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Voigt v. Coyote Creek Mining Company, LLC

United States District Court, D. North Dakota

July 3, 2018

Casey Voigt and Julie Voigt, Plaintiffs,
v.
Coyote Creek Mining Company, LLC, a North Dakota Corporation, Defendant,

          ORDER GRANTING SUMMARY JUDGMENT OF DISMISSAL

          Charles S. Miller, Jr., Magistrate Judge.

         Before the court are two motions. One is defendant's motion for summary judgment of dismissal, which is supported by amicus briefs from the State of North Dakota and the Lignite Energy Council (“LEC”).[1] The other is plaintiffs' motion for partial summary judgment as to certain issues of liability.

         The court previously denied defendant's motion to dismiss for lack of jurisdiction, abstention, and failure to state claim. Voigt v. Coyote Creek Mining Company, LLC, No. 1-15-cv-00109, 2016 WL 3920045 (D.N.D. July 15, 2016) (“Voigt”). For purposes of convenience, portions of the court's earlier decision will be repeated as appropriate.

         I. GENERAL BACKGROUND

         A. The parties

         Defendant is a coal mining company. At the time of the filing of this action, it had commenced construction of the Coyote Creek Mine in rural Mercer County, North Dakota. During the pendency of this action, construction was completed and mining commenced.

         Plaintiffs are ranchers. They own or lease some 5, 637 acres in rural Mercer County, a significant portion of which either underlies or is in close proximity to defendant's mine. Plaintiffs' primary claim in this action is that defendant did not obtain the correct type of Clean Air Act permit for the construction of its mine, contending it needed a “major source” construction permit instead of the “minor source” permit it sought and received.

         The relationship between plaintiffs and defendant has been a contentious one. Plaintiffs have contested other state and local permits that defendant needed either for construction or operation of its mine.

         B. The Coyote Creek Mine

         The Coyote Creek Mine is a surface mine that mines lignite, which is a low grade coal, i.e., it generates less BTU's on a per ton basis than higher grade coals. Because of its low grade, lignite is typically consumed near the mine because other coals (as well as other fuels) are more economical if they have to be transported any significant distance.

         At this point, the only customer for defendant's mine is the Coyote Station, a coal-fired electric generating plant owned by a consortium of electrical utilities. The Coyote Station is a “mine mouth” plant, i.e., it is located in close proximity to the coal fields that are the source of its fuel, including defendant's coal reserves and mine. The Coyote Station as been in operation for more than three decades and previously had been supplied with lignite coal from another nearby mine.

         The Coyote Creek Mine is not the only lignite mine in North Dakota. There are several other lignite mines that similarly supply other “mine-mouth” electric generating stations, and, in one instance, a commercial coal gasification plant.

         In addition to removing the lignite coal from the ground and transporting to it to the Coyote Station, the Coyote Creek Mine crushes the mine-run coal down to a smaller size before it makes delivery to the Coyote Station. The mine facilities that “process” the coal in this fashion are the particular focus of this action because of the additional regulatory requirements that apply to coal processing facilities under the Clean Air Act.

         C. The Clean Air Act and North Dakota's implementation of the Act

         Under the Clean Air Act (“Act” or “CAA”) as amended, EPA has established national ambient air quality standards (NAAQS) for six pollutants: (1) particulate matter; (2) sulfur dioxide; (3) nitrogen oxides (with sulfur dioxide as the indicator); (4) carbon monoxide; (5) lead; and (6) ozone. E.g., Utility Air Regulatory Group. v. E.P.A., ___U.S. ___, 134 S.Ct. 2427, 2435 (2014). Those areas of the country that meet the standards are classified as “attainment” areas and those that do not are “nonattainment” areas. Id. North Dakota is an attainment area for all of the regulated pollutants.

         An important part of the CAA's scheme to achieve and maintain the NAAQS is its New Source Performance Standards (NSPS) program. The NSPS provisions require EPA to implement technology-based performance standards to limit emissions from new major sources of pollution, including newly constructed facilities and modifications of existing ones that increase emissions. E.g., Sierra Club v. Otter Tail Power Co., 615 F.3d 1008, 1011 (8th Cir. 2010).

         Congress later concluded that the NSPS program and the NAAQS were not enough because they did not prevent against the degradation of air quality in those areas of the country, like North Dakota, where the pollutant levels are lower than the NAAQS. For this reason, Congress amended the CAA to include provisions for the prevention of significant deterioration of air quality (the “PSD” provisions) that are set forth in Part C of Subchapter I of the Act, codified at 42 U.S.C. §§ 7470-7492. Id.

