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U.S. DISTRICT COURT EASTERN DISTRICT OF LOUISIANA Concerned Citizens Around Murphy, ( ( Plaintiff, ( ( v. ( ( Bob Perciasepe, in his official capacity as ( Acting Director, U.S. Environmental ( Protection Agency, ( ( Defendant. ( ______________________________________________________________________________ COMPLAINT ______________________________________________________________________________ Plaintiff Concerned Citizens Around Murphy (Concerned Citizens), for its complaint for declaratory and injunctive relief against Defendant Bob Perciasepe, in his official capacity as Acting Administrator of the U.S. Environmental Protection Agency (EPA), states the following: INTRODUCTION 1. Concerned Citizens brings this Clean Air Act citizen suit under 42 U.S.C.

7604(a) to compel EPA to fulfill its duty to modify, terminate, or revoke a Title V permit (No. 2500-00001-V5) that the Louisiana Department of Environmental Quality (LDEQ) issued to an oil refinery in Meraux, Louisiana (Meraux Refinery Title V Permit). PARTIES 2. Concerned Citizens is a non-profit corporation organized under the laws of the

State of Louisiana and is domiciled at 2114 Corinne Drive, Chalmette, St. Bernard Parish, Louisiana. Concerned Citizens is a person within the meaning of 42 U.S.C. 7604(a). Its purpose is to protect the health, safety, environment, and quality of life of St. Bernard residents. 1

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3.

Concerned Citizens members live and recreate around the oil refinery located in

Meraux, Louisiana (Meraux Refinery) to which EPA issued the Meraux Refinery Title V Permit. Concerned Citizens members breathe, use, and enjoy the ambient air around the area of the Meraux Refinery. Excessive air pollution from the Meraux Refinery impairs the members enjoyment and use of their property and neighborhood. For example, Concerned Citizens members often smell nauseating and obnoxious chemical odors from pollutants that the Meraux Refinery emits into their neighborhood. Members worry that breathing these pollutants will impair their health so they spend less time outdoors than they otherwise would to avoid the pollutants. EPAs failure to comply with its duty under the Clean Air Act causes the members to worry that the Meraux Refinery exposes them to excess air pollution that may harm their health. 4. EPAs failure to perform its duty to modify, terminate, or revoke the Meraux

Refinery Title V Permit directly harms Concerned Citizens members because it allows the Meraux Refinery to operate under a Title V permit that fails to meet all applicable requirements and emit more pollutants than a legal permit would authorize. The Clean Air Act grants this Court authority to redress Concerned Citizens injuries by ordering EPA to perform its duty under the Clean Air Act to modify, terminate, or revoke the Meraux Refinery Title V Permit. 42 U.S.C. 7604(a). 5. The Defendant is Bob Perciasepe, EPAs acting Administrator. EPA is

responsible for implementing Clean Air Act requirements. JURISDICTION AND VENUE 6. This Court has subject matter jurisdiction pursuant to Clean Air Act, 42 U.S.C.

7604(a) (compel EPA action unreasonably delayed). This Court also has jurisdiction pursuant to 28 U.S.C. 1331 (federal question jurisdiction) and 28 U.S.C. 2201 (declaratory judgment).

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7.

Venue is proper in this Court pursuant to 42 U.S.C. 7604(a). NOTICE

8.

Concerned Citizens gave notice in compliance with the Clean Air Act, 42 U.S.C.

7604(a)-(b) and 40 C.F.R. Part 54 for its claims by letter sent to EPA via certified U.S. mail postmarked on May 8, 2012 (Notice). Concerned Citizens attached a true and accurate copy of the Notice to this complaint as Exhibit A. 9. Concerned Citizens sent copies of the Notice by certified U.S. mail, postmarked

on May 8, 2012, to Sam Coleman, Acting Regional Administrator of EPA Region 6, Peggy Hatch, LDEQ Secretary, Gov. Bobby Jindal, Mark F. Scobel, Refinery Manager, and the owner of the refinery that the Meraux Refinery Title V Permit coversValero Refining-Meraux, LLC (through its registered agent). 10. More than 180 days have passed since Concerned Citizens provided its Notice to

