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By Patrick Ambrosio
Dec. 30 — The Sierra Club is seeking a court order that would require the Environmental Protection Agency to issue formal findings that 13 states have failed to submit plans on how they intend to bring Detroit, Indianapolis and other areas into attainment with the 2010 sulfur dioxide standard (Sierra Club v. McCarthy, D.D.C., No. 1:15-cv-2264, 12/29/15).
The environmental organization, in a lawsuit filed Dec. 29, alleged that EPA Administrator Gina McCarthy failed to perform her nondiscretionary duty under the Clean Air Act to issue findings of failure to submit nonattainment area state implementation plans. The issuance of a finding of failure to submit triggers an obligation that the EPA issue a federal implementation plan within two years, unless the state submits an adequate plan.
The 13 affected states are Arizona, Indiana, Iowa, Kentucky, Louisiana, Michigan, Montana, New Hampshire, Ohio, Pennsylvania, Tennessee, West Virginia and Wisconsin. Those states were required to submit their nonattainment plans under the 75 parts per billion sulfur dioxide standard by April 6, but have not yet done so.
The Clean Air Act requires the EPA to issue a formal finding of failure to submit no later than six months after the statutory deadline for plan submittal.
“On October 6, 2015, the statutory six month deadline for EPA to make a finding of failure to submit passed, and to date EPA has made no determinations that any states have failed to submit the required state implementation plan,” the Sierra Club said in its complaint.
The complaint, which was filed in the U.S. District Court for the District of Columbia, requested a declaration that McCarthy is in violation of the Clean Air Act, an order compelling McCarthy to issue the findings by an “expeditious” date and an order that would allow the court to retain jurisdiction over the issue until the findings are issued. The Sierra Club is represented by Zachary Fabish, a staff attorney in the Sierra Club's Washington, D.C., office, and Kathryn Amirpashaie, an environmental attorney with an office in Leesburg, Va.
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