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In re In re Permanent Surface Mining Regulation Litig.

ELR Citation: 14 ELR 20617
Nos. No. 79-1144, 21 ERC 1193/(D.D.C., 07/06/1984) Regulations set aside in part

The court remands in part revised regulations promulgated under the Surface Mining Control and Reclamation Act (SMCRA). The court first notes that SMCRA §526 calls for the court to uphold the regulations unless arbitrary, capricious, or otherwise inconsistent with law. Where, as here, the regulations represent a change of policy, the agency must state permissible reasons for the change.

The court next addresses challenges to regulations governing mining on federal lands. It holds that the government's new definition of "mining plans," as used in SMCRA §523(c), is inconsistent with the statute, as it delegates to the state the Secretary of the Interior's duty to review reclamation plans for mining on federal lands. The court also strikes the new, more restrictive definition of fedral lands in the regulations. The Secretary did not adequately set out reasons for the change of definition, and the new definition contradicts the statutory definition of surface mining.

The court next considers challenges to regulations dealing with coal processing and support facilities. Concerning off-site coal processing, the court reiterates a prior holding that SMCRA regulates off-site facilities and processing plants. The Secretary's regulations, which would regulate loading, crushing, sizing, and similar activities only if done at or near the mine site are contrary to the court's prior interpretation of SMCRA §701(28)(A). The words "in situ" in that section, which the Secretary took to limit his power to regulate physical processing activities, should be read to apply only to "distillation or retorting." Concerning support facilities, the court first upholds the regulations' applicability to railroads that meet the definition of support facility. The industry challenge to the regulation requiring approval from affected utility owners is untimely, since the regulation is essentially identical to its predecessor, which went unchallenged. Even so, the challenge is without merit, since the Secretary has jurisdiction to protect utility facilities within the permit area. However, the court strikes the part of the regulations that requires facilities to be physically close to the mine to qualify as "support facilities," ruling that the statute establishes a test of functional, not geographic, relationship. The court rejects an environmentalist challenge that the support facility regulations are legally deficient for failing to set minimum standards for support facilities, holding that SMCRA does not require the Secretary to impose specific performance standards and design criteria.

Turning to the auger mining regulations, the court upholds the regulations' limited exception for backfilling and grading of preexisting highwalls, holding that the Act does not expressly call for reclamation of existing highwalls, and that the Secretary adequately justified the exception. The court also upholds the new barrier pillar standards. Though less specific than the old standards, they are consistent with the Act, and their promulgation was not arbitrary or capricious. Also valid is the Secretary's interpretation of the auger mining regulations to allow him to weigh a miner's economic circumstances in deciding whether auger mining would maximize utilization of the coal resource.

Finally, the court reiterates a previous holding that nothing in SMCRA empowers the Secretary to regulate the non-erosional aspects of air quality.

The court issues an order dismissing seven issues that parties agree are not in dispute, remands to the Secretary 30 C.F.R. §§700.5 (surface coal mining operation) and 701.5 (coal preparation and coal processing) and grants summary judgment to the government on all other matters.

[Related cases appear at 9 ELR 20720, 10 ELR 20113, 20208, 20526, 11 ELR 20941 — Ed.]

Counsel for Plaintiffs
Norman L. Dean Jr., Thomas K. Bick
National Wildlife Federation
1412 16th St. NW, Washington DC 20036
(202) 797-6817

L. Thomas Galloway
Galloway & Greenberg
1725 I St. NW, Washington DC 20006
(202) 833-9084

Counsel for Defendants
Alfred T. Ghiorzi
General Litigation Section
Department of Justice, Washington DC 20530
(202) 633-2306

Milo Mason
Office of the Solicitor
Department of the Interior, Washington DC 20240
(202) 343-9175

Counsel for Defendant-Intervenors
John A. Macleod
Crowell and Moring
1100 Connecticut Ave. NW, Washington DC 20036
(202) 452-5800

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