United States Court of Appeals
` For the Eighth Circuit
`___________________________
`
`No. 18-2705
`___________________________
`
`Casey Voigt; Julie Voigt
`
`lllllllllllllllllllllPlaintiffs - Appellants
`
`v.
`
`Coyote Creek Mining Company, LLC, a North Dakota Corporation
`
`lllllllllllllllllllllDefendant - Appellee
`
`------------------------------
`
`State of North Dakota; Lignite Energy Council
`
`lllllllllllllllllllllAmici on Behalf of Appellee(s)
` ____________
`
`Appeal from United States District Court
`for the District of North Dakota - Bismarck
` ____________
`
` Submitted: October 17, 2019
`Filed: November 20, 2020
`____________
`
`
`Before LOKEN, SHEPHERD, and STRAS, Circuit Judges.
`____________
`
`
`SHEPHERD, Circuit Judge.
`
`Casey and Julie Voigt, the owners of a large ranch in rural North Dakota, filed
`suit against Coyote Creek Mining Company, LLC (CCMC), alleging CCMC failed to
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`obtain the proper construction permit under the Clean Air Act (CAA), 42 U.S.C. §
`7401, et seq., and failed to implement the requisite dust control plan for the Coyote
`Creek Mine, which is adjacent to the Voigts’ ranch. CCMC moved for summary
`judgment on the Voigts’ claims and the Voigts moved for partial summary judgment
`on issues of liability. The district court1 granted summary judgment in favor of
`CCMC, concluding the federal regulations imposing permitting and dust control
`requirements do not apply to CCMC’s operations. The Voigts appeal, arguing the
`district court erroneously determined the regulations are ambiguous and improperly
`relied on the North Dakota Department of Health (NDDOH) permitting decision to
`reach its conclusion. Having jurisdiction under 28 U.S.C. § 1291, we affirm.
`
`I.
`
`Pursuant to the CAA, the Environmental Protection Agency (EPA) established
`National Ambient Air Quality Standards (NAAQS), which are designed to improve
`air quality by placing limits on six specific air pollutants, including, as relevant here,
`particulate matter. 42 U.S.C. §§ 7408-09; see also Util. Air Regulatory Grp. v. EPA,
`573 U.S. 302, 308 (2014). Particulate matter is the air pollutant most commonly
`associated with mining operations. Areas of the country where the air quality meets
`the NAAQS are called attainment areas, while areas that do not meet these standards
`are known as non-attainment areas. 42 U.S.C. § 7407(d). North Dakota is an
`attainment area. As part of its plan to achieve and maintain the NAAQS, the EPA
`created New Source Performance Standards (NSPS), which impose emission
`standards on new major sources of air pollution, including newly constructed
`facilities, and on modifications to existing facilities that would increase emissions.
`See Sierra Club v. Otter Tail Power Co., 615 F.3d 1008, 1011 (8th Cir. 2010).
`However, because the NSPS are aimed at helping achieve and maintain the NAAQS,
`
`1The Honorable Charles S. Miller, Jr., United States Magistrate Judge for the
`District of North Dakota, now retired, to whom the case was referred for final
`disposition by consent of the parties pursuant to 28 U.S.C. § 636(c).
`-2-
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`they do not prevent air quality degradation in attainment areas, like North Dakota,
`where the air quality is already below NAAQS-imposed limits. See Alaska Dep’t of
`Envtl. Conservation v. EPA, 540 U.S. 461, 470-71 (2004). Recognizing that this gap
`existed, Congress amended the CAA to include prevention of significant deterioration
`of air quality (PSD) provisions, which apply to attainment areas and impose
`permitting requirements on the construction of “major emitting facilities.” 42 U.S.C.
`§§ 7475, 7479(1). A major emitting facility may not be constructed until a major
`source permit is obtained, which requires compliance with various regulations,
`including the planned use of best available control technology for each pollutant
`emitted by the facility. 42 U.S.C. § 7475(a)(4); see also Chevron, U.S.A., Inc. v.
