Nucor Steel-Arkansas et al v. Pruitt

Cross MOTION for Summary Judgment

D.D.C.July 10, 2017

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NUCOR STEEL–ARKANSAS, and ) and NUCOR–YAMATO STEEL COMPANY, ) ) Plaintiffs, ) Civ. Case No. 14-CV-0199 (KBJ) ) v. ) ) SCOTT PRUITT, in his Official Capacity ) as Administrator, U.S. Environmental ) Protection Agency, ) ) Defendant. ) __________________________________________) EPA’S CROSS-MOTION FOR SUMMARY JUDGMENT Plaintiffs (jointly referred to as “Nucor”) have moved for summary judgment on their claim that the United States Environmental Protection Agency (“EPA”) failed to perform its nondiscretionary duty pursuant to the Clean Air Act (“CAA”), 42 U.S.C. § 7661d(b)(2), to respond within 60 days to an administrative petition asking EPA to object to a CAA title V permit issued to Big River Steel LLC (“Big River”) by the Arkansas Department of Environmental Quality (“ADEQ”). In its Motion for Summary Judgment, Nucor asks the Court to require EPA to respond to the petition within 20 days of the Court’s decision in this matter. EPA cross-moves for summary judgment dismissing this matter because Nucor has failed to introduce evidence required to establish standing at this phase of the litigation. In the alternative, EPA cross-moves for summary judgment with respect to remedy. EPA asks that the Court allow the Agency until October 31, 2017, to sign the response to Nucor’s petition. The reasons in support of this motion are set forth in the accompanying memorandum of law. Case 1:14-cv-00199-KBJ Document 68 Filed 07/10/17 Page 1 of 2 Respectfully submitted, JEFFREY H. WOOD Acting Assistant Attorney General /s/ Eileen T. McDonough Environmental Defense Section Environment & Natural Resources Division United States Department of Justice P.O. Box 7611 Washington, D.C. 20044 (202) 514-3126 Case 1:14-cv-00199-KBJ Document 68 Filed 07/10/17 Page 2 of 2 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NUCOR STEEL–ARKANSAS, and ) and NUCOR–YAMATO STEEL COMPANY, ) ) Plaintiffs, ) Civ. Case No. 14-CV-0199 (KBJ) ) v. ) ) SCOTT PRUITT, in his Official Capacity ) as Administrator, U.S. Environmental ) Protection Agency, ) ) Defendant. ) __________________________________________) EPA’S RESPONSE TO PLAINTIFFS’ STATEMENT OF MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND EPA’S STATEMENT OF MATERIAL FACTS IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT I. EPA’S RESPONSE TO PLAINTIFFS’ STATEMENT OF FACTS Scott Pruitt, Administrator of the United States Environmental Protection Agency, (“EPA”) does not dispute the material facts set forth in Plaintiffs’ Statement of Uncontested Material Facts (June 8, 2017), ECF 66-2. II. EPA’S STATEMENT OF MATERIAL FACTS IN SUPPORT OF CROSS- MOTION FOR SUMMARY JUDGMENT 1. EPA did not respond by the deadline in the Clean Air Act (“CAA”), 42 U.S.C. § 766ld(b)(2), to the petition submitted by Nucor Steel–Arkansas, and Nucor–Yamato Steel Company (jointly referred to as “Nucor”) requesting EPA to object to a permit issued by the Arkansas Department of Environmental Quality under Title V of the CAA for Big River Steel’s facility in Mississippi County, Arkansas. Declaration of Anna Marie Wood, the Director of the Case 1:14-cv-00199-KBJ Document 68-1 Filed 07/10/17 Page 1 of 3 2 Air Quality Policy Division within the Office of Air Quality Planning and Standards, Office of Air and Radiation (“OAR”) at EPA, ¶3 (June 28, 2017) (“Decl.”). 2. The administrative petition from Nucor raises complex issues. Id. ¶ 9. 3. Preparing a response to a complex petition requires the participation of a number of offices within EPA to ensure that the necessary expertise is available to address the issues raised and to ensure that the Agency maintains consistency in addressing issues raised in the different petitions. Id. ¶¶ 10-11. 4. EPA also works with the state agency involved so that EPA’s response will properly take into account the rules and requirements under state law. In addition, consultation with the state agency is useful if the Agency is granting a petition because EPA must provide instructions to that agency on how to remedy the flaw in the state permit or the state administrative record. Id. ¶ 11. 5. The draft response must be carefully reviewed by Agency management before it is presented to the Administrator for review and signature. Id. ¶ 12. 6. EPA usually requires approximately six months to respond to a complex petition, such as that filed by Nucor. Id. ¶ 9. 7. EPA is in the process of preparing responses to petitions filed by a number of parties, as well as the Nucor petition. Most importantly, EPA must complete a petition response due on July 31, 2017, under a settlement agreement in Center for Biological Diversity v. EPA, 4:16-cv-01946-SBA (N.D. Cal.), and a second response due on August 31, 2017, pursuant to a consent decree entered in Sierra Club v. McCarthy, 1:16-cv-01895 (D.D.C). Decl. ¶ 15. 8. In light of these competing obligations and the amount of work and coordination required to prepare a viable response to the Nucor petition, the most expeditious deadline by Case 1:14-cv-00199-KBJ Document 68-1 Filed 07/10/17 Page 2 of 3 3 which EPA can produce a sufficient response to the Nucor petition is October 31, 2017. Decl. ¶ 19. Respectfully submitted, JEFFREY H. WOOD Acting Assistant Attorney General /s/ Eileen T. McDonough Environmental Defense Section Environment & Natural Resources Division United States Department of Justice P.O. Box 7611 Washington, D.C. 20044 (202) 514-3126 Case 1:14-cv-00199-KBJ Document 68-1 Filed 07/10/17 Page 3 of 3 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NUCOR STEEL–ARKANSAS, and ) and NUCOR–YAMATO STEEL COMPANY, ) ) Plaintiffs, ) Civ. Case No. 14-CV-0199 (KBJ) ) v. ) ) GINA MCCARTHY, in her Official Capacity ) as Administrator, U.S. Environmental ) Protection Agency, ) ) Defendant. ) __________________________________________) EPA’S MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT JEFFREY H. WOOD Acting Assistant Attorney General Eileen T. McDonough Environmental Defense Section Environment & Natural Resources Division United States Department of Justice P.O. Box 7611 Washington, D.C. 20044 (202) 514-3126 Case 1:14-cv-00199-KBJ Document 68-2 Filed 07/10/17 Page 1 of 22 i TABLE OF CONTENTS BACKGROUND .............................................................................................................................2 I. STATUTORY AND REGULATORY BACKGROUND ...................................................2 A. Clean Air Act Overview ..........................................................................................2 B. Prevention of Significant Deterioration ...................................................................3 C. Title V ......................................................................................................................5 D. Citizen Suit Provision ..............................................................................................6 II. LITIGATION BACKGROUND .........................................................................................7 STANDARD OF REVIEW .............................................................................................................9 ARGUMENT ...................................................................................................................................9 I. NUCOR HAS FAILED TO PROVE ALL THE REQUIRED ELEMENTS OF STANDING .........................................................................................................................9 II. IN THE ALTERNATIVE, THIS COURT SHOULD GRANT EPA’S CROSS-MOTION ON REMEDY .....................................................................................12 A. The Court Has Equitable Discretion To Determine A Reasonable Schedule For The Agency To Take Action ...........................................................................12 B. EPA’s Proposed Order Presents the Most Expeditious Schedule That the Agency Reasonably Can Meet Under Current Circumstances .............................14 CONCLUSION ..............................................................................................................................16 Case 1:14-cv-00199-KBJ Document 68-2 Filed 07/10/17 Page 2 of 22 ii TABLE OF AUTHORITIES CASES Alaska Dep’t of Envtl. Conservation v. United States, 540 U.S. 461 (2004) ................................................................................................................ 