). If
the governor of a State
fails to submit the list of required designations, CAA
107(d)(1)(B)(ii), 42 U.S.C.
7407(d)(1)(B)(ii), then the Administrator (as part of the action
required by CAA
107(d)(1)(B)(i), 42 U.S.C. 7407(d)(1)(B)(i)) is to promulgate
designations for any area (or
portion thereof) not designated by the State. CAA
107(d)(1)(B)(ii), 42 U.S.C.
7407(d)(1)(B)(ii). 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
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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).
On June 22, 2010, EPA promulgated an ambient standard
establishing a 1-hour limit on
ambient SO2 concentrations throughout the country. 75 Fed. Reg.
35520 (June 22, 2010). In the
more than three years that have passed since the 1-hour SO2
NAAQS was promulgated and took
effect, EPA has promulgated designations of only 29 areas within
the entire country. 78 Fed.
Reg. 47191 (Aug. 5, 2013). The Agency has failed to designate
any other parts of the country as
attainment, nonattainment, or unclassifiable.
II. Description of Proposed Plaintiffs-Intervenors A. North
Dakota
The State of North Dakota, through the North Dakota Department
of Health (NDDH),
implements and enforces the States various environmental
regulatory programs, including 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. Exhibit A, 2. 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 in nonattainment
areas, is the nonattainment new
source review (NNSR) program. CAA 171-179, 42 U.S.C.
7501-7509.
B. Arizona
The Arizona Department of Environmental Quality (ADEQ) is the
State agency
charged with implementing and enforcing State and federal air
quality statutes and regulations;
including NAAQS for pollutants such as SO2. Exhibit B, at 2, 3.
The Division also implements
programs for the issuance of PSD and NNSR permits to those
seeking to locate new sources in
the State or expand existing sources in the State.
///
///
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C. Kentucky
The Commonwealth of Kentucky Energy and Environment Cabinet,
Division for Air
Quality (Division) is the State agency charged with implementing
and enforcing State and
federal air quality statutes and regulations; including NAAQS
for pollutants such as SO2. Exhibit
C, at 3. Since 1989, Kentuckys Division has administered a New
Source Review (NSR)
permitting program that EPA approved into the Kentucky State
Implementation Plan (SIP).
54 Fed. Reg. 36307 (Sept. 1, 1989). Because the NSR program is a
SIP approved program, the
Division is obligated to ensure that the increase in emissions
resulting from a NSR project does
not cause or contribute to a violation of the NAAQS, including
the revised SO2 standard. CAA
165, 42 U.S.C. 7475 (2013). The Division requires any new major
stationary source (or major
modifications at an existing stationary source) locating in an
area designated attainment or
unclassifiable to comply with PSD requirements. 401 KAR 51:017.
To locate in those areas
designated as nonattainment in the Commonwealth, major sources
or major modifications are
subject to the NNSR requirements. 401 KAR 51:052.
D. Louisiana
The Louisiana Department of Environmental Quality (LDEQ) is the
agency created by
the States Legislature as the primary agency in the state
concerned with environmental
protection and regulation, La. R.S. 30:2011.A.(1). The LDEQ
implements and enforces the
States various environmental regulatory programs, including CAA
programs to implement new
and revised NAAQS and programs for the issuance of PSD and NNSR
permits to those seeking
to locate new sources in the State or expand existing sources in
the State. Exhibit D, at 2
E. Nevada
The State of Nevada, through its Department of Conservation and
Natural Resources,
Division of Environmental Protection (NDEP) implements and
enforces the States various
environmental regulatory programs. Exhibit E, at 2.
Specifically, the NDEP oversees the States
permitting programs for stationary sources under Titles I and V
of the federal CAA, which
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includes the requirement that Nevada submit a SIP specifying the
manner in which it will
achieve and maintain the SO2 NAAQS. Id., CAA 107(a), 42 U.S.C.
7407(a).
F. Texas
The Texas Commission of Environmental Quality (TCEQ) is the
environmental
agency for the State of Texas. Exhibit F, 2. The Office of Air
of the TCEQ oversees all TCEQ
air permitting activities, and develops and implements plans in
coordination with other staff with
the TCEQ to protect and restore air quality in cooperation with
local, regional, state and federal
stakeholders. Id. The TCEQ implements and enforces the States
various environmental
regulatory programs, including CAA programs to implement new and
revised NAAQS and
programs for the issuance of PSD and NNSR permits to those
seeking to locate new sources in
the State or expand existing sources in the State.
G. Combined Interests Of The Intervenor States.
As discussed in more detail below, if EPA, relying upon data
timely-submitted by the
States, had within three years of NAAQS promulgation designated
those portions of North
Dakota, Arizona, Kentucky, Louisiana, Nevada and Texas as
attainment or nonattainment with
the 1-hour SO2 NAAQS in accordance with monitoring and emission
data (and unclassifiable for
those areas without sufficient information), then the
Intervening States would now know that
their individual regulatory programs for SO2 are adequate; that
they need not devote substantial
resources to evaluating or revising their programs; and that
they may continue to issue
preconstruction permits under the CAAs PSD program rather than
the Acts more burdensome
NNSR program. In the absence of such timely action by EPA, the
Intervening States have no
such certainty. In addition, the Intervening States face the
prospect that in resolving this lawsuit,
EPA will peremptorily change the rules of the road for the NAAQS
designation and
implementation processes. That could unfairly disadvantage the
Intervening States without their
ever having had a meaningful chance to participate in the
litigation in this Court.