`Natural Res. Def. Council, Inc., 467 U.S. 837, 846 (1984).
`
`There are two ways for a source to be considered a major emitting facility. See
`42 U.S.C. § 7479(1). First, a source constitutes a major emitting facility if it is a
`stationary source that is included on the list of specified industrial facilities that have
`a potential to emit (PTE) 100 tons per year (tpy) of any air pollutant. Id. Second, any
`other stationary source that has a PTE of at least 250 tpy of any air pollutant
`constitutes a major emitting facility. Id. Surface coal mines are not included on the
`list of specified industrial facilities subject to the 100 tpy threshold. See id.
`Therefore, the only way for a surface coal mine to be considered a major emitting
`facility, and thus to fall within the PSD provisions and require a construction permit,
`is if it has a PTE of at least 250 tpy of any air pollutant.
`
`As a general matter, when calculating whether a source’s PTE air pollutants
`satisfies the threshold so as to constitute a major emitting facility, the source’s fugitive
`emissions are excluded. Fugitive emissions are “those emissions which could not
`reasonably pass through a stack, chimney, vent, or other functionally equivalent
`opening.” 40 C.F.R. § 51.166(b)(20). For mining operations, fugitive emissions
`generally take the form of coal dust. Although fugitive emissions are generally
`excluded, the EPA has promulgated a list of categories of sources for which fugitive
`emissions must be counted. See id. §§ 51.166(b)(1)(iii), 52.21(b)(1)(iii). Surface coal
`
`-3-
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`mines are not included on that list. Therefore, although most surface coal mines have
`the PTE more than 250 tpy of dust, see Natural Resources Def. Council, Inc. v. EPA,
`937 F.2d 641, 643 (D.C. Cir. 1991), those emissions consist almost entirely of fugitive
`emissions and, thus, the surface coal mines do not, by themselves, constitute major
`emitting facilities. The EPA has provided, however, that fugitive emissions must be
`counted when calculating the PTE air pollutants for a coal processing plant. See 40
`C.F.R. §§ 51.166(b)(1)(iii)(aa), 52.21(b)(1)(iii)(aa). Therefore, a coal processing
`plant that has a PTE more than 250 tpy of any air pollutant, the calculation of which
`includes fugitive emissions, is considered a major emitting facility. Moreover, where
`the coal processing plant meets this threshold and is a part of a mining operation that
`also consists of a surface coal mine, the entire mining operation is considered a major
`emitting facility. Accordingly, the PSD provisions and construction permit
`requirement would apply to the entire mining operation, including the surface coal
`mine.
`
`Further, in addition to the PSD provisions’ permitting requirements, generally
`applicable NSPS have been established for coal processing plants that process more
`than 200 tons of coal per day. These regulations are contained in Subpart
`Y–Standards of Performance for Coal Preparation and Processing Plants, 40 C.F.R.
`pt. 60. Among the Subpart Y requirements, an open storage coal pile in a coal
`processing plant must have a fugitive dust control plan. 40 C.F.R. § 60.254(c). The
`parties agree that CCMC’s coal processing plant is subject to Subpart Y; however,
`they dispute which portions of CCMC’s operations constitute a part of the coal
`processing plant. This is of critical importance because what portions of the operation
`are part of the coal processing plant dictates which portions are subject to Subpart Y
`NSPS and are included in calculating the major source PTE air pollutants threshold.
`In short, those parts of the mining operation that are considered within the coal
`processing plant are subject to permitting and dust control requirements simply
`because the regulations distinguish between coal processing plants and surface coal
`mines.
