Before the court are the Plaintiffs' Motion for Summary Judgment (Doc. 39) and Defendants' Joint Cross-Motion for Summary Judgment (Doc. 47). The parties have briefed the issues and the matters are ripe for disposition. For the following reasons, the court will deny Plaintiffs' motion and grant Defendants' motion.
This case involves questions concerning the Office of Surface Mining Reclamation and Enforcement's ("OSM") authority to perform various administrative actions under the Surface Mining Control and Reclamation Act of 1977 ("SMCRA").*fn1 Specifically, Plaintiffs challenge OSM's authority to approve state "program enhancements," terminate a program deficiency notice issued under 30 C.F.R. § 732.17 ("the Part 732 notice"), and delete a program amendment that was codified at 30 C.F.R § 938.16(h). Each is described in greater detail below.
SMCRA establishes the minimum Federal requirements for regulating surface coal mining and reclamation efforts for the benefit of the environment and public welfare. See 30 U.S.C. § 1201. The Act established OSM "as a subdivision within the Department of the Interior with the Secretary of the Interior acting through the OSM, empowered to administer the various state programs for controlling surface coal mining pursuant to the Act." Pa. Fed. of Sportsmen's Clubs, Inc. v. Hess, 297 F.3d 310, 315 (3d Cir. 2002) (citing 30 U.S.C. § 1211(a), (c)). SMCRA intends for states to be the primary source of regulation of surface mining and reclamation activities in order to account for the "diversity in terrain, climate, biologic, chemical, and other physical conditions in areas subject to mining operations." 30 U.S.C. § 1201.
State programs become permanent and states achieve primary jurisdiction, or "primacy," when the Secretary of the United States Department of the Interior ("the Secretary") approves a proposed state program or implementation of a Federal program in the state. See 45 Fed. Reg. 69,970, 69,972 (Oct. 22, 1980). "The federal regulations for the [state] program, including procedures for states to follow in submitting state programs and minimum standards and procedures the state programs must include to be eligible for approval, are found in 30 C.F.R. Parts 700 and 730-865." Id. The Secretary approved Pennsylvania's permanent program on July 30, 1982. 47 Fed. Reg. 33,050 (July 30, 1982) (to be codified at 30 C.F.R. pt. 938).
The five Plaintiffs are: Pennsylvania Federation of Sportsmen's Clubs, Inc.; the Pennsylvania Chapter of the Sierra Club; Pennsylvania Trout, Inc.; Tri-State Citizens Mining Network, Inc.; and Mountain Watershed Association, Inc. Plaintiffs are nonprofit membership organizations, corporations, and coalitions that focus on Pennsylvania's environment and conservation of natural resources. Defendants are Gale A. Norton, sued in her official capacity as the Secretary of the United States Department of the Interior; Jeffrey D. Jarrett, sued in his official capacity as the Director of OSM; and Brent Wahlquist, sued in his official capacity as the Regional Director of OSM's Appalachian Regional Coordinating Center. In addition, the Commonwealth of Pennsylvania, Department of Environmental Protection ("PADEP") was permitted to join as an Intervenor-Defendant.
Approval of a state program under SMCRA is contingent upon the state's establishment and maintenance of a bonding program that will support reclamation of surface mining areas if permitted operators should fail to do so. SMCRA requires that every operator must post a reclamation bond before the state may issue the operator a permit to begin mining operations. 30 U.S.C. § 1259(a). The two basic types of bonding programs include a conventional, or "full cost" system ("CBS") and an alternative bonding system ("ABS"). See 30 U.S.C. § 1259(a) (authorizing a CBS, a bond "sufficient to assure the completion of the reclamation plan if the work had to be performed by the regulatory authority in the event of forfeiture"), § 1259(c) (authorizing an ABS, "an alternative system that will achieve the objectives and purposes of the bonding program pursuant to this section"). The implementing Federal regulations pertaining to the CBS and ABS are found at 30 C.F.R. §§ 800.11(a) through (d) and 30 C.F.R. § 800.11(e), respectively.
Pennsylvania's program, as approved, provided for the option to implement either a CBS or an ABS. The Pennsylvania Surface Mining Conservation and Reclamation Act ("PA SMCRA"*fn2 states in relevant part that:
The amount of the bond required shall be in an amount determined by the department based upon the total estimated cost to the Commonwealth of completing the approved reclamation plan, or in such other amount and form as may be established by the department pursuant to regulations for an alternate coal bonding program which shall achieve the objectives and purposes of the bonding program.
52 Pa. Cons. Stat. Ann. § 1396.4. The Secretary approved the bonding portion of PA SMCRA without condition. See 47 Fed. Reg. at 33,079-80 (setting forth "§ 938.11 Conditions of state regulatory program approval.").*fn3 Prior to and after attaining primacy, Pennsylvania operated an ABS to regulate surface mining activities.*fn4 The ABS drew upon the Surface Mining Conservation and Reclamation Fund ("the Fund") to supplement reclamation guarantees provided through site-specific bonds set below the cost of reclamation. The Fund's primary source of revenue was a one- time, nonrefundable per-acre reclamation fee. The fee was originally $50 per acre, but in 1993 Pennsylvania amended its regulations and raised to the fee to $100 per acre. 25 Pa. Code § 86.17(e); see 58 Fed. Reg. 36,139, 36,141 (July 6, 1993).
