10 ELR 20208 | Environmental Law Reporter | copyright © 1980 | All rights reserved

In re Permanent Surface Mining Regulation Litigation

No. 79-1144 (D.D.C. February 26, 1980)

The court rules that the Secretary of the Interior has broad authority to issue permanent regulations implementing the Surface Mining Control and Reclamation Act but remands a number of regulatory provisions for revision as arbitrary, capricious, or otherwise inconsistent with the law, pursuant to the standard of review prescribed by § 526(a)(1) of the Act. Relying upon express statutory language and the legislative history, the court finds that the Secretary may require state programs to be consistent with the substance of the federal regulations as well as the Act. At issue were summary judgment motions raising more than 100 specific challenges to the final stripmining regulations, half of which were ruled upon in this decision, as well as the claim that in their entirely the regulations exceed the Secretary's authority under the Act. The Secretary's regulations should thus be viewed as constituting minimum standards for state programs. In addition, the court upholds the "state window" and citizen suit provisions of the regulations but remands the requirement for a state point system for civil penalties as inconsistent with § 518 of the Act. The court validates most of the provisions regarding areas unsuitable for mining, rejecting challenges based on Fifth Amendment takings grounds. The court sustains most of the permitting regulations but rejects use of the term "mine plan area," referring to areas outside the permit boundary, in the context of certain informational requirements, on the ground that it does not appear in the Act. The court also upholds in part regulatory provisions dealing with bonding, alluvial valley floors, and performance standards. It further upholds those portions of the regulations which allow warrantless inspections and which discourage trials de novo following administrative enforcement proceedings. Finally, the court sustains the provision restricting the availability of variances from the land restoration requirement to mining on steep slopes.

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

Jonathan Lash
Natural Resources Defense Council, Inc.
1725 I St. NW, Washington DC 20006
(202) 223-8210

Counsel for Industry Plaintiffs
Steven L. Friedman
Dilworth, Paxson, Kalish, Levy & Kauffman
2600 Fidelity Bldg., Philadelphia PA 19109
(215) 546-3000

Thomas G. Johnson Jr., Senior Counsel
Shell Oil Co.
1 Shell Oil Plaza, P.O. Box 2463, Houston TX 77001
(713) 241-6161

Guy Nevill
Legal Dep't, Dow Chemical USA
Houston Dow Center, P.O. Box 3387, Houston TX 77001
(713) 978-2971

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

Robert W. Jordan
Rain, Harrell, Emery, Young & Doke
4200 Republic Nat'l Bank Tower, Dallas TX 75201
(214) 742-1021

John Macleod
Crowell & Moring
1100 Connecticut Ave. NW, Washington DC 20036
(202) 452-5823

Counsel for Plaintiff Commonwealth of Virginia
Roger L. Chaffe, Ass't Attorney General
Supreme Court Bldg., Richmond VA 23219
(804) 786-2071

Counsel for Plaintiff State of Illinois
Harvey M. Sheldon
Nisen, Elliott & Meier
Suite 2300, One N. LaSalle St., Chicago IL 60602
(312) 346-7800

Counsel for Defendant Federal Government
Lois J. Schiffer, Alfred T. Ghiorzi, Carol Lynn Green
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2704

Robert Uram, Associate Solicitor
Office of Surface Mining
Department of the Interior, Washington DC 20240
(202) 343-4671

[10 ELR 20209]

Flannery, J.:


This complex case finds its nascency in the Surface Mining Control and Reclamation Act of 1977 ("The Act; SMCRA"). The Act required the Secretary of Interior to develop first interim and later permanent regulations to govern the surface mining of coal in the United States. The interim regulatory program became effective in early 1978. In re Surface Mining Regulation Litigation, 452 F. Supp. 327, 331 [8 ELR 20407] (D.D.C. 1978). The Secretary released the final regulations on March 13, 1979. Presently before the court are summary judgment motions challenging aspects of the permanent regulations.

The Act provides that challenges to the Secretary's regulations must be filed within 60 days of their release in the United States District Court for the District of Columbia. Section 526(a)(1) of the Act, 30 U.S.C. § 1276(a)(1). Various plaintiffs filed nine complaints challenging the Secretary's permanent regulatory program. The court consolidated the actions.

Recognizing that the consolidated action raises approximately 100 challenges to the Secretary's regulations, the court instituted a split summary judgment briefing schedule. This opinion1 addresses issues raised at the November 16, 1979 hearing and in the first round of briefs. A subsequent opinion will address issues raised in the second round briefs and at the January 18, 1980 hearing.

The six plaintiffs' briefs2 submitted in this round challenge the power of the Secretary of promulgate regulations under the SMCRA. They also challenge approximately 50 regulations. This opinion upholds the broad power of the Secretary to issue regulations pursuant to the Act. The court does, however, remand various regulations for arbitrariness, capricious, or inconsistency with law.

Standard of Review

The standard of review incumbent upon this court is not in dispute. Section 526(a)(1) of the Act, 30 U.S.C. § 1276(a)(1), enunciates the standard. It expressly provides that "[a]ny action subject to judicial review under this subsection shall be affirmed unless the court concludes that such action is arbitrary, capricious, or otherwise inconsistent with law." This standard is highly deferential and generally presumes the validity of the agency action. Ethyl Corp. v. EPA, 541 F.2d 1, 34 [6 ELR 20267] (D.C. Cir.), cert. denied, 426 U.S. 941 (1976).

Despite this deference, the court must avoid rubber stamping the agency's regulations. Id. Instead, the court should search for, and find, a rational basis before upholding the agency's actions. Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 290 (1974); Ethyl Corp., supra, 541 F.2d at 28.

I. State Program

The states play a major role in the implementation of the Surface Mining Control and Reclamation Act. Section 503(a) of the Act, 30 U.S.C. § 1253(a), permits each state to assume exclusive jurisdiction over surface coal mining regulation. To achieve jurisdictional control, a state must submit a regulatory program to the Secretary of Interior ("the Secretary"), and, further, receive approval of the program within six months of its submission. Section 503(b) of the Act, 30 U.S.C. § 1253(b). If a state fails to submit a program, or the state program is disapproved, then the federal regulations govern surface coal mining operations for the state.3 Section 504(a) of the Act, 30 U.S.C. § 1254(a).

A. Secretary's Power to Establish Regulations

Approval of a state program depends, inter alia, upon the states' demonstration that its program is no less stringent than the [10 ELR 20210] requirements set forth in the Act and in the Secretary's regulations. The stringency requirement emanates from 30 C.F.R. § 730.5, 44 Fed. Reg. 15324 (1979). This regulation makes clear that the terms "consistent with" and "in accordance with" mean:

(a) With regard to the Act, the State laws and regulations are no less stringent than, meet the minimum requirements of and include all applicable provisions of the Act.

(b) With regard to the Secretary's regulations, the State laws and regulations are no less stringent than and meet the applicable provisions of the regulations of this Chapter.

The consistency requirement of 30 C.F.R. § 730.5 forms the basis for a broad attack on the Secretary's regulations advanced by the State of Illinois. Illinois believes that a state program should not have to meet the substantive requirements of the Secretary's regulations. Instead, according to Illinois, a state program need only demonstrate consistency with the requirements of the Act. Although this attack appears centered upon substantive performance standards;4 Illinois extends the argument to encompass the entire package of regulations promulgated by the Secretary pursuant to the Act.5

Illinois raises several objections to conformity with the Secretary's regulations. These objections boil down to a twofold argument: (1) the Secretary lacks a statutory basis to require state program consistency with the permanent regulations; and (2) therefore, 30 C.F.R. § 730.5, defining consistency as no less stringent than, is arbitrary and inconsistent with the Act.

Contrary to the Illinois argument, the court finds that the Act contains several unequivocal grants of rulemaking authority vested in the Secretary of Interior. Perhaps the most authoritative source for determining whether a state program must meet the requirements of the Secretary's regulations is the statutory definition of a state program. Section 701(25) of the Act, 30 U.S.C. § 1291(25), defines a state program as "in accord with the requirements of this Act and regulations issued by the Secretary pursuant to this Act . . . ." (emphasis added) In addition, § 503(a)(7) of the Act, 30 U.S.C. § 1253(a)(7), requires that a state program demonstrate a capability for carrying out "rules and regulations consistent with regulations issued by the Secretary pursuant to this Act."6 These statutory sections clearly empower the Secretary to condition approval of a state program upon its consistency with the Secretary's regulations.

Moreover, § 201(c)(2) of the Act, 30 U.S.C. § 1211(c)(2), provides that "The Secretary, acting through the Office, shall publish and promulgate such rules and regulations as may be necessary to carry out the purposes and provisions of the Act." An agency's regulations may cover items not specifically delineated in a statute so long as the regulations conform to an act's purposes and policies. Public Service Commission of State of New York v. Federal Power Commission, 327 F.2d 893, 897 (D.C. Cir. 1964); see Permian Basin Area Rate Cases, 390 U.S. 747, 780 (1968); American Trucking Associations v. United States, 344 U.S. 298 (1953).

Sections 201(c)(2), 503(a)(7), and 701(25) provide ample support for requiring the state regulatory program to meet the substantive and procedural criteria of the Secretary's regulations. Illinois attempts to deflate these statutory grants of rulemaking authority by directing the court's attention to § 501(b) of the Act, 30 U.S.C. § 1251(b). It argues that § 501(b) allows the Secretary to establish only procedural regulations with respect to state programs.It is true that this section first refers to a "permanent regulatory procedure." But it goes on to state that the Secretary's regulations should also cover "procedures and requirements for preparation, submission, and approval of State programs." The conjunctive use of the word "and" between these two phrases suggests that Congress intended the Secretary to develop both procedural and substantive regulations governing state program submission and approval.

To the extent the statute is capable of duplicative interpretations regarding consistency with the Secretary's regulations, the legislative history settles this controversy. It clearly dictates the Secretary's rulemaking authority to cover minimum standards for state programs. The House Report states:

The committee is mindful of the past failures on the State level and thus bases it [sic] approval of H.R. 25 on the expectation that Federal regulations promulgated under the Act will fully implement the environmental performance standards. Obviously, the mere reproduction of the statutory environmental performance standards in the regulations would be inadequate. (emphasis in original)

H.R. REP. NO. 94-896, 94th Cong., 2d Sess. 34 (1976). The House unquestionably intended state programs to incorporate, and be consistent with, more than merely the Act's requirements. The full reach of the Secretary's regulatory guidance is enunciated in the House report of the next session. It states that the Secretary may "promulgate regulations covering the full regulatory program including technical requirements, permit processor [sic], and procedures for submission of State programs." H.R. REP. NO. 95-218, 95th Cong., 1st Sess. 62 (1977). This view is confirmed by the Conference Committee Report:

An approved State program requires (1) a State law consistent with the Federal law and (2) State rules and regulations consistent with the Secretary's regulations. The Conference Report retains the basic principle that the federal laws and regulations are minimum standards which may be exceeded by the States. (emphasis added)

H.R. REP. NO. 95-493, 95th Cong., 1st Sess. 102 (1977). These statements from the legislative history clearly articulate Congressional intent that the Secretary should promulgate regulations that constitute minimum standards for a state program.

B. Regulations Relating to Secretary's Power to Require Consistency

This court's finding that the Secretary's power extends to regulations enacting substantive minimums for state programs also necessitates upholding specific regulations in the state program subchapter. For example, Illinois attacks 30 C.F.R. § 730.5, 44 Fed. Reg. 15324 (1979). This regulation, as explained above, requires that "State laws and regulations are no less stringent than and meet the applicable provisions of the regulations of this Chapter." Illinois claims the definition of "consistent with" is arbitrary and inconsistent with the Act. Its arguments are identical to those addressing the statutory authority of the Secretary to prescribe minimum standards for state programs. This court has resolved that the Act and legislative history support the Secretary's power to prescribe procedural and substantive requirements as a condition toward approval of a state program. 30 C.F.R. § 730.5(b) is therefore consistent with the Act and rational in its character.

Similarly, 30 C.F.R. § 732.15, 44 Fed. Reg. 15327-28 (1979), explicates the criteria for approval or disapproval of state programs. This regulation subsumes the presumption that state programs must be consistent with federal regulatory standards. Since the Act and the legislative history allow the Secretary to prescribe such criteria, this regulation is valid.

C. Other State Program Regulations

1. Publication of Less Stringent Standards

Illinois attacks the regulatory provision directing the [10 ELR 20211] Secretary to publish in the Federal Register those sections of a state regulatory program less stringent than the requirements of the Federal Act and the Secretary's regulations. 30 C.F.R. § 730.11, 44 Fed. Reg. 15324 (1979). Illinois believes this regulation allows the Secretary to invalidate parts of a state program merely by publishing the less stringent sections in the Federal Register. This procedure, according to Illinois, violates the Tenth Amendment; the Secretary may invalidate State law without any rulemaking procedure or adjudicatory hearing.

Illinois misconstrues 30 C.F.R. § 730.11. Rather than constituting the final action in voiding sections of a state program, this regulation implements the first step that triggers due process protections afforded to the states. For example, 30 C.F.R. § 732.12, 44 Fed. Reg. 15326 (1979), provides for notice, comment, and public hearing, before the Director of the OSM may recommend to the Secretary that a program be approved in whole or in part. 30 C.F.R. § 732.13(e), 44 Fed. Reg. 15327 (1979), the final step in the approval process, requires the Secretary to publish his decision in the Federal Register. Should the Secretary disapprove a state program, the State receives 60 days to submit a revised program. Section 503(c) of the Act, 30 U.S.C. § 1253(c). Hence, 30 C.F.R. § 730.11 is only the first step, in a process encompassing notice, comment, and hearing, that leads to state program approval or disapproval.