`
`-4-
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`This framework and these regulations are carried out through a cooperative
`relationship between the EPA and individual states. The CAA delegates to states the
`primary responsibility for carrying out its purposes, which states accomplish by
`enacting a State Implementation Plan (SIP), which details how a state plans to comply
`with the provisions of the CAA. See 42 U.S.C. § 7410. A state’s SIP is subject to
`EPA approval. North Dakota has an EPA-approved SIP, which includes
`administration of PSD provisions. The practical effect of this set-up is that North
`Dakota, through the NDDOH, is the permitting authority for new facilities that require
`a major source construction permit under the CAA. In addition to the CAA
`requirements, North Dakota has adopted regulations that impose their own
`requirements on new facilities that do not qualify as major sources under the CAA,
`including mandating that these facilities obtain a minor source permit prior to
`construction. See N.D. Admin. Code § 33.1-15-14-03. Both the major and minor
`source permitting decisions are handled by the NDDOH.
`
`CCMC mines lignite at the Coyote Creek Mine. Lignite is a low-grade coal,
`which is typically consumed near the mine based on the economics of lignite
`transportation. Coyote Creek Mine consists of two major components: the mine face
`itself and the coal processing facility. The mine face is connected to the coal
`processing facility by a private hauling road, which covers the several mile distance
`between the two locations. After coal is mined, trucks transport it across the haul road
`to the coal processing facility, where it is unloaded onto an open storage coal pile at
`the coal processing facility. The coal pile covers an area of roughly 8 acres and can
`store approximately 180,000 tons of raw, unprocessed coal and abuts a retaining wall
`that separates the coal pile from the crushing equipment within the coal processing
`facility. Near the top of the retaining wall is an apron feeder, which is where the coal
`is fed into the crushing equipment. The apron feeder is located a significant distance
`off the ground, but is rarely visible because it is typically covered by the top of the
`coal pile. Coal is usually drawn into the apron feeder with the assistance of gravity,
`but in the circumstances where the apron feeder is visible because the coal pile is not
`high enough to cover it, CCMC uses bulldozers to push the coal directly into the
`
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`feeder. Once the coal is loaded from the coal pile through the apron feeder, it is fed
`through the primary and secondary crushing equipment, which are housed within an
`enclosed area within the coal processing facility. Once the coal is processed, it is
`again transported by conveyor system to the Coyote Station, a coal-fired electric
`generating plant and CCMC’s lone customer for the Coyote Creek Mine.
`
`Although the coal pile has a capacity of approximately 180,000 tons of coal,
`CCMC has generally maintained the coal pile at between 130,000 to 145,000 tons of
`coal, and the pile has never dropped below 101,000 tons. CCMC recognizes that it
`is unlikely to use the reserve raw coal in the pile, unless a long-term emergency
`affected CCMC’s ability to mine or deliver coal. In the case of such an emergency,
`the coal amassed in the coal pile would allow CCMC to meet its contractual delivery
`obligations for a period of three weeks.
`
`In 2014, prior to construction of the Coyote Creek Mine, CCMC applied for a
`minor source permit with the NDDOH. The permit application described the entire
`mining operation, from the coal extraction at the mine face to the processing of the
`coal at the plant for transfer to Coyote Station. The permit application identified the
`beginning of the coal processing plant as the apron feeder, where raw coal entered into
`the processing equipment from the coal pile, making a distinction between the
`beginning of the crushing and conveying equipment and the coal pile. The application
`specifically stated that the coal pile is not a part of the coal processing plant because
`its physical location is before the processing unit and thus the coal pile is not subject
`to the Subpart Y regulations. Before issuing a permit, the NDDOH reviewed
`CCMC’s application and prepared an Air Quality Effects Analysis (AQEA). The
`AQEA reflected that the coal pile is not a part of the coal processing plant and thus
`is not subject to the Subpart Y. Because the coal pile is not part of the coal processing
`plant, the coal pile’s fugitive emissions are not counted in the calculation of the coal
`processing plant’s PTE particulate matter for purposes of determining whether it
`requires a major source permit, instead of a minor source permit. Based on the
`emissions from the processing equipment and system alone, the NDDOH determined
`
`-6-
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`that the Coyote Creek Mine is a minor source and issued the permit. The NDDOH
`issued the permit without providing the public the opportunity for notice and
`comment.