         Among the PSD provisions is a requirement that a “major emitting facility” may not be constructed until it obtains a permit to construct that complies with certain requirements of Part C, including the source's use of best available control technology (“BACT”) for each regulated pollutant emitted from the facility. 42 U.S.C. §§ 7475(a) & 7479(1)-(3). The Act defines a major emitting facility as any stationary source with the potential to emit (“PTE”) 250 tons per year (“tpy”) of any air pollutant, except for certain listed sources for which the threshold limit is 100 tpy. 42 U.S.C. § 7479(1); see generally Alaska Dep't of Environmental Conservation v. E.P.A., 540 U.S. 461, 470-73 (2004) (“ADEC”) (discussing the PSD program and the BACT requirement). For purposes of the discussion that follows: (1) a major emitting facility may be referred to simply as a “major source, ” which is the term the State of North Dakota uses; (2) the requisite threshold for qualifying as a major emitting facility may be referred to as the “major source threshold;” and (3) the construction permit required for a major emitting facility under the federal and state PSD provisions may be referred to as the “major source construction permit” or simply “major source permit.”

         The CAA places primary responsibility upon the states for formulating detailed air pollution control strategies and carrying out the Act's provisions. To accomplish this, the CAA requires that each state adopt and submit to EPA for approval a “State Implementation Plan” (“SIP”) to implement and carry out the policies and goals of the Act. ADEC, 540 U.S. at 470.

         North Dakota has an approved SIP for much of the CAA's requirements, including administration of its PSD provisions. See 40 C.F.R. §§ 52.1820 - 52.1837. Thus, the State is the permitting authority for new facilities that require a major source construction permit. In addition, North Dakota has adopted regulations that impose its own requirements for new facilities that do not need a major source construction permit and for these it issues its own “minor source” construction permit. See generally N.D.A.C. Art. 33-15 (North Dakota's air pollution control regulations).

         The North Dakota Department of Health (“NDDOH”) is the state agency charged with the administration and enforcement of the CAA and North Dakota's air quality laws. N.D.C.C. §§ 23-25-02 & 23-12-03. This includes the responsibility for reviewing construction permit applications and determining whether a major or minor source permit is required. Id.

         D. NDDOH's issuance of a minor source construction permit

         Defendant applied for and received a minor source construction permit from the NDDOH for the Coyote Creek Mine. Prior to issuing the permit, the NDDOH did not give public notice of the filing of defendant's application for the construction permit nor did it invite public participation in the permitting process. (Doc. No. 1-3). What the NDDOH considered or failed to consider in processing the permit application will be addressed in more detail later.

         E. This case

         Plaintiffs make two claims in their Amended Complaint. The primary one is that defendant needed a major source construction permit for its Coyote Creek Mine rather than the minor source permit it was granted. Plaintiffs argue this is because the mine's coal processing facilities (i.e., the part of defendant's coal mine that does the crushing) has a PTE for particulate matter (“PM”) of 250 tpy or more, which is the requisite threshold in this instance for needing a major source construction permit. And, if a major source construction permit is required, this would subject not only the mine's coal processing facilities but also the entire mine to the CAA's and the NDDOH's more onerous requirements for major sources. Why the entire mine would be considered a major source and not just the coal processing facilities will be returned to later.

         Plaintiffs contend for their second claim that defendant is in violation of the CAA's NSPS requirements by operating an open storage coal pile without a fugitive dust control plan as required by 40 C.F.R. § 60.254(c). As explained later, a § 60.254(c) dust control plan is only required if the open storage coal pile is deemed to be part of defendant's coal processing facilities.

         Plaintiffs bring this action pursuant to the “citizen suit” provisions of 42 U.S.C. § 7604(a)(3) as well as 28 U.S.C. § 1331 (federal question jurisdiction). Plaintiffs seek:

(1) a declaration that the Coyote Creek Mine is a major source and that it violated the CAA by constructing the mine without first obtaining a major source construction permit;
(2) a declaration that defendant is in violation of the CAA by operating a new source in violation of a NSPS performance standard (i.e., the standard requiring a fugitive dust control plan that complies with 40 C.F.R. § 60.254(c));
(3) an injunction prohibiting any further construction or operation of the Coyote Creek Mine so long as it is not compliant with the CAA;
(4) assessment of civil penalties in the amount of $37, 500 per day for each day defendant has been in violation of the Act after January 12, 2009, with allocation of $100, 000 of the penalties to a beneficial mitigation project that will provide a local environmental and public health benefit to plaintiffs and other North Dakota residents pursuant to 42 U.S.C. 7604(g);
(5) an award of attorney's fees and costs pursuant to 42 U.S.C. § 76049d); and
(6) a grant of such other and further relief as the court deems proper.

