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UNITED STATES DISTRICT COURT
DISTRICT OF NORTH DAKOTA
STATE OF NORTH DAKOTA, et al.,
Plaintiffs,
vs. Case No. 1:13-cv-109-DLH-CSM
GINA McCARTHY, Administrator of the
United States Environmental Protection
Agency,
Defendant.
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MOTION TO HOLD CASE IN ABEYANCE
Defendant Gina McCarthy, Administrator of the United States
Environmental Protection Agency (EPA), respectfully requests that this matter
be held in abeyance until further ordered for the following reasons.
1. This case concerns claims by the States of North Dakota, South
Dakota, Nevada, and Texas (Plaintiffs) that EPA failed to perform a
nondiscretionary action under the Clean Air Act (CAA). ECF No. 1at 1 (citing
42 U.S.C. 7407(d)(1)(B)(i)). Specifically, Plaintiffs allege that EPA has failed to
designate areas of the country as attaining or not attaining the revised National
Ambient Air Quality Standard (NAAQS) for sulfur dioxide as required by CAA
Section 107(d)(1)(B), 42 U.S.C. 7407(d)(1)(B). ECF No. 1 at 1.
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2. The CAAs citizen suit provision allows any person to sue in district
court to compel EPAs Administrator to perform any nondiscretionary act or duty
under the CAA. 42 U.S.C. 7604(a)(2) (The district courts shall have
jurisdiction . . . to order the Administrator to perform such [nondiscretionary act or
duty under the CAA].)
3. Several parties have filed separate actions against EPA in three
different district courts seeking to compel EPA to perform the alleged
nondiscretionary duty at issue here. The Sierra Club and Natural Resources
Defense Council, Inc. filed the first such complaint in the Northern District of
California on August 26, 2013. Sierra Club et al. v. McCarthy, N.D. Cal. Case No.
13-cv-3953-SI, ECF No. 1 (Attachment 1). The Plaintiffs in this action filed their
complaint on September 12, 2013. ECF No. 1. And the State of North Carolina
filed a complaint in the Eastern District of North Carolina on October 9, 2013.
State of North Carolina v. McCarthy, E.D.N.C. Case No. 5:13-cv-710-F, ECF No.
1 (Attachment 2).
4. Motions to intervene as plaintiff-intervenors in the Sierra Club matter
were filed by three of the Plaintiffs in this case (the States of North Dakota,
Nevada, and Texas), as well as the States of North Carolina and Arizona, the
Commonwealth of Kentucky Energy and Environment Cabinet, and the State of
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Louisiana Department of Environmental Quality. Sierra Club, N.D. Cal. Case No.
13-cv-3953-SI, ECF Nos. 16 and 23. The district court granted the motions to
intervene on December 6, 2013.1 Sierra Club, N.D. Cal. Case No. 13-cv-3953-SI,
ECF No. 79 at 1, 3 (Attachment 3).
5. In the same order, the Northern District of California granted
plaintiffs Sierra Club and the Natural Resources Defense Councils motion for
summary judgment on the issue of liability. Sierra Club, N.D. Cal. Case No. 13-
cv-3953-SI, ECF No. 79 at 1, 3 (Attachment 3). The court directed the parties to
confer on the issue of remedy and, if no agreement could be reached on remedy, to
propose a briefing schedule regarding remedy. Id. at 4. The parties in that case,
including parties in the instant case States of North Dakota, Nevada, and Texas,
and EPA, are currently engaged in the process of conferring as to a remedy and
have held conference calls and exchanged information and proposals. The next
telephonic conference is scheduled for February 18, 2014. The parties in the Sierra
Club case also proposed briefing schedules to the court, and a briefing schedule
has been entered in the event the parties fail to reach a mutually agreeable remedy.
1 In response to the motions to intervene, EPA asserted that the proposed
intervenors were not entitled to intervene as a matter of right, but took no position
on permissive intervention. Sierra Club, N.D. Cal. Case No. 13-cv-3953-SI, ECF
No. 79.
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Sierra Club, N.D. Cal. Case No. 13-cv-3953-SI, ECF No. 85. (Attachment 4)
(providing for briefing to be completed by May 14, and a hearing to be held on
May 30, 2014).
6. Any remedy that is stipulated to or ordered in the Sierra Club matter
in the Northern District of California would address the concerns that EPA
anticipates the Plaintiffs would raise in this matter, and would obviate the need to
litigate the issues again before this Court. EPA further anticipates that the remedy
will be entered or decided by the district court in Sierra Club in the relatively near
term, and likely well before the same issue could be briefed and decided by this
Court.
7. For these reasons, EPA did not oppose the motion of the State of
North Carolina to hold in abeyance the action filed by North Carolina in the
Eastern District of North Carolina. State of North Carolina, E.D.N.C. Case No.
5:13-cv-710-F, ECF No. 16 (Attachment 5). The State of North Carolinas motion
was made on the same grounds as this motion. Id. The court granted that motion
on January 8, 2014, and ordered that the parties file a status report no later than
May 8, 2014 (120 days from the date of the order). State of North Carolina,
E.D.N.C. Case No. 5:13-cv-710-F, ECF No. 17 (Attachment 6).
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8. For reasons of economy of resources of both the parties and the
judicial system, there is little value in proceeding in this case in the District of
North Dakota at this time.
Therefore, for all of the foregoing reasons, EPA respectfully requests that
the Court order that:
1. this matter be held in abeyance;
2. all pending deadlines be continued;
3. the parties file a joint status report within 120 days of the date of this
Courts order, setting forth any developments in the Sierra Club matter (or any
other related matter) that may affect the status of this case;
4. any party be allowed at any time to move this Court for an order
terminating, in whole or in part, the order of the Court holding the matter in
abeyance.
A proposed order has been submitted with this motion.