`
`Construction of the mining operation began in 2015, and the mine was
`operational in 2016. During construction, the Voigts filed suit against CCMC,
`alleging violations of the CAA and seeking declaratory and injunctive relief and civil
`penalties. The Voigts alleged that construction of the Coyote Creek Mine required a
`major source permit, rather than the minor source permit CCMC obtained, and that
`CCMC’s coal processing plant violated the CAA because it did not include the
`requisite dust control plans for coal processing facilities. If the coal pile is part of the
`coal processing plant, as alleged by the Voigts, Subpart Y would apply to the coal pile
`and mandate a fugitive dust control plan. Further, a determination that the coal pile
`is subject to Subpart Y as part of the coal processing plant would also bring the coal
`pile’s fugitive emissions within the PTE air pollutants threshold calculation. Thus,
`whether the coal pile is subject to Subpart Y is determinative of both claims.
`
`Both parties moved for summary judgment on the question of whether Subpart
`Y applies to CCMC’s coal pile. The district court granted CCMC’s motion and
`denied the Voigts’ motion. In a 96-page opinion and order, the district court noted
`that both the Voigts and CCMC provided plausible interpretations of Subpart Y that
`would render the coal pile a part of or separate from the coal processing plant.
`Because the district court concluded that both parties provided plausible
`interpretations, it found Subpart Y ambiguous and relied on other sources to resolve
`the ambiguity, including EPA guidance and the NDDOH’s permitting decision
`regarding the construction of the Coyote Creek Mine. Giving deference to the
`NDDOH’s permitting decision, the district court concluded that the coal pile is not
`part of the coal processing plant and thus is not subject to Subpart Y. As a result,
`CCMC is not required to implement a fugitive dust control plan for the coal pile and
`the coal pile’s fugitive emissions are excluded from the PTE air pollutants
`
`-7-
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`determination, which necessitated only a minor source permit for the Coyote Creek
`Mine. The Voigts appeal.
`
`II.
`
`The Voigts assert that the district court erred in granting summary judgment to
`CCMC and in denying their motion for summary judgment because Subpart Y clearly
`and unambiguously includes the coal pile as part of CCMC’s coal processing plant,
`and thus CCMC is required to obtain a major source permit and implement a fugitive
`dust control plan. Further, the Voigts argue that even if Subpart Y were ambiguous
`regarding whether the coal pile is part of the coal processing plant, the district court
`erred in relying on the NDDOH permitting decision to resolve the ambiguity in
`CCMC’s favor because the NDDOH is a state agency offering an opinion on federal
`law that is not entitled to any deference. “We review a district court’s decision on
`cross-motions for summary judgment de novo.” Thirty and 141, L.P. v. Lowe’s Home
`Ctrs., Inc., 565 F.3d 443, 445-46 (8th Cir. 2009). “Summary judgment is appropriate
`if viewing the record in the light most favorable to the nonmoving party, there are no
`genuine issues of material fact and the moving party is entitled to judgment as a matter
`of law.” Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005).
`
`A.
`
`The Voigts first assert that the district court erroneously concluded that the
`regulations are ambiguous, arguing that the clear and unambiguous language pulls the
`coal pile squarely within the coal processing plant and thus Subpart Y. CCMC
`asserts, in response, that the regulations, coupled with unambiguous EPA guidance,
`conclusively demonstrate that the coal pile is not part of the coal processing plant. We
`reject both arguments and agree with the district court that Subpart Y is ambiguous
`regarding whether the coal pile falls within the coal processing plant.
`
`-8-
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`Subpart Y applies to coal processing plants, defined as “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). But Subpart Y imposes performance standards on only
`“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). Affected
`facilities for the purposes of Subpart Y performance standards is defined to include
`“[t]hermal 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.”2 Id. § 60.250(d) (emphasis added).
`Thus, an open storage pile, defined as “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,” id. § 60.251(m), is subject to
`Subpart Y as an affected facility where it is in the coal processing plant. However, the
`regulations do not define what it means for an affected facility to be “in” a coal
`processing plant.
