Utah Physicians for a Healthy Environment v. Kennecott Utah Copper, LLC
Utah Physicians for a Healthy Environment v. Kennecott Utah Copper, LLC
Opinion of the Court
MEMORANDUM DECISION AND ORDER
Plaintiffs Utah Physicians for a Healthy Environment, WildEarth Guardians, Utah Moms for Clean Air, and Sierra Club (Citizen Groups) filed this citizen suit alleging that Defendant Kennecott Utah Copper, LLC has violated the Clean Air Act (CAA).
BACKGROUND
At its core, this case is about the legal interpretation of a federal regulation enacted pursuant to the CAA to limit the production of certain pollutants into the air in Salt Lake County. The CAA regulates air quality in the United States through a federal-state partnership.
EPA sets the NAAQS at levels necessary to protect public health and welfare.
States are required to adopt State Implementation Plans (SIPs) detailing methods each state will use to attain and maintain the NAAQS in each air quality control region.
Once EPA approves a SIP, it becomes federal law enforceable in appropriate circumstances by the promulgating state, EPA, and interested individuals.
Citizens also have several routes under the CAA to challenge a SIP or call for its implementation. Through Section 307 of the CAA citizens can challenge both EPA’s decision to approve a SIP, as well as the content of the SIP itself.
The dispute in this case involves the interpretation of the PM10 SIP for the Salt Lake County air quality control region, which EPA approved in 1994.
Since 1994, Kennecott has twice sought and received Approval Orders from the State of Utah in accordance with Section 3.1 of the UACR. These Approval Orders authorized increases in the limitation on the total amount of material Kennecott may move at the Mine.
.SUMMARY JUDGMENT STANDARD,
-Summary judgment -is- appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
ANALYSIS
In their cross motions for summary judgment, the Parties disagree about the meaning of the material moved provision of the 1994 PM10 SIP for Salt Lake County. The provision reads:
Total material moved (ore and waste) shall not exceed 150,600,000 tons per 12-month period without prior approval in accordance with Section 3.1, UACR.33
Citizen Groups allege that Kennecott has failed to comply with the 1994 PM10 SIP and its limit on material moved.
In response, Kennecott argues that the court lacks jurisdiction over Citizen Groups’ challenge and that it has met the requirements of the SI-P’s material moved provision by obtaining Approval Orders before moving- material in excess of the 150.5 million ton per year limit. Citizen Groups contend-that the Approval Orders on their own could not authorize a deviation from the specified material moved limit in the SIP. In Citizen Groups’ reading, obtaining State approval in accordance with Section 3.1 of the UACR is a necessary but not sufficient condition for exceeding the 150.5 million ton per year limit.
This case is divided into two phases. Phase 1 is “focused exclusively on liability.” And Phase 2, if necessary, will be “focused on remedies, including injunctive relief and/or penalties.”
Below, the court first addresses the threshold jurisdiction issue, concluding that the court has jurisdiction over the Citizen Groups’ challenge. Next, the court addresses the merits of the pending motions. The court concludes that the plain language of the SIP authorizes an increase in material moved once the State issues a valid Approval Order pursuant to Section 3.1 of the UACR, and that neither EPA approval nor a modification to the SIP itself is necessary for Kennecott to move material above the default limit. Kennecott is thus in compliance with the SIP as written, and is not hable under the CAA.
I, Jurisdiction
Kennecott argues that Citizen Groups lack standing to bring this suit because they are actually challenging the legality of the SIP’s material moved provision.
Citizen Groups have sued Kennecott “to enforce the 1994 [PMi0] SIP as it .applies to the company’s mining operations.”
II. Material Moved Provision of Utah’s PM10 SIP for Salt Lake County
Having concluded the court has jurisdiction to decide if Kennecott has violated the SIP as written, the court now interprets the contested language of the SIP. In interpreting a regulation, courts apply “general rules of statutory construction, beginning with the plain language of the regulations.”