2. State Window

Both Illinois and Virginia attack the "state window" provision. 30 C.F.R. § 731.13, 44 Fed. Reg. 15324 (1979). The state window allows states to propose, as part of their regulatory program, alternatives to the standards and procedures adopted by the Secretary.Ordinarily, as explained above, the Secretary's regulations constitute the minimum standards and procedures that a state program must equal or surpass. The state window provision allows deviation from the Secretary's regulations when necessitated by local requirements or local environmental or agricultural conditions.

The salient portion of this regulation provides:

As part of its program submission or as an amendment to an approved State program, a State may request approval for alternatives to the provisions of the regulations of this Chapter. For each alternative provision the State shall —

(c) Explain how and submit data . . . demonstrating — (1) that the proposed alternative will be in accordance with the applicable provisions of the Act and consistent with the regulations of this Chapter and (2) that the proposed alternative is necessary because of local requirements or local environmental or agricultural conditions.

30 C.F.R. § 731.13 (emphasis added). Illinois objects to the definitions of "consistent with" and "in accordance with." It repeats the arguments it employed attacking the definitions of these terms at 30 C.F.R. § 730.5. The considered and rejected these arguments above.

Illinois further argues that the standard "capable of achievingthe same regulatory result" is superior to the stringency standard adopted in the regulations. The court believes the Secretary properly rejected this standard. The Secretary stated in the Preamble that a result standard is unacceptable because "regulatory result is difficult to define. Also there are many minimum requirements . . . that are clearly not results."7 44 Fed. Reg. 14952 (1979). Moreover, if Illinois is to prevail in its alternative standard, it must show that the "stringency" test is inconsistent with the Act or arbitrary or capricious. It has failed to make such a demonstration to this court.

Both Virginia and Illinois object to the word "necessary" as found in 30 C.F.R. § 731.13(c)(2). 44 Fed. Reg. 15324 (1979). Virginia directs the court's attention to § 201(c)(9) of the Act, 30 U.S.C. § 1211(c)(9). This statutory provision commands the Secretary to:

assist the States in the development of State programs . . . which meet the requirements of the Act, and, at the same time, reflect local requirements and local environmental and agricultural conditions. (emphasis added)

Virginia alleges the word "reflect" directs the Secretary to accept any state alternative insofar as the alternative reflects local conditions. An alternative based on reflection of, rather than necessity of, local conditions constitutes a lower standard of cause imposed upon the States.

Virginia misperceives both the meaning of "reflect," employed in § 201(c)(9) of the Act, and the word "necessity," found in 30 C.F.R. § 731.13. The word "reflect" addresses the requirement that only local conditions can justify a deviation from federal substantive requirements. Contrary to Virginia's contention, the word "necessity" fails to contemplate a showing that the state alternative be essential or imperative. Instead, it implies that local conditions should reflect a necessary basis for deviation from the federal standard. Therefore, a state need only demonstrate that: (1) local conditions make it difficult to meet the federal standard; (2) the state alternative relates to local conditions; and (3) the alternative is no less stringent than the federal regulation.

Illinois believes that requiring any showing of local need as a condition for alternatives to the Secretary's regulations is inconsistent with the Act. This objection is without merit. The court has already found that a state program must meet the standards of both the Act and the Secretary's regulations. Moreover, § 201(c)(9) of the Act intends that state programs reflect local conditions. It is therefore reasonable for the Secretary, and consistent with the Act, to require that deviation from the Secretary's regulations be based on conditions attendant to local need.

3. Citizen Suits

30 C.F.R. § 732.15(b)(10), 44 Fed. Reg. 15327 (1979), requires a state program to provide for "public participation." This regulation, however, fails to elucidate a definition of public participation. Instead, the Secretary discusses the term at 44 Fed. Reg. 14965 (1979). The preamble makes clear that a provision for citizen suits in state court is a necessary element of public participation.

Section 520 of the Act, 30 U.S.C.§ 1270, provides for citizen suits in federal district court. Virginia believes that since § 520 fails to refer to state court suits, Congress intended that private citizens seek redress only through federal court litigation.

The court finds the Act and the legislative history support the Secretary's command that state programs include a provision for citizen suits in state court. Section 521(d) of the Act, 30 U.S.C. § 1271(d), provides:

As a condition of approval of any State program submitted . . . the enforcement provisions thereof shall, at a minimum, incorporate sanctions no less stringent than those set forth in this section, and shall contain the same or similar procedural requirements relating thereto.

One of these procedural requirements, delineated at § 520(a) of the Act, concerns private citizen suits.

The legislative history confirms this finding. The Senate Report urges "increased opportunity for citizens to participate in the enforcement program . . . ." S. REP. NO. 95-128, 95th Cong., 1st Sess. 90 (1977). Representative Udall, a primary sponsor of the Act, describes state programs as including "enforcement, administrative and judicial review; public notice and hearing; citizen suits . . . ." 123 CONG. REC. H7585 (daily ed. July 21, 1977).Moreover, Senator Allen, an opponent of the Act, reiterated that "the State Program developed under S.7 would be a completely designed Federal Program in every respect including . . . standing to sue . . . ." 123 CONG. REC. S8024 (daily ed. May 19, 1977).

Finally, upholding the citizen suit provision is consistent with the purposes of the SMCRA. Section 102(i) of the Act, 30 U.S.C. § 1202(i), urges public participation in developing, revising, and enforcing federal and state programs.

4. Citizen Access

30 C.F.R. § 786.27(b)(2), 44 Fed. Reg. 15381, requires that private persons be allowed to accompany inspectors when a private citizen complaint prompted the inspection. The statutory [10 ELR 20212] basis for citizen access is found at § 521(a)(1) of the Act, 30 U.S.C. § 1271(a)(1). This section states in relevant part:

When the Federal inspection results from information provided to the Secretary by any person, the Secretary shall notify such person when the Federal inspection is proposed to be carried out and such person shall be allowed to accompany the inspector during the inspection.

Virginia argues that although § 521(a) expressly requires citizen access for federal inspections, the Act fails to impose a similar requirement upon the states.

Virginia notes the only reference to state programs in § 521 (enforcement) appears at subsection 521(d). This subsection requires a state program to "incorporate sanctions no less stringent than those set forth in this section, and shall contain the same or similar procedural requirements relating thereto." Virginia argues that the word "thereto" refers to "sanctions." According to Virginia, the citizen access provision of § 521(a) is unrelated to sanctions. Therefore, § 521(d) fails to provide statutory support for including citizen access in state programs.

The government takes a divergent view of § 521(d). It argues that the word "thereto" refers to "enforcement provision"8 rather than to "sanction." Because citizen access is one component of § 521's enforcementprovisions, § 521(d) requires state programs to incorporate citizen access.

The government's argument is persuasive. The use of the conjunctive word "and," and in the first sentence of § 521(d), indicates that both phrases after the word "thereof" refer back to "enforcement provisions." Hence, the enforcement provisions of § 521 shall: (1) "at a minimum, incorporate sanctions no less stringent than those set forth in this section, and [2] shall contain the same or similar procedural requirements relating thereto." The procedural requirement of citizen access is thus a proper condition for approval of a state program.9

5. Point System for Penalties

Section 518(i) of the Act, 30 U.S.C. § 1268(i), requires that a state program "shall, at a minimum, incorporate penalties no less stringent than those set forth in this section, and shall contain the same or similar procedural requirements relating thereto." Pursuant to this section, the Secretary established a point system for assessing civil penalties. 30 C.F.R. § 845, 44 Fed. Reg. 15461-63 (1979). Two other regulations, 30 C.F.R. § 732.15(b)(7), 44 Fed. Reg. 15327 (1979), and 30 C.F.R. § 840.13(a), 44 Fed. Reg. 15456 (1979), require that a state program be consistent with 30 C.F.R. § 845.

Virginia argues that § 518(i) of the Act only necessitates a state program to incorporate the penalties and procedures explicated in § 518. Because § 518 fails to enumerate a point system for assessing civil penalties, the imposition of this requirement upon the states is inconsistent with the Act.

The Secretary interprets § 518 to mean that a state program must assess a penalty amounting to no less than that required by the Act and its implementing regulations. It finds support for imposing consistency with the implementing regulations from § 503(a)(7) of the Act, 30 U.S.C. § 1253(a)(7). This section directs a state program to demonstrate capability of meeting the "rules and regulations issued by the Secretary pursuant to the Act."

The court finds Virginia's arguments persuasive, and will remand 30 C.F.R. §§ 732.15(b)(7) and 840.13(a). This court previously noted that § 503(a)(7) supports the Secretary's power to require state programs to meet the stringency standards of both the Act and the Secretary's regulations. Section 503(a)(7), however, authorizes state program consistency with the Secretary's regulations so long as they are not inconsistent with the Act or arbitrary or capricious. Mere recitation of this Section, without demonstrating a rational relationship between the regulation and the Act, fails to meet the standard by which this court must adjudicate the regulations.10

II. Areas Unsuitable for Mining

Prohibition of mining activities results from the designation of land as unsuitable for mining. The Act details two methods by which land may be so designated: (1) § 522(e) of the Act, 30 U.S.C. § 1272(e), delineates areas considered per se unsuitable; and (2) § 522(a) empowers the regulatory authority to designate land unsuitable for mining according to guidelines enunciated in § 522(a)(3). 30 U.S.C. § 1272(a). There is little question that the Secretary may promulgate regulations with respect to § 522. The court has previously identified §§ 501(b), 701(25), 201(c)(2), and 503(a)(7). These sections grant the Secretary broad authority to develop regulations that implement the goals of the SMCRA and relate to the procedures and requirements of a state program. Therefore, this court must examine each regulation objected to by the various plaintiffs to determine whether it is arbitrary, capricious, or inconsistent with law.

A. Unsuitability Regulations Pursuant to § 522(e)

Section 522(e) of the Act delineates per se designations of unsuitability for surface mining. These include, inter alia, lands within the boundaries of the National Park System, Wildlife Refuge System, Wilderness Preservation System, and national forests. Surface mining is also prohibited if it threatens to affect adversely a historical site registered in the National Register of Historic Sites. Section 522(e) of the Act prohibits mining within one hundred feet of a public road, and within 300 feet of an occupied dwelling. Any land qualifying under one of these designations, at the time of enactment of the Act, is per se unsuitable for mining.

1. Valid Existing Right

Property that qualifies as a "valid existing right" constitutes an exception to the per se rule of § 522(e) of the Act. 30 U.S.C. § 1272(e). The statute fails to define valid existing rights; however, the regulations define the term at 30 C.F.R. § 761.5. 44 Fed. Reg. 15342 (1979). According to the regulation, a valid existing right requires: (1) a valid conveyance or lease with a document expressing contemplation of future underground or surface mining; and (2) receipt by the lessee or owner of all necessary state and federal permits required to commence mining operations.

Various plaintiffs raise four issues pursuant to the regulatory definition: (1) whether Congress intended to preserve private property rights recognized under state law; (2) whether the Secretary's construction of valid existing right constitutes an unconstitutional taking of property under the Fifth Amendment; (3) whether the "all permit" test is arbitrary and capricious; and (4) whether the need and adjacent test unduly expands the scope of valid existing rights.

a. State Law

The National Coal Association ("NCA") contends that Congress intended the term valid existing rights to encompass property rights recognized as valid under state case law. The NCA brief cites ample support for this contention.

The Secretary has conceded this point, thereby removing the necessity of a court ruling in this matter. In a notice of suspended regulations, the Acting Assistant Secretary of Energy and Minerals, [10 ELR 20213] Charles P. Eddy, stated that "OSM has agreed that as an alternative to the present regulatory language, existing State law may be applied to interpret whether the document relied upon establishes valid existing rights." November 23, 1979 Notice at 5. According to the government brief, the Secretary will revise the term to state that documents dealing with property rights entitling one to surface mine coal will be interpreted in accordance with appropriate state court decisions." Brief at 76.11

b. Fifth Amendment Taking

Both Illinois and the NCA object to the definition of valid existing rights on constitutional grounds. They argue that the term, as presently defined, entails taking of property proscribed by the Fifth and Fourteenth Amendments. According to the plaintiffs, a person who owns property, or who owns the right to mine property, may be deprived of his reasonable use and expectation of mining because he fails to meet the strictures of the regulatory definition. Significantly, the Secretary's definition of valid existing right allegedly necessitates more than a property right or legal interest.

The NCA and Illinois cite Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). In Mahon, the plaintiff sold the surface rights of property but expressly reserved the right to mine the underlying coal. Pennsylvania subsequently enacted a statute prohibiting coal mining that could cause the subsidence of a residence. The Court held the statute constituted a taking without just compensation.

The government cites Penn Central Transportation Co. v. New York City, 438 U.S. 104 [8 ELR 20528] (1978). In Penn Central the Court ruled that governmental denial of an additional structure on the site of a historic landmark failed to constitute a taking of property.

The Secretary also alleges that courts should construe narrowly a takingof property when government regulation is designed to further public health and safety. For example, in Goldberg v. Hempstead, 369 U.S. 590 (1962), the Court upheld a municipal ordinance banning excavation below the water table. The ordinance was enacted as a safety measure. Although the ordinance prevented a sand and gravel company from continuing certain operations, the Court refused to find a taking. See also Mugler v. Kansas, 123 U.S. 623, 668 (1887) (prohibition on use of property injurious to health and safety of community not a taking). The Secretary argues that the SMCRA, like the Acts in Mugler and Goldberg, purports to advance a public interest. He further notes that the Court in Mahon recognized the Pennsylvania statute reflected a limited public interest.

