Casey Voigt; Julie Voigt v. Coyote Creek Mining Company, LLC, a North Dakota Corporation
No. 18-2705
United States Court of Appeals for the Eighth Circuit
June 1, 2021
State of North Dakota; Lignite Energy Council, Amici on Behalf of Appellee(s)
Before LOKEN, SHEPHERD, and STRAS, Circuit Judges.
Appeal from United States District Court for the District of North Dakota - Bismarck
Submitted: December 30, 2020
Filed: June 1, 2021
SHEPHERD, Circuit
Casey and Julie Voigt, the owners of a large ranch in rural North Dakota, filed suit against Coyote Creek Mining Company, LLC (CCMC), alleging CCMC failed to obtain the proper construction permit under the Clean Air Act (CAA),
I.
Pursuant to the CAA, the Environmental Protection Agency (EPA) established National Ambient Air Quality Standards (NAAQS), which are designed to improve air quality by placing limits on six specific
There are two ways for a source of emissions to be considered a major emitting facility. See
As a general matter, when calculating whether a source‘s PTE air pollutants satisfies the threshold so as to constitute a major emitting facility, the source‘s fugitive emissions are excluded. Fugitive emissions are “those emissions which could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening.”
Further, in addition to the PSD provisions’ permitting requirements, generally applicable NSPS have been established for coal processing plants that process more than 200 tons of coal per day. These regulations are contained in Subpart Y--Standards of Performance for Coal Preparation and Processing Plants,
This framework and these regulations are carried out through a cooperative relationship between the EPA and individual states. The CAA delegates to states the primary responsibility for carrying out its purposes, which states accomplish by enacting a State Implementation Plan (SIP) detailing how a state plans to comply with the provisions of the CAA. See
CCMC mines lignite at the Coyote Creek Mine. Lignite is a low-grade coal, which is typically consumed near the mine based on the economics of lignite transportation. Coyote Creek Mine consists of two major components: the mine face itself and the coal processing facility. The mine face is connected to the coal processing facility by a private hauling road, which covers the several mile distance between the two locations. After coal is mined, trucks transport it across the haul road to the coal processing facility, where it is unloaded onto an open storage coal pile at the coal processing facility. The coal pile covers an area of roughly eight acres and can store approximately 180,000 tons of raw, unprocessed coal and abuts a retaining wall that separates the coal pile from the crushing equipment within the coal processing facility.
Although the coal pile has a capacity of approximately 180,000 tons of coal, CCMC has generally maintained the coal pile at between 130,000 to 145,000 tons of coal, and the pile has never dropped below 101,000 tons. CCMC recognizes that it is unlikely to use the reserve raw coal in the pile, unless a long-term emergency affected CCMC‘s ability to mine or deliver coal. In the case of such an emergency, the coal amassed in the coal pile would allow CCMC to meet its contractual delivery obligations for a period of three weeks.
In 2014, prior to construction of the Coyote Creek Mine, CCMC applied for a minor source permit with the NDDOH. The permit application described the entire mining operation, from the coal extraction at the mine face to the processing of the coal at the plant for transfer to Coyote Station. The permit application identified the beginning of the coal processing plant as the apron feeder, where raw coal entered into the processing equipment from the coal pile, making a distinction between the beginning of the crushing and conveying equipment and the coal pile. The application specifically stated that the coal pile is not a part of the coal processing plant because its physical location is before the processing unit and thus the coal pile is not subject to the Subpart Y regulations. Before issuing a permit, the NDDOH reviewed CCMC‘s application and prepared an Air Quality Effects Analysis (AQEA). The AQEA reflected that the coal pile is not a part of the coal processing plant and thus is not subject to the Subpart Y. Because the coal pile is not part of the coal processing plant, the coal pile‘s fugitive emissions are not counted in the calculation of the coal processing plant‘s PTE particulate matter for purposes of determining whether it requires a major source permit, instead of a minor source permit. Based on the emissions from the processing equipment and system alone, the NDDOH determined that the Coyote Creek Mine is a minor source and issued the permit. The NDDOH issued the permit without providing the public the opportunity for notice and comment.
Construction of the mining operation began in 2015, and the mine was operational in 2016. During construction, the Voigts filed suit against CCMC, alleging violations of the CAA and seeking declaratory and injunctive relief and civil penalties. The Voigts alleged that construction of the Coyote Creek Mine required a major source permit, rather than the minor source permit CCMC obtained, and that CCMC‘s coal processing plant violated the CAA because it did not include the requisite dust control plans for coal processing facilities. If the coal pile is part of the coal processing plant, as alleged by the Voigts, Subpart Y would apply to the coal pile and mandate a fugitive dust control plan. Further, a determination that the coal pile is subject to Subpart Y as part of the coal
Both parties moved for summary judgment on the question of whether Subpart Y applies to CCMC‘s coal pile. The district court granted CCMC‘s motion and denied the Voigts’ motion. In a 96-page opinion and order, the district court noted that both the Voigts and CCMC provided plausible interpretations of Subpart Y that would render the coal pile a part of or separate from the coal processing plant. Because the district court concluded that both parties provided plausible interpretations, it found Subpart Y ambiguous and relied on other sources to resolve the ambiguity, including EPA guidance and the NDDOH‘s permitting decision regarding the construction of the Coyote Creek Mine. Giving deference to the NDDOH‘s permitting decision, the district court concluded that the coal pile is not part of the coal processing plant and thus is not subject to Subpart Y. As a result, CCMC is not required to implement a fugitive dust control plan for the coal pile and the coal pile‘s fugitive emissions are excluded from the PTE air pollutants determination, which necessitated only a minor source permit for the Coyote Creek Mine. The Voigts appeal.
II.
