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.
Nos. 94-7538, 94-7558
United States Court of Appeals, Third Circuit
Aug. 16, 1995
231
Finally, we must be mindful of the consequence of a reversal here, since it will likely result in an order for the child‘s return to Australia, unless Mrs. Feder can prove by clear and convincing evidence that Evan would be at “grave risk” were he returned to Sydney. Absent such proof, the child will be taken from his mother‘s home in Jenkintown, where he has spent virtually all of his years, in contrast to the time spent with his father in Australia. Since this ruling is temporary pending a custody adjudication, he may again be ordered back to the United States. Although the best interests of the child will be determined ultimately, they should not be ignored in these preliminary proceedings. Such tugging and shuttling can only be detrimental. Thus, absent clearly erroneous fact-finding by the district court, its ruling should remain undisturbed.
Accordingly, I would affirm the district court‘s finding that Evan‘s habitual residence is the United States.3
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.
Nos. 94-7538, 94-7558.
United States Court of Appeals, Third Circuit.
Argued May 5, 1995.
Decided Aug. 16, 1995.
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.*
OPINION OF THE COURT
SLOVITER, Chief 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.
I.
Facts and Procedural History
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“),
The SMCRA established the Office of Surface Mining Reclamation and Enforcement (“OSM“) as a subdivision of the Department of the Interior.
The principal regulatory and enforcement provisions of the SMCRA are set forth in Subchapter V of the Act. See
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, оfficer, 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.
In addition to the provisions for federal enforcement of the SMCRA, see
The Secretary has the authority to promulgate regulations establishing procedures and requirements for the preparation, submission and approval of state programs. Id.
(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 violаtions 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. § 1268] of the Act and consistent with 30 C.F.R. 845, including the same or similar procedural requirements;
The Secretary has also promulgated regulations governing any changes, referred to as
On July 31, 1982, the Secretary approved the Pennsylvania regulatory program for surface coal mining and reclamation opеrations. See
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
Upon receipt of Pennsylvania‘s proposed amendments, the OSM initiated a public comment period and announced the opportunity for a public hearing. PCA, the principal trade association of Pennsylvania‘s coal producers, forwarded comments and, at its request, a public hearing was held on June 30, 1992. After receiving assurance from the state that the civil appeals amendment was in conformity with state law, the OSM approved each of the challenged amendments on April 8, 1993. See 58 Fed.Reg. 18,149, 18,152-53, 18,157-58 (1993). Thereafter, the Secretary issued a final order approving the three proposed amendments. See
PCA filed this action on May 25, 1993 seeking dеclaratory and injunctive relief to set aside the three amendments. It named as defendants Bruce Babbitt, the Secretary of the Department of the Interior, and W. Hord Tipton, who was then Acting Director of the OSM.1 The Pennsylvania DER intervened as a party defendant in the action.
After the parties had filed cross-motions for summary judgment, the district court issued an order granting PCA‘s motion for summary judgment on the issue of the Secretary‘s approval of the civil liability amendments, concluding that the Secretary‘s approval was “arbitrary, capricious and inconsistent with SMCRA,” and enjoined the Secretary and the Director from enforcing those amendments. See Order & Judgment of March 30, 1994. The court denied PCA‘s motion for summary judgment on its challenge to the civil appeals amendment. Id.
The parties filed motions to reconsider and to alter or amend the district court‘s judgment. On July 12, 1994 the district court vacated its prior order denying PCA‘s motion for summary judgment regarding the civil appeals amendment, and granted PCA‘s motion, concluding that the Director‘s approval of that amendment was “arbitrary and capricious” because inconsistent with the Secretary‘s own regulations. The court then enjoined the Secretary and the OSM from enforcing the civil appeals amendments. See Order & Judgment of July 12, 1994. The court denied the motions of the Secretary, the OSM Director and the Pennsylvania DER to alter and amend its grant of summary judgment on the civil liability amendments.
II.
