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West Virginia Mining & Reclamation Ass'n v. Babbitt

ELR Citation: 28 ELR 20079
Nos. 2:96-0371, 970 F. Supp. 506/(S.D. W. Va., 07/11/1997)

A district court holds that the Office of Surface Mining Reclamation and Enforcement (OSM) was not arbitrary, capricious, or otherwise legally inconsistent when it disapproved an amendment to West Virginia's Surface Mining Control and Reclamation Act (SMCRA) regulatory program. The amendment would allow the release of reclamation bonds, which secured SMCRA and state permit conformance, where passive treatment systems are used to treat acid mine drainage (AMD). The court first holds that Congress was at the very least ambiguous as to whether bond may be finally released if treatment of AMD remains necessary. The only certainty one can gather from SMCRA's adoption is that it was a compromise bill, with many competing considerations left for OSM and the courts. Having reached this conclusion, the court disposes of the coal mining trade association's argument that OSM's disapproval of the proposed amendment is contrary to the express provisions of SMCRA. The court next holds that OSM's position is based on a permissible construction of SMCRA. OSM's interpretation acts to internalize the costs of mining with the operator, and it comports with the goal of preventing AMD during the permitting and operating stages. Therefore, the court holds that it will defer to OSM's interpretation. OSM struck a reasonable balance in the face of congressional ambiguities and difficult, conflicting policy considerations. The court does not disagree that SMCRA endorses treatment as a method of lessening the effects of AMD. However, an operator's release from bond when AMD may remain necessary is a different matter.

Next, the court rejects the trade association's argument that the OSM acted inconsistently with its own regulations. OSM's interpretation is neither plainly erroneous nor inconsistent with the regulations cited by the trade association. The court also rejects the trade association's argument that OSM's interpretation is inconsistent with the Federal Water Pollution Control Act. Regulating effluent discharges and setting reasonable conditions for bond release are two separate considerations, and OSM does nothing to alter the effluent limitations. Further, the trade association failed to demonstrate that the no-treatment requirement imposes an arbitrary and prohibitively expensive standard that may be impossible to achieve.

Counsel for Plaintiffs
Charles Q. Gage
Jackson & Kelly
1600 Laidley Tower
P.O. Box 553, Charleston WV 25322
(304) 340-1000

Counsel for Defendants
Rebecca A. Betts, U.S. Attorney
3201 Federal Bldg.
500 Quarrier St., Charleston WV 25301
(304) 345-2200