Southern Appalachian Mountain Stewards et al v. Jewell

Brief / Memorandum in Support re Counter MOTION for Summary Judgment and in Opposition to Plaintiffs' Motion for Summary Judgment.

W.D. Va.June 30, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA BIG STONE GAP DIVISION SOUTHERN APPALACHIAN MOUNTAIN ) STEWARDS and SIERRA CLUB, ) ) Plaintiffs, ) ) v. ) Case No. 2:16-CV-00026 ) RYAN ZENKE, Secretary of the Interior, ) ) Defendant. ) ) MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S COUNTER-MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT In this case brought under the Administrative Procedures Act, 5 U.S.C. § 702, (the “APA”), Ryan Zenke, Secretary of the U.S. Department of the Interior, (“Secretary” or “the Defendant”), submits this memorandum of law in support of a counter-motion for summary judgment, and in opposition to the Plaintiffs’ Motion for Summary Judgment. I. Introduction The Plaintiffs seek judicial review of a decision by the Interior Board of Land Appeals (“IBLA”) that favors the Secretary of the Interior.1 Rec. at 121. Judicial review of a final decision of the Secretary (which, in this instance, is the IBLA’s decision) is authorized by § 526(a)(2) of the Surface Mining Control and Reclamation Act of 1977 (“SMCRA” or “the Act”), codified as 1 The IBLA is one of several administrative tribunals created by the Secretary for the purpose of hearing, considering, and deciding matters within the jurisdiction of the Department involving hearings, appeals, and other review functions of the Secretary. The Office may hear, consider, and decide those matters as fully and finally as might the Secretary, subject to any limitations on its authority imposed by the Secretary. 43 C.F.R. § 4.1 (2017). Among other things, the IBLA “decides finally for the Department” administrative appeals involving “the conduct of surface coal mining under the Surface Mining Control and Reclamation Act of 1977.” 43 C.F.R. § 4.1(b)(2)(iii) (2017). Case 2:16-cv-00026-JPJ-PMS Document 17 Filed 06/30/17 Page 1 of 17 Pageid#: 324 -2- 30 U.S.C. § 1276(a)(2). By law, this Court is required to “hear such petition or complaint solely on the record made before the Secretary.”2 The IBLA decision is to be upheld “if supported by substantial evidence on the record considered as a whole . . ..” 30 U.S.C. § 1276(b) (2012). The decision of the IBLA should not be overturned unless the Court finds that the IBLA’s decision “is arbitrary, capricious, or otherwise inconsistent with law.” Id. at § 1276(a)(1). The Plaintiffs attack the IBLA decision in the following three ways: 1. “[T]here is no evidence in the record even suggesting that Red River could lawfully discharge selenium” from the permit at issue here. 2. “[T]he Secretary erroneously concluded that SAMS waived its right to be notified of inspections that result from information provided by SAMS.” 3. “[T]he Secretary failed to address the chronic water quality standard for selenium in its analysis denying SAMS’ appeal.” Rec. at 302-03. In the proceedings before the IBLA, these Plaintiffs relied upon a strained and contorted representation of the relevant facts, and some overly-broad statements of applicable laws. The Plaintiffs make the same mistakes in their arguments to this Court. The Defendant will show that (a) the IBLA’s decision is supported by substantial evidence on the record considered as a whole, and (b) the Plaintiffs have failed to prove that the decision of the IBLA is arbitrary, capricious, or otherwise inconsistent with law. Accordingly, the Defendant will demonstrate that the Court should affirm the IBLA’s decision. 2 The pleadings in the IBLA appear at Rec. at 132-92. The Defendant’s facts, law and legal arguments made in OSMRE’s Response to Statement of reasons for Appeal, appear at Rec. at 133-57. Case 2:16-cv-00026-JPJ-PMS Document 17 Filed 06/30/17 Page 2 of 17 Pageid#: 325 -3- II. Background a. Overview of SMCRA In their pleadings before the IBLA, the parties provided exhaustive overviews of the Act, including the ways and means SMCRA provides for protecting society and the environment from the adverse effects of coal mining operations. Rec. at 137-42 (Defendant’s), Rec. at 292-97 (Plaintiffs’). All parties appear to agree that, through SMCRA, Congress created minimum environmental protection standards for the entire nation, pre-empted state laws and regulations that were less stringent than those federal standards, and created a federal agency – the Office of Surface Mining Reclamation and Enforcement, (“OSMRE”) – to assist in the enforcement of the national standards.3 The parties also agree that Congress determined that “the primary governmental responsibility for developing, authorizing, issuing, and enforcing regulations for surface mining and reclamation operations subject to this Act should rest with the States” because of the “diversity in terrain, climate, biologic, chemical, and other physical conditions in areas subject to mining operations.” 