         Defendant denies that it needed a PSD major source construction permit. Defendant contends that the NDDOH correctly determined that the PTE for PM from the coal processing facilities embedded within its mine is negligible and, in any event, not anywhere close to 250 tpy. Consequently, according to the defendant, it needed only a minor source permit to satisfy the State's separate air pollution control requirements and not a PSD major source permit.

         As for the NSPS claim, defendant contends that, while it does have a fugitive dust control plan for the entire mine to meet other regulatory requirements, it does not need one that meets NSPS performance requirements for the coal pile because, according to it, the coal pile is not part of its coal processing facilities to which only the NSPS standards apply.

         F. Defendant's and amicii arguments re lack of jurisdiction and abstention

         There has been much hand-wringing in this case - both by defendant in its prior motion to dismiss and now by the LEC and the State - that this action is an unwarranted collateral attack on a state-issued minor source permit. The court rejected this argument in its earlier order denying defendant's motion to dismiss and rejects it again for the same reasons. Voigt, 2016 WL 3920045, at **4-18.

         Nevertheless, it is worth emphasizing that this case would have come here in a much different posture had defendant requested the NDDOH follow a more formal process in the handling of its application for the construction permit, including providing notice to the public and inviting their participation. Had that process been followed, plaintiffs would have had the opportunity to make the arguments they are now making to the NDDOH; the NDDOH could have addressed them; and then, if either plaintiffs or defendant were disappointed in its decision, there would have been the right of an appeal (first to a state district court and then to the North Dakota Supreme Court) and that appeal could have been resolved based upon a formal administrative record.

         Likewise, to the extent the NDDOH may be concerned about federal court second-guessing of its permit decision, it easily could have justified the use of more formal procedures. NDDOH's regulations not only provide for, but arguably require, use of its “public participation procedures” for “[s]ources for which a significant degree of public interest exists regarding air quality.” N.D. Admin. Code § 33-15-14-02(6)(a)(6). For facility as large as defendant's coal mine, which over its life will impact several thousands of acres and generate substantial fugitive dust - particularly from its haul roads, it would hardly be a reach to conclude there may be significant public interest, which, arguably, is different from active opposition. The court remains puzzled why the NDDOH did not seek public input for an operation of the size and character of defendant's mine.

         II. SUMMARY JUDGMENT STANDARD

         The law governing summary judgment is well known to the court and need not be repeated here. E.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Lonesome Dove Petroleum, Inc. v. Holt, 889 F.3d 510, 514 (8th Cir. 2018).

         III. CAA REQUIREMENTS GOVERNING THE MAJOR SOURCE DETERMINATION

         A. Surface coal mines generally do not have to obtain a major source construction permit because “fugitive emissions” of PM from coal mines are not counted

         To reset the table, the CAA's PSD provisions require that any new major emitting facility obtain a permit to construct. 42 U.S.C. § 7475(a). Under the PSD provisions, a major emitting facility includes certain listed types of industrial sources that have a PTE of 100 tpy for any air pollutant. 42 U.S.C. § 7479(1); 40 C.F.R. §§ 51.166(b)(1)(i)(a) & 52.21(b)(1)(i)(a). For example, the list includes fossil fuel fired steam electric generating plants, petroleum refineries, steel mills, and copper smelters. Surface coal mines are not on the list. Id.

         In addition to the listed types of sources, any other source that has a PTE of 250 tpy for any air pollutant is also a major emitting source. 42 U.S.C. § 7479(1); 40 C.F.R. §§ 51.166 & 52.21(b)(1)(i)(b) & 52.21(b)(1)(i)(b). If there was no other limiting factor, defendant's coal mine would undoubtedly be a major source under this provision. This is because “[m]ost surface coal mines of economically viable size have the potential to emit more than 250 tons of dust.” Natural Resources Defense Council, Inc. v. U.S. E.P.A., 937 F.2d 641, 643 (D.C. Cir. 1991) (“NRDC v. EPA”) (citing EPA, Requirements for Preparation, Adoption and Submittal of Implementation Plans, 49 Fed. Reg. 43211, 43212 (1984)).

         EPA concluded quite sometime ago, however, that it was bound by a court decision holding that the definition of a major emitting facility under 42 U.S.C. § 7479(1) is subject to the generic definitions of “major stationary source” and “major emitting facility” under § 7602(j), which, in turn, were construed to exclude “fugitive emissions” from the threshold calculation of whether a plant is a major source unless EPA has decided by rulemaking that fugitive emissions should be included for the particular source. NRDC v. EPA, 937 F.2d at 643 (discussing the holding of Alabama Power Co. v. Costle, 636 F.2d 323, 369-70 (D.C. Cir. 1979)). And, while EPA has promulgated a list of categories of sources for which fugitive emissions must be counted, it has not added surface coal mines to the list. See 40 C.F.R. §§ 51.166(b)(1)(iii) & 52.21(b)(1)(iii).

