Voigt et al v. Coyote Creek Mining Company, L.L.C., a North Dakota Corporation

Filing 40

ORDER by Magistrate Judge Charles S. Miller, Jr. denying 7 Motion to Dismiss; granting 11 Motion to Amend/Correct Complaint. (BG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Casey Voigt and Julie Voigt,
Plaintiffs,
vs.
Coyote Creek Mining Company, LLC,
a North Dakota Corporation,
Defendant,

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ORDER GRANTING MOTION
TO AMEND COMPLAINT AND
DENYING MOTION TO DISMISS

Case No. 1:15-cv-00109

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.
I.

BACKGROUND
A.

The parties

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 coalfired 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.
B.

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;
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(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 any

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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, 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 (North Dakota’s air pollution control regulations).
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. §§ 2325-02 & 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.

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C.

NDDOH’s issuance of a minor source permit

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.
D.

This case

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.

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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.

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II.

PLAINTIFFS’ MOTION TO AMEND THE COMPLAINT
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 is the addition of an allegation that the impact of certain
controls built into the design of defendant’s coal processing facility cannot be considered in making
the determination of whether the mine is a major source because defendant’s minor source permit
lacks a “federally enforceable” emissions limit. The third change is that, unlike the complaint, the
amended complaint no longer has attached to it as exhibits defendant’s application for its minor
source permit and the minor source permit issued by the NDDOH.
Generally speaking, leave to amend a complaint pursuant to Fed. R. Civ. P. 15(a)(2) should
be freely granted “[u]nless there is a good reason for denial, ‘such as undue delay, bad faith, or
dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the non-moving party, or futility of the amendment[.]’” Becker v. Univ. of Neb. at
Omaha, 191 F.3d 904, 907-08 (8th Cir. 1999) (quoting Brown v. Wallace, 957 F.2d 564, 566 (8th
Cir. 1992)). In this case, the court will allow plaintiffs to amend the complaint given that the case
is still in its infancy, the changes are by no means frivolous, and the interests of justice support

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making the determination of whether plaintiffs have pled a viable claim based on the allegations of
the amended complaint.1 Nevertheless, the court will consider defendant’s permit application and
the minor source permit in ruling on the motion to dismiss since both are public records and the fact
that they were attached as exhibits to their initial complaint.
III.

DEFENDANT’S JURISDICTIONAL CHALLENGES
A.

Defendant’s argument that the court lacks jurisdiction because it obtained a
permit to construct, albeit a minor source one

Plaintiffs rely upon the following language of the CAA’s citizen suit provisions of 42 U.S.C.
§ 7604 not only as a basis for the court’s jurisdiction but also for their cause of action that defendant
failed to get a major source construction permit as required by Part C of subchapter I of the CAA
(the PSD provisions):
(a) Authority to bring civil action; jurisdiction
Except as provided in subsection (b) of this section any person may commence a
civil action on his own behalf –
****
(3) against any person who proposes to construct or constructs any new or modified
major emitting facility without a permit required under part C of subchapter I of this
chapter (relating to significant deterioration of air quality) or part D of subchapter
I of this chapter (relating to nonattainment) or who is alleged to have violated (if
there is evidence that the alleged violation has been repeated) or to be in violation
of any condition of such permit.

42 U.S.C. § 7604(a)(3).
Defendant contends that § 7604(a)(3) does not apply because defendant obtained a permit
to construct from the NDDOH. The permit that defendant obtained, however, is not a major source
construction permit required by the CAA’s PSD requirements as adopted by the NDDOH, but rather
is only a minor source construction permit that was issued to satisfy other state regulatory

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In what follows, the court will refer to the proposed amended complaint as simply the amended complaint
even though it does not become effective until it is has been properly filed and served.

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requirements. In fact, defendant took the position in its permit application that it did not have to
obtain a major source construction permit because it was not a major source and the NDDOH
apparently agreed when it issued the minor source construction permit. Given that, defendant’s
arguments for why jurisdiction is lacking are essentially policy arguments for why § 7604(a)(3)
should not be construed to permit suits that, according to defendant, amount to nothing more than
a collateral attack upon a determination that a major source permit is not required.
The problem for defendant’s policy arguments, however, is the plain language of §
7604(a)(3); it clearly permits citizens to bring an action against a major source for beginning
construction without having a major source construction permit and does not contain an exception
for when a state has determined one is not required and issued a minor source permit to satisfy state
requirements. As the Eighth Circuit has cautioned:
Still, as with any question of statutory interpretation, the court begins its analysis with the
plain language of the statute, United States v. I.L., 614 F.3d 817, 820 (8th Cir.2010). As we
recently noted, “[t]he Supreme Court has ‘stated time and again that courts must presume
that a legislature says in a statute what it means and means in a statute what it says there.’
” Id. (quoting in part Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253–54, 112 S.Ct. 1146,
117 L.Ed.2d 391 (1992)). “When the words of a statute are unambiguous, then, this first
canon is also the last: ‘judicial inquiry is complete.’ ” Id. (quoting in part Germain, 503 U.S.
at 254, 112 S.Ct. 1146).

Owner-Operator Independent Drivers Ass'n, Inc. v. Supervalu, Inc., 651 F.3d 857, 862 (8th Cir.
2011).
Given the plain language of § 7604(a)(3), it is not surprising that those courts that have
squarely addressed the argument, that the issuance by a state permitting agency of minor source
permit based upon a determination that a major source permit is not required precludes the exercise
of federal jurisdiction pursuant to § 7604(a)(3), have rejected it. E.g., Weiler v. Chatham Forest
Products, Inc., 392 F.3d 532, 537-39 (2d Cir. 2004) (Weiler) (state-issued minor source construction

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permit did not foreclose a suit pursuant to § 7604(a)(3) alleging that a major source permit was
required); Ellis v. Gallatin Steel Co., 390 F.3d 461, 481 (6th Cir. 2004) (“Ellis”) (same); Northwest
Environmental Defense Center v. Cascade Kelly Holdings, LLC, __ F.Supp.3d __, 2015 WL
958175, at **16-19 (D. Ore. Dec. 30, 2015) (“Cascade Kelly Holdings”) (same); Citizens for
Pennsylvania's Future v. Ultra Resources, Inc., 898 F.Supp.2d 741, 746 (M.D. Pa. 2012) (“Citizens
for Pennsylvania's Future”) (same); Natural Resources Defense Council, Inc. v. BP Products North
America, Inc., No. 2:08–CV–204, 2009 WL 1854527, at *8 (N.D. Ind. June 26, 2009) (“BP
Products”) (same).
For its argument to the contrary, defendant relies primarily upon two cases, neither of which
are on point here. The first is the Fifth Circuit’s decision in CleanCOAlition v. TXU Power, 536
F.3d 469 (5th Cir. 2008). In particular, defendant points to that portion of the decision where the
court stated that Ҥ 7604(a)(3) does not authorize preconstruction citizen suits against facilities that
have either obtained a permit or are in the process of doing so.” Id. at 478-79.
The problem with defendant’s reliance upon that statement, however, is that the “permit” the
Fifth Circuit likely was referring to was a major source permit. This is because what was at issue
in CleanCOAlition was a challenge to the substance of a major source construction permit that had
been issued and not the failure to have obtained one. And, in rejecting the argument that §
7603(a)(3) allows for a substantive challenge to a major source construction permit based on the
contention that a permit that is substantively deficient is the equivalent of not having one, the Fifth
Circuit gave no indication when it made the statement defendant relies upon that it meant also to say
that possession of a minor source construction permit precludes suit under § 7603(a)(3).
The second case that defendant relies upon is the Eighth Circuit’s decision in Otter Tail

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Power, supra. This case is also not on point. The claims that Otter Tail had not obtained major
source construction permits for a series of modifications made to its power plant over the years were
all dismissed as being time-barred. Otter Tail Power, 615 F.3d at 1013-19. The only other claim
in the case was that an amendment to Otter Tail’s Title V operating permit violated an NSPS
performance standard and what the Eighth Circuit had to say about that claim being an
impermissible collateral attack on Otter Tail’s permit is not applicable here. The reason why
requires some explanation.
Congress amended the CAA in 1990 to require that each major source obtain a
comprehensive operating permit (often referred to as “Title V permit”) that sets forth all of the
CAA’s standards applicable to the source in one document. Generally speaking, however, Title V
permits do not impose new emission limits. Id. at 1012 (describing the Title V permitting
requirements).2
For Title V permits, the CAA provides additional provisions for EPA oversight and federal
court review in 42 U.S.C. §§ 7607(b) & 7661d(b). Among other things, these sections require EPA
to review Title V operating permit applications and object to those that do not comply with the
CAA’s requirements. If EPA fails to object, a private party can file a petition with EPA asking that
it do so. Then, if EPA continues not to object, the private party can seek review of that decision in
the appropriate federal court of appeals. This pathway for citizen-initiated review requires, however,

2

In North Dakota, if a facility is a major source, it must first obtain a major source construction permit in
order to begin construction. Following construction, it then needs to obtain a Title V permit to operate. This permit is
also issued by the NDDOH since North Dakota has an EPA approved program for issuing Title V permits. See N.D.A.C.
ch. 33-15-14 (setting forth North Dakota's implementation of the Title V permitting requirements). In this case, so long
as defendant’s mine is not a major source, it does not have to obtain a Title V operating permit. However, it will have
to acquire a minor source permit to operate that is separate from the construction permit it has acquired. See N.D.A.C.
§ 33-15-14-03.

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that the subject of the federal challenge must have been first presented to the state permitting agency.
42 U.S.C. § 7661d(b)(2) (“The petition [to the EPA Administrator] shall be based solely on
objections to the permit that were raised with reasonable specificity during the public comment
period provided by the permitting agency . . . . ”).
In Otter Tail Power, the Eighth Circuit concluded that the Sierra Club, which was the party
claiming the Title V permit violation, could have raised its claim that Otter Tail’s operating permit
violated the NSPS before the state permitting agency and that its failure to do so not only foreclosed
the federal review pursuant to §§ 7607(b) & 7661d(b) but also to any relief under the citizen suit
provisions of § 7604(a) for the same violation because, according to the Eighth Circuit, Congress
intended that the former be the exclusive remedy in that situation. Otter Tail Power, 615 F.3d at
1019-23. It was in this context that the Eighth Circuit concluded that the Sierra Club’s NSPS claim
was an impermissible collateral attack. The court did not address the question here of whether the
state issuance of a minor source permit deprives the federal court of jurisdiction under § 7604(a)(3)
for a claim that a major source permit was required instead, much less conclude that there must be
an exhaustion of both state administrative and court remedies before such a claim could be brought
even when no formal notice or invitation to participate in the underlying state administrative process
has been given.3
In summary, the court concludes that it has jurisdiction under 42 U.S.C. § 7604(a)(3) and

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If anything, Otter Tail Power hurts more than it helps defendant in this case both with respect to its argument
here as well as its argument for abstention that is addressed in the next section. This is because, when the Eighth Circuit
rejected the Sierra Clulb’s NSPS claim for not having first raised it before the state permitting agency, the court expressly
concluded that the Sierra Club “could have” pursued its NSPS claim there because the state permitting agency had given
“public notice of the proposed amendment and had invited comment in accordance with South Dakota’s SIP.” Otter Tail
Power, 615 F.2d at 1020. In this case, when the NDDOH considered and acted upon defendant’s minor source permit,
no such notice or invitation was extended to the public.

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that defendant’s arguments to the contrary are without merit.
B.

Defendant’s alternative argument for abstention
1.

Introduction

In the alternative, defendant argues that this court should abstain from exercising jurisdiction.
This presents a more difficult question for two reasons. First, the abstention doctrine that defendant
relies upon is the one derived from the seminal case of Burford v. Sun Oil Co., 319 U.S. 315 (1943).
And, unfortunately, this category of abstention cases defies easy description and there does not
appear to be one formulaic test for determining when dismissal under Burford is appropriate. See
Quackenbush, 517 U.S. at 727-78; see generally C. Wright, A Miller, E. Cooper, & V. Amar,
Federal Practice and Procedure: Jurisdiction 3d § 4244 (2007).
Second, the few cases that have addressed arguments for Burford abstention in § 7604(a)(3)
cases have reached different results, albeit under different circumstances. Compare Ellis, 390 F.3d
at 479-81(abstaining on Burford abstention grounds); BP Products, 2009 WL 1854527, at **8-18
(abstaining under both Burford and Colorado River abstention grounds) with Citizens for
Pennsylvania's Future, 898 F.Supp.2d at 749-51 (Burford abstention not appropriate); cf. Cascade
Kelly Holdings, 2015 WL 9581754, at **16- 19 (while not addressing Burford abstention per se,
rejecting arguments (1) that the exercise of jurisdiction under § 7604(a)(3) is an impermissible
collateral attack on a state issued minor source permit and (2) that state court remedies must first be
exhausted).
In what follows, the court will apply the principles underlying Burford abstention to the
circumstances of this case. After that, the court will address the few § 7604(a)(3) cases where courts
have decided to abstain on Burford abstention grounds and explain why they are distinguishable.

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2.

