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Leber v. Pennsylvania Dep't of Envtl. Resources

ELR Citation: 16 ELR 20256
Nos. No. 85-5166, 780 F.2d 372/(3d Cir., 01/06/1986)

The court holds that a state agency is not a person within the meaning of the Surface Mining Control and Reclamation Act's (SMCRA's) employee protection provision, §703. After initially ruling that it has subject matter jurisdiction over the action, the court analyzes the relevant statutory language. Section 703 prohibits any person from taking retaliatory action against an employee, but states and state agencies are not included in SMCRA's definition of "person" in §701(19). This omission was not inadvertent, since §701(24)-(26) define "State," "State program," and "State regulatory authority." The court rules that an amended SMCRA regulation that expanded the definition of person in 1979 to include states and state agencies in certain circumstances involving SMCRA's substantive performance requirements does not include them as employers. Although a proposed limitation to the regulation would have defined as persons only those government agencies proposing to conduct surface mining operations, the deletion of this limitation before the regulation became final does not support plaintiff's argument that the amended regulation includes state agencies as employers. Contemporaneous comments by the Office of Surface Mining (OSM) and a court-requested submission by government counsel indicate that OSM's intent in the expanded definition was to permit the involvement of various governmental agencies in actions relating to permits and designations. Moreover, in its review of this case, the Interior Board of Land Appeals, which is the ultimate administrative reviewing authority for SMCRA actions, found that the statutory definition of person did not include state agencies and that the expanded regulatory definition was limited. The court observes that judicial deference to agency interpretation is particularly relevant when it was the agency's action in amending the regulation that formed the basis for plaintiff's interpretation of "person." The court declines to remand to allow plaintiff to present proof of DER's participation in surface mining since it has concluded that whether or not DER engages in surface mining is irrelevant to its ruling.

Counsel for Appellant
Lee R. Golden, Robert P. Ging Jr.
430 Blvd. of the Allies, 3rd Fl., Pittsburgh PA 15219
(412) 471-3900

Counsel for Appellees
William F. Larkin, Ass't Counsel
1303 Highland Bldg., 121 S. Highland Ave., Pittsburgh PA 15206

David C. Shilton
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5580

Before Higginbotham and Mansmann, JJ.