Below, the court looks to the plain meaning of the material moved provision and considers whether the provision is ambiguous. Concluding that the unambiguous plain language of the regulation supports Kennecott’s position, the court then turns to the Citizen Groups’ two arguments against this interpretation. First, the court considers whether the plain-language interpretation of the material moved provision is contrary to any clearly expressed regulatory intent; and second, the court considers whether the plain-language interpretation would lead to absurd results
. A. The Plain Meaning Allows for , Unilateral State Approval
The material moved provision states:
Total material moved (ore and waste) shall not exceed 150,500,000 tons per 12-month period without prior approval in accordance with Section 3.1, UACR.
A straightforward reading of this provision prohibits Kennecott from moving material in excess of the default limit, unless it first receives approval in accordance with Section 3.1 of the UACR. Kennecott can comply with the material moved provision in two ways: adhering to the default limit, or obtaining approval prior to exceeding it. Kennecott moved material in excess of the 150.5 million ton per year default limit over every 12-month rolling period- since January 1, 2007.
Citizen Groups nevertheless argue that the plain meaning of the provision also requires EPA approval before Kenne-cott may exceed the 150.5 million ton per year limit. They stress, “the plain meaning of a regulation is ‘guided not by a single sentence or member of a sentence, but by looking to the provisions of the whole law, and to its object and policy.’ ”
The Citizen Groups’ plain-language argument is also contrary to the language of the SIP as interpreted through well-established cannons of statutory construction. First, the Citizen Groups fail to address how requiring EPA approval allows for consistent interpretation of identical language used elsewhere in the same section of the SIP. The “normal rule of statutory construction” provides that “identical
The following - operating parameters shall not be exceeded without prior approval in accordance-with Section 3.1, UACR:
A. Maximum daily total mileage for haul trucks (30,000 miles)
B. Minimum design payload per haul ' truck (150 tons)
C. Maximum number of wheels per haul truck (6 wheels)
D. Any new haul trucks purchased will be rated at the indicated minimum net payload weight (190 tons)53
Citizen Groups have provided no reason why the court should interpret these two uses of the same language in the same section of the SIP differently. Given the CAA’s cooperative-federalism approach— where the EPA sets the' NAAQS and the states are responsible for determining the methods they will use to attain and maintain pollution below these limits—it seems very unlikely that EPA approval or formal amendment of the SIP'would be required before Kennecott' could, for example, change the number of wheels on its haul trucks. Nor do Citizen Groups suggest this result. If the State could unilaterally approve operational changes under this provision of the SIP, then the same language used just pages later in the material moved provision cannot be interpreted to yield a different result.
Further, generally when the drafter of a statute “includes particular language in one section of a statute but omits it in another ... [the court] presumes that [the drafter] intended a difference in meaning.”
In contrast, the material moved provision does not suggest any condition beyond the one it identifies. Nothing in the language of the material moved provision references, or invites reference, to any other set of conditions, other than satisfying the Section 3.1 UACR approval requirements. This suggests that those drafting the SIP knew how to indicate that EPA approval was required when that was what the parties intended. As Kennecott argues, “[w]here EPA approval is required for adjustments made by the state under express authority in the SIP, the SIP says so,” and it does not do so here.
B. The Material Moved Provision is Unambiguous
Having concluded that the plain meaning of the material moved, provision permits unilateral State approval, the court now considers whether the regulation is ambiguous as written. This determination is significant because if the court concludes that the regulation is ambiguous, the court may look to additional sources, outside of the regulation itself, to discern meaning. But resorting to external sources, such as the Preamble to the SIP and EPA’s interpretation of the regulation, is inappropriate if the statute is unambiguous.
A statute is ambiguous if the language of the statute “can be reasonably understood in two or more different senses.”
.Here, the language of the material moved provision is not ambiguous. This language cannot “reasonably be understood in two or more different senses.” It states simply “[t]otal material moved (ore and waste) shall not exceed 150,500,000 tons per 12-month period without prior approval in accordance with Section 3.1, UACR”
Citizen Groups argue that “[a]s evidenced by competing interpretations of production limit [sic] and by EPA’s careful consideration of the otherwise indefinite language that appears to conflict with federal and state law, the Utah SIP limit provision is ambiguous.”
