Voigt v. U.S. Envtl. Prot. Agency

46 F.4th 895

Casey VOIGT; Julie Voigt, Petitioners

v.U.S. ENVIRONMENTAL PROTECTION AGENCY ; Michael S. Regan, Administrator, U.S. Environmental Protection Agency, Respondents

Montana-Dakota Utilities Company; Northern Municipal Power Agency; Northwestern Corporation, doing business as NorthWestern Energy ; Otter Tail Power Company, Intervenors

State of North Dakota, Amicus on Behalf of Respondent

No. 21-1970

United States Court of Appeals, Eighth Circuit.

Submitted: March 2, 2022

Filed: August 31, 2022

Counsel who presented argument on behalf of the petitioners and appeared on the petitioners’ brief was Derrick Braaten, of Bismarck, ND.

Counsel who presented argument on behalf of the respondents and appeared on the respondents’ brief was David Domagala Mitchell, of Washington, DC. The following attorneys appeared on the respondent brief; Michael G. Lee, of Washington, DC., Stephanie J. Talbert, of Washington, DC., and Todd Kim, of Washington, DC.

Counsel who presented argument on behalf of the intervenors and appears on the intervenors’ brief was Makram Bassam Jaber, of Washington, DC. The following attorney appeared on the intervenor brief; Alexander C. Woo, of Washington, DC.

The following attorney appeared on the amicus brief; Margaret I. Olson, AAG, of Bismarck, ND.

Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Casey and Julie Voigt, the owners of a large ranch in rural North Dakota, filed this petition for review related to their challenge of the Environmental Protection Agency's (EPA) renewal of a Clean Air Act (CAA) Title V operating permit for Coyote Station, a coal-fired electric generating plant that is serviced by the nearby Coyote Creek Mine. The Voigts petitioned the EPA Administrator to object to the renewal of the permit, and the Administrator denied the petition on the basis that the Voigts failed to carry their burden of demonstrating that the permitting decision was contrary to the CAA. The Voigts now seek our review of the Administrator's denial of their petition for an objection. For the following reasons, we deny the petition for review.

I.

We begin with the background regarding Title V operating permits. After originally enacting what is known as the CAA in 1963, see Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 758, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004), Congress amended the CAA in 1990 to add the Title V permitting requirement that forms the basis of this dispute. Nucor Steel-Ark. v. Big River Steel, LLC, 825 F.3d 444, 447 (8th Cir. 2016). Under this requirement, "each covered facility [must] obtain a comprehensive operating permit setting forth all CAA standards applicable to that facility. These ‘Title V’ permits do not generally impose any new emission limits, but are simply intended to incorporate into a single document all of the CAA requirements governing a facility." Sierra Club v. Otter Tail Power Co., 615 F.3d 1008, 1012 (8th Cir. 2010) (citation omitted). "[S]tates issue the Title V permits to qualifying facilities." Nucor, 825 F.3d at 447. The EPA approved North Dakota's operating permit program in 1999, see Clean Air Act Full Approval of Operating Permit Program; State of North Dakota, 64 Fed. Reg. 32,433 (June 17, 1999), and the North Dakota Department of Health (NDDOH)¹ is the primary permitting authority that is responsible for administering and enforcing Title V. See N.D. Admin. Code § 33.1-15-14-01 et seq.

Under North Dakota's rules for Title V permits, a major stationary source operating within the state must obtain a Title V permit from the NDDOH. North Dakota defines a "major source" as, in part:

any stationary source (or any group of stationary sources that are located on one or more contiguous or adjacent properties, and are under common control of the same person (or persons under common control)) belonging to a single major industrial grouping ....

N.D. Admin. Code § 33.1-15-14-06(1)(q). Thus, a group of stationary sources is considered a single major source for purposes of Title V permitting if they are (1) located on contiguous or adjacent properties; (2) under common control; and (3) of the same industrial grouping. No state or federal regulation defines the term "common control."

To obtain or renew a permit, a party must submit to the NDDOH, which then must submit to the EPA Administrator, "a copy of each permit application (and any application for a permit modification or renewal) or such portion thereof, including any compliance plan, as the Administrator may require to effectively review the application and otherwise to carry out the Administrator's responsibilities under this chapter," as well as "a copy of each permit proposed to be issued and issued as a final permit." 42 U.S.C. § 7661d(a)(1) ; see also 40 C.F.R. § 70.8(a)(1). "[A]ll permit proceedings, including initial permit issuance, significant modifications, and renewals, shall provide adequate procedures for public notice including offering an opportunity for public comment and a hearing on the draft permit." 40 C.F.R. § 70.7(h).