30 U.S.C. § 1201(f) (2012). Additionally, the parties agree that a state, such as Virginia, can become the primary enforcer, or “achieve primacy,” after two things occur. First, OSMRE must find that the state law and accompanying regulations implementing the state’s counterpart to SMCRA are as effective as the Act. Second, OSMRE must find that the state has the “legal authority and qualified personnel necessary for the enforcement of the environmental protection standards.” 30 U.S.C. § 1253(b)(4) (2012). There seems to be agreement that once a state successfully achieves primacy, OSMRE’s role within the state is (a) to monitor the state regulatory authority’s implementation of SMCRA, (b) to cite imminent harm violations, and (c) to cite other violations that the state fails to 3 This regulatory plan is “a system of ‘cooperative federalism.’” Southern Ohio Coal Co. v. Office of Surface Mining Recl. and Enf., 20 F.3d 1418, 1427 (6th Cir. 1994). Case 2:16-cv-00026-JPJ-PMS Document 17 Filed 06/30/17 Page 3 of 17 Pageid#: 326 -4- appropriately address after being given a ten day notice. This role, often referred to as “oversight,” is characterized by occasional mine site inspections to evaluate the administration of approved state programs, or to evaluate a citizen’s complaint. 30 U.S.C. § 1271(a) (2012); see also Nat’l Coal Ass’n v. Uram, 39 ERC (BNA) 1624, (D.D.C. 1994). The parties apparently agree that even in primacy states, OSMRE is authorized to cite violations of SMCRA when the state agency does not. Annaco, Inc. v. Hodel, 675 F. Supp. 1052 (E.D. Ky. 1987). The Plaintiffs argue that OSMRE’s oversight role somehow causes the federal citizen complaint process, described more fully below, to become so entwined with the state’s regulatory program that an unsuccessful citizen complaint filed with Virginia can be revived by filing another complaint with OSMRE. Those arguments reveal a fundamental misunderstanding of the nature and roles of both the state and federal complaint processes. b. The Different Ways SMCRA is Enforced Congress provided at least three ways that are relevant here to enforce the provisions of SMCRA, which are applicable in primacy states like Virginia. First, OSMRE can cite environmental violations at specific mine sites. 30 U.S.C. §§ 1271(a)(1), (3) (2012); 30 C.F.R. §§ 842, 843 (2017). Second, OSMRE can cite violations that come to its attention during oversight of the state program. 30 C.F.R. § 842.11(a)(3) (2017). Third, OSMRE has authority to cite violations brought to its attention through citizen complaints. 30 C.F.R. § 842.12(a) (2017). Unless OSMRE identifies a violation that poses an imminent harm to the health and safety of the public or to the environment, see 30 C.F.R. § 842.12(a)(2) (2017), OSMRE must comply with the ten-day notice (“TDN”) process set out in the federal regulations at 30 C.F.R. § 842.11(b). Additionally, if OSMRE determines that a primacy state is not properly enforcing aspects of its approved regulatory program, the federal agency can take over all or part of the state Case 2:16-cv-00026-JPJ-PMS Document 17 Filed 06/30/17 Page 4 of 17 Pageid#: 327 -5- program, and assume the role of primary SMCRA enforcer. 30 U.S.C. § 1271(b) (2012); 30 C.F.R. §§ 732, 733 (2017). By regulation, any “interested person” can request the OSMRE director to “evaluate the program” of the primacy state, and can provide “a concise statements of the facts” that require evaluation . . ..” 30 C.F.R. § 733.12(a)(2) (2017). The director commences the process of taking over all or part of the state program if, after the requested evaluation, the director finds that there is reason to believe the primacy state is not properly enforcing the approved state program. 