3, 4 Am. Lung Ass’n v. Browner, 884 F. Supp. 345 (D. Ariz. 1994) .............................................................................................. 13 Catawba County, N.C. v. EPA, 571 F.3d 20 (D.C. Cir. 2009) ...................................................................................................... 3 Citizens Against Ruining the Environment v. EPA, 535 F.3d 670 (7th Cir. 2008) ..................................................................................................... 14 Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) ........................................................................................................ 10, 11 Clean Water Action Council of Northeastern Wis., Inc. v. EPA, 765 F.3d 749 (7th Cir. 2014) ..................................................................................................... 14 Evntl. Def. v. Duke Energy Corp., 549 U.S. 561 (2007) ................................................................................................................ 3, 4 Envtl. Def. Fund v. Thomas, 627 F. Supp. 566 (D.D.C. 1986) ............................................................................................... 13 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ........................................................................................................ 9, 10, 12 Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871 (1990) .................................................................................................................. 10 MacClarence v. EPA, 596 F.3d 1123 (9th Cir. 2010) ................................................................................................... 14 Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692 (D.C. Cir. 1974) .................................................................................................. 13 Nucor Steel-Arkansas v. Pruitt, 2017 WL 1239558 (D.D.C. Mar. 31, 2017) ........................................................ 1, 7, 8, 9, 10, 11 Scenic Am., Inc. v. United States Dep’t of Transp., 836 F.3d 42 (D.C. Cir. 2016) .............................................................................................. 10, 11 Case 1:14-cv-00199-KBJ Document 68-2 Filed 07/10/17 Page 3 of 22 iii Sierra Club v. EPA, 496 F.3d 1182 (11th Cir. 2007) ................................................................................................. 14 Sierra Club v. EPA, 557 F.3d 401 (6th Cir. 2009) ..................................................................................................... 14 Sierra Club v. Johnson, 444 F. Supp. 2d 46 (D.D.C. 2006) ...................................................................................... 12, 13 Sierra Club v. Johnson, 541 F.3d 1257 (11th Cir. 2008) ................................................................................................. 14 Sierra Club v. McCarthy, 2016 WL 1055120 (N.D. Cal. Mar. 15, 2016) .......................................................................... 15 Sierra Club v. McCarthy, slip op., Case No. 14-cv-00643-JLH (E.D. Ark. Nov. 3, 2015) .......................................... 12, 13 Sierra Club v. Pruitt, 2017 WL 835161 (D.D.C. Mar. 2, 2017)............................................................................. 14, 16 Sierra Club v. Thomas, 658 F. Supp. 165 (N.D. Cal. 1987) ........................................................................................... 13 Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014) ........................................................................................................ 10, 11 Virginia v. EPA, 80 F.3d 869 (4th Cir. 1996) ......................................................................................................... 5 Weinberger v. Carlos Romero-Barcelo, 456 U.S. 305 (1982) .................................................................................................................. 12 WildEarth Guardians v. EPA, 728 F.3d 1075 (10th Cir. 2013) ................................................................................................. 14 Winston & Strawn, LLP v. McLean, 843 F.3d 503 (D.C. Cir. 2016) .................................................................................................... 9 STATUTES 42 U.S.C. §§ 7401-7671q ............................................................................................................... 2 42 U.S.C. § 7407(a) ........................................................................................................................ 2 42 U.S.C. § 7407(d)(1)(A) .......................................................................................................... 2, 3 Case 1:14-cv-00199-KBJ Document 68-2 Filed 07/10/17 Page 4 of 22 iv 42 U.S.C. § 7407(d)(3)(A) .............................................................................................................. 3 42 U.S.C. § 7407(d)(3)(D) .............................................................................................................. 3 42 U.S.C. § 7409 ............................................................................................................................. 2 42 U.S.C. § 7410(a) ........................................................................................................................ 2 42 U.S.C. § 7410(a)(2) .................................................................................................................... 2 42 U.S.C. § 7410(a)(2)(C) .......................................................................................................... 3, 4 42 U.S.C. § 7410(a)(2)(J) ........................................................................................................... 3, 4 42 U.S.C. § 7410(k) ........................................................................................................................ 2 42 U.S.C. §§ 7470-79 ..................................................................................................................... 3 42 U.S.C. § 7470(3) ........................................................................................................................ 3 42 U.S.C. § 7471 ............................................................................................................................. 3 42 U.S.C. § 7475 ............................................................................................................................. 3 42 U.S.C. § 7475(a)(1) .................................................................................................................... 4 42 U.S.C. § 7475(a)(3) .................................................................................................................... 4 42 U.S.C. § 7475(a)(4) .................................................................................................................... 4 42 U.S.C. § 7479(2)(C) ................................................................................................................... 3 42 U.S.C. §§ 7501-15 ..................................................................................................................... 3 42 U.S.C. § 7604(a)(2) .................................................................................................................... 6 42 U.S.C. § 7604(b)(2) ................................................................................................................... 6 42 U.S.C. §§ 7661-61f .................................................................................................................... 5 42 U.S.C. § 7661a(d)(1) .................................................................................................................. 5 42 U.S.C. § 7661a(i) ....................................................................................................................... 5 42 U.S.C. § 7661d ........................................................................................................................... 5 Case 1:14-cv-00199-KBJ Document 68-2 Filed 07/10/17 Page 5 of 22 v 42 U.S.C. § 7661d(a)(1) .................................................................................................................. 