Burford abstention

Federal courts have a “strict duty to exercise jurisdiction that is conferred upon them by
Congress.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996) (“Quackenbush”). While
this duty is not absolute, the kinds of cases where the Supreme Court has found abstention to be
appropriate are few and very narrowly applied. See id; In re Otter Tail Power Co., 116 F.3d 1207,
1215 (8th Cir. 1997) (“Abstention is an extraordinary and narrow exception to the virtually
unflagging obligation of federal courts to exercise the jurisdiction given them.”) (internal quotation
marks omitted).
In New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U.S. 350 (1989)
(“NOPSI”), the Supreme Court discussed the primary precedent up to when that case was decided
and then summarized the principles underlying Burford abstention. The Court stated:
In Burford v. Sun Oil Co., supra, a Federal District Court sitting in equity was confronted
with a Fourteenth Amendment challenge to the reasonableness of the Texas Railroad
Commission's grant of an oil drilling permit. The constitutional challenge was of minimal
federal importance, involving solely the question whether the commission had properly
applied Texas' complex oil and gas conservation regulations. Id., at 331, and n. 28, 63 S.Ct.,
at 1106, and n. 28. Because of the intricacy and importance of the regulatory scheme, Texas
had created a centralized system of judicial review of commission orders, which “permit[ted]
the state courts, like the Railroad Commission itself, to acquire a specialized knowledge” of
the regulations and industry, id., at 327, 63 S.Ct., at 1104. We found the state courts' review
of commission decisions “expeditious and adequate,” id., at 334, 63 S.Ct., at 1107, and,
because the exercise of equitable jurisdiction by comparatively unsophisticated Federal
District Courts alongside state-court review had repeatedly led to “[d]elay, misunderstanding
of local law, and needless federal conflict with the state policy,” id., at 327, 63 S.Ct., at
1104, we concluded that “a sound respect for the independence of state action requir[ed] the
federal equity court to stay its hand,” id., at 334, 63 S.Ct., at 1107.
We applied these same principles in Alabama Pub. Serv. Comm'n v. Southern R. Co., 341
U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002 (1951), where a railroad sought to enjoin enforcement
of an order of the Alabama Public Service Commission refusing permission to discontinue
unprofitable rail lines. According to the railroad, requiring continued operation of the lines
amounted to confiscation of property in violation of federal due process rights. Under
Alabama law, a party dissatisfied with a final order of the Public Service Commission had
an absolute right of appeal to the Circuit Court of Montgomery County, which was
“empowered to set aside any Commission order found to be contrary to the substantial

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weight of the evidence or erroneous as a matter of law.” Id., at 348, 71 S.Ct., at 767. This
right of statutory appeal “concentrated in one circuit court” which exercised “supervisory”
powers was, we found, “an integral part of the regulatory process under the Alabama Code.”
Ibid. Taking account of the unified nature of the state regulatory process, and emphasizing
that “adequate state court review of [the] administrative order [was] available,” id., at 349,
71 S.Ct., at 768, and that the success of the railroad's constitutional challenge depended upon
the “predominantly local factor of public need for the service rendered,” id., at 347, 71 S.Ct.,
at 767, we held that the District Court ought to have abstained from exercising its
jurisdiction, id., at 350, 71 S.Ct., at 768.
From these cases, and others on which they relied, we have distilled the principle now
commonly referred to as the “Burford doctrine.” Where timely and adequate state-court
review is available, a federal court sitting in equity must decline to interfere with the
proceedings or orders of state administrative agencies: (1) when there are “difficult questions
of state law bearing on policy problems of substantial public import whose importance
transcends the result in the case then at bar”; or (2) where the “exercise of federal review of
the question in a case and in similar cases would be disruptive of state efforts to establish a
coherent policy with respect to a matter of substantial public concern.” Colorado River
Water Conservation Dist. v. United States, supra, 424 U.S., at 814, 96 S.Ct., at 1245.

491 U.S. at 360. Then, in Quackenbush, supra, the Court addressed the same cases as well as
NOPSI, stating:
These cases do not provide a formulaic test for determining when dismissal under Burford
is appropriate, but they do demonstrate that the power to dismiss under the Burford doctrine,
as with other abstention doctrines, . . . derives from the discretion historically enjoyed by
courts of equity. They further demonstrate that exercise of this discretion must reflect
“principles of federalism and comity.” Growe v. Emison, 507 U.S. 25, 32, 113 S.Ct. 1075,
1080, 122 L.Ed.2d 388 (1993). Ultimately, what is at stake is a federal court's decision,
based on a careful consideration of the federal interests in retaining jurisdiction over the
dispute and the competing concern for the “independence of state action,” Burford, 319 U.S.,
at 334, 63 S.Ct., at 1107, that the State's interests are paramount and that a dispute would
best be adjudicated in a state forum. See NOPSI, supra, 491 U.S., at 363, 109 S.Ct., at 2515
(question under Burford is whether adjudication in federal court would “unduly intrude into
the processes of state government or undermine the State's ability to maintain desired
uniformity”). This equitable decision balances the strong federal interest in having certain
classes of cases, and certain federal rights, adjudicated in federal court, against the State's
interests in maintaining “uniformity in the treatment of an ‘essentially local problem,’ ” 491
U.S., at 362, 109 S.Ct., at 2515 (quoting Alabama Pub. Serv. Comm'n, supra, at 347, 71
S.Ct., at 767), and retaining local control over “difficult questions of state law bearing on
policy problems of substantial public import,” Colorado River, 424 U.S., at 814, 96 S.Ct.,
at 1244. This balance only rarely favors abstention, and the power to dismiss recognized in
Burford represents an “ ‘extraordinary and narrow exception to the duty of the District Court
to adjudicate a controversy properly before it.’ ” Colorado River, supra, at 813, 96 S.Ct., at
1244 (quoting County of Allegheny, 360 U.S., at 188, 79 S.Ct., at 1063).

517 at 727-28.
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3.

Inapplicability of Burford abstention in this case
a.

Additional background

Before addressing the principles enunciated in NOPSI and Quackenbush, some additional
discussion of the CAA’s PSD program is helpful, even at the expense of being repetitive of what was
outlined earlier.
In the years immediately following the establishment of the NSPS program in 1970 and the
development of the NAAQS, Congress concluded that merely setting emissions limits had not done
enough to improve air quality in those areas of the country that met the minimum standards of the
NAAQS. Consequently, Congress amended the CAA again in 1977 to adopt the PSD program in
order to prevent the significant deterioration of air quality in those areas of the country that are
attainment areas. See, e.g., ADEC, 540 U.S. at 470-71.
The cornerstone of the PSD program is the imposition of certain requirements on major
sources, particularly the BACT standard. And with respect to these requirements, the CAA provides
the definitions of what is a major source (i.e., major emitting facility) and what BACT is. 42 U.S.C.
§§ 7479(1)&(3). Then, in addition to what the CAA itself requires, EPA has promulgated detailed
regulations for the administration of the PSD program and has required that the states include these
provisions as part of their state SIPS as a condition of being able to administer the PSD
requirements. See 42 U.S.C. § 7471 (requiring each SIP to implement the PSD program); 40 C.F.R.
§§ 51.166 & 52.21; see generally ADEC, 540 U.S. at 471; Otter Tail Power, 615 F.3d at 1011-12
(“States have broad discretion in designing their SIPs, but the plans must include certain federal
standards and are subject to EPA review and approval.”). The net result of all of this is that not only
15

are the general parameters of the PSD program federally created, so also are most of the
implementing regulations, including those adopted by the states with federally approved PSD
programs, like North Dakota. See 40 C.F.R. §§ 51.1820 - 51.1837 (North Dakota’s SIP); N.D.A.C.
ch. 33-15-15 (setting forth North Dakota’s PSD requirements and incorporating by reference
substantial portions of 40 C.F.R. § 52.21).
Also, while Congress has made the states the front line regulators of the CAA and
encouraged them to adopt their own programs for air pollution control (including imposing controls
not required by the the CAA as well as requiring that certain non-major sources obtain state-created
minor source permits), Congress was not content to leave the enforcement of the PSD provisions
entirely up to the state environmental agencies and then to the state courts if there were questions
as to whether the state agencies were doing their job properly. Rather, Congress enacted several
provisions imposing federal supervision, including: (1) the ability of the EPA Administrator to issue
a stop construction order and, if necessary, to bring a civil action in federal district court for
injunctive relief if a major source has not complied with the CAA’s PSD provisions, 42 U.S.C. §
7413(a)(5) & 7477; (2) providing for citizen suits in federal courts to ensure compliance with the
key PSD requirements, including that a major source obtain a major source construction permit prior
to commencing construction, 42 U.S.C. § 7604(a)(3); (3) requiring the EPA Administrator to review
Title V operating permit applications and, when necessary, object to the issuance of permits that fail
to comply with PSD requirements, 42 U.S.C. § 7661d(a)-(b); and (4) provisions requiring that the
public be allowed to participate in the Title V permitting process and allowing persons who do
participate the right to petition the EPA Administrator to object to the issuance of permits and seek
16

judicial review in the appropriate federal courts of appeals if the EPA administrator fails to take
action, 42 U.S.C. §§ 7607 & 7661d(b)(2).
There are several reasons why Congress wanted to ensure that the states are properly
implementing the key PSD requirements. One is that Congress was concerned not only about the
impact of emissions from new and modified major sources on air quality within the states where the
sources are located, but also on neighboring states, national parks, wilderness areas, and other
recreational and historical areas of importance, given that air pollution is not a respecter of
jurisdictional boundaries. See 42 U.S.C. § 7470; see also ADEC, 540 U.S. at 486. Another reason,
as suggested by the legislative history, is that Congress believed that, without some uniform
standards and enforcement, the prospects were very real for those states imposing stringent controls
to lose industry to those states that did not as well as industries holding states hostage for more
favorable treatment, including pitting one against another, when making decisions on where new
plants would be located or which old ones would be abandoned. ADEC, 540 U.S. at 486 (reciting
the legislative history).
b.

The absence in this case of any questions of purely state law

The first type of case that may be appropriate for Burford abstention according to NOPSI is
when there are difficult issues of state law of substantial public import that would have to be
untangled in order to decide the federal case. While nominally some of the law that applies in this
case are state regulations governing air pollution control, these regulations, for the most part, simply
restate the substance of provisions of the CAA or EPA’s regulations.
This is true for North Dakota’s definition of “major source.” It is the same as that set forth
17

in the CAA and in EPA’s PSD regulations for “major emitting facility.” Compare, e.g., 42 U.S.C.
§ 7479(1); 40 C.F.R. §§ 51.166(b)(1)(i)(a) & 52.21(b)(1)(i)(a) with N.D.A.C. §§ 33-15-14-06(q)(2)
(defining major source for purposes of North Dakota’s Title V permitting program) & 33-15-15-01.2
(incorporating by reference EPA’s definition of major source in 40 C.F.R. § 52.21(b)(1)(i)).
Likewise, the same is true for other key provisions in this case. North Dakota’s list of
sources for which fugitive emissions must be counted toward determining whether the threshold for
being a major source has been met is the same as EPA’s and, relevant here, does not include coal
mines but does include stationary sources regulated under section 111 of the CAA. Compare 40
C.F.R. §§ 51.166(b)(1)(iii) & 52.21(b)(1)(iii) with N.D.A.C. § 33-15-14-06(q)(2). As detailed later,
the significance of this is that one of the stationary source categories for which performance
standards have been adopted by EPA pursuant to the authority granted by Section 111 is “coal
preparation and processing plants.” And, Subpart Y of 40 C.F.R. Part 60, which governs coal
preparation and processing plants and is of particular importance later, has been adopted in whole
by N.D.A.C. §§ 33-15-12-01.1 & 33-15-12-02. Finally, as noted earlier, North Dakota has adopted
all of EPA’s PSD regulations that are relevant to the issues in dispute in this case.
Further, if there was any remaining doubt about the fact that the fighting issues in this case
involve primarily questions of federal law, one need look no further than to defendant’s application
for its minor source permit. The explanation contained in the application for why a major source
permit was not required references almost exclusively the relevant provisions of the CAA and EPA’s
PSD and NSPS Subpart Y regulations. (Doc. No. 1-1, pp. 9-12).
Morever, the same is true for defendant’s two arguments for why plaintiffs’ lawsuit fails on
18

its face. As detailed later, one of the points that defendant claims plaintiffs have gotten wrong is
their contention that the potential fugitive emissions from defendant’s coal pile and the unloading
of coal to the pile need to be counted in determining whether defendant’s mine is a major source.
And, what defendant relies upon for why this is wrong are EPA’s NSPS Subpart Y regulations and
what defendant claims is the relevant EPA guidance with respect to how those regulations should
be applied.
The second point that defendant claims plaintiffs have gotten wrong is their contention that
the fugitive emissions from defendant’s coal processing equipment that must be counted for the
major source determination are what the fugitive emissions would be if defendant was not using its
passive containment system that surrounds the equipment. The authority that defendant relies upon
for its argument for why that is not correct (including the subsidiary question of what is meant by
“federally enforceable”) is limited to EPA’s PSD regulations that North Dakota has adopted, EPA
guidance, and federal case law construing EPA’s regulations.
In short, the situation here does not even come close to what was involved in cases like
Burford and Alabama Pub. Serv. Comm'n, supra, where the federal constitutional challenges cases
required construction of difficult questions of purely state law.
c.