At the case management conference held on January 13, 2014, Plaintiffs
stated that they would oppose a motion for abeyance. See ECF No. 13 at 1 (Order
setting schedule for briefing).
Dated: February 15, 2014 Respectfully Submitted,
/s/ Martha C. Mann
Martha C. Mann
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United States Department of Justice
Environmental & Natural Resources
Division
P.O. Box 7611
Washington, D.C. 20044
martha.mann@usdoj.gov
Tel: 202.514.2664
Of Counsel:
Michael Thrift
United States Environmental Protection Agency
Office of General Counsel
Air and Radiation Law Office (2344-A)1200 Pennsylvania Ave., N.W.
Washington D.C. 20460
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I caused a true and correct copy of the
foregoing to be electronically filed on February 14, 2014. All registered counsel
are to receive notice of the filing via the Courts electronic case filing system.
/s/ Martha C. Mann
MARTHA C. MANN
United States Department of Justice
Environment and Natural Resources
Division
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COMPLAINT 1
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PAUL R. CORT, State Bar No. 184336Earthjustice50 California StreetSan Francisco, CA 94111
pcort@earthjustice.orgTel: 415-217-2000/Fax: 415-217-2040
Attorney for Plaintiffs Sierra Cluband Natural Resources Defense Council
ZACHARY M. FABISH, State Bar No. 247535The Sierra Club50 F Street, NW - 8th FloorWashington, DC 20001zachary.fabish@sierraclub.orgTel: 202-675-7917/Fax: 202-547-6009
Attorney for Plaintiff Sierra Club
UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF CALIFORNIASAN FRANCISCO/OAKLAND DIVISION
SIERRA CLUB and NATURAL RESOURCESDEFENSE COUNCIL
Plaintiffs,v.
REGINA MCCARTHY, in her official capacity asAdministrator of the United States EnvironmentalProtection Agency,
Defendant.
))))))))))))))))
Case No: 3:13-cv-03953
COMPLAINT FOR DECLARATORYAND INJUNCTIVE RELIEF
(Clean Air Act, 42 U.S.C. 7401 et seq.)
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COMPLAINT 2
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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
INTRODUCTION
1. This is a suit to compel the Administrator of the U.S. Environmental Protection
Agency (Administrator or EPA), to take action mandated by the Clean Air Act, 42 U.S.C.
7401 et seq.(the Act) to protect human health from sulfur dioxide (SO2) air pollution in
communities throughout the nation. On June 2, 2010, EPA promulgated a strengthened National
Ambient Air Quality Standard (NAAQS) for SO2 to protect people nationwide from serious harms
due toSO2pollution, including breathing impairment, emergency room visits, lost work days, andother injuries. 75 Fed. Reg. 35,520 (June 22, 2010) (June 2010 SO2NAAQS, revised SO2
NAAQS, or standard). The Act expressly required EPA to promulgate and publish, not later than
June 2, 2013, designations identifying all areas of the nation violating the revised SO2standard, as
well as all areas where the standard is met, and all areas where information is inadequate to make a
designation. 42 U.S.C. 7407(d)(1)(B)(i). EPA has failed to complete the required designations,
thereby violating its nondiscretionary duties under the Act and delaying health and welfare
protections to which Plaintiffs members are entitled.
JURISDICTION, NOTICE, VENUE, AND INTRADISTRICT ASSIGNMENT
2. The instant action arises under the Clean Air Act, 42 U.S.C. 7401 et seq. This
Court has jurisdiction over Plaintiffs claims pursuant to 42 U.S.C. 7604(a) and 28 U.S.C. 1331
1361. The relief requested by Plaintiffs is authorized pursuant to 42 U.S.C. 7604 and 28 U.S.C.
2201, 2202, and 1361.
3. By certified letters posted on June 4, 2013, and June 25, 2013, Plaintiffs Sierra Club
and Natural Resources Defense Council (NRDC) provided the Administrator with written notice,inthe form and manner required by 42 U.S.C. 7604(b), and 40 C.F.R. 54.2, 54.3, of the
Administrators failure to perform nondiscretionary duties under the Act as complained of herein
and their intent to commence this action. More than 60 days have elapsed since Sierra Club and
NRDC gave such notice, and the Administrator has continued her failure to perform such
nondiscretionary duties.
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COMPLAINT 3
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4. Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(e) because: a)
Plaintiff Sierra Club resides in this district; b) this district is one in which Defendant EPA resides
and performs its official duties; and c) a substantial part of the events and omissions giving rise to
this claim has occurred and is occurring in this district because EPAs failure to act as complained of
herein threatens the health and welfare of district residents, including members of Sierra Club and
NRDC (as further detailed herein), and EPAs Regional Office in San Francisco, California, has a
substantial role in implementing the EPA duties at issue in this case.
5. Pursuant to Civil L.R. 3-2(c), (d), this case is properly assigned to the San Francisco
or Oakland Division of this Court because Plaintiff Sierra Club and Defendant EPA both reside in
San Francisco, California.
PARTIES
6. Plaintiff Sierra Club is a national nonprofit conservation organization existing under
the laws of the State of California and headquartered in San Francisco, California. Formed in 1892,
Sierra Clubs mission is to explore, enjoy, and protect the wild places of the Earth, to practice and
promote the responsible use of the Earths resources and ecosystems, to educate and enlist humanity
to protect and restore the quality of the natural and human environment, and to use all lawful means
to carry out those objectives. Sierra Club has been heavily involved in advocacy for effective
implementation of the revised SO2NAAQS. This advocacy has included Sierra Clubs participation
in EPA stakeholder meetings, analyses of dozens of major sources of SO2across the country to
ascertain the impact of those sources on attainment of the NAAQS, submitting comments to federal
and state agencies, and working to educate its members and the public about the scope and
significance of SO2pollution and the NAAQSs implementation.