Standard of Review
An appellate court reviews the district court‘s grant of summary judgment de novo, applying the same standard as the district court. Beazer East, Inc. v. United States Envtl. Protection Agency, Region III, 963 F.2d 603, 606 (3d Cir.1992). This requires that we view the underlying facts and all reasonable inferences therefrom in the light most favorable to the party opposing the motion.
Judicial review over the Secretary‘s actions under the SMCRA uses the deferential standard applied to administrative actions. The Act provides:
Any action of the Secretary to approve or disapprove a State program pursuant to this chapter shall be subject to judicial review by the United States District Court for the District which includes the capital of the State whose program is at issue....
Any action subject to judicial review under this subsection shall be affirmed unless the court concludes that such action is arbitrary, capricious, or otherwise inconsistent with law.
In determining whether the Secretary‘s actions are “arbitrary, capricious, or otherwise inconsistent with law,” we look to the statute to determine “whether Congress has directly spoken to the precise question at issue.” Chevron U.S.A., Inc. v. Naturаl Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). If the statute is silent or ambiguous, however, courts typically defer to the Secretary‘s reasonable interpretation. See National Wildlife Fed‘n v. Lujan, 928 F.2d 453, 456 (D.C.Cir.1991); see also Chevron, 467 U.S. at 843, 104 S.Ct. at 2782 (“the question for the court is whether the agency‘s answer is based on a permissible construction of the statute“). Such deference is particularly appropriate when a court reviews the Secretary‘s interpretation of the Secretary‘s own regulations. See Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965).
III.
Discussion
A.
The Civil Liability Amendments
The issue between the parties over the civil liability amendments to the PaSMCRA is based upon the difference between the language in the federal statute governing the imposition of civil penalties on corporate officers and the language now in the Pennsylvаnia regulations. As noted above, under the federal statute the Secretary may assess civil penalties against any corporate director, officer or agent who “willfully and knowingly authorized, ordered, or carried out such violation, failure or refusal....”
In contrast, with the omission of the “willfully and knowingly” language from Pennsylvania‘s civil liability regulation, the DER may assess civil penalties against a corporate officer who “participates in a violation or whose misconduct or intentional neglect causes or allows a violation.” See
Neither party elucidates precisely what effect the language change eliminating the “willfully and knowingly” scienter require-
The district court agreed with PCA that the Secretary‘s approval of Pennsylvania‘s civil liability amendments was invalid under the SMCRA. The court held that because the Pennsylvania Code would now permit the assessment of civil penalties against corporate officers who do not act “willfully and knowingly,” it authorized imposition of individual liability on “a lesser standard of proof concerning the individual‘s intent than in the federal law,” although “no particular provision of SMCRA or federal regulations authorizes a state to vary the standard of individual liability.” Memorandum of Decision, March 30, 1994, at 16-18. The district court also found that the omission of the “willfully and knowingly” language that is in
The district court cited various provisions of the federal statute and regulations which require that state law be “consistent with” and “in accordance with” the requirements of the SMCRA and regulations issued thereunder. See, e.g.,
The court acknowledged that section 505(b) of the SMCRA,
On appeal, the federal defendants contend that the district court‘s construction of section 505(b) was plainly incorrect. They argue that because Pennsylvania‘s civil liability amendments impose a stricter standard of liability for individual corporate officers, they are necessarily “more stringent land use and environmental controls” authorized by section 505(b). The federal defendants also argue that the district court‘s distinction between “substantive state standards on coal mining operations” and the standards for “individual liability” is untenable, and note that section 505(b) applies to “[a]ny provision of any State law or regulation.”
The plain language of the statute and our prior precedent convince us that the district court‘s interpretation of section 505(b) is too narrow. That section reflects Congress‘s intent to give the states primary jurisdiction over regulation of surface mining, see
We see no support in the SMCRA for reading sanctions out of section 505(b). Sanctions for violations are an integral element of “land use and environmental controls and regulations.” While not determinative, it is relevant that the SMCRA civil liability provisions, including the provision imposing individual liability on corporate officers, fall within Subchapter V dealing with Control of the Environmental Impacts of Surface Coal Mining, the Subchapter directed to substantive controls. The provision for the Secretаry‘s approval of state programs requires, inter alia, that the state have in place sanctions that “meet the minimum requirements of [the SMCRA].”
