Casey Voigt; Julie Voigt v. Coyote Creek Mining Company, LLC, a North Dakota Corporation

United States Court of Appeals
For the Eighth Circuit
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No. 18-2705
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Casey Voigt; Julie Voigt
lllllllllllllllllllllPlaintiffs - Appellants
v.
Coyote Creek Mining Company, LLC, a North Dakota Corporation
lllllllllllllllllllllDefendant - Appellee
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State of North Dakota; Lignite Energy Council
lllllllllllllllllllllAmici on Behalf of Appellee(s)
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Appeal from United States District Court
for the District of North Dakota - Bismarck
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Submitted: December 30, 2020
Filed: June 1, 2021
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Before LOKEN, SHEPHERD, and STRAS, Circuit Judges.
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SHEPHERD, Circuit Judge.

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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), 42 U.S.C.
§ 7401, et seq., and failed to implement the requisite dust control plan for the Coyote
Creek Mine, which is adjacent to the Voigts’ ranch. CCMC moved for summary
judgment on the Voigts’ claims, and the Voigts moved for partial summary judgment
on issues of liability. The district court1 granted summary judgment in favor of
CCMC, concluding the federal regulations imposing permitting and dust control
requirements do not apply to CCMC’s operations. The Voigts appeal, arguing the
district court erroneously determined the regulations are ambiguous and improperly
relied on the North Dakota Department of Health (NDDOH) permitting decision to
reach its conclusion. Having jurisdiction under 28 U.S.C. § 1291, we affirm.
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 air pollutants, including, as relevant here,
particulate matter. 42 U.S.C. §§ 7408-09; see also Util. Air Regul. Grp. v. EPA, 573
U.S. 302, 308 (2014). Particulate matter is the air pollutant most commonly
associated with mining operations. Areas of the country where the air quality meets
the NAAQS are called attainment areas, while areas that do not meet these standards
are known as non-attainment areas. 42 U.S.C. § 7407(d). North Dakota is an
attainment area. As part of its plan to achieve and maintain the NAAQS, the EPA
created New Source Performance Standards (NSPS), which impose emission
standards on new major sources of air pollution, including newly constructed
facilities, and on modifications to existing facilities that would increase emissions.
1The Honorable Charles S. Miller, Jr., United States Magistrate Judge for the
District of North Dakota, now retired, to whom the case was referred for final
disposition by consent of the parties pursuant to 28 U.S.C. § 636(c).
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See Sierra Club v. Otter Tail Power Co., 615 F.3d 1008, 1011 (8th Cir. 2010).
However, because the NSPS are aimed at helping achieve and maintain the NAAQS,
they do not prevent air quality degradation in attainment areas, like North Dakota,
where the air quality meets the NAAQS. See Alaska Dep’t of Envtl. Conservation v.
EPA, 540 U.S. 461, 470-71 (2004). Recognizing that this gap existed, Congress
amended the CAA to include prevention of significant deterioration of air quality
(PSD) provisions, which apply to attainment areas and impose permitting
requirements on the construction of “major emitting facilities.” Id.; 42 U.S.C. §§
7475, 7479(1). A major emitting facility may not be constructed until a major source
permit is obtained, which requires compliance with various regulations, including the
planned use of best available control technology for each pollutant emitted by the
facility. 42 U.S.C. § 7475(a)(4); see also Chevron, U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837, 846 (1984).
There are two ways for a source of emissions to be considered a major emitting
facility. See 42 U.S.C. § 7479(1). First, a source constitutes a major emitting facility
if it is a stationary source that is included on the list of specified industrial facilities
that have a potential to emit (PTE) 100 tons per year (tpy) of any air pollutant. Id.
Second, any other stationary source that has a PTE of at least 250 tpy of any air
pollutant constitutes a major emitting facility. Id. Surface coal mines are not included
on the list of specified industrial facilities subject to the 100 tpy threshold. See id.
Therefore, the only way for a surface coal mine to be considered a major emitting
facility, and thus to fall within the PSD provisions and require a construction permit,
is if it has a PTE of at least 250 tpy of any air pollutant.
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.” 40 C.F.R. § 51.166(b)(20). For mining operations, fugitive emissions
generally take the form of coal dust. Although fugitive emissions are generally
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excluded, the EPA has promulgated a list of categories of sources for which fugitive
emissions must be counted. See id. §§ 51.166(b)(1)(iii), 52.21(b)(1)(iii). Surface coal
mines are not included on that list. Therefore, although most surface coal mines have
the PTE more than 250 tpy of dust, see Natural Resources Defense Council, Inc. v.
EPA, 937 F.2d 641, 643 (D.C. Cir. 1991), those emissions consist almost entirely of
fugitive emissions and, thus, the surface coal mines do not, by themselves, constitute
major emitting facilities. The EPA has provided, however, that fugitive emissions
must be counted when calculating the PTE air pollutants for a coal processing plant.
See 40 C.F.R. §§ 51.166(b)(1)(iii)(aa), 52.21(b)(1)(iii)(aa). Therefore, a coal
processing plant that has a PTE more than 250 tpy of any air pollutant, the calculation
of which includes fugitive emissions, is considered a major emitting facility.