C. Plaintiffs Have Failed to Show Contrary Administrative Intent or Absurd Results
Citizen Groups argue that the court should not give the unambiguous material moved provision its plain meaning, but should instead read it to require Kennecott to. obtain EPA approval in addition to State approval before exceeding the 150,5 million ton per year limit. While there are certain specified narrow circumstances where a court will not give effect to the plain language of a regulation, Citizen
1. Administrative Intent
While the Ninth Circuit has stated that the plain language of a regulation “will not control if ‘clearly expressed [administrative] intent is to the contrary,”
Citizen Groups argue that “[i]n both published notice that accompanied the 1994 [PM10] SIP and in notices accompanying Utah’s subsequent proposed SIP revisions, EPA has expressed ‘regulatory intent.’ ”
' While - the Preamble may technically have “accompanied” the 1994 rulemaking process, it was published at the time EPA approved the SIP. The Preamble therefore could not have provide interested parties an. understanding of the language contained in the-SIP in time to allow them to participate fully in the prior notice and comment rulemaking.- To now consider these expressions of regulatory intent to overcome the plain language of the regulation would undermine the APA rulemaking process. It would also be unfair to interested parties, like Kennecott, who'must have a , fair chance to. comment on proposed regulations with an understanding of what those regulations propose. The court concludes that Citizen Groups have not shown that the clearly expressed regulatory in
2. Absurd Results
In a second attempt to avoid the unambiguous plain meaning of the material moved provision, Citizen Groups argue that it would be absurd to allow Utah to authorize the movement of material over the default limit via an Approval Or
Citizen Groups fail to make this showing. In advancing their absurdity argument, Citizen Groups walk a fine line. While they are not foreclosed from arguing that the result of the plain-language interpretation is absurd, they cannot argue that the SIP itself is illegal—lest they risk depriving the court of jurisdiction to consider their claim.
With this limitation in mind, the court understands the Citizen Groups to argue that the result of the application of the plain language of the material moved provision is absurd because it would have been unthinkable for EPA to approve a provision that grants the State such broad discretion, to alter the amo.unt of mining material Kennecott may move annually. The court concludes that granting the State discretion to modify the amount of material moved by Kennecott through an Approval Order issued in accordance with Section 3.1 of the UACR is neither unthinkable nor a shock to the general moral or common sense.
First, it is not unthinkable that EPA approved this, provision when the CAA creates a federal-state partnership where states play a vital role in attaining, the NAAQS and are provided considerable discretion in the methods they use to attain healthy air.
Finally, EPA’s approval of the SIP containing the material moved provision is not unthinkable when means exist to challenge or change the content of Approval Orders at the time they are issued. The Executive Secretary proposing an Approval Order must publish it in the affected local área and notify officials, regulators, and agencies with a stake in the decision, most prominently EPA itself.
III. Illegal Modification of the SIP
Having concluded that the unambiguous plain meaning of the regulation allows Kennecott to increase the amount of material moved through unilateral State approval—and having- found that the Plaintiffs failed to show that this plain-language interpretation is contrary to any clearly expressed regulatory intent or leads to absurd results—the court now considers the Citizen Groups’ final argument. Citizen Groups argue that reading the- material moved provision to allow an Approval Order to authorize the movement of material over the 150.5 million ton per year limit would illegally modify or revise the SIP. In support of this point, Citizen Groups devote -an extensive amount of its briefing to establishing the uncontroversial point that Utah may not “unilaterally” revise the SIP.
To the contrary, if the court now read an EPA approval requirement into the SIP contrary to the unambiguous plain meaning of the regulation, it would be revising the SIP and undermining the revision process set out in the CAA. This revision process, which includes notice and comment rulemaking, provides an opportunity for those parties affected by the rules to comment on any proposed changes. “This [process] assures fairness and mature consideration of rules having a substantial impact on those regulated.”