Balancing the federal interest for a federal forum against North
Dakota’s interests

The second type of case in which Burford abstention may be appropriate is when federal
review would be disruptive of efforts to establish a coherent state policy with respect to matters of
primarily local concern. According to NOPSI and Quackenbush, this requires examining (1) the

19

strength of the federal interests that are furthered by providing a federal forum, (2) the degree to
which the problem is truly local, and (3) whether there are substantial benefits accruing to the states
by having their courts be the principal adjudicators, and then balancing the relative interests.
Arguably, Congress has already decided how this balance should be struck. The CAA
allocates what are federal responsibilities and what are state responsibilities and then, against that
backdrop, provides a federal cause of action in § 7604(a)(3) for when a major source begins
construction without having first obtained a major source permit along with a specific grant of
federal court jurisdiction. Also, when enacting these provisions, Congress did not impose conditions
precedent to being able to seek relief under § 7604(a)(3) like those found elsewhere in the CAA
before citizens can seek relief in federal court for noncompliance with its requirements. See Citizens
for Pennsylvania's Future, 898 F.Supp.2d at 750 (“it would be improper to abstain from exercising
jurisdiction when Congress has clearly established a cause of action for citizens suits”).
But, even if Congress’s creation of the federal remedy in § 7604(a)(3) does not foreclose
Burford abstention - a point that need not be decided in this case, it surely limits it to truly
exceptional cases. In Colorado River Construction Water Conservation District v. United States,
424 U.S. 800 (1975 (“Colorado River”), the Supreme Court noted that the mere presence of federal
question jurisdiction over diversity jurisdiction “may raise the level of justification needed for
[Buford] abstention.” Id. at 815 n.21. The same reasoning applies in spades here with respect to
the specific grant of federal jurisdiction and creation of a federal cause of action in § 7604(a)(3) over
the exercise of general federal question jurisdiction.
But, even assuming there being no difference, the federal interest in insuring that major
20

sources are properly identified and classified as such is strong since it is the cornerstone of the PSD
program. Further, the problems the PSD provisions are attempting to address are at least as much
national as they are local for the reasons discussed earlier, i.e., the interstate nature of air pollution
and Congress’s concern about the lack of national uniformity creating economic pressures upon the
individual states to not be as tough as they should be.
On the other hand, in examining North Dakota’s interests, the particular question here of
whether defendant’s coal mine is a major source is obviously not purely a matter of state law.
Further, while North Dakota as the front line regulator does have an interest in seeing that persons
and entities within its borders are treated the same, it does not appear that any perceived need for
local uniformity outweighs the federal interests in this instance, particularly since uniformity of
treatment can also be achieved by federal courts helping to insure that there is uniformity of
treatment nationally with respect to what are major sources.4 Finally, North Dakota’s interest in
preserving the integrity of its administrative processes and not having the NDDOH’s time wasted
by federal second guessing is not particularly strong in this case (or at least not strong enough to
outweigh the federal interests) given: (1) the degree to which the CAA already allows for EPA
Administrator and federal court second guessing; (2) the fact that the NDDOH did not in this
instance build an extensive administrative record; and (3) the intrusion upon North Dakota’s
interests is mitigated to a degree by the allocation of the burden of proof on the plaintiffs to prove

4

Defendant contends that North Dakota has a strong interest in treating all of its lignite coal mines the same.
North Dakota is not the only surface coal mining state, however. Nor is it the only state that has lignite coal mines that
supply nearby (“mine mouth”) electric generating stations. An internet search using terms such as lignite and coal
mines reveals that Texas, for example, has similar mines.

21

that a major source permit was required as well as this court giving appropriate consideration to
what the NDDOH decided - a subject that will be addressed in more detail later, cf. ADEC, 540 U.S.
at 488-95.
Particularly instructive here are two Supreme Court cases. The first is the Supreme Court’s
decision in ADEC. While not an abstention case per se, it addressed the same balancing of federal
versus state interests with respect to enforcement of CAA’s PSD provisions by the EPA
Administrator.
What was at issue in ADEC was not the overarching (and presumably more important) issue
of whether the source in that case was a major one; the state agency had concluded that it was and
had issued a major source permit that imposed emission limitations based on its determination of
what BACT required in that particular instance. Rather, the issue in ADEC was whether the state
permitting agency had made the correct BACT determination. EPA concluded it had not and had
issued a stop construction order pursuant to the authority discussed earlier. 540 U.S. at 474- 80.
ADEC, the petitioner on appeal, contended that, because it had been delegated the authority to make
the BACT determination (since it had an approved SIP incorporating the PSD requirements), the
CAA should be construed as requiring that EPA must first challenge its decision in the state courts
if EPA was dissatisfied with the decision. In so urging, ADEC made many of the same arguments
that defendant makes in this case for why the principles of cooperative federalism built into the CAA
should not permit EPA’s collateral attack. Id. at 488-95. The Supreme Court, however, rejected
those arguments, concluding that EPA’s construction of the CAA, which was that the EPA
Administrator could second guess the state agency’s determination of BACT and issue a stop
22

construction order without first having to go state court, was not an unreasonable one given the
federal interests at stake. Id. at 496-502.
Granted, ADEC is a different case in that the party making the challenge there was EPA and
the collateral attack was made pursuant to different statutes. However, when one reads the Court’s
extended discussion about why the CAA could reasonably be construed to grant EPA the authority
that it determined it had under the Act, including the provisions that were included in the CAA to
insure that the PSD program would be applied nationally with some uniformity, it is difficult to
conclude here that the local interests are so great that Burford abstention is required with respect to
the threshold determination of whether defendant is a major source - particularly in this case given
the apparent lack of availability of timely and adequate direct state court review for the reasons
discussed in the next section.
The other Supreme Court case that is particularly instructive is NOPSI itself. In NOPSI, the
Federal Energy Regulatory Commission (“FERC”) had made an allocation to NOPSI (the electric
utility serving the City of New Orleans) of its share of costs in a failed nuclear power project for
purposes of recovering the costs in its rates. The City Council, while deferring to FERC’s finding
that the initial decision to participate in the nuclear project was reasonable, took the position that full
rate relief was not warranted because NOPSI was negligent in failing to diversify its power supply
by selling off a part of its interests in the project after it became apparent there might be problems.
NOPSI, 491 U.S. at 353-58.
Seeking to overturn this decision and after other proceedings not relevant here, NOPSI filed
both an action in federal court seeking relief and a petition in state court seeking review of the City
23

Council’s decision. NOPSI then proceeded to make the same two arguments in both forums. One
was that FERC’s decision was preemptive. The other was that the City’s Council articulated reason
for not allowing full rate relief, that NOPSI had not acted prudently after it should have known of
the problems with the nuclear project, was unwarranted and pretextual. Id. at 357-58, 362-63.
The Supreme Court concluded in NOPSI that Burford abstention was not appropriate. In so
holding, the Court first observed that the case “did not involve a state-law claim, nor even an
assertion that the federal claims are in anyway entangled in a skein of state-law that must be
untangled before the federal case can proceed.” Id. at 361 (internal quotation marks omitted). As
already discussed, that appears to be true in this case.
The Court then went on to address whether the federal adjudication in that case would disrupt
“the State’s attempt to ensure uniformity of treatment of an essentially local problem.” Id. at 362
(internal quotation marks omitted). In addressing that question, the Court first observed that,
“[w]hile Burford is concerned with protecting complex state administrative processes from undue
federal interference, it does not require abstention whenever there exists such a process, or even in
all cases where there is a potential for conflict with state regulatory law or policy.” Id. (internal
quotation marks omitted). The Court then concluded that NOPSI’s first grounds for attack presented
only the facial question of federal preemption that could be resolved without having to look beyond
the face of the City’s rate order, so Burford abstention would not be appropriate for that issue. As
for NOPSI’s second grounds of attack, the Court stated:
Unlike the facial challenge, this claim cannot be resolved on the face of the rate order,
because it hinges largely on the plausibility of the Council's finding that NOPSI should have,
and could have, diversified its supply portfolio and thereby lowered its average wholesale

24

costs. See n. 2, supra. Analysis of this pretext claim requires an inquiry into industry
practice, wholesale rates, and power availability during the relevant time period, an endeavor
that demands some level of industry-specific expertise. But since, as the facts of this case
amply demonstrate, wholesale electricity is not bought and sold within a predominantly local
market, it does not demand significant familiarity with, and will not disrupt state resolution
of, distinctively local regulatory facts or policies. The principles underlying Burford are
therefore not implicated.

Id. at 363-64. For essentially the same reasons, the principles underlying Burford are not implicated
in this case; that is, the problems that the PSD program addresses are in significant part national and
the resolution of whether or not the defendant’s coal mine is a major source does not require
familiarity with, nor is it likely to be unduly disruptive of, “distinctively local regulatory facts or
policies” for the reasons set forth above.
d.

Lack of availability of timely and adequate state court review

Finally, as noted by NOPSI, Burford abstention is only appropriate if there is an opportunity
for timely and adequate state court review. That does not appear to be the case here for two
reasons. First, it is does not appear that plaintiffs had any right to direct state court review. Second,
even if they did, the administrative process that was followed by the NDDOH does not appear to
have created a sufficient enough record for the adjudication of the issues that plaintiffs are raising
with respect to their claim that defendant needed a major source permit.
The reason why it was unlikely that plaintiffs could have sought direct review of the
NDDOH’s decision to require only a minor source permit is because N.D.C.C. § 23-01-36, which
provides for direct review in state district court of NDDOH’s permitting decisions, only allows
review if the person seeking it participated in, or provided comments during, the NDDOH hearing
process and then limits the review to only those issues actually raised before the NDDOH. And

25

here, as already discussed, the NDDOH did not invite public participation in the administrative
process of issuing defendant’s minor source permit.
Defendant contends that plaintiffs should have attempted to intervene in the administrative
process notwithstanding, claiming that they most certainly knew about it. Plaintiffs have filed
affidavit testimony, however, claiming they did not know that defendant had applied for a minor
source construction permit until after it was issued. While the court credits plaintiffs’ affidavit
testimony, the court does not believe it makes any difference with respect to the issue of abstention.
Given the opportunity of citizens to file suit in federal court pursuant to 42 U.S.C. § 7604(a)(3) and
claim that a pollution emitting source is a major one, it seems the very least North Dakota could
have done, if it was so concerned about giving its own courts first crack at any review of the
NDDOH’s decision on the issue, would have been to require that the NDDOH give public notice
prior to any major source determination, invite public participation, and create a suitable record for
state court review if there is a challenge. Likewise, if the NDDOH was so concerned about not
having its decision second guessed here in federal court, it could have on its own in this instance
given notice and provided an opportunity to be heard.
Defendant also contends that plaintiffs should have tried to appeal notwithstanding their lack
of prior participation based on plaintiffs’ acknowledgment that they were aware of the permit having
been issued prior to the expiration of the thirty-day time period for seeking review under N.D.C.C.
§ 23-01-36. Defendant contends that the state courts most likely would have excused their lack of
prior participation on equitable grounds and allowed the appeal. Defendant has not cited to any
North Dakota case that has so held, however, and it seems more probable that the state courts would
26

take the view that no direct review is available in that instance based on the plain language of the
statute. Cf., O’Conner v. Northern States Power Co., 308 N.W.2d 365 (N.D. 1981).
But, even if an appeal would have been permitted, the only administrative record that appears
to exist is defendant’s permit application and the NDDOH’s minor source permit, with the latter
providing no explanation for why the NDDOH apparently agreed defendant’s mine did not need a
major source permit, much less a record that would have allowed full consideration of the arguments
that plaintiffs advance in this case. Further, it is highly questionable whether plaintiffs would have
had the opportunity to create the necessary record in state district court upon direct review pursuant
to N.D.C.C. § 23-01-36. This is because that section incorporates by reference certain provisions
of North Dakota’s Administrative Practices Act, codified at N.D.C.C. ch. 23-32. These provisions
would limit any review to the record that was created by the NDDOH.
While not conceding these points, defendant contends that plaintiffs had, and still have, the
opportunity to commence a separate action in state district court pursuant to the North Dakota
Environmental Act of 1975, which authorizes suits against state agencies and persons who violate
any of the state’s environmental laws. While that may be, the court doubts that this is what the
Supreme Court was referring to in NOPSI about the availability of timely and adequate state court
review. Rather, it appears that what the Court had in mind was the opportunity for timely state court
review of an administrative process that had already provided an opportunity to participate in a
meaningful way and that had created a record for the reviewing court to consider.
Finally, while probably not dispositive by itself, North Dakota does not channel appeals from
NDDOH administrative decisions to one particular state court with special competence in the subject
27

matter, such as was in the case in Burford and Alabama Pub. Serv. Comm'n, supra. See N.D.C.C.
§ 28-32-42(3)(a) (requiring that appeals from administrative orders be taken in the district court of
the county where the hearing was held unless a specific statute provides otherwise and, if no hearing
was held, then the appeal must be taken to the district court sitting in Burleigh County).
In conclusion, the unlikely opportunity for direct state court review and the probability it
would have been inadequate in any event, at the very least militate against Burford abstention in this
case and, in this court’s view, forecloses it.
e.

Cases relied upon by defendant are distinguishable

Defendant cites to several cases where courts have abstained in citizen suit cases pursuant
to § 7604(a)(3). These cases, however, are distinguishable.
One of the cases that defendant relies upon for abstention is BP Products, an earlier cited
case out of the Northern District of Indiana. In that case, BP Products sought and obtained a minor
source permit from the Indiana Department of Environmental Management (“IDEM”) for
modifications it wanted to make to its oil refinery located in Whiting, Indiana.

Several

environmental groups and individuals objected and sought review by the Indiana Office of
Environmental Adjudication (“OEA”), contending that the IDEM had erred by not requiring a major
source construction permit. The court in BP Products described the OEA as being “Indiana’s agency
that handles appeals of that sort.” 2009 WL 1854527, at *1.
The plaintiff in BP Products, the Natural Resources Defense Council (NRDC), had lodged
the same objections with IDEM but took a different tack than the other objectors in terms of seeking
review. Rather than participating with the other objectors in the petition for review by the OEA
28

(even though represented by the same counsel), it filed suit in federal district court alleging several
claims, including a claim pursuant to 42 U.S.C. § 7604(a)(3) for failure to have obtained a major
source permit, contending one was necessary to satisfy both the Part C & D requirements of the
CAA. When the district court issued its decision in BP Products, the administrative case before the
OEA was still pending but was in the “home stretch” according to the district court in that discovery
had been completed and a “de novo” hearing scheduled. In contrast, discovery had not begun in the
federal action. Id.
One of the arguments made by BP Products in defending against the federal law suit was that
the court lacked jurisdiction over the § 7604(a)(3) claim because it had obtained a minor source
permit. While the district court rejected that argument, id. at **6-8, it did go on to conclude that
abstention was proper under both the Burford and Colorado River abstention doctrines. In
concluding that Burford abstention was appropriate, the court reasoned that the law being applied
was state law and not federal, citing to a number of provisions of Indiana’s air pollution control
regulations that the court stated applied as well as the fact that a minor source permit was issued to
satisfy the requirements of Indiana law. Id. at *11. The court then stated:
In the end, the NRDC wants me to second-guess the IDEM's expert application of Indiana
law with respect to BP's permit request. This is nothing more than a collateral attack on the
IDEM's permit decision. To allow it would be to gut the carefully crafted system that Indiana
has put in place. What is the point of having an expert agency appeals process—or a state
court appeals process—if litigants can simply side-step it by turning to the federal courts?
Take this case. There are multiple environmental groups fighting BP's permit tooth and nail.
While the some of them tussle with BP in the state system, the NRDC is trying to take BP
to federal court. But this gives the opponents of the permit multiple bites of the apple by
allowing them to fight the battle on two fronts. This strikes me as terribly inefficient. And
if for some reason this matter goes astray in the state system, the Clean Air Act provides for
oversight by the EPA. See 42 U.S.C. § 7413(a)(5). See also Alaska DEC, 540 U.S. at
473–74.

