Pennsylvania Coal Ass'n v. Babbitt, s. 94-7538
| Decision Date | 16 August 1995 |
| Docket Number | Nos. 94-7538,94-7558,s. 94-7538 |
| Citation | 63 F.3d 231 |
| Parties | , 26 Envtl. L. Rep. 20,220 PENNSYLVANIA COAL ASSOCIATION, an unincorporated association v. Bruce BABBITT, Secretary of the Interior of the United States Department of Interior; Robert Uram, Director, Office of Surface Mining Reclamation and Enforcement, United States Department of Interior, Appellants, Pennsylvania Department of Environmental Resources (DER), Intervenor in D.C. PENNSYLVANIA COAL ASSOCIATION, an unincorporated association v. Bruce BABBITT, Secretary of the Interior of the United States Department of Interior; Robert Uram, Director, Office of Surface Mining Reclamation and Enforcement, United States Department of Interior Pennsylvania Department of Environmental Resources (DER), Intervenor in D.C. Commonwealth of Pennsylvania, Department of Environmental Resources, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
Robert R. Long, Jr., Office of U.S. Atty., Harrisburg, PA, Steven C. Barcley, U.S. Dept. of Interior, Office of the Sol., Pittsburgh, PA, Ellen J. Durkee, Tamara N. Rountree (argued), U.S. Dept. of Justice, Environmental & Natural Resources, Washington, DC, for appellants Secretary of the Interior of the U.S. and Director of the Office of Surface Mining Reclamation and Enforcement.
Joseph G. Pizarchik, Dennis Whitaker (argued), Office of Atty. Gen. of Pa. Dept. of Environmental Resources, Harrisburg, PA, for appellant Dept. of Environmental Resources.
Stephen C. Braverman (argued), Buchanan Ingersoll, Philadelphia, PA, for appellee Pa. Coal Ass'n.
Before SLOVITER, Chief Judge, ALITO, Circuit Judge, and SCHWARZER, District Judge. *
The Secretary of the Interior of the United States ("Secretary"), the Director of the Office of Surface Mining Reclamation and Enforcement ("Director"), and the Pennsylvania Department of Environmental Resources ("DER") appeal from the district court's grant of summary judgment in favor of the Pennsylvania Coal Association ("PCA") on its challenge to the Secretary's approval of certain amendments to Pennsylvania's surface mining regulatory program. At issue is whether the Secretary acted arbitrarily and capriciously in approving amendments that eliminate the "willfully and knowingly" scienter requirement for imposition of civil penalties on corporate officers and that change the appeal procedures by requiring alleged violators to perfect an appeal from a compliance order at the risk of having their challenge to the fact of violation deemed waived.
In 1977, in response to the growing environmental and social costs of coal extraction in the United States, Congress enacted the Surface Mining Control and Reclamation Act ("SMCRA"), 30 U.S.C. Secs. 1201-1328 (1988 & Supp. IV 1993). Among other things, the SMCRA proposed "to establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations." 30 U.S.C. Sec. 1202(a). By establishing nationwide standards governing surface coal mining operations, Congress hoped that "the unnecessary degradation of land and water resources [would] be avoided as the country makes good use of its abundant coal supply." H.R.Rep. No. 95-218, 95th Cong., 1st Sess. 57 (1977), reprinted in 1977 U.S.C.C.A.N. 593, 595.
The SMCRA established the Office of Surface Mining Reclamation and Enforcement ("OSM") as a subdivision of the Department of the Interior. 30 U.S.C. Sec. 1211(a). The SMCRA empowers the Secretary, acting through the OSM, to administer the programs for controlling surface coal mining operations set forth in the Act. Id. Sec. 1211(c).
The principal regulatory and enforcement provisions of the SMCRA are set forth in Subchapter V of the Act. See 30 U.S.C. Secs. 1251-1279; see also Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 269, 101 S.Ct. 2352, 2356, 69 L.Ed.2d 1 (1981). A permit is required before any person or company may engage in surface coal mining operations. See 30 U.S.C. Sec. 1256. That permit must require the surface coal mining operation to satisfy certain environmental protection performance standards. See id. Secs. 1265-66. Permittees who violate any permit condition or who violate any other provision of Subchapter V may be assessed with civil penalties. Id. Sec. 1268(a). Permittees who "willfully and knowingly" commit such violations may be punished by a fine and/or imprisonment. Id. Sec. 1268(e).
