CASE 0:12-cv RHK-JSM Document 9 Filed 02/01/13 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA

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1 CASE 0:12-cv RHK-JSM Document 9 Filed 02/01/13 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA NATIONAL PARKS CONSERVATION ASSOCIATION, MINNESOTA CENTER FOR ENVIRONMENTAL ADVOCACY, FRIENDS OF THE BOUNDARY WATERS, VOYAGEURS NATIONAL PARK ASSOCIATION, FRESH Civil No (RHK/JSM ENERGY and SIERRA CLUB, Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and LISA P. JACKSON, in her official capacity as EPA ADMINISTRATOR, Defendants. ANSWER By and through their undersigned counsel, Defendants United States Environmental Protection Agency ( EPA, and Lisa P. Jackson, in her official capacity as EPA Administrator (collectively Defendants or EPA herein respond to Plaintiffs Complaint for Declaratory and Injunctive Relief. EPA responds to each paragraph of the Complaint as follows: 1. EPA admits that Exhibit A to the Complaint is a letter from Thomas L. Strickland, Assistant Secretary for Fish Wildlife and Parks, Department of the Interior, to Bharat Mathur, Acting Regional Administrator, EPA Region 5, dated October 21, 2009, which speaks for itself and is the best evidence of its The remainder of Paragraph 1 states legal conclusions to which no response is required. In addition, the last sentence in Paragraph 1 states Plaintiffs characterization of the case to which no response is required.

2 CASE 0:12-cv RHK-JSM Document 9 Filed 02/01/13 Page 2 of 8 2. Paragraph 2 states Plaintiffs characterization of the case and legal conclusions to which no response is required. 3. Paragraph 3 states legal conclusions to which no response is required and the cited statutes speak for themselves and are the best evidence of their 4. EPA admits that Exhibit B to the Complaint is a letter from Reed Zars on behalf of Plaintiffs to Lisa P. Jackson, Administrator of EPA, sent by certified mail and dated May 9, 2012, which speaks for itself and is the best evidence of its EPA admits that a copy of the letter was provided to the EPA Region 5 Regional Administrator. EPA is without knowledge or information sufficient to form a belief as to the truth of the allegations regarding whether the letter was provided to the Secretary of the Interior or Xcel Energy and therefore denies same. In addition, the first sentence of Paragraph 4 states legal conclusions to which no response is required. 5. EPA admits that more than 180 days have passed since May 9, The remainder of the first sentence of Paragraph 5 states a legal conclusion to which no response is required. EPA admits that it did not contact Plaintiffs regarding the May 9, 2012 letter. EPA admits that it has not issued a proposed or final site-specific RAVI BART determination for Sherco. 6. Paragraph 6 states legal conclusions to which no response is required and the quoted statutory provision speaks for itself and is the best evidence of its 7. Paragraph 7 states legal conclusions to which no response is required. However, EPA admits that the United States District Court for the District of Minnesota is within the Eighth Circuit Court of Appeals. 2

3 CASE 0:12-cv RHK-JSM Document 9 Filed 02/01/13 Page 3 of 8 8. EPA is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 8 and therefore deny same. 9. EPA is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 9 and therefore deny same. 10. EPA is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 10 and therefore deny same. 11. EPA is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 11 and therefore deny same. 12. EPA is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 12 and therefore deny same. 13. EPA is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 13 and therefore deny same. 14. EPA is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 14 and therefore deny same. 15. Paragraph 15 states legal conclusions to which no response is required. To the extent a further response may be deemed to be required to the allegations contained in Paragraph 15, EPA denies same. 16. Paragraph 16 states legal conclusions to which no response is required. To the extent a further response may be deemed to be required to the allegations contained in Paragraph 16, EPA denies same. 17. Paragraph 17 states legal conclusions to which no response is required. To the extent a further response may be deemed to be required to the allegations contained in Paragraph 3

4 CASE 0:12-cv RHK-JSM Document 9 Filed 02/01/13 Page 4 of 8 17, EPA denies same. 18. EPA admits that Lisa P. Jackson is the Administrator of EPA and that she is sued in her official capacity. The remainder of Paragraph 18 states legal conclusions to which no response is required. 19. EPA admits that it is the federal agency charged with implementation of the Clean Air Act. 20. The cited statutory provision speaks for itself and is the best evidence of its EPA admits that the Secretary of the Interior has determined that visibility is an important value at 156 national parks and wilderness areas that are mandatory Class I Federal Areas. 21. The cited statutory provision speaks for itself and is the best evidence of its In addition, Paragraph 21 states legal conclusions to which no response is required. 22. EPA admits that it issued regulations regarding visibility in two phases, which regulations speak for themselves and are the best evidence of their The last sentence of Paragraph 22 states Plaintiffs characterization of the case and a legal conclusion to which no response is required. 23. Paragraph 23 states legal conclusions to which no response is required and the cited statutory provision speaks for itself and is the best evidence of its 24. EPA admits that Minnesota failed to amend its SIP in response to EPA s 1980 regulations and that EPA has promulgated a FIP for Minnesota with respect to the RAVI requirements of the CAA and EPA s regulations. The cited Federal Register notice speaks for itself and is the best evidence of its 4