29

The bottom line is this: the NRDC thinks the IDEM got the call wrong. It may have. But the
proper remedy is through the Indiana regulatory and state court process; otherwise there is
an impermissible risk of disrupting the Indiana's attempt to ensure uniformity. See NOPSI,
491 U.S. at 362 (holding that abstention was inappropriate because the case was “[u]nlike
a claim that a state agency has misapplied its lawful authority or has failed to take into
consideration or properly weigh relevant state-law factors”). And while the issues may
ultimately wind up in federal court again, if they do, then at least the federal court will have
the benefit of the full state analysis. But any attempt to litigate those issues here and now
would smother the delicate federalism concerns that underlie Burford. So I believe the best
course is to restrain from exercising my jurisdiction.

Id. In addition, the BP Products court also took into consideration the fact that the administrative
proceedings by the reviewing agency were still under way and that a simultaneous action in federal
court on the same issues would be disruptive of that process. Further, the court pointed to the fact
that the reviewing agency was conducting its own “de novo” determination and that it had special
expertise in the matter. The court ultimately concluded:
In any event, I believe that Indiana has sufficiently indicated its desire to create a special
forum to regulate and adjudicate its air pollution permit requests. It has created a special
administrative agency, the IDEM, with expertise in the field. It then channels appeals of the
IDEM decisions to the OEA, who again applies its own expertise in evaluating the
application in a de novo review. See Ind.Code §§ 13–15–6–3 & 13–15–7–1 et seq. So unlike
International College of Surgeons, the IDEM's initial decision is not immediately reviewable
by any state court. See 153 F.3d at 365. It first must go to the OEA for a de novo review. The
OEA's review therefore “stand[s] in a special relationship of technical oversight or
concentrated review,” and consequently is the specialized proceeding necessary for Burford
abstention under the Seventh Circuit. Id. at 364.
What is clear from the case law is that abstention is appropriate when the “federal forum
threaten[s] to frustrate the purpose of the complex administrative system” established by a
State. Quackenbush, 517 U.S. at 725. Inserting this Court into the current fray creates
precisely that risk. And the risk is intensified here, where the NRDC raises the exact same
issues in this Court that are presently before the OEA. In the end, when I conduct my
“careful consideration of the federal interests in retaining jurisdiction over the dispute and
the competing concern for the independence of state action,” id. at 728 (quotation marks
omitted), I am convinced that this is a prime case for Burford abstention.

Id. at *14.
While this court might disagree about some of the reasons expressed by the district court in
30

BP Products for why Burford abstention (as opposed to possibly Colorado River abstention) was a
good fit - particularly its balancing of the federal versus state interests with respect to the threshold
determination of whether a source is a major one and the extent to which it really is a question of
state law, the situation before the court in BP Products was far different from the one here. First,
the administrative process before the IDEM was open to the NRDC and the NRDC had participated
in it. Second, the administrative process was still ongoing by virtue of a petition filed with the OEA
(a reviewing agency with expertise in the matter) by others who were represented by the same
attorneys as the NDRC, and a “de novo” hearing had been scheduled.
In this case, the public was not invited to participate in the administrative process before the
NDDOH for the issuance of defendant’s minor source permit. Also, the administrative process (i.e.,
the determination by the front line regulators charged with enforcement of the cooperative federalstate scheme for regulating air pollution and having expertise in the matter) has been completed and
any state court “review” would be by a court of general jurisdiction with no particular expertise and
most likely would require the initiation of a completely new action, including creating the necessary
record that could just as easily be created here.
Another case relied upon by defendant, as well as the district court in BP Products, is the
Sixth Circuit’s 2004 decision in Ellis, supra. In that case, two industrial plants had commenced
operation next door to each other. One was a steel manufacturing plant owned by Gallatin Steel and
the other was a related slag processing plant owned by the Harsco Corporation. The Kentucky
Division of Air Quality had determined the two facilities should be treated as separate sources for
compliance and issued a minor non-PSD permit for Harsco’s slag operation and a major source
31

permit for the steel plant.
The plaintiffs in Ellis filed two citizen suits in federal district court against both entities
asserting a number of federal and state claims, including in one of the suits a claim that Harsco
should have obtained a major source permit. In addition, EPA instituted its own enforcement action
in federal district court. After these actions were commenced, the Kentucky Division of Air Quality
reversed its decision that the two plants should be treated as a separate source and issued a revised
major source permit to Gallatin Steel and instructed Harsco to submit an application for a major
source permit. Gallatin Steel and Harsco filed an appeal of that decision to another reviewing
administrative agency. This administrative appeal was pending when the federal district court
dismissed the citizen suit claim against Harsco for not obtaining a major source permit as being an
impermissible collateral attack against the permitting decision made by the Kentucky Division of
Air Quality. Also, it was still pending when the Sixth Circuit considered the case on appeal.
On appeal, the Sixth Circuit affirmed the district court’s dismissal of the claim against
Harsco, not because it was an impermissible collateral attack, but rather on Burford abstention
grounds based on the unique circumstances presented by the case. The court stated:
And as in Coalition for Health Concern, “federal review at this juncture would be disruptive
of Kentucky's efforts to establish a coherent policy” with respect to PSD permitting of
emitting facilities, particularly as the state agency and courts were reviewing the precise
issue raised by the Ellises' federal permit claims at the time of the district court's opinion. 60
F.3d at 1194; see also Palumbo, 989 F.2d at 160. Federal review also would be disruptive
here because it would require the district court to revisit earlier decisions made by the
Kentucky Division of Air Quality that Harsco's operations did not require a PSD permit and
that Gallatin and Harsco are not a single “major stationary source”—an issue committed by
the Clean Air Act to state resolution. See 401 Ky. Admin. Regs. 51:017, §§ 1(25)(a) & 8;
55 Fed.Reg. 23547, 23548–49 (“In sum, states remain free to follow their own course,
provided that state action is consistent with the letter and spirit of [their own state
implementation plan].”).

32

The Ellises' permit claims boil down to allegations that the Kentucky agency “failed to apply
or misapplied [its] lawful authority under Kentucky law and under” the Clean Air Act by
issuing Gallatin's PSD permit exclusive of Harsco's operations and by determining that a
PSD permit was unnecessary with respect to Harsco. Coalition for Health Concern, 60 F.3d
at 1195. As Coalition for Health Concern suggests, such administrative claims offer a classic
explanation for applying Burford abstention. See also NOPSI, 491 U.S. at 362, 109 S.Ct.
2506 (identifying “claim[s] that a state agency has misapplied its lawful authority or has
failed to take into consideration or properly weigh relevant state-law factors” as warranting
Burford abstention).
Nor, contrary to the Ellises' contention, do Weiler v. Chatham Forest Products, Inc., 370 F.3d
339 (2d Cir.2004), and Association to Protect Hammersley, Eld, and Totten Inlets v. Taylor
Res., Inc., 299 F.3d 1007 (9th Cir.2002), point to a different conclusion. The cases addressed
whether the Clean Air Act in one instance and the Clean Water Act in the other eliminated
federal-court jurisdiction over citizen suits that challenge state administrative decisions that
a permit is not required—a question that both cases answered in the negative, Weiler, 370
F.3d at 345–46; Hammersley, 299 F.3d at 1011–12. We do not dispute this conclusion. See
42 U.S.C. § 7604(a)(3) (allowing citizens to sue “any person who ... constructs any new or
modified major emitting facility” without first obtaining a required PSD permit). But the
question in this case is not whether citizens may sue companies that fail to obtain a PSD
permit; they may and Burford abstention rarely will present an obstacle to those claims. The
question here is whether a PSD permit was required (and what type of permit was required)
in the setting of these associated plants. All we thus decide in this unusual context—where
the state has supplied a concentrated and comprehensive review process that is currently
addressing the very subject of these federal claims—is that Burford counsels abstention.
Neither Weiler nor Hammersley rejected, let alone considered, Burford's application in this
setting.

Id. at 480-81 (italics added).
Like BP Products, Ellis is distinguishable because there were ongoing state administrative
processes addressing the permitting issue. See Citizen’s for Pennsylvania’s Future, 898 F.Supp.2d
at 750 (distinguishing Ellis and another case cited by it, Sugarloaf Citizen Ass’n of Montgomery
Cty, 33 F.3d 52 n.4 (4th Cir. 1994), as cases where the relevant state agencies “had either issued or
were in the process of issuing Part C or D permits, bolstering the argument that federal intervention
would add only confusion to the mix.”).

33

f.

Conclusions re Burford abstention

To be clear, what is not at issue in this case is whether, or to what extent, the state
administrative decision-making must be final before a citizen suit can be brought pursuant to 42
U.S.C. § 7604(a)(3). Also, what is not an issue in this case is whether, or to what extent, abstention
(whether pursuant to Burford or some other abstention doctrine) would be appropriate if plaintiffs
had fully participated in the state administrative process and then sought review in the state courts
(either directly or collaborating with others as was the case in BP Products) as well as bringing a
federal citizen suit in this court. Finally, this case is not a collateral challenge to the substance or
terms of the minor source permit issued by the NDDOH to enforce North Dakota’s own air pollution
control requirements. Rather, the sole question here is whether defendant was required to obtain a
major source construction permit and, if not, then this case ends.
The court concludes that Burford abstention is not appropriate in this case. Further, even if
the court is wrong in terms of the issue being primarily one of federal law and not uniquely state law
or wrong about the predominance of the federal interests with respect to the determination of the
threshold question of whether a pollution emitting source is a major one, Burford abstention would
not be appropriate here because of the apparent lack of timely and adequate state court review of the
kind contemplated by the Supreme Court’s abstention cases.
IV.

DEFENDANT’S MOTION TO DISMISS FOR FOR FAILURE TO STATE A CLAIM
A.

Introduction

Initially, defendant argued that the allegations contained in plaintiffs’ complaint failed to
state a claim for relief because, taken as a whole, they failed to satisfy the pleading standard set forth
34

in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009).
Then, in response to the motion to amend, defendant’s primary argument (aside from a renewal of
its jurisdictional challenges) was that the proposed amendments were futile.
Upon review of the amended complaint, there is no question that it states a cause of action
with its allegations that the PTE for fugitive emissions of PM from the mine facilities for which such
emissions must be counted will collectively (if not in some cases individually) reach the major
source threshold and that, as a consequence, plaintiffs are entitled to relief pursuant to 42 U.S.C. §
7604(a)(3) because defendant failed to obtain a major source construction permit. In addition, the
amended complaint does more than make a threadbare allegation of a violation of § 7604(a)(3). It
pleads facts, which the court is required at this stage to accept as true, that are sufficient to satisfy
Iqbal’s and Twombly’s standard for stating a claim, which is simply one of facial plausibility. See
Iqbal, 556 U.S. at 678 (“The plausibility standard is not akin to a ‘probability requirement,’ but it
asks for more than a sheer possibility that a defendant has acted unlawfully.”); Twombly, 550 U.S.
at 556 (“Asking for plausible grounds . . . does not impose a probability requirement . . . . And, of
course, a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of
those facts is improbable, and that a recovery is very remote and unlikely.”) (internal quotations,
citing authority, and footnote omitted).
The real question presented by defendant’s motion to dismiss is not the technical sufficiency
of the amended complaint, but rather whether defendant is correct that the allegations of plaintiffs’
amended complaint misconstrue the applicable law in two respects critical to whether a viable claim
has been stated. According to defendant, plaintiffs are clearly wrong when they claim that the
35

potential for fugitive emissions of PM from defendant’s coal stockpile and the unloading of coal to
it must be counted in determining whether defendant’s mine reaches the threshold for it being a
major source. Defendant also contends that plaintiffs are wrong when they allege that the potential
fugitive emissions from defendant’s coal processing equipment that must be counted are those that
potentially could be emitted in the absence of defendant’s passive containment system. Defendant
contends that, if you back out from the amended complaint the alleged emissions attributable to
these two erroneous conclusions, it is clear from the remaining allegations that the mine is not a
major source needing a major source construction permit and the complaint fails to state a claim for
that reason.
Since both parties have taken the position that the two issues raised by defendant can be
resolved in their favor based on what is presently before the court and have extensively briefed the
issues, the court will address them in the hope that, if nothing else, it will narrow what is in dispute.
After that, the court will consider whether there remains a case to go forward. But first, some
additional background is required.
B.

Additional background
1.

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
must 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,
36

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
definition of “major stationary source” and “major emitting facility” under § 7602(j), which, in turn,
was 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 so far 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
37

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 (“DOI”) 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, amongst 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 48,8873-79. 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
38

coal mines are major sources and the consequences flowing from that determination.
2.

Fugitive emissions from defendant’s coal preparation and processing
plants 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 do have to be counted for coal
preparation and 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 preparation and processing plants that process more than 200 tons of coal per day. 40 C.F.R.
Part 60, Subpart Y--Standards of Performance for Coal Preparation and Processing Plants.
In this case, defendant’s mine has as one of its components a facility that crushes the coal
after it has been removed from the ground and before it is delivered to its customer, the Coyote
Station. Defendant’s crushing facility falls within the definition of a “coal preparation and
processing plant” that is subject to regulation under Subpart Y because it “processes” the coal and
is capable of handling more than 200 tons of coal per day.
Coal preparation and processing plants (hereinafter simply “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,

39

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 preparation 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.
The consequence of defendant’s mine having a facility for crushing coal appears to be (and
the parties are in agreement on this point) 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.5

5

EPA has stated that the result of requiring a coal mine to be subject to major source requirements if fugitive
emissions from the mine’s coal processing plant meet the major source threshold is dictated by its other regulations that
require regulated operations be aggregated as a single source if they have the same SIC two digit code, are located on
adjacent or contiguous properties, and are under common control. Requirements for Implementation Plans: Surface Coal
Mines, 54 Fed. Reg. at 48880-882 (discussing the applicable regulations). While acknowledging that a strict construction

40

3.