///
///
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III. Other Pending Litigation Against EPA.
In addition to trying to prevent such a result by moving to
intervene in the pending action
in this Court, North Dakota, Nevada and Texas have taken other
steps to try to force EPA to take
the action mandated by CAA 107(d), 42 U.S.C. 7407(d), i.e., to
designate areas of the
country as attaining or not attaining the SO2 NAAQS.
Specifically, on September 12, 2013,
North Dakota, Nevada and Texas joined by the State of South
Dakota filed suit in the United
States District Court for the District of North Dakota2 to
compel EPA to designate areas of the
country as attaining the SO2 NAAQS, as not attaining the SO2
NAAQS, or as being
unclassifiable. The suit was filed more than 60-days after these
States provided the Administrator
with written notice, in the form and manner required by CAA
304(b), 42 U.S.C. 7604(b) and
under 40 C.F.R. 54.2, 54.3, of the Administrators failure to
perform nondiscretionary duties
under the Act as complained in their suit. In their suit against
EPA, these States ask the District
Court in North Dakota to declare that EPA is in violation of the
CAA with regard to its failure to
timely perform its mandatory duty to promulgate and publish
designations identifying all areas
of the country as attainment, nonattainment or unclassifiable
and to issue a mandatory injunction
requiring EPA to perform its mandatory duties by a date certain
forthwith.
ARGUMENT
I. The Intervening States Are Entitled To Intervention As A
Matter Of Right.
The Intervening States satisfy all of the requirements for
intervention as of right under
Federal Rule of Civil Procedure 24(a)(2). The Ninth Circuit has
described these requirements as
follows: (1) the intervention application is timely; (2) the
applicant has a significant protectable
interest relating to the property or transaction that is the
subject of the action; (3) the disposition
of the action may, as a practical matter, impair or impede the
applicants ability to protect its
interest; and (4) the existing parties may not adequately
represent the applicants interest.
Citizens for Balanced Use v. Mont. Wilderness Assn, 647 F.3d
893, 897 (9th Cir. 2011). These
2 State of North Dakota et al v. McCarthy,1:13-cv-00109-CSM
(D.N.D. Sep. 12, 2013)
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requirements must be broadly interpreted in favor of
intervention, and the Courts review is
guided primarily by practical considerations, not technical
distinctions. Id.; see also
Wilderness Socy v. U.S. Forest Serv., 630 F.3d 1173, 1179 (9th
Cir. 2011) (Ninth Circuit
construes intervention requirements broadly to support its
liberal policy in favor . . . [of] both
efficient resolution of issues and broadened access to the
courts.) (internal quotation marks
omitted). The central purpose of Fed. R. Civ. P. 24 is to allow
intervention by those who might
be practically disadvantaged by a cases disposition. Kleissler
v. U.S. Forest Serv., 157 F.3d
964, 970 (3rd Cir. 1998). Rule 24(a)(2) traditionally receives
liberal construction in favor of
applicants for intervention. Arakaki v. Cayetano, 324 F.3d 1078,
1083 (9th Cir. 2003); Donnelly
v. Glickman,159 F.3d 405, 409 (9th Cir. 1998). The Ninth Circuit
has instructed that intervention
should be granted so long as the moving papers state the legal
and factual grounds for
intervention. Beckman Indus., Inc. v. Intl Ins. Co.,966 F.2d
470, 474 (9th Cir. 1992). As
demonstrated below, the Intervening States satisfy all
requirements of Rule 24(a), and are
therefore entitled to intervene in this action as of right.
A. The Intervening States Intervention Is Timely.
The Intervening States application for intervention is timely.
The timeliness of a motion
to intervene is in the courts discretion and is to be determined
from all the circumstances.
NAACP v. New York, 413 U.S. 345, 366 (1973). The Ninth Circuit
considers three criteria in
assessing timeliness: (1) the stage of the proceedings; (2)
whether the parties would be
prejudiced; and (3) the reason for any delay in moving to
intervene. Nw. Forest Res. Council v.
Glickman, 82 F.3d 825, 836-37 (9th Cir. 1996).
The Intervening States are filing this motion only one month
after the Plaintiffs filed their
complaint and before Defendants answer or any other substantive
pleading or motion has been
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submitted in this case. See Citizens for Balanced Use, 647 F.3d
at 897 (motion to intervene filed
less than three months after complaint and after defendants
filed answer was timely). The
existing parties have yet to complete their preliminary
discussions: the Courts Order of August
26, 2013 establishes a deadline of November 5, 2013, for the
parties to meet and confer, and it
schedules an initial case management conference for November 26,
2013. Order August 26,
2013, Doc No. 8. Accordingly, there has been no delay by the
States that would weigh against
intervention. See Nw. Forest Res. Council, 82 F.3d at 837 (no
intervenor delay where no
substantive proceedings had yet taken place). Allowing
intervention at this early stage in the
proceedings will not delay this action or otherwise prejudice
the parties, since there will be no
need to reopen or re-litigate any prior proceedings between the
parties. Therefore, the States
motion is timely.