         As recounted in NRDC v. EPA, EPA had at one point considered adding surface coal mines to the list for which fugitive emissions would have to be counted but decided against it, recognizing that the decision “not to consider fugitive emissions means that few, if any SCM's [surface coal mines] will be classified as major sources or major modifications.” 937 F.2d at 643. EPA concluded that the costs of requiring fugitive emissions from coal mines to be counted were in excess of the potential benefits, particularly after considering that fugitive dust emissions were already subject to regulation by the Department of Interior under the Surface Mining Control and Reclamation Act of 1977 (“SMCRA”), 30 U.S.C. ch. 25. See EPA, Requirements for Implementation Plans: Surface Coal Mines and Fugitive Emissions; Approval and Promulgation of Implementation Plans, 54 Fed. Reg. 48870 (1989) (“Requirements for Implementation Plans: Surface Coal Mines”). In reaching this conclusion, EPA considered, among other things, that: (1) a major percentage of the fugitive dust emitted by coal mines comes from haul roads and that alternatives to the dust suppression measures already required by SMCRA, such as paving haul roads, would be impracticable; (2) “the relatively low ambient particulate matter contribution from SCM's nationally;” (3) “the low background particulate matter concentrations around SCM's;” (4) “the limited distance from SCM's that ambient impacts occur;” and (5) “the general absence of populations exposed to SCM particulate matter, ” given the remoteness of most mine locations to population centers. Id. at 48873-79. In NRDC v. EPA, the D.C. Circuit upheld EPA's decision not to count fugitive emissions from coal mines, including the permissibility of it having weighed the costs versus the benefits when making the decision. 937 F.2d at 649.

         The point here, which will be returned to later, is that EPA made a policy choice - one based on weighing benefits versus costs - when it decided not to adopt a rule that would require consideration of fugitive emissions of PM from coal mines for the purpose of determining whether coal mines are major sources and the consequences flowing from that determination.

         B. Fugitive emissions from defendant's coal processing facilities must be counted

         While fugitive emissions from coal mines generally do not have to be counted toward determining whether they are major sources, fugitive emissions must be counted for coal processing plants. This is because EPA has included within the list of categories of sources, for which fugitive emissions must be counted, “[a]ny other stationary source category which, as of August 7, 1980, is being regulated under section 111 or 112 of the Act.” 40 C.F.R. §§ 51.166(b)(1)(iii)(aa) & 52.21(b)(1)(iii)(aa).

         As noted earlier, Section 111 of the CAA established the NSPS program for new sources. And, while NSPS performance standards have not been established for coal mines, they have for coal processing plants that process more than 200 tons of coal per day. The governing regulations are set forth in 40 C.F.R. Part 60, Subpart Y--Standards of Performance for Coal Preparation and Processing Plants (herein “Subpart Y”). In this case, defendant's facilities that crush the coal prior to delivery to the Coyote Station fall within the definition of a “coal preparation and processing plant” that is subject to regulation under Subpart Y because defendant's crushing facilities “process” the coal and are capable of handling more than 200 tons of coal per day. Defendant does not dispute that its coal processing facilities are subject to Subpart Y; rather, the dispute is which mine facilities are considered coal processing and subject to Subpart Y and which are not.

         Coal preparation and processing plants (herein “coal processing plants”) are not something unique to coal mines nor do all coal mines necessarily have them. A number of industrial facilities that use coal either for fuel or as a feedstock may have coal processing plants, including, for example, power plants, coke plants, Portland cement plants, synfuels plants, etc. See, e.g., EPA, Model Plant Control Costing Estimates for Units Subject to the NSPS for Coal Preparation Plants (40 C.F.R. Part 60, Subpart Y) (Memo to Coal Preparation Docket EPA-HG-QAR-2008-0260) by Christian Fellner, April 2008) (“Model Plant Control Costing Estimates Memo”). (Doc. No. 38-4). In fact, in this case, the owners of the generating station and defendant undoubtedly could have structured their commercial relationship differently so that the only coal delivered by defendant would be unprocessed mine-run coal and the generating plant would do its own crushing.

         Also, some coal processing plants are more elaborate and physically larger than defendant's coal crushing facility. For example, unlike defendant's facility, some coal processing plants may include a number of different structures and processes between which might run conveyors or haul roads within the processing plants. Some also have elaborate facilities for loading the processed coal onto train cars, ships, etc. See id.