EPA and to the other recipients. LEGAL FRAMEWORK 11. The Clean Air Act aims to protect and enhance the quality of the Nation's air

resources so as to promote the public health and welfare. 42 U.S.C. 7401(b)(1). 12. Title V of the Clean Air Act requires all major sources of air pollution, such as the

Meraux Refinery, to apply for operating permits that include emission limitations and other conditions as are necessary to assure compliance with the Acts applicable requirements, which include requirements under the Act's Prevention of Significant Deterioration (PSD) program and EPA-approved state air program regulations that implement the Clean Air Act. See 42 U.S.C. 7661a(a) and 7661c(a). 13. States implement the Title V program through EPA-approved state programs that

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meet the requirements of 40 C.F.R. pt. 70. LDEQ is the permitting authority for the State of Louisiana. See 42 U.S.C. 7661a(b) (requiring EPA to promulgate regulations establishing the minimum elements of permit programs); 40 C.F.R. pt. 70 (regulations governing state operating permit programs). 14. The Clean Air Act under 42 U.S.C. 7661d(a) and the Acts implementing

regulations under 40 C.F.R. 70.8(a) require states to submit each proposed Title V operating permit to EPA for review. 15. EPA has an opportunity to object in writing within 45 days of receiving a copy of

the states proposed permit. 42 U.S.C. 7661d(b)(1). 16. If EPA has not objected in writing to the issuance of the permit after the 45-day

review period has elapsed, 42 U.S.C. 7661d(b)(2) provides that any person may petition the [EPA] within 60 days . . . to take such action. 17. If the permitting authority has issued a permit prior to receipt of an objection by

the [EPA] under [42 U.S.C. 7661d(b)(2)], the [EPA] shall modify, terminate, or revoke such permit . . . . 42 U.S.C. 7661d(b)(3) (emphasis added). 18. Tracking 42 U.S.C. 7661d(b)(3), EPA regulations governing Title V petitions

mandate that [i]f the permitting authority has issued a permit prior to receipt of an EPA objection under this paragraph, the [EPA] will modify, terminate, or revoke such permit, and shall do so consistent with procedures in 70.7(g)(4) or (5)(i) and (ii) of this part except in unusual circumstances . . . . 40 C.F.R. 70.8(d) (emphasis added). 40 C.F.R. 70.7(g)(4) provides that the state permitting authority shall have 90 days from receipt of an EPA objection to resolve any objection that EPA makes and to terminate, modify, or revoke and reissue the permit in accordance with the [EPA]s objection.

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19.

If the state permitting authority fails to submit a proposed determination

pursuant to [40 C.F.R. 70.7(g)(2), of termination, modification, or revocation and reissuance, as appropriate] or fails to resolve any objection pursuant to [40 C.F.R. 70.7(g)(4)], the [EPA] will terminate, modify, or revoke and reissue the permit after taking the following actions: (i) Providing at least 30 days' notice to the permittee in writing of the reasons for any such action. . . . (ii) Providing the permittee an opportunity for comment on the Administrator's proposed action and an opportunity for a hearing. 40 C.F.R. 70.7(g)(5). 20. EPAs duty under 42 U.S.C. 7661d(b)(3) and 40 C.F.R. 70.8(d) to modify,

terminate, or revoke a permit that a state permitting authority issued prior to receiving an EPA objection to the permit under 42 U.S.C. 7661d(b)(2) is mandatory. 21. Where the state permitting authority fails to resolve any objection pursuant to 40

C.F.R. 70.7(g)(4), EPAs duty to modify, terminate, or revoke the permit after taking actions pursuant to 40 C.F.R. 70.7(g)(5)(i) and (ii) is mandatory. 22. 42 U.S.C. 7604(a), the citizen suit provision of the Clean Air Act, provides

that [t]he district courts of the United States shall have jurisdiction to compel (consistent with paragraph (2) of this subsection) agency action unreasonably delayed[.] FACTUAL BACKGROUND 23. 24. On October 15, 2009, LDEQ issued the Meraux Refinery Title V Permit. On December 10, 2009, Concerned Citizens submitted a timely petition to EPA