As part of the Administrator's review of a proposed Title V permit, if the Administrator determines that an application or requested permit is not compliant with the applicable requirements of the CAA, "the Administrator shall, in accordance with this subsection, object to [the permit's] issuance." 42 U.S.C. § 7661d(b) ; see also 40 C.F.R. § 70.8(c). If the Administrator objects within 45 days of receiving a copy of the proposed permit, "[t]he permitting authority shall respond in writing" to the Administrator's objection. 42 U.S.C. § 7661d(b)(1) ; see also 40 C.F.R. § 70.8(c). Where the Administrator does not object, the CAA provides an avenue for individuals to nonetheless petition the Administrator to object, provided that they do so within 60 days after the expiration of the Administrator's 45-day review period. 42 U.S.C. § 7661d(b)(2) ; 40 C.F.R. § 70.8(d). Regarding the contents of an individual's petition, it

shall be based only on objections to the permit that were raised with reasonable specificity during the public comment period provided by the permitting agency (unless the petitioner demonstrates in the petition to the Administrator that it was impracticable to raise such objections within such period or unless the grounds for such objection arose after such period). The petition shall identify all such objections.

Id. Further,

[u]nless the grounds for the objection arose after the public comment period or it was impracticable to raise the objection within that period ... , the petition must identify where the permitting authority responded to the public comment, including page number(s) in the publicly available written response to comment, and explain how the permitting authority's response to the comment is inadequate to address the issue raised in the public comment. If the response to comment document does not address the public comment at all, the petition must state that.

40 C.F.R. § 70.12(a)(2)(vi). Within 60 days of an individual's petition to the Administrator, "[t]he Administrator shall issue an objection ... if the petitioner demonstrates to the Administrator that the permit is not in compliance" with the applicable CAA requirements. 42 U.S.C. § 7661d(b)(2).

Coyote Station, which is subject to Title V permitting requirements, is a lignite coal-fired power plant located in Mercer County, North Dakota. Operational since 1981, Coyote Station has received all of its coal from the nearby Coyote Creek Mine since 2016. Large parts of the Coyote Creek Mine are located on property leased to Coyote Creek Mining Company by the Voigts. Coyote Station is the mine's sole customer; the mine transports coal to Coyote Station via a conveyor belt that runs between the two facilities. Coyote Station is located approximately five miles from the Voigts’ home and approximately one mile from part of the Voigts’ ranch. Since 1998, Coyote Station has operated under a Title V permit.

On September 28, 2017, Coyote Station applied to renew its permit. This was the first time Coyote Station sought to renew its permit since Coyote Creek Mine became operational and began supplying Coyote Station with all of its coal needs. The NDDOH published a draft permit for public comment on June 12, 2018, with the comment period running through July 2018. On July 21, 2018, the Voigts submitted public comments, arguing that the draft permit was not CAA-compliant because Coyote Creek Mine and its emissions were excluded from the permit. The Voigts asserted that the mine and the power station should be considered a single source for purposes of the Title V permit, which would result in the imposition of specific emission limits on the mine that otherwise would not be required. The Voigts’ argument was premised on the assertion that Coyote Creek Mine and Coyote Station are facilities under common control because Coyote Station exerts complete control over the Coyote Creek Mine through the terms of their Lignite Sales Agreement and has complete physical control over the conveyor belt that runs between the two facilities. After receiving the Voigts’ comments, on October 2, 2018, the NDDOH sent the proposed permit to the EPA for review pursuant to 42 U.S.C. § 7661d(a) and 40 C.F.R. § 70.8(a), specifically seeking the EPA's position on whether Coyote Creek Mine and Coyote Station are a single source for Title V permitting purposes. On November 14, 2018, the EPA responded, recommending to the NDDOH that it more fully develop the record regarding the issue of common control.

On January 15, 2019, the Voigts filed a petition with the Administrator, pursuant to 42 U.S.C. § 7661d(b)(2) and 40 C.F.R. § 70.8(d), asking him to object to the issuance of the proposed permit, again arguing that, under the common control element, the mine and power plant should be considered a single source. On March 11, 2019, the NDDOH withdrew that proposed permit for the stated purpose of "complet[ing]...