30 C.F.R. § 733.12(b) (2017). Finally, Congress empowered citizens to compel OSMRE to enforce SMCRA through “citizen suits” in those instances when a citizen believes OSMRE is not properly enforcing SMCRA. 30 U.S.C. § 1270 (2012). In this case, the Plaintiffs could have attempted to address the problems they see in the enforcement of the Virginia regulator program by filing a citizen suit pursuant to 30 U.S.C. § 1270, by petitioning the Director to start the process to take over SMCRA enforcement in Virginia pursuant to 30 U.S.C. § 1271(b), or through the citizen complaint process set out in 30 U.S.C. §§ 1271(a)(1) and (a)(3) and 30 C.F.R. §§ 842 and 843. c. Summary of Proceedings Below In this instance, the Plaintiffs made a citizen complaint to OSMRE pursuant to 30 C.F.R. § 842.12(a). When OSMRE receives “a signed, written statement (or an oral report followed by a signed, written statement) giving the authorized representative reason to believe that a violation, condition, or practice referred to in [30 C.F.R]. § 842.11(b)(1)(i) exists and that the State regulatory authority, if any, has been notified, in writing, of the existence of the violation, condition or practice[,]” OSMRE is required to send a TDN to the state regulatory agency. 30 C.F.R. 842.12(a) (2017). Conversely, if the citizen complaint does not give OSMRE reason to believe a violation exists, OSMRE can decline to further process the complaint. Rec. at 228-31. Case 2:16-cv-00026-JPJ-PMS Document 17 Filed 06/30/17 Page 5 of 17 Pageid#: 328 -6- On February 7, 2014, the Plaintiffs in this case made a citizen complaint to OSMRE. Rec. at 95. After receiving the citizen complaint, OSMRE followed the federal regulations by issuing a TDN to Virginia’s Department of Mines, Minerals and Energy, Division of Mined Land Reclamation, (“DMLR”), which said in relevant part, “as a result of Citizen Information … the Secretary has reason to believe that [Red River Coal Company] is in violation of the Act or a permit condition required by the Act.” Rec. at 99. Within ten days, DMLR responded to OSMRE’s TDN by saying, Red River Coal Company, Inc.’s permit does not have an effluent limitation for selenium. Section 4VAC 25-130-816.42 of the Virginia Coal Surface Mining Reclamation Regulations (VCSMRR) requires that discharges are prohibited from causing an exceedance of in-stream numeric water quality standards. The referenced data [relayed from the Plaintiffs to DMLR by OSMRE] is not sufficient to support a violation of the company’s National Pollutant Discharge Elimination System (NPDES) permit limitations or to indicate that the outfall is causing an exceedance of the in-stream selenium standard. Id. at 104. Mr. Earl Bandy, OSMRE’s field office director in Knoxville, Tennessee, found DMLR’s response to the TDN to be arbitrary and capricious. Id. at 112. The DMLR, however, requested an informal review, which was conducted by the OSMRE Regional Director, Mr. Thomas Shope, (“Shope”). Shope determined that the state agency’s response to the TDN was not arbitrary or capricious because “additional information” in DMLR’s subsequent letters to the regional director “indicated that no violation of the Virginia program is occurring with regard to selenium discharges from outfall 001. As such, the sampling indicates that there is no violation of the Virginia approved program with regard to selenium.” Id. at 197. By letter to Plaintiff’s representatives dated June 6, 2014, (rec. at 199), Shope advised the Plaintiffs of his determination that the possible violation identified in the citizen’s complaint and the TDN did not exist as a matter of state law, and that OSMRE would not inspect the site as the Case 2:16-cv-00026-JPJ-PMS Document 17 Filed 06/30/17 Page 6 of 17 Pageid#: 329 -7- Plaintiffs’ representatives had requested. The Plaintiffs’ appeal to the IBLA followed, as authorized by 30 C.F.R. § 843.15(b) and (d). The IBLA reviewed the Plaintiff’s Statement of Reasons, (rec. at 166-78), OSMRE’s Response, (rec. at 133-57), and the Administrative Record, (rec. at 1-16). The IBLA affirmed Regional Director Shope’s decision and found that DMLR’s response to the TDN was appropriate. The Plaintiffs then sought judicial review of the IBLA’s decision pursuant to 30 U.S.C. § 1276(a)(2). III. Standard of Review The standard of review in APA cases is found in the statute’s catchall provision, 5 U.S.C. § 702(2)(A). Reviewing courts must determine whether the agency’s decision is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. Under the arbitrary or capricious standard, a court may set aside agency action where the agency: (1) relied on factors which Congress has not intended it to consider; (2) entirely failed to consider an important aspect of the problem; (3) offered an explanation for its decision that runs counter to the evidence before the agency; or, (4) offered an explanation so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Motor Vehicle Mfr. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Review under the arbitrary and capricious standard is “searching and careful,” but “narrow.” Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 377-78 (1989). Courts should uphold a “decision [of] less than ideal clarity . . . if the agency’s path may reasonably be discerned.” Alaska Dep’t. of Envtl. Cons. v. EPA, 540 U.S. 461, 497 (2004). The question is whether the agency’s decision is “within the bounds of reasoned decision making.” Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 105 (1983). Case 2:16-cv-00026-JPJ-PMS Document 17 Filed 06/30/17 Page 7 of 17 Pageid#: 330 -8- Additionally, when reviewing an agency’s interpretation of its own regulations, the courts give “controlling weight” to the agency’s interpretation, “unless it is plainly erroneous or inconsistent with the regulation.” Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (quoting Udall v. Tallman, 380 U.S. 1, 16 (1965)). This high degree of deference is often referred to as “Auer,” or “Seminole Rock” deference, in reference to the two leading cases in which the standard was articulated. See Auer v. Robbins, 519 U.S. 452 (1997); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945). Agency regulatory interpretations do not have to be adopted in legally-binding determinations to warrant Auer deference. See Auer, 519 U.S. at 462 (finding an agency’s amicus brief worthy of deference); Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 171 (2000) (same). Courts will defer to the agency’s interpretation of its own regulations, even when that interpretation is advanced in a litigation brief. See, e.g., Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 154-55 (2012) (citing Auer, 519 U.S. at 461-62.). IV. Argument a. The Secretary Issued a Valid Decision The legal deficiencies of the Plaintiffs’ arguments in case can be best understood by examining another case involving SAMS which is factually similar. S. App. Mt. Stewards v. A&G Coal Corp., 758 F.3d 560 (4th Cir. 2014). There, as here, a coal company possessed a valid SMCRA permit and a valid National Pollutant Discharge Elimination System (“NPDES”) permit for its discharges of pollutants. Id. at 561. The permits listed a number of different pollutants, but selenium was not one of them. Id. at 562. DMLR believed that discharges of selenium discovered after the SMCRA and NPDES permits were issued were covered by the “permit shield defense” available under the provisions of the Clean Water Act (“CWA”). Id. The parties disagreed about Case 2:16-cv-00026-JPJ-PMS Document 17 Filed 06/30/17 Page 8 of 17 Pageid#: 331 -9- whether the selenium levels found in the samples of water taken from the receiving stream indicated the permittee had violated Virginia water quality standards. Id. Selenium is a naturally occurring element that can be harmful in high doses to aquatic life and is categorized as a toxic pollutant under the CWA. Id. As such, a permittee’s lack of knowledge that it is discharging selenium is irrelevant. Instead, the key consideration under the CWA is whether the permitting agency contemplated the discharge when issuing the permit. Id. at 567. The Fourth Circuit affirmed that A&G’s failure to disclose selenium in its permit application prevented it from receiving the protection of the CWA’s permit shield. Id. at 569. Here, Plaintiffs find fault with the IBLA decision because “there is no evidence in the record even suggesting that Red River could lawfully discharge selenium.” Pl.’s Br. in Supp. of Mot. for Summ. J., ECF No. 13, at 14. However, there was no need to present such evidence when the Plaintiffs did not present any evidence that Red River is unlawfully discharging selenium. Furthermore, the Plaintiffs have not provided any case law that suggests either OSMRE or DMLR must issue a notice of violation to Red River Coal Company under the facts of this case. Neither OSMRE nor DMLR are required to cite every violation they detect. As a matter of law, OSMRE (and by extension, DMLR) can deal with a violation of SMCRA by issuing a citation, or by taking other action to cause the violation to be abated. 