6 42 U.S.C. § 7661d(b)(1) ................................................................................................................. 6 42 U.S.C. § 7661d(b)(2) ............................................................................................................. 1, 6 FEDERAL RULES OF CIVIL PROCEUDRE Fed. R. Civ. P. 56(a) ....................................................................................................................... 9 Fed. R. Civ. P. 56(e) ....................................................................................................................... 9 CODE OF FEDERAL REGULATIONS 40 C.F.R. Pt. 50 ........................................................................................................................... 2, 5 40 C.F.R. § 50.6(c).......................................................................................................................... 5 40 C.F.R. § 50.7(a).......................................................................................................................... 5 40 C.F.R § 51.166(a)(7) .................................................................................................................. 4 40 C.F.R. § 51.166(k)(1) ................................................................................................................. 4 40 C.F.R. § 51.166(k) ..................................................................................................................... 4 40 C.F.R. § 52.181(a)...................................................................................................................... 4 40 C.F.R. pt. 70, App. A ................................................................................................................. 5 40 C.F.R. § 70.2 .............................................................................................................................. 6 40 C.F.R. § 70.8(a)(1) ..................................................................................................................... 6 40 C.F.R. § 70.8(c).......................................................................................................................... 6 40 C.F.R. § 70.8(d) ......................................................................................................................... 6 40 C.F.R. pt. 81, Sbpt. C ................................................................................................................. 5 FEDERAL REGISTER 70 Fed. Reg. 59,582 (Oct. 12, 2005) ............................................................................................... 5 72 Fed. Reg. 31,372 (June 6, 2007) ................................................................................................ 5 Case 1:14-cv-00199-KBJ Document 68-2 Filed 07/10/17 Page 6 of 22 1 Plaintiffs (jointly referred to as “Nucor”) have moved for summary judgment on their claim that the United States Environmental Protection Agency (“EPA”) failed to perform its nondiscretionary duty pursuant to the Clean Air Act (“CAA”), 42 U.S.C. § 7661d(b)(2), to respond within 60 days to an administrative petition asking EPA to object to a CAA title V permit issued to Big River Steel LLC (“Big River”) by the Arkansas Department of Environmental Quality (“ADEQ”). In its Motion for Summary Judgment, Nucor asks the Court to require EPA to respond to the petition within 20 days of the Court’s decision in this matter. EPA does not contest Nucor’s claim that the Agency failed to respond to the administrative petition within the time period specified in section 7661d(b)(2). Nucor, however, has failed to introduce evidence required to establish standing at the summary judgment stage. Specifically, Nucor has failed to provide proof of its allegations that EPA’s inaction will result in imminent injury to Nucor. See Nucor Steel-Arkansas v. Pruitt, 2017 WL 1239558, **9, 12 (D.D.C. Mar. 31, 2017) (“Nucor Decision”). Therefore, EPA should be granted summary judgment and the matter should be dismissed for lack of standing. In the alternative, should the Court find that Nucor does have standing, the Court should deny Nucor’s motion for summary judgment and grant EPA’s cross-motion for summary judgment with respect to the remedy. Nucor’s requested remedy – an order to act within 20 days of the Court’s decision – would result in an unpredictable deadline that could well leave EPA without sufficient time for the Agency to prepare and issue a response to Nucor’s petition. Instead, EPA asks in the present cross-motion that the Court allow the Agency until October 31, 2017, to sign the petition response. The reasons in support of this request are set forth below and in the Declaration of Anna Marie Wood, the Director of the Air Quality Policy Division within Case 1:14-cv-00199-KBJ Document 68-2 Filed 07/10/17 Page 7 of 22 2 the Office of Air Quality Planning and Standards, Office of Air and Radiation at EPA (June 28, 2017) (“Wood Decl.”) (EPA Exhibit 1). BACKGROUND I. STATUTORY AND REGULATORY BACKGROUND A. Clean Air Act Overview The Clean Air Act, 42 U.S.C. §§ 7401-7671q, enacted in 1970 and extensively amended in 1977 and 1990, establishes a comprehensive program for controlling and improving the nation's air quality through both state and federal regulation. Under Title I of the Act, EPA is charged with promulgating the National Ambient Air Quality Standards (“NAAQS”) for certain air pollutants. 42 U.S.C. § 7409. The Administrator has promulgated NAAQS for various pollutants, including particulate matter. See 40 C.F.R. Pt. 50. The States are given primary responsibility for assuring air quality within their geographic areas by adopting State implementation plans (“SIPs”) that specify how the NAAQS will be achieved and maintained. 42 U.S.C. § 7407(a). For each NAAQS, a State must adopt a SIP that specifies emission limitations applicable to sources of air pollution and other measures designed to achieve and maintain that NAAQS. 42 U.S.C. § 7410(a). SIPs must meet numerous requirements enumerated in CAA section 110(a)(2). 42 U.S.C. § 7410(a)(2). Each SIP must be adopted by the State in a legally enforceable form after reasonable notice and a public hearing, and must be submitted to EPA for approval. Id. EPA may fully approve or disapprove, partially approve or disapprove, or conditionally approve the submittal. 42 U.S.C. § 7410(k). Pursuant to the CAA, EPA has designated areas of the country as “attainment” or “nonattainment,” depending upon whether or not they met the NAAQS for a particular pollutant, or “unclassifiable,” if there was insufficient available information to classify an area. 42 U.S.C. Case 1:14-cv-00199-KBJ Document 68-2 Filed 07/10/17 Page 8 of 22 3 § 7407(d)(1)(A). The SIP requirements for any particular area depend on the area’s designation. An area designated as attainment or unclassifiable for a particular NAAQS later may be redesignated to nonattainment. Pursuant to 42 U.S.C. § 7407(d)(3)(A), on the basis of air quality data, planning and control considerations, or any other air quality-related considerations the Administrator deems appropriate, the Administrator may at any time notify the Governor of any State that available information indicates that the designation of any area or portion of an area within the State or interstate area should be revised. The Governor of a State may also submit a redesignation proposal to EPA. Id. § 7407(d)(3)(D). Different and more demanding requirements may become applicable after an area is redesignated to nonattainment. Id. §§ 7501-15. B. Prevention of Significant Deterioration The Clean Air Act’s PSD program, 42 U.S.C. §§ 7470-79, is “aimed at giving added protection to air quality in certain parts of the country ‘notwithstanding attainment and maintenance of’ the NAAQS.” Envtl. Def. v. Duke Energy Corp., 549 U.S. 561, 567-68 (2007) (quoting 42 U.S.C. § 7470(1)); see also Alaska Dep’t of Envtl. Conservation v. United States, 540 U.S. 461, 470-71 (2004). The program also aims “to insure that economic growth will occur in a manner consistent with the preservation of existing clean air resources.” 42 U.S.C. § 7470(3). Accordingly, a SIP must “contain emission limitations . . . to prevent significant deterioration of air quality” in “attainment” areas. 