B. The Intervening States Have Significant Legally Cognizable
Interests That Are Affected By This Litigation.
The Intervening States have a significant protectable interest
in preserving their ability
to adequately and effectively participate in any settlement that
results from this litigation. A
proposed intervenor has a significant protectable interest
justifying intervention as of right if
(1) the interest is protectable under some law and (2) there is
a relationship between the
legally protected interest and the claims at issue. Citizens for
Balanced Use, 647 F.3d at 897.
The interest test is not a clear-cut or bright-line rule,
because [n]o specific legal or equitable
interest need be established. United States v. City of Los
Angeles, 288 F.3d 391, 398 (9th Cir.
2002) (quoting Greene v. United States, 996 F.2d 973, 976 (9th
Cir. 1993)). The relationship
requirement is met if the resolution of the plaintiffs claims
actually will affect the intervenor. Id.
The requisite interest need not be direct as long as it may be
impaired by the outcome of the
litigation. Cal. Dump Truck Owners Assn v. Nichols, 275 F.R.D.
303, 306 (E.D. Cal. 2011)
(citing Cascade Natural Gas Corp. v. El Paso Natural Gas Co.,
386 U.S. 129, 135-36 (1967)).
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Courts are required to make a practical, threshold inquiry to
discern whether allowing
intervention would be compatible with efficiency and due
process. City of Los Angeles, 288
F.3d at 398. By allowing parties with a practical interest in
the outcome of a particular case to
intervene, we often prevent or simplify future litigation
involving related issues; at the same
time, we allow an additional interested party to express its
views before the court. Id. (internal
quotation marks omitted).
The Intervening States are suffering concrete and particularized
injuries because of the
Administrators failure to promulgate and publish SO2 NAAQS
designations identifying areas in
the Intervening States as attainment, nonattainment or
unclassifiable. Moreover, the resolution of
Plaintiffs claims in the pending suit can adversely affect the
Intervening States.
1. North Dakota Has Significant Legally Cognizable Interests
That Are Affected By This Litigation.
The very real injuries faced by North Dakota are a direct result
of the role that it plays in
CAA implementation generally and in the SO2 NAAQS implementation
process in particular. As
part of its efforts to implement and enforce the CAA, North
Dakota has for decades been
aggressive in achieving the first stated purpose of the Act: to
protect and enhance the quality of
the Nations air resources so as to protect the public health and
welfare and the productive
capacity of its population. CAA 110(b)(1), 42 U.S.C. 7410(b)(1).
North Dakota early on
recognized that if it took meaningful steps to ensure attainment
and maintenance of the NAAQS,
that would make it easier for new businesses to locate and grow
within the State, thus enhancing
North Dakotas productive capacity. In particular, North Dakota
recognized that if the whole
State is designated as being in attainment with the national
ambient air quality standards, then
not only is the public health and welfare protected, but also it
is easier for businesses to get
permits to construct and operate new and modified sources. For
example, the PSD
preconstruction permitting requirements (CAA 165, 42 U.S.C.
7475) which govern the
location of new sources and expansion or existing sources in
attainment areas can be
significantly less onerous than the NNSR preconstruction
permitting requirements (CAA 173,
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42 U.S.C. 7503) that apply to sources proposing to locate or
expand in nonattainment areas.
See e.g. New York v. U.S. E.P.A., 413 F.3d 3, 13 (D.C. Cir.
2005)(sources seeking NNSR
permits must meet stricter requirements than sources seeking PSD
permits). North Dakotas
permitting regulations do not take into account permitting
actions in nonattainment areas since
there are no nonattainment areas in the State. ND Admin. Code
Chapter 33-15-14. Were EPA to
designate an area or areas in North Dakota as nonattainment,
North Dakota would have to
promulgate regulations for nonattainment areas.
For the past 25 years, North Dakota has taken extraordinary
efforts to ensure that it meets
and will continue to meet the NAAQS. For example, the State,
through the NDDH, has
undertaken measures like the following to ensure that air
quality in the State meets the SO2
NAAQS.
a. North Dakota adopted State Ambient Air Quality Standards
(SAAQS) for SO2 that
were more stringent than the NAAQS. North Dakotas SAAQS included
a 1-hour
standard long before EPA adopted a 1-hour standard. When EPA
adopted its 1-hour SO2
standard, North Dakota revised its SAAQS to be the same as the
NAAQS. N.D. Admin.
Code 33-15-02 (2010). Exhibit A at 8(a).
b. North Dakota requires minor new source review for SO2 sources
as well as other types of
sources. N.D. Admin. Code 33-15-14-02. Id. at 8(b).
c. North Dakota implemented a Permit to Operate program for SO2
(and other) sources
prior to the implementation of Title V of the CAA. In addition
to the Permit to Operate
program, North Dakota still maintains a Federally Enforceable
State Operating Permit
(FESOP) program for minor sources (including SO2 sources) as
well as the Title V
program. N.D. Admin. Code 33-15-14-03. Id. at 8(c).
d. North Dakota required industrial sources to monitor SO2
emissions from emission stacks
using continuous emissions monitors prior to the existence of
federal requirements for
such monitors (e.g. natural gas processing plants). See e.g.