D. The Program Amendment at 30 C.F.R. § 938.16(h)
On May 31, 1991, OSM approved a program amendment ("the 1991 rulemaking"), codified at 30 C.F.R. § 938.16(h), that required Pennsylvania to either "submit information, sufficient to demonstrate that the [ABS] can be operated in a manner that will meet the requirements of 30 C.F.R. 800.11(e)," or to amend its rules or otherwise amend its program by November 1, 1991, to be compliant with Federal standards. 56 Fed. Reg. 24,687, 24,719-21 (May 31, 1991). This action, known as a codified required amendment, was published in the Federal Register on May 31, 1991 as a Final Rule, following public notice as a Proposed Rule in the February 26, 1990 Federal Register and a period of public comment.
OSM subsequently removed the required amendment by publishing a Final Rule in the October 7, 2003 Federal Register. See 68 Fed. Reg. 57,805 (Oct. 7, 2003). OSM had announced its proposed removal of the required amendment in the June 26, 2003 Federal Register, see 68 Fed. Reg. 37,987 (June 26, 2003), and provided for a public comment period. OSM stated that PADEP had responded to the deficiencies identified in the 1991 rulemaking by submitting a document entitled, "Pennsylvania Bonding System Program Enhancements" ("the program enhancements document").*fn5 68 Fed. Reg. at 57, 805-06. The program enhancements document, which had been jointly prepared by OSM and PADEP, described the actions taken and planned by PADEP to ensure that Pennsylvania's bonding program would meet Federal standards. Id.
During the comment phase of the 1991 rulemaking process, OSM sought public comment for the limited purpose of "whether OSM should consider the [program enhancements document] sufficient to satisfy the required amendment at 30 C.F.R. § 938.16(h)." Id. Plaintiffs submitted comments during the public comment period.*fn6 Although the 1991 rulemaking included discussion of Plaintiffs' comments on whether the program enhancements document was sufficient to address the deficiencies in the ABS, OSM maintained that such comments were outside the scope of the rulemaking. Id.*fn7
A Part 732*fn8 notice "is a document in which [OSM] notifies the State that its regulatory program must be amended to be in accordance with SMCRA and consistent with the Federal regulations . . . . Such notification may be necessary as a result of Federal regulation changes, State or Federal court decisions, or problems identified during oversight or other program review processes." U.S. Department of the Interior Office of Surface Mining Reclamation and Enforcement Directive System, "Processing of Proposed State Regulatory Programs and State/Tribal Abandoned Mine Land Reclamation Plans; and Part 732 and 884 Notification," STP-1, at 3, July 31, 2000. Under some circumstances, but not all, a Final Rule published in the Federal Register may be considered a Part 732 notice. See id. Likewise, not all Part 732 notices must be Federal Register documents. Cf. id.
On October 1, 1991, OSM sent the Part 732 notice to Pennsylvania, stating that the State's ABS "was no longer in conformance with Federal requirements and mandating that Pennsylvania propose amendments or descriptions of amendments to address the identified deficiencies. Thus the 1991 [Part 732 notice] addressed the same issue covered by the 1991 rulemaking." 68 Fed. Reg. at 57,806.
On June 5, 2003, PADEP responded to the Part 732 notice by submitting the program enhancements document. OSM subsequently determined that the program enhancements document sufficiently addressed the deficiencies identified in the ABS program and, on June 13, 2003, Brent Wahlquist sent a letter to PADEP terminating the Part 732 notice. On July 25, 2003, Plaintiffs sent a 40-page letter to Mr. Wahlquist objecting to the decision to terminate the Part 732 notice.*fn9
On October 3, 2003, Mr. Wahlquist denied Plaintiffs' request that he rescind the termination of the Part 732 notice.
F. Procedural History*fn10
Plaintiffs filed a three-count complaint on December 8, 2003, alleging that Defendants violated provisions of the Administrative Procedure Act ("APA") when they: 1) approved the program enhancements document without processing it as a program amendment subject to public notice and comment; 2) approved the program enhancements document and terminated the Part 732 notice; and 3) promulgated the Final Rule that deleted the required program amendment codified at 30 C.F.R. § 938.16(h).
Plaintiffs filed their Motion for Summary Judgment on March 4, 2005.
Defendants filed their opposition to Plaintiffs' Motion for Summary Judgment and Joint Cross-Motion for Summary Judgment on June 3, 2005. The court has jurisdiction to review agency action and actions constituting rulemaking by the Secretary pursuant to 5 U.S.C. § 702 and 30 U.S.C. § 1276(a).
Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); accord Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001). A factual dispute is "material" if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "genuine" only if there is a sufficient evidentiary basis that would allow a reasonable fact-finder to return a verdict for the non-moving party. Id. at 249. The court must resolve all doubts as to the existence of a genuine issue of material fact in favor of the non-moving party. Saldana, 260 F.3d at 232; see also Reeder v. Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992).
Once the moving party has shown that there is an absence of evidence to support the claims of the non-moving party, the non-moving party may not simply sit back and rest on the allegations in its complaint. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Instead, it must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, and designate specific facts showing that there is a genuine issue for trial." Id. (internal quotations omitted); see also Saldana, 260 F.3d at 232 (citations omitted). Summary judgment should be granted where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden at trial." Celotex, 477 U.S. at 322-23.
" 'Such affirmative evidence -- regardless of whether it is direct or circumstantial -- must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance.' " Saldana, 260 F.3d at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)).
The standards governing the court's consideration of Federal Rule 56(c) cross-motions are the same as those governing motions for summary judgment, although the court must construe the motions independently, viewing the evidence presented by each moving party in the light most favorable to the non-movant. Raymond ...