This court previously considered the scope of section 505(b) of the SMCRA in Budinsky v. Pennsylvania Dep‘t of Envtl. Resources, 819 F.2d 418 (3d Cir.), cert. denied, 484 U.S. 926, 108 S.Ct. 290, 98 L.Ed.2d 250 (1987). At issue in that case was a Pennsylvania amendment requiring a permit for all mining activity, notwithstanding that the SMCRA at the time contained an exemption (since repealed) for surface mining operations that affect two acres or less. Pennsylvania justified its broader permit requirement under section 505(b) as a “more stringent” requirement thаn that imposed under the federal law. On appeal, Budinsky, a coal mine operator, argued that section 505(b) applied solely to the “procedural, technical and substantive permit application requirements” of
The district court in this case attempted to reconcile Budinsky with its conclusion that sectiоn 505(b) is inapplicable here by stating that Budinsky involved “land use and environmental controls and regulations.” Memorandum of Decision, July 14, 1994, at 13-14. This conclusory attempt to distinguish Budinsky is unpersuasive. In Budinsky, we plainly stated that section 505(b) applies “to the entire Act.” Id. at 422. Having held in Budinsky that
The district court and PCA both relied on Pennsylvania Coal Mining Ass‘n v. Watt, 562 F.Supp. 741 (M.D.Pa.1983), an earlier decision by this district judge. Of course, that opinion is not precedential for us. In any event, it is distinguishable. The SMCRA requires that bond hearings be held within thirty days after a request for such hearing and that the decision be announced within thirty days of the hearing. See
Similarly, In re: Permanent Surface Mining Regulation Litigation, 14 Env‘t Rep.Cas. (BNA) 1083 (D.D.C. Feb. 26, 1980), aff‘d in relevant part & rev‘d in part, 14 Env‘t Rep.Cas. (BNA) 1813 (D.C.Cir.1980), on which PCA relies, does not support its position. In suggesting that state programs must incorporate the same statutory criteria as those set forth in the federal statute, the Permanent Surface Mining court was referring specifically to the four criteria set forth in
We conclude that section 505(b) of the SMCRA applies to Pennsylvania‘s civil liability amendments, and that under that section the Pennsylvania civil liability amendments, which impose a more stringent standard of individual liability, may not be construed as inconsistent. It follows that the district court erred in holding that the Secretary‘s approval of those amendments was invalid.
B.
The Civil Appeals Amendment
We turn to the State‘s challenge to the district court‘s order holding arbitrary and capricious the OSM‘s approval of the civil appeals amendment. In 1988 the Pennsylvania Commonwealth Court interpreted the PaSMCRA and regulations to permit a party against whom the DER assessed a civil penalty to contest the fact of the violation when the party challenges the later assessed civil penalty. See Kent Coal Mining Co. v. Commonwealth, 121 Pa.Cmwlth. 149, 550 A.2d 279, 283 (1988). In so holding, the Commonwealth Court looked to what it viewed as the unambiguous language in section 18.4 of the PaSMCRA,
DER did not include a proposed penalty when it sent a compliance order to Kent Coal notifying it of a PaSMCRA violation, and apparently DER has a practice of issuing a compliance order in advance of assessment of a penalty. When Kent Coal sought to challenge both the violation and the penalty, DER argued that under the doctrine of administrative finality Kent Coal‘s failure to appeal the compliance order within thirty days precluded it from contesting the fact of violation. The Kent Coal court rejected this argument by reference to the statute and regulation quoted above which expressly refer to an appeal on both issues.
In the proposed amendments submitted to the OSM for approval, Pennsylvania modified
A person may challenge either the fact of the violation or the amount of the penalty once an appeal of that issue has been perfected. In either challenge, the appellant will be bound as to actions of the Department which have become final under section 4 of the Environmental Hearing Board Act (35 P.S. § 7514). A final action includes a compliance order which has become final, еven though the order addresses the same violation for which a civil penalty is assessed.