7. Plaintiff Natural Resources Defense Council (NRDC), a corporation organized and
existing under the laws of the State of New York, is a national nonprofit organization whose purpose
includes safeguarding the Earth, its people, flora, fauna and natural ecosystems, and restoring the
integrity of the elements that sustain life air, land and water. NRDC is headquartered in New
York, New York, and has long maintained an office in San Francisco, California.
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COMPLAINT 4
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8. Sierra Club has more than 598,000 members nationally residing in all fifty states, the
District of Columbia and Puerto Rico, including more than 144,000 members in California and more
than 59,000 in the Northern District of California. NRDC has more than 363,000 members
nationwide residing in all fifty states, the District of Columbia and Puerto Rico, including more than
60,000 members in California and more than 21,000 in the Northern District of California. Sierra
Club and NRDC members live, work, recreate, and conduct other activities in areas1throughout the
nation that EPA has failed to designate for the revised SO2NAAQS as required by the Act. Sulfur
dioxide pollution in such areas adversely affects or threatens the health and welfare of Plaintiffs
members. The acts and omissions of EPA alleged herein cause injury to plaintiffs members by
prolonging air quality conditions that adversely affect or threaten their health and welfare, and by
nullifying or delaying measures and procedures mandated by the Act to protect their health and
welfare from sulfur dioxide pollution in places where they live, work, recreate and conduct other
activities. Accordingly, the health, recreational, aesthetic, and procedural interests of plaintiffs and
their members have been and continue to be adversely affected by the acts and omissions of EPA
alleged herein.
9. The acts and omissions of EPA alleged herein further deprive Plaintiffs and their
members of procedural rights and protections to which they would otherwise be entitled, including,
but not limited to, the right to judicially challenge final SO2designations adversely affecting their
members, the right to enforce requirements of the Act for preparation and implementation of plans to
remedy violations of the revised SO2standard in nonattainment areas and prevent violations in
attainment areas, and the right to comment on and judicially challenge such plans.
10. The EPA acts and omissions alleged herein further injure plaintiffs and their members
by depriving them of information to which they are entitled by law, including, but not limited to,
EPAs published identification of each area in the nation as: a) meeting the revised SO2NAAQS
(attainment); b) not meeting the revised SO2NAAQS (nonattainment); or c) not classifiable as
1For purposes of the Acts designation requirements, EPA ordinarily defines an area as one or
more contiguous counties (or portions thereof), or a metropolitan area. See, e.g., 75 Fed. Reg. at35,552.
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COMPLAINT 5
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meeting or not meeting the NAAQS on the basis of available information (unclassifiable). If
Plaintiffs had access to such information, they would use it to, among other things: educate their
members and the public about the scope of SO2NAAQS violations nationwide, including
identification of areas that violate the revised SO2 NAAQS and areas that meet the NAAQS;
advocate for adoption of adequate measures to bring nonattainment areas into compliance with the
NAAQS and prevent significant deterioration of air quality in attainment areas; advocate for
appropriate action by EPA to determine whether unclassifiable areas meet or do not meet the
NAAQS; and more efficiently target Plaintiffs actions to promote effective implementation of the
revisedSO2 NAAQS. Such information would also assist Sierra Club and NRDC members indetermining whether they are exposed to SO2levels that violate health standards and in taking action
to protect themselves and their families from SO2pollution. The acts and omissions complained of
herein deprive Plaintiffs and their members of the benefits of such information and thus cause them
injury.
11. For all the foregoing reasons, the acts and omissions complained of herein cause
Plaintiffs and their members injuries for which they have no adequate remedy at law. Granting the
requested relief would redress these injuries.
12. Defendant Regina McCarthy is the Administrator of the United States Environmental
Protection Agency. In that role, Administrator McCarthy has been charged by Congress with the
duty to administer the Clean Air Act, including the mandatory duties at issue in this case.
LEGAL FRAMEWORK
13. Congress enacted the Clean Air Act to speed up, expand, and intensify the war
against air pollution in the United States with a view to assuring that the air we breathe throughout
the Nation is wholesome once again. H.R. Rep. No. 91-1146 at 1 (1970), reprinted in1970
U.S.C.C.A.N. 5356, 5356.
14. Under Section 109 of the Act, EPA is required to establish NAAQS for criteria
pollutants in order to protect public health and welfare. 42 U.S.C. 7409. Criteria pollutants are
those pollutants that cause or contribute to air pollution which may reasonably be anticipated to
endanger public health or welfare and are emitted by numerous or diverse mobile or stationary
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COMPLAINT 6
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sources. 42 U.S.C. 7408(a)(1)(A)-(B). The NAAQS establish maximum allowable
concentrations in the air of these pollutants, including SO2.
15. EPA must establish primary NAAQS at a level requisite to protect the public health
with an adequate margin of safety. 42 U.S.C. 7409(b)(1). Once EPA has established NAAQS
for criteria pollutants, the agency is obligated to review and revise the relevant NAAQS at five-year
intervals[.] 42 U.S.C. 7409(d)(1).
16. The Act requires the Governor of each state to submit to the EPA, not later than one
year after promulgation or revision of a NAAQS, a list designating all areas (or portions thereof) in
the State as nonattainment, attainment, or unclassifiable for that NAAQS. 42 U.S.C.
7407(d)(1)(A).
17. A nonattainment area is any area that does not meet (or that contributes to ambient
air quality in a nearby area that does not meet) the [NAAQS] for the pollutant. 42 U.S.C.
7407(d)(1)(A)(i). An attainment area is any area...that meets the [NAAQS] for the pollutant. Id.
at 7407(d)(1)(A)(ii). An unclassifiable area is any area that cannot be classified on the basis of
available information as meeting or not meeting the [NAAQS] for the pollutant. Id. at
7407(d)(1)(A)(iii).