Although we find the government arguments persuasive, we feel this issue is premature. The Court noted in Penn Central "that whether a particular restriction will be rendered invalid by the Government's failure to pay for any losses proximately caused by it depends largely 'upon the particular circumstances [in that] case.'" 438 U.S. at 124. Herein the plaintiffs' claim is hypothetical; they have presented the court with no specific circumstances enabling the court to adjudicate this issue. Since no party can complain of an unconstitutional taking, we decline to address the constitutionality of the Secretary's definition.See DuBois Clubs v. Clark, 389 U.S. 309, 312 (1967) (District Court should refrain from deciding "constitutional questions in a vacuum").

c. All Permits Test

NCA lastly objects to the "all permits" test. This test necessitates that a landowner must have obtained all permits necessary for the mining of coal prior to August 3, 1977. 30 C.F.R. § 761.5(a)(2)(i), 44 Fed. Reg. 15342 (1979). Industry argues it often must obtain as many as ten permits prior to the commencement of mining. It further alleges that state or federal entities sometimes delay the issuance of a permit through bureaucratic delay. The dilatoriness of a government agency could therefore result in the denial of a valid existing right exception to the per se unsuitability standards.

The government avers that the all permits test ensures consonance with the taking cases. It requires an operator to expend a sizeable investment, and possess a substantial expectation of mining, in order to qualify for a valid existing right. This rationale is self defeating. Surely an operator who applies for all permits, but fails to receive one through government delay, engenders the same investments and expectations as an operator who timely receives all permits. The court believes that a good faith attempt to obtain all permits before the August 3, 1977 cutoff date should suffice for meeting the all permits test. The court therefore remands 30 C.F.R. § 761.5(a)(2)(i) to the Secretary for revision.

d. Need and Adjacent Test

The National Wildlife Federation ("NWF") objects to the need and adjacent component of the valid existing rights definition. This section allows the grant of a valid existing right if "the coal is both needed for, and immediately adjacent to, an on-going surface coal mining operation for which all permits were obtained prior to August 3, 1977." 30 C.F.R. § 761.5(a)(2)(ii), 44 Fed. Reg. 15342 (1979). The NWF believes this section of the definition unduly expands the concept of valid existing right. It urges the court to eliminate the "need for" component; instead, a valid existing right can properly be granted only to an operator who possesses all permits prior to the Act's passage.

The need and adjacent component of the Secretary's definition is consonant with Supreme Court declarations regarding taking of property. This test allows the grant of a valid existing is necessary to maintain, as a whole, the value of the mining operation. Stated otherwise, the need and adjacent test requires a valid existing right exemption when denial of mining on the adjacent area will rob the mining operation, as a whole, of its value. See Penn Central, supra, 438 U.S. at 130-31; Goldblatt v. Hempstead, 369 U.S. 590 (1962). The need and adjacent test is thus a rational method of allowing mining when denial would gravely diminish the value of the entire mining operation, thereby constituting a taking under Supreme Court declarations.

2. Waiver by Owner

Section 522(e)(5) of the Act prohibits surface mining operations "within three hundred feet from any occupied dwelling, unless waived by the owner thereof." 30 U.S.C. § 1272(e)(5). The NCA objects to the Secretary's regulations that require a written waiver. 30 C.F.R. §§ 761.11(e) and 761.12(e); 44 Fed. Reg. 15343 (1979). The NCA believes the common law understanding of waiver fails to require a written form.

The court finds these regulations are consonant with the Act. The Act explicates one of its purposes as the protection of the rights of property owners. Section 102(b) of the Act, 30 U.S.C. § 1202(b). Sections 201(c)(2) and 501(b) of the Act grant the Secretary authority to promulgate regulations "necessary to carry out the purposes and provisions of this Act." The Secretary's requirement of a written waiver merely employs a procedural safeguard to protect private property rights. See Mourning v. Family Publications Service, Inc., 411 U.S. 356, 369 (1972) (regulations permissible to prevent violation of Act's policy objectives). Moreover, the common law, while it does establish the substantive standards of knowledge, intention, and voluntariness, fails to specify the requisite form of waiver. The Secretary's regulation seeks to ensure these standards are protected; it is, therefore, consonant with the Act.12

3. Government Concessions

Section 522(e)(3) of the Act, 30 U.S.C. § 1272(e)(3), prohibits surface coal mining operations affecting "any publicly owned park or places included in the National Register of Historic Sites." 30 C.F.R. § 761.11(c) and .12(f) extend this prohibition to surface mining operations affecting places "eligible for listing" in the National Register of Historic Places. The NCA and Virginia object to this extension.

The government has conceded this issue. The affidavit of [10 ELR 20214] Walter N. Heine, Director of the Office of Surface Mining Reclamation and Enforcement, states at paragraph G:

An amendment will be proposed to portions of Subchapters F & G to delete the limitationon surface mining operations conducted under approved State programs which will adversely affect places eligible for listing on the National Register of Historic Places.

The government has also conceded NCA's objection to the definition of "public road." Section 522(e)(4) of the Act, 30 U.S.C. § 1272(e)(4), prohibits surface mining operations "within one hundred feet of the outside right-of-way line of any public road . . . ." 30 C.F.R. § 761.5 defines public road as "any thoroughfare open to the public for passage of vehicles." The NCA urges a more narrow definition of public road; namely, a right-of-way maintained by a governmental agency. The Heine Affidavit, paragraph D, has suspended this section of the regulation and instructed the Secretary to promulgate a more narrow definition.

B. Unsuitability Regulations Pursuant to §§ 522(a)-(d)

Sections 522(a)-(d) of the Act, 30 U.S.C. §§ 1272(a)-(d), provide a mechanism whereby a state regulatory authority may designate areas unsuitable for mining. Section 522(a) requires each state to establish a planning process to enable the regulatory authority to reach unsuitability determinations. The regulatory authority must find an area unsuitable for mining if reclamation "is not technically and economically feasible." Section 522(a)(2) of the Act, 30 U.S.C. § 1272(a)(2). The regulatory authority may, in its discretion, deem an area unsuitable for mining if, inter alia, it finds that mining operations: (1) are incompatible with state or local land use plans; or (2) affect renewable resource lands; or (3) affect natural hazard lands thereby endangering life or property. Section 522(a)(3) of the Act, 30 U.S.C. § 1272(a)(3).

1. Hearing for Unsuitability Determinations

Section 522(a) of the Act, 30 U.S.C. § 1272(a), requires a regulatory authority to conduct a hearing prior to reaching a determination on suitability.13 The NCA, Illinois, and Virginia object to the form of the hearing explicated at 30 C.F.R. § 764.17(a). 44 Fed. Reg. 15346 (1979). This regulation provides that "[t]he hearing shall be legislative and fact-finding in nature, without cross-examination of witnesses." The NCA and Illinois argue that an adjudicatory type hearing is necessary. Virginia believes the choice between an adjudicatory and legislative type hearing should lie within the sound discretion of the regulatory authority.14

The various plaintiffs objecting to this regulation argue: (1) the language of § 522(c) indicates an intent for an adjudicatory hearing; (2) the nature of the decision, requiring a determination of factual issues, necessitates an adjudicatory hearing; and (3) an adjudicatory hearing is constitutionally required.

As to the language of the Act, the court notes that Congress expressly provided for public hearings at several points in the SMCRA. This court previously found:

When Congress intended that public hearings conducted under the Act be held in accordance with the procedures of 5 U.S.C. § 554, it explicitly stated the requirement. See 30 U.S.C. §§ 1264(c), 1268(b), 1275(a)(2), 1275(d), 1293(b). The public hearing requirement of § 521(a)(5) does not contain such a requirement and Congress did not indicate that the hearing should be "on the record" which further indicates that the APA does not apply.

In re Surface Mining Regulation Litigation, 456 F. Supp. 1301, 1322 (D.D.C. 1978). The same reasoning is applicable to § 522(c) of the Act.

Furthermore, the nature of the decision gravitates toward a legislative rather than an adjudicatory hearing. A suitability decision involves conflicting value determinations that affect several parties.15 Rulemaking is superior to adjudication in this type of situation. As stated in Hercules, Inc. v. EPA, 598 F.2d 91, 118 [8 ELR 20811] (D.C. Cir. 1978):

The standards affect the multitude who fish, take drinking water, or otherwise, directly or indirectly come in contact with waters containing the discharged toxic substances, all of whom may appear in proceedings . . . . Rulemaking, not adjudication, is the appropriate flexible procedural mechanism to accommodate the input of all concerned.

As with the proceedings involving toxic pollutant standards in Hercules, the proceedings determining suitability for surface mining involve a multitude of interests. The Act recognizes this variety of interests by providing for intervention in the proceedings.

Finally, 30 C.F.R. § 764.17(a) passes constitutional muster. Due process guarantees are met. The procedures at issue guarantee dictating procedural due process requires more protection against the potential deprivation of property. As for taking, this court decided, supra, the issue is premature.

2. Additional Designation Criteria

The NCA alleges that 30 C.F.R. § 762.12(b), 44 Fed. Reg. 15344 (1979), impermissibly allows the Secretary to establish additional criteria for making suitability determinations. We note initially the symmetry of 30 C.F.R. § 762.12. Subsection (a) authorizes a state regulatory authority to establish additional criteria for determining suitability of land for surface coal operations. Subsection (b) grants the Secretary the same authority to establish additional criteria for federal lands. The NCA believes that, although § 505(b) of the Act, 30 U.S.C. § 1255(b), provides statutory support for 30 C.F.R. § 762.12(a), there is no corresponding support for 30 C.F.R. § 762.12(b).

The court finds that § 523(a) of the Act, 30 U.S.C. § 1273(a), provides similar, or, even stronger support for 30 C.F.R. § 762.12(b), as that provided by § 505(b) for 30 C.F.R. § 762.12(a). Section 523(a) of the Act (federal lands)states: "The Federal lands program shall, at a minimum, incorporate all of the requirements of this Act and shall take into consideration the diverse physical, climatological and other unique characteristics of the Federal lands in question." The language "at a minimum" indicates Congressional authorization for the Secretary to establish additional criteria for federal lands. Similarly, the language "more stringent" in § 505(b) of the Act, permits state regulatory authorities to promulgate factors in addition to those enumerated in the SMCRA.

3. Approval to Explore Unsuitable Lands

30 C.F.R. § 762.14, 44 Fed. Reg. 15344 (1979), necessitates regulatory authority approval before exploration may occur on lands designated unsuitable for surface coal mining operations. The NCA believes this regulation is inconsistent with §§ 522(a)(1) and 512 of the Act, 30 U.S.C. §§ 1272(a)(1) and 1262. Section 522(a)(1) states that a designation of unsuitability "shall not prevent the mineral exploration pursuant to the Act of any area so designated." Section 512(d) requires written approval of the regulatory authority for exploration activities that remove more than 250 tons of coal. The NCA argues these statutory sections, by implication, prevent the Secretary from requiring written approval for coal exploration activities that remove less than 250 tons.

The court finds 30 C.F.R. § 762.14 is consonant with Congressional intent to protect areas of land designated as unsuitable for surface mining operations.16 Section 522 of the Act, 30 U.S.C. § 1272, providing a detailed process for the designation of unsuitable [10 ELR 20215] lands, evinces such intent. Section 522(a)(3) expresses Congressional concern that land falling within the criteria enumerated herein be free from the adverse affects of surface mining. 30 C.F.R. § 762.14(e) ensures that coal exploration, on lands declared unsuitable for mining, will not conflict with the values expressed in § 522(a)(3).

Moreover, prior approval fails to imply lack of exploration. The Secretary has made clear that the approval process is only to oversee the exploration method and to guarantee that such methods not disturb the reasons for the unsuitability designation. The Secretary stated in the preamble:

Regulatory authority approval does not mean denial of the right to conduct exploration for coal; its purpose is to ensure that the methods used in exploration operations are compatible with the protection of those lands and areas designated unsuitable for mining.

44 Fed. Reg. 14999 (1979). Scrutinization of the method of exploration for lands designated as unsuitable for mining is therefore consonant with §§ 512(a) & (d) and 522 of the SMCRA.

4. Limitation on Petition for Unsuitability Finding

Section 522(c) of the Act, 30 U.S.C. § 1272(c), allows any person to petition the regulatory authority for an unsuitability designation. 30 C.F.R. § 764.13(b), 44 Fed. Reg. 15345 (1979), delineates the minimum informational requirements for the petition. Virginia objects to language in this regulation, which states that the requirements of 30 C.F.R. § 764.13(b) constitute the "only information that a petition need provide." A state regulatory authority, according to Virginia, should enjoy the discretion to require additional information.

The court believes that 30 C.F.R. § 764.13(b) is reasonable and consistent with the Act. This regulation protects the regulatory authority against frivolous petitions. It also protects the petitioner against overly burdensome informational requirements. Moreover, the regulations does not prohibit a state regulatory authority from requiring additional information. While such additional information could affect the outcome of the petition, failure to provide it cannot alone warrant dismissal. Finally, the language objected to allows consonance with the Act. As stated by the Secretary in the preamble: "OSM has rejected most of these suggestions [for additional information] in order to make the requirements for petition contents more restricted than the Act." 44 Fed. Reg. 15001 (1979).

5. Data and Information Availability

Section 522(a)(4)(B) of the Act, 30 U.S.C. § 1272(a)(4)(B), requires a state to develop a data base and inventory system to evaluate the capacity of land to support coal mining operations. Illinois objects to language in 30 C.F.R. § 764.23(a), 44 Fed. Reg. 15346 (1979), commanding this information and data be available to the public free of charge.

Illinois' objections is without merit. Section 102(i) of the Act, 30 U.S.C. § 1202(i), states that one purpose of the SMCRA is to "assure that appropriate procedures are provided for the public participation . . . under this Act." Free access to information is entirely consonant with this section of the SMCRA. Moreover, it is only the access and inspection of information that a state must provide free of charge. The regulation expressly allows a state to charge a reasonable cost for copying services.