The Voigts assert that the district court erred in granting summary judgment to CCMC and in denying their motion for summary judgment because Subpart Y clearly and unambiguously includes the coal pile as part of CCMC‘s coal processing plant, and thus CCMC is required to obtain a major source permit and implement a fugitive dust control plan. Further, the Voigts argue that even if Subpart Y were ambiguous regarding whether the coal pile is part of the coal processing plant, the district court erred in relying on the NDDOH permitting decision to resolve the ambiguity in CCMC‘s favor because the NDDOH is a state agency offering an opinion on federal law that is not entitled to any deference. “We review a district court‘s decision on cross-motions for summary judgment de novo.” Thirty and 141, L.P. v. Lowe‘s Home Ctrs., Inc., 565 F.3d 443, 445-46 (8th Cir. 2009). “Summary judgment is appropriate if viewing the record in the light most favorable to the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005).
The Voigts first assert that the district court erroneously concluded that the regulations are ambiguous, arguing that the clear and unambiguous language pulls the coal pile squarely within the coal processing plant and thus Subpart Y. CCMC asserts, in response, that the regulations, coupled with unambiguous EPA guidance, conclusively demonstrate that the coal pile is not part of the coal processing plant. We agree with the district court that the regulations, standing alone, are ambiguous.
Subpart Y applies to coal processing plants, defined as “any facility (excluding underground mining operations) which prepares coal by one or more of the following processes: breaking, crushing, screening, wet or dry cleaning, and thermal drying.”
The Voigts assert that the definitions of coal processing plant and open storage pile clearly demonstrate that Subpart Y broadly applies to open storage piles, regardless of their location before or after the coal crushing equipment, but the regulations simply do not provide an unambiguous answer to the inquiry here: whether a coal pile that is adjacent to the coal processing equipment, and is used for both storage and loading coal into the coal processing equipment, is “in” the coal processing plant itself. While the regulations clearly contemplate the inclusion of coal piles that are within coal processing plants, they do not provide unambiguous direction as to when exactly a coal pile is “in” a coal processing plant so as to be considered an affected facility subject to Subpart Y requirements.
Because we conclude the regulations are ambiguous, we turn to subsequent interpretative guidance to aid us in determining whether the coal pile is part of the coal processing plant. See Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261, 278 (2009); see also Kisor v. Wilkie, 139 S. Ct. 2400 (2019). Kisor instructs that deference to EPA guidance is appropriate where “(1) the regulation [is] genuinely ambiguous; (2) the agency‘s interpretation of the regulation [is] reasonable; (3) the interpretation [is] the agency‘s authoritative or official position; (4) the interpretation . . . in some way implicate[s] the agency‘s substantive expertise; and (5) the interpretation . . . reflect[s] fair and considered judgment.” Wells Fargo & Co. v. United States, 957 F.3d 840, 855 (8th Cir. 2020) (Grasz, J., dissenting in part) (citing Kisor, 139 S. Ct. at 2415-18).
With respect to the dispositive issues in this case, the EPA has offered clarification on when a coal pile is considered to be “in” a coal processing plant:
It should be noted that if the coal is unloaded for the purpose of storage, then the unloading activity is not an affected facility under NSPS Subpart Y. The coal must be directly unloaded into receiving equipment, such as a hopper, to be subject to the provisions of NSPS Subpart Y.
New Source Performance Standards (NSPS)--Applicability of Standards of Performance for Coal Preparation Plants to Coal Unloading Operations, 63 Fed. Reg. 53288-01, 53289 (Oct. 5, 1998). The EPA further stated in its responses to comments on proposed amendments to Subpart Y that it “interprets coal unloading into the first hopper ‘downstream’
The record reflects that CCMC‘s coal pile plays a necessary role in the process by which coal is directly unloaded into receiving equipment, or the apron feeder; however, the record also reflects that the coal pile is maintained at its size for storage purposes to allow CCMC to fulfill contractual obligations in the event of a delay or shutdown at the mine face. The coal pile is, in essence, a hybrid between a storage and unloading pile. Although the regulations and guidance do not put beyond dispute whether CCMC‘s coal pile is for storage--and unaffected by Subpart Y--or part of direct unloading into receiving equipment--and subject to Subpart Y--we conclude that, using the relevant interpretative guidance and other tools of construction, see Solis v. Summitt Contractors, Inc., 558 F.3d 815, 823-24 (8th Cir. 2009), the more reasonable interpretation is the one advanced by CCMC: the regulations apply only to open storage piles where the piles occur past the first hopper, which is the component into which coal is deposited in bulk and is tapered downward in smaller segments toward the crushing equipment. Because CCMC‘s coal pile occurs before the first hopper, it is not subject to Subpart Y. We note that the NDDOH permitting decision reached the same conclusion that Subpart Y does not apply to CCMC‘s coal pile. Although the NDDOH permitting decision is a useful guide in reaching our decision regarding the most reasonable interpretation of the regulations, we do not defer to the NDDOH decision nor do we rely on it as a dispositive factor in carrying out our interpretative task. See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (“We consider that the rulings, interpretations and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority[,] do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.“). We thus need not address the Voigts’ second argument that the district court erred by affording deference to the NDDOH permitting decision.
On the record before us, we conclude that the most reasonable interpretation of the relevant regulations is that the coal pile is not “in” CCMC‘s coal processing plant. The district court thus did not err in granting summary judgment to CCMC on the basis that the coal pile is not subject to Subpart Y regulations, which would have required a major source permit and a fugitive dust control plan.
III.
For the foregoing reasons, we affirm the judgment of the district court.
STRAS, Circuit Judge, dissenting.
Voigt deference is dead and all I can say is, good riddance. See ante at 11. I am pleased that the court now exercises its own independent judgment to say what the law is, rather than deferring to a state agency‘s view, but it still misreads the regulation at the heart of this case. See