18. EPA must promulgate the designations of all areas (or portions thereof) submitted by
each Governor under 42 U.S.C. 7407(d)(1)(A), with such modifications as EPA deems necessary,
as expeditiously as practicable, but in no case later than two years from the date of promulgation of
the new or revised [NAAQS]. 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. If the Governor of a state fails to submit the list of designations required by 42
U.S.C. 7407(d)(1)(A) in whole or in part, 42 U.S.C. 7407(d)(1)(B)(ii) requires the Administrator
(as part of the action required by 42 U.S.C. 7407(d)(1)(B)(i)) to promulgate the designation that the
Administrator deems appropriate for any area (or portion thereof) not designated by the State. 42
U.S.C. 7407.
19. Thus, at the outside, EPA must promulgate designations for all areas of every state
within three years after the promulgation of a new or revised NAAQS. 42 U.S.C. 7407(d)(1)(B).
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COMPLAINT 7
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Within the same time frame, the Administrator must publish notice in the Federal Register
promulgating the designations required by 42 U.S.C. 7407(d)(1)(B)(i)&(ii). 42 U.S.C.
7407(d)(1)(B)(i), 7407(d)(2)(A).
20. Promulgation of nonattainment designations triggers deadlines for states to submit
plans for attaining the new or revised NAAQS for which the designations are made, and deadlines
for attaining those NAAQS. For SO2, states must submit such plans for areas designated
nonattainment within 18 months of the designation, and those plans must provide for attainment of
the NAAQS as expeditiously as practicable, but no later than 5 years from the date of a
nonattainment designation. 42 U.S.C. 7514(a), 7514a(a).
21. If EPA fails to perform a non-discretionary duty, such as the duty to promulgate and
publish designations of all areas no later than (at the outside) three years from the date of
promulgation of a new or revised NAAQS, 42 U.S.C. 7407(d)(1)(B)(i), the Clean Air Act
authorizes any person to bring suit to compel EPA to perform its duty. 42 U.S.C. 7604(a)(2).
STATEMENT OF FACTS
22. SO2has numerous harmful effects on human respiratory systems, including
narrowing of the airways that can constrict breathing (bronchoconstriction) and increased asthma
symptoms. Short-term exposure to SO2has also been linked to increased hospital and emergency
room admissions for respiratory illness, particularly among children, the elderly, and asthmatics.
23. Based on scientific evidence that the pre-existing SO2NAAQS did not adequately
protect peoples health, on June 2, 2010, EPA promulgated a revision of that standard. Primary
National Ambient Air Quality Standard for Sulfur Dioxide, 75 Fed. Reg. 35,520 (signed June 2,
2010, published June 22, 2010) (to be codified at 40 C.F.R. pts. 50, 53, and 58). Specifically, EPA
established a new one-hour SO2standard at a level of 75 parts per billion. 40 C.F.R. 50.17(a).
24. EPA has estimated that implementation of the revised SO2NAAQS would annually
prevent up to 5,900 premature deaths, 3,900 nonfatal heart attacks, 54,000 cases of asthma
exacerbation, and 290,000 work loss days.
25. Promulgation of the revised SO2NAAQS triggered the Administrators
nondiscretionary duty to promulgate and publish designations under the revised standard for all areas
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COMPLAINT 10
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35. The Administrator did not promulgate or publishnotice in the Federal Registerpromulgating final designations for all areas in each State for the revised SO2NAAQS within three
years of promulgation of that NAAQS.
36. As of the filing of this Complaint, the Administrator has neither promulgated final
designations for all areas in each State for the revised SO2NAAQS, nor has she published notice in
the Federal Register promulgating such designations for all areas in each State.
37. For all the foregoing reasons, the Administrator has failed to perform acts and duties
that are not discretionary with the Administrator within the meaning of the Clean Air Acts citizen
suit provision. 42 U.S.C. 7604(a). EPAs violations are ongoing, and will continue unless
remedied by this Court.
38. Accordingly, an order from this Court is warranted declaring that the Administrator
has failed to perform the above-referenced nondiscretionary acts and duties, and directing her to
perform such acts and duties forthwith.
REQUEST FOR RELIEF
WHEREFORE, Sierra Club and NRDC respectfully request that the Court:
1. Declare that EPA is in violation of the Clean Air Act with regard to its failure to
perform each mandatory duty listed above;
2. Issue a mandatory injunction requiring EPA to perform its mandatory duties by a
certain date forthwith;
3. Retain jurisdiction of this matter for purposes of enforcing the Courts order;
4. Grant Sierra Club and NRDC their reasonable costs of litigation, including attorneys
and expert witness fees; and
5. Grant such further relief as the Court deems proper.
Respectfully submitted,
Dated: August 26, 2013 /s/ Paul R. CortPAUL R. CORT, State Bar No. 184336Earthjustice50 California StreetSan Francisco, CA 94111pcort@earthjustice.orgTel: 415-217-2000/Fax: 415-217-2040
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(Do not cite jurisdictional statutes unless diversity)
(See instructions):
IX. DIVISIONAL ASSIGNMENT (Civil L.R. 3-2)
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Injunctive and Declaratory Relief
SIERRA CLUB and NATURAL RESOURCES DEFENSE COUNCIL
San Francisco
(see attachment)
REGINA MCCARTHY, Administrator, United States EnvironmentalProtection Agency
Clean Air Act, 42 U.S.C. 7401 et seq.
Suit to compel U.S. EPA to promulgate area designations for 2010 sulfur dioxide standard .
08/26/2013 /s/ Paul R. Cort
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CIVIL COVER SHEET
Attachment
I. (c) AttorneysPAUL CORTEarthjustice50 California Street, STE 500San Francisco, CA 94111(415) 217-2000
ZACHARY M. FABISHSierra Club50 F Street, NW - 8th FloorWashington, DC 20001(202) 675-7917
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THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISIONNo. 5:13-CV-710
STATE OF NORTH CAROLINA,
Plaintiff,
v.