42 U.S.C. §§ 7407(d)(1)(A), 7410(a)(2)(C), (J), 7471; see also, e.g., Catawba County, N.C. v. EPA, 571 F.3d 20, 26 (D.C. Cir. 2009). A major component of the PSD program is a set of pre-construction permitting requirements for large stationary sources. 42 U.S.C. § 7475. Under this permitting program, no “major emitting facility” can be constructed or modified in a way that would increase air pollution above certain thresholds without obtaining a PSD permit and sufficiently controlling Case 1:14-cv-00199-KBJ Document 68-2 Filed 07/10/17 Page 9 of 22 4 pollution. 42 U.S.C. §§ 7475(a)(1) , (3) & (4), 7479(2)(C) (defining construction to include certain modifications); Envtl. Def. v. Duke Energy Corp., 549 U.S. at 568; Alaska, 540 U.S. at 472. See also 40 C.F.R § 51.166(a)(7) (describing applicability of PSD requirements to major new stationary sources and major modifications at existing major stationary sources). The PSD permitting authority is generally a state agency if EPA has approved the state’s PSD program as part of its SIP. 42 U.S.C. § 7410(a)(2)(C), (J); see also, e.g., Alaska, 540 U.S. at 469-71. ADEQ issues PSD permits in Arkansas under an EPA-approved program. 40 C.F.R. § 52.181(a). A PSD permit will not be issued unless the owner or operator of the source demonstrates that doing so will not cause or contribute to the violation of any NAAQS. In particular, such a permit may issue only if a facility “demonstrates . . . that emissions from construction or operation of such facility will not cause, or contribute to, air pollution in excess of any . . . (B) national ambient air quality standard in any air quality control region.” 42 U.S.C. § 7475(a)(3); see also, e.g., Alaska, 540 U.S. at 473. In this way, the PSD program incorporates and helps to protect the NAAQS through permitting. See 40 C.F.R. § 51.166(k) (EPA’s regulations establishing minimum requirements for SIP-approved PSD programs). A PSD permit also will not be issued unless the owner or operator of the source demonstrates that pollution from the source will not cause or contribute to pollution that will exceed an allowable “increment” set for certain pollutants. Specifically, a permit may issue only if a source “demonstrates . . . that emissions from construction or operation of such facility will not cause, or contribute to, air pollution in excess of any (A) maximum allowable increase or maximum allowable concentration for any pollutant in any area to which this part applies.” 42 U.S.C. § 7475(a)(3); see also 40 C.F.R. § 51.166(k)(1). The maximum allowable increase is known as the “increment,” and it defines the amount of air quality deterioration above baseline Case 1:14-cv-00199-KBJ Document 68-2 Filed 07/10/17 Page 10 of 22 5 air quality conditions that is “significant.” 70 Fed. Reg. 59,582, 59,596 (Oct. 12, 2005). The “maximum allowable concentration” is the baseline concentration for an area plus the increment. Proposed Rule, “Prevention of Significant Deterioration New Source Review: Refinement of Increment Modeling Procedures,” 72 Fed. Reg. 31,372, 31,374 (June 6, 2007). Nucor’s claims pertain to the increments established for two forms of the pollutant particulate matter (“PM”). The first, referred to as “PM10,” is particulates that are no larger than 10 micrometers in size. See 40 C.F.R. § 50.6(c). The second, PM2.5, is particulates that are less than or equal to 2.5 micrometers. See 40 C.F.R. § 50.7(a). EPA has promulgated NAAQS and area designations for both PM10 and PM2.5. 40 C.F.R. Pt. 50, Pt. 81 Sbpt C. C. Title V In 1990, Congress enacted title V of the CAA, 42 U.S.C. §§ 7661-61f, establishing a permit program covering the operations of stationary sources of air pollution. Congress designed the title V permit program to be administered and enforced primarily by State and local air permitting authorities pursuant to EPA-approved permit programs and subject to EPA oversight. See 42 U.S.C. § 7661a(d)(1); 42 U.S.C. § 7661a(i); 42 U.S.C. § 7661d. EPA has granted most States, including Arkansas, approval to administer the title V permit program. 40 C.F.R. pt. 70, App. A. Under the title V program, all CAA requirements applicable to a particular source must be set forth in a comprehensive permit, often called a title V permit or an operating permit, which serves as “a source-specific bible for Clean Air Act compliance.” Virginia v. EPA, 80 F.3d 869, 873 (4th Cir. 1996). The requirements that may be applicable to a source include the conditions of a preconstruction permit issued under the PSD program and the standards and requirements of an approved SIP. 40 C.F.R. § 70.2 (definition of “applicable requirement”). Case 1:14-cv-00199-KBJ Document 68-2 Filed 07/10/17 Page 11 of 22 6 Title V of the CAA and the applicable EPA regulations require state permitting authorities to submit any proposed title V permits to EPA for review. 42 U.S.C. § 7661d(a)(1); 40 C.F.R. § 70.8(a)(1). Title V calls for EPA, within 45 days of receipt of a proposed title V permit, to object to that permit on its own initiative if it “determine[s]” that the proposed permit “contains provisions that are . . . not in compliance” with “applicable requirements of [the Act], including the requirements of an applicable implementation plan.” 42 U.S.C. § 7661d(b)(1); see 40 C.F.R. § 70.8(c). If EPA does not object on its own, “any person may petition the Administrator” to do so within 60 days after the expiration of the 45-day period. 42 U.S.C. § 7661d(b)(2); see also 40 C.F.R. § 70.8(d). Section 505(b)(2) requires that “[t]he Administrator shall grant or deny such petition within 60 days after the petition is filed.” 42 U.S.C. § 7661d(b)(2). D. Citizen Suit Provision The CAA’s citizen suit provision authorizes civil actions against EPA “where there is alleged a failure of [EPA] to perform any act or duty under this chapter which is not discretionary.” 42 U.S.C. § 7604(a)(2). The federal district courts have jurisdiction to order EPA to perform any nondiscretionary duty that the Agency failed to perform. Id. § 7604(a). Before bringing a deadline suit, a party must provide EPA with notice of its intent to sue at least 60 days before the complaint is filed. Id. § 7604(b)(2). The statute also provides that, where appropriate, the court may award costs of litigation, including attorneys’ fees, to any party. Case 1:14-cv-00199-KBJ Document 68-2 Filed 07/10/17 Page 12 of 22 7 II. LITIGATION BACKGROUND Nucor filed the present CAA citizen suit after complying with the notice requirement of 42 U.S.C. § 7604(b)(2). Nucor filed its initial complaint on February 11, 2014. ECF 1. Nucor alleged that EPA had failed to perform its nondiscretionary duty to respond within 60 days to the administrative petition filed by Nucor requesting that EPA issue an objection to Big River’s Title V permit. EPA filed a motion to dismiss the complaint for lack of standing on May 2, 2014. ECF 12. After this motion was fully briefed, Nucor filed its First Supplemental and Amended Complaint on June 9, 2014. ECF 20. EPA moved to dismiss the new complaint for lack of standing on July 11, 2014. ECF 22. The Court held a hearing on EPA’s motion on January 22, 2015, at which counsel for Nucor recounted the injuries alleged in the First Supplemental and Amended Complaint and “also asserted an additional injury that was not specifically alleged in Nucor’s pleading and that the parties did not brief.” Order, 2 (emphasis in original). ECF 38. Nucor’s newly claimed injury related to the “PSD increment.” Id. The Court denied EPA’s motion as moot without prejudice after concluding that Nucor should be allowed to file a second amended complaint to address the new ground for standing raised by Nucor during oral argument. Id. at 4-5. The Order required that: Nucor’s new complaint must, at a minimum, clearly explain (1) what the PSD increment is and how it fits into the broader statutory scheme of the Clean Air Act, (2) what effect Big River Steel’s permit has on the PSD increment, and (3) what specific injury Nucor allegedly incurs as a result. Id. at 4. In response to the Order, Nucor filed its second amended complaint on August 3, 2015. (hereinafter referred to as the “Complaint”). ECF 40. In relevant part, Nucor alleged that it was Case 1:14-cv-00199-KBJ Document 68-2 Filed 07/10/17 Page 13 of 22 8 injured by EPA’s failure to respond to its Title V petition because the Big River permit issued by ADEQ improperly allowed Big River to consume some or all of the PSD increment available, which would constrain Nucor’s ability to obtain PSD permits in the future. This injury is referred to as “the PSD-increment injury.” EPA again filed a motion to dismiss for lack of standing. The Court denied this motion in the Nucor Decision. The Court found that Nucor had sufficiently alleged a concrete and imminent PSD-increment injury to meet its burden with respect to standing at the pleading stage of the litigation.1 The Court explained that, at this early phase, Nucor need only state “a plausible claim that the elements of standing are satisfied.” 