30 C.F.R. § 842.ll(b)(l)(ii)(B)(3) (2017) (“Appropriate action includes enforcement or other action authorized under the State program to cause the violation to be corrected.”). The action DMLR (and by extension, OSMRE) took to address the selenium issue raised by these Plaintiffs is very like the outcome mandated by the court in A&G Coal Corp. The Plaintiffs erroneously cite A&G Coal Corp. for the proposition that “[t]he United States Fourth Circuit Court of Appeals has firmly held that selenium discharges are not shielded Case 2:16-cv-00026-JPJ-PMS Document 17 Filed 06/30/17 Page 9 of 17 Pageid#: 332 -10- by Virginia National Pollutant Discharge Elimination System (“NPDES”) permits that do not explicitly authorize such discharges.” Pls.’ Br. in Supp. of Mot. for Summ. J., ECF No. 13, at 6. That is an overstatement of the Fourth Circuit’s holding in that case. As discussed above, the court ruled that the failure to disclose selenium in the coal company’s NPDES application gives the court the authority to order its NPDES permit to be revised. In the initial action of that case, the district court required the coal company to apply to DMLR for a modification of its Virginia NPDES permit, and, within seven days of the district court’s decision, to perform daily tests for selenium from its discharge points, and to submit the results of those tests on a monthly basis to SAMS and to DMLR. S. Appalachian Mtn. Stewards v. A&G Coal Corp., No. 2:12CV00009, 2013 WL 3814340 at *7 (W.D. Va. July 22, 2013). The coal company was not required to cease its operations until its NPDES permit was modified, and DMLR was not ordered to cite a violation of the Virginia counterpart to the Clean Water Act or to SMCRA for discharging selenium. Id. In this case, neither OSMRE nor DMLR ignored Red River’s failure to have a permit that specifically allows the discharge of selenium. DMLR responded to the complaint it received from these Plaintiffs by saying, among other things, This permit will be subject to renewal this year under 4VAC 25-130-774.15 VCSMRR. The company will be required to address the selenium parameter under the revised NPDES permit format. Monitoring of selenium and other parameters will be required and a compliance schedule may be required if there is a reasonable potential for discharges to cause or contribute to exceedance of stream standards. Rec. at 94. Later, in response to the TDN it received from OSMRE, DMLR provided additional information about what action it would take to cause the violation to be abated: The Division’s response of January 10, 2014, noted that Permit No. 1700624 was subject to renewal this year. The renewal application must be submitted by July 10, 2014, per 4VAC25-130-774.I5 VCSMRR. The Division will require the company to address the selenium and other parameters under the revised NPDES permit format that has been developed Case 2:16-cv-00026-JPJ-PMS Document 17 Filed 06/30/17 Page 10 of 17 Pageid#: 333 -11- in consultation and coordination with the Virginia Department of Environmental Quality and the federal Environmental Protection Agency. Monitoring of selenium and other parameters will be required and a compliance schedule may be required if monitoring indicates there is a reasonable potential for discharges to cause or contribute to exceedance of stream standards. Rec. at 105. The Plaintiffs’ belief that there is a water quality violation is “[b]ased on water quality data collected at an in-stream biological aquatic station and then reported publicly” and is also based upon three individual samples taken in three different years. Rec. at 91. As DMLR explained to OSMRE in response to the TDN, “[t]he referenced data [supplied by the Plaintiffs] is not sufficient to support a violation of the company’s National Pollutant Discharge Elimination System . . . permit limitation or to indicate that the outfall is causing an exceedance of the instream selenium