REGINA MCCARTHY, in her official Capacityas Administrator of the United States
Environmental Protection Agency,
Defendant.
)
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COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF
28 USCS 2201 and Clean Air Act, 42
U.S.C. 7401 et seq.
The State of North Carolina, by authority of the Attorney General of North Carolina and
through the undersigned attorneys, alleges:
INTRODUCTION
1. The State of North Carolina (Plaintiff) files this suit to compel theAdministrator of the U.S. Environmental Protection Agency (Administrator or EPA), to take
action mandated by the Clean Air Act, 42 U.S.C. 7401 et seq.(CAA) to designate areas
within North Carolina as nonattainment, attainment, or unclassifiable for the revised National
Ambient Air Quality Standard (NAAQS) for sulfur dioxide (SO2). On June 2, 2010, EPA
promulgated a revision of the primary NAAQS for SO2(revised SO2NAAQS). 75 Fed. Reg.
35,520 (June 22, 2010). This promulgation triggered a nondiscretionary duty for EPA to
promulgate designations of areas throughout the country as attainment, nonattainment, or
unclassifiable with respect to the revised SO2NAAQS. EPA did not promulgate such
designations for any areas in North Carolina for the revised SO2NAAQS. At the time of the
filing of this Complaint, EPA continues to fail to promulgate such designations for any areas for
the revised SO2NAAQS within the State of North Carolina.
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8. Defendant Regina McCarthy is the Administrator of the United StatesEnvironmental Protection Agency. In that role, Administrator McCarthy has been charged by
Congress with the duty to administer the Clean Air Act, including the mandatory duties at issue
in this case.
STATUTORY BACKGROUND
9. The CAA requires the EPA to promulgate NAAQS for certain pollutants in theambient air which are known as criteria pollutants, such as SO2. 42 U.S.C. 7408(a)(1).
10. The CAA states that within one year after promulgation of new or revisedNAAQS, the Governor of each State shall submit to the Administrator of EPA a list designating
all areas (or portions thereof) in the State as nonattainment, attainment, or unclassifiable
for that NAAQS. 42 U.S.C. 7407(d)(1)(A).
11. Upon promulgation or revision of a NAAQS, the Administrator shall promulgatethe designation of all areas submitted by the Governor of each State as expeditiously as
practicable, but in no case later than two years from the date of promulgation of the new or
revised [NAAQS]. Id. 7407(d)(1)(B)(i). The Administrator must publish a notice in the
Federal Register promulgating such designations and the deadline for doing so may be extended
for up to one year in the event the Administrator determines that additional information is
needed. Id. 7407(d)(2)(A).
STATEMENT OF FACTS
12. On June 2, 2010, EPA promulgated a revision of the primary NAAQS for SO2.75 Fed. Reg. 35,520 (June 22, 2010). This promulgation triggered the States obligation to
submit designations by June 3, 2011. 42 U.S.C. 7407(d)(1)(a).
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13. North Carolina complied with this obligation and submitted designations for SO2by June 3, 2011. In particular, North Carolina requested that its five counties with monitored
attainment be designated as attainment, that 32 counties be designated as attainment due to
having no or only small SO2sources, and that the remaining 63 counties be designated as
unclassifiable/attainment.
14. The promulgation of the revised SO2NAAQS also triggered the Administratorsnondiscretionary duty to promulgate designations of nonattainment, attainment or unclassifiable
for the revised SO2NAAQS for all areas pursuant to CAA Section 107(d)(1)(B) by no later than
June 2, 2012, and to publish a notice in the Federal Register promulgating those designations. 42
U.S.C. 7407(d)(1)(B)(i).
15. On August 3, 2012, EPA announced in the Federal Register that it was using itsauthority under Section 107(d)(1)(B)(i) of the CAA to extend the deadline for promulgating area
designations for the revised SO2NAAQS by one year. 77 Fed. Reg. 46,295 (Aug. 3, 2012). The
notice stated that, [w]ith this extension, the EPAis now required to complete . . . designations
for this NAAQS by June 3, 2013. Id.
16. On February 6, 2013, EPA acknowledged that no monitors showed violations ofthe revised SO2NAAQS in North Carolina. EPA stated that it was not yet prepared topropose
designation action in North Carolina, and therefore, in direct contravention of the CAA,
indicated that it was deferring action to designate areas in North Carolina. EPA stated that it
anticipated that it would proceed with designation action in North Carolina once additional data
are gathered pursuant to our comprehensive implementation strategy.
17. On April 8, 2013, the Secretary of the North Carolina Department of Environmentand Natural Resources responded to EPA, noting that there is no deferral option for
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designations under the CAA and requesting that EPA designate all areas in North Carolina as
attainment/unclassifiable.
18. On August 2, 2013, pursuant to Section 304(b)(2) of the CAA, 42 U.S.C. 7604(b)(2), North Carolina gave notice to Defendant of North Carolinas intent to sue Defendant
for failure to designate areas for the revised SO2NAAQS.
19. On August 5, 2013, EPA published in the Federal Register final air qualitydesignations for the revised SO2NAAQS for only 29 areas, encompassing parts of only sixteen
states. 78 Fed. Reg. 47,191 (Aug. 5, 2013). EPA only promulgated designations for areas that
included air quality monitors showing nonattainment. EPA did not designate any areas as
attainment even if monitors in those areas showed attainment. EPA did not designate any areas
in North Carolinaincluding areas with monitored attainmentfor the revised SO2NAAQS.
EPA also did not designate any areas in North Carolina as unclassifiable.
20. At the time of the filing of this Complaint, EPA continues to fail to designate anyareas for the revised SO2NAAQS within the State of North Carolina.