CONCLUSION
Citizen Groups manifestly believe that the Utah SIP does not fulfill the goals of the CAA. Achieving their desired changes, however, is not an end they can achieve through a citizen suit. EPA can continue to seek revisions to the SIP and can issue a SIP call if it determines that the SIP is substantially inadequate to attain compliance with the PM10 NAAQS. Also, Utah itself may continue to regulate emitters of harmful pollutants to promote the health and safety of its citizens. If Citizen Groups believe either federal or state actors should do more, or are failing to honor their responsibilities, then they may direct their arguments to those actors through the appropriate avenues. “The Clean Air Act does not authorize the imposition of sanctions for conduct that complies with a State Implementation Plan that EPA has approved;”
' The plain language of the 1994 PMi0 SIP allows a valid Approval Order to authorize Kennecott to lawfully exceed the 150.5 million ton per year material moved limit. Having relied on valid Approval Orders, Kennecott is not in violation of the SIP or the CAA. The court GRANTS Defendant’s Motion for Summary Judgment (Dkt. 38), and DENIES Plaintiffs’ Motion for Summary Judgment. (Dkt. 40.) The Clerk of Court is directed to close the ease.
SO ORDERED this 8th day of June, 2016.
. Dkt. 16 at 1.
. Dkt, 38; Dkt. 40,
. US Magnesium, LLC v. EPA, 690 F.3d 1157, 1159 (10th Cir. 2012) (calling the scheme a "cooperative-federalism approach”),
. See 42 U.S.C. § 7409(a); 40 C.F.R. §§ 50.4-50.19.
. 40 C.F.R. §§ 50.6, 50.7, 50.13.
. 42 U.S.C. § 7409(b).
. Id. § 7407(a) ("[E]ach state shall have primary responsibility for assuring air quality within” the state.)
. See id. § 7407(b).
. Id. § 7407(d).
. Id.
. See id. §§ 7407(a), 7410.
. Id. § 7410(a)(2)(A).
. Id. § 7410.
. Id. § 7410(k)(3) (”[T]he Administrator shall approve such submittal as a whole if it meets all the applicable requirements of this chapter.”); National Parks Conservation Ass'n, Inc. v. Tenn. Valley Auth., 175 F.Supp.2d 1071, 1074 (E.D.Tenn. 2001) ("EPA reviews the SIP to determine whether it meets specified criteria and, if it does, EPA must approve it.”).
. US Magnesium, 690 F.3d at 1159.
. Id. at 1160 (quoting CAA § 110(k)(5), 42 U.S.C. § 7410 (k)(5)).
. 42 U.S.C. §§ 7410 (a)(2)(H) & (k)(5).
. Id. § 7410 (k)(6).
. Id. § 42 U.S.C. § 7607(b).
. Id.
. Id. § 7604(a)(1)(A).
. Id. § 7604 (a)(2).
. See 40 C.F.R. § 52.2320-52.2355; see, e.g., Dkt. 16 at 20; 59 Fed. Reg. 35,036 (July 8, 1994).
. Dkt. 40 at 20.
. Dkt. 39-1 at 2.
. Dkt. 40 at 24; 40 C.F.R. § 52,2320(c)(25)(i)(a)-(c).
. Dkt. 39-6; Dkt. 39-11.
. Id.
. Dkt. 45 at 14-15.
. Dkt. 38 at 13; Dkt. 47 at 4.
. Fed. R. Civ. P. 56(a).
. N. Natural Gas Co. v. Nash Oil & Gas, Inc., 526 F.3d 626, 629 (10th Cir. 2008).
. Dkt. 39-1 at 2.
. Dkt. 16 at 20.
. E.g., Dkt. 40 at 14.
. Dkt. 32 at 2.
. Dkt. 38; Dkt. 40.
. Dkt. 38 at 18-20.
; 42 U.S.C. § 7604(a)(1).
. Id. § 7604(f)(4),
. Dkt. 47 at 8; See Dkt. 16 at 20.
. 42 U.S.C. § 7607(b)(l)-(2); United Steelworkers v. Oregon Steel Mills, Inc., 322 F.3d 1222, 1225-26 (10th Cir. 2003); see Dkt. 38 at 18.
. Time Warner Entm't Co,, L.P. v. Everest Midwest Licensee, L.L.C., 381 F.3d 1039, 1050 (10th Cir. 2004).
. Sebelius v. Cloer, — U.S. -, 133 S.Ct. 1886, 1896, 185 L.Ed.2d 1003 (2013) (citation omitted).