6. Prohibition of Mining If Affects Protected Area

Section 522(e)(3) of the Act, 30 U.S.C. § 1272(e)(3), allows government agencies with jurisdiction over parks or historic sites to approve or disapprove of surface mining operations when such operations will adversely affect the site. 30 C.F.R. § 761.12(f), 44 Fed. Reg. 15343 (1979), permits government agency participation if mining operations may adversely affect the site. Virginia alleges that substitution of "will" in the Act, with "may" in the regulation, unduly expands the veto power of government agencies outside of the regulatory authority.

The Secretary has suspended this regulation, thereby mooting the issue. Heine Affidavit, paragraph G.

III. Permitting

In addition to regulations prescribing substantive criteria for state programs, the Secretary promulgated regulations pursuant to the permit process and bond requirements. The SMCRA enumerates the permit application requirements at §§ 507-511, and the bonding requirements at §§ 509 and 519. Under the Act, any mining operation must obtain a permit from an approved state program, or, if the federal authority. After a permit has been approved, but before the regulatory authority issues the permit, the applicant must obtain bond. The bond covers reclamation costs should the mining company fail to fulfill the requirements of the Act.

1. Secretary's Power to Prescribe Permit and Bonding Regulations

The Act makes clear that the regulatory authority — state or federal — decides whether to grant the permit and determines the amount and acceptance terms of the bond. This court has already decided that a state program must meet the minimum standards of the Act and of the Secretary's valid regulations. Peabody and the Pennsylvania Coal Mining Association ("PCMA") herein present the issue whether the Secretary validly possesses the power to prescribe uniform standards for the permit process and bonding requirements.17

The industry sets forth two straightforward arguments. First, § 501(b), which grants the Secretary authority to promulgate regulations pursuant to "procedures and requirements for preparation, submission, and approval of State programs" fails to mention permitting and bonding. This implies the Secretary is without authority to promulgate regulations addressing the permit process and bonding system. Peabody and the PCMA secondly argue that the permit and bonding statutory sections repeatedly refer to "regulatory authority" but seldom mention the "Secretary." The Act therefore intended the state regulatory authority to carry out the responsibilities of these provisions without additional guidance from the Secretary.

The court believes that the structure of the Act, the general grants of rulemaking authority, and § 501(b), support the Secretary's power to develop permitting and bonding regulations. At the outset, the court questions why the PCMA and Peabody believe the Act grants the Secretary authority to promulgate regulations under several provisions of the Act but denies the Secretary authority under other sections.18 The most basic reason advanced by the plaintiffs concerns the Act's repeated reference to "regulatory authority" in the permitting and bonding provisions. But regulatory authority means the state regulatory authority only when the Secretary has approved a state program. Section 721(22) of the Act, 30 U.S.C. § 1311(22). The Act defines a state program as "a program established by a State . . . in accord with the requirements of this Act and regulations issued by the Secretary pursuant to this Act . . . ." The Act's reference to regulatory authority thereby encompasses the concept that a state program must be consonant with regulations developed by the Secretary.

Moreover, the Act contains a general grant of rulemaking authority to the Secretary. Section 201(c)(2) of the Act, 30 U.S.C. § 1211(c)(2), grants the Secretary authority to "publish and promulgate such rules and regulations as may be necessary to carry [10 ELR 20216] out the purposes and provisions of the Act."18A The court cited this section in upholding the Secretary's ability to promulgate regulations for state programs. But § 201(c)(2) is particularly significant herein because it fails to restrict the Secretary's rulemaking authority to specific areas of the Act.19

As for § 501(b), the court declines to view this section as restricting the power of the Secretary. First, the general grants of rulemaking authority, identified above, cannot be restricted by further, specific grants of rulemaking authority. If the Secretary's powers are limited to the specific grants of the Act, then the general grants of rulemaking authority are superfluous.

Second, § 501(b) directs the Secretary to establish "requirements for preparation, submission, and approval of State programs . . . ." These requirements, specified in § 503 of the Act, include: (1) an effective permit system, § 503(a)(4), and (2) sanctions for the forfeiture of bonds. Section 503(a)(2). Section 501(b), read in connection with § 503(a), thus empowers the Secretary to promulgate regulations setting the requirements for permitting and bonding.

Finally, the court notes that the primary purpose of the Act was the establishment of national environmental standards to govern surface mining operations. Section 501(b) expressly empowers the Secretary to regulate "surface coal mining and reclamation operations performance standards . . . ." The permit and bonding regulations are inextricably linked to the environmental performance standards. They help to ensure compliance with the standards enumerated in § 515 of the Act.19

2. Notice of Intent for Coal Exploration Extracting Less Than 250 Tons

The SMCRA provides that coal exploration regulations shall apply to "exploration operations which substantially disturb the natural land surface . . . ." Section 512(a) of the Act, 30 U.S.C. § 1262(a). The PCMA objects to the Secretary's regulation that per se requires the filing of notice of intent to explore for operations removing less than 250 tons. 30 C.F.R. § 776.11, 44 Fed. Reg. 15351-52 (1979). The PCMA believes the per se notice Provision is inconsistent with the Act's commandment that exploration operation regulations apply to activities substantially disturbing the surface.

30 C.F.R. § 776.11 is consistent with the Act. The court recognizes that § 512(d) requires written approval for removal of more than 250 tons. But the regulation at issue — applying to removal of less than 250 tons — does not require a permit or prior approval. It merely requires a notice of intent to explore. This regulation therefore properly allows the regulatory authority to determine whether the exploration will substantially disturb the surface. If it does, then the coal exploration regulations apply. Section 512(a) of the Act.

3. Public Access to Information

The PCMA alleges that 30 C.F.R. § 776.17 is inconsistent with § 512(b) of the Act, 30 U.S.C. § 1262(b). Section 512(b) withholds from public examination information, pursuant to coal exploration permits, that constitutes trade secrets or financial information relating to competitive rights. 30 C.F.R. § 776.17, 44 Fed. Reg. 15353 (1979), implements this statutory provision. It provides that such information be withheld from the public if: (1) the submitter requests nondisclosure; and (2) the regulatory authority finds the information qualifies as trade secrets or commercial or financial information concerning competitive rights. The PCMA believes such information is per se confidential.

30 C.F.R. § 776.17 is consistent with the Act and reconciles a conflict between § 512(b) and 517(f). 30 U.S. §§ 1262(b) and 1267(f). Section 517(f) requires that "information obtained under this title by the regulatory authority shall be made immediately available to the public . . . ." Section 512(b) is an exception to this rule. Regulation 30 C.F.R. § 776.17 properly asks the regulatory authority to examine the information and determine whether it qualifies for the exemption to disclosure.

A similar procedure exists under the Freedom of Information Act ("FOIA"). 5 U.S.C. § 552. As with the SMCRA, disclosure is the general rule. Exemption four of the FOIA contains an exception for trade secrets and privileged commercial or financial information. A claim of confidentiality under exemption four does not automatically result in nondisclosure. The agency must still independently examine the information and decide if it qualifies for the exemption. Chrysler Corp. v. Brown, 99 S. Ct. 1705, 1713 (1979) ("the FOIA by itself protects the submitter's interest in confidentiality only to the extent that the interest is endorsed by the agency collecting the information.").

4. Mine Plan Area Informational Requirements

Peabody objects to the Secretary's use of the term "mine plan area." This term appears nowhere in the Act. The regulations employ the term in parts 779, 780, 783, and 784, and define the term at 30 C.F.R. § 701.5. Mine plan area means the area of land and water "within the boundaries of all permit areas during the entire life of the surface coal mining and reclamation operations." This term necessitates coal companies to supply information for areas outside the permit boundary. It also requires information covering the entire life of the mining operation. Peabody claims the Act necessitates this information in only a limited number of situations.

The court finds the government's justification for this monumental informational requirement unpersuasive. The government points to §§ 507(b)(11) and 508(a)(13) of the Act. 30 U.S.C. §§ 1297(b)(11); 30 U.S.C. § 1258(a)(13). These sections require hydrologic information both on and off the mine site. In addition, § 508(a)(1) requires information extending over the estimated life of the mining operation. But the myriad of informational requirements delineated in §§ 507 and 508 consistently refer only to the specific land mined or the immediate permit area. The court can only draw the conclusion that Congress articulated, with specificity, those instances in which information outside the permit area was necessary.

Nor can this expansive informational requirement be justified on the ground of statutory ambiguity. The informational requirements of §§ 507 and 508 are unambiguous. Congress specified what type of information it desired in each subsection. It is arbitrary and capricious for the Secretary to examine the three most expansive informational requests, develop a regulatory definition, and apply the expansive information requests to less extensive informational needs. The court therefore remands the definition of mine plan area found at 30 C.F.R. § 701.5. The court also suspends the term "mine plan area" in regulations found at 30 C.F.R. § 779, 780, 783, and 784. We direct the Secretary to revise the term in accordance with the informational requirements of the Act.

5. Demonstration of Nonsuitable Area

The PCMA attacks 30 C.F.R. § 778.16(a). 44 Fed. Reg. 15354 (1979). This regulation requires the permit application to state whether the proposed permit area is unsuitable for surface mining activities, or under study for such designation. Section 510(b)(4) of the Act makes clear that this regulation is consonant with the Act. The Act states a regulatory authority cannot approve a permit application unless the application demonstrates "(4) the area proposed to be mined is not included within an area designated unsuitable for surface coal mining . . . or is not within an area under study for such designation . . . ."

[10 ELR 20217]

6. Planned Subsidence

30 C.F.R. § 784.20, 44 Fed. Reg. 15369 (1979), requires an underground mining permit application to include a subsidence control plan. The plan must specify, inter alia, whether the permit area encompasses structures or renewable resource land, and also whether subsidence would cause damages to these assets.

The NCA believes this regulation conflicts with § 516(b)(1) of the Act. 30 U.S.C. § 1267(b)(1). This statutory section requires an operator to "adopt measures consistent with known technology in order to prevent subsidence . . . except in those instances where the mining technology used requires planned subsidence in a predictable and controlled manner."

The NCA correctly notes that the "except" clause of § 516(b)(1) refers to longwall mining. "This [except clause] specifically allows for the uses of longwall and other mining techniques which completely remove the coal." H.R. REP. No. 95-218, 95th Cong., 1st Sess. 126 (1977). The NCA interprets the except clause to exempt longwall mining operations from subsidence permit application requirements.

The NCA misreads both the Act and the regulation. Section 516(b)(1) affords the operator an option to prevention of subsidence when he demonstrates predictable and controlled subsidence through longwall mining. But the operator must establish "planned and controlled subsidence." It is only through the filing of a subsidence control plan that the regulatory authority can determine eligibility for the use of mining methods that allow mine collapse. This report enables the regulatory authority to determine whether the controlled subsidence will protect the values § 516(b)(1) intends to preserve.

7. Testing Each of Overburden

The PCMA challenges 30 C.F.R. § 779.14(b)(iii)-(v), 44 Fed, Reg. 15355 (1979). This regulation requires the permit application to include compactibility and erodibility testing for each strata of the overburden, analysis of the coal seam, and a chemical analysis of each strata of the overburden including the stratum immediately below the lowest coal seam to be mined.

The PCMA believes these informational requirements exceed the dictates of the Act. It specifically points to § 507(b)(15) of the Act, which requires a chemical analysis of potentially acidic or toxic sections of the overburden.

Several sections of the Act support the consistency of 30 C.F.R. § 779.14(b) with the informational requirements of the SMCRA. For example, § 508(a)(12) of the Act, 30 U.S.C. § 1258(a)(12), requires the reclamation plan to contain:

The results of test borings which the applicant has made of the area to be covered by the permit . . ., including the location of subsurface water and an analysis of the chemical properties of the mineral and the overburden . . . .

Furthermore, § 507(b)(14) of the Act, 30 U.S.C. § 1257(b)(14), requires the permit application to contain maps or plans that detail the:

pertinent elevation and location of test borings or core samplings and depicting the following information: the nature and depth of the various strata of overburden . . . the nature and thickness of any coal or rider seam above the coal seam to be mined; nature of the stratum immediately beneath the coal to be mined . . . .

Chemical analysis of each stratum of the overburden properly implements the informational requirements of these statutory sections. The disputed regulations therefore fail to require additional information not previously necessitated by the SMCRA.

8. Fish and Wildlife Information

The PCMA attacks the regulations requiring information on fish and wildlife. 30 C.F.R. § 779.20, 44 Fed. Reg. 15356; 30 C.F.R. § 780.16, 44 Fed. Reg. 15359 (1979). These regulations require the permit application to contain a study of fish and wildlife, and, in addition, to include a fish and wildlife reclamation plan. The PCMA alleges these regulations lack statutory authorization.

The only statutory justification offered by the Secretary pertains to performance standards. Although the court employed enforcement of performance standards as one reason to uphold the Secretary's ability to promulgate permit and bonding regulations, the court nonetheless believes the Secretary's regulations in these areas must find statutory support in the permit and bonding sections of the Act. Absent statutory reference in the permit section of the statute to fish and wildlife, the court remands 30 C.F.R. § 779.20 and § 780.16.

9. Soil Survey Information

Peabody and the PCMA attack 30 C.F.R. §§ 779.21 and 783.21 insofar as they require soil survey information for lands failing to qualify as prime farmland. The industry believes such information exceeds the requirements of § 507(b)(16) of the Act.30 U.S.C. § 1257(b)(16). Section 507(b)(16) requires a soil survey only "for those lands in the permit application which a reconnaissance inspection suggests may be prime farm lands."

The court agrees with Peabody and the PCMA, and will remand these regulations. The court recognizes that nothing in the Act prohibits this information.20 But § 507(b)(16) is a clear expression of Congressional intent. It requires a permit applicant to engage in reconnaissance inspections. A permit application must contain a soil survey only when this inspection reveals prime farmland. Moreover, the soil survey is limited to that portion of the permit area designated as prime farmland.