21. North Carolina is prejudiced by EPAs failure to follow the requirements of theCAA. North Carolina is charged with submitting a plan that provides for implementation,
maintenance, and enforcement of the revised SO2NAAQS. 42 U.S.C. 7410(a). North
Carolinas efforts to implement the requirements of the CAA are adversely impacted by EPAs
failure to promulgate designations. EPAs failure to designate areas as required by the CAA
subjects North Carolina to a detrimental uncertainty that will negatively affect the States
economy, private development, and the public interest.
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CLAIM FOR RELIEF
Failure to Perform Nondiscretionary Duty to Promulgate Designations of Areas in North
Carolina Regarding the Revised SO2NAAQS
22.
All allegations in paragraphs 1 to 19 of this Complaint are incorporated into this
Claim for Relief as if they were set forth fully herein.
23. The CAA required the Defendant to promulgate designations of all areas in NorthCarolina as attainment, nonattainment or unclassifiable by no later than June 3, 2013.
24. The Defendant failed to perform that duty by said deadline and the Defendantcontinues to fail to perform that duty.
25. Section 304 of the CAA, 42 U.S.C. 7604, permits any person, which includes aState, to bring an action for injunctive relief to compel the Defendant to perform the aforesaid
nondiscretionary duty.
26. The Plaintiff has satisfied the prerequisites to suit set forth in the CAA as set forthabove.
27. For all of the foregoing reasons, the Administrator is in violation of thenondiscretionary duty imposed by 42 U.S.C. 7407(d)(1) and (d)(2) and the Plaintiff is entitled
to a declaration of such violation under 28 U.S.C. 2201 and injunctive relief compelling the
Defendant to perform her duty under 42 U.S.C. 7604.
REQUEST FOR RELIEF
WHEREFORE, the State of North Carolina respectfully requests that the Court:
1. Declare that the Administrator is in violation of the CAA with regard to herfailure to perform the mandatory duties as established above;
2. Issue a mandatory injunction requiring the Administrator to perform hermandatory duties by a certain date set by the Court;
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3. Retain jurisdiction of this matter for purposes of enforcing the Courts order;4. Grant North Carolina its reasonable costs of litigation, including attorneys and
expert witness fees; and
5. Grant such further relief as the Court deems proper.
This 9th day of October, 2013.
Respectfully submitted,
ROY COOPER
Attorney General
By: /s/ Marc Bernstein
Marc Bernstein
Special Deputy Attorney GeneralNC State Bar No. 21642
E-mail Address: mbernstein@ncdoj.gov
North Carolina Department of JusticeP.O. Box 629
Raleigh, NC 27602
Phone Number: (919)716-6600
Fax Number: (919) 716-6767
Attorneys for Plaintiff State of North Carolina
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CIVIL COVER SHEET
(SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
. (a) PLAINTIFFS DEFENDANTS
(b)
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
(c) (Firm Name, Address, and Telephone Number) (If Known)
I. BASIS OF JURISDICTION (Place an X in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an X in One Box for(For Diversity Cases Only) and One Box for Defendan
PTF DEF PTF
(U.S. Government Not a Party) or
and
(Indicate Citizenship of Parties in Item III)
V. NATURE OF SUIT(Place an X in One Box Only)CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
PERSONAL INJURY PERSONAL INJURY
PROPERTY RIGHTS
LABOR SOCIAL SECURITY PERSONAL PROPERTY
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS FEDERAL TAX SUITS
Habeas Corpus:
IMMIGRATION
Other:
V. ORIGIN(Place an X in One Box Only)
(specify)
VI. CAUSE OF ACTION
(Do not cite jurisdictional statutes unless diversity)
VII. REQUESTED INCOMPLAINT:
CLASS ACTION
DEMAND $
JURY DEMAND:
VIII. RELATED CASE(S)IF ANY
(See instructions):
FOR OFFICE USE ONLY
STATE OF NORTH CAROLINA,
See Attachment to Civil Cover Sheet
REGINA MCCARTHY, Administrator, United States EnvironmenProtection Agency
Clean Air Act, 42 U.S.C. 7401 et seq.
Suit to compel U.S. EPA to promulgate area designations for 2010 sulfur dioxide standard
0/09/2013 /s/ Marc Bernstein
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Attachment to Civil Cover Sheet for State of North Carolina v.
Regina McCarthy, Administrator, United States Environmental Protection Agency
Response to Item I. (c)
Marc BernsteinSpecial Deputy Attorney General
North Carolina Department of Justice
P.O. Box 629
Raleigh, NC 27602
NC State Bar No. 21642
Phone Number: (919) 716-6956
Fax Number: (919) 716-6763
E-mail Address: mbernstein@ncdoj.gov
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AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURTfor the
__________ District of __________
)
)))))))))))
Plaintiff(s)
v. Civil Action No.
Defendant(s)
SUMMONS IN A CIVIL ACTION
To: (Defendants name and address)
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.P. 12 (a)(2) or (3) you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 ofthe Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney,whose name and address are:
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.You also must file your answer or motion with the court.
CLERK OF COURT
Date:Signature of Clerk or Deputy Clerk
Eastern District of North Carolina
STATE OF NORTH CAROLINA,
REGINA MCCARTHY, Administrator, United StatesEnvironmental Protection Agency
REGINA MCCARTHY, Administrator of the United States Environmental ProtectionAgencyUnited States Environmental Protection AgencyWilliam Jefferson Clinton Federal Building1200 Pennsylvania Avenue, NW, Washington, DC 20460(Additional representatives of defendant to be served per Fed. R. Civ. P. 4(i)(1)&(2)are listed on Continuation Page)
Marc Bernstein, Special Deputy Attorney GeneralN.C. Department of JusticeP.O. Box 629Raleigh, NC 27602
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AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No.
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)
was received by me on (date) .
I personally served the summons on the individual at(place)
on (date) ; or
I left the summons at the individuals residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date) , and mailed a copy to the individuals last known address; or
I served the summons on (name of individual) , who is
designated by law to accept service of process on behalf of (name of organization)
on (date) ; or
I returned the summons unexecuted because ; or
Other(specify):
.