NDDH Permits to Operate
T5O81013, T5O82002 and T5F96007. Id. at 8(d).
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e. North Dakota required industry to monitor ambient SO2
concentrations around their
facilities by establishing ambient monitoring sites. See e.g.
NDDH Permits to Operate
T5O82002, T5O83005 and T5F96007; and NDDH Permit to Construct
07026. Id. at
8(e).
f. On February 9, 1976, North Dakota adopted the PSD program as
part of its SIP shortly
after EPA established the regulatory program. Id. at 8(f).
g. North Dakota established as part of its federally approved
SIP, SO2 limits,
monitoring/recordkeeping and reporting requirements for sources.
N.D. Admin. Code 33-
15-06. Id. at 8(g).
In addition North Dakota has established an extensive SO2
monitoring network that
enables it to track ambient SO2 concentrations in those portions
of the State where it seeks to
increase development. The network includes eight monitoring
sites operated by the State, of
which the State sited seven of the monitors and the National
Parks Service one. Id. at 3. The
State also collects data from eight industry-operated source
specific air quality monitoring sites.
Id. at 3. With data from that network of sixteen monitors3 many
of which were located with
guidance from EPA (Id. at 3) the NDDH has been able to identify
whether any areas within
the State have exceeded the SO2 NAAQS previously on the books
and promptly to address any
such SO2 exceedances.
Also, with the data from its extensive monitoring network, North
Dakota was able to
timely assess whether air quality within the State was attaining
or failing to attain the 1-hour SO2
NAAQS that EPA adopted in June 2010. In particular, based upon
the extensive data obtained
from its monitoring network, North Dakota, on May 25, 2011,
recommended [to EPA] that the
entire State of North Dakota be designated as attainment for the
new 1-hour SO2 standard.
Exhibit G at 2.
3 A seventeenth monitor is sited at the Spiritwood Station and
will begin operation when the Station goes on-line sometime in
2015. Exhibit A at 3.
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In making that May 25, 2011 submission to EPA, North Dakota
complied with its duties
under CAA 107(d)(1)(A), 42 U.S.C. 7407(d)(1)(A). In the more
than two years since then,
however, EPA has failed to act on North Dakotas timely
submittal.
2. Arizona Has Significant Legally Cognizable Interests That Are
Affected By This Litigation.
The Arizona Legislature has placed primary responsibility for
air pollution control and
abatement in the ADEQ. The Air Quality Division of ADEQ is
responsible for implementing and
enforcing new and revised NAAQS. On May 25, 2011, Arizona timely
fulfilled its obligations
under CAA 107(d)(1)(A), 42 U.S.C. 7407(d)(1)(A) when Arizona
Governor Janice Brewer
submitted to EPA the initial designations for Arizona for the
revised SO2 NAAQS. Governor
Brewer recommended that the Hayden and Miami Sulfur Dioxide
Planning Areas be designated
nonattainment and the rest of the State be designated
unclassifiable, with the exception of Indian
Country, as defined by 18 U.S.C. 1151, over which Arizona does
not have jurisdiction. Exhibit
H. On July 25, 2013, EPA took final action pursuant to CAA
107(d)(1)(B)(i), 42 U.S.C.
7407(d)(1)(B)(i) by designating the Hayden and Miami Sulfur
Dioxide Planning Areas as
nonattainment for the revised sulfur dioxide NAAQS. 78 Fed. Reg.
47197, 47198. EPA has not
yet acted on Arizonas recommendation that the other (non-Indian
Country) areas of the State be
designated as unclassifiable under the sulfur dioxide NAAQS.
In its response to comments on the proposed designations for
Arizona and other areas of
the country, EPA noted that the current SO2 monitoring network
provides relatively limited
geographic coverage, and many monitors in the existing network
are not sited with the objective
of characterizing source-oriented maximum concentrations.
Responses to Significant
Comments on the State and Tribal Designation Recommendations for
the 2010 Sulfur Dioxide
National Ambient Air Quality Standards (NAAQS), Docket Number
EPA-HQ-OAR-2012-0233,
July 2013 at p. 6.4 EPA further stated that it:
4
http://www.epa.gov/airquality/sulfurdioxide/designations/pdfs/20130725rtc.pdf
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is not yet prepared to respond to state and tribal area
designation recommendations, or seek public input thereon, for
areas other than those with monitored violations of the 2010 SO2
NAAQS addressed in the February 15, 2013 notice. EPA intends to
address the remaining areas in the country, including those areas
for which there is currently no SO2 air monitoring data, in a
subsequent round or multiple rounds of responses and designations
once additional data are gathered. Id.
Arizona is concerned that should EPA continue to delay taking
action on the States
recommended designations and wait until additional monitoring or
other data regarding
attainment status for areas in Arizona becomes available, EPA
will use that new data to issue
responses which modify the States original recommended
designations. This process would
be contrary to the process set forth in the CAA. When Congress
enacted the CAA, it accounted
for the fact that a State might not have enough information
available within one year of the
promulgation of a new or revised NAAQS to recommend designation
as attainment or non-
attainment. A third designation is available for a State to use
in its boundary recommendations to
EPA. Pursuant to CAA 107(d)(1)(A)(iii), 42 U.S.C.