Defendant’s application for a minor source permit
a.

The mine facilities

Defendant’s application for its minor source construction permit describes the mine facilities
that will be built beginning with the facilities and equipment at the “mine face,” i.e., where the coal
is physically removed from the ground. There, according to the application, the overburden will be
removed with a dragline and the exposed coal will be ripped, removed, and prepared for loading,
with the potential for some temporary storage at the mine face. (Doc No. 1-1, p. 5). The nearest
point of the mine face will be some three to four miles southwest of the Coyote Station. (Id. at p.

of these same regulations might suggest that fugitive emissions from both sources should then be considered in
determining whether the major source threshold is reached, EPA has stated it applies a “primary activity test” to
determine which of the two is primary and, if it is the coal mine, which is an unlisted source, then fugitive emissions
would continue not to be counted. Id. at 48,881 In particular, EPA stated the following:
Under this primary activity test, EPA or the permitting authority should review all the facts and
circumstances of the particular case to determine what is the main purpose and function of the overall
operation, and make an applicability determination based on the status (listed vs. nonlisted) and
tonnage threshold (100 tons per year vs. 250 tons per year) of the primary activity. Thus, as SCM's
continue to be a nonlisted source category, where coal mining is the primary activity, a mine's fugitive
emissions are not considered in determining threshold applicability for a source consisting of the mine
and some other collocated activity. In both of the final determinations cited above, EPA concluded
that the coal mine was the primary activity, and EPA anticipates that this would be the case in most,
if not all, future examples involving coal processing activities. In terms of both the purpose of the
enterprise and the economic value of the newly mined coal as compared with the processed coal, it
is the mining that is the focus of the overall effort.
Id. While this may make some sense as far as it goes, what is puzzling is EPA’s explanation for why the entire mine
should be considered a major source based simply upon the secondary activity of the coal processing plant - particularly
given EPA’s policy choices for not considering fugitive emissions from the coal mine in the first instance. That
explanation was simply the following:
The EPA believes that the structure and function of its regulations in the above examples are
reasonable and appropriate under the Act. Indeed, industry commenters have presented no evidence
of adverse practical consequences from this view, because coal preparation plants and coal cleaning
plants apparently do not usually exceed major source size thresholds.
Id. (italics added). Since that was written, EPA has concluded in a 2009 rulemaking discussed in more detail later that
it would not establish PM emission limits for coal stockpiles and haul roads within coal processing plants because of the
excessive costs of monitoring and the fact that the fugitive dust from these facilities are subject to dust suppression
requirements imposed by SMCRA and the individual states. With that, it arguably makes even less sense to subject a
surface mine to major source requirements simply because the coal processing facility may be a major source.

41

4).
After the coal is loaded onto haul trucks, it will be transported from the mine face over a haul
road that will be constructed to an open storage pile that will be located just outside of and
physically adjacent to where defendant will construct a coal crushing facility, which, in turn, will
be located next to the Coyote Station. According to the application, the open storage pile will store
approximately 180,000 tons of coal and will have a base area of roughly 700 feet by 500 feet,
covering a surface area of approximately 350,000 square feet, or approximately 8 acres. (Id. at p.
5).
According to the application, the stockpiled coal will then be pushed into a “receiving pocket
and apron feeder” by dozers. Upon entry of the coal into the receiving pocket, the apron feeder
(which apparently is some sort of large auguring device) will convey the coal a short distance to
where it will undergo both primary and secondary crushing. After the coal is crushed, it will fall
onto a conveyer operated by the generating station. (Id.)
The application states that specially designed enclosures surrounding its coal processing and
conveying equipment will control the dust, with fogging if necessary. In air pollution control
parlance, these enclosures are referred to as the PECS (“passive enclosure containment system”).
The application states that no measurable particulate emissions to the atmosphere are expected with
the use of these control systems. (Id.).
According to the application, defendant expects 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 will be processed without requiring additional approval from the NDDOH.
42

Defendant has submitted with its briefing a diagram (obviously not-to-scale) to illustrate the
flow of the coal and layout of the mine facilities relative to each other. While outside of the
complaint, plaintiffs also refer to the diagram in their supplemental brief and do not appear to contest
the fact that it is representative of the general layout, contesting only defendant’s conclusion as to
what is the beginning of its coal processing facility.

(Doc. No. 38-6).

43

b.

The application’s explanation for why a major source permit was
not required

Defendant’s application provides a detailed explanation for why the coal mine will not be
a major source and, for that reason, only a minor source permit to construct is required to satisfy
North Dakota’s separate air pollution control requirements. Generally speaking, the application
works its way through the applicable federal statutes and regulations previously described, noting
in particular that: (1) the only pollutant that will be emitted from the coal mine is PM; (2) the only
fugitive emissions that need to be counted for purposes of determining whether the mine is a major
source are those from the mine’s coal crushing facility; (3) the only emissions of PM from
defendant’s coal processing facility will be fugitive emissions because no emissions are
mechanically vented; and (4) the fugitive emissions from defendant’s coal crushers and conveying
equipment are 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 defendant’s coal pile and the unloading
of coal onto the pile, the application states that these were not counted because the coal pile and the
unloading of coal to the coal pile are not part of the coal crushing facility subject to regulation under
Subpart Y. Rather, according to defendant, they are merely part of the rest of the mine for which
fugitive emissions do not count. In support of this conclusion, the application references the
definition of “coal processing and conveying equipment” in 40 C.F.R. § 60.251(g) as well as what
it contends is the applicable guidance from EPA. According to the application, EPA has taken the
position that the beginning of a coal processing plant is the point where coal is first loaded into an

44

apparatus that receives coal for processing (“first hopper”) and that, in this instance, this would be
the receiving pocket of the coal crushing facility immediately downstream from the coal storage pile.
(Id. at pp. 11-13).
C.

Whether the PTE for fugitive emissions of PM from the coal pile and the
unloading of coal to the pile must be counted
1.

The allegations in the amended complaint specific to the coal pile and the
unloading onto the coal pile

Plaintiffs allege in their amended complaint the following as it relates to defendant’s coal
stockpile and the unloading of coal onto the pile:
C

the PTE for uncontrolled emissions of PM from the haul truck coal unloading will
be between 0.01 tons per year and 58.6 tons per year.

C

the PTE for uncontrolled emissions of PM from the coal stockpile due to wind
erosion will be between 188.4 tons per year and 227.9 tons per year.

C

the PTE for uncontrolled PM from bulldozing activities at the open storage pile will
be between 0.4 tons per year and 117.2 tons per year.

Plaintiffs allege that these PTE’s are based on applicable emissions factors used by air quality
engineers, but they reserve the right to amend these numbers based on information obtained during
discovery. (Doc. No. 11-1, ¶¶ 42-44, p. 12).6
2.

EPA’s promulgated regulations

In addressing the question of whether the PTE for fugitive emissions of PM from the coal
6

Plaintiffs also contend in their amended complaint that the PTE for fugitive emissions of PM from the coal
haul trucks prior to any unloading have to be counted. That does not appear to be the case from what follows even if
the court relied upon what plaintiffs claim is the relevant EPA guidance.

45

storage pile and the unloading of coal to the pile must be counted for purposes of determining
whether the threshold of 250 tpy of PM is reached, the court will consider first EPA’s published
regulations and then turn in the next section to what the parties contend is the relevant guidance
from EPA.
Subpart Y of 40 C.F.R. Part 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 for 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).7 As will be addressed in more detail later, the previous list
of “affected facilities” was expanded in 2009 when Subpart Y was amended to include “open storage
piles.” The reason for the distinction in Subpart Y between the coal processing plant and “affected
facilities” is that Subpart Y only imposes performance standards on “affected facilities” of the coal
processing plant and not on the entire plant.
In addition to the definition of a coal processing plant and the list of affected facilities,

7

The term “affected facility” is defined at the beginning of Part 60 in § 60.2 as follows:
Affected facility means, with reference to a stationary source, any apparatus to which a
standard is applicable.

46

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).
Unfortunately, these regulations by themselves do not provide a clear answer as to whether
the PTE for fugitive emissions of PM from the coal storage pile and the unloading of coal to it are
in or out for purposes making the required PTE determination for whether the mine is a major
source. Under the statutory regime previously described, the source category for which fugitive
emissions must be considered is “coal preparation and processing plants” and not “coal piles.”
Consequently, for the emissions from the coal storage pile in this case to be counted, it seems plain
that the coal storage pile must be a part of the coal processing plant and not just another part of the
mine. This is further reinforced by 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) (emphasis added). And, while it appears that EPA has concluded that fugitive
emissions from any facilities that are a part of a coal processing plant must be considered and not
47

just from those that Subpart Y has deemed to be “affected facilities,” this provision supports the
conclusion that the coal pile must be a part of (i.e.,“in”) the coal processing plant because the
regulations do not reasonably support a conclusion that coal processing plants have two kinds of
coal piles, those that are affected facilities and those that are not.
But, while it appears plain that the coal pile must be a part of the coal processing plant for
its fugitive emissions to be counted, this begs the question of exactly what is the coal preparation
plant and whether it includes the coal storage pile in this instance. One plausible interpretation in
light of the definitions of “coal preparation and processing plant” and “coal processing and
conveying equipment” set forth above is that the coal processing plant only encompasses those
structures that contain (or, in the case of some coal preparation plants that have multiple facilities
and structures, boundaries that encompass) the equipment and facilities that prepare and process the
coal, which, in this case, are the crushers together with the mechanical equipment that conveys the
coal to and away from the crushers. Applying this construction, defendant’s position that its coal
processing plant begins at the point where the coal is deposited into the receiving pocket of the
structure that contains the coal crushing and conveying equipment and would not extend to a
stockpile of coal prior to that point (since the storage pile is not something that prepares coal by one
or more of the following processes: “breaking, crushing, screening, wet or dry cleaning, and thermal
drying”) is within the text of Subpart Y.
Another plausible interpretation, however, is that a coal processing plant would include an
area adjacent to where the physical processing takes place when it is used for stockpiling coal that
is destined for processing within what would then be considered to be the remainder of the coal
48

processing plant. Essentially, this is plaintiffs’ interpretation.8
Still another plausible interpretation is that a pile of coal that exists simply to facilitate
loading into what is otherwise the remainder of the coal processing plant is a part of the plant. This
appears to be plaintiffs’ alternative argument.
3.

EPA guidance

Both parties point to statements made by EPA that they claim support their interpretation of
the foregoing regulations and whether, in this instance, the coal pile is part of the coal processing
plant or simply another part of the mine. In terms of making a decision in this case, any EPA
guidance on the issue, if reasonable, is entitled to respect but not full Chevron deference, which only
applies to a product of EPA’s formal rulemaking. ADEC, 540 U.S. at 487-88.
a.

The applicable EPA guidance according to plaintiffs

Plaintiffs rely primarily upon EPA, New Source Performance Standards (NSPS) -Applicability of Standards of Performance for Coal Preparation Plants to Coal Unloading
Operations, 63 Fed. Reg. 53288 (Oct. 5, 1998) (hereinafter “1998 Coal Unloading Guidance”),
which was issued before “coal piles” were added to the list of affected facilities by the amendments
to Subpart Y in 2009. The 1998 Coal Unloading Guidance addressed several issues only one of
which is the focus of plaintiffs’ argument.

8

Plaintiffs also point to the definition of coal processing and conveying equipment and its statement that
equipment at the mine face is not included as part of the coal processing plant. Plaintiffs argue this suggests that
anything beyond the mine face should be considered part of defendant’s coal processing plant - at least under the
circumstances of this case. The court disagrees. More likely, this language was inserted in the definition in question
to make clear that the handling of the coal at the mine face (which may involve some breaking, for example) would not
be considered coal “processing” and subject to regulation under Subpart Y.

49

Before turning to the part of the 1998 Coal Unloading Guidance that plaintiffs rely upon,
it is helpful for what follows to consider the first issue that was addressed: whether coal unloading
at a coal processing plant falls within the definition of “coal processing and conveying equipment”
(an “affected” facility under the definitions set forth above) so that emissions from coal unloading
would be subject to Subpart Y’s performance standards. EPA answered this question by stating that
unloading would generally fall within the “definition of coal processing and conveying equipment,”
but not if the coal was unloaded for storage. More specifically, EPA stated:
EPA concludes that coal unloading that involves conveying coal to plant machinery fits
within the definition of "coal processing and conveying equipment." 40 CFR 60.251(g)
defines "coal processing and conveying equipment" 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." The key phrases are "the equipment used to convey
coal to * * * machinery" and "but is not limited to." While the "equipment" involved in coal
unloading varies from plant to plant (the definition is written broadly enough to
accommodate the differences), what is important is that the equipment perform the function
of conveying. 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.

1998 Coal Unloading Guidance, 63 Fed. Reg. at 53289. And, while what was being addressed
specifically was whether coal unloading was part of the affected facility of coal processing and
conveying equipment, it also more broadly raises the question of what unloading activity is part of
a coal processing plant itself, given the definitions for what is a coal processing plant and what
constitutes coal processing and conveying equipment. And, it is the parsing of these definitions that
defendant in part relies upon for its conclusion that its coal storage pile is not regulated under
Subpart Y.