`
`The Voigts assert that the definitions of coal processing plant and open storage
`pile clearly demonstrate that Subpart Y broadly applies to open storage piles,
`regardless of their location before or after the coal crushing equipment. CCMC argues
`the EPA guidance unambiguously dictates that the regulations apply only to open
`storage piles where the piles occur past the first hopper, which is the component into
`which coal is loaded in bulk and is tapered downward in smaller segments toward the
`crushing equipment. We disagree with both parties’ contentions. The regulations
`
`2The parties do not dispute the application of Subpart Y to the coal processing
`and conveying equipment, defined 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. Equipment located at the mine face is not
`considered to be part of the coal preparation and processing plant.” 40 C.F.R.
`§ 60.251(f).
`
`-9-
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`simply do not provide an unambiguous answer to the inquiry here: whether a coal pile
`that is adjacent to the coal processing equipment, and is used for both storage and
`loading coal into the coal processing equipment, is “in” the coal processing plant
`itself. Indeed, as the district court noted, both parties provide plausible conflicting
`interpretations of the regulations, underscoring the ambiguity that exists. While the
`regulations clearly contemplate the inclusion of coal piles that are within coal
`processing plants, they do not provide unambiguous direction as to when exactly a
`coal pile is “in” a coal processing plant so as to be considered an affected facility
`subject to Subpart Y requirements.
`
`Because we conclude the regulations are ambiguous, we turn to subsequent
`interpretative guidance to aid us in determining whether the coal pile is part of the coal
`processing plant. See Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557
`U.S. 261, 278 (2009); see also Kisor v. Wilkie, 139 S. Ct. 2400 (2019). Kisor
`instructs that deference to EPA guidance is appropriate where “(1) the regulation [is]
`genuinely ambiguous; (2) the agency’s interpretation of the regulation [is] reasonable;
`(3) the interpretation [is] the agency’s authoritative or official position; (4) the
`interpretation . . . in some way implicate[s] the agency’s substantive expertise; and (5)
`the interpretation . . . reflect[s] fair and considered judgment.” Wells Fargo & Co. v.
`United States, 957 F.3d 840, 855 (8th Cir. 2020) (Grasz, J., dissenting in part) (citing
`Kisor, 139 S. Ct. at 2415-18).
`
`With respect to the dispositive issues in this case, the EPA has offered some
`clarification on when a coal pile is considered to be “in” a coal processing plant:
`
`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.
`
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`New Source Performance Standards (NSPS)—Applicability of Standards of
`Performance for Coal Preparation Plants to Coal Unloading Operations, 63 Fed. Reg.
`53288-01, 53289 (Oct. 5, 1998). And the EPA has reiterated this point, again stating
`that “coal must be directly unloaded into receiving equipment” for Subpart Y
`applicability. Id. The EPA further stated in its responses to comments on proposed
`amendments to Subpart Y that it “interprets coal unloading into the first hopper
`‘downstream’ from any form of transportation to be the beginning of the ‘coal
`preparation plant.’” Response to Comments Received on Proposed 2009
`Amendments, Standards of Performance for Coal Preparation and Processing Plants
`(Subpart Y), R. Doc. 38-5, at 89; see also Standards of Performance for Coal
`Preparation and Processing Plants, 74 Fed. Reg. 51950-01, 51958 (Oct. 8, 2009) (“A
`coal preparation and processing plant begins at the first hopper (i.e. drop point) used
`to unload coal . . . .”).
`
`Although this EPA guidance expands upon the gap in the regulations defining
`where precisely a coal processing plant begins for the purposes of whether an affected
`facility is “in” a coal processing plant, we agree with the district court that it too does
`not provide a conclusive answer, particularly where, as here, the coal pile is used for
`storage, unloading, and feeding purposes. The record reflects that CCMC’s coal pile
`plays a necessary role in the process by which coal is directly unloaded into receiving
`equipment, or the apron feeder; however, the record also reflects that the coal pile is
`maintained at its size for storage purposes to allow CCMC to fulfill contractual
`obligations in the event of a delay or shutdown at the mine face. The coal pile is, in
`essence, a hybrid between a storage and unloading pile. There is thus no clear cut
`answer as to whether the coal pile is for storage—and unaffected by Subpart Y—or
`part of direct unloading into receiving equipment—and subject to Subpart Y. Having
`reviewed the relevant regulations and EPA guidance, we conclude that they do not
`provide a clear answer as to whether CCMC’s coal pile is “in” the coal processing
`plant so as to qualify as an affected facility subject to Subpart Y.
