Utah Physicians for a Healthy Env't v. Kennecott Utah Copper, LLC
| Decision Date | 08 June 2016 |
| Docket Number | Case No. 2:11-CV-01181 |
| Citation | 191 F.Supp.3d 1287 |
| Parties | UTAH PHYSICIANS FOR A HEALTHY ENVIRONMENT, Wildearth Guardians, Utah Moms for Clean Air, and Sierra Club, Plaintiffs, v. KENNECOTT UTAH COPPER, LLC, Defendant. |
| Court | U.S. District Court — District of Utah |
Charles R. Dubuc, Western Resource Advocates, Joro Walker, Salt Lake City, UT, Samantha Ruscavage–Barz, Wildearth Guardians, Santa FE, NM, for Plaintiffs.
John R. Jacus, Davis, Graham & Stubbs, LLP, Denver, CO, Michael A. Zody, Elizabeth A. Schulte, Jacob A. Santini, Michael L. Larsen, Parsons, Behle & Latimer, Salt Lake City, UT, for Defendants.
Plaintiffs Utah Physicians for a Healthy Environment, WildEarth Guardians, Utah Moms for Clean Air, and Sierra Club (Citizen Groups) filed this citizen suit alleging that Defendant Kennecott Utah Copper, LLC has violated the Clean Air Act (CAA).1 Citizen Groups and Kennecott both moved for summary judgment.2 Because the court concludes that Kennecott has complied with the unambiguous plain language of the controlling federal regulation, the court grants Kennecott's Motion for Summary Judgment and denies Citizen Groups' Motion for Summary Judgment.
At its core, this case is about the legal interpretation of a federal regulation enacted pursuant to the CAA to limit the production of certain pollutants into the air in Salt Lake County. The CAA regulates air quality in the United States through a federal-state partnership.3 The Environmental Protection Agency develops National Ambient Air Quality Standards (NAAQS) for each criteria pollutant, of which there are currently six.4 One of the criteria pollutants regulated by EPA is particulate matter, in two particle size ranges: PM10—less than 10 microns in diameter but greater than 2.5 microns in diameter; and PM2.5—equal to or less than 2.5 microns in diameter.5
EPA sets the NAAQS at levels necessary to protect public health and welfare.6 Once EPA promulgates these standards, the states are responsible for ensuring that pollution does not exceed them.7 Each state is divided geographically into air quality control regions.8 With input from the states, EPA issues formal designations on whether each air quality control region meets the NAAQS.9 Air quality control regions that meet the NAAQS for a given pollutant are designated attainment areas, while air quality control regions that do not are designated nonattainment areas.10
States are required to adopt State Implementation Plans (SIPs) detailing methods each state will use to attain and maintain the NAAQS in each air quality control region.11 SIPs must "include enforceable emission limitations and other control measures, means, or techniques ... as may be necessary or appropriate to meet the applicable requirements" of the CAA.12 States submit the SIPs to EPA, which reviews the plans to determine if they meet the requirements of the CAA.13 If a SIP satisfies the applicable requirements, EPA must approve it.14
Once EPA approves a SIP, it becomes federal law enforceable in appropriate circumstances by the promulgating state, EPA, and interested individuals.15 "EPA may require a state to alter an approved SIP if it finds, through notice-and-comment rulemaking, that the SIP ‘is substantially inadequate to attain or maintain the relevant [NAAQS] ... or to otherwise comply with any requirement of [the CAA].’ "16 If EPA finds that an approved SIP is substantially inadequate, it can require the relevant state to revise the SIP by issuing a SIP call.17 If the state fails to revise the SIP, EPA can assume control over the implementation of the CAA in the state. EPA can also issue a SIP correction if it decides that it erred in approving a provision in a SIP.18
Citizens also have several routes under the CAA to challenge a SIP or call for its implementation. Through Section 307 of the CAA citizens can challenge both EPA's decision to approve a SIP, as well as the content of the SIP itself.19 Citizens must file Section 307 challenges within 60 days of EPA's final SIP approval. Jurisdiction over these challenges rests with the appropriate federal court of appeals.20 Citizens can also allege a violation of an emission standard or limitation in a SIP under Section 304(a) of the CAA.21 Federal district courts have jurisdiction over these types of challenges. Section 304(a)(2) also permits citizens to attempt to force EPA to make a SIP call by claiming that EPA failed to perform a non-discretionary act.22