My fees are $ for travel and $ for services, for a total of $ .
I declare under penalty of perjury that this information is true.
Date:Servers signature
Printed name and title
Servers address
Additional information regarding attempted service, etc:
0.00
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281 Accordingly, the Court finds it unnecessary to address the parties arguments abo
intervention as of right.
2
Department of Environmental Quality, and the states of North Carolina, North Dakota, Arizona, Neva
and Texas (collectively the States) seek to intervene as plaintiffs a matter of right under Federal Ru
of Civil Procedure 24(a), or alternatively permissively under Rule 24(b). Plaintiffs oppose a
intervention by the States, while defendant opposes intervention as of right but takes no position wregard to permissive intervention.
Plaintiffs filed this action for declaratory and injunctive relief seeking to compel defendant
perform her non-discretionary duty under the Clean Air Act to promulgate and publish designatio
identifying all areas of the nation that meet or fail to meet the revised sulfur dioxide national prima
ambient air quality standard (the standard), as well as all areas of the nation where information
inadequate to make a designation. As discussed infra, defendant does not dispute liability, and thus
all that is at issue is the remedy. The States contend that they have a significant protectable interest
this case because, inter alia, the States are responsible for devising and implementing plans to achie
pollution reduction for any areas designated as nonattainment areas. The States argue that they ha
an interest in whatever remedy the Court orders, whether that remedy is limited to setting a deadline f
the EPA to make its designations or also includes requirements that affect the process for makin
designations.
Rule 24(b)(2) provides that on timely application the Court may allow a non-party to interve
when an applicants claim or defense and the main action have a question of law or fact in common
Fed. R. Civ. Proc. 24(b)(2). The language of the rule makes clear that if the would be interveno
claim or defense contains no question of law or fact that is raised also by the main action, interventi
under Rule 24(b)(2) must be denied. But, if there is a common question of law or fact, the requireme
of the rule has been satisfied and it is then discretionary with the court whether to allow intervention
Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1111 (9th Cir. 2002).
The Court exercises its discretion and concludes that the States should be granted permissi
intervenor status.1The States motions are timely, as they were filed one month after this case was file
Even if, as the parties assert, the remedy in this case will be limited to a court-ordered deadline for EP
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2 The Court does not find it appropriate to condition the States intervention in any of the wasuggested by the parties. If necessary and at the proper time, the Court will consider issues regardiattorneys fees and the relationship between this action and the other related cases pending in othcourts.
3
to complete its designations, the States will be directly affected because they have an interest in wh
the EPA makes its designations. The States assert that until the EPA acts on the State
recommendations about sulfur dioxide area designations, the States do not know whether th
individual sulfur dioxide programs are adequate, and they claim that they want the designation procecompleted as soon as possible. It is also undisputed that if the EPA designates areas within any of t
intervening states as nonattainment, the States are required to take steps to bring those areas in
compliance with the standard. For the foregoing reasons, the Court GRANTS the States motions
intervene. Docket Nos. 16 and 23.2
II. Plaintiffs motion for summary judgment
Plaintiffs have moved for summary judgment on the issue of liability, and request an ord
determining that defendant is in violation of her non-discretionary duty under the Clean Air Act
promulgate and publish designations for all areas of each state regarding whether those areas meet t
revised sulfur dioxide national primary ambient air quality standard no later than three years fro
promulgation of the standard on June 2, 2010, 75 Fed. Reg. 35,520 (signed June 2, 2010, published Ju
22, 2010).
Defendant does not dispute liability, and accordingly the Court finds as a matter of law th
defendant is in violation of her non-discretionary duty under the Clean Air Act, 42 U.S.
7407(d)(1)(B), (d)(2)(A) to promulgate and publish designations for all areas of each state for t
standard no later than three years from promulgation of the standard.
///
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The parties are directed to meet and confer regarding the remedy, and if they are unable to agr
on the remedy, the parties shall stipulate if possible to a briefing schedule regarding the remedy. T
parties shall file either a joint stipulation or separate submissions regarding a proposed schedule with
21 days of this order.
IT IS SO ORDERED.
Dated: December 6, 2013SUSAN ILLSTONUnited States District Judge
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SIERRA CLUB, et al.,
Plaintiffs,
v.
REGINA MCCARTHY, in her official capacityas Administrator of the United StatesEnvironmental. Protection Agency,
Defendant. /
No. C 13-3953 SI
ORDER SETTING BRIEFING
SCHEDULE ON REMEDY
The parties and intervenors have filed competing proposals regarding the briefing schedule
on the remedy. The Court hereby adopts the following briefing schedule, which permits for
staggered briefing and separate briefs by the Intervenor States and North Carolina:
Party/Document Due Date Page Limit
Plaintiffs Opening RemedyBrief
March 17, 2014 25 pages
Intervenor-Plaintiffs OpeningRemedy Brief (separate briefsby North Carolina and otherstates permissible)
March 17, 2014 25 pages
Defendants Response April 16, 2014 35 pages
Plaintiffs Response-Reply April 30, 2014 15 pages
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THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINAWESTERN DIVISION
No. 5:13-CV-710
STATE OF NORTH CAROLINA,
Plaintiff,
v.
REGINA MCCARTHY, in her official
Capacity as Administrator of the UnitedStates Environmental Protection Agency,
Defendant.