7407(d)(1)(A)(iii), the unclassifiable
designation is for any area that cannot be classified on the
basis of available information as
meeting or not meeting the national primary or secondary ambient
air quality standard for the
pollutant. Should EPA promulgate an initial designation of an
area as unclassifiable, Congress
has provided EPA the authority, once sufficient information
becomes available, to redesignate
the area to attainment or nonattainment. Under CAA 107(d)(3), 42
U.S.C. 7407(d)(3), EPA is
required to notify the Governor that the designation for an area
should be revised. CAA
107(d)(3)(A), 42 U.S.C. 7407(d)(3)(A). The Governor then has 120
days to submit to the
Administrator such redesignation as the Governor considers
appropriate. CAA
107(d)(3)(B), 42 U.S.C. 7407(d)(3)(B).
As in the case of initial designations, the Governor rather than
EPA has the first
opportunity to identify the appropriate areas for redesignation.
Had EPA met its nondiscretionary
deadline and designated all areas of Arizona as the State
recommended, EPA would have to
comply with the redesignation provisions of the CAA in order to
modify the designation of any
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area in Arizona. EPAs failure to comply with its
nondiscretionary duty under the CAA to
designate all areas of Arizona within three years of
promulgating the revised SO2 NAAQS
deprives Arizona of its legal right to the redesignation process
at this time. The effect of this is
that Arizona is limited to commenting on EPAs modifications to
Arizonas initial designation
recommendations, depriving Arizona of its right to make an
initial redesignation
recommendation on the basis of any new data that may become
available.
On August 20, 2013, Arizona submitted to the EPA Administrator a
60-day Notice of
Intent to Sue, pursuant to CAA 304(b), 42 U.S.C. 7604(b) and 40
C.F.R. 54.3, for EPAs
failure to designate all areas in Arizona within three years of
the promulgation of the revised
sulfur dioxide NAAQS, as required by CAA, 107(d)(1)(B)(i),42
U.S.C. 7407(d)(1)(B)(i).
3. Kentucky Has Significant Legally Cognizable Interests That
Are Affected By This Litigation.
Kentucky, through the Division, has for decades successfully
worked to enhance the
quality of the States air resources. The Division takes specific
regulatory actions to ensure
attainment and maintenance of the NAAQS. Exhibit C at 5. The
Division has done this so as to
ensure the health and safety of its population and also to make
it easier for new businesses to
locate and grow within the State.
In a letter dated June 2, 2011, the Commonwealth submitted to
EPA its recommended
designations for the 1-hour SO2 NAAQS. Exhibit I. Specifically,
the Commonwealth
recommended that 119 counties in the Commonwealth be designated
as attainment/unclassifiable
and one county be designated as nonattainment. Exhibit I at
Attachment 2. These recommended
designations were based upon 1-hour SO2 ambient air monitoring
data from eleven (11)
monitoring sites located throughout the Commonwealth.
In making that June 2, 2011 submission to EPA, Kentucky complied
with its duties under
CAA 107(d)(1)(A), 107(d)(1)(A). In the more than two years since
then, however, EPA has
failed to act on a majority of Kentuckys designations. In EPAs
August 5, 2013 SO2 NAAQS
designations for only 29 areas within the United States, the
Agency designated two counties in
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Kentucky as nonattainment, but took no action on the remaining
118 counties within Kentucky.
78 Fed. Reg. 47200. As a result of EPAs failure to act on
designations for 118 out of 120
counties in Kentucky, the Commonwealth unnecessarily faces great
uncertainty and potentially
greater regulatory burdens in implementing the 1-hour SO2
NAAQS.
4. Louisiana Has Significant Legally Cognizable Interests That
Are Affected By This Litigation.
Louisiana, through the LDEQ, has for decades successfully worked
to enhance the
quality of the States air resources. LDEQ has taken specific
regulatory actions to ensure
attainment and maintenance of the NAAQS. LDEQ has done this so
as to ensure the health and
safety of its population and also to make it easier for new
businesses to locate and grow within
the State. The State, through the LDEQ, has undertaken measures
like the following to ensure
that air quality in the State meets the SO2 NAAQS.
a. Louisiana requires minor new source review for SO2 sources as
well as other types of
sources. LAC 33:III.Chapter 5. Exhibit D at 11(a).
b. The LDEQ has both PSD (LAC 33:III.509) and NNSR
preconstruction review as
required by the CAA. The EPA has delegated these programs to the
LDEQ pursuant to
the CAA. Id. at 11(b).
c. LDEQ has promulgated emissions limitations applicable to SO2
emissions. (LAC
33:III.Chapter 15). Id. at 11(c).
In addition, Louisiana has also established an extensive SO2
monitoring network that
enables it to track ambient SO2 concentrations in those portions
of the State where it seeks to
increase development. The network included seven monitoring
sites in six parishes operated by
the LDEQ (one monitor has been eliminated). Exhibit D at 3. With
data from that network of
seven monitors, the LDEQ was able to identify whether any areas
within the State exceeded the
SO2 NAAQS previously on the books and promptly to address any
such SO2 exceedances. Also,
with the data from its extensive monitoring network, Louisiana
was able to timely assess whether
air quality within the State was attaining or failing to attain
the 1-hour SO2 NAAQS that EPA
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adopted in June 2010. In particular, based upon the extensive
data obtained from its monitoring
network and using reports from the Annual Emissions Inventory
(AEI), Louisiana, on May 26,
2011, made is SO2 designations recommendations for its 64
parishes to EPA. Exhibit D at Ex. 1.