. Safe Air For Everyone v. EPA, 488 F.3d 1088, 1097 (9th Cir. 2007) (quoting Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987)).
. Dkt. 45 at 14-15.
. Dkt. 47 at 4.
. Dkt. 47 at 10 (quoting John Hancock Mut. Life Ins. Co. v. Harris Trust & Savings Bank, 510 U.S. 86, 94-95, 114 S.Ct. 517, 126 L.Ed.2d 524 (1993) (internal quotations and citations omitted)).
. Dkt. 47 at 11,
. Id., at 10-12.
. Infra § 11(c).
. Taniguchi v. Kan Pacific Saipan, Ltd., 566 U.S. 560, 132 S.Ct. 1997, 2004-05, 182 L.Ed.2d 903 (2012) (citation omitted).
. Dkt. 39-1 at 115 (emphasis added).
. Dalzell v. RP Steamboat Springs, LLC, 781 F.3d 1201, 1209 (10th Cir. 2015) (internal quotation marks omitted).
. Utah Admin. Code R307-203-l(f) (concerning sulfur content in fuels); Utah Admin. Code R307-325-l(3) (concerning ozone); see Dkt. 45 at 26 n. 12.
. Dkt. 45 at 26 n. 12. ■
. See, e.g., Christensen v. Harris County, 529 U.S. 576, 588, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (“Auer deference is warranted only when the language of the regulation is ambiguous.1'); El Comite Para El Bienestar de Earlimart v. Warmerdam, 539 F.3d 1062, 1072 (9th Cir. 2008) ("[T]he [EPA SIP] preamble language should not be considered unless the regulation itself is ambiguous.”).
. Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1143 (10th Cir. 2005).
. Id. (citation omitted).
. See Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 212, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998) (refusing to look to the title of the statute before the court had determined whether the statutory language itself was ambiguous),
. Dkt. 47 at 19.
. Safe Air For Everyone v. EPA, 488 F.3d 1088, 1097 (9th Cir. 2007) (quoting Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987)).
. Id. at 1097.
. Id. at 1097-98.
. Id. at 1098.
. Dkt. 47 at 13.
. The court notes that even if the Preamble of the SIP and EPA’s statements are considered, these materials fail to show clearly expressed administrative intent. Citizen Groups read the Preamble to impose additional conditions on changes to emissions limitations. Citizen Groups cite to the following language:
The approval of this PM plan for Salt Lake and Utah Counties establishes emission limitations and implementation milestones. The State must update its SIP for changes to these emission limitations, especially for stationary sources. EPA and the State agree that such updates (which are SIP Revisions) will occur each September, as appropriate. Should differences exist between emission limitations, EPA will enforce, as necessary, the most stringent limitation. 1059 Fed. Reg. 35,036, 35,044 (July 8, 1994).
Citizen Groups argue that mining in excess of the default limit, even with State approval, is a “change” to the emission limitations of the SIP. For this reason, EPA involvement is required. The Preamble, however, speaks only broadly to' "emission limitations” and is not clearly applicable to the material moved provision. There is nothing in the above language that clearly modifies the unambiguous plain meaning of the material-moved provision. The court finds no reason to allow this broader language, which is not part of the regulation, to control the specific regulatory provision dealing with material moved. See Elwell v. Oklahoma ex re. Bd. Of Regents of Univ. of Okla., 693 F.3d 1303, 1310 (10th Cir. 2012) ("However inclusive may be the general language of a statute ... it will not be held to apply to a matter specifically dealt with in another part of the same enactment.” (citation omitted)).
Citizen Groups next argue that EPA’s own statements make clear that the material moved provision requires Kennecott to receive approval from EPA, in addition to the State. But Citizen Groups have not demonstrated that EPA reads the SIP provision to contain any additional condition. Instead, while EPA’s public statements suggest some version of buyer’s remorse on the terms negotiated for the 1994 PM10 SIP, in these statements EPA itself appears to interpret the provision to delegate discretionary authority to the State.
