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In re In re Permanent Surface Mining Regulation Litig.

Citation: 10 ELR 20208
No. No. 79-1144, 14 ERC 1083/(D.D.C., 02/26/1980) Regulations upheld on merits in part

The court rules that the Secretary of the Interior has broad authority to issue permanent regulations implementing the Surface Mining Control and Reclamation Act but remands a number of regulatory provisions for revision as arbitrary, capricious, or otherwise inconsistent with the law, pursuant to the standard of review prescribed by § 526(a)(1) of the Act. Relying upon express statutory language and the legislative history, the court finds that the Secretary may require state programs to be consistent with the substance of the federal regulations as well as the Act. At issue were summary judgment motions raising more than 100 specific challenges to the final stripmining regulations, half of which were ruled upon in this decision, as well as the claim that in their entirely the regulations exceed the Secretary's authority under the Act. The Secretary's regulations should thus be viewed as constituting minimum standards for state programs. In addition, the court upholds the "state window" and citizen suit provisions of the regulations but remands the requirement for a state point system for civil penalties as inconsistent with § 518 of the Act. The court validates most of the provisions regarding areas unsuitable for mining, rejecting challenges based on Fifth Amendment takings grounds. The court sustains most of the permitting regulations but rejects use of the term "mine plan area," referring to areas outside the permit boundary, in the context of certain informational requirements, on the ground that it does not appear in the Act. The court also upholds in part regulatory provisions dealing with bonding, alluvial valley floors, and performance standards. It further upholds those portions of the regulations which allow warrantless inspections and which discourage trials de novo following administrative enforcement proceedings. Finally, the court sustains the provision restricting the availability of variances from the land restoration requirement to mining on steep slopes.

Counsel for Environmental Plaintiffs
L. Thomas Galloway
Center for Law and Social Policy
1751 N St. NW, Washington DC 20036
(202) 872-0670

Jonathan Lash
Natural Resources Defense Council, Inc.
1725 I St. NW, Washington DC 20006
(202) 223-8210

Counsel for Industry Plaintiffs
Steven L. Friedman
Dilworth, Paxson, Kalish, Levy & Kauffman
2600 Fidelity Bldg., Philadelphia PA 19109
(215) 546-3000

Thomas G. Johnson Jr., Senior Counsel
Shell Oil Co.
1 Shell Oil Plaza, P.O. Box 2463, Houston TX 77001
(713) 241-6161

Guy Nevill
Legal Dep't, Dow Chemical USA
Houston Dow Center, P.O. Box 3387, Houston TX 77001
(713) 978-2971

I. Michael Greenberger
Shea & Gardner
1800 Massachusetts Ave. NW, Washington DC 20036
(202) 828-2000

Robert W. Jordan
Rain, Harrell, Emery, Young & Doke
4200 Republic Nat'l Bank Tower, Dallas TX 75201
(214) 742-1021

John Macleod
Crowell & Moring
1100 Connecticut Ave. NW, Washington DC 20036
(202) 452-5823

Counsel for Plaintiff Commonwealth of Virginia
Roger L. Chaffe, Ass't Attorney General
Supreme Court Bldg., Richmond VA 23219
(804) 786-2071

Counsel for Plaintiff State of Illinois
Harvey M. Sheldon
Nisen, Elliott & Meier
Suite 2300, One N. LaSalle St., Chicago IL 60602
(312) 346-7800

Counsel for Defendant Federal Government
Lois J. Schiffer, Alfred T. Ghiorzi, Carol Lynn Green
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2704

Robert Uram, Associate Solicitor
Office of Surface Mining
Department of the Interior, Washington DC 20240
(202) 343-4671