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In re In re Surface Mining Regulation Litig.

Citation: 8 ELR 20407
No. No. 78-0162, 452 F. Supp. 327/11 ERC 1593/(D.D.C., 05/03/1978)

The court upholds most provisions of the interim regulations promulgated by the Department of the Interior pursuant to the Surface Mining Control and Reclamation Act of 1977. A number of coal companies moved for summary judgment on their requests for preliminary and permanent injunctions against enforcement of the regulations on the grounds that certain portions of the regulations are arbitrary, capricious, and inconsistent with the law. Several environmental and public interest organizations challenged two subsections of the regulations allowing limited variances. The federal defendants argued that the need for a preliminary injunction would arise only if the court were unable to decide the merits prior to the May 3, 1978 effective date of the regulations. The court denies all plaintiffs' motions except as follows: regulations dealing with preexisting, nonconforming structures and facilities, the scope of the prime farmlands grandfather exemption, and waste impoundments are remanded to the Secretary of the Interior for reconsideration; regulations dealing with sedimentation ponds are enjoined until the Secretary responds to industrial plaintiffs' objections and the court reviews the merits; and regulations dealing with effluent limitations are enjoined to the extent they conflict with provisions of the Federal Water Pollution Control Act. The court also denies industrial plaintiffs' procedural challenge to the adequacy of the basis and purpose statement of the regulations.

For a discussion of the interim regulations, see Williams, A Step-by-Step Analysis of the Interim Federal Surface Mining Program, 8 ELR 50001 (Mar. 1978). For digests of the memoranda filed in this suit, see Surface Mining Regulation Litigation, ELR PEND. LIT. 65557.

A partial listing of counsel follows:

Counsel for Industrial Plaintiffs
Robert B. Owen, Robert N. Sayler, Theodore Voorhees, Jr., Robert J. Cage
Covington & Burling
888 16th St. NW, Washington DC 20006
(202) 452-6000

Robert G. Kelly, Sr.
Jackson, Kelly, Holt & O'Farrell
P.O. Box 553, Charleston WV 25322
(304) 345-2000

Richard McMillan, Jr., John A. MacLeod
Jones, Day, Reavis & Pogue
1100 Connecticut Ave. NW, Washington DC 20036
(202) 452-5800

Warner W. Gardner, I. Michael Greenberger, Kent L. Jones
Shea & Gardner
734 15th St. NW, Washington DC 20005
(202) 737-1255

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

Counsel for Defendants
alfred T. Ghiorzi
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 739-5037

William Eichbaum, Assoc. Solicitor; Jerry Dodson
Office of Surface Mining
Department of the Interior, Washington DC 20240
(202) 343-4671