(petition) requesting that EPA object to the Meraux Refinery Title V Permit pursuant to 42 U.S.C. 7661d(b)(2). 25. On September 21, 2011, EPA signed an order granting Concerned Citizens

petition in part pursuant to 42 U.S.C. 7661d(b)(2) (Order). Concerned Citizens attached a

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true and accurate copy of the Order to this complaint as Exhibit B. EPA objected to the Meraux Refinery Title V Permit because, among other reasons, the permit record does not provide an adequate basis for LDEQs determination that PSD requirements do not apply. Application of PSD requirements would require additional pollution controls and air analyses. 26. On December 20, 2011, LDEQ sent a letter to EPA in response to its Order

claiming that the letter supplements the record on the Meraux Refinery Title V Permit. 27. LDEQs December 20, 2011 letter to EPA in response to EPAs Order failed to

resolve the objections in EPAs Order. 28. LDEQ has failed within 90 days from receipt of EPAs Order to resolve the

objections in the Order, and to date has not resolved these objections. 29. LDEQ failed within 90 days from receipt of EPAs Order to terminate, modify, or

revoke and reissue the Meraux Refinery Title V Permit in accordance with EPAs objections, and has not done so to date. 30. LDEQ failed within 90 days after receipt of EPA Order to forward to EPA a

proposed determination of termination, modification, or revocation and reissuance of the Meraux Refinery Title V Permit that meets EPAs objections, and has not done so to date. EPA has not extended this 90-day period. 31. As of the date of this Complaint, EPA has failed to modify, terminate, or revoke

the Meraux Refinery Title V Permit. 32. Since LDEQ did not comply with the 90-day deadline in 40 C.F.R. 70.7(g)(4),

the only available option consistent with 40 C.F.R. 70.8(d) is for the EPA to terminate, modify, or revoke the Meraux Refinery Title V Permit pursuant to procedures under 40 C.F.R. 70.7(g)(5)(i) and (ii).

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33.

EPA has made no finding that unusual circumstances prevent it from initiating

procedures to modify, terminate, or revoke the Meraux Refinery Title V Permit for the Meraux Refinery pursuant to 40 C.F.R. 70.7(g)(5)(i) and (ii). 34. Upon information and belief, EPA has not initiated procedures to modify,

terminate, or revoke the Meraux Refinery Title V Permit pursuant to 40 C.F.R. 70.7(g)(5)(i) and (ii). CAUSE OF ACTION: 35. EPA has delayed unreasonably in discharging its mandatory duty to terminate,

modify, or revoke the Meraux Refinery Title V Permit pursuant to 42 U.S.C. 7661d(b)(3) and will not discharge this duty within a reasonable time unless ordered by the Court to do so. 36. EPA has delayed unreasonably in discharging its mandatory duty to initiate

procedures to modify, terminate, or revoke the Meraux Refinery Title V Permit pursuant to 40 C.F.R. 70.7(g)(5)(i) and (ii), and will not discharge this duty within a reasonable time unless ordered by the Court to do so. PRAYER FOR RELIEF WHEREFORE, Concerned Citizens respectfully prays for this Court to: A. Declare that EPA has unreasonably delayed action to terminate, modify, or revoke the Meraux Refinery Title V Permit. B. Order EPA to terminate, modify, or revoke the Meraux Refinery Title V Permit in accordance with the procedures in 40 C.F.R. 70.7(g)(5)(i) and (ii) within 60 days. C. Award Concerned Citizens the costs of this action with reasonable attorney fees pursuant to Clean Air Act 304(d), 42 U.S.C. 7604(d); and D. Grant such other relief as is just and proper.

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Respectfully submitted on May 15, 2013 by: /s/ Jared Sternberg _________________________________ Jared Sternberg, Student Attorney Tulane Environmental Law Clinic 6329 Freret Street New Orleans, LA 70118 Phone: (504) 865-8814 Fax: (504) 862-8721 Counsel for Concerned Citizens Around Murphy /s/ Corinne Van Dalen _________________________________ Corinne Van Dalen, La. Bar No. 21175 Tulane Environmental Law Clinic 6329 Freret Street New Orleans, LA 70118 Phone: (504) 865-8814 Fax: (504) 862-8721 E-mail: cvandale@tulane.edu Counsel for Concerned Citizens Around Murphy and Supervising Attorney for Jared Sternberg