2017 WL 1239558, *11 (internal quotations and citations omitted). The Court also stated that, at the pleading stage, the Court must presume that the general allegations in the Complaint embrace the specific facts necessary to support the claim of injury. Id. at *12. Relying on these principles, the Court rejected EPA’s arguments that Nucor had failed to show standing because it had not alleged that it had specific plans for imminent construction or modifications at its facilities that would require PSD permits, nor had it made specific allegations on how emissions from Big River would result in a reduction of PSD increment available to Nucor. The Court explained: “Nucor’s failure to include in the complaint detailed allegations regarding the extent to which the planned permit modifications will actually and ultimately require PSD review does not undermine the plausibility of an inference that it has imminent construction plans that will require such review.” Id. Similarly, the court found: it is entirely plausible that Big River Steel’s emissions will reach the “significant impact area” that Nucor will need to analyze for one of its future construction 1 The Court concluded that, because Nucor had alleged standing under one theory, there was no need to consider Nucor’s other standing arguments. Id. at *1 n.3. As noted by the Court, EPA presented arguments in its motion to dismiss that challenged each of Nucor’s claims of standing. Because Nucor has not submitted evidence to support any of these claims, they should be rejected for the reasons previously identified by EPA. Case 1:14-cv-00199-KBJ Document 68-2 Filed 07/10/17 Page 14 of 22 9 projects, such that Nucor’s future PSD permits will be made more restrictive in light of Big River Steel’s emissions. As a result, this Court concludes that Nucor has adequately alleged for the purpose of the motion-to-dismiss stage that it faces imminent PSD-increment injury. Id. at *13 (emphasis added). STANDARD OF REVIEW Fed. R. Civ. P. 56(a) provides that a federal court will grant a motion for summary judgment if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Standing is “an indispensable part of the plaintiff's case.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). “[E]ach element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Id. At the summary judgment stage, “plaintiff can no longer rest on such mere allegations, but must set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true.” Id. (citing Fed. R. Civ. P. 56(e)); see also Winston & Strawn, LLP v. McLean, 843 F.3d 503, 507 (D.C. Cir. 2016). ARGUMENT I. NUCOR HAS FAILED TO PROVE ALL THE REQUIRED ELEMENTS OF STANDING As part of its burden to establish that the Court has jurisdiction over its claim, Nucor must demonstrate its standing. Lujan v. Defenders of Wildlife, 504 U.S. at 560. The “irreducible constitutional minimum” for standing is (i) the party must have suffered an actual or imminent, concrete and particularized injury in fact, (ii) that is fairly traceable to the challenged actions of the defendant, and (iii) is likely to be redressed by a favorable judicial decision. Id. at 560-61. To demonstrate an “actual or imminent injury” that has not yet occurred, a plaintiff must show Case 1:14-cv-00199-KBJ Document 68-2 Filed 07/10/17 Page 15 of 22 10 that “the threatened injury is certainly impending, or there is a substantial risk that the harm will occur.” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (citing Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1150 n.5 (2013)). See also Nucor Decision, 2017 WL 1239558, *9. EPA’s motion to dismiss challenged only the adequacy of Nucor’s allegations with respect to the first prong – whether Nucor faced an imminent injury as a result of EPA’s failure to act on Nucor’s petition. Id. at *14. Likewise, EPA’s argument on summary judgment also addresses only Nucor’s failure to establish imminent injury. For the reasons set forth below, Nucor has failed to present sufficient evidence of imminent injury to sustain its burden of demonstrating standing, and EPA is therefore entitled to summary judgment. In fact, in moving for summary judgment, Nucor did not even address standing, much less present any evidence. Instead, Nucor asserts that “[t]he standing issue [is] now resolved in Nucor’s favor.” Opp. at 1. The Supreme Court, however, has plainly established that a favorable ruling on a motion to dismiss is not a definitive answer to the issue of standing because such a ruling is limited to the question of whether the allegations in the complaint are sufficient. Lujan v. Defenders of Wildlife, 504 U.S. at 561. See, e.g., Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 889 (1990) (holding that an earlier Supreme Court case decided at the motion to dismiss stage was “of no relevance here, since it involved not a Rule 56 motion for summary judgment but a Rule 12(b) motion to dismiss on the pleadings”). At the summary judgment stage, the court must determine whether plaintiff can prove the allegations. 504 U.S. at 561. As explained by the D.C. Circuit, If, upon review of the evidence, the court determines that the plaintiff has not introduced sufficient evidence into the record to at least raise a disputed issue of fact as to each element of standing, the court has no power to proceed and must dismiss the case. Case 1:14-cv-00199-KBJ Document 68-2 Filed 07/10/17 Page 16 of 22 11 Scenic America, Inc. v. United States Dep’t of Transp., 836 F.3d 42, 4849 (D.C. Cir. 2016) (petition for cert. filed (No. 16-759) (Dec. 5, 2016)) (citing Clapper, 133 S.Ct. at 1148–49) (dismissing case where plaintiff did not raise an issue of fact as to standing at summary judgment)). Nucor has failed to introduce such proof to establish that it faces PSD-increment injury that is certainly impending or that there is a substantial risk of such injury as required by Susan B. Anthony List, 134 S. Ct. at 2341. In the Nucor Decision, this Court, at the motion-to-dismiss stage, rejected EPA’s argument that Nucor had failed to show imminent injury because Nucor’s allegations did not identify a specific project planned by Nucor that would (1) require a PSD permit that (2) would be made more restrictive as a result of PSD increment consumption by Big River. The Court concluded that Nucor’s allegation that it is “’nearly certain’ that its two mills in Arkansas will undergo PSD review in connection with future modification projects,” was sufficient to support a plausible inference that Nucor will soon embark on a construction project that requires a PSD permit.” 