North Dakota, Arizona, Louisiana, Kentucky, Nevada, Texas Motion to Intervene 9/26/2013 ND Cal

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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

Case3:13-cv-03953-SI Document23 Filed09/26/13 Page1 of 43

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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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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

Documents

North Dakota, Arizona, Louisiana, Kentucky, Nevada, Texas Motion to Intervene 9/26/2013 ND Cal