         As noted earlier, the consequence of defendant's mine having a facility for crushing coal is that, if the PTE for fugitive emissions of PM from the coal crushing facility meets or exceeds the 250 tpy threshold, then a major source permit is required not just for it but for the entire mine - even though one would not have been required if the mine did not have a coal processing facility and even though the mine in this case is clearly the primary enterprise.[2] This point is not disputed by the defendant.

         IV. THE OVERRIDING ISSUE UPON SUMMARY JUDGMENT AND ADDITIONAL BACKGROUND RE THE COAL PILE AND UNLOADING OF COAL TO IT

         A. Introduction

         Defendant's minor source permit application and the permit that was issued pursuant to it appear to include only the equipment that actually does the crushing as part of the designated coal processing facilities subject to regulation under Subpart Y of the NSPS provisions. Further, neither the permit application nor the permit contain numerical estimates of PTE for PM for any of the equipment that are considered to be part of the coal processing facilities. Rather, the application and permit simply state that the PTE for fugitive emissions is negligible.

         Plaintiffs contend that defendant failed to include as part of its designated coal processing facilities all of the facilities and equipment that it should have under Subpart Y, including the haul road from the mine pit to where the coal processing takes place and an open coal storage pile that sits adjacent to where the coal is crushed and that supplies the coal for processing. Plaintiffs also contend that, even for the equipment defendant did include, its claim that emissions would be negligible was erroneous. Plaintiffs have proffered calculations of PTE for PM for the facilities and equipment they claim are properly part of defendant's coal processing facilities under Subpart Y. When these calculated amounts are totaled, the estimated PTE for PM exceeds the 250 tpy major source threshold.

         Defendant disagrees with plaintiffs' contention that it did not include all of the necessary facilities and equipment but proffers PTE estimates from it own experts for all of the facilities and equipment that plaintiffs claim should have been included except for its mine haul road, which it contends is clearly not subject to Subpart Y. These estimates in almost all cases are substantially less than those of plaintiffs' expert. Defendant also contends that, if the haul road and the coal pile are deemed not to be part of its coal processing facilities under Subpart Y, then the 250 tpy major source threshold is not reached even accepting the much higher PTE estimates of plaintiffs' expert for the remaining equipment and facilities that plaintiffs' claim are part of the coal processing facilities.

         In the prior order denying defendant's motion to dismiss, the court expressed doubt about whether the mine haul road is part of defendant's coal processing facilities under Subpart Y. And, as discussed later, the court concludes that it is not after considering certain EPA guidance. Consequently, the overriding issue for purposes of summary judgment is whether defendant's open coal storage pile is part of defendant's coal processing facilities and subject to regulation under Subpart Y. This is because, as set forth in detail later, it would be the tipping point in terms of whether the 250 tpy threshold can be reached, even assuming plaintiffs' higher PTE estimates.

         If plaintiffs cannot prove that 250 tpy threshold is reached (and they have the burden), that disposes of their primary claim that a major source permit was needed. Also, if the coal pile is not subject to Subpart Y regulation, that also disposes of their NSPS performance standard claim since defendant is only required to have a fugitive dust control plan that satisfies 40 C.F.R. § 60.254(c) if the coal pile is part of its coal processing facilities under Subpart Y, of which § 60.254(c) is a part.

         Consequently, the primary focus of what follows will be upon whether the coal pile is part of defendant's coal processing facilities and subject to Subpart Y or not. In addressing this issue, the court will consider the governing Subpart Y regulations and discuss why, in this court's view, they do not provide a clear answer. The court will also address various EPA guidance and discuss why that guidance also does not provide a clear answer with respect to the coal pile but does with respect to the haul road.

         However, before proceeding down this pathway, it is necessary first to provide more context by summarizing what defendant presented to the NDDOH in its application for its minor source permit and then consider what the record reflects about defendant's open coal storage pile.

         B. Defendant's minor source permit application

         1. The description of the mine facilities

         Defendant's application for its minor source construction permit described the mine facilities it proposed to construct, starting with the facilities and equipment at the “mine face, ” i.e., where the coal is physically removed from the ground. (Doc No. 1-1, p. 5). The nearest point of the mine face is some three to four miles southwest of the Coyote Station. (Id. at p. 4).

         The application then recited that the mined coal would be transported from the mine face over a haul road several miles to an open storage pile that would be located just outside of and physically adjacent to where defendant would construct a coal crushing facility, which, in turn, would be located next to the site of the Coyote Station. The open storage pile would store approximately 180, 000 tons of coal, have a base area of roughly 700 feet by 500 feet, and cover a surface area of approximately 350, 000 square feet, or approximately eight acres. (Id. at p. 5).