standard.” Rec. at 104; see, also Decl. of Gavin M. Bledsoe, Rec. at 245, ¶ 3. Although the Plaintiffs complain that “there is no evidence in the record even suggesting that Red River could lawfully discharge selenium,” that alleged lack of evidence does not justify a finding that the IBLA’s decision is arbitrary or capricious. Simply put, there is no requirement for that type of evidence to be in the record, especially when the Plaintiffs have not supplied any evidence that there actually is a water quality violation that must be addressed with a state or federal citation. DMLR did undertake an inspection of the water in response to the TDN as noted in the review conducted by Regional Director Shope, and that inspection revealed there was no discharge of selenium. Rec. at 107. The Plaintiffs seek to have this Court ignore that inspection, arguing that both DMLR and OSMRE were unable to legally rely on that data because SAMS was not present for the inspection. Rec. at 167. No precedent, however, exists for the position. OSMRE made a sound interpretation of its own regulations regarding which evidence it is allowed to consider, and properly relied on a valid test. Case 2:16-cv-00026-JPJ-PMS Document 17 Filed 06/30/17 Page 11 of 17 Pageid#: 334 -12- The argument that the IBLA’s decision must be overturned due to the alleged absence of evidence of the legality of discharging any amount of selenium is specious. The evidence in the record supports the IBLA’s decision. Accordingly, pursuant to 30 U.S.C. § 1276(b), the IBLA’s decision should be affirmed by this Court. b. The Secretary Used a Reasoned Decision-Making Process to Determine that SAMS Waived Its Right to Be Notified of Inspections The Plaintiffs argue that a citizen’s ability to initiate inspection and enforcement action in Virginia is somehow so entwined with the federal citizen complaint process set out in 30 C.F.R. §§ 842.12 – 842.16 that, [i]f . . . the citizen elects to first inform the State regulatory authority that a violation exists, the citizen’s statutory option to also inform the Secretary effectively provides the citizen with a Federal administrative appeal if State regulators fail to conduct an inspection or fail to inspect adequately or fail to take enforcement action that the circumstances warrant. Pls.’ Br. in Supp. of Mot. for Summ. J., ECF No. 13, at 9. The Plaintiffs also allege that the IBLA’s decision improperly requires citizens to exhaust state remedies before filing a citizen complaint with OSMRE. Rec. at 302. However, the Plaintiffs have cited no case law in support of either of those propositions, and the case law known to the Defendant indicates that actions taken by the Virginia regulatory authority and actions taken by OSMRE are not entwined in the manner the Plaintiffs suggest. Notwithstanding the fact that SMCRA is enforced through a system of cooperative federalism, the cooperation between OSMRE and the various state regulatory authorities does not create privity between the state and federal agencies. See, e.g., Triple R. Coal Co. v. OSMRE, 126 IBLA 310 (1993); R.C.T. Eng’g, Inc., v. OSMRE, 121 IBLA 142 (1991). Where there is no privity, OSMRE cannot be estopped by the action or inaction of a state regulatory authority, and OSMRE is not necessarily bound by the outcome of the state administrative proceedings. Appolo Fuels, Case 2:16-cv-00026-JPJ-PMS Document 17 Filed 06/30/17 Page 12 of 17 Pageid#: 335 -13- Inc. v. OSMRE, 144 IBLA 142 (1998), aff’d sub nom Appolo Fuels, Inc., v. Babbitt, 270 F.3d 333 (6th Cir. 2001). The cases holding that there is no privity between OSMRE and the state regulatory authorities show that the state and federal agencies are not inter-connected so that “the citizen’s statutory option to [make a complaint to] the Secretary effectively provides the citizen with a Federal administrative appeal” as the Plaintiffs allege. As a matter of law, the state and federal citizen complaint processes are parallel processes, not entwined or inter-connected processes. By conflating the two processes, the Plaintiffs have confused not only the roles of the state and federal departments, but the rights the Plaintiffs may have as a result of each independent process. If the state regulatory authorities were in privity with OSMRE as the Plaintiffs suggest, there would have been no need to alter the ten-day notice process in 1988 by inserting the “good cause” definition into 30 C.F.R. § 842.11. Under the TDN process implemented in 1988, OSMRE will accept a state regulatory authority’s response to a TDN unless OSMRE makes a written determination that the state’s response was arbitrary, capricious, or an abuse of discretion under the state program. 