Two SMCRA civil penalty provisions are particularly relevant to this case. One provides that when a violation is committed by a corporate permittee "any director, officer, or agent of such corporation who willfully and knowingly authorized, ordered or carried out such violation, failure or refusal shall be subject to the same civil penalties" that may be imposed upon permittees. Id. Sec. 1268(f) (emphasis added). The other deals with the opportunity of parties charged with violations by the Secretary to challenge the fact of the violation. Under the SMCRA, a party may challenge the Secretary's charge of violation either within thirty days of receiving a notice or order charging a violation, see id. Sec. 1275(a)(1), or after a penalty has been assessed. See id. Sec. 1268(c); see also 30 C.F.R. Sec. 845.19.
In addition to the provisions for federal enforcement of the SMCRA, see 30 U.S.C. Sec. 1254, the statute contains a mechanism by which states may "assume exclusive jurisdiction over the regulation of surface coal mining and reclamation operations" on non-Federal lands within the state. Id. Sec. 1253(a). To achieve this control, a state must submit to the Secretary a proposed program "which demonstrates that such State has the capability of carrying out the provisions of [the SMCRA] and meeting its purposes...." Id. The proposed state program must contain state laws which provide for the regulation of surface coal mining and reclamation operations "in accordance with the requirements of [the SMCRA]," id. Sec. 1253(a)(1), and rules and regulations "consistent with" regulations issued by the Secretary under the SMCRA. Id. Sec. 1253(a)(7). Section 505(b) of the SMCRA provides, however, that "[a]ny provision of any State law or regulation ... which provides for more stringent land use and environmental controls and regulations of surface coal mining and reclamation operation than do the provisions of this chapter or any regulation issued pursuant thereto shall not be construed to be inconsistent with this chapter." Id. Sec. 1255(b) (emphasis added). Moreover, with respect to civil and criminal penalty provisions, the SMCRA requires that the state program "incorporate penalties no less stringent than those set forth in this section, and ... contain the same or similar procedural requirements relating thereto." Id. Sec. 1268(i) (emphasis added).
The Secretary has the authority to promulgate regulations establishing procedures and requirements for the preparation, submission and approval of state programs. Id. Sec. 1251(b). The criteria established by the Secretary for the approval or disapproval of state programs provide, in relevant part, that the Secretary shall not approve a proposed state program unless the Secretary finds that:
(a) The program provides for the State to carry out the provisions and meet the purposes of the Act and this Chapter within the State and that the State's laws and regulations are in accordance with the provisions of the Act and consistent with the requirements of the Chapter.
(b) The State regulatory authority has the authority under State laws and regulations pertaining to coal exploration and surface coal mining and reclamation operations and the State program includes provisions to--
....
(7) Provide for civil and criminal sanctions for violations of the State law, regulations and conditions of permits and exploration approvals including civil and criminal penalties in accordance with section 518 [30 U.S.C. Sec. 1268] of the Act and consistent with 30 C.F.R. 845, including the same or similar procedural requirements;
30 C.F.R. Sec. 732.15.
The Secretary has also promulgated regulations governing any changes, referred to as "amendments," to an approved state program. See 30 C.F.R. Sec. 732.17. A state that proposes any amendments to the laws or regulations that make up the approved state program must submit them for approval to the OSM Director. 30 C.F.R. Sec. 732.17(g). The OSM Director must review the proposed amendments with reference to the criteria set forth in 30 C.F.R. Sec. 732.15 for the approval or disapproval of the state program. See 30 C.F.R. Sec. 732.17(h)(10).
On July 31, 1982, the Secretary approved the Pennsylvania regulatory program for surface coal mining and reclamation operations. See 30 C.F.R. Part 938; 47 Fed.Reg. 33,079 (1982). The Pennsylvania program is set forth in the Pennsylvania Surface Mining Conservation and Reclamation Act ("PaSMCRA"), 52 Pa.Stat.Ann. Secs. 1396.1-1396.31 (Supp.1994), and its accompanying regulations, 25 Pa.Code Secs. 86.1-86.242. The Pennsylvania program vests the primary authority for enforcement of the program with the Pennsylvania DER. See 52 Pa.Stat.Ann. Sec. 1396.4c.
On December 18, 1991, Pennsylvania submitted proposed program amendments for approval by the Director of the OSM, including the three proposed amendments that have been challenged by PCA in this lawsuit. Two of those amendments ("the civil liability amendments") would alter the standard for the imposition of civil penalties on corporate officers for violations of the PaSMCRA by a permittee corporation. See 25 Pa.Code Sec. 86.195(a) (as amended 1993); 25 Pa.Code Sec. 86.1 (as amended 1993). The third amendment () would alter the appeal procedure for persons charged with a violation. See 25 Pa.Code Sec. 86.202 (as amended 1993).
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