50

The part of the 1998 Coal Unloading Guidance that plaintiffs expressly rely upon addressed
the issue of whether fugitive emissions from coal unloading must be counted in determining whether
a coal preparation plant is a major source. EPA concluded generally that they would (at least for
Title V permitting purposes) and gave two reasons for why that would be the case. In the process
of stating the second reason, it went on to offer that “coal unloading for temporary storage be treated
no differently” than unloading that is considered to be part of the coal processing plant because it
is an “optional first step in the coal preparation process.” More specifically, EPA stated:
EPA has determined by rule that fugitive emissions count towards the major source threshold
for all sources that belong to the source category regulated by NSPS Subpart Y. 49 FR
43202, 43209 (October 26, 1984). Under the definition of source used in the 302(j)
rulemaking, all types of coal unloading at coal preparation plants are covered. Coal
unloading normally belongs to the same industrial grouping as other activities at coal
preparation plants, is located on contiguous or adjacent property, and is under common
control. Therefore, EPA concludes that all coal unloading at a coal preparation plant is part
of the source belonging to the source category for coal preparation plants.
Coal unloading of all types also fits within the NSPS source category. A survey of EPA
Regional Offices indicated that the majority of the Regions treat coal unloading at a coal
preparation plant as being within the NSPS source category. Coal unloading that is regulated
under Subpart Y is clearly within the source category. Common sense would dictate that coal
unloading for temporary storage be treated no differently. It is performed at the same facility
and is an integral part of the operations at that facility. The latter type of coal unloading is
simply an optional first step in the coal preparation process.

63 Fed. Reg. at 53290 (italics added). Focusing on the second paragraph,9 plaintiffs contend that
it provides a direct answer to the question of whether the coal pile in this case must be counted. This
is because, according to plaintiffs, the unloading of coal onto defendant’s coal storage pile is an
9

With respect to the first reason, if what is being suggested is that fugitive emissions must be counted for coal
unloading outside of the coal processing plant if it is on contiguous or adjacent property and under common control, that
arguably would not apply when such coal unloading is within a coal mine where the mining activity is primary and the
coal processing secondary. As noted in footnote 5 supra, EPA employs a primary activity test to determine whether the
fugitive emissions from the coal mine generally must be counted in making the major source determination for coal
mines that have coal processing plants.

51

integral part of the coal processing and preparation process and, in this instance, simply an optional
first step.
While plaintiffs reading of this guidance is a plausible one, EPA has also said other things
that cast some doubt on plaintiffs’ contention that the foregoing guidance necessarily applies to the
coal storage pile in this case and the unloading of coal to that pile, including that the beginning of
a coal processing plant is the point where coal is unloaded into the “first hopper.” And, depending
upon how those statements should be construed, one possible construction of the portion of the 1998
Coal Unloading Guidance that plaintiffs reference (which does not specifically mention coal piles)
is that it applies only to unloading into a silo, bunker, or even a small coal pile for short term storage
before the coal is processed but after it has already passed through a hopper or other unloading
structure that EPA has otherwise suggested as being the beginning of a coal processing plant. And,
it does appear that this is done in some coal processing plants. In the EPA memorandum
summarizing the study of the costs of controlling emissions from six different coal processing plants,
the descriptions of several of the plants indicate that coal was stockpiled in those plants, either for
short term or long term storage, after the coal had passed through a receiving structure. In fact, in
one of the plants, the coal was into three separate piles for later blending. See Model Plant Control
Costing Estimates Memo, supra. (Doc. No. 38-4).
But, even putting that aside, the portion of the 1998 Guidance relied upon by plaintiffs
appears to suggest that it would apply only to the unloading of coal for "temporary storage." And,
unfortunately, no further guidance was given as to what was meant by “temporary” and, absent

52

something more, it probably would have to be determined on a case-by-case basis.10
b.

The applicable EPA guidance according to defendant

As noted earlier, defendant’s application for its minor source permit took the position that
the upstream boundary of its coal processing facility is the point where coal is unloaded into the
receiving pocket and that the coal pile and unloading of the coal onto the coal pile are upstream of
this point and are simply part of the remainder of the coal mine. In support of its argument,
defendant cites to what it contends is the applicable EPA guidance, that being the number of
instances in which EPA has stated that a coal processing plant begins where coal is unloaded at the
“first hopper.”
For example, the reference to “first hopper” appears in the preamble to the final rule adopting
the 2009 amendments to Subpart Y,11 which included “open storage piles” as affected facilities.
EPA, Standards of Performance for Coal and Processing Plants; Final Rule, 74 Fed. Reg. 51950,
51952 (Oct. 8, 2009) (“A coal preparation and processing plant begins at the first hopper (i.e., drop
point) used to unload coal”). Another example is in the EPA responses to comments made during
the 2009 rulemaking. EPA, Standards of Performance for Coal Preparation and Processing Plants
(40 C.F.R. 60 Subpart Y), Response to Comments Received on Proposed Amendments and
10

While it may be for another purpose, the EPA cost study memorandum does differentiate between
"short-term" and "long-term" coal storage piles and all of the coal piles described as being short-term in the study were
of 0.5 acres in size or less and those that were described as being long-term were more than an acre in size with the
smallest of the piles labeled long-term being 3 acres in size. As noted earlier, defendant's application states that the coal
pile in question in this case will be approximately 8 acres in size. The size of the coal pile may not be the only relevant
factor for purposes of determining what is temporary versus longer term storage. Arguably, the capacity of the coal
processing plant would also be a factor in terms of how long the coal would remain in the storage pile.
11

National Mining Ass’n v. U.S. E.P.A., 59 F.3d 135, 1355 & n.7 (D.C. Cir. 1995) (EPA’s preamble to a final
rule should be considered when interpreting it as appropriate).

53

Supplemental Proposal, at 79 (September 2009) (“EPA Comments to Proposed 2009 Amendments”)
(“EPA interprets coal unloading into the first hopper ‘downstream’ from any form of transportation
to be the beginning of the ‘coal preparation plant.’”) (Doc. No. 38-5). Also, there is the statement
in the 1998 Coal Unloading Guidance referenced earlier: “The coal must be directly unloaded into
receiving equipment, such as a hopper, to be subject to the provisions of NSPS Subpart Y.” 63 Fed.
Reg. at 53289.
The term “first hopper” is not used by Subpart Y, but ordinarily one would associate this
term with a piece of equipment or a physical structure.12

And, another portion of the EPA

Comments to the 2009 Amendments that defendant relies upon is consistent with that. The full text
of the comments and the response that defendant points to are the following:
3.4.1.1 Coal Unloading Activities - Subpart Y Proposal Contrary to EPA
Policy
Comment: Many commenters (085, 086, 088, 095, 107, 108, 112, 115, 117, and 120) stated
that Subpart Y should not be applicable to coal unloading activities because of previous EPA
applicability determinations and current EPA policy. Commenters disagree with EPA’s
rationale for its proposal to amend Subpart Y to include coal unloading activities. EPA
concluded that coal unloading, in general, and truck dumps, in particular, are NSPS affected
facilities at coal preparation plants based on (1) an “exceptionally strained” interpretation of
the term “conveying equipment,” (2) a guidance manual for agency inspection of coal
unloading at coal preparation plants, and (3) a document that did not specifically address
coal unloading but nevertheless assumed that activity was regulated by Subpart Y. Review
of the record shows evidence that EPA never intended for coal unloading activities to be an
affected facility at coal preparation plants when Subpart Y was promulgated. Specific EPA

12

See, e.g., Oxford English Dictionary Online (last accessed May 28, 2016) (“3. In a corn or other grinding
mill: a receiver like an inverted pyramid or cone, through which grain or anything to be ground passes into the mill. 4.
Applied to similar contrivances for feeding any material to a machine, and, generally, to articles resembling a mill hopper
in shape or use.”); Random House Unabridged Dictionary (2d ed. 1993) (“5. a funnel-shaped chamber or bin in which
loose material, as grain or coal, is stored temporarily, being filled through the top and dispensed through the bottom.”);
Webster’s New World Dictionary (Third College Ed. 1988) p. 650 (“3 [so called from making the material “hop”] a box,
tank, rail car, etc., often funnel-shaped from which the contents can be emptied slowly and evenly [the hopper of an
automatic coal stoker]”).

54

determinations cited by commenters concerning EPA’s intentions for regulating coal
unloading activities under Subpart Y include the following.
#

In 1980, EPA’s first review of Subpart Y concluded that that coal unloading was not
a Subpart Y affected facility.

#

In 1995, EPA Region VIII advised the Wyoming Department of Environmental
Quality that “truck coal dump operations are not affected facilities subject to the
NSPS Subpart Y regulations.”

#

In 1998, EPA Headquarters published an interpretative ruling in the Federal Register
stating that “coal unloading that involves conveying coal to plant machinery is
regulated under Subpart Y” (63 FR 53288, dated October 05, 1998). EPA
Headquarters “use[d] the term “coal unloading¨ to encompass “coal truck dumping”
and “coal truck unloading¨ as well as dumping or unloading from trains, barges,
mine cars, and conveyors.” EPA explained its reasoning behind that 1998
interpretation, as follows: section 60.251(g) defines “coal processing and conveying
equipment”as “any machinery used to reduce the size of coal to or remove coal and
refuse from the machinery. This includes, but is not limited to, breakers, crushers,
screens, and conveyor belts.” The key phrases are “the equipment used to convey
coal to . . . machinery” and “but not limited to.” Although the equipment involved
in coal unloading varies from plant to plant (the definition is written broadly enough
to accommodate the differences), what is important is that the equipment performs
the function of conveying. 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
Subpart Y. The coal must be directly unloaded into receiving equipment, such as a
hopper, to be subject to the provisions of Subpart Y (63 FR 53289).

#

Subpart OOO explicitly excludes truck dumping from NSPS control requirements
(section 60.672(d)). Subpart OOO was just recently revised, 74 FR 19294 (April 28,
2009), and it continues to contain that NSPS-exclusion for truck dumping. Thus, in
the absence of (1) representative data for achievable levels of controlled emissions
from coal unloading and (2) associated documentation that the costs of such controls
are reasonable, the obvious inference is that coal unloading should also remain
excluded from NSPS.

Response: As commentators noted, in 1998 EPA issued an interpretative ruling that states
that “coal unloading” operations (which include both truck and rail car dumping) are
regulated by Subpart Y. This interpretative ruling has not changed in intervening years and
thus remains, in effect. In the interpretative ruling, EPA concluded:
…that coal unloading that involves conveying coal to plant machinery fits within
the definition of “coal processing and conveying equipment.” 40 CFR 60.251(g)
defines “coal processing and conveying equipment” as “any machinery used to
reduce the size of coal or to separate coal from refuse, and the equipment used to

55

convey coal to or remove coal and refuse from the machinery. This includes, but is
not limited to, breakers, crushers, screens, and conveyor belts.” The key phrases are
“the equipment used to convey coal to * * * machinery” and “but is not limited to.”
While the “equipment” involved in coal unloading varies from plant to plant (the
definition is written broadly enough to accommodate the differences), what is
important is that the equipment perform the function of conveying...The coal must
be directly unloaded into receiving equipment, such as a hopper, to be subject to the
provisions of NSPS Subpart Y. (see 63 FR 53288.)
Thus, EPA interprets coal unloading into the first hopper “downstream” from any form of
transportation to be the beginning of the “coal preparation plant.”
As the standards under Subpart Y are based on data obtained from subject facilities, the
comparisons with subpart OOO have no meaning. As discussed below in response to
comment 3.4.2.1, the central question is whether the standard set in this rule is appropriate
not whether a standard set in a different rule was appropriate. Much of commenters’
reasoning is based upon past applicability determinations that said unloading were not
subject to Subpart Y. Such determinations were based on interpretations of the current rule
language at the time. Thus, the determinations do not speak to Agency intent or policy
regarding whether such regulation would be appropriate. Further, as noted, they were
superseded by the 1998 interpretation, which was published in the Federal Register.

EPA Comments to Proposed 2009 Amendments, at 78-79 (italics added).
Finally, defendant points to other EPA responses to the comments to the 2009 rulemaking
where EPA arguably applied the same dividing line to distinguish between haul roads located within
a coal processing plant and those leading up to it but not a part of the coal processing plant. One
example is the following:
Comment: Many commenters (082, 085, 086, 087, 088, 093, 095, 107, 109, 112, 114, 115,
120, 123, and 126) requested clarification regarding the plant roadways to which EPA
intends Subpart Y to apply. EPA does not clearly explain what it means for a roadway to be
“associated” with a preparation plant. Nor does EPA define the term “haul road.” EPA
should clarify that “roadways” such as haul roads that do not leave the plant property are not
subject to Subpart Y. EPA needs to clearly define where the coal preparation plant begins
and where the coal mine ends. Subpart Y is applicable only to affected facilities of a coal
preparation plant. EPA should clarify that no facilities at a coal mine, even if the mine is
contiguous to the property of the preparation plant, are covered under the provisions of
Subpart Y. EPA must clearly define the term “haul roads” and should not, regulate under
Subpart Y any roadways outside of the preparation plant. Other commenters (096 and 113)
disagree with EPA’s proposal to exclude roadways that do not leave the property (e.g., haul

56

roads at coal mines) from being subject to Subpart Y for the following reasons with specific
examples cited: (1) road wetting can be accomplished in a manner that is easy to adjust with
the re-routing of haul roads, including the use of water trucks and temporary sprayers; (2)
certain coal preparation plants are already required to abate dust on their internal haul roads;
(3) some states currently impose dust suppression requirements on all roads associated with
coal preparation plants.
Response: As noted in the response to Comment 3.2 above, EPA, in both the air and water
offices, has historically maintained the concept that activities undertaken at or near the
active mine face (“active mining area”) would not be part of the “coal preparation plant”
and that “coal preparation” involves separation of coal from impurities (i.e., “breaking”
or “crushing”). As discussed in the response to the comment in section 3.4.1.1.1 above, EPA
interprets the “beginning” of the “coal preparation plant” to be the first hopper (i.e., “drop
point”) for receipt of coal from any form of transportation. Thus, any haul roads between
the “active mining area” and the first hopper of the “coal preparation plant” would not be
subject to Subpart Y; rather they would be subject to the requirements of SMCRA or the
specific State. Similarly, roads occurring after the coal has been loaded for distribution
would not be subject to Subpart Y.
Under the definition of “surface coal mining operations” contained in 30 CFR 70.5
(SMCRA), operations conducted within a coal preparation plant are covered under SMCRA:
[quotations to specific SMCRA regulations that govern control of fugitive dust
under SMCRA including those portions of coal mines that process or prepare coal]
Thus, SMCRA covers fugitive dust emissions from roads at coal preparation and
processing plants at mine sites and requires a fugitive dust plan and other requirements to
control air pollution from such sources (through similar measures as were included in the
supplemental proposal for Subpart Y). EPA believes that coal moving operations, once the
coal enters the “coal preparation plant,” will be by conveyor rather than by truck.
Therefore, EPA believes that the requirements of SMCRA are sufficient to address air
emissions from roadways that may be found within a coal preparation and processing plant
at mine sites. For coal preparation and processing plants at end-user facilities, EPA believes
that, again, once the coal enters the “coal preparation plant,” coal moving operations will
be by conveyor rather than by truck. Therefore, EPA is withdrawing its proposed
requirements for roadways.
Where fugitive coal dust emissions control plan requirements under Subpart Y for open
storage piles overlap requirements under SMCRA or State regulations, those sources may
submit the more stringent of the required monitoring plans to the Administrator or delegated
authority as required by the final rule.