The Secretary's reliance on § 508(a)(3) is also misplaced. That section requires the reclamation plan to demonstrate "the use which is proposed to be made of the land following reclamation, including a discussion of the utility and capacity of the reclaimed land to support a variety of alternative uses . . . ." Demonstration of post mining land use and a discussion of alternative uses in no way suggests an operator must provide soil survey information for land other than prime farmland.

10. Denial for Willful Violation

Peabody challenges the regulatory definition of "willful violation." The term appears in § 510(c) of the Act, 30 U.S.C. § 1260(c). That section prohibits the grant of a permit to a company that has engaged in willful violation of the Act resulting in irreparable injury to the environment.

The regulations define the term willful violation as an "act or omission . . . committed by a person who intends the result . . . ." (emphasis added) 30 C.F.R. § 786.5, 44 Fed. Reg. 15378 (1979). Peabody argues that willful must encompass the notion of knowing culpability, or, purposeful noncompliance with the Act. The Secretary's definition of "intending the result" includes unknowing ignorance.

The Secretary's definition of willful is valid. To violate the Act, an operator must previously have possessed a permit. An operator who receives a permit should be awareof the Act's requirements. A person's negligence in failure to know the requirements of an Act, under federal case law, constitutes a willful violation. United States v. Illinois Central Ry., 303 U.S. 239, 243 (1938); Brennan v. Heard, 491 F.2d 1, 3 (5th Cir. 1974); Coleman v. Jiffy June Farms, Inc., 458 F.2d 1139, 1142 (5th Cir.), cert. denied, 409 U.S. 948 (1972).

11. Oral Proof and cross-Examination in State Permit Hearings

Section 514(c) of the Act, 30 U.S.C. § 1264(c), ensures that an applicant for a mining permit, or any person adversely affected by a permit decision, may demand a hearing to contest the initial regulatory authority determination. The statute provides that "[w]here the regulatory authority is the State, such hearing shall be of record [and] adjudicatory in nature . . . ."

The Secretary implements this provision at 30 C.F.R. § 787.11(b). The NWF objects to the regulation's omission to affirmatively incorporate the right of oral argument and cross-examination of witnesses. This issue, however, is now moot. The Secretary has decided that § 514(c) of the Act does require the State permit hearing to incorporate the procedural safeguards of § 5 of the Administrative Procedure Act. October 29, 1979 letter to Messrs. Thatcher and Galloway from Walter N. Heine, Director, Office of Surface Mining.

[10 ELR 20218]

IV. Bonding

1. Cessation of Operations Upon Insolvency of Surety

The NCA objects to regulatory provisions requiring the immediate discontinuance of mining operations upon the insolvency of surety or the revocation of the surety's license. 30 C.F.R. §§ 806.12(e)(6)(iii), 806(g)(7)(iii). The Heine affidavit, paragraph K, as implemented by this court's order of December 21, 1979, suspends the effect of these regulations.

2. Public Participation in Bond Release Programs

Section 519(g) of the Act, 30 U.S.C. § 1269(g), provides that in the case of written objections to the release of an operator's performance bond, "the regulatory authority may establish an informal conference as provided in Section 513 to resolve such written objections." Section 513(b) of the Act, 30 U.S.C. § 1263(b), establishes the procedural aspects of an informal conference. It provides:

The regulatory authority may arrange with the applicant upon request by any party to the administrative proceeding access to the proposed mining area for the purpose of gathering information relevant to the proceeding.

The NWF alleges that the language of § 519(g) intends to incorporate, in its entirety, the informal conference procedures of § 513(b). Because the Secretary's regulation that implements the informal conference provisions of § 519 fails to include a provision for access to the minesite the NWF argues that 30 C.F.R. § 807.11(e) is inconsistent with the Act.

The court agrees with the NWF, and will remand 30 C.F.R. § 807.11(e). Section 519(g) of the Act expressly employs the term "informal conference." The Act clearly articulates the procedures attendant upon informal conferences at § 513(b). One such procedure involves access to the mining area. It is inconsistent with the Act for 30 C.F.R.§ 807.11(e) to fail to articulate that, in the words of the statute, "the regulatory authority may arrange with the applicant . . . access to the proposed mining area for the purpose of gathering information relevant to the proceedings."21

3. Bond Liability Limit

The NWF objected to 30 C.F.R. § 808.12(c) insofar as it indicated bond liability in the permit area was limited to hydrologic balance. The Secretary has suspended this language. Heine affidavit, paragraph L; December 21, 1979. Order at 2.

4. Forfeiture of Bond as Sanction

30 C.F.R. § 808.13(a)(2) provides that a permittee shall forfeit bond if:

The permittee has failed to conduct the surface mining and reclamation operations in accordance with the Act, the conditions of the permit, this Chapter, and the regulatory programs, within the time required by the Act, this Chapter, the regulatory program, and permit.

Quite simply, this regulation allows forfeiture of bond if the permittee fails to comply with the Act, the regulatory program, or the permit.

The NCA believes the use of bond forfeiture as an enforcement mechanism is inconsistent with the Act. It alleges that § 509 (performance bonds) fails to consider bond forfeiture as an enforcement mechanism. Section 521 of the Act (enforcement), according to the NCA, limits the regulatory authority's enforcement tools to the issuance of citations and mine closure.

The court finds 30 C.F.R. § 808.13(a)(2) fully consonant with the § 509 of the SMCRA. Section 509(a) expressly requires "a bond for performance . . . conditional upon faithful performance of all the requirements of this Act and the permit." Congress, not the regulations, thereby established the broad requirements upon which bond is conditioned.

The regulation at issue merely establishes a criterion for forfeiture of bond that attaches upon violation of one of the conditions specified in the statute. This criterion addresses timelines. It allows forfeiture of bond when the permittee fails to perform one of the conditions enunciated in § 509(a). Moreover, violation of this criterion does not automatically result in bond forfeiture. 30 C.F.R. § 808.11(b) grants the regulatory authority discretion to waive forfeiture upon the permittee's acceptance of a schedule to comply with the violation of the permit condition. Thus, if the permittee fails to abate, fails to agree to an abatement schedule, or fails to meet the abatement schedule, the regulatory authority may forfeit the bond and implement abatement.

5. Forfeiture of Full Bond Amount

Under 30 C.F.R. § 808.14, 44 Fed. Reg. 15393 (1979), a regulatory authority may determine the amount of forfeiture by either of two methods. Under subsection (a), the authority may estimate the cost of reclamation, and, accordingly, forfeit that portion of the bond necessary to cover the reclamation cost. Under subsection (b), the regulatory authority may "[f]orfeit the entire amount of the bond . . . and deposit the proceeds thereof in an interest-bearing escrow account for use in the payment of all costs and administrative expenses associated with the conduct of reclamation, restoration or abatement activities by the regulatory authority." Subsection (b) allows the regulatory authority to retain forfeited bond money unnecessary for the costs and administration expenses associated with reclamation of the particular permit area. The NCA objects to subsection (b) on the ground that it lacks a statutory basis, is arbitrary, and punitive.

The court agrees with the NCA and will remand 30 C.F.R. § 808.14(b). Section 509 fails to provide any basis for forfeiture beyond the amount necessary to implement and complete a reclamation plan. Section 509(a) states "[t]he amount of the bond should be sufficient to assure the completion of the reclamation plan . . . ." (emphasis added). This indicates that a permittee's bond be utilized to complete reclamation for the lands covered by that particular permit. Nowhere does the Act authorize use of the excess bond to pay the administration costs of part of the state program. The court therefore remands this regulation to the Secretary, and directs that if expeditious administration requires a provision allowing for complete forfeiture, then such provision must also require reimbursement of excess costs upon the completion of the reclamation activities.22

6. Cost Adjustment for Bond

The PCMA alleges that 30 C.F.R. § 808.14(a), 44 Fed. Reg. 15393 (1979), is arbitrary and capricious because it incorporates 30 C.F.R. § 805.14. That regulation, according to the PCMA, allows the regulatory authority to determine the amount of forfeiture based on an inflationary adjustment.

The PCMA's characterization of 30 C.F.R. § 805.14 is misleading. In its present form, § 805.14 allows the regulatory authority to adjust a permittee's performance bond "when the cost of future reclamation, restoration or abatement work changes." This revaluation occurs only at the time of permit review conducted under 30 C.F.R. § 788.11.

Sections 509(a) & 509(e) of the Act, 30 U.S.C. §§ 1259(a) & 1259(e), require adjustment of bond to meet reclamation costs. Section 509(e) expressly commands that "bond shall be adjusted by the regulatory authority from time to time as affected land acreages are increased or decreased or where the cost of future reclamation changes." Therefore, determining the amount of bond to be forfeited, based on bond amounts readjusted in accordance with § 509(e) of the Act and 30 C.F.R. § 788.11, is entirely consonant with the Act.

V. Alluvial Valley Floors

An understanding of the terms alluvial valley floor ("AVF") and unconsolidated stream laid deposits is necessary to properly evaluate the plaintiffs' objections and the government's defenses. Certain arid regions in the West contain streams that deposit unconsolidated stream deposits. These unconsolidated deposits — clay, silt, sand, and gravel — are called alluvium. Alluvium is capable of retaining moisture and thereby helps to sustain agriculture during dry periods.

Unconsolidated stream laid deposits assist the irrigation of an [10 ELR 20219] alluvial valley floor in two possible ways: (1) rain water from the stream can permeate through the unconsolidated materials, resulting in natural irrigation; and (2) stream water can be artificially diverted onto an alluvial valley floor, travelling through the unconsolidated materials to irrigate the area.

The Act defines alluvial valley floors as "unconsolidated stream laid deposits holding streams where water availability is sufficient for subirrigation [natural] or flood irrigation [artificial]." Section 701(1) of the Act, 30 U.S.C. § 1291(1). The regulations define unconsolidated stream laid deposits to mean:

all flood plains and terraces located in the lower portions of topographic valleys which contain perennial or other streams with channels that are greater than 3 feet in bankfill width and greater than 0.5 feet in bankfull depth.

30 C.F.R. § 701.5, 44 Fed. Reg. 15321 (1979). Industry plaintiffs complain that the regulatory definition of unconsolidated stream laid deposits is inconsistent with the Act's definition of alluvial valley floors. They further contend the alluvial valley floor regulations seek excessive information and unduly restrict statutory exemptions from the Act's command to protect alluvial valley floors.

1. Definition of Unconsolidated Stream Laid Deposits Holding Streams

The NCA contends that the Act's definition of an AVF — unconsolidated stream laid deposits holding streams — requires that the valley floor "hold streams" with water sufficient to sustain agriculture. The regulatory definition of unconsolidated stream laid deposits,23 however, provides a geographic per se definition (three feet by 0.5 feet). The regulatory definition therefore includes numerous dry gulches that the Act did not intend to protect. The NCA cites, as legislative history support, an exchange between Senators Bartlett and Metcalf. This exchange indicates that the definition of alluvial valley floors failed to include dry water course without irrigation capability. 123 CONG. REC. S8089-97 (daily ed. May 20, 1977).

The NCA misinterprets the meaning of the Secretary's definition of unconsolidated stream laid deposits holding streams. Channel dimensions alone are an insufficient basis for finding an alluvial valley floor. Rather, an alluvial valley floor must satisfy geologic criteria (unconsolidated sfream laid deposits meeting the regulation's dimensions) and hydrologic criteria (water sufficient to sustain agriculture). Hence, those ephemeral or dry streams incapable of supporting agriculture by natural or artificial means fail to qualify as an AVF.

The Senatorial exchange, cited by the NCA, supports the Secretary's definition of unconsolidated stream laid deposits holding streams. This exchange demonstrates that dry water streams without surface or subirrigation capability are excluded from the definition of an AVF, whereas dry water streams with irrigation capability are subject to the Act's protections.24 The key is water availability. Congress' concern is protected whether the AVF contains natural subsurface irrigation or is capable of irrigation by surface means.

The NCA fear that a deposit bed satisfying the dimensional requirements constitutes a per se AVF is thus unfounded. Once the dimensional criterion is satisfied, only those deposit beds that contain sufficient water to sustain agriculture, or are adjacent to a stream capable of supporting irrigation of the stream laid deposits, qualify as an alluvial valley floor. The Secretary's definition thus disposes of the NCA's objection and preserves the intent of Congress.

2.Informational Requirements

This court has sustained the ability of the Secretary to promulgate regulations with respect to permitting and bonding. We therefore address whether the informational requirements of the permit application pertaining to AVFs are arbitrary, capricious, or inconsistent with the law.

Peabody objects to 30 C.F.R. §§ 785.19(a), 785.19(c)(1), and 785.19(d). 44 Fed. Reg. 15375-76 (1979).This regulation requires an application for mining in, adjacent to, or under an AVF, to contain information specific to alluvial valley floors.

The informational requirements of 30 C.F.R. § 785.19 are consonant with the Act. Several sections of the SMCRA expressly command a permit application to include information unique to alluvial valley floors. For example, § 510(b)(5) of the Act, 30 U.S.C. § 1260(b)(5), requires a permit application to demonstrate that the surface coal mining operation "not interrupt, discontinue, or preclude farming on alluvial valley floors that are irrigated or naturally subirrigated." In addition, § 510(b)(5)(B) of the Act, 30 U.S.C. § 1260(b)(5)(B), requires a demonstration that the mining "not materially damage the quantity or quality of water in surface or underground water systems that supply these [alluvial] valley floors . . . ." Finally, § 515(b)(10)(F) of the Act, 30 U.S.C. § 1265(b)(10)(F), requires the operator to preserve "throughout the mining and reclamation process the essential hydrologic functions of alluvial valley floors in the arid and semiarid areas of the country." The Act thus commands an operator, who seeks to mine coal in or around an AVF, to provide additional information in the permit application specific to the values underlying AVF preservation. The regulations at issue merely implement these information requirements.25

Peabody also raises several specific objections to the informational requirements of 30 C.F.R. § 785.19. Two of these arguments address what Peabody terms "redundant negative proof." Peabody first correctly notes that § 510(b)(5) of the Act, 30 U.S.C. § 1260(b)(5), is inapplicable when farming does not occur in or adjacent to the AVF. It secondly points out that § 510(b)(5) fails to apply to mining operations that produced coal in commercial quantities prior to August 3, 1977. The regulations nonetheless fail to afford relief from the informational requirements appurtenant to AVFs in these situations.