2017 WL 1239558, at *12. Similarly, the Court found allegations by Nucor sufficient to find it plausible that Nucor’s future PSD permit applications will have to account for Big River Steel’s particulate matter emissions and that, as a result, Nucor will have to promise correspondingly lower new emissions in its future PSD permit applications. Id. (emphasis added) At the summary judgment stage, however, Nucor can no longer rely on “plausible” inferences to establish that it actually has plans to begin a construction project that would require a PSD permit, and that such permit would be made more restrictive as a result of PSD increment consumption by Big River. Because Nucor has not presented any specific facts regarding its Case 1:14-cv-00199-KBJ Document 68-2 Filed 07/10/17 Page 17 of 22 12 plans to begin such a project, or any PSD increment constraints resulting from the Big River permit, Nucor has not shown that the alleged PSD-increment injury is imminent as required by Susan B. Anthony List. Id. Nucor is relying on a bald assertion that steel mills will inevitably require PSD permits at some point. There is no evidence to establish that the claimed interference with modifications to Nucor’s facilities resulting from ADEQ’s approval of the Big River permit is certainly impending or that there is a substantial risk of such injury. See Lujan v. Defenders of Wildlife, 504 U.S. at 564 (“Such ‘some day’ intentions—without any description of concrete plans, or indeed even any specification of when the some day will be -- do not support a finding of the ‘actual or imminent’ injury that our cases require.”). For these reasons, EPA’s motion for summary judgment should be granted and the matter dismissed because Nucor has not established that the Court has jurisdiction over its claim. II. IN THE ALTERNATIVE, THIS COURT SHOULD GRANT EPA’S CROSS- MOTION ON REMEDY A. The Court Has Equitable Discretion To Determine A Reasonable Schedule For The Agency To Take Action. As noted, EPA does not dispute that it has not taken the required action; the only dispute, other than standing, concerns remedy. Courts adjudicating similar disputes concerning the remedy for an agency’s failure to meet a statutory deadline commonly resolve such disputes through summary judgment. See, e.g., Sierra Club v. Johnson, 444 F. Supp. 2d 46, 52 (D.D.C. 2006) (“Because defendant does not contest the issue of liability, the entry of summary judgment is appropriate, and it remains only for the Court to fashion an appropriate equitable remedy.”) (citing cases). A district court has broad discretion to fashion equitable remedies such as a schedule for agency action. Weinberger v. Carlos Romero-Barcelo, 456 U.S. 305, 311-13 (1982); Sierra Case 1:14-cv-00199-KBJ Document 68-2 Filed 07/10/17 Page 18 of 22 13 Club v. McCarthy, Case No. 14-cv-00643-JLH (E.D. Ark. Nov. 3, 2015) (adopting compliance schedule presented in EPA’s declaration after finding that the facts in the declaration supported the conclusion that the proposed schedule was “the most expeditious schedule that [EPA] could meet, given current resource and budgetary constraints.”) (quoting EPA Declaration in that case) (EPA Exhibit 2); Am. Lung Ass’n v. Browner, 884 F. Supp. 345, 347 (D. Ariz. 1994); see also Envtl. Def. Fund v. Thomas, 627 F. Supp. 566, 569-70 (D.D.C. 1986) (adopting compliance schedule proposed by EPA in a case where the Agency had failed to comply with a nondiscretionary statutory duty, after finding that EPA’s proposed schedule was “reasonable”); Sierra Club v. Johnson, 444 F. Supp. 2d at 58 (focusing on amount of time “necessary for the promulgation of workable regulations”) (quoting Sierra Club v. Thomas, 658 F. Supp. 165, 175 (N.D. Cal. 1987)). In a suit alleging violation of a Congressionally mandated duty, courts have recognized two types of circumstances that can make it infeasible for an agency to comply with a particular deadline: (1) the “budgetary” and “manpower demands” required are “beyond the agency’s capacity or would unduly jeopardize the implementation of other essential programs,” and (2) an agency’s need to have more time to sufficiently evaluate complex technical issues. Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692, 712-13 (D.C. Cir. 1974). When an agency concludes that such constraints require an extension of the statutory deadline, it may so demonstrate to the district court. Id. In short, when an agency has missed a statutory deadline, the court should examine the relevant facts and circumstances and evaluate the time needed by the agency to take responsible and effective action that will achieve the results intended by Congress. Case 1:14-cv-00199-KBJ Document 68-2 Filed 07/10/17 Page 19 of 22 14 B. EPA’s Proposed Order Presents the Most Expeditious Schedule That the Agency Reasonably Can Meet Under Current Circumstances. Nucor asks that the Court order EPA to act on Nucor’s petition within 20 days of the Court’s order in this matter. Nucor provides no explanation as to why this time frame is appropriate. For the reasons set forth in the Wood Declaration, the Court should allow EPA until October 31, 2017, to sign its response to Nucor’s petition. As Ms. Wood explains, this deadline “represents the most expeditious time frame under which the EPA can reasonably take the necessary steps to fully address the petition at the same time permitting the Agency to act on other competing obligations without undue delay.” Id. ¶ 17 Ms. Wood provides a detailed explanation of the process required for the Agency to respond to a Title V petition. Id. ¶¶ 6-13. See also id. ¶ 16 (explaining limitations on resources available for this process).2 In addition, Ms. Wood explains the burden that EPA faces in responding to Title V petitions. EPA received 24 petitions in 2016 and 9 petitions thus far in 2017. Id. ¶ 14. In a number of instances where EPA did not meet the statutory deadline for its response, there was litigation over the deadline. The resulting court orders, consent decrees, or settlements require EPA to spend substantial time on particular projects in order to meet the deadlines. In the past few months, much of the time and resources available to the relevant division had to be expended on completing the responses to two petitions by the June 30, 2017, deadline imposed by the order filed March 2, 2017 in Sierra Club v. Pruitt, 2017 WL 835161, *2 2 While EPA’s process requires much time and labor, it has been effective in producing orders based on solid legal, technical, and policy decisions, as illustrated by the most recent seven court decisions in cases challenging EPA’s title V orders, all of which ruled in favor of EPA. Clean Water Action Council of Northeastern Wis., Inc. v. EPA, 765 F.3d 749 (7th Cir. 2014); WildEarth Guardians v. EPA, 728 F.3d 1075 (10th Cir. 2013); MacClarence v. EPA, 596 F.3d 1123 (9th Cir. 2010); Sierra Club v. EPA, 557 F.3d 401 (6th Cir. 2009); Sierra Club v. Johnson, 541 F.3d. 1257 (11th Cir. 2008); Citizens Against Ruining the Environment v. EPA, 535 F.3d 670 (7th Cir. 2008); and Sierra Club v. EPA, 496 F.3d 1182 (11th Cir. 2007). Case 1:14-cv-00199-KBJ Document 68-2 Filed 07/10/17 Page 20 of 22 15 (D.D.C. Mar. 2, 2017).3 EPA is now focusing its efforts on completing work on a petition response due on July 31, 2017, under a settlement agreement in Center for Biological Diversity v. EPA, 4:16-cv-01946-SBA (N.D. Cal.), and a second response due on August 31, 2017, pursuant to a consent decree entered in Sierra Club v. McCarthy, 1:16-cv-01895 (D.D.C). Decl. ¶ 15. EPA plans to work concurrently on these petition responses and others, as well as the response to Nucor’s petition. Decl. ¶ 16. As Ms. Wood has stated, however, there is limited expert staff available to respond to petitions. Assigning additional staff to address the Nucor petition would reduce the resources available to continue work on the other petitions. Id. EPA cannot give priority to the response to Nucor’s petition over the responses subject to deadlines established in the cases described above. EPA has reviewed the work required to complete its current obligations as set forth by Ms. Wood, and has structured the schedule based on the Agency’s conclusion as to how those obligations can be met. Thus, in concluding that October 31, 2017, is the most expeditious date by which EPA can reasonably complete the response on the Nucor petition, the Agency properly took into account its obligations in the cases described above. Id. ¶ 17. See Sierra Club v. McCarthy, 2016 WL 1055120 *4 (N.D. Cal. Mar. 15, 2016) (rejecting plaintiffs’ argument that the court should consider the schedule for “the requested rulemakings in isolation”). In Sierra Club v. Pruitt, another CAA deadline suit alleging that EPA had failed to perform its nondiscretionary duty to respond to a title V petition, Judge Huvelle concluded: The EPA’s acknowledged inability to come even close to the statutory sixty-day deadline in this, and every other, case is troubling, but the [Wood] affidavit is sufficiently detailed to support defendant’s proposed deadline and to satisfy the Court that plaintiff's proposed 30–day deadline would be unattainable. 