Ohio River Valley Environmental Coalition, Inc. v. Salazar

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-1049

OHIO RIVER VALLEY ENVIRONMENTAL COALITION, INCORPORATED;
WEST VIRGINIA HIGHLANDS CONSERVANCY, INCORPORATED,

Plaintiffs − Appellants,

v.

KENNETH SALAZAR, Secretary of the Interior,

Defendant – Appellee,

WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION; WEST
VIRGINIA COAL ASSOCIATION,

Intervenors/Defendants – Appellees.

Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:09−cv−00149−RCC)

Argued: December 6, 2011 Decided: January 10, 2012

Before NIEMEYER, SHEDD, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Walton Davis Morris, Jr., MORRIS LAW OFFICE, PC,
Charlottesville, Virginia, for Appellants. Maggie Baker Smith,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Sarah
Janette Surber, WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL
PROTECTION, Charleston, West Virginia; James Ronald Snyder,
JACKSON KELLY, PLLC, Charleston, West Virginia, for Appellees.
ON BRIEF: Joseph M. Lovett, Derek O. Teaney, APPALACHIAN CENTER
FOR THE ECONOMY & THE ENVIRONMENT, Lewisburg, West Virginia, for
Appellants. Ignacia S. Moreno, Assistant Attorney General,
Kathryn E. Kovacs, Ruth Ann Storey, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C; Steven C. Barcley, UNITED STATES
DEPARTMENT OF THE INTERIOR, Pittsburgh, Pennsylvania, for
Federal Appellee. Judith P. Thomas, WEST VIRGINIA DEPARTMENT OF
ENVIRONMENTAL PROTECTION, Charleston, West Virginia, for
Appellee West Virginia Department of Environmental Protection.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

This appeal concerns West Virginia’s statutory and

regulatory program under the Surface Mining Reclamation and

Control Act of 1977 (“SMCRA” or “the Act”), 30 U.S.C. §§ 1201-

1328. Appellants Ohio River Valley Environmental Coalition, Inc.

and West Virginia Highlands Conservancy, Inc. (collectively

“OVEC”) challenge Appellee Kenneth Salazar’s approval, in his

official capacity as Secretary of the Interior (“Secretary”), of

two amendments to West Virginia’s surface coal mining

regulations.

On cross-motions for summary judgment, the district court

considered OVEC’s argument that the Secretary’s approval is

arbitrary and capricious because the amendments violate SMCRA’s

mandate that “[n]othing in [the Act] shall be construed as

superseding, amending, modifying, or repealing” the Clean Water

Act (“CWA”), 33 U.S.C. §§ 1151-75, “the State laws enacted

pursuant thereto, or other Federal laws relating to the

preservation of water quality,” 30 U.S.C. § 1292(a)(3). The

district court denied OVEC’s motion for summary judgment,

granted summary judgment in favor of the Secretary and

Intervenors-Appellees West Virginia Department of Environmental

Protection (“WVDEP”) and West Virginia Coal Association (“WVCA”)

(collectively “Intervenors”), and entered a final judgment in

favor of the Secretary and Intervenors. We affirm.

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 I.

A.

Congress enacted SMCRA in 1977 to strike a balance between

the nation’s interests in protecting the environment from the

adverse effects of surface coal mining 1 and in assuring the coal

supply essential to the nation’s energy requirements. See 30

U.S.C. § 1202(a), (d), (f). Congress took a cooperative

federalism approach to the regulation of surface coal mining by

“establish[ing] in SMCRA ‘minimum national standards’ . . . and

encourag[ing] the States, through an offer of exclusive

regulatory jurisdiction, to enact their own laws incorporating

these minimum standards, as well as any more stringent, but not

inconsistent, standards that they might choose.” Bragg v. West

Virginia Coal Ass’n, 248 F.3d 275, 288 (4th Cir. 2001) (citing

H.R. Rep. No. 95-218, at 167 (1977), reprinted in 1977

U.S.C.C.A.N. 593, at 698; 30 U.S.C. § 1255(b)).

SMCRA charges the Secretary, acting through the Office of

Surface Mining Reclamation and Enforcement (“OSM”), with the

task of reviewing and either approving or disapproving State

regulatory programs for the control of surface coal mining. 30

1
“Surface mining” is defined as “[m]ining in surface
excavations, including placer mining, mining in open glory-holes
or mining pits, mining and removing ore from open cuts, and the
removal of capping or overburden to uncover ore.” 36 C.F.R.
§ 9.2(f).

4
U.S.C. § 1211(c)(1). Approval or disapproval of a State program

must comply with the procedural and substantive requirements set

forth in SMCRA and its implementing regulations. See id. §

1253(b); 30 C.F.R. § 732.15. For instance, the Secretary shall

not approve a State program unless “the State’s laws and

regulations are in accordance with the provisions of the Act and

consistent with the requirements of the Chapter.” 30 C.F.R.

§ 732.15(a). The terms “consistent with” and “in accordance

with” are further defined as follows:

(a) With regard to the Act, the State laws and
regulations are no less stringent than, meet the
minimum requirements of and include all applicable
provisions of the Act.