We note at the outset that the regulations provide a mechanism to avoid the filing of needless information. An applicant may, with the cooperation of the regulatory authority, conduct limited field studies to determine whether the permit area covers an AVF. 30 C.F.R. § 785.19(c), 44 Fed. Reg. 15375 (1979). If these field studies satisfy the regulatory authority that no AVF exists in or adjacent to the permit area, then the application need not address additional informational requirements of 30 C.F.R. § 785.19.

As to the agricultural information of § 510(b)(5), if an AVF fails to encompass agricultural activities, then the permit application need only present rudimentary evidence of lack of farming. Moreover, the Secretary has conceded that agricultural information is unnecessary in situations involving commercial quantities of coal removal prior to August 3, 1977. In both of these situations, however, hydrologic information must still be provided. If the permit area encompasses an AVF, the hydrologic protections of §§ 510(b)(3) and 515(b)(10)(F) apply regardless of whether farming occurs.

Finally, Peabody argues that the one year time period for hydrologic data, 30 C.F.R. § 785.19(d)(2), 44 Fed. Reg. 15375 (1979), conflicts with this court's order of August 21, 1979. In that opinion the court noted that hydrologic data no longer required a 12 month monitoring. Memorandum Opinion and Order, August 21, 1979, at 34. To the extent the regulation requires monitoring [10 ELR 20220] at the site of the AVF, the court must sustain Peabody's objection. We therefore remand 30 C.F.R. § 785.12(d)(2)(iii) & (iv) to make clear that "water quality analyses describing seasonal variations over at least one full year" need only require an analysis from data collected over a shorter period of time or extrapolations from existing data.

3. Small Acreage Exemption

Section 510(b)(5) of the Act, 30 U.S.C. § 1260(b)(5), enumerates two exclusions from the criteria for approval of mining operations on alluvial valley floors. The first allows mining when the regulatory authority finds that mining activities will interrupt "such small acreage as to be of negligible impact on the farm's agricultural production." The Secretary's test for the small acreage exemption is elucidated at 30 C.F.R. § 785.19(e)(2), 44 Fed. Reg. 15376 (1979):

The effect of the proposed operations on farming will be concluded to be significant if they would remove from production, over the life of the mine, a proportion of the farm's production that would decrease the expected annual income from agricultural activities normally conducted at the farm.

The NCA alleges the regulatory provision emasculates the statutory exception; it effectively converts a small acreage exemption into a total ban of mining activities.

The court agrees with the NCA, and will order the remand of 30 C.F.R. § 785.19(e)(2). The clear language of the Act directs permit approval if the mining will interrupt only a small number of acres. Such mining activity would create a negligible impact on a farm's productive capacity. But the Secretary's definition would prohibit mining in this situation. Interference with a small number of acres may nonetheless result in a decrease of the farm's income. The Act intended the regulatory authority to grant a permit in this situation. Recognizing that the Act affords the Secretary discretion to define the exemption,26 but mindful that the Secretary cannot stray from the intent of the Act, we remand 30 C.F.R. § 785.19(e). The court directs the Secretary to revise the regulation to allow mining on an AVF that results in a negligible impact on the farm's production.27

4. Damage to Hydrology

Section 510(b)(5)(B) requires that mining in an alluvial valley in the west "not materially damage the quantity or qualify of water in surface or underground water systems that supply these valley floors in (A) of subsection (b)(5)." Part (A) of subsection (b)(5) contains an exemption for undeveloped range lands and for interruption of limited farmland acreage that constitutes a negligible impact on the farm's agricultural production. 30 C.F.R. § 785.19(e), 44 Fed. Reg. 15376 (1979), however, subjects undeveloped rangeland and small farm acreage to the hydrologic damage prohibition. Peabody argues that the hydrology requirement of § 510(b)(5)(B) cannot apply to the statutory exemptions of § 510(b)(5)(A).

The Secretary's attempt to extent the hydrology requirements to include the statutory exemptions of § 510(b)(5) is inconsistent with the Act. Section 510(b)(5)(B) prohibits damage to water systems supplying AVFs "in (A) of subsection (b)(5)." The exclusion of negligible farm areas and undeveloped range lands, explicated in § 510(b)(5)(A), therefore applies to the hydrology requirement of § 510(b)(5)(B).

The legislative history confirms applying the exceptions of § 510(b)(5)(A) to the requirements of § 510(b)(5)(B). The Conference Committee Report states:

Permit approval or denial must be based on a written finding by the regulatory authority that . . . the proposed surface mining operation, if located west of the 100th meridian west longitude would not interrupt, discontinue or prevent farming on alluvial valley floors or damage the quantity or quality of water in surface or underground water systems that serve the valley floor (unless the area is subject to one of the exceptions set forth in section 510(b)(5)).

H.R. REP. NO. 95-218, 95th Cong., 1st Sess. 92 (1977). The parenthetical clause excludes the exceptions of § 510(b)(5) from the consideration of whether mining will conflict with hydrology requirements. We therefore remand 30 C.F.R. § 785,19(e)(1)(ii), and direct the Secretary to revise the regulation to allow negligible farmland interruption and undeveloped range lands as exclusions to the hydrology requirements of § 510(b)(5)(B) of the Act.28

VI. Performance Standards

1. Segregation of Subsoil

Section 515(b)(5) of the Act requires the removal and preservation of topsoil for reclamation purposes. This statutoty section also requires the segregation of subsoil "if topsoil is of insufficient quantity or of poor quality for sustaining vegetation, or if other strata can be shown to be more suitable for vegetation requirements."

The Secretary implements the subsoil provision at 30 C.F.R. §§ 816.22(d) & 817.22(d) of the regulations. 44 Fed. Reg. 15397 and 15423 (1979). These regulations require segregation of the B and portions of the C horizons "if the regulatory authority determines that either of these is necessary or desirable to ensure soil productivity consistent with the approved postmining land use." The NCA objects to the regulations for expanding an allegedly narrow statutory exception into a broad one.

The NCA misinterprets the scope of 30 C.F.R. §§ 816.22(d) and 817.22(d). Section 515(b)(5) authorizes segregation if the topsoil cannot sustain vegetation or if the other strata enhance post-mining revegetation. This is essentially what the regulations command. They focus on "soil productivity," and grant the regulatory authority power to require segregation if necessary to improve such productivity. 44 Fed. Reg. 15140 (1979). The Secretary's brief confirms this interpretation. It notes that the regulations command segregation "where the regulatory authority determines that these procedures would result in use of the best available soils materials to support revegetation." Brief at 215. The regulations therefore extend the segregation of subsoil provisions no farther than the Act suggests.

2. Regulation of Explosives

The PCMA alleges that the Secretary lacks statutory authority to issue regulations with respect to explosives. The PCMA secondly argues that, if this court finds the SMCRA provides the Secretary with authority to issue regulations pursuant to exolosives, the regulations promulgated, 30 C.F.R. §§ 816.61-816.67, are inconsistent with the Act. The court finds the Secretary has the authority to develop regulations with respect to explosives. We further find the specific regulations atissue are consistent with the Act.

The PCMA argues that § 515(b)(15) of the Act, 30 U.S.C. § 1265(b)(15), is the only subsection of § 515 wherein Congress employed the term "regulatory authority."29 This allegedly implies that the states and not the Secretary possess the power to regulate explosives.

The court previously rejected a similar argument raised by the plaintiffs with respect to the permit and bonding regulations. Therein, the plaintiffs averred the Act referred primarily to the "regulatory authority." We incorporate the same reasoning in upholding the Secretary's authority to promulgate regulations pursuant to explosives.

[10 ELR 20221]

First, regulatory authority means the state regulatory authority only when the Secretary approves the state program.Section 701(22) of the Act, 30 U.S.C. § 1311(22). But the Act defines a state program as "in record with the requirements of this Act and regulations issued by the Secretary pursuant to this Act . . . ." Second, § 201(c)(2) grants the Secretary authority to "public and promulgate such rules and regulations as may be necessary to carry out the purposes and provisions of the Act." The Secretary's regulations at 30 C.F.R. §§ 816.61-816.67 relate to two purposes of the Act: protection against adverse effects of surface mining operations, § 102(a), and protection of the public interest. Section 102(m). A court should sustain regulations when they reasonably relate to the purpose of the legislation. Mourning v. Family Publication Service, 411 U.S. 356, 372 (1973). Finally, § 501(b) expressly empowers the Secretary to regulate "surface coal mining and reclamation operations performance standards . . . ." Subsection 15 of § 515 constitutes one such performance standard.

The PCMA believes the Secretary's regulations regarding explosives are inconsistent with the Act in that they set national standards instead of site-specific variances. The PCMA hinges its argument upon § 515(b)(15)(C). This subsection requires blasting regulations to "limit the type of explosives and detonating equipment, the size, the timing and frequency of blasts based upon the physical condition of the site . . . ."

The Secretary's regulations, while establishing several uniform standards, nonetheless grant the state regulatory authority power to issue variances based on local conditions. Several examples suffice. 30 C.F.R. § 816.65(f) prohibits blasting within 1,000 feet or 500 feet of certain structures "[e]xcept where lesser distances are approved by the regulatory authority." 30 C.F.R. § 816.65(a) requires blasting between sunrise and sunset. Subsection (2) of that regulation nonetheless allows the state regulatory authority to deviate from this requirement in certain circumstances. Finally, 30 C.F.R. § 816.65(i) establishes a peak particle velocity standard. But the regulatory authority enjoys the discretion to reduce the standard based on "site specific" factors. These provisions demonstrate that the Secretary has promulgated national standards for explosives; however, they may be implemented and varied by the local regulatory authority in accordance with site specific conditions. The regulations are therefore consistent with the Act.

3. Control of Dams Impounding Waste

The NCA objects to the Secretary's regulations addressing dams impounding waste. 30 C.F.R. §§ 816.91-816.93 & 817.91-817.93, 44 Fed. Reg. 15409-10 & 15436-37. The NCA argues these regulations cannot be grounded in § 515(b)(13) of the Act. 30 U.S.C. § 1265(b)(13). It notes this court previously held that § 515(b)(13) calls for the regulation of dams constructed of waste materials but not for the regulation of dams impounding waste. In re Surface Mining Regulation Litigation, 452 F. Supp. 327, 341 [8 ELR 20407] (D.D.C. 1978).

The NCA's assertion that this court's prior ruling is res judicata with respect to the regulations at issue is incorrect. The court noted in its previous opinion:

Because the regulation in question was not promulgated pursuant to Section 515(b)(10) the court will not decide the issue of the extent to which the Secretary may regulate dams impounding wastes under that section.

Id. at 341 n.19. Upon review of § 515(b)(10), the court now rules that the Secretary derives authority to regulate dams impounding waste pursuant to this section.

Section 515(b)(10) empowers the Secretary to minimize disturbances to the hydrologic balance at the minesite and associated offsite areas. This section specifically seeks the avoidance of toxic mine drainage by, inter alia: (1) preventing contact of water with toxic producting deposits, subsection (A)(i); and (2) preventing the contribution of suspended solids into streamflow. Subsection (B)(i). The regulations in question accomplish these objectives.

Slurry ponds30 can cause water pollution when the suspended solids carry over into public streams. WAHLER AND ASSOCIATES, POLLUTION CONTROL GUIDELINES FOR COAL REFUSE PILES AND SLURRY PONDS (1978) 80, Control No. 663.6, cited at 44 Fed. Reg. 15203 (1979). This water, at times, is acidic. Id. The stability of the retaining dam is the critical factor in preventing carry over. Id. When a dam fails, downstream pollution results. The regulations at issue thus seek to ensure the stability of dams or enbankments containing waste. Since one of the major purposes of these regulations is the protection of the hydrologic balance, § 515(b)(10) authorizes their promulgation.

4. Cover of Hazardous Material

30 C.F.R. §§ 816.103(a)(1) & 817.103(a)(1) require the mining operator to cover hazardous materials with a minimum of four feet of nontoxic, noncombustible material. The NCA objects to these regulations because they fail to allow the operator the option to treat the hazardous elements. The Heine affidavit, paragraph M, suspends these regulations. See December 21, 1979 Order at 2.

5. Coal Operator's Use of Land After Reclamation

The Secretary's regulations require that an operator who proposes range or pasture land for post mining land use must actually use the land for grazing for the last two years of bond liability. 30 C.F.R. §§ 816.115 and 817.115, 44 Fed. Reg. 15413 and 15439 (1979). Similarly, 30 C.F.R. §§ 823.11(c), 823.15(b), and 823.15(c) require that prime farmlands within the permit area must actually support crops. The NCA argues the Secretary lacks a statutory basis to require actual grazing and mandatory crop production. It believes the Act only requires an operator to restore the land so that it is capable for use as pasture land or prime farmland.

The Secretary attempts to justify 30 C.F.R. §§ 816.115 and 817.115 on § 515(b)(19) of the Act, 30 U.S.C. § 1265(b)(19). This attempt is unpersuasive. Section 515(b)(19) requires the operator to establish permanent vegetative cover, capable of revegetation, "at least equal in extent of cover to the natural vegetation of the area." This section simply commands the establishment of a permanent vegetative cover. It fails to imply that proposed post mining pasture or graze land must actually be subjected to grazing activities.