5 CASE 0:12-cv RHK-JSM Document 9 Filed 02/01/13 Page 5 of The cited regulations speak for themselves and are the best evidence of their 26. EPA admits the factual allegations contained in the first two sentences of Paragraph 26. The regulation cited in the third sentence of Paragraph 26 speaks for itself and is the best evidence of its 27. Paragraph 27 states legal conclusions to which no response is required and the cited regulations and Federal Register notice speak for themselves and are the best evidence of their 28. The cited regulation speaks for itself and is the best evidence of its 29. Paragraph 29 states a legal conclusion to which no response is required and the October 21, 2009, letter speaks for itself and is the best evidence of its 30. The October 21, 2009, letter speaks for itself and is the best evidence of its 31. The October 21, 2009, letter speaks for itself and is the best evidence of its 32. The cited Federal Register notice speaks for itself and is the best evidence of its 33. The cited Federal Register notice speaks for itself and is the best evidence of its 34. Paragraph 34 states legal conclusions to which no response is required. 35. Paragraph 35 calls for speculation as to what would constitute RAVI BART at Sherco and EPA therefore denies the allegations contained in Paragraph 35. In addition, the 5

6 CASE 0:12-cv RHK-JSM Document 9 Filed 02/01/13 Page 6 of 8 implicit suggestion in Paragraph 35 that RAVI BART is required for Sherco is a legal conclusion to which no response is required. 36. The cited Federal Register notice speaks for itself and is the best evidence of its 37. EPA admits that Minnesota s final regional haze SIP did not require the installation of selective catalytic reduction to reduce nitrogen oxide emissions at Sherco. 38. Paragraph 38 states a legal conclusion to which no response is required. 39. Paragraph 39 states legal conclusions to which no response is required. 40. EPA hereby incorporates its responses to all previous paragraphs by reference. 41. Paragraph 41 states legal conclusions to which no response is required and the cited statutory provision speaks for itself and is the best evidence of its 42. Paragraph 42 states legal conclusions to which no response is required and the cited statutory provision speaks for itself and is the best evidence of its 43. Paragraph 43 states a legal conclusion to which no response is required and the October 21, 2009, letter speaks for itself and is the best evidence of its 44. Paragraph 44 states legal conclusions to which no response is required and the cited regulations and Federal Register notice speak for themselves and are the best evidence of their 45. Paragraph 45 states legal conclusions to which no response is required. 46. Paragraph 46 states legal conclusions to which no response is required. 47. Paragraph 47 states legal conclusions to which no response is required. 48. Paragraph 48 and the remainder of Plaintiffs Complaint state its prayer for relief 6

7 CASE 0:12-cv RHK-JSM Document 9 Filed 02/01/13 Page 7 of 8 to which no response is required. 49. To the extent any factual allegation of Plaintiffs Complaint has not been specifically admitted, EPA denies such allegation. DEFENSES 1. Plaintiffs Complaint fails to state claims for which relief can be granted. 2. EPA is under no mandatory duty to make a RAVI BART determination for Sherco. 3. Injunctive relief should not be awarded against EPA for equitable reasons. 4. Even if Plaintiffs were to prevail on their first claim for relief, the only available injunctive remedy is an order requiring that EPA act. The Court may not direct the substance of any subsequent EPA action. 5. An award of costs and fees against EPA is inappropriate. WHEREFORE, EPA prays that: A. the Court dismiss Plaintiffs Amended Complaint against it; B. the Court award EPA its costs and disbursements in this action; and C. the Court award such other relief as is just and appropriate. 7

8 CASE 0:12-cv RHK-JSM Document 9 Filed 02/01/13 Page 8 of 8 Respectfully submitted, IGNACIA S. MORENO, Assistant Attorney General s/david A. Carson DAVID A. CARSON (CO United States Department of Justice Environment and Natural Resources Division th Street South Terrace, Suite 370 Denver, Colorado ( david.a.carson@usdoj.gov Dated: February 1, 2013 CERTIFICATE OF SERVICE It is hereby certified that on February 1, 2013, the undersigned caused the foregoing Defendants Answer to be served electronically on counsel in this case who are registered with the Court s ECF system by filing it electronically with the Court. Any counsel not registered for ECF service will be served by first class mail. /s/david A. Carson David A. Carson 8