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Virginia Citizens for Better Reclamation v. Watt

Citation: 14 ELR 20679
No. No. 83-1828, 735 F.2d 1359/20 ERC 2235/(4th Cir., 06/19/1984)

The court affirms in part and reverses in part a district court decision upholding the Secretary of the Interior's approval of Virginia's permanent regulatory program under the Surface Mining Control and Reclamation Act (SMCRA). Initially, the court notes that to pass SMCRA's arbitrary and capricious standard of judicial review, the Secretary's approval will have to be supported by a reasoned explanation to the extent that it reverses prior agency policy under which similar provisions of the Virginia program were rejected. The court upholds the approval of Virginia's inspection staffing program, ruling that any change in the agency's previous position was adequately explained. The Secretary had initially rejected the program because of lack of information on staffing needs. Virginia has since demonstrated that it has enough personnel to conduct the requisite monthly inspections of all mines in the commonwealth. As a result, appellant's challenge to the commonwealth's criteria for exempting mines from the inspection requirement was irrelevant to the staffing question. The court holds that the Secretary properly upheld the commonwealth's requirement for use of subsoil for reclamation. The Secretary did not depart from the approval criteria used by his predecessor, and the Department of the Interior (DOI) regulations under which the Virginia subsoil requirement was upheld are consistent with the statutory requirement that only the best available subsoil be used as a substitute for topsoil in reclamation. The court next rules that appellant's challenge to Virginia's failure to require sedimentation ponds for water pollution control is moot since DOI had promulgated new regulations authorizing the type of controls required by the commonwealth. In addition, the court upholds the Secretary's approval of Virginia's limited provision for discovery in administrative proceedings, because the Secretary rationally concluded that the commonwealth procedures were as effective as the more extensive federal discovery requirements.

Next, the court rules that the Secretary improperly approved Virginia's program for protecting groundwater. The commonwealth program, which protects only groundwater actually in use, was not as stringent as the federal regulatory requirements, which mandate protection of "usable" groundwater. The record presents no rational basis for finding the commonwealth requirement as stringent as DOI's. In a footnote, the court holds that appellant's challenge to the commonwealth's failure to require provision of alternative water supplies whenever a mine has an adverse effect on groundwater supplies is not properly before the court, because it was not raised below. It further notes that the commonwealth provision is consistent with the Act in any event. The court holds that the Secretary improperly approved a commonwealth provision allowing cross-examination of nonexpert witnesses at hearings on designation of lands as unsuitable for mining. The federal regulations do not allow such broad cross-examination, and the Secretary's approval was an unexplained reversal of a final action taken by his predecessor on this issue. The court agrees with appellant that SMCRA § 510(c) requires applicants for surface mining permits to list notices of violation of all air and water pollution laws, not just notices issued under SMCRA § 521(a). It rules that the Secretary erred in concluding that the Virginia provision was "in accordance with" SMCRA, since a state law meets this test only if it is as stringent as, meets the minimum requirements of, and includes all applicable provisions of SMCRA. The Secretary's approval of the provision, based on the conclusion that the commonwealth law was as stringent as SMCRA, ignored the fact that the provision lacked the federal requirement for listing all notices of violation. Finally, the court rules that the Secretary erred in concluding that Virginia's plan for inspection of inactive and abandoned mining sites is as stringent as federal regulations. The former requires semiannual inspections of inactive sites, the latter quarterly inspections.

Counsel for Appellant
Suellen T. Keiner
Environmental Policy Institute
218 D St. SE, Washington DC 20003
(202) 544-2600

Counsel for Appellees
Claire L. McGuire, Robert L. Klarquist, Alfred T. Ghiorzi
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2855

Debra J. Prillaman, Ass't U.S. Attorney
P.O. Box 1257, Richmond VA 23210
(804) 771-2186

Stuart Sanderson
Office of the Solicitor
Department of the Interior, 18th & C Sts. NW, Washington DC 20240
(202) 343-4671

Before Winter, Sprouse, and Peck,* JJ.