The House Committee Report supports this interpretation. It states that "[g]razing use of such lands during the period of operator responsibility is allowable . . . ." H.R. REP. NO. 95-218, 95th Cong., 1st Sess. 109 (1977). By speaking permissively, rather than mandatorily, the House report suggests that grazing may be one method of demonstrating revegetation capability. But it certainly is not the only method, and it would be arbitrary and capricious to force coal operators to engage in this enterprise.

The court similarly finds the Act fails to provide statutory support for requiring coal operators to engage in farming. The Secretary cites §§ 515(b)(7), 510(d)(1), and 515(b)(20) of the Act. 30 U.S.C. §§ 1265(b)(7), 1260(d)(1), and 1265(b)(20). These statutory enactments do not command a coal operator to actually farm the land.31 Instead, they direct the operator to demonstrate capability of prime farmlands to support pre-mining productivity. This capability can be demonstrated by a soil survey.

6. Period for Measuring Success

The NCA objects to regulations that delay triggering a coal operator's responsibility for successful revegetation until the vegetation reaches 90% of the natural cover in the area. 30 C.F.R. § 816.116(b), 44 Fed. Reg. 15413, 30 C.F.R. § 817.116(b), 44 Fed. Reg. 15439 (1979). Section 515(b)(20) of the Act, 30 U.S.C. § 1265(b)(20), requires coal operators to "assume responsibility for successful revegetation . . . for a period of five full years after the last year of augmented seeding, fertilizing, irrigation, or other work, in order to assume compliance with paragraph (19)."32 The challenged regulations therefore delay counting the five year [10 ELR 20222] period until the coal operator meets the Secretary's standard for vegetative cover density.

The court agrees with the NCA that the regulations are without support in either the Act or the legislative history. Rather than extending liability from the point at which the coal operator meets the vegetative standards of § 515(b)(19), the language of § 515(b)(20)33 intends to impose liability for five years from the point at which the coal operator has completed seeding and fertilizing. This constitutes the middle, rather than the end of the process of meeting the 90% vegetation requirement of § 515(b)(19).

The legislative history support this interpretation. The House Committee Report, in deciding upon a five year liability period, noted that it takes, on the average, four years to reclaim mine sites. H.R. REP. NO. 95-218, 95th Cong., 1st Sess. 109 (1977). For areas where precipitation is less than 26 inches per year, the same report noted that "the length of time necessary to reestablish vegetation or mining spoil varies considerably . . . [and] ranges from 10 years upward. Thus a 10 year standard of the bill represents a minimum time under the most favorable circumstances." Id. The House focused not on attaching a 5 or 10 year liability period after successful revegetation occurs, but directed a 5 or 10 year period to enable the coal operator to achieve successful revegetation. The court therefore remands these regulations. We suggest that the 5 or 10 year liability period begin "after the last year of augmented seeding, fertilizing, [and] irrigation."

7. Restoration of Previously Mined Land

The NCA objects to 30 C.F.R. §§ 816.133(b)(1) and 817.133(b)(1), 44 Fed. Reg. 15415, 15441 (1979). These regulations require that previously mined but unreclaimed land be restored to the "highest and best use . . . compatible with surrounding areas." The NCA, relying on § 515(b)(2), believes an operator has an option to either: (1) restore the land to its condition prior to the most recent mining; or (2) restore the land to a more useful condition. Hence, if an operator mines land previously mined but unrestored, the operator need only restore it to the state that existed before its most recent mining.

The NCA's interpretation of § 515(b)(2) is without merit. That section requires the coal operator to "restore the land affected to a condition capable of supporting the uses which it was capable of supporting prior to any mining or higher or better uses of which there is reasonable likelihood . . . ." The use of the word "any" indicates that Congress intended the operator to restore the land to the condition that existed before it was ever mined. Moreover, the language" capable of supporting" refers to the land's potential as a productive segment of the area.

The Senate Report supports this finding. It states:

The description [of the land] must also include an evaluation of the capability of the site to support a variety of uses prior to any mining disturbances . . . . It is important that the potential utility which the land had for a variety of uses be the benchmark rather than any single, possibly low value, use which by circumstances may have existed at the time mining began.

S. REP. NO. 95-128, 95th Cong., 1st Sess. 76-77 (1977). By referring to "potential utility," rather than to "low value," the Senate Report makes clear that restoration of previously mined land must be upgraded to support its utility for productive use.

8. Letter of Commitment for Alternate Postmining Land Use

30 C.F.R. §§ 816.133(c) and 817.133(c), 44 Fed. Reg. 15416 and 15441 (1979), provide the conditions under which postmining land use may differ from premining capability. The NCA objects to (1) subsection (c)(4) of these regulations, requiring letters of commitment to accompany the permit application to demonstrate "that financing, attainment and maintenance of the postmining land use are feasible"; and (2) subparagraph (c)(9)(i) that requires, for lands converted to crop production, a firm written commitment by the operator, landowner, or land manager "to provide sufficient crop management after release of applicable performance bonds . . . to assure that the proposed postmining cropland use remains practical and reasonable." The NCA believes that § 515(b)(2), in addressing post-mining and conversion from pre-mining uses, requires only a "reasonable likelihood" of alternate use that is higher or better than previous use. Legally binding commitment letters therefore exceed the statutory standards.

The court agrees with the NCA and will remand these regulations. The Act only requires an operator to demonstrate a reasonable likelihood of sustaining higher or better use. Reasonable likelihood fails to imply "a letter of commitment" from third parties, subsection (c)(4) of the regulations, or "a firm written commitment," subsection (c)(9) of the regulations. These regulatory commitments substantially exceed the dictates of the Act and are therefore inconsistent with the SMCRA.

9. Surface Owner Protection Against Subsidence

The NCA objects to 30 C.F.R. § 817.124, 44 Fed. Reg. 15440. This regulation requires a mining operator to correct or compensate a surface land owner for damages caused by subsidence. The regulation affords the operator one of three alternatives: (1) restore the damaged structure and the land; (2) purchase the damaged structure and restore the land; or (3) compensate the owner and restore the land.

The NCA alleges this regulation is inconsistent with § 507(f) of the Act, 30 U.S.C. § 1257(f). Section 507(f) requires a permit applicant to purchase liability insurance for personal and property damage caused by surface coal mining. The NCA believes the Act restricts the Secretary to the imposition of an insurance requirement with respect to subsidence damage.

Contrary to the allegation of the NCA, all three alternatives in 30 C.F.R. § 817.124 find support in the Act. The restoration alternative is consonant with § 515(b)(2) of the Act, 30 U.S.C. § 1265(b)(2). This provision requires the coal operator to restore "the land affected to a condition capable of supporting the uses which it was capable of supporting prior to any mining . . . ." The purchase and dismantle alternative only effectuates the command of § 517(f). That section requires the coal operator to insure the owner against property damage. The compensation alternative, similar to the second alternative, is also essentially an insurance mechanism authorized by § 507(f).34

10. Buffer Zone for Underground Mining

The NCA attacks 30 C.F.R. § 817.126, 44 Fed. Reg. 15441 (1979). This regulation prohibits underground mining beneath or adjacent to streams, public buildings, and aquifers if such mining will cause material damage to these natural resouces or buildings.

There is little question that 30 C.F.R. § 817.126 is authorized by several sections of the SMCRA. For example, § 516(b)(1) of the Act, 30 U.S.C. § 1266(b)(1), directs the Secretary to "adopt measures . . . to prevent subsidence causing material damage . . . ." Section 516(b)(9) of the Act, 30 U.S.C. § 1266(b)(9), authorizes the Secretary to minimize disturbances to the hydrologic balance. The prohibition of mining that threatens material damage to surface structures and water resources helps to implement these statutory commandments.35

[10 ELR 20223]

VII. Enforcement

1. Warrantless Inspections

Virginia attacks two aspects of the Secretary's regulation governing warrantless inspections. 30 C.F.R. § 840.12, 44 Fed. Reg. 15456 (1979). It believes warrantless inspections cannot apply either to coal exploration operations or to unpermitted coal mining and reclamation operations. This court previously found permissible warrantless inspections in the permit area. In re Surface Mining Regulation Litigation, 456 F. Supp. 1301, 1317 (D.D.C. 1978). We likewise find warrantless inspections pursuant to exploration and unpermitted operations are consonant with the Act.

Virginia's attack on exploration searches relies on this court's previous opinion addressing the interim regulations. The court therein framed the issue of warrantless inspections as pertaining to "the permit area." Id. Because exploration removing less than 250 tons requires notice rather than a permit, Virginia believes a regulatory authority is without power to search non-permit exploration operations.

This interpretation of searches belies the purpose of the Act's enforcement provisions. Enforcement provisions, including searches, are designed to ensure compliance with the Act's performance standards. Section 512(a) of the Act, 30 U.S.C. § 1262(a), applies performance standards to coal exploration operations.Section 512(c) of the Act, 30 U.S.C. § 1262(c), directs the regulatory authority to enforce compliance with the performance standards against "any person." The enforcement mechanisms available for permitted and for exploration operations are thus identical. This court's prior ruling that warrantless inspections properly attach to permitted coal operations therefore mandates application of this valuable enforcement mechanism to exploration operations.

Virginia argues that warrantless inspection pursuant to unpermitted mining operations is inconsistent with this court's previous opinion and with the Act. However, anyone who mines without a permit, absent narrow exceptions, violates the SMCRA. Section 502 of the Act, 30 U.S.C. § 1252. Unpermitted mining operations that violate the Act are perhaps the most flarant type of violation. The regulatory authority must therefore enjoy the same enforcement mechanisms pursuant to violators with, and violators without, permits.36

2. State Court Trial De Novo

Virginia objects to the Secretary's statement in the preamble that discourages trial do novo following administrative hearings on penalties and sanctions. 44 Fed. Reg. 15296 (1979). It believes that § 526(e) of the Act, 30 U.S.C. § 1272(e), directing "judicial review . . . in accordance with State law . . . .", allows a state to determine the form of judicial review appurtenant to enforcement actions.

Section 526(b) of the Act, 30 U.S.C. § 1276(b), requires that judicial review of administrative enforcement proceedings be based "solely on the record." Because § 521(d)37 requires state program enforcement provisions "the same or similar" to the federal procedures, the language of § 526(b) arguable prohibits de novo review.

The Secretary, however, has adopted a reasonable and flexible approach. According to the Secretary:

If a State can demonstrate that its review procedures contain adequate safeguards to prevent the subversion of the enforcement program that seems likely to occur under trial de novo, while at the same time allowing for such trials, then the Secretary would deem such procedures to be the "same or similar" as the federal procedures within the meaning of Section 521(d). 30 U.S.C. 1271(d).

Brief at 304. This approach is consonant with the Act. The Act perceives judicial review as based on the record. If, however, a state can prescribe a trial de novo procedure that does not unduly interfere with expeditious review and other values attendant to the enforcement program, then the Secretary will allow the procedure.38

VIII. Miscellaneous

1. Definition of Permittee

Virginia objects to the regulatory definition of the term "permittee." The regulation defines a permittee as "a person holding or required by the Act of Chapter VII to hold a permit to conduct surface coal mining and reclamation operations." 30 C.F.R. § 701.5, 44 Fed. Reg. 15320 (1979). Virginia argues this definition impermissibly expands the definition espoused in the Act, which defines permittee as "a person holding a permit." Section 701(18) of the Act, 30 U.S.C. § 1291(18).

This definition is consonant with the Act. The Act makes clear that "no person shall engage in . . . surface coal mining operations unless such person had first obtained a permit . . . ." A permittee must obey the Act's performance standards on pain of assessment of civil penalities. In fact, § 515(b) of the Act applies the performance standards to "all surface coal mining and reclamation operations . . . ." This definition fails to differentiate between permitted and unpermitted regulations. Therefore, the Secretary should be allowed to regulate unpermitted operations; such operations violate the Act and the Secretary is directed to apply the performance standards of the Act to such coal mining operations.

2. Variance Only For Steep Slope

Section 515(b)(3) of the SMCRA requires each operator "to restore the approximate original contour of the land." Section 515(e) of the Act provides for a variance from this requirement. 30 C.F.R. § 785.16 implements the variance provision of § 515(e). The regulation provides for variances from steep slopes; slopes exceeding 20 degrees. Peabody, believing the Act allows variances for slopes of all degrees, attacks 30 C.F.R. § 785.16 as unduly restricting the opportunity for obtaining a variance from the counter restoration requirement.

Peabody argues that the Act dictates two separate variance provisions. According to Peabody, § 515(e)(1) provides a general variance mechanism. Under this provision, a permittee need only meet the requirements of § 515(e)(3). Section 515(e)(2), under this scheme, establishes a separate variance procedure for steep slopes.

Peabody's reading of the statute is seriously in error. Section 515(e) of the Act contains one variance provision; it applies to steep slopes. Rather than calling for a general variance mechanism, § 515(e)(1) establishes the right to apply for a variance. It directs the regulatory authority to "include procedures pursuant to which the regulatory authority may permit variances . . . ." Section 515(e)(2) defines the scope of the variance provision and explicates the substantive criteria a permittee applicant must demonstrate to the regulatory authority. Section 515(d)(2) restricts the variance application to the contour restoration requirements of subsection 515(d)(2) (steep slopes).

Whatever ambiguity may be read into § 515 is dispelled upon examination of the legislative history. Senator Ford of Kentucky first introduced the concept of a variance mechanism. His proposal found its way into the statute at § 515(e). He introduced his amendment to seek a variance procedure for the steep slopes of Kentucky and Appalachia.

The debate of the Ford amendment reveals that its chief concern was the attainment of an exception for Appalachian steep slopes.See 123 CONG. REC. S8097-8103 (daily ed. May 20, 1977). Senator Ford stated:

The amendment speaks for itself. S.7 as written and reported, requires return to approximate original contour in every instance where mining is undertaken on slopes in excess of 20 degrees . . . . My amendment proposes a variance [10 ELR 20224] procedure from this absolute requirement.