`
`-11-
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`Given the foregoing, the district court did not err in concluding that the
`regulations are ambiguous or in ultimately concluding that the regulations, combined
`with the guidance, do not resolve the relevant inquiry. We agree with the district court
`that the best interpretative aid to determine whether Subpart Y applies to the coal pile
`is the NDDOH permitting decision, which concluded that the coal pile is not part of
`the coal processing plant and thus is not subject to Subpart Y. And, as discussed
`below, that decision is entitled to deference.
`
`B.
`
`The Voigts next argue that the NDDOH permitting decision is not entitled to
`any deference because it represents no more than a state agency’s interpretation of
`federal law. The Voigts specifically argue that the EPA has expressly reserved the
`authority to interpret its own NSPS regulations and the EPA does not and cannot
`delegate authority to states to make decisions affecting the uniform applicability and
`consistency of NSPS. The Voigts also assert that the issuance of a permit without a
`public notice and comment period further demonstrates why deference is unwarranted.
`
`First, the Voigts’ contention regarding the EPA’s authority ignores the system
`of cooperative federalism that exists to help achieve the aims of the CAA. “Under the
`CAA’s cooperative-federalism scheme, the EPA directs states to submit state
`implementation plans to assure reasonable progress toward the CAA’s national
`visibility goals.” Nat’l Parks Conservation Ass’n v. EPA, 759 F.3d 969, 971 (8th Cir.
`2014) (internal quotation marks omitted).
`
`The Clean Air Act requires states to develop state statutory and
`regulatory programs that implement the air quality planning objectives
`of the Clean Air Act. These state programs are incorporated into a State
`Implementation Plan (“SIP”), which the EPA reviews and approves.
`Once the EPA approves a SIP, the state acquires “SIP-approved” status
`for the EPA-approved air quality programs. Thereafter, the state has
`
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`primary responsibility for implementing federal air quality planning
`goals.
`
`United States v. Minnkota Power Co-op Inc., 831 F. Supp. 2d 1109, 1113 (D.N.D.
`2011). And the EPA has expressly delegated authority to the State of North Dakota
`to implement NSPS rules. See Automatic Delegation of Authority to the States of
`Colorado, Montana, North Dakota, South Dakota, Utah, and Wyoming to Implement
`and Enforce New Source Performance Standards (Automatic Delegation), 79 Fed.
`Reg. 60993-01, 60994 (Oct. 9, 2014) (“The CAA section 111(c) authorizes the EPA
`to delegate authority to any state agency which submits adequate regulatory
`procedures for implementation and enforcement of the NSPS program.”).
`
`The EPA-delegated primary responsibility for carrying out the CAA air quality
`goals takes the form of issuance of preconstruction permits: “states issue the
`preconstruction permits in accordance with their SIPs and federal minimum
`standards.” Nucor Steel-Ark. v. Big River Steel, LLC, 825 F.3d 444, 447 (8th Cir.
`2016). Because implementation of the CAA hinges on a system of cooperative
`federalism and North Dakota has an EPA-approved SIP, North Dakota is the primary
`party enforcing the CAA for the State.