(b) With regard to the Secretary’s regulations,
the State laws and regulations are no less effective
than the Secretary’s regulations in meeting the
requirements of the Act.

Id. § 730.5. Review of a State program amendment utilizes the

same criteria applicable to approval or disapproval of a State

program in the first instance. Id. § 732.17(h)(10). Accordingly,

the Secretary may not approve amendments to a State program

unless, at a minimum, the amendments render the State program no

less stringent than SMCRA and no less effective than the federal

implementing regulations.

B.

SMCRA and its implementing regulations protect surface

waters as well as the entire “prevailing hydrologic balance at

5
the mine-site and in associated off-site areas.” 30 U.S.C.

§§ 1265(b)(10), 1266(b)(9). “Hydrologic balance” is defined in

the regulations as:

the relationship between the quality and quantity of
water inflow to, water outflow from, and water storage
in a hydrologic unit such as a drainage basin,
aquifer, soil zone, lake, or reservoir. It encompasses
the dynamic relationships among precipitation, runoff,
evaporation, and changes in ground and surface water
storage.

30 C.F.R. § 701.5. In order to protect the portion of the

hydrologic balance affected by discharges from surface coal

mining operations, SMCRA’s implementing regulations 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

repealing” the CWA, “the State laws enacted pursuant thereto, or

other Federal laws relating to preservation of water quality.”

30 U.S.C. § 1292(a)(3). In other words, SMCRA requires that

discharges associated with surface mining operations comply with

the CWA.

In addition to mandating protection of the hydrologic

balance once surface coal mining begins, SMCRA calls for a

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detailed analysis of area hydrology prior to commencement of

such operations, and requires that mining operations be designed

to ensure hydrologic protection. To this end, the applicable

regulatory authority (WVDEP in this case) must conduct a

cumulative hydrologic impact assessment (“CHIA”) of the proposed

operation and all anticipated mining in the area in conjunction

with the permitting process. The primary purpose of the CHIA is

to determine, “for purposes of permit approval, whether the

proposed operation has been designed to prevent material damage

to the hydrologic balance outside the permit area.” 30 C.F.R. §

780.21(g)(1); see also 30 U.S.C. § 1260(b)(3). Although the

regulatory authority may not approve the permit if the CHIA

indicates that the proposed operation will cause “material

damage to the hydrologic balance outside the permit area,”

neither the Act nor its implementing regulations defines this

phrase.

C.

The focus of this case is West Virginia’s regulatory

provision requiring WVDEP to prepare a CHIA in conjunction with

its review of surface coal mining permits. West Virginia’s first

proposed amendment repeals its definition of “cumulative impact”

in the State’s CHIA provision, which previously provided as

follows:

7
 Cumulative impact means the hydrologic impact that
results from the cumulation of flows from all coal
mining sites to common channels or aquifers in a
cumulative impact area. Individual mines within a
given cumulative impact area may be in full compliance
with effluent standards and all other regulatory
requirements, but as a result of the co-mingling of
their off-site flows, there is a cumulative impact.
The Act does not prohibit cumulative impacts but does
emphasize that they be minimized. When the magnitude
of cumulative impacts exceeds threshold limits or
ranges as predetermined by the Division, they
constitute material damage.

J.A. 36; see also W. Va. Code St. R. § 38-2-2.39 (pre-2001). The

second amendment at issue in this case adds a definition for

“material damage to the hydrologic balance outside the permit

area.” 2 The CHIA provision, as amended, now provides:

The Director (Secretary) shall perform a separate CHIA
for the cumulative impact area of each permit
application. This evaluation shall be sufficient to
determine whether the proposed operation has been
designed to prevent material damage to the hydrologic
balance outside the permit area. Material damage to
the hydrologic balance outside the permit area means
any long term or permanent change in the hydrologic
balance caused by surface mining operation(s) which
has a significant adverse impact on the capability of
the affected water resource(s) to support existing
conditions and uses.

J.A. 36-37; see also W. Va. Code St. R. § 38-2-3.22.e (emphasis

added).

Notably, we previously had occasion to consider both

proposed amendments in Ohio River Valley Envtl. Coal., Inc. v.

2
As noted above, there is no corresponding federal
definition for this phrase.

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Kempthorne, 473 F.3d 94 (4th Cir. 2006). West Virginia initially

submitted the amendments to OSM on May 2, 2001, 66 Fed. Reg.

28,682, 28,683 (May 24, 2001), and the Secretary approved them

on December 1, 2003, 68 Fed. Reg. 67,035, 67,043 (Dec. 1, 2003)

(codified at 30 C.F.R. pt. 948). 3 OVEC challenged OSM’s final

rule in the United States District Court for the Southern

District of West Virginia, seeking declaratory and injunctive

relief on the basis that the Secretary’s approval of the

amendments violated SMCRA and the Administrative Procedure Act

(“APA”). Ohio River Valley Envtl. Coal., Inc. v. Norton, No.