Specifically, Louisiana recommended to EPA that the parishes of
West Baton Rouge5 and St.
Bernard be designated as nonattainment, that 42 parishes be
designated as attainment and that 20
parishes be designated as unclassifiable. Exhibit D at Ex. 1 at
p.1. The nonattainment and
attainment designations for these 44 parishes were based upon
monitoring data obtained from the
LDEQs SO2 monitoring network and the AEI. Exhibit D 7. The 20
parishes that Louisiana
recommended be designated as unclassifiable had no monitoring or
other data upon which to
base other designation classifications. Id. at 8.
In making that May 26, 2011 submission to EPA, Louisiana
complied with its duties
under CAA 107(d)(1)(A), 42 U.S.C. 7407(d)(1)(A) . In the more
than two years since then,
however, EPA has failed to act on a majority of Louisianas
designations. In EPAs August 5,
2013 SO2 NAAQS designations for only 29 areas within the United
States, the Agency
designated St. Bernard parish as nonattainment, but took no
action on the remaining 63 parishes
within Louisiana. 78 Fed. Reg. 47191, 47200. As a result of EPAs
failure to act on designations
for 63 out of 64 parishes in Louisiana, Louisiana unnecessarily
faces great uncertainty and
potentially greater regulatory burdens in implementing the
1-hour SO2 NAAQS.
5. Nevada Has Significant Legally Cognizable Interests That Are
Affected By This Litigation.
The very real injuries faced by Nevada are a direct result of
the role that Nevada plays in
CAA implementation generally and in the SO2 NAAQS implementation
process in particular.
Nevada has taken specific regulatory actions to ensure
attainment and maintenance of the
NAAQS. Nevada performs these implementations under the premise
of cooperative federalism
embodied in the CAA to ensure the health and safety of its
population and ensure healthy
5 Subsequent data reviewed and submitted to EPA by the LDEQ
demonstrated West Baton Rouge parish is in compliance with the
1-hour SO2 NAAQS. Exhibit D at 6 n.1.
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ecosystems while contributing to a vibrant economy within the
state of Nevada. Nevada, through
the NDEP, has undertaken measures like the following to ensure
that air quality in the State
meets the SO2 NAAQS.
a. Nevada requires minor new source review, including an
environmental evaluation and
modeling, for SO2 sources as well as other types of sources.
Nevada Administrative Code
(NAC) 445B.22097; NAC 445B.308. See also Exhibit E at 8(a).
b. Nevada implemented a permitting program for SO2 (and other)
sources prior to the
implementation of Title V of the CAA in 1990. Nevada Air Quality
Regulations, Articles
12 and 13 (1974). See also Exhibit E at 8(b).
c. Nevada operates an increment tracking system for SO2 and
other criteria pollutants to
determine whether sources in certain air basins will interfere
with attainment and
maintenance of the NAAQS. Exhibit E at 8(c).
d. Nevada requires industrial sources to monitor SO2 emissions
from emission stacks using
continuous emissions monitors, as well as to monitor ambient SO2
concentrations around
their facilities by establishing ambient monitoring sites.
Exhibit E at 8(d).
e. Nevada has a federally delegated PSD program. Exhibit E at
8(e).
f. As part of the delegated PSD program, Nevada has SO2 limits,
monitoring/recordkeeping
and reporting requirements for sources. 40 C.F.R 52.21. See also
Exhibit E at 8(f).
The NDEP operates an ambient and meteorological monitoring
network in 15 of 17
counties in Nevada, where it has jurisdiction. Exhibit E at 3.
The NDEP does not have
jurisdiction in the most populous counties of Washoe and Clark,
which have their own air quality
management programs. Id. The remainder of the State is primarily
rural and does not meet the
SO2 monitoring site requirements set forth in 40 C.F.R Part 58.
Id. Nonetheless, various NDEP-
permitted PSD facilities operate source-specific SO2 air
monitors. Id.
On May 3, 2011, Nevada recommended to EPA that the entire State
of Nevada be
designated as unclassifiable for the SO2 NAAQS because
sufficient monitoring data were not
available to make an attainment or nonattainment designation.
Exhibit J at 1. The lack of
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monitoring data is due to the rural character of the State,
which does not meet the federal siting
criteria for SO2 monitors. Exhibit E at 5. Congress has
specifically provided a designation of
unclassifiable for those instances where sufficient information
is not available to make an
attainment or nonattainment designation. CAA 107(d)(1)(A)(iii),
42 U.S.C.
7407(d)(1)(A)(iii). Once sufficient information becomes
available, EPA may then redesignate
the area to attainment or nonattainment after providing notice
to the Governor that the
designation should be revised, along with the available
information that EPA has used to support
its redesignation. CAA 107(d)(3)(A), 42 U.S.C. 7407(d)(3)(A).
The Governor then has 120
days to submit to the Administrator such redesignation as the
Governor considers
appropriate. CAA 107(d)(3)(B), 42 U.S.C. 7407(d)(3)(B).