3 Because Ms. Wood signed her Declaration on June 28, 2017, two days before these responses were signed, she identified the responses due on June 30, 2017 as actions yet to be completed. Id. ¶ 15. Case 1:14-cv-00199-KBJ Document 68-2 Filed 07/10/17 Page 21 of 22 16 2017 WL 835161, at *2. If the Court finds that Nucor has established standing, the Court should reach the same conclusion as Judge Huvelle, and find that Ms. Wood’s Declaration supports requiring EPA to sign the response to Nucor’s petition no later than October 31, 2017. Ms. Wood has established that this date is the proper deadline under the case law described above, supra at 11-12, given the Agency’s competing obligations and the amount of work and coordination required to prepare a proper response to the Nucor petition. . CONCLUSION EPA’s cross-motion for summary judgment on standing should be granted and the matter dismissed. In the alternative, EPA’s cross-motion for summary judgment should be granted. Plaintiff’s motion for summary judgment on remedy should be denied. Respectfully submitted, JEFFREY H. WOOD Acting Assistant Attorney General /s/ Eileen T. McDonough Environmental Defense Section Environment & Natural Resources Division United States Department of Justice P.O. Box 7611 Washington, D.C. 20044 (202) 514-3126 Case 1:14-cv-00199-KBJ Document 68-2 Filed 07/10/17 Page 22 of 22 INDEX TO EXHIBITS Exhibit 1 Declaration of Anna Marie Wood, the Director of the Air Quality Policy Division within the Office of Air Quality Planning and Standards, Office of Air and Radiation, United States Environmental Protection Agency (June 28, 2017) Exhibit 2 Sierra Club v. McCarthy, slip op., Case No. 14-cv-00643-JLH (E.D. Ark. Nov. 3, 2015) Case 1:14-cv-00199-KBJ Document 68-3 Filed 07/10/17 Page 1 of 1 EPA Exhibit 1 Case 1:14-cv-00199-KBJ Document 68-4 Filed 07/10/17 Page 1 of 9 EPA Exhibit 1 Case 1:14-cv-00199-KBJ Document 68-4 Filed 07/10/17 Page 2 of 9 EPA Exhibit 1 Case 1:14-cv-00199-KBJ Document 68-4 Filed 07/10/17 Page 3 of 9 EPA Exhibit 1 Case 1:14-cv-00199-KBJ Document 68-4 Filed 07/10/17 Page 4 of 9 EPA Exhibit 1 Case 1:14-cv-00199-KBJ Document 68-4 Filed 07/10/17 Page 5 of 9 EPA Exhibit 1 Case 1:14-cv-00199-KBJ Document 68-4 Filed 07/10/17 Page 6 of 9 EPA Exhibit 1 Case 1:14-cv-00199-KBJ Document 68-4 Filed 07/10/17 Page 7 of 9 EPA Exhibit 1 Case 1:14-cv-00199-KBJ Document 68-4 Filed 07/10/17 Page 8 of 9 EPA Exhibit 1 Case 1:14-cv-00199-KBJ Document 68-4 Filed 07/10/17 Page 9 of 9 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION SIERRA CLUB PLAINTIFF v. NO. 4:14CV00643 JLH REGINA MCCARTHY, in her official capacity as Administrator of the United States Environmental Protection Agency DEFENDANT STATE OF ARKANSAS INTERVENOR OPINION AND ORDER As a part of the Clean Air Act, Congress has declared as a national goal the prevention of any future, and the remedying of any existing, impairment of visibility, or regional haze, in certain national parks and wilderness areas, which are known as “Class I areas.” 42 U.S.C. § 7491 and § 7492. In addition, the “interstate transport” provision of the Act requires that state plans contain provisions adequate to prohibit in-state emissions from impairing visibility in Class I areas in other states. 42 U.S.C. § 7410(a)(2)(D)(i)(II). Like other environmental programs established by Congress, the adoption of plans to accomplish these regional haze goals is a venture in “cooperative federalism” whereby “the EPA directs states to submit state implementation plans ‘to assure reasonable progress toward’ the [Clean Air Act’s] national visibility goals.” Nat’l Parks Conservation Ass’n v. United States Environmental Protection Agency, 759 F.3d 969, 971 (8th Cir. 2014) (citing Visibility Protection for Federal Class I Areas, 45 Fed. Reg. 80,084, 80,086 (Dec. 2, 1980)). If a state fails to make a required submission, or if the EPA disapproves a state implementation plan in whole or in part, the EPA “shall promulgate a Federal implementation plan at any time within 2 years” unless the state corrects the deficiency and the EPA approves the revised Case 4:14-cv-00643-JLH Document 93 Filed 11/03/15 Page 1 of 7 EPA Exhibit 2 Case 1:14-cv-0 199-KBJ Document 68-5 Filed 07/10/17 Page 1 of 7 state implementation plan before promulgating a federal implementation plan. 42 U.S.C. § 7410(c)(1). On March 12, 2012, the EPA disapproved in part a revision to the Arkansas state implementation plan regarding the regional haze requirements of 42 U.S.C. § 7491(b)(2)(B) and its regulations, 40 C.F.R. § 51.308(d)(1)(i)(A). Final Rule, 77 Fed. Reg. 14,604 (Mar. 12, 2012). The EPA stated in that final rule that within twenty-four months it would either approve a state implementation plan or implement a federal implementation plan. Id. at 14,606. To date, the EPA has not received a revised state implementation plan from Arkansas, nor has it promulgated a federal implementation plan. On August 6, 2014, Sierra Club commenced this action in the Northern District of California seeking (1) a declaration that the EPA’s failure to promulgate a regional haze federal implementation plan for Arkansas constituted a failure to perform a nondiscretionary duty and (2) an injunction requiring the EPA to issue such a plan for Arkansas by a date certain. Document #1. On October 30, 2014, the Northern District of California ordered that this action be transferred to this district. On February 11, 2015, the EPA filed a notice of lodging of a proposed consent decree. Document #30. The proposed consent decree provided that the EPA would either approve a revised state implementation plan from Arkansas or promulgate a federal implementation plan no later than December 15, 2015. Document #30-1 at 4. The EPA published in the Federal Register a notice of the proposed consent decree and requested comments. After the State of Arkansas requested, and the EPA granted, an extension of time to submit comments, the EPA gave notice to the Court that it would be unable to meet the December 15 deadline and would therefore not be moving for an entry of the proposed consent decree in its present form. Document #57 at 2. Instead, the EPA 2 Case 4:14-cv-00643-JLH Document 93 Filed 11/03/15 Page 2 of 7 EPA Exhibit 2 Case 1:14-cv-0 199-KBJ Document 68-5 Filed 07/10/17 Page 2 of 7 stated that it would enter into negotiations with Sierra Club and the State of Arkansas regarding a new deadline for final action. Id. The State of Arkansas not only submitted comments on the proposed consent decree as a part of the regulatory process, but it also filed a motion to intervene in this action. In addition, two motions to intervene were filed by private parties. The first motion to intervene was filed by Nucor Steel-Arkansas, a division of Nucor Corporation, and Nucor-Yamato Steel Company. The other motion to intervene was filed by Balanced Energy Arkansas, which “is an unincorporated association of member companies and organizations with operations and/or [sic] vital economic interests in Arkansas that are dedicated to keeping energy in Arkansas economical, stable, and reliable.” Document #39 at 1. The Court granted the State’s motion to intervene and denied the motions to intervene filed by Nucor and Balanced Energy Arkansas. Nucor has filed a notice of appeal and a motion to stay this action pending appeal. Sierra Club and the EPA have filed cross motions for summary judgment. Sierra Club asks the Court to establish April 15, 2016, as the deadline by which the EPA must approve a state implementation plan or adopt a federal implementation plan. The EPA concedes liability but argues that the deadline should be August 31, 2016. The State has moved to dismiss Sierra Club’s complaint for lack of standing. I. NUCOR’S MOTION TO STAY In deciding whether to issue a stay pending appeal, the Court considers whether the party moving for a stay has made a strong showing that it is likely to succeed on the merits; whether the moving party will be irreparably injured absent a stay; whether issuance of the stay will substantially injure the other parties interested in the proceedings; and the public interest. Brady v. Nat’l Football 3 Case 4:14-cv-00643-JLH Document 93 Filed 11/03/15 Page 3 of 7 EPA Exhibit 2 Case 1:14-cv-0 199-KBJ Document 68-5 Filed 07/10/17 Page 3 of 7 League, 640 F.3d 785, 789 (8th Cir. 2011). Here, Nucor has failed to make a strong showing that it is likely to succeed on the merits. Nucor’s arguments relate to the substance of a potential federal implementation plan, not the deadline by which the EPA must issue such a plan, which is the only issue before the Court. Nucor has the right to make public comments and, if necessary, seek individual review of the EPA’s administrative action. See 42 U.S.C. § 7607(b). Nothing in this action threatens Nucor’s potential objections to any final action that the EPA might take. Nucor will not be irreparably injured absent a stay. And, the public interest favors requiring the EPA to perform its nondiscretionary duty to approve a state implementation plan or adopt a federal implementation plan, and staying this action pending an appeal would be contrary to that public interest. II. THE STATE’S MOTION TO DISMISS SIERRA CLUB’S COMPLAINT FOR LACK OF STANDING For an association to have standing to bring suit on behalf of its members, its members must have standing to sue individually, the association must be seeking to protect interests that are germane to its purpose, and neither the claim asserted nor the relief requested requires its members to participate directly in the lawsuit. Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343, 97 S. Ct. 2434, 2441, 53 L. Ed. 2d 383 (1977). The State of Arkansas denies that Sierra Club’s members have standing to sue individually. Three elements are required to meet the constitutional minimum for standing: (1) an injury in fact; (2) causation between the injury and conduct complained of; and (3) a likelihood, not merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 2137, 119 L. Ed. 2d 351 (1992). An injury in fact must be concrete and particularized as well as actual or imminent. Id. at 560, 112 S. Ct. at 2136. Standing can be based on recreational or aesthetic interests. Sierra Club v. Kimbell, 623 F.3d 549, 557 (8th 4 Case 4:14-cv-00643-JLH Document 93 Filed 11/03/15 Page 4 of 7 EPA Exhibit 2 Case 1:14-cv-0 199-KBJ Document 68-5 Filed 07/10/17 Page 4 of 7 Cir. 2010). The State of Arkansas argues that no injury exists based upon its own assessment that visibility in Class I federal areas is improving. Document #71 at 7-8. However, the injury in this case occurred when the EPA failed to comply with the Clean Air Act’s requirement that it promulgate a federal implementation plan for Arkansas under 42 U.S.C. § 7410. See Sierra Club v. U.S. Army Corps of Engineers, 446 F.3d 808, 816 (8th Cir. 2006) (holding that Sierra Club met the injury-in-fact requirement when the EPA failed to issue a required environmental impact statement). Here, the injury-in-fact is the increased risk of harm to aesthetic enjoyment of the parks by the failure to adopt a plan to prevent haze. Id. This injury is traceable to EPA action, or lack of action, and is redressable by the establishment of a deadline for when the EPA must promulgate a federal implementation plan. Even if, as the State argues, visibility is improving, that fact does not mean that no injury has occurred. As noted, the EPA disapproved portions of Arkansas’s state implementation plan as failing to meet the requirements of the regional haze program. The deficiencies have not been remedied though three and one-half years have passed. The EPA’s failure during that time to perform its nondiscretionary duty to approve a state implementation plan or adopt a federal implementation plan creates a risk that visibility is less than it would be if a plan had been adopted in Class I areas. Therefore, Sierra Club has standing. III. SIERRA CLUB AND THE EPA’S CROSS MOTIONS FOR SUMMARY JUDGMENT “Because [the EPA] does not contest the issue of liability, the entry of summary judgment is appropriate, and it remains only for the Court to fashion an appropriate equitable remedy.” Sierra Club v. Johnson, 444 F. Supp. 2d 46, 52 (D.C.D.C. 2006) (citing Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692, 705 (D.C. Cir. 1974)). When doing so, the Court should consider the EPA’s budgetary and manpower constraints as well as time needed to understand the 5 Case 4:14-cv-00643-JLH Document 93 Filed 11/03/15 Page 5 of 7 EPA Exhibit 2 Case 1:14-cv-0 199-KBJ Document 68-5 Filed 07/10/17 Page 5 of 7 intricacies of the plan. Id. at 712. Sierra Club requests that the EPA be ordered to perform its duty by April 15, 2016. Document #65 at 16. The EPA requests that the deadline be set for August 31, 2016 because of resource constraints and the complexity of the issues. Document #75 at 3. The EPA has presented legitimate concerns regarding its ability to meet an April deadline in a declaration by Samuel J. Coleman, Deputy Regional Administrator of EPA Region 6. Document #75-1. Coleman has submitted a lengthy declaration, the facts of which are not contested. In that declaration, Coleman explains Region 6's staff and workload, the regional haze program requirements, the interstate visibility transport program requirements, the actions taken in Region 6 to date to approve or disapprove of state implementation plans or promulgate federal implementation plans for regional haze and interstate visibility transport, the history of Region 6's actions vis-a-vis Arkansas with respect to regional haze and interstate visibility transport, the substantial work that remains to be done to address all of the comments and to meet all of the requirements for taking final agency action, and the interim deadlines that must be met. In the end, Coleman concludes, “[t]aking final action by August 31, 2016, is the most expeditious schedule that EPA Region 6 can meet given current resource and budgetary constraints.” Id. at 25 ¶41. The facts stated by Coleman in his declaration support that conclusion. CONCLUSION Nucor’s motion to stay this action pending appeal is DENIED. Document #84. The State of Arkansas’s motion to dismiss for lack of standing is DENIED. Document #70. Sierra Club’s motion for summary judgment is GRANTED IN PART and DENIED IN PART. Document #64. The EPA’s cross-motion for summary judgment is GRANTED. Document #75. The EPA’s motion to strike the State’s response to Sierra Club’s motion for summary judgment is DENIED. Document 6 Case 4:14-cv-00643-JLH Document 93 Filed 11/03/15 Page 6 of 7 EPA Exhibit 2 Case 1:14-cv-0 199-KBJ Document 68-5 Filed 07/10/17 Page 6 of 7 #81. The deadline by which the EPA must approve a state implementation plan or promulgate a federal implementation plan is August 31, 2016. A final decree so ordering will be entered separately. IT IS SO ORDERED this 3rd day of November, 2015. J. LEON HOLMES UNITED STATES DISTRICT JUDGE 7 Case 4:14-cv-00643-JLH Document 93 Filed 11/03/15 Page 7 of 7 EPA Exhibit 2 Case 1:14-cv-0 199-KBJ Document 68-5 Filed 07/10/17 Page 7 of 7 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NUCOR STEEL–ARKANSAS, and ) NUCOR–YAMATO STEEL COMPANY, ) ) Plaintiffs, ) Civ. Case No. 14-CV-0199-KBJ ) v. ) ) SCOTT PRUITT, in his Official Capacity ) as Administrator, U.S. Environmental ) Protection Agency, ) ) Defendant. ) __________________________________________) ORDER Upon consideration of the parties’ cross-motions for summary judgment and the memoranda in support and in opposition thereto, it is hereby ordered that the cross-motion by Scott Pruitt, Administrator of the United States Environmental Protect Agency to dismiss this matter for lack of jurisdiction is granted. The cross-motion for summary judgment filed by Nucor Steel –Arkansas and Nucor-Yamato Steel Co. is denied. SO ORDERED. This the ___ day of ______, 2017. _________________________________ HON. KETANJI BROWN JACKSON United States District Judge Case 1:14-cv-00199-KBJ Document 68-6 Filed 07/10/17 Page 1 of 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NUCOR STEEL–ARKANSAS, and ) NUCOR–YAMATO STEEL COMPANY, ) ) Plaintiffs, ) Civ. Case No. 14-CV-0199-KBJ ) v. ) ) SCOTT PRUITT, in his Official Capacity ) as Administrator, U.S. Environmental ) Protection Agency, ) ) Defendant. ) __________________________________________) ORDER Upon consideration of the parties’ cross-motions for summary judgment and the memoranda in support and in opposition thereto, it is hereby ordered that the cross-motion by Scott Pruitt, Administrator of the United States Environmental Protect Agency (“EPA”) with respect to remedy is granted. The cross-motion for summary judgment filed by Nucor Steel – Arkansas and Nucor-Yamato Steel Co. is denied. EPA shall sign its response to Nucor’s administrative petition seeking an object to the Title V permit issued to Big River Steel Company no later than October 31, 2017. SO ORDERED. This the ___ day of ______, 2017. _________________________________ HON. KETANJI BROWN JACKSON United States District Judge Case 1:14-cv-00199-KBJ Document 68-7 Filed 07/10/17 Page 1 of 1