EPA Comments to Proposed 2009 Amendments at 93-95 (italics added).
Defendant contends that collectively the foregoing guidance makes clear that the beginning
57

of a coal preparation plant (“first hopper”) is the first unloading point onto or into a piece of
equipment or structure that is directly and physically connected to the conveying of the coal for
processing and that this is consistent overall with definitions of “coal preparation and processing
plant” and “coal processing and conveying equipment.” And here, according to defendant, the only
point where coal unloading onto or into such a piece of equipment or structure takes place is where
the coal is bulldozed into the receiving pocket from which it is then conveyed by a mechanical augur
to the point where it undergoes primary and secondary crushing.
While the court agrees this is a plausible reading of EPA’s statements, it is by no means the
only one. For one thing, while the foregoing does suggest that the “first hopper” is an identifiable
piece of equipment or structure that is directly involved in the process of conveying coal for
processing, EPA has also referred to the “first hopper” parenthetically as being a “dropping point.”
And, if that is all that EPA meant, then the first dropping point after the transportation of the coal
to the processing plant would arguably be the unloading of coal onto defendant’s coal storage pile.13
Further, another possibility is that, when the references to the “first hopper” are considered in
connection with what else EPA has said, including the 1998 Coal Unloading Guidance, a coal pile
might in some cases be a sufficient structure (“first hopper”) or an extension of one.
c.

Summary re EPA guidance

Both parties claim that the relevant EPA guidance clearly supports their position as to
whether the coal pile and unloading onto the coal pile are parts of defendant’s coal preparation plant

13

But, if that is all that EPA meant, the use of “first hopper” seems to be an odd choice of terms. Why not
simply use “first dropping point” or “first unloading point.”

58

or simply other parts of defendant’s mine. The court disagrees. In the court’s view, what EPA has
said does not provide a clear answer one way or the other - at least based on the present facts.14
4.

Whether drawing the line between the coal preparation plant and the
rest of the coal mine at the point where coal enters the receiving pocket
would be an arbitrary application of Subpart Y

Plaintiffs contend that drawing the line between the coal processing plant and the rest of the
mine where defendant has drawn it leaves the coal pile and the unloading onto the coal pile
unregulated and this obviously could not have been what EPA intended. The mere fact that these
emissions would not be regulated under Subpart Y (and also that the coal mine would not be a major
source if these emissions were the tipping point in terms of whether the major source threshold has
been reached) does not mean that EPA must have intended a contrary result. Quite the contrary,
EPA’s choices in terms of what emissions to regulate under the broad authority provided by the
CAA as well as the decisions of Congress in terms of what is subject to the CAA in the first instance
are all about line drawing.
Further, and more granularly here, EPA has decided not to count fugitive emissions of PM
from coal mines in determining whether they are major sources based on the policy considerations
addressed earlier. Also, EPA has not even adopted NSPS standards for coal mines and only
defendant’s coal processing facility is subject to Subpart Y. Finally, even for coal piles and haul
roads that are undisputedly within a coal processing facility and clearly subject to Subpart Y, EPA

14

That being said, the stockpiling of coal by the mine for the purpose of having sufficient storage to meet
contractual delivery requirements during the times when active mining operations are suspended for some reason,
arguably, is for a different purpose than coal processing. And, the court has difficulty understanding why the placement
of such a storage pile next to the coal processing facility rather than at the mine face would necessarily change that.

59

has decided not to impose the numerical emission limitations of PM that Subpart Y imposes on
certain types of coal processing equipment or even the opacity standards that it requires be met by
most of the rest of the coal processing plant. Rather, for coal piles, it has limited the control to
imposing “work practice standards” for controlling fugitive dust that, for the most part, appear to
be comparable to those already being imposed by SMCRA and the NDDOH15 for all coal piles
located within a mine, including those within a mine’s coal processing facility. And, for dust from
haul roads that are clearly within a coal processing facility, EPA decided not to go even that far,
electing instead to simply rely upon the controls imposed by the DOI under SMCRA and by the
individual states in their air pollution control programs. See 40 C.F.R. §§ 60.252 - 60.254; EPA
Comments to Proposed 2009 Amendments at 81, 85, 95-96 In fact, one of the reasons that EPA
gave for not imposing numerical limits on emissions or opacity standards for the coal piles and haul
roads was that, “[a]t the current stage, EPA believes it difficult and prohibitively expensive to
measure actual PM emissions from individual open storage piles or roadways.” Standards of
Performance for Coal and Processing Plants; Final Rule, 74 Fed. Reg. at 51954.
In short, the mere fact that the coal pile and the unloading to it may not be subject to Subpart
Y regulation and the fugitive emissions also then not counted for purposes of determining whether
the mine is a major source is not such an arbitrary or unreasonable result that this could not have
15

N.D.A.C. ch. 33-15-17 sets forth North Dakota’s regulations on fugitive emissions and, pursuant to the
authority granted by that chapter, the NDDOH set forth a number of specific requirements for control of fugitive dust
in defendant’s minor source permit, including, when necessary, such things as frequent watering, addition of dust
palliatives, etc. (Doc. No. 1-2, pp. 2-3). As part of their supplemental briefing, plaintiffs submitted photographs showing
clouds of dust being emitted from what they claimed was defendant’s haul road activity. While the court is not
unsympathetic, plaintiffs can seek relief from the NDDOH as well as the state courts if defendant is violating its permit
conditions with respect to dust control. Also, plaintiffs may have other remedies, such as a common law claim of
nuisance.

60

been what EPA intended. In fact, treating the coal pile in question and the unloading to it no
differently from the rest of the mine (including similar unloading to and maintenance of coal piles
that may be elsewhere in the mine) is arguably consistent with the policy choice that EPA has
already made in deciding not to count fugitive emissions from coal mines for purposes of
determining whether coal mines are major sources.
5.

Deference to the NDDOH’s determination

Defendant argues that the court should give deference to what it claims was the NDDOH’s
decision on this point. The problem with that, however, is that the minor source permit that plaintiffs
presented as an attachment to their original complaint does not state one way or the other what the
NDDOH may have concluded about whether such emissions should be counted or not. In an attempt
to bridge this gap, defendant has offered under the guise of “supplemental authority:” (1) a letter
written by plaintiffs to EPA in which they make the same arguments as here for why the NDDOH
should have required a PSD construction permit; and (2) a letter written by the NDDOH to EPA,
which, according to the text of the letter, was a follow up on a conference call held between EPA
staff and NDDOH staff about the issues raised in plaintiffs’ letter. (Doc. No. 35-1). These letters,
however, are beyond the scope of the amended complaint.16
Nevertheless, the court agrees with the broader point. While this court does not sit in review
of the NDDOH’s determination and is obligated to make its own decision, the court must give due

16

Also, the NDDOH letter to EPA does not expressly state that it had concluded that the PTE for PM emissions
from the coal pile and the unloading to the coal pile did not have to be counted. And, while it may be a fair inference
that the NDDOH in fact reached that conclusion from its statement to EPA that it considers the beginning of a coal
processing facility to be the point were coal is unloaded into the first hopper (quoting from an EPA guidance relied upon
by defendant here), this is not the appropriate stage of the proceeding to start drawing these inferences.

61

consideration to the NDDOH’s application of the relevant statutory and regulatory requirements to
the particular circumstances of this case. See Cascade Kelly Holdings, 2015 WL 9581754, at **1920 (discussing the deference that should be accorded the state agency determination); cf. ADEC, 540
U.S. at 490-94 (same albeit under different circumstances).
6.

Conclusion

The court is not prepared at this point to decide whether the PTE for fugitive emissions from
the coal pile and the unloading of coal to it are totally in or totally out for several reasons. First,
given the foregoing, the court is not convinced that it has all of the necessary facts to render a proper
decision. Second, as discussed later, there is the possibility that the court may have to consider the
PTE for PM emissions from the coal pile to the extent that it is part of the unloading of coal from
it into the receiving pocket - a point not specifically addressed by defendant’s application. So, if
there needs to be further factual development with respect to that issue, it seems prudent to develop
the record with respect to the unloading of coal on to the coal pile and the coal pile itself. Finally,
it may be that a more developed record will make the whole question beside the point. That is, even
if the PTE for fugitive emissions of PM from the coal pile and the unloading to the coal pile are
considered, it may not be enough to push the total PTE for fugitive PM up to the threshold limit.17
Also, a determination that the storage of coal is for a longer period than what the EPA may consider
to be “temporary” may be reason not to count the PTE for fugitive emissions from the coal storage
pile and the unloading to it.
17

Defendant claims in its briefing that the estimates of potential fugitive emissions set forth in the amended
complaint have double or even triple counted the amount of PM that could be emitted for technical reasons that cannot
be resolved now.

62

D.

Whether the PTE from defendant’s coal crushing and conveying equipment
must be determined without consideration of the PECS
1.

Additional background

As noted earlier, 42 U.S.C. § 7479(1) defines “major emitting facilit[ies]” as “any of the
following stationary sources of air pollutants which emit, or have the potential to emit, one hundred
tons per year or more of any air pollutant …” and that “[s]uch term also includes any other source
with the potential to emit two hundred and fifty tons per year or more of any air pollutant.” While
the statute does not define potential to remit, EPA has offered the following in 40 C.F.R. §§
51.166(b)(4) & 52.21(b)(4):
(4) Potential to Emit means the maximum capacity of a stationary source to emit a
pollutant under its physical and operational design. Any physical or operational limitation
on the capacity of the source to emit a pollutant, including air pollution control equipment
and restrictions on hours of operation or on the type or amount of material combusted,
stored, or processed, shall be treated as part of its design if the limitation or the effect it
would have on emissions is federally enforceable. Secondary emissions do not count in
determining the Potential to Emit of a stationary source.

Defendant’s application for its minor source permit states with respect to its coal crushing
and conveying equipment:
Once the coal is brought to the processing facility, it is unloaded onto an open storage pile.
From the pile the coal is pushed via a dozer into a receiving pocket and apron feeder where
it enters the coal processing facility. At this point it undergoes primary and secondary
crushing, all within enclosed chutes and skirtboards that are considered a passive enclosure
containment system (PECS). After crushing, the coal is transferred to a conveyer belt that
is owned and operated by Coyote Station, at which point it is no longer considered part of
the CCMC permit.

(Doc. No. 1-1, p. 5). Then later, the application states the following with respect to the PTE for
fugitive emissions of PM from this equipment:
2.1.1.1 Emission Calculations

63

The only emission unit which would be considered for the stationary source PTE
calculations is the coal processing equipment. However, no emissions are calculated for the
coal processing equipment as it will be controlled by enclosures and PECS. Any emissions
from the coal processing equipment are expected to be negligible and unquantifiable as the
control equipment is known to be very effective in reducing particulate emissions from coal
processing facilities.

(Id. at p. 13).18
Plaintiff’s amended complaint, on the other hand, alleges the following with respect to this
portion of defendant’s coal processing facility:
C

the PTE for uncontrolled emissions of PM from the primary and secondary crusher
will be between 700.8 tons per year and 1,927.2 tons per year.

C

the PTE for uncontrolled emissions of PM from equipment used to move coal
through the coal crushing facility and to the Coyote Station, including conveyor
belts and transfer points, will be between 0.66 tons per year and 1,926 tons per year.

(Doc. No. 11-1,¶¶ 47-48, p.13).
2.

Discussion

It is clear from the use of the word “uncontrolled” as well as other allegations of plaintiffs’
complaint, including ¶ 45, that these allegations do not take into account the PECS that are part of
the design of the coal processing facility as set forth in the application. As a consequence, defendant
argues that these allegations should be given no consideration with respect to whether plaintiffs have
stated a claim, contending that the effect of the PECS must be taken into account. In response,
plaintiffs make several arguments for why the PECS should not be considered. Before addressing

18

As will be discussed later, it does not appear that defendant’s application addressed the PTE for any fugitive
emissions that might be generated from the pushing of the coal from the coal pile into the receiving pocket.

