Voigt v. Coyote Creek Mining Co.
| Decision Date | 15 July 2016 |
| Docket Number | Case No. 1:15-cv-00109 |
| Parties | Casey Voigt and Julie Voigt, Plaintiffs, v. Coyote Creek Mining Company, LLC, a North Dakota Corporation, Defendant |
| Court | U.S. District Court — District of North Dakota |
ORDER GRANTING MOTION TO AMEND COMPLAINT AND DENYING MOTION TO DISMISS
Before the court are two motions. The first is by defendant Coyote Creek Mining Company, LLC to dismiss on grounds of lack of subject matter jurisdiction and failure to state a claim. The second is by plaintiffs Casey and Julie Voigt to amend their complaint that was filed after the motion to dismiss.
Defendant is a coal mining company. At the time of the filing of this action, defendant had commenced construction of a new surface coal mine that would supply lignite coal to a nearby coal-fired electric generating plant (the "Coyote Station") owned by third parties.
Plaintiffs are ranchers. They own or lease some 5,637 acres, a significant portion of which either underlies or is in close proximity to defendant's mine as permitted by state authorities pursuant to North Dakota's laws governing surface mining.
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) ("Otter Tail Power").
As discussed in more detail later, Congress concluded that its 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. The PSD provisions are the primary focus of this action.
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 anyair 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") (). 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, it 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 ().
The North Dakota Department of Health ("NDDOH") is the 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 applications for permits to construct and determining whether a major or minor source permit is required. Id.
In this case, defendant applied for and received a minor source construction permit from the NDDOH for its new coal mine. Prior to issuing the permit, the NDDOH did not conduct a public hearing, nor did it give formal notice of the filing of defendant's application and invite public participation in the permitting process, either by providing an opportunity for requesting a hearing or the submission of comments. Apparently, this was because the NDDOH's rules allow for the processing of minor source permits informally and without public notice. (Doc. No. 1-3).
Finally, so far as the court can tell, the only record of what occurred before the NDDOH is defendant's permit application and the minor source permit issued by the NDDOH, both of which plaintiffs attached to the initial complaint as exhibits. (Doc. Nos. 1-1 & 1-2). And, while defendant's application provides an explanation for why the coal mine would be a minor source and, for that reason, did not need to satisfy the CAA's PSD requirements, including obtaining a major source construction permit, there is nothing in the permit that was issued that indicates why the NDDOH apparently agreed.
The fact that the NDDOH processed defendant's permit informally and without creating much, if any, contemporaneous record explaining its decision for why defendant's mine will be a minor source and not a major one has consequences for what follows.
Plaintiffs claim in this action that defendant needed to obtain a major source permit and comply with the CAA's and North Dakota's PSD requirements. This is because, according to plaintiffs, the coal mine as designed will have a PTE (potential to emit) for particulate matter ("PM") of 250 tpy or more, which is the requisite major source threshold in this instance.
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 coal mine is a major source; (2) injunctive relief enjoining construction and operation of the mine until a major source permit is obtained; and (3) civil penalties for defendant having proceeded with construction without obtaining a major source permit.
Defendant has responded to plaintiffs' complaint by filing a motion to dismiss claiming lack of subject matter jurisdiction and failure of the complaint to state a cause of action. More particularly, defendant contends the court lacks jurisdiction under the citizen suit provisions of 42 U.S.C. § 7604 because it has a permit in hand, albeit a minor source permit. Alternatively, defendant argues this court should abstain from exercising jurisdiction on the grounds that this action is nothing more than a collateral attack on the NDDOH's determination that defendant's coal mine is not a major source, hence only a minor source construction permit was required, and that plaintiffs have an adequate remedy under state law to challenge the legality of this determination. As for its alternative grounds, defendant contends that plaintiffs' complaint fails to plead sufficient facts to state a claim and that, even if it does, there is no claim as a matter of law because the coal mine is not a major source based on what has been pled.
Following the filing of defendant's motion to dismiss, plaintiffs moved to amend their complaint. In their proposed amended complaint, plaintiffs have alleged more detail in an attempt to overcome defendant's lack-of-specificity objections. Defendant opposes the motion to amend on the jurisdictional grounds previously alleged as well as contending that, even if amended, the complaint would fail to state a claim so the motion to amend should be denied on grounds of futility.
Plaintiffs' proposed amended complaint differs from the original in three ways. First, it alleges with more certainty that the PTE for fugitive emissions of PM from that portion of defendant's coal mine that crushes the coal (defendant's coal processing facility) will exceed the major source threshold and for that reason the entire mine required a major source construction permit. In fact, at various points, the amended complaint references an accompanying affidavit by an engineer for support. It appears these changes were made to address defendant's contention that the allegations in the original complaint based upon information and belief were insufficient under the applicable pleading standards to state a claim for relief.
The second principal change...
To continue reading
Request your trial