30 C.F.R. § 842.11 (2017). The rules also provide a process by which a state regulatory authority can request informal review of OSMRERE’s written determination that the state response did not constitute appropriate action or show good cause for such failure. Due to this lack of privity, the Plaintiffs cannot claim that they had a right to be present on March 20, 2014, when representatives of DMLR took a water sample to demonstrate to OSMRE that discharges of selenium in concentrations that exceeded state water quality standards were not occurring. The IBLA explained that the state proceedings and the federal proceedings are separate and distinct: The sampling performed on March 20, 2014, was not part of the State inspection requested by SAMS because its request was denied on January Case 2:16-cv-00026-JPJ-PMS Document 17 Filed 06/30/17 Page 13 of 17 Pageid#: 336 -14- 10, 2014. When it failed timely to seek review of that denial under 4 VAC 25-130-842-15, the State inspection process was at an end and any inchoate rights SAMS may have had under 4 VAC 25-130-842-12(c) to notice and an opportunity to participate in a State inspection were also at an end. SAMS identified the denial of its request for a State inspection in its request for a Federal inspection, but in doing so did not resurrect any rights SAMS may have had under 4 VAC 25-130-842-12(c). Rec. at 218. Plaintiffs assert they were entitled to be present on March 20, 2014, when DMLR sampled the water in response to the TDN because “filing a citizen’s inspection request with OSM is tantamount to filing directly with State regulators . . ..” Pls.’ Br. in Supp. of Mot. for Summ. J., ECF No. 13, at 22. To that theory they add, “[t]he law explicitly states that the standard is whether ‘information provided’ by any person ‘results in any inspection’ . . .. There is no question that DMLR’s inspection resulted from information provided by SAMS.” Id. Again, this is specious reasoning. OSMRE submitted SAMS’ information to DMLR through a TDN. SAMS started a separate process when it complained to OSMRE. It was not a continuation of the process that SAMS started when it complained to DMLR. The Plaintiffs have cited no case law that supports their theory. Further, during the informal review of the original OSMRE decision, OSMRE’s Regional Director Shope reviewed DMLR’s actions, and provided a detailed interpretation of the applicable regulations and SAMS evidence. Rec. at 103-09. In other words, he made a well-reasoned decision, based on an interpretation of his agency’s regulations. Accordingly, his decision is supported by substantial evidence in the record, and is not arbitrary or capricious. Case 2:16-cv-00026-JPJ-PMS Document 17 Filed 06/30/17 Page 14 of 17 Pageid#: 337 -15- c. The Secretary’s Harmless Typographical Error Does Not Render His Decision Arbitrary and Capricious. The Plaintiffs make much of a minor typographical error in the IBLA’s decision.4 They seem to focus on the small portion of the decision which says, based on the DMLR samples taken on March 20, 2014, indicating there was no violation of the acute State selenium standard, the Regional Director decided that DMLR’s initial response, when augmented by these results, was not arbitrary, capricious, or an abuse of discretion. Rec. at 128, emphasis added. The IBLA indicated it is referencing information the informal review conducted by Regional Director Shope, as discussed above. Particularly, the IBLA relied on Shope’s statement that: the DMLR indicated in its March 31st request for informal review that on March 20, 2014, it took water samples above, at and below the sedimentation pond’s outfall which it will analyze for selenium. This sampling was conducted to, in the DMLR’s words, “determine if there is the potential for this permit to cause or contribute to an exceedance of the State selenium standard and determine what measures the company will oeed to take.” The sampling results reported by DMLR in its April 17th letter indicated