The dispute in this case involves the interpretation of the PM10SIP for the Salt Lake County air quality control region, which EPA approved in 1994.23 Citizen Groups bring a Section 304(a) challenge under the CAA, alleging Kennecott is in violation of the 1994 PM10SIP as written. The 1994 PM10SIP regulates Kennecott's Bingham Canyon Mine, which is located in the Salt Lake County nonattainment area, as a stationary source of air pollution.24 The Mine is included in the SIP because it generates a significant amount of particulate pollution through the movement of material during the mining process. A provision in the SIP limits the total amount of material that Kennecott may move at the Mine within each 12–month period in order to limit particulate pollution. Referencing the Utah Air Conservation Regulations (UACR), the SIP provides, "Total material moved (ore and waste) shall not exceed 150,500,000 tons per 12–month period without prior approval in accordance with Section 3.1, UACR."25 The SIP incorporates the referenced UACR.26
Since 1994, Kennecott has twice sought and received Approval Orders from the State of Utah in accordance with Section 3.1 of the UACR. These Approval Orders authorized increases in the limitation on the total amount of material Kennecott may move at the Mine.27 In 1999, the State approved an increase in the material moved limit to 197 million tons per year; and in 2011, the State increased the limit to 260 million tons per year.28 Relying on these Approval Orders, Kennecott has exceeded every year since 2006 the 150.5 million tons per year material moved limitation in the 1994 PM10SIP.29 Kennecott, however, has only increased its material moved after first securing approval from the State, and has not exceeded either the 197 million ton per year limit specified in the 1999 Approval Order or the 260 million ton per year limit specified in the 2011 Approval Order.30
Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."31 In determining whether there is a genuine issue of fact, the court "view[s] the evidence and make[s] all reasonable inferences in the light most favorable to the nonmoving party."32 In the present case, which turns on the legal interpretation of a regulatory provision, the facts are not in dispute in any relevant respect.
In their cross motions for summary judgment, the Parties disagree about the meaning of the material moved provision of the 1994 PM10SIP for Salt Lake County. The provision reads:
Total material moved (ore and waste) shall not exceed 150,500,000 tons per 12–month period without prior approval in accordance with Section 3.1, UACR.33
Citizen Groups allege that Kennecott has failed to comply with the 1994 PM10SIP and its limit on material moved.34
In response, Kennecott argues that the court lacks jurisdiction over Citizen Groups' challenge and that it has met the requirements of the SIP's material moved provision by obtaining Approval Orders before moving material in excess of the 150.5 million ton per year limit. Citizen Groups contend that the Approval Orders on their own could not authorize a deviation from the specified material moved limit in the SIP. In Citizen Groups' reading, obtaining State approval in accordance with Section 3.1 of the UACR is a necessary but not sufficient condition for exceeding the 150.5 million ton per year limit.35 Citizen Groups argue that the SIP requires Kennecott to secure approval from EPA in addition to the State. Alternately, Citizen Groups argue that Kennecott was required to modify the SIP through approved processes before moving material at present levels.
This case is divided into two phases. Phase 1 is "focused exclusively on liability." And Phase 2, if necessary, will be "focused on remedies, including injunctive relief and/or penalties."36 Both Parties have moved for summary judgment on the question of liability.37
Below, the court first addresses the threshold jurisdiction issue, concluding that the court has jurisdiction over the Citizen Groups' challenge. Next, the court addresses the merits of the pending motions. The court concludes that the plain language of the SIP authorizes an increase in material moved once the State issues a valid Approval Order pursuant to Section 3.1 of the UACR, and that neither EPA approval nor a modification to the SIP itself is necessary for Kennecott to move material above the default limit. Kennecott is thus in compliance with the SIP as written, and is not liable under the CAA.
The court grants summary judgment in Kennecott's favor.
Kennecott argues that Citizen Groups lack standing to bring this suit because they are actually challenging the legality of the SIP's material moved provision.38 The court agrees that Citizen Groups lack standing to challenge the legality of the SIP, but concludes that they are instead permissibly challenging Kennecott's compliance with the SIP as written. The court has subject-matter jurisdiction in this case based on the citizen suit provision of the CAA, which provides a right to sue in federal district court any person "who is alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of ... an emission standard or limitation."39 A standard or limitation contained within a...
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