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those arguments, some discussion about federal enforceability and EPA’s authorization of synthetic
minor permits is required.
As noted in the definition of PTE, its determination can take into account certain controls
and restrictions that limit the amount of a pollutant being emitted if the controls and restrictions are
“federally enforceable.” EPA’s published regulations set forth a definition of federal enforceability
which requires that the particular controls or restrictions be enforceable by the EPA administrator.
40 C.F.R. §§ 51.166(b)(17) & 52.21(b)(17). While this definition remains on the books, the part
requiring enforceability by the EPA Administrator was rendered inoperative for most purposes by
court decision. EPA now acknowledges it is sufficient if the controls or limitations can be “legally
and practicably” enforced by a state or local pollution control agency as noted by one of its more
recent statements on the subject:
Following two court decisions, NATIONAL MINING ASSOCIATION V. EPA, 59 F.3d
1351 (DC Cir. 1995) and Chemical Manufacturers Ass’n v. EPA, No. 89-1514 (DC Cir.
1995), we clarified that the term “federally enforceable” should be read to mean “federally
enforceable or legally and practicably enforceable by a state or local air pollution control
agency.” Release of Interim Policy on Federal Enforceability of Limitations on Potential to
Emit, at 3 (Jan. 22, 1996).

EPA, Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule Step 3,
GHG Plantwide Applicability Limitations and GHG Synthetic Minor Limitations, 77 Fed. Reg.
14226, 14245 n.44 (March 8, 2012) (discussing 40 C.F.R. §§ 51.165(a)(1)(iii), 51.166(b)(4),
52.21(b)(4)).
Under EPA’s definition of PTE, it is permissible in making the PTE determination for a
source that has a PTE over the major source threshold limit to avoid having to obtain a major source
permit by committing to operational limits or the use of add-on pollution control equipment in a
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minor source construction permit that will keep the emissions below the major source threshold.
In CAA parlance, such a permit is referred to as a “synthetic minor permit.” And, for such permits,
EPA has suggested that merely committing in the permit that the use of the operational limitations
or add-on control equipment will result in the threshold not being reached is not enough. Rather,
EPA has suggested that, to be practicably enforceable, the operational limits must be capable of
being translated into numeric limits on emissions for a shorter period of time than a year (preferably
no longer than on a monthly basis) along with commitments for monitoring. EPA, Guidance on
Limiting Potential to Emit in New Source Permitting (Memorandum to Terrell Hunt and John Seitz,
June 13, 1989) (“1989 PTE Guidance”) (Doc. No. 38-3).
With this background, one of plaintiffs’ arguments is that EPA’s guidance requires that,
before defendant can take the PECS into account it must satisfy the 1989 PTE Guidance in terms
of what should be required for synthetic minor source permits, .i.e., the permit should contain a
limit on emissions measured over a period of preferably a month or less along with a requirement
for periodic monitoring. Plaintiffs contend, that since defendant’s minor source construction permit
contains neither an emissions limit of this type nor a provision for periodic monitoring, that any
control imposed by the PECS cannot be considered in calculating the PTE.
The court disagrees with this argument. Neither the definition of PTE nor the 1989 PTE
Guidance requires what in effect would be a synthetic minor source construction permit for all minor
sources where the source’s physical structure is a limiting factor. Rather, the definition of PTE
contemplates a determination of PTE after taking into account physical limitations that are a part
of the design. And, if it is clear that the PTE for the source with its physical structures in place will
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not exceed the major source threshold when operated at capacity, then the source is simply a minor
one. In other words, this is different from when the source as physically built and operated at
capacity will result in a PTE above or so very close to the major source threshold that add-on
emission control equipment or limits on the source’s operation are required to insure that the actual
emissions will below the major source threshold. A fair reading of the definition of PTE and the
1989 PTE Guidance is that this is when numeric limits on emissions over some period of time less
than a year may be required along with provisions for periodic monitoring.
Granted, the line between physical limitations that are an integral apart of a source and addon pollution control equipment may not always be a clear one. In this case, the PECS are clearly
an integral part of the facility’s structure.19
Plaintiffs also contend that, aside from whether the defendant must meet the requirements
for a synthetic minor source permit, there must be some numeric limitation on emissions of less than
simply the major source threshold amount in order to make the commitment to use the PECS
practicably enforceable. Again, the court disagrees.
Defendant stated in its application for its minor source permit that, with the physical
limitations of the PECS in place, any emission of PM would be negligible and the NDDOH
apparently agreed with this assessment. And, assuming that the amount of PM emissions will in fact
be so small that there is no reasonable probability of the requisite major source threshold being
exceeded, the court has trouble understanding why the requirement contained in the permit that the

19

If, for example, defendant employed a baghouse to capture the emissions, the situation might be different.

67

coal crushing facility be constructed and operated with the PECS in place is not sufficient.
Certainly, this design commitment can practicably be enforced based on the permit conditions that
will be addressed in more detail in a moment. But, even if something more is required, defendant
has committed to an emissions limit; that is, the emissions will be negligible and unquantifiable.20
Finally, at one point in the briefing, plaintiffs suggested that the PECS could not be
considered because of the lack of “federal” enforceability. However, as discussed earlier, EPA no
longer insists that the condition or limitation must be enforceable by the EPA Administrator and it
is sufficient that the condition or limitation can be enforced by a state permitting agency. In this
case, that is not a problem with respect to either defendant’s commitment in its application to
employ the PECS or its representation that the emissions of PM from the coal crushing and
conveying equipment will be negligible. Among other things, defendant’s minor source permit

20

Defendant acknowledged in its brief that this is a binding representation and not mere puffery when
defendant stated:
In any event, emissions from the use of the federally enforceable PECS were quantified as being well
below the major source threshold. Coyote Creek’s Permit Application provided that the operation of
the PECS would result in “negligible” emissions from the coal conveyors and crushers at the Coal
Processing Plant. Doc. 1-1 at 13 (explaining that “no emissions are calculated for the coal processing
equipment as it will be controlled by enclosures and PECS. Any emissions from the coal processing
equipment are expected to be negligible and unquantifiable as the control equipment is known to be
very effective in reducing particulate emissions from coal processing facilities.”). And the Permit
issued to Coyote Creek by NDDH makes clear that “[a]ny alteration, repairing, expansion, or change
in the method of operation of the source which results in the emission of an additional type or greater
amount of air contaminants” than the amount represented in the Permit Application “must be reviewed
and approved by the Department prior to the start of such alteration, repairing, expansion or change
in the method of operation.” Doc. 1-2 at 5. Plaintiffs cannot meaningfully argue that the conditions
of the Permit are not “federally enforceable,” given the developments in the law discussed above.
Coyote Creek’s permit therefore does include a federally enforceable limitation on total emissions
from the crushers and conveyors at the Coal Processing Plant—they must be negligible, which makes
the Coal Processing Plant a minor source.
(Doc. No. **) (italics added). Having made this representation here, defendant would be judicially estopped from later
claiming otherwise. See, e.g., New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (discussing judicial estoppel);
Hutterville Hutterian Brethren, Inc. v. Sveen, 776 F.3d 547, 556-57 (8th Cir. 2015) (same).

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provides that:
Any violation of a condition issued as part of this permit to construct as well as any
construction which proceeds in variance with any information submitted in the application,
is regarded as a violation of construction authority and is subject to enforcement action.

(Doc. No. 1-2, p. 4). Also, it requires that:
Operations at the installation shall be in accordance with statements, representations,
procedures and supporting data contained in the initial application, and any supplemental
information or applications(s) submitted thereafter.

(Id.).21 Further, there is no question that the NDDOH can enforce these provisions. In addition to
any action that may be authorized by its regulations, these permit terms and conditions can be
enforced by the NDDOH in a civil action brought pursuant to N.D.C.C. § 23-25-10. Also, a
violation of the permit conditions as well as any false statement in the permit application can be the
subject of a state criminal prosecution. Id.
In short, the court rejects plaintiffs’ argument that this court would be required to consider
the PTE of the coal crushers and the conveying equipment assuming no containment by the PECS.
E.

Why dismissal at that stage would be premature in any event

It appears from the supplemental briefing that plaintiffs are contending that, even with the
PECS in place, the PTE for fugitive emissions of PM from the coal crushing and conveying
equipment will be much greater than what defendant claims, potentially exceeding the threshold
limit either by itself or when combined with other emissions that plaintiffs claim must be counted.

21

While the court in this instance does not believe there needed to be a requirement for periodic monitoring,
the mine permit does give the NDDOH the right at any time to enter the premises, perform tests, and inspect defendant’s
equipment and records. Also, this permit authorizes only construction and some operation until defendant obtains the
required operating permit. (Doc. No. 1-2, p. 3).

69

Plaintiffs argue that they need discovery to be certain but point to the earlier referenced cost study
conducted of the six different coal processing plants in response to defendant’s arguments of
implausibility. In particular, plaintiffs point to the fact that the estimated PTE of uncontrolled
emissions of PM from the coal processing plant at the western (Powder River Basin) subbituminous
mine in that study was 2,424 tpy and that the actual emissions with controls in place (including the
use of enclosures) was 324 tpy. Model Plant Control Costing Estimates Memo, at p. 14 & Table 9
(Doc. No. 38-4, pp. 14-16 ). Plaintiffs claim that this coal processing plant is comparable because
its rated capacity of being able to process up to 2,000 tons of coal per hour is the same as
defendant’s.22
Further, it appears plaintiffs are also contending that there are two other emission points that
must be considered, even if the court excludes from consideration the unloading of coal to the coal
pile and the maintenance of the coal pile. One is at the point where the coal enters what defendant
has defined to be its coal processing plant and the other is at the exit point.
As indicated by the excerpts from the 1998 Coal Unloading Guidance and the comments to

22

The court has its doubts. Among other things, the western mine processes a different quality of coal, the
layout of the plant may be different, and the enclosures referenced in the study may not be as effective as defendant’s
PECS. Moreover, while the rated capacity of the crushing equipment for the western mine is the same as defendant’s,
the amount of coal processed on a yearly basis by the two mines is likely not the same. The estimates of uncontrolled
and controlled emissions of PM from the coal processing plant for the western mine of 2,424 tpy and 324 tpy,
respectively, were based on the coal processing plant running for 7,848 hr/yr at rated capacity. This amounts to an
annual production of processed coal of just under 15.7 million tpy, which may be appropriate for a Powder River Basin
mine from which coal is railed to multiple customers. In this case, however, defendant stated in its permit application
that its mine is expected to produce 2.5 million tpy to serve one customer and, in any event, is limited by the permit to
an annual production limit of 3.2 million tpy. That being said, plaintiffs are correct that, according to the study, the
processing plant for the western coal mine did not include a coal storage pile and the point that plaintiffs may be making
with respect to the emissions from its coal crushing equipment is that, even putting aside any differences between that
facility and defendant’s, the controlled emissions were not negligible.

70

the proposed 2009 Subpart Y rule changes set forth earlier, EPA has been more clear in its views
that (1) the unloading of the coal into the receiving structure of a coal processing plant is part of the
coal processing plant for purposes of regulation under Subpart Y, and (2) that the PTE for fugitive
emissions from such unloading are to be counted in making a determination of whether a source is
a major one. And here, there is nothing in defendant’s application for its minor source permit which
indicates that the PTE for fugitive emissions of PM from the loading of the coal from the coal pile
into the receiving pocket was considered - including that resulting from the dozer activity required
to push the coal into the receiving pocket.
Likewise, plaintiffs contend there may also be an issue with respect to the point where the
coal is delivered to the Coyote generating station. All the application states is that the coal will be
dumped onto a conveyor that is owned and operated by the generating station, but does not describe
how any fugitive dust in the system at the point of turnover is controlled. While the court suspects
the answer may be that any such dust is controlled by enclosures surrounding the generating
station’s conveyor at the point of turnover and for a distance thereafter so as to render any PTE of
PM emissions from defendant’s coal processing facility minimal, defendant’s application and the
minor source permit are devoid of any details.
While the court has substantial doubts about whether plaintiffs will be able to demonstrate
that the PTE that might result from the unloading of coal from the coal pile into the receiving pocket
coupled with any PTE from the coal crushing and conveying equipment calculated after assuming
control by the PECS (including any PTE at the point of turnover to the generating station) would
meet or exceed the 250 tpy threshold, the issue here is whether plaintiffs’ amended complaint states
71

a claim and not whether the claim is a good one. Consequently, even if the court resolved the issue
of whether the PTE for fugitive emission s of PM from the coal pile and the unloading of coal to it
in defendant’s favor, it appears it would still be premature to grant defendant’s motion to dismiss.
Finally, to close the loop about why the court is hesitant about making a final decision
without a more complete record with respect to whether the PTE from the coal pile and the
unloading to the coal pile need be considered, one of the concerns is whether there is any logical or
reasonable line that can be drawn for purposes of calculating a PTE for PM for the unloading of
coal from the coal pile into the receiving pocket (the “first hopper” according to defendant),
including, perhaps, any dozer activity on the pile to accomplish that, from the rest of the coal pile
as well as the unloading of coal onto the pile. Of course, this assumes that the unloading of coal into
the receiving pocket must be considered as EPA guidance appears to suggest, a point that the court
need not now decide, but which on its face does not appear to be unreasonable.
F.

The case going forward

The normal allocation of the burden of proof in a civil case is on the plaintiff. Further, in
this case, we have a determination made by a state agency that is charged with implementation of
both the federal and state air pollution control statutes and regulations. And here, necessarily
implicit from the State’s regulatory scheme is that, when the NDDOH issued a minor source permit
to defendant, it also determined that the coal mine would not be a major source and for that reason
did not need a major source construction permit to satisfy the CAA’s PSD requirements as
implemented by the State. For both of these reasons, it will be up to plaintiffs to demonstrate that
defendant’s coal mine is a major source with affirmative evidence and not simply point to a lack of
72

a preexisting record containing the evidence and reasoning to support the determination that was
made. See, e.g., Cascade Kelly Holdings, 2015 WL 9581754, at *21; cf., ADEC, 540 U.S. at 49394.
V.

ORDER
Plaintiffs’ motion to amend their complaint (Doc. No. 11) is GRANTED. Plaintiffs shall

file and serve the amended complaint within ten (10) days. Defendant’s motion to dismiss on
grounds of lack of jurisdiction, abstention, and failure to state a claim (Doc. No. 7) is DENIED.
IT IS SO ORDERED.
Dated this 15th day of July, 2016.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

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