As in the case of initial designation, the Governor, rather than
EPA, has the first
opportunity to identify the appropriate areas for redesignation.
EPAs failure to meet its
nondiscretionary deadline to designate all areas of Nevada as
the State recommended not only
creates uncertainty regarding Nevadas obligations to protect and
enforce the NAAQS but
deprives Nevada of the statutorily mandated redesignation
process.
In making that May 3, 2011 submission to EPA that the entire
state be designated as
unclassifiable, Nevada complied with its duties under CAA
107(d)(1)(A), 42 U.S.C.
107(d)(1)(A). In the more than two years since then, however,
EPA has failed to act on Nevadas
timely submittal. Exhibit E at 7. As a result, Nevada
unnecessarily faces great uncertainty in
developing its SIP and potentially greater regulatory burdens in
implementing the 1-hour SO2
NAAQS. Furthermore, EPAs implementation documents propose to
treat unclassifiable areas as
if they are nonattainment areas. Such treatment would negatively
affect the ability of SO2-
emitting business and industry to locate in Nevada and would
negatively affect the NDEPs
ability to promote a vibrant economy while ensuring the
protection of public health and the
environment
///
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6. Texas Has Significant Legally Cognizable Interests That Are
Affected By This Litigation.
For the past 41 years, the State of Texas has applied and
enforced the NAAQS in Texas.
30 Texas Administrative Code (T.A.C.) Chapter 101, General Air
Quality Rules. Texas has
implemented and enforced independent requirements for SO2 since
1968. 30 T.A.C. Chapter
112, Control of Air Pollution from Sulfur Compounds. For
example, Texas implements and
enforces the NSR requirements of the CAA, including PSD,
nonattainment, and minor new
source review. Tex. Health & Safety Code, Ch. 382, and 30
T.A.C. Chapter 116, Control of Air
Pollution for New Construction or Modification.
Texas has established an extensive SO2 ambient air quality
monitoring network that
enables it to track ambient SO2 concentrations throughout the
State. Exhibit F at 4. This
network is approved by EPA in accordance with the requirements
of 40 C.F.R. Part 58, and data
from the ambient air quality monitors is reported by TCEQ to
EPA. Id. Texass monitoring
network currently includes 27 ambient air quality monitoring
sites that are approved federal
reference method monitors. Id. With data from Texass monitoring
network, the TCEQ has been
able to identify whether any areas within the State have
exceeded the SO2 NAAQS and promptly
address any such SO2 exceedances. In addition to the EPA
approved SO2 monitoring network in
Texas, there are 13 SO2 ambient air quality monitors that may
not be comparable to the federal
reference method monitors that comprise the EPA approved SO2
monitoring network in Texas.
Id. at 5.
With the data from its monitoring network, Texas was timely able
to assess whether air
quality within the State was attaining or failing to attain the
1-hour SO2 NAAQS that EPA
adopted in June 2010 and that is the subject of this pending
lawsuit. Based upon the data from its
monitoring network, Texas originally, on June 2, 2011,
recommended that EPA designate one
county as nonattainment, nine counties attainment, and the rest
of the State as
unclassifiable. Exhibit K. On April 20, 2012, Texas submitted a
revised designation
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recommendation reflecting more recent monitoring data to
updating the one county originally
recommended as nonattainment to attainment. Id. at 8.
In making that June 2, 2011, submission to EPA, Texas complied
with its duties under
CAA 107(d)(1)(A), 42 U.S.C. 7407(d)(1)(A). In the years since
then, however, EPA has
failed to act on Texass timely submittal. As a result, Texas
unnecessarily faces great uncertainty
and potentially greater regulatory burdens in implementing the
1-hour SO2 NAAQS and meeting
its state implementation plan obligations under the CAA.
C. The Intervening States Face Great Regulatory And Economic
Uncertainty As A Result Of EPAs Failure.
As a result of EPAs failure, the Intervening States
unnecessarily face great uncertainty
and potentially greater regulatory burdens in implementing the
1-hour SO2 NAAQS. In
particular, if EPA had within three years of NAAQS promulgation
relied upon the timely-
submitted monitoring data from each of the Intervening States to
designate all portions of the
Intervening States as was recommended, then Intervening States
would now know that their
State regulatory programs for SO2 are adequate, and that they
need not devote substantial
resources to evaluating or revising their programs, and that
they may continue to issue PSD
preconstruction permits to well-regulated sources wishing to
locate or expand in their States. In
the absence of such timely action by EPA, the Intervening States
face the prospect of having to
devote significant resources to revising their NAAQS
implementation program.
The Intervening States individual preconstruction permitting
programs could be
disrupted by any uncertainty surrounding the attainment status
of areas in their States in which
economic development is being encouraged. In particular, there
could be great regulatory
disruption and economic uncertainty for the States if EPA and
Plaintiffs in their efforts to
resolve the pending lawsuit in this Court peremptorily and
without benefit of prior notice-and-
comment rulemaking, change the rules of the road for making
NAAQS designations and
developing SIPs for improving air quality in parts of the
country that are not designated as
attaining the 1-hour SO2 NAAQS. That the parties might negotiate
such a settlement is not idle
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speculation by the States. This is something EPA previously
tried to do and might well have
succeeded in doing were it not for the efforts of North Dakota
and many other affected States.