         According to the application, the stockpiled coal would be pushed into a “receiving pocket and apron feeder” by dozers operating on top of the pile “where it enters the coal processing facility.” From there, the coal would be conveyed by the apron feeder a short distance to where it would then undergo both primary and secondary crushing. After the coal is crushed, it would fall onto a “conveyer belt” owned and operated by the Coyote Station “at which point it is no longer considered part of the CCMC permit.” (Id.)

         The application stated that specially designed enclosures surrounding its coal processing and conveying equipment would control the fugitive dust, with fogging if necessary. In air pollution control parlance, the enclosures are referred to as PECS (“passive enclosure containment system”). The application stated that no measurable emissions of PM to the atmosphere were expected with the use of these control systems. Hence, the estimate of PTE for PM from its coal processing facilities was that it would be “negligible.” (Id. at 13).

         According to the application, defendant expected to produce approximately 2.5 million tons of coal annually with the capability of being able to produce up to 3.2 million tons per year - the highest amount that it stated it would process without seeking additional approval from the NDDOH. (Id. at 4).

         In its prior order, the court incorporated the following diagram taken from one of the defendant's briefs. (Doc. No. 38-6). While obviously not-to-scale, it does illustrate the flow of the coal and layout of the mine facilities relative to each other as well as the point where defendant initially contended the coal processing plant begins (labeled as the “Beginning of NSPS Applicability”). Hence, the diagram is set forth again for the same purpose.

         (Image Omitted)

         2.The application's explanation for why a major source permit was not required

         Defendant's application provided an explanation for why the coal mine would not be a major source and, for that reason, only a minor source permit to construct was required to satisfy North Dakota's separate air pollution control requirements. Generally speaking, the application worked its way through the applicable federal statutes and regulations previously described, noting in particular that: (1) the only pollutant that would be emitted from the coal mine is PM; (2) the only emissions that would need to be counted for purposes of determining whether the mine is a major source would be those from the mine's coal crushing facilities; (3) the only emissions of PM from defendant's coal processing facilities would be fugitive emissions because no emissions would be mechanically vented; and (4) the fugitive emissions from defendant's coal crushers and conveying equipment were expected to be negligible based on the control imposed by the PECS. (Doc. No. 1-1, pp. 7-10).

         As for the PTE for fugitive emissions of PM from the coal pile and the unloading of coal onto it, the application stated that these were not counted because the coal pile and the unloading of coal to it were considered not to be part of the coal crushing facilities subject to regulation under Subpart Y. In support of this conclusion, the application referenced the definition of “coal processing and conveying equipment” in 40 C.F.R. § 60.251(g) as well as what defendant contended is the applicable guidance from EPA. According to the application, EPA had taken the position that the beginning of a coal processing plant is the point where coal is first loaded into an apparatus that receives coal for processing (“first hopper”). The application stated that, in this instance, this would be the point where coal enters a “receiving pocket” after being pushed into it by a dozer from the coal pile where it is conveyed a short distance to the crushers and that this point is downstream from the coal storage pile. (Id. at pp. 11-13).

         C. The coal pile

         Depending upon how one interprets the relevant parts of Subpart Y and EPA's various guidance, the location, size, and functions of the coal pile may be relevant to determining whether it is a part of defendant's coal processing facility and subject to Subpart Y.

         1. The location and physical layout of the coal pile

         The coal pile and the adjacent facilities that crush the coal are located immediately adjacent to the Coyote Station plant site, some three to four miles from the active mining area. Connecting the active mining area to the coal pile and the adjacent crushing facilities is a mine haul road that is located within a narrow ribbon of mine permit area. Set forth below is a mine facilities location map (Doc. No. 85-5, p. 27) that visually depicts the location of the coal processing facilities relative to the active mining area and the Coyote Station.

         (Image Omitted)

         As noted by the earlier schematic showing the flow of the mined coal, the coal pile abuts up to a concrete retaining wall that separates the coal pile from the crushing equipment and the conveyor that conveys the coal after it is crushed to the Coyote Station. The apron feeder that conveys the coal to the crushing equipment extends out from the concrete wall into the coal pile. Set forth below is a photograph of the retaining wall and the structure surrounding the apron feeder (Doc. No. 94-2) taken prior to the coal pile being established.

         (Image Omitted)

         The next photograph (Doc. No. 85-18, p. 2) is an aerial shot taken after the coal pile was established and the mine operating.