`
`Second, the district court’s exhaustive and well-reasoned opinion demonstrates
`that the NDDOH permitting decision does not run afoul of the relevant regulations
`and EPA guidance. The district court explicitly noted that the NDDOH decision was
`entitled to deference because (1) the determination that the coal pile is not part of the
`coal processing plant is consistent with EPA guidance describing the beginning of a
`coal processing plant as the “first hopper”; (2) the coal pile contains only unprocessed
`raw coal; (3) most of the coal pile consists of coal stored long-term in the event of a
`delay or shutdown at the mine face; and (4) the exclusion of the coal pile from the coal
`processing plant does not eviscerate the regulations as they would still apply to coal
`piles in a coal processing plant, particularly those that contained processed coal. As
`the primary body responsible for issuing permits based upon the CAA standards,
`North Dakota is in the best position to decide whether a given facility falls within or
`
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`satisfies the CAA standards, and that decision is entitled to deference. We agree with
`the district court that the above factors demonstrate that the NDDOH’s conclusion that
`the coal pile is not part of the coal processing plant is not an arbitrary or unreasonable
`position inconsistent with the EPA and CAA’s aims. We decline to second-guess the
`NDDOH’s exercise of its authority. See Minnkota, 831 F. Supp. 2d at 1121 (“North
`Dakota’s conclusions regarding such highly technical matters are entitled to deference
`unless the EPA proves them to be unreasonable, arbitrary, or capricious.”).
`
`Regarding the Voigts’ assertion that giving deference to the NDDOH permitting
`decision undercuts the EPA’s non-delegable authority to make legal determinations
`in order to preserve the uniformity and consistency of NSPS on a national level, the
`Voigts again ignore the cooperative framework where states are tasked with carrying
`out the CAA’s aims, which include making determinations regarding NSPS
`applicability. Although factual determinations are often necessarily intertwined with
`legal issues, there is no suggestion that the NDDOH exceeded its authority, delegated
`by the EPA, in carrying out its SIP to make an NSPS applicability determination and
`in issuing the preconstruction minor source permit to CCMC. See Automatic
`Delegation, 79 Fed. Reg. at 60994 (stating that delegated authority under SIP includes
`“implementation and enforcement of NSPS program”). The process for NSPS
`enforcement would be significantly impaired if the state authority did not have the
`ability to make determinations based on application of given facts to the SIP and EPA
`framework. Further, state permitting decisions are not immune from review;
`“unreasonable, arbitrary, or capricious” exercises of the NDDOH’s authority that
`could result in national inconsistency may be challenged. See Minnkota, 831 F. Supp.
`2d at 1121. The existence of this avenue to challenge aberrant decisions guards
`against the risk of national inconsistency. We are thus unpersuaded by the Voigts’
`contention that affording the NDDOH permitting decision deference will result in
`national inconsistency.
`
`We finally note that our conclusions are not affected by the Voigts’ purported
`exclusion from the permitting process due to a lack of a public notice and comment
`
`-14-
`
`Appellate Case: 18-2705 Page: 14 Date Filed: 11/20/2020 Entry ID: 4977686
`
`

`

`period. As the district court noted, the lack of a public notice and comment period
`resulted in this case coming to us “in a much different posture” than it would have
`“had defendant requested the NDDOH follow a more formal process in the handling
`of its application for the construction permit[.]” R. Doc. 127, at 7. The district court
`acknowledged that this process would have allowed the Voigts “the opportunity to
`make the arguments they are now making to the NDDOH; the NDDOH could have
`addressed them; and then, if either plaintiffs or defendant were disappointed in its
`decisions, there would have been the right of an appeal . . . that . . . could have been
`resolved based upon a formal administrative record.” R. Doc. 127, at 7-8. Although
`that may have been the preferred course, the absence of public notice and comment
`does not require us to unwind the NDDOH permitting decision on that basis alone,
`particularly where the Voigts have had judicial recourse to raise the arguments they
`would have raised during a notice and comment period.
`
`On the record before us and given the overarching framework of the CAA,
`including the cooperative relationship between the EPA and the states, we conclude
`the district court appropriately gave deference to the NDDOH permitting decision to
`resolve the regulations’ ambiguity in favor of CCMC. The district court thus did not
`err in granting summary judgment to CCMC on the basis that the coal pile is not
`subject to Subpart Y regulations, which would have required a major source permit
`and a fugitive dust control plan.
`
`III.
`
`For the foregoing reasons, we