As summarized by the Director of the OSM in granting approval to the amendment, this change “would eliminate the chance to appeal the fact of the violation at the time of penalty assessment if the appeal of the compliance order had not been perfected....” 58 Fed.Reg. at 18,153. The details of the procedure are not before us but it appears that, under the amended regulation, a party seeking to challenge the fact of a PaSMCRA violation must perfect an appeal to the Environmental Hearing Board within 30 days of the compliance order. See
After the Secretary ratified the Director‘s aрproval of the civil appeals amendment, PCA asserted a many-pronged challenge to that approval in district court. The district court rejected PCA‘s contention that the change in the Pennsylvania regulation was “inconsistent” with federal law notwithstanding that the SMCRA gives parties the opportunity to challenge both the fact of violation and the penalty at the same time. See
In the same opinion, the district court rejected PCA‘s contention that the amended regulation conflicts with state law. On reconsideration, however, the district court reached a different result, noting that its earlier decision had been based on its view that the provisions as to procedure in section 18.4 had been implicitly repealed because they were inconsistent with a subsequently enacted Pennsylvania statute. Memorandum of Decision, July 12, 1994, at 4-5. The court was now persuaded that section 18.4 had not been repealed by implication. It concluded that the amended civil appeals regulation was in conflict with the still viable section 18.4 as it had been interpreted by Kent Coal. The district court then held that because a statute controls over a regulation, the amended civil appeals amendment was invalid under Pennsylvania law. Id. at 11.
Continuing its analysis, the district court interpreted the federal SMCRA regulations as prohibiting the OSM from approving an amendment that was invalid under Pennsylvania state law. The court read
On appeal, the State argues primarily that the district court‘s conclusion rests upon a misinterpretation of
The question before us is not whether the district court correctly analyzed the intricacy of Pennsylvania administrative law but whether the SMCRA regulations mandate that the Secretary undertake such an intricate analysis before approving a state program or amendment. The plain language of the regulation imposes no duty on the Secretary to ensure that all elements of the state program are consistent with state law. Under
PCA correctly notes that during the OSM‘s review of the civil appeals amendment in this case, the Director questioned Pennsylvania regarding the consistency of the amendment with state law. During the course of its review of the amendment, “OSM expressed concern that this change to section 86.202 would render it inconsistent with section 18.4 of PA-SMCRA [52 Pa. Cons. Stat. Ann. § 1396.18d].” 58 Fed.Reg. at 18,153. Pennsylvania satisfied these concerns by providing a letter from the Pennsylvania Attorney General approving the proposed regulations “in both form and legality.” Id. (emphasis added). We are troubled by the Secretary‘s failure to articulate a binding administrative interpretation to clarify the extent of the Secretary‘s duty to inquire into state law, but we decline to glean from the OSM‘s inquiry during the administrative proceedings an affirmative obligation on the Secretary to do more than was done here. We have no need here to consider the separate question whether the Secretary has the authority to reject proposed amendments to state programs due to their inconsistency with state law.
Finally, apparently as an alternative ground to uphold the district court‘s order, PCA argues that the civil appeals amendment is not consistent with federal provisions whiсh permit an alleged violator to wait to challenge the fact of violation until making a challenge to the penalty that is assessed. See
Under
Because the state civil appeals amendment follows the federal procedures in assuring notice and an opportunity to be heard and merely restricts the timing of appeals, we agree with the Director‘s conclusion that the procedural requirements of the civil appeals amendment are “similar” to the procedural requirements available under the SMCRA, as that term is used in
Thus, we conclude that the district court erred in holding that the Secretary‘s apprоval of the civil appeals amendment was “arbitrary, capricious, or otherwise inconsistent
IV.
Conclusion
For the foregoing reasons, the orders of the district court will be reversed with instructions to vacate the injunctions and enter summary judgment for the defendants and the intervenor.