Specifically, at the time of the SO2 NAAQS promulgation, the
Agency indicated that it
intended to deviate from the historical practice of having
States base their SO2 designations on
monitoring data and, instead, base those designations and NAAQS
compliance SIPs on a
combination of monitoring data and computer modeling
predictions. See 75 Fed. Reg. 35520,
35573 (June 22, 2010). EPA subsequently retreated from making
such changes in the designation
and SIP development rules of the road, but it did so only after
North Dakota and several other
States challenged such an approach in the United States Court of
Appeals for the District of
Columbia. See Nat'l Envtl. Dev. Ass'n's Clean Air Project v.
E.P.A., 686 F.3d 803, 805 (D.C. Cir.
2012). In that case, the petitioning States (including North
Dakota) argued that EPA could not
switch from a monitoring-based NAAQS implementation process to a
monitoring-plus-
modeling-based process without prior notice-and-comment
rulemaking. Less than one month
before oral argument in that case, EPA sent States individual
letters stating that EPA would no
longer expect States to develop computer-modeling-based NAAQS
implementation programs
except in addressing air quality in designated nonattainment
areas. Exhibits L-N April 2012
Letters at 2.
Having tried to unilaterally change the rules of the SO2 NAAQS
implementation road
several times before at the time it promulgated the 1-hour SO2
NAAQS in June 2010 and then
shortly before the May 2012 oral argument challenging such
action EPA could once again try
do so in the settlement negotiations that are now likely
underway between Plaintiffs and the
Agency in this litigation. Not yet being parties to this
litigation, the Intervening States are not a
party to the settlement talks that could lead to actions being
taken beyond a simple agreement by
EPA to promulgate SO2 NAAQS designations as expeditiously as
practicable. And that could
unfairly disadvantage the Intervening States without their ever
having had a meaningful chance
to participate in the litigation now pending in this Court.
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In short, the Intervening States have a significant protectable
interest in the terms of any
remedial order or settlement that might result from this case.
If Plaintiffs prevail on the
allegations set forth in their complaint, it will be incumbent
upon the Court to issue an order
establishing a reasonable schedule for EPA to complete its SO2
NAAQS designations. The
Intervening States want to ensure that any such order addresses
only the question of when EPA
must promulgate its SO2 NAAQS designations, not the methods that
EPA uses to arrive at those
designations. As such, it is imperative that the Intervening
States be granted intervention as of
right to protect their interests in this case.
D. The Disposition Of This Case Threatens To Impair Or Impede
The Intervening States Interests.
Intervention is appropriate where disposition of the case may as
a practical matter
impair or impede the ability of the intervenor to protect its
interests. See Donnelly, 159 F.3d at
409. In considering whether an applicants interests may be
impaired by an action, the Ninth
Circuit follows the guidance of the Rule 24 Advisory Committee
notes, which state: [i]f an
absentee would be substantially affected in a practical sense by
the determination made in an
action, he should, as a general rule, be entitled to intervene.
Sw. Center for Biological Diversity
v. Berg, 268 F.3d 810, 822 (9th Cir. 2001) (citation omitted).
Thus, both legal harms and
practical impediments should be considered.
An applicant for intervention is impaired if the resolution of
the plaintiffs claims
actually will affect the applicant. Arakaki, 324 F.3d at 1084.
As detailed above, the relief sought
by Plaintiffs will directly affect the Intervening States. As
discussed above, Plaintiffs claims and
requested relief threaten the sovereign interests of each of the
Intervening States, including their
delegated authority under the CAA to implement the NAAQS and
oversee the Acts
preconstruction permitting programs. Further, any settlement or
resolution of Plaintiffs claims
will direct when EPA must take action on the Intervening States
SO2 NAAQS attainment
designations. And the potential exists that a settlement of
Plaintiffs claims could extend beyond
directing EPA to act by a date certain on the Intervening States
attainment designations, and
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potentially dictate the means and methodologies used by EPA to
reach a decision on what those
designations are to be. Such a result would gravely affect the
Intervening States. As a partner
with EPA in the fight against air pollution, and as the primary
lead in air pollution control and
prevention, the Intervening States must be part of the dialogue
with EPA on when and how the
Agency addresses the Intervening States attainment designations.
CAA 101(a)(3), 42 U.S.C.
7401(a)(3). To exclude its partner from decisions that directly
affect how the Intervening States
are to proceed with implementing and enforcing the SO2 NAAQS is
contrary to the CAA. CAA
101(a)(3), 42 U.S.C. 7401(a)(3).
E. The Intervening States Interests Are Not Adequately
Represented By Existing Parties.
An applicants burden to prove inadequate representation by
existing parties is minimal.
It is sufficient to show that representation may be inadequate.
Arakaki, 324 F.3d at 1086. Indeed,
the United States Supreme Court has held this requirement of the
rule is satisfied if the
applicants show the representation of its interest may be
inadequate. Trbovich v. United Mine
Workers, 404 U.S. 528, 538 (1972). Courts consider three
factors: (1) whether the existing
parties will undoubtedly make all the intervenors proposed
arguments; (2) whether the parties
are capable and willing to make such arguments; and