3:04-0084, 2005 WL 2428159 (S.D. W. Va. Sept. 30, 2005); see

also 30 U.S.C. § 1276(a)(1) (providing that “any action of the

Secretary to approve or disapprove a State program . . .

pursuant to [SMCRA] 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”). The district

court vacated and remanded the amendments, finding that the

Secretary contravened the APA by failing to provide a reasoned

analysis in support of his conclusion that the amendments render

the State program no less effective than the federal

regulations. Norton, 2005 WL 2428159, at *3. We affirmed the

3
The Secretary does not personally approve State program
amendments, but rather acts through the Director of OSM.
Kempthorne, 473 F.3d at 103.

9
judgment of the district court. Kempthorne, 473 F.3d at 104

(holding that “the Secretary’s failure to analyze and explain

the decision to approve West Virginia’s program amendment

rendered the decision arbitrary and capricious” under the APA,

which the district court had properly applied).

Following our decision, West Virginia resubmitted the

amendments under cover of an explanatory letter discussing,

inter alia, the State’s 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

change would affect program implementation in order to determine

that the program will remain no less effective than Federal

regulations in meeting the requirements of SMCRA.” J.A. 187

(citing Kempthorne, 473 F.3d at 103). OSM reviewed the

amendments accordingly and concluded that the proposed changes

would not make the State program less effective than the federal

regulations are at achieving the purposes of SMCRA. OSM noted

that:

West Virginia has stated that it intends to implement
its proposed definition in a manner that provides
objective criteria for determining whether a proposed
operation is designed to prevent material damage to
the hydrologic balance outside the permit area.

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 Further, it has stated that it would do so in a manner
that gives reasonable meaning to the phrase ‘material’
while providing consistent application understandable
to all parties.

J.A. 191. OSM emphasized that its approval of the new definition

for “material damage to the hydrologic balance outside the

permit area” was contingent upon West Virginia implementing the

definition consistent with its explanatory letter and the intent

of SMCRA. OSM warned that, “should we later find that this

definition is not being implemented in a manner consistent with

the [final rule], OSM may revisit this finding.” Id. OVEC

subsequently commenced this action for judicial review, again

challenging the approval as arbitrary and capricious. OVEC

sought to retain the “cumulative impact” definition, and to have

the “material damage” definition vacated. The district court

denied OVEC’s motion for summary judgment and granted the cross-

motions filed by the Secretary and Intervenors. Ohio River

Valley Envtl. Coal., Inc. v. Salazar, No. 3:09-0149, 2011 WL

11287 (S.D. W. Va. Jan. 3, 2011). OVEC timely appealed. We have

jurisdiction pursuant to 28 U.S.C. § 1291.

II.

We review the district court’s 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,

which establishes the scope of judicial review of challenged

agency actions and instructs a reviewing court to “hold unlawful

and set aside agency action, findings, and conclusions found to

be arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law.” 5 U.S.C. § 706(2)(A). SMCRA

similarly requires a reviewing court to determine whether the

Secretary’s approval of a State program “is arbitrary,

capricious, or otherwise inconsistent with law.” 30 U.S.C. §

1276(a)(1).

Because an agency has expertise in its particular field, a

presumption of validity attaches to agency actions. Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971)

(overruled on other grounds by Califano v. Sanders, 430 U.S. 99,

105 (1977)). A reviewing court “must consider whether the

[agency] decision was based on a consideration of the relevant

factors and whether there has been a clear error of judgment.”

Id. at 416. A reviewing court also considers whether the agency

articulated a “rational connection between the facts found and

the choice made.” Burlington Truck Lines v. United States, 371

U.S. 156, 168 (1962). These considerations apply with equal

12
force where an agency acts in the first instance and where, as

here, the agency seeks to amend an existing rule. See Motor

Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 42 (1983). If the court finds that the agency

has established the requisite rational connection, the action

must be upheld even if the court disagrees with the agency's

decision. See Overton Park, 401 U.S. at 416 (“A court is not

empowered to substitute its judgment for that of the agency.”).

As the district court noted, we also consider whether the

agency followed all required procedures, including, in this

case, ensuring that the proposed amendments render the State

program no less stringent than the SMCRA and no less effective

than the federal regulations. See Salazar, 2011 WL 11287, at *3

(citing Overton Park, 401 U.S. at 417). Accordingly, we will

find the Secretary’s approval of the proposed amendments

unlawful if he demonstrated a “clear error of judgment” in

approving amendments that fail to satisfy the requirements of

SMCRA.

Having had the benefit of oral argument and having

carefully reviewed the briefs, record, and controlling legal

authorities, we agree with the district court’s analysis. The

district court properly determined that the Secretary “has

provided an adequate basis for his approval” and that “West

Virginia’s material damage definition does not supersede, amend,

13
modify, or repeal the [CWA].” Salazar, 2011 WL 11287, at *8.

Accordingly, we affirm on the basis of the district court’s well

reasoned opinion.

AFFIRMED

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