Moreover, where the coal processing plant meets this threshold and is a part of a
mining operation that also consists of a surface coal mine, the entire mining operation
is considered a major emitting facility. Accordingly, the PSD provisions and
construction permit requirement would apply to the entire mining operation, including
the surface coal mine.
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, 40 C.F.R.
pt. 60, Subpart Y. Among the Subpart Y requirements, an open storage coal pile in
a coal processing plant must have a fugitive dust control plan. 40 C.F.R. § 60.254(c).
The parties agree that CCMC’s coal processing plant is subject to Subpart Y;
however, they dispute which portions of CCMC’s operations constitute a part of the
coal processing plant. This is of critical importance because what portions of the
operation are part of the coal processing plant dictates which portions are subject to
Subpart Y NSPS and are included in calculating the major source PTE air pollutants
threshold. In short, those parts of the mining operation that are considered within the
coal processing plant are subject to permitting and dust control requirements simply
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because the regulations distinguish between coal processing plants and surface coal
mines.
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 42 U.S.C. § 7410. A state’s SIP is subject to EPA
approval. See id. North Dakota has an EPA-approved SIP, which includes
administration of PSD provisions. The practical effect of this set-up is that North
Dakota, through the NDDOH, is the permitting authority for new facilities that require
a major source construction permit under the CAA. In addition to the CAA
requirements, North Dakota has adopted regulations that impose their own
requirements on new facilities that do not qualify as major sources under the CAA,
including mandating that these facilities obtain a minor source permit prior to
construction. See N.D. Admin. Code § 33.1-15-14-03. Both the major and minor
source permitting decisions are handled by the NDDOH.
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. Near the top of the retaining wall is an apron feeder, which is
where the coal is fed into the crushing equipment. The apron feeder is located a
significant distance off the ground, but is rarely visible because it is typically covered
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by the top of the coal pile. Coal is usually drawn into the apron feeder with the
assistance of gravity, but in the circumstances where the apron feeder is visible
because the coal pile is not high enough to cover it, CCMC uses bulldozers to push
the coal directly into the feeder. Once the coal is loaded from the coal pile through
the apron feeder, it is fed through the primary and secondary crushing equipment,
which are housed in an enclosed area within the coal processing facility. Once the
coal is processed, it is again transported by conveyor system to the Coyote Station, a
coal-fired electric generating plant and CCMC’s lone customer for the Coyote Creek
Mine.
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
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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 processing plant would also bring the coal
pile’s fugitive emissions within the PTE air pollutants threshold calculation. Thus,
whether the coal pile is subject to Subpart Y is determinative of both claims.
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
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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.
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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.”
40 C.F.R. § 60.251(e). But Subpart Y imposes performance standards on only
“affected facilities in coal preparation and processing plants that process more than
. . . (200 tons) of coal per day.” Id. § 60.250(a) (emphasis added). Affected facilities
for the purposes of Subpart Y performance standards is defined to include “[t]hermal
dryers, pneumatic coal-cleaning equipment (air tables), coal processing and conveying
equipment (including breakers and crushers), coal storage systems, transfer and
loading systems, and open storage piles.”2 Id. § 60.250(d) (emphasis added). Thus,
an open storage pile, defined as “any facility, including storage area, that is not
enclosed that is used to store coal, including the equipment used in the loading,
unloading, and conveying operations of the facility,” id. § 60.251(m), is subject to
Subpart Y as an affected facility where it is in the coal processing plant. However, the
regulations do not define what it means for an affected facility to be “in” a coal
processing plant.
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
2The parties do not dispute the application of Subpart Y to the coal processing
and conveying equipment, defined as “any machinery used to reduce the size of coal
or to separate coal from refuse, and the equipment used to convey coal to or remove
coal and refuse from the machinery. This includes, but is not limited to, breakers,
crushers, screens, and conveyor belts. Equipment located at the mine face is not
considered to be part of the coal preparation and processing plant.” 40 C.F.R.
§ 60.251(f).
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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’ from any form of transportation to be the beginning of the ‘coal
preparation plant.’” Response to Comments Received on Proposed 2009
Amendments, Standards of Performance for Coal Preparation and Processing Plants
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(Subpart Y), R. Doc. 38-5, at 89; see also Standards of Performance for Coal
Preparation and Processing Plants, 74 Fed. Reg. 51950-01, 51952 (Oct. 8, 2009) (“A
coal preparation and processing plant begins at the first hopper (i.e., drop point) used
to unload coal . . . .”).
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.
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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 40 C.F.R. § 60.250(a). For the reasons stated in my original
dissent, the better interpretation is that Coyote Creek’s coal pile is “in” the coal-
processing plant, id., so the pile, just like the rest of the plant, is subject to Subpart Y,
id. §§ 60.250–.258. See Voigt v. Coyote Creek Mining Co., 980 F.3d 1191, 1206–07
(8th Cir. 2020) (Stras, J., dissenting). Alas, the court disagrees, so I must still
respectfully dissent.
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