Notably, in 2001, EPA granted extensions to the attainment dates for the Salt Lake County and Utah County PMjo nonattainment areas. While taking that action, EPA appeared to comment directly on the meaning of the SIP provision in this case. EPA stated:
We note that in some cases, the State adopted and implemented changes to the emissions limitations contained in the SIP. Although we don’t agree with them, we don’t believe it is appropriate to penalize the State for making such changes because the language of the currently-applicable SIP appears to allow the State such latitude (see UACR 307-1-3.2.4; Appendix A to PM10 SIP.) We have had ongoing discussions with the State regarding these "director’s discretion” provisions in the context of the State’s future development of redesignation requests and maintenance plans for the two counties, and have informed the State that we believe this apparent discretion to unilaterally change SIP terms is inconsistent with the SIP oversight role provided EPA under the Act, and would need to be removed if maintenance plan submissions for these areas are to be found’ ápprovable. 66 Fed. Reg. 32,752 (June 18, 2001).
In- this statement, while the EPA voices its concern that the SIP provision was "inconsistent with the SIP oversight role provided EPA under the [CAA],” it also recognizes that the plain language of the SIP "appears to allow the State ... latitude” to "adopt and implement changes to the emission levels contained in the SIP.” Id. While EPA says only that the language "appeared” to provide this authority, it nevertheless declines to approve any maintenance plans that include the language and declines to take action against the State for exercising this authority. In sum, these sources, even if the court were to look to them, fail to show clearly expressed administrative intent supporting Citizen Groups' argument.
. Dkt. 47 at 12, 12 n. 9; Dkt. 51 at 5.
. Robbins v. Chronister, 435 F.3d 1238, 1241 (10th Cir. 2006) (en banc).
. Id.
. Id. (citation omitted). The Tenth Circuit also notes, “[t]he absurdity doctrine should not be confused with a useful technique for resolving ambiguities in statutory language. When statutory language reasonably admits of alternative constructions, there is nothing remarkable about resolving the textual ambiguity against the alternative meaning that produces a result the framers are highly unlikely to have intended. We choose the reasonable result over the ‘absurd’ one.” Id. Because the court here concludes that the statute is not ambiguous, Citizen Groups cannot rely on the less exacting rule for resolving ambiguities to avoid absurd results.
. Id. (citation omitted).
. See supra § I.
. US Magnesium, LLC v. EPA, 690 F.3d 1157, 1159-60 (10th Cir. 2012).
. See Utah Admin. Code R307-1-3.1; Dkt. 38-2.
. Dkt. 39-6 at 4.
. Id.
. . Id.
. Dkt. 39-11 at 4.
. Dkt. 38 at 8; Dkt. 39-6 at 3-4.
. Dkt. 38 at 8-9; see, e.g., Utah Chapter of the Siena Club v. Air Quality Bd., 226 P.3d 719, 722-25 (Utah 2009).
. See, e.g., Dkt. 40 at 4, 14-21; Dkt. 47 at 11-13, 21-22; Dkt 51 at 5-6, 10.
. See United States v. General Motors Corp., 702 F.Supp. 133, 137-38 (N.D.Tex. 1988).
. Pennzoil Co. v. FERC, 645 F.2d 360, 371 (5th Cir. 1981).
. United States v. Cinergy Corp., 623 F.3d 455, 458 (7th Cir. 2010). Further, ‘‘[i]nformed by basic principles of due process, it is 'a cardinal rule of administrative law’ that a regulated party must be given ‘fair warning’ of what conduct, is prohibited or required of it,” Wis. Res. Prot. Council v. Flambeau Mining Co., 727 F.3d 700, 707-08 (7th Cir. 2013); see Cinergy Corp., 623 F.3d at 458-59 (holding similarly in the context of the CM). Kenne-cott is not responsible for looking beyond the language of the provision at issue and the representations of the administrative agency tasked with responsibility for issuing ah Approval Order. Requiring regulated entities to do more would undermine their ability to comply, even in good-faith, with the applicable regulatory scheme. Honoring principles of fair warning does more than provide notice to litigants: it is integral to preserving legitimate and effective regulation.
Reference
- Full Case Name
- UTAH PHYSICIANS FOR A HEALTHY ENVIRONMENT, Wildearth Guardians, Utah Moms for Clean Air, and Sierra Club v. KENNECOTT UTAH COPPER, LLC
- Status
- Published