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No. 11-1049
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.
Robert C. Chambers,
District Judge. (3:09cv00149RCC)
Argued:
December 6, 2011
Decided:
PER CURIAM:
This
regulatory
appeal
concerns
program
under
West
the
Virginias
Surface
Mining
statutory
and
Reclamation
and
Control Act of 1977 (SMCRA or the Act), 30 U.S.C. 12011328. Appellants Ohio River Valley Environmental Coalition, Inc.
and
West
Virginia
Highlands
Conservancy,
Inc.
(collectively
amendments
to
West
Virginias
surface
coal
mining
regulations.
On cross-motions for summary judgment, the district court
considered
OVECs
argument
that
the
Secretarys
approval
is
that
[n]othing
in
[the
Act]
shall
be
construed
as
(CWA),
pursuant
33
U.S.C.
thereto,
preservation
of
district
court
granted
summary
or
1151-75,
other
Federal
water
quality,
denied
OVECs
judgment
the
30
in
favor
laws
U.S.C.
motion
State
for
of
laws
relating
enacted
to
1292(a)(3).
summary
the
the
The
judgment,
Secretary
and
I.
A.
Congress enacted SMCRA in 1977 to strike a balance between
the nations interests in protecting the environment from the
adverse effects of surface coal mining 1 and in assuring the coal
supply essential to the nations energy requirements. See 30
U.S.C.
1202(a),
(d),
(f).
Congress
took
cooperative
the
States,
through
an
offer
of
exclusive
Rep.
No.
95-218,
at
167
(1977),
reprinted
in
1977
Mining
Reclamation
and
Enforcement
(OSM),
with
the
in
SMCRA
and
its
implementing
regulations.
See
id.
approve
State
program
unless
the
States
laws
and
with
732.15(a).
the
The
requirements
terms
of
consistent
the
with
Chapter.
and
in
30
C.F.R.
accordance
Secretary
may
not
approve
amendments
to
State
program
and
its
implementing
regulations
protect
surface
the
mine-site
and
in
associated
off-site
areas.
30
U.S.C.
C.F.R.
hydrologic
mining
701.5.
In
order
balance
affected
operations,
SMCRAs
to
by
protect
discharges
implementing
the
portion
from
of
surface
regulations
the
coal
require
that:
[d]ischarges of water from areas disturbed by surface
mining activities shall be made in compliance with all
applicable State and Federal water quality laws and
regulations and with the effluent limitations for coal
mining
promulgated
by
the
U.S.
Environmental
Protection Agency set forth in 40 CFR Part 434.
Id. 816.42. SMCRA further provides that [n]othing in this Act
shall
be
construed
as
superseding,
amending,
modifying,
or
U.S.C.
1292(a)(3).
In
other
words,
SMCRA
requires
that
addition
once
to
surface
mandating
coal
protection
mining
begins,
of
the
SMCRA
hydrologic
calls
for
authority
(WVDEP
in
this
case)
must
conduct
determine,
for
purposes
of
permit
approval,
whether
the
to
see
also
authority
that
the
30
may
the
U.S.C.
not
proposed
hydrologic
1260(b)(3).
approve
the
operation
balance
permit
will
outside
Although
if
cause
the
the
the
CHIA
material
permit
area,
focus
of
this
case
is
West
Virginias
regulatory
the
States
CHIA
provision,
follows:
which
previously
provided
as
we
previously
had
occasion
to
consider
both
is
no
corresponding
federal
in
the
United
States
District
Court
for
the
Southern
on
the
basis
that
the
Secretarys
approval
of
the
to
approve
or
disapprove
State
program
vacated
and
remanded
the
amendments,
finding
that
the
State
program
no
less
effective
than
the
federal
judgment
of
the
district
court.
473
Kempthorne,
F.3d
at
104
decision
to
approve
West
Virginias
program
amendment
our
under
decision,
cover
of
West
an
Virginia
explanatory
resubmitted
letter
the
discussing,
inter alia, the States position that its SMCRA program would
remain as effective and as stringent as federal law after the
deletion of the cumulative impact definition and the addition
of the material damage definition. OSM approved the amendments
a second time on December 24, 2008, noting in its final rule our
admonition
that
the
agency
must
examine
how
each
proposed
the
program
regulations
(citing
in
will
meeting
Kempthorne,
remain
the
473
no
less
effective
requirements
F.3d
at
of
103).
than
SMCRA.
OSM
Federal
J.A.
reviewed
187
the
material
damage
to
the
hydrologic
balance
outside
the
SMCRA.
OSM
warned
that,
should
we
later
find
that
this
[final
rule],
OSM
may
revisit
this
finding.
Id.
OVEC
the
approval
as
arbitrary
and
capricious.
OVEC
material
damage
definition
vacated.
The
district
court
denied OVECs motion for summary judgment and granted the crossmotions
filed
by
the
Secretary
and
Intervenors.
Ohio
River
II.
We review the district courts grant of summary judgment de
novo, applying the same standards that the district court was
required to apply. See Laber v. Harvey, 438 F.3d 404, 415 (4th
11
Cir. 2006) (en banc). The material facts of this case are not in
dispute; thus, resolution of the matter on summary judgment is
appropriate.
Federal
administrative
agencies
are
subject
to
the
APA,
in
accordance
with
law.
U.S.C.
706(2)(A).
SMCRA
approval
of
State
program
is
arbitrary,
(1977)).
reviewing
court
must
consider
whether
the
156,
168
(1962).
These
considerations
12
apply
with
equal
followed
all
required
procedures,
including,
in
this
the
unlawful
Secretarys
if
he
approval
demonstrated
of
the
clear
proposed
error
of
amendments
judgment
in
had
the
reviewed
benefit
the
of
briefs,
oral
record,
argument
and
and
controlling
having
legal
court
provided
an
properly
adequate
determined
basis
for
his
that
the
approval
Secretary
and
that
has
West
14