         (Image Omitted)

         Two points are particularly notable about this photograph. One is the size of the coal pile relative to the point where coal is pushed from the pile into the apron feeder, as depicted by the location of the apron feeder in the first photograph as well as in succeeding photographs. The other is the line drawn on the photograph that encircles the area of the coal pile, the retaining wall, the crushing equipment, parts of the haul road, and a portion of the conveyor leading to the Coyote Station. Plaintiffs' position is that most, if not all, of the encircled area is part of defendant's coal processing facilities. This includes the haul road (particularly after it reaches the general area of the coal processing facilities), the coal pile, the retaining wall, the crushing equipment, and the conveyor (even that part extending beyond the encircled area and onto Coyote Station property).

         2. Unloading of coal at the coal pile and loading into the apron feeder

         As noted by the diagram set forth earlier, once coal is removed from the earth at the mine face, it is hauled directly to the coal pile over the mine haul road and is deposited onto the coal pile by belly-dump trucks that have a capacity of carrying 240 tons of coal. (Doc. No. 90-8, p. 22).

         The record reflects that, once the coal pile was established, quite frequently the coal from the mine is dumped in the immediate area of the apron feeder and bulldozed into or on top of the apron feeder for fairly immediate conveyance for crushing. Less often coal will be pushed from the rest pile to the apron feeder during periods when coal is not being hauled from the pit. Also, coal may occasionally be pushed from the other areas of the pile to the immediate area of loading into the apron feeder if necessary to even out the quality of the coal being delivered. (Doc. Nos. 83-2, pp. 2-3; 90-1, pp. 14-18, 111-12; 90-4, pp. 19, 58-59; 90-8, p. 8).[3]

         Set forth below is a screen shot (Doc. No. 117-2) from a video taken of a belly-dump truck unloading coal.

         (Image Omitted)

         The next photograph (Doc. No. 94-3) is one of defendant's two dozers bulldozing coal over the top of the area of the buried apron feeder.

         (Image Omitted)

         The primary dozer has within it equipment that allows the operator to control the operation of the apron feeder, including its speed, which, in turn, controls the rate defendant's equipment processes the coal and dumps it onto the conveyor for delivery. Further, the operator of the dozer has the ability to communicate with the Coyote Station to coordinate the operation of the conveyor belt, which it controls. In short, under normal operations, one person - the dozer operator - is able to control the operation of the coal processing equipment from on top of the coal pile. (Doc. No. 90-1, pp. 29-35, 49-79).

         The next photograph (Doc. No. 90, p. 35) is taken from the coal pile with the structure surrounding the apron feeder and the apron feeder exposed. The wheel-like piece of equipment at the end of the short run of the conveyor part of the apron feeder is the primary crusher. As discussed later, the apron feeder is actually a “feeder breaker.” Also, as discussed later, defendant contends that most of the time (but not necessarily all) the apron feeder and breaker are completely covered by the coal pile as coal is being loaded into it.

         (Image Omitted)

         3. Other points re the coal pile

         As noted earlier, defendant's permit application states that the open storage pile may store upwards of 180, 000 tons of coal and have a base area of roughly 700 feet by 500 feet (i.e., 350, 000 square feet), which is approximately eight acres. The record developed in this case reflects that, within the first few month of mining, the coal pile was built up to the point where it stored more than 100, 000 tons of coal, and has been consistently maintained above that level since that time. According to mine officials: (1) from mid-2016 when the mine began commercial operation to August 2017 (just prior to the filing of the motions in this case), the coal pile never fell below 101, 000 tons and it reached that level only once following a long holiday coupled with a snowstorm; (2) the more or less steady delivery of coal as it is being mined replenishes the storage pile as coal is removed for crushing and delivery with some fluctuation for short periods when mining is not taking place or the power plant is down or running at reduced load; and (3) the desired inventory during normal operations is between 130, 000 to 145, 000 tons, which represents about a three week supply; and (4) the purpose for that inventory is to provide a source of supply in the event of an emergency or other unexpected halt of mining in the pit for an extended period. (Doc. No. 83-2).

         These points have not reasonably been controverted by plaintiffs. While one of their experts contends that the coal pile is nothing more than a “surge pile” that exists to even out short-term fluctuations in delivery, the evidence set forth above does not bear this out. In fact, the graph showing the fluctuations in inventory level of the coal pile that plaintiffs themselves submitted as part of their brief demonstrates that roughly 2/3's of the inventory (at least in terms of quantities of coal) during the time frame considered was unaffected by daily operations. (Doc. No. 90, p. 18).

         (Image Omitted)

         Hence, to the extent it is material, the bulk of the coal is in the pile is for longer than “temporary storage” - a term that EPA has used in at least one of its guidance, as discussed later.

