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Union Carbide Corp. v. Andrus

Citation: 9 ELR 20701
No. Nos. 79-2142, -2163, 13 ERC 1481/(S.D. W. Va., 07/17/1979)

Granting defendants' motions to dismiss for failure to state a claim and for lack of jurisdiction, the court upholds enforcement actions taken by the Interior Department's Office of Surface Mining Reclamation and Enforcement (OSM) pursuant to the interim regulatory program under the Surface Mining Control and Reclamation Act, ELR STAT. & REG. 42401. Plaintiffs first argued that OSM is required by § 521(a)(1) of the Act to notify the state prior to commencement of a federal enforcement action. The court finds, however, that the notification requirement does nto apply in the interim phase of the regulatory program. The court further finds that review of such a claim in any event lies in the federal district court in the District of Columbia, pursuant to § 526(a)(1). Second, the court rules that enforcement during the interim program is not confined to the precise terms of § 521, and plaintiffs, though not "permittees" under the statutory definition, are nonetheless subject to the interim regulations. The court defers the motion to dismiss this portion of the complaint, however, to give plaintiffs an opportunity to amend it by raising constitutional issues. Third, the court holds that OSM's determination that West Virginia's regulations comply with the initial federal regulatory program does not estop defendants from enforcing the interim program in West Virginia. Estoppal is unwarranted because there has been no detrimental reliance and because there can be no waiver of the Interior Secretary's enforcement authority. Finally, the court grants summary judgment against plaintiffs' claim that their operators are exempt from the interim program because they are on lands on which operations were not regulated by the state at the time the Act was passed. West Virginia subsequently adopted regulations for the lands in question, and given the broad policy of environmental protection underlying the Act, the court concludes that regulation under the Act was not limited to lands regulated by the state at the date of enactment.

Counsel for Plaintiffs
Gregory R. Gorrell
Jackson, Kelly, Holt & O'Farrell
P.O. Box 553, Charleston WV 25322
(304) 345-2000

Counsel for Defendants
Rebecca A. Betts, Ass't U.S. Attorney
P.O. Box 3234, Charleston WV 25332
(304) 345-2200

John Woodrum, Mayre Wright, Mark McGraw
Office of the Solicitor, Region I
Office of Surface Mining, Department of the Interior
950 E. Kanawaha Blvd., Charleston WV 25301
(304) 343-8928

Alfred P. Ghiorzi
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2738