National Coal Ass'n v. Lujan, 91-5328
| Decision Date | 01 December 1992 |
| Docket Number | No. 91-5328,91-5328 |
| Citation | 979 F.2d 1548 |
| Parties | , 298 U.S.App.D.C. 338, 23 Envtl. L. Rep. 20,240 NATIONAL COAL ASSOCIATION and American Mining Congress, Appellants, v. Manuel LUJAN, Jr., Secretary of the Interior, et al., Appellees. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (Civil Action No. 88-00951).
J. Michael Klise, with whom John A. Macleod, Thomas C. Means, Edward M. Green, Stuart A. Sanderson, and Harold P. Quinn, Jr., Washington, D.C., were on the brief, for appellants.
Peter A. Appel, Attorney, Dept. of Justice, with whom Dirk D. Snel, Attorney, Dept. of Justice, Washington, D.C., were on the brief, for appellees.
Before: RUTH BADER GINSBURG, WILLIAMS, and HENDERSON, Circuit Judges.
Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.
This is an action for judicial review of regulations issued by the Secretary of the Interior on February 8, 1988 under the Surface Mining Control and Reclamation Act (SMCRA), 30 U.S.C. §§ 1201 et seq. (1988). Plaintiffs-Appellants are two associations of coal producers, the National Coal Association and the American Mining Congress (NCA/AMC); the challenged regulations, implementing SMCRA § 518(f), 30 U.S.C. § 1268(f), provide for the assessment of individual civil penalties against officers, directors, and agents of corporate mine operators. The district court, in an unelaborated one-sentence order responding to cross-motions for summary judgment, held for the Secretary. National Coal Association v. United States Department of the Interior, No. 88-951 (D.D.C. July 19, 1991).
In this appeal, NCA/AMC first seek an order remanding the case to the district court for an explanation of its decision. Alternately, in the event that we reach the merits, NCA/AMC urge us to set aside the regulations on individual civil penalties as arbitrary, capricious, and inconsistent with law. The Secretary initially contends that the plaintiff trade associations lack standing to sue; on the merits, the Secretary maintains that the regulations are sound and should be affirmed. We hold that the trade associations NCA/AMC have standing to sue. Because a remand would entail unwarranted protraction, we reach the merits and uphold the regulations.
Enacted "to protect society and the environment from the adverse effects of surface coal mining operations," 30 U.S.C. § 1202(a), SMCRA establishes an enforcement scheme that includes civil and criminal penalties. See 30 U.S.C. § 1268. This dispute involves the relationship between two of SMCRA's civil penalty provisions and the regulations issued under each. The first, which the Secretary calls "a primary enforcement mechanism," see Brief for the Federal Appellees at 4, provides for civil penalties against holders of strip-mining permits:
[A]ny permittee who violates any permit condition or who violates any other provision of this subchapter, may be assessed a civil penalty by the Secretary.... Such penalty shall not exceed $5000 for each violation. Each day of continuing violation may be deemed a separate violation for purposes of penalty assessments. In determining the amount of the penalty, consideration shall be given to the permittee's history of previous violations at the particular surface coal mining operation the seriousness of the violation, including any irreparable harm to the environment and any hazard to the health or safety of the public; whether the permittee was negligent; and the demonstrated good faith of the permittee charged in attempting to achieve rapid compliance after notification of the violation.
30 U.S.C. § 1268(a) (subsection (a)). The parties refer to subsection (a) as the "corporate civil penalties" provision.
Supplementing the provision on corporate civil penalties, and directly at issue in this litigation, SMCRA authorizes the imposition of civil penalties on individual representatives of corporate permittees:
Whenever a corporate permittee violates a condition of a [Federal] permit[,] ... any director, officer, or agent of such corporation who willfully and knowingly authorized, ordered, or carried out such violation ... shall be subject to the same civil penalties, fines, and imprisonment that may be imposed upon a person under subsections (a) and (e) [criminal penalties] of this section.
30 U.S.C. § 1268(f) (subsection (f)). The Secretary refers to subsection (f), along with provisions for injunctive relief, criminal prosecution, and permit suspension or revocation, as "alternate enforcement mechanisms." See Brief for the Federal Appellees at 4-6.
In 1979, the Office of Surface Mining Reclamation and Enforcement (OSMRE, a constituent of the Department of the Interior) issued permanent program regulations to implement subsection (a)'s corporate civil penalty prescriptions. See 44 Fed.Reg. 15,461 (1979), codified at 30 C.F.R. § 845 (1991). 1 Under the subsection (a) regulations, OSMRE determines the gravity of the permit holder's violation and sets the amount of assessed penalties according to a "point system." Under the point system, a permittee is assigned a score in four categories derived from the factors listed in subsection (a): (1) history of previous violations; (2) "seriousness" of the violation (determined in part by "the extent of potential or actual damage, in terms of area and impact on the public or environment"); (3) degree of any negligence or greater fault involved in the violation; and (4) good faith in attempting to achieve compliance. See 30 C.F.R. § 845.13. The point total for the violation determines the amount of the permittee's penalty. See 30 C.F.R. § 845.14 (penalty table).