that no violation of the Virginia program is occurring with regard to selenium discharges from outfall 001. As such, the sampling indicates that there is no violation of the Virginia approved program with regard to selenium. Rec. at 107. Clearly, Shope’s statement that “there is no violation of the Virginia approved program with regard to selenium” was not limited to the acute standards. The apparent limitation placed upon Shope’s reasoning by the IBLA is harmless error. At the worst, it is a “decision [of] less than ideal clarity,” but one that must be upheld because “. . . the agency’s path may reasonably be discerned.” Alaska Dep’t. of Envtl. Cons., 540 U.S. at 49. Notwithstanding the Plaintiffs’ 4 The IBLA’s decision admittedly does not go into a lengthy discussion of the acute or chronic standards, and references only the acute standard at one point when it discusses the Regional Director’s findings. Both the acute and the chronic standards for Virginia, however, are explained. Rec. at 213, n.8, The standard for an “acutely toxic” level of selenium is ≥ 20 μgram/liter. The standard for a “chronically toxic” level of selenium is ≥ 5 μgram/liter. Case 2:16-cv-00026-JPJ-PMS Document 17 Filed 06/30/17 Page 15 of 17 Pageid#: 338 -16- assertions to the contrary, the IBLA did address the chronic standard for selenium discharges. It said, As for the argument that Red River’s selenium discharges are causing a violation of Virginia’s chronic aquatic life water quality standard, that argument is not supported in the [administrative record]. The fact of the matter is, SAMS cannot rely on the annual selenium samples reported in the public record . . . to support this argument. In order to support the contention that Red River is violating the Commonwealth’s “chronic” water quality standards, at a minimum SAMS would have to submit data from four samples taken on four successive days and averaged. 9VAC25-260- 140, note 2 (selenium is one of many pollutants which require samples with a “[f]our-day average concentration not to be exceeded more than once every 3 years on the average, unless otherwise noted.”) Rec. at 152. By arguing that the “Secretary arbitrarily failed to address the requested investigation Red River’s alleged violations of Virginia’s chronic water quality standard for selenium,” the Plaintiffs are again asking this Court to ignore aspects of the ten-day notice process. OSMRE was not required to make the “requested investigation” unless the Plaintiffs’ information gave OSMRE’s “authorized representative reason to believe that a violation, condition or practice referred to in §842.11(b)(1)(i) exists . . ..” 30 C.F.R. § 842.12(a) (2017). Regional Director Shope determined that the Plaintiffs’ information did not provide the requisite reason to believe that a violation exists, and the IBLA agreed with that determination. IV. Conclusion The Court can find from the administrative record considered as a whole that the IBLA decision is supported by substantial evidence, and was not “arbitrary, capricious, or otherwise inconsistent with law.” Accordingly, the Defendant respectfully requests that that Court deny the Plaintiffs’ summary judgment motion and grant the Defendant’s counter-motion for summary judgment. Case 2:16-cv-00026-JPJ-PMS Document 17 Filed 06/30/17 Page 16 of 17 Pageid#: 339 -17- Respectfully Submitted, RICK A. MOUNTCASTLE Acting United States Attorney Date: June 30, 2017 /s/ Sara Bugbee Winn Sara Bugbee Winn Assistant United States Attorney Virginia State Bar No. 35924 Tom Morris Third Year Practice Law Clerk United States Attorney’s Office P.O. Box 709 Roanoke, VA 24011 Telephone: (540) 857-2250 Facsimile: (540) 857-2283 E-mail: sara.winn@usdoj.gov OF COUNSEL: John Austin Field Solicitor Leta Hollon Attorney-Advisor U.S. Department of the Interior Office of the Solicitor 800 S. Gay Street, Suite 800 Knoxville, TN 37929 Telephone: (865) 545-4955 Email: john.austin@sol.doi.gov E-mail: leta.hollon@sol.doi.gov CERTIFICATE OF SERVICE I hereby certify that on June 30, 2017, I caused the foregoing document to be filed with the Clerk of this Court using the CM/ECF system which will provide electronic notice to all counsel of record. /s/ Sara Bugbee Winn Sara Bugbee Winn Assistant United States Attorney Case 2:16-cv-00026-JPJ-PMS Document 17 Filed 06/30/17 Page 17 of 17 Pageid#: 340