)
))
))
)
))
)
UNOPPOSED MOTION TO
HOLD CASE IN ABEYANCE
Plaintiff State of North Carolina respectfully requests that the Court hold this
case in abeyance until further order for the following reasons:
1. This case concerns the Defendant U.S. Environmental Protection
Agencys (EPA) alleged failure to take a nondiscretionary action that is required
by the Clean Air Act (CAA). Compl. 22-27 (ECF Doc. No. 1);see also42
U.S.C. 7407(d)(1)(B)(i). The deadline for EPA to take that action passed on
June 3, 2013. Compl. 15, 23 (ECF Doc. No. 1);see also77 Fed. Reg. 46,295
(Aug. 3, 2012). The CAA allows a party to sue in district court to compel EPA to
perform nondiscretionary actions, but the party must first notify EPA of its intent
to sue and allow sixty days to pass. 42 U.S.C. 7604(b)(2).
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2
2. Since June 3, 2013, several parties, including Plaintiff the State of
North Carolina, issued notices to EPA regarding EPAs alleged failure to perform
the nondiscretionary duty at issue in this case.
3. Beginning in August 2013, several parties filed actions against EPA in
different district courts seeking to compel EPA to perform the nondiscretionary
duty at issue in this case. The Sierra Club and Natural Resources Defense Council,
Inc. filed one such case in the Northern District of California on August 26, 2013.
Sierra Club et al. v. McCarthy, 13-cv-3953 (N.D. Cal.). North Carolina filed this
case in the Eastern District of North Carolina on October 9, 2013.
4. Because Sierra Clubwas filed first, North Carolina sought to
intervene as a plaintiff in that case. The district court allowed North Carolinas
motion on December 6, 2013. Order Granting States Motions to Intervene &
Granting Plfs. Mot. for Summ. J. at 1-3, Sierra Club et al. v. McCarthy, 13-cv-
3953 (N.D. Cal. Dec. 6, 2013) (N.D. Cal. ECF Doc. No. 79).
5. In that same order, the Northern District of California granted
judgment to the plaintiffs on the issue of liability. Id.at 3. The court then ordered
the parties to consult on the issue of remedy and, if no agreement could be reached
on remedy, to propose a briefing schedule regarding remedy. Id.at 4. The parties,
including the Plaintiff and Defendant in this case, are currently engaged in the
process of developing a remedy, or in the alternative, a briefing schedule regarding
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3
remedy, in the Northern District of California. No final substantive or procedural
agreements on those issues have yet been reached.
6. North Carolina anticipates that any remedy that is stipulated or
ordered in the Sierra Clubmatter in the Northern District of California would
address the concerns that it intends to raise in the Eastern District of North
Carolina and vitiate the need to litigate the issues here. North Carolina further
anticipates that the questions surrounding remedy will be resolved by the district
court in Sierra Clubin the relatively near term.
7. North Carolina submits that for reasons of economy of resources of
both the parties and the judicial system, there is little value in proceeding right now
with this case in the Eastern District of North Carolina.
8. North Carolina has shared this motion with EPA and North Carolina
represents that EPA does not oppose the granting of this motion.
Therefore, for all of the foregoing reasons, the Plaintiff respectfully prays
that the Court order that:
1. this matter be held in abeyance;
2. all pending deadlines be continued;
3. the parties file a joint status report within 120 days of the date of this
order setting forth any developments in the Sierra Clubmatter (or any other
matter), and any other facts, that may affect the status of this case.
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4. any party be allowed at any time to move this Court for an order
terminating, in whole or in part, the order of the Court holding the matter in
abeyance.
A proposed order has been submitted with this motion.
Respectfully submitted,
ROY COOPER
Attorney General
By: /s/ Marc Bernstein
Marc BernsteinSpecial Deputy Attorney GeneralNC State Bar No. 21642
E-mail Address: mbernstein@ncdoj.gov
By: /s/ Scott Conklin
Scott ConklinAssistant Attorney General
NC State Bar No. 28257
E-mail Address: sconklin@ncdoj.gov
By: /s/ Brenda Menard
Brenda MenardSpecial Deputy Attorney General
NC State Bar No. 35445
E-mail Address: bmenard@ncdoj.gov
North Carolina Department of Justice
P.O. Box 629
Raleigh, NC 27602Phone Number: (919) 716-6600
Fax Number: (919) 716-6767
Attorneys for Plaintiff State of North
CarolinaJanuary 7, 2014
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CERTIFICATE OF SERVICE
I hereby certify that on January 7, 2014, I electronically filed the foregoing
Motion to Hold Case in Abeyance with the Clerk of the Court using the CM/ECF
system which will automatically send notification of such filing to all parties.
ROY COOPER
Attorney General
By: /s/ Marc Bernstein
Marc Bernstein
Special Deputy Attorney GeneralNC State Bar No. 21642
E-mail Address: mbernstein@ncdoj.govNorth Carolina Department of Justice
P.O. Box 629Raleigh, NC 27602
Phone Number: (919)716-6956Fax Number: (919) 716-6763
Attorney for Plaintiff State of NorthCarolina
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THE UNITED STATES DISTRICT COURTFOR THE E STERN DISTRICT OF NORTH C ROLIN
WESTERN DIVISIONNo. 5:13-CV-710
STATE OF NORTH CAROLINA,Plaintiff,
v. ) OR ER) HOL ING C SE INREGINA MCCARTHY, in her official ) BEY NCECapacity as Administrator of the United )States Environmental Protection Agency, )
Defendant. )The Plaintiff State of North Carolina having moved to hold this case in
abeyance, upon good cause shown including the representation that the Defendantdoes not oppose the motion, the Court GRANTS the motion and ORDERS asfollows:
1 This matter shall be held in abeyance until further order of the Court.2. All pending deadlines are continued.3. The parties file a joint status report within 120 days of the date of this
order setting forth any developments in the matter of Sierra Club t al vMcCarthy 13-cv-3953 N.D. Cal.), or any other matter and any other facts thatmay affect the status of this case.
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4. Any party may at any time to move this Court for an orderterminating in whole or in part the order o the Court holding the matter inabeyance.
SO ORDERED.This the 8th day o January 2014.
~ e tJaj {es C. FoxSenior United States District Judge
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