Upon finding that a penalty is in order, OSMRE sends the permittee a "proposed assessment"; within 30 days of receipt of OSMRE's proposal, the permittee may request an "assessment conference" to review the proposal, informally, with an OSMRE "conference officer." See 30 C.F.R. § 845.18. Within 30 days after the assessment conference is held, the conference officer "shall either ... [s]ettle the issues" or "[a]ffirm, raise, lower, or vacate the penalty." 30 C.F.R. § 845.18(b)(3). If dissatisfied with the conference outcome, the permittee may request a formal administrative hearing and, ultimately, petition for judicial review. See 30 C.F.R. § 845.19. Pending pursuit and completion of administrative and judicial review of a corporate penalty, the permittee must place in an escrow account the entire amount assessed by OSMRE. See 30 U.S.C. § 1268(c); 30 C.F.R. § 845.19.
The agency did not propose regulations to implement subsection (f), the individual civil penalties provision, until several years after it developed and installed the subsection (a) corporate civil penalties regulations. In 1980 and 1983, however, OSMRE issued successive internal directives "provid[ing] guidance concerning implementation" of subsection (f). See, e.g., OSMRE Directive, Individual Civil Penalty Assessment (issued October 11, 1983), reprinted in Joint Appendix (J.A.) at 47. The directives described circumstances in which agency personnel should consider seeking individual civil penalties under subsection (f). See id., J.A. at 47-49 (). Under the heading "Procedures," the directives stated: "Hearings and conference procedures for individual penalties will be the same as procedures developed for hearings and conferences for regular penalties." Id., J.A. at 49.
In 1986, in response to a consent decree settling a "citizen suit" brought against the Secretary by environmental organizations, 2 OSMRE proposed regulations implementing subsection (f). See 51 Fed.Reg. 46,838 (1986). These proposed regulations on individual civil penalties differed from the previously issued corporate regulations in two relevant respects. First, the individual penalty scheme did not provide for assessment conferences. Second, to set the amount of the penalty, the proposed subsection (f) regulations used, in lieu of a point system, a more open-ended balancing of the relevant statutory considerations, tailored to fit individuals. The proposed regulations delineated three factors: the individual's involvement in previous violations; the seriousness of the violation; and the individual's good faith in attempting to achieve rapid compliance. See 51 Fed.Reg. at 46,842. The "seriousness" criterion, as stated in the proposed individual regulations, contained a key parenthetical component, one that does not appear in the corporate regulations; the new component concerned the cost of reclamation:
(2) The seriousness of the violation ... (as indicated by the extent of damage and/or the cost of reclamation ), including any irreparable harm to the environment and any hazard to the health or safety of the public[.]
Id. (emphasis added). On February 8, 1988, with no alteration of the 1986 text significant here, OSMRE issued final regulations governing individual civil penalties. See 53 Fed.Reg. 3664 (1988), codified at 30 C.F.R. § 846 (1991).
Suing to set aside the final rule containing the individual penalty prescriptions, NCA/AMC trained their attack on the agency's failure to include in the subsection (f) individual penalty regulations two key features included in the subsection (a) corporate penalty regulations: the assessment conference and the point system. See 30 U.S.C. § 1276(a)(1) (). On cross-motions for summary judgment, and after full briefing by the parties, the district court ruled for the Secretary without stating reasons for the court's decision.
The Secretary argues, for the first time in the case, that the...
To continue reading
Request your trial
-
National Mining Association v. Slater, Civil Action No. 00-00288 (ESH) (D. D.C. 9/18/2001)
...1345, 1349 (D.C. Cir. 1995); Association of American Railroads v. DOT, 38 F.3d 582, 586 (D.C. Cir. 1994); National Coal Ass'n v. Lujan, 979 F.2d 1548, 1552 (D.C. Cir. B. Causal Connection Next, defendants argue that plaintiffs' injuries are not fairly traceable to the Final Rule because the......
-
National Min. Ass'n v. Slater
...70 F.3d 1345, 1349 (D.C.Cir.1995); Association of American Railroads v. DOT, 38 F.3d 582, 586 (D.C.Cir.1994); National Coal Ass'n v. Lujan, 979 F.2d 1548, 1552 (D.C.Cir.1992). B. Causal Next, defendants argue that plaintiffs' injuries are not fairly traceable to the Final Rule because the r......
-
Building Industry Fund v. Local Union No. 3, 93 CV 2721.
...2434, 53 L.Ed.2d 383 (1977); see also Self-Insurance Institute v. Korioth, 993 F.2d 479, 484 (5th Cir.1993); National Coal Ass'n v. Lujan, 979 F.2d 1548, 1551 (D.C.Cir.1992); National Ass'n. of Pharmaceutical Mfrs. v. Ayerst Lab., 850 F.2d 904, 914 (2d Cir.1988); American Booksellers Ass'n.......
-
National Min. Ass'n v. U.S. Dept. of Interior
...in the newly filed IFR action, rejecting each of NMA's challenges. Reviewing the IFR de novo, as we must, see National Coal Ass'n v. Lujan, 979 F.2d 1548, 1553 (D.C.Cir.1992), we reverse the district court's summary judgment in No. 97cv01418, challenging the IFR. Because our review of that ......