         The same plaintiffs' expert also expresses the opinion that defendant's coal pile is needed for the loading of the coal into the receiving structure for processing. While it is true that the coal pile does facilitate loading, it is readily apparent that most of the pile is not required for that purpose based on the foregoing, including particularly the aerial photograph showing the large size of the pile relative to the retaining wall and the immediate area where coal is dumped into the apron feeder. Further, there is nothing that required defendant to locate its coal storage pile at its present location. Defendant could have placed it elsewhere in the mine and then conveyed the coal by truck or conveyor to the point where it would undergo crushing. In addition, it would have been possible to build a ramp to the apron feeder or possibly use a much smaller coal pile to facilitate loading. (Doc. Nos. 90-1, p. 47; 94-1). Most likely, however, the receiving facilities would have been configured differently had the coal pile been located elsewhere.

         Finally, two other things may be relevant to whether defendant's coal pile should be considered a part of its coal processing facilities or simply another part of the mine. One is that defendant's coal pile is compromised only of mine-run, unprocessed coal. The Coyote Station has its own enclosed storage of processed coal that is of much smaller capacity and provides for about a three day supply. (Doc. Nos. 70-1, p. 19; 83-2, pp. 2-3; 90-2, pp. 53-54 90-4, pp. 63-64). The other is that, if defendant delivered only mine-run coal and the Coyote Station did its own processing, defendant would have needed a storage pile of the same size to maintain its contractual commitments for delivery during periods when active mining is not taking place or there is an unexpected mine outage.

         V.GOVERNING SUBPART Y REGULATIONS

         A. Introduction

         In addressing the question of whether the coal pile is part of defendant's coal processing facilities, the court starts first with EPA's formally promulgated regulations governing coal processing plants. In this case, neither party contends that EPA's regulations are contrary to the CAA. Rather, the primary question is one of interpretation of the regulatory language and its application to the particular circumstances of this case.

         B. Subpart Y of 40 C.F.R. Pt. 60

         Subpart Y of 40 C.F.R. Pt. 60 (§§ 60.250 through 60.256) contains most of the regulations governing coal processing plants, including setting performance standards for purposes of the CAA's NSPS program. Subpart Y includes the following definition of coal processing plants:

(e) Coal preparation and processing plant means 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). In addition, Subpart Y also refers to “affected facilities” that are specifically listed as being the following:

Thermal 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.

         40 C.F.R. § 60.250(d) (italics added).[4]

         The reason for the separate definition of “affected facilities” is that Subpart Y only imposes performance standards on “affected facilities” of the coal processing plant and not on the entire plant. As will be addressed in more detail later, the list of “affected facilities” was expanded in 2009 when Subpart Y was amended to include, amongst other things, specific provisions dealing with “open storage piles.” But, to be clear, for the issue of whether the PTE for PM emissions reaches the 250 tpy major source threshold, any emissions point that is part of the coal processing plant must be considered, not just affected facilities. See, e.g., Letter from C. Newton, Acting Dir. of EPA's Air and Radiation Div. to J. McCabe, Ass't Comm'r of the Ind. Dept of Env. Management (March 9, 2003) (http:/www.epa.gov/sites/production/files/2015-08/documents/20030306.pdf) (last accessed June 30, 2018).

         In addition to the definition of a coal processing plant and the list of affected facilities, several additional Subpart Y definitions are relevant. They are:

(f) Coal processing and conveying equipment means 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.
(h) Coal storage system means any facility used to store coal except for open storage piles.
* * * *
(m) Open storage pile means 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.

40 C.F.R. § 60.251(f), (h), (m).

         Finally, there is the following provision that leads off Subpart Y:

(a) The provisions of this subpart apply to affected facilities in coal preparation and processing plants that process more than . . . . (200) tons of coal per day.

40 C.F.R. § 60.250(a) (italics added).

         C. Contentions of the parties based on the Subpart Y language

         Plaintiffs contend this court need look no further than the language of Subpart Y in determining whether the coal pile is part of defendant's coal processing facilities given:

• The specific inclusion of open coal storage piles in Subpart Y.
• The location of the coal pile, including that: it is physically adjacent to where the crushing takes place; it is located at the terminus of the haul road over which coal is hauled from the “mine face;” and it is located on the same graded area that includes the apron feeder and crushing equipment.
• The fact that the coal pile is intertwined, both physically and operationally, with the crushing activity in that it: (1) provides storage for the coal processing (the coal in the pile goes nowhere else and much of it is bulldozed almost immediately after dumping on the pile into the apron feeder); (2) the pile provides physical support for the loading activity; and (3) the primary ...

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