Id. at S.7867 (daily ed. May 19, 1977). The Conference Report buttresses this conclusion. It is in discussing steep slopes that the report reviews the Senate amendment seeking a variance from the original contour of steep slopes. H.R. REP. NO. 95-493 at 108.

An appropriate Judgment accompanies this Memorandum.


This matter came before the court on cross-motions for summary judgment. Upon review of the memoranda submitted in this matter, the applicable law, and the arguments offered at oral hearing, it is, by the court, this 26th day of February 1980,

ORDERED that the following regulations be remanded to the Secretary for revision in accordance with the foregoing Memorandum: 30 C.F.R. §§ 732.15(b)(7), 840.13(a), 761.5(a)(2)(i), 701.5 (mine plan area), 779.20, 780.16, 779.21, 783.21, 807.11(e), 808.14(b), 785.19(d)(2)(iii) & (iv), 785.19(e)(2), 785.19(e)(1)(ii), 816.115, 817.115, 823.11(c), 823.15(b), 823.15(c), 816.116(b), 817.116(b), 816.133(c), and 817.133(c); and it is further

ORDERED that the term "mine plan area," found at 30 C.F.R. §§ 779, 780, 783, and 784, be suspended; and it is further

ORDERED, ADJUDGED, and DECREED that the defendant be granted summary judgment with respect to all other matters considered in the foregoing Memorandum.

1. The court previously ruled on the plaintiffs' motions for preliminary relief. The court granted the motions filed by the State of Illinois and Commonwealth of Virginia to enjoin enforcement of the August 3, 1979 deadline for submission of state programs. The industry motions for preliminary relief were denied. Memorandum Opinion, August 21, 1979 [9 ELR 20720].

2. Briefs were submitted by: (1) the National Wildlife Federation; (2) the Pennsylvania Coal Mining Association; (3) the National Coal Association; (4) Peabody Coal Company; (5) the State of Illinois; and (6) the Commonwealth of Virginia.

3. Disapproval of a State program does not automatically result in imposition of the federal regulations. The Act allows a State 60 days to resubmit a revised program. Section 503(c) of the Act, 30 U.S.C. § 1253(c).

4. Illinois brief at 21 (Secretary has arbitrarily extended stringency concept "into performance standard context").

5. With respect to the requirements of State Program consistency with the Act itself, adopted in Section 730.5(a), Illinois believes the Secretary has generally correctly concluded that the State programs must meet minimum requirements of the Act. Frankly, it seems to Illinois that that is all that is properly needed to describe what is required of the States to obtain program approval.

Illinois brief at 19.

6. Illinois notes that § 504(e) of the Act, 30 U.S.C. § 1254(e), requires a state program to meet the criteria enumerated in § 503(a)(1)-(6). The failure to include § 503(a)(7), according to Illinois, evinces Congressional intent that state programs need not be consistent with federal regulatory specifications.

The court recognizes the ambiguity raised by § 504(e).This ambiguity is easily resolved by resort to the Act's clear definition of a state program. In defining a state program as "in accord with the requirements of this Act and regulations issued by the Secretary," 30 U.S.C. § 1291(25), the Act leaves little room for doubt that a state program must meet the minimum requirements of both the Act and the Secretary's regulations.

7. Procedural matters, such as the public participation, notice, and hearing provisions, provide examples of requirements that fail to qualify as results.

8. The full text of the first sentence of § 521(d) of the Act, 30 U.S.C. § 1271(d), provides:

As a condition of approval of any State program submitted pursuant to section 503 of this Act, the enforcement provisions thereof shall, at a minimum, incorporate sanctions no less stringent than those set forth in this section, and shall contain the same or similar procedural requirements relating thereto. (emphasis added)

9. This analysis is also consistent with the purposes of the Act. Section 102(i) of the Act, 30 U.S.C. § 1202(i), provides that the Act shall "assure that appropriate procedures are provided for the public participation in the development, revision, and enforcement of regulation, standards, reclamation plans, or programs established by the Secretary or any State under this Act."

10. Imposition of a uniform civil point system upon the states is unlike requiring state programs to include citizen access and civil suit provisions. The court upheld these provisions based on language in § 521(d). The court found citizen suits, expressly articulated in § 520(a) of the Act, to constitute one of the procedures incorporated within § 521(d). Similarly, the court concluded that citizen access is encompassed within the "enforcement provisions" of § 521.

Herein, § 518(i), like § 521(d), requires state programs to incorporate penalties and procedures no less stringent than those set forth in the Act. But neither the penalties of § 518(i), nor the procedures enforcing those penalties, refer to a point system. It is therefore arbitrary to require the states to exactly parallel the Secretary's penalty system.

A state must nonetheless incorporate the four criteria enumerated in the Act within its own penalty system. Section 518(a) of the Act, 30 U.S.C. § 1268(a).

11. This also moots Illinois' objection to 30 C.F.R. § 761.12(b). Illinois objected to this regulation because it directed the regulatory authority to determine the existence of a valid existing right without looking to applicable state court decisions.

12. The NCA also objects to the requirement that a waiver by a previous owner is ineffective against subsequent owners. The Heine affidavit, paragraph F, suspends this requirement.

13. If all petitioners stipulate to a withdrawal of the hearing request, then the hearing need not be held.

14. The Secretary notes that nothing prevents the state regulatory authority from providing additional procedural safeguards in unusual circumstances. The court, therefore, confronts this issue as whether, under normal circumstances, an adjudicatory type hearing is required.

15. The regulatory authority must balance several policies in reaching a § 522(a)(3) determination. These include: the benefits of the reclamation project versus land use plans; historic, cultural, scientific and esthetic values; water supply; productivity; and geology. See § 522(a)(3)(A)-(D). Such policy conflicts necessitate rulemaking that concerns an area of land rather than one particular operation.

16. The court does not read § 512(d) to mean the Secretary cannot require written approval for coal exploration removing less than 250 tons. Section 512(d) merely requires approval for any exploration removing more than 250 tons. It is silent on whether, and, in what situations, approval may be necessary for exploration removing less than this amount.

17. The PCMA also alleges the Secretary lacks power to promulgate exploration regulations. The court's analysis upholding the Secretary's power to issue permit and bonding regulation applies with equal force to exploration regulations.

18. Illinois argued the Act failed to grant the Secretary authority to promulgate any regulations.See opinion at 3-7. Herein, both the PCMA and Peabody concede that the Act grants the Secretary rulemaking authority. According to Peabody:

[T]he Act gives the Secretary authority to prescribe regulations under Title V in respect to review of state programs, performance standards, and federal lands, and in respect of his supervision of state inspections.

Brief at 6. The PCMA takes a more parsimonious view of the Secretary's rulemaking authority. It believes the Act limits the Secretary's regulations to performance standards and procedures for the submission of state programs.Brief at 1.

n18A The court finds the permit, bonding, and exploration operations relate to several purposes of the SMCRA. See, e.g., § 102(a) (protection against adverse effects of surface mining); § 102(c) (prohibition of mining where reclamation unfeasible); § 102(c) (protection of environment); § 102(e) (assurance of adequate reclamation); § 102(h) (reclamation of previously unreclaimed land).

19. Section 201(c)(2) achieves its full significance when read in tandem with the Act's definition of a state program. As explained above, a regulatory authority means state authority only when the Secretary has approved the state program. And the Act defines a state program as meeting the Secretary's regulations. Since the Act grants the Secretary broad rulemaking authority under § 201(c)(2), approval of a state program necessarily entails consistency with the Secretary's permitting and bonding regulations.

n19A The court does not uphold the Secretary's power to promulgate permit, bonding, and exploration regulations without examining the legislative history. Our examination reveals that the Senate, House, and Conference Committee Reports failed to directly address this issue. Absent clear legislative history to the contrary, statutory language granting an agency authority over a particular subject area mandates upholding the power of that agency to promulgate regulations thereunder. National Small Shipments Traffic Conference, Inc. v. Civil Aeronautics Board, No. 78-2163 (D.C. Cir. Feb. 11, 1980), Slip Op. at 17.

20. The court believes that lack of prohibition constitutes an insufficient justification for regulations imposing informational requirements upon the permit application.

21. The preamble fails to discuss why the regulation did not include an access provision. See 44 Fed. Reg. 15120-21 (1979).

22. We note the initial version of 30 C.F.R. § 808.14(b), 43 Fed. Reg. 41872 (1978), called for full forfeiture, reclamation funded by bond forfeiture, and return of the excess money.

23. Peabody is the only plaintiff urging the court to defer a decision on the validity of the regulations clarifying the term alluvial valley floors. It believes the court can properly determine validity only in the context of a specific grant or denial of a permit by a regulatory authority. Section 526(a)(1) of the Act, 30 U.S.C. § 1276(a)(1), makes clear that "[a]ny action by the Secretary promulgating national rules or regulations is subject to judicial review in the United States District Court for the District of Columbia within 60 days from the date of their enactment. The regulations defining alluvial valley floors constitute final agency rulemaking subject to judicial review. These regulations fail to engender constitutional issues, for which doctrines of judicial restraint are well established.

24. Senator Melcher stated:

We are really talking about valley floors where you can farm, and where there is irrigation water either on the surface or subsurface, that helps that farming . . . I think the intent of the committee bill that we have before us, is to limit strip mining on valley floors where there is farming done, either by surface irrigation or subirrigation.

123 CONG. REC. S8089-90 (daily ed. May 20, 1977).

25. 30 C.F.R. § 785.19(c) allows the regulatory authority to determine whether the permit application proposes to mine on an AVF. Subsection (d) of § 785.19 requires additional information if the processes required in subsection (c) reveal the operator proposes to mine on AVF.

26. "I doubt if there is any ambiguity [in the acreage exemption] that cannot be interpreted either by Secretarial regulation or by an appeal to an appropriate court." 123 CONG. REC. S8039 (daily ed. May 19, 1977) (remarks of Sen. Metcalf).

27. The legislative history supports this result. Senator Melcher, who sponsored the amendment that added § 510(b)(5) of the Act, 30 U.S.C. § 1260(b)(5), stated that he envisioned 60 out of 1,000 acres as qualifying for the negligible impact exemption. 123 CONG. REC. S8144 (daily ed. May 20, 1977).

28. The Secretary's attempt to justify the regulation on the basis of §§ 510(b)(3) and 515(b)(10)(F), 30 U.S.C. §§ 1260(b)(3) and 1265(b)(10)(F), is unpersuasive. Section 510(b)(3) requires a regulatory authority to find that a mining operation not upset the hydrologic balance outside a permit area. Section 515(b)(10)(F) requires preservation of the hydrologic functions of alluvial valley floors.But § 510(b)(5) clearly legislates an exception to these requirements for undeveloped rangelands and negligible impact on a farm's production.

29. The lead in language of § 515(b)(15) requires that explosives be used "only in accordance with existing State and Federal law and the regulations promulgated by the authority."

30. Slurry ponds are caused by washing coal to remove impurities.

31. Section 515(b)(7) establishes soil reclamation standards. Section 515(b)(20) requires successful revegetation cover. Section 510(d)(1) requires the operator, in his permit application, to demonstrate technological capability to restore the mined area to prime farmland. In addition, § 519(c) requires that bond be withheld until the operator demonstrates "soil productivity for prime farm lands . . . as determines from the soil survey . . . ."

32. Section 515(b)(20) extends the period of responsibility to 10 years for lands where average annual precipitation is less than 26 inches per year.

33. Section 515(b)(20) contemplates triggering the time period "after the last year of augmented seeding, fertilizing, irrigation, or other work in order to assure compliance with paragraph (19) . . . ."

34. The NCA also alleges that theSecretary afforded an inadequate opportunity to comment on 30 C.F.R. § 817.124. It believes the Secretary failed to provide adequate notice and opportunity to comment, as required by 5 U.S.C. § 553. This objection is without merit.

Section 4 of the Administrative Procedure Act, 5 U.S.C. § 553, requires a final regulation to be within the scope of the notice of proposed rule. Ethyl Corp. v. EPA, 541 F.2d 1, 48 [6 ELR 20267] (D.C. Cir. 1976), cert. denied, 426 U.S. 941. Herein, the prepublication draft of the regulation, noticed in the Federal Register on July 24, 1978, 44 Fed. Reg. 31954, required underground operators to provide a warrant guarantee against subsidence damage to surface structures. The preamble of the proposed rule, published on September 18, 1978, stated the drafters:

considered and rejected alternative language which would have required the operator to assume liability for subsidence damage, purchase a non-cancellable property insurance policy in favor of the surface owner . . . .

43 Fed. Reg. 41784 (1978). The prepublication draft and the preamble provided sufficient notice to alert the public that the regulation finally adopted was under consideration.

35. The NCA also raises a taking issue with respect to this regulation. The court previously decided that constitutional questions appurtenant to taking are premature.

36. The court reiterates the Secretary's representation that a warrant must be obtained before entering any building. In re Surface Mining Regulation Litigation, 456 F. Supp. 1301, 1317 (D.D.C. 1978). This applies whether the mining area is permitted, a non-permit exploration area, or an unpermitted operation.

37. The court has established that both phrases of the first sentence of § 521(d) refer back to "enforcement provision." See opinion at I.C. 4 (citizen access). The procedural requirement of de novo review thereby is encompassed by § 521(d).

38. It appears that Virginia envisioned this possibility. Its legislature promulgated a provision for trial de novo review. But that statute provides:

[I]n the event the jury trial de novo provision provided for herein is disapproved by the Secretary, such provision shall be severable from this act and shall be of no effect.

Section 45.1-251 of the Code of Virginia, cited in Brief at 26.

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