Eastover Mining Co. v. Andrus

No. 80-17 (E.D. Ky. January 6, 1982)

The court rules that the Surface Mining Control and Reclamation Act (SMCRA) authorizes the concurrent enforcement of SMCRA regulations by the Commonwealth of Kentucky and the Secretary of the Interior. Initially, the court rules that it, not the District Court for the District of Columbia, has jurisdiction since the proceedings reviewed are adjudicative and not rulemaking. The court then rules that, on the facts of the case, the Secretary is authorized to enforce SMCRA even though the commonwealth had already initiated an enforcement action for the same violations and had given the mine operator a grace period in which to correct them. The court concludes that the Secretary's action is supported by substantial evidence.

Counsel for Plaintiff
Karl S. Foster
P.O. Box 935, Harlan KY 40831
(606) 573-7000

Counsel for Defendant
Charles P. Gault
Office of Surface Mining
Dep't of the Interior, P.O. Box 15006, Knoxville TN 37901
(615) 971-5100

Louis G. DeFalaise, U.S. Attorney
P.O. Box 1490, Lexington NY 40591
(606) 233-2661

[12 ELR 20923]

SILER, J.:

Memorandum

This matter is before the Court on the parties' crossmotions for summary judgment. Pursuant to § 526(a)(2) of the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. § 1272(a)(2) (1981), the plaintiff, Eastover Mining Company ("Eastover"), filed this action seeking judicial review of a judgment of the Office of Hearings and Appeals of the Interior Board of Surface Mining and Reclamation Appeals, United States Department of the Interior, dated January 21, 1980. The plaintiff contends that the Secretary erred as a matter of law in holding that the federal Office of Surface Mining Reclamation and Enforcement (OSM) is authorized under the Surface Mining Act to issue a notice of violation and to assess a civil penalty for non-compliance, where the Kentucky Department for Natural Resources and Environmental Protection ("Kentucky") had already initiated an enforcement action for the same violations. The federal defendants ("Secretary") respond that the plaintiff lacks jurisdiction to challenge the Secretary's decision and that the Secretary has concurrent authority to issue notices of violation inconsistent with state regulatory authority. After a review of the record, and the novel issues raised by counsel, in accordance with this Memorandum, the motion by the Secretary will be granted and the Secretary's order will be enforced. Eastover has not contested the amount of the assessment, so the Court will not consider reducing the penalty, as provided in 30 U.S.C. § 1268(c).

Eastover is engaged in coal mining operations at three facilities in Bell and Harlan Counties, Kentucky and at one facility in Virginia. This matter concerns the unit at Arjay, Bell County, Kentucky. Beginning in November, 1978, and continuing until March 14, 1979, Kentucky inspectors visited Eastover's mine site at Arjay. On January 25, 1979, Kentucky inspector visited Eastover's mine site at Arjay. On January 25, 1979, Kentucky found Eastover to be not in compliance with state and federal mine waste discharge and disposal regulations, ordered that remedial measures be instituted, and gave the plaintiff until April 15, 1979, as a grace period, to comply with the state order.

On March 29, 1979, Michael J. Superfesky, an OSM inspector from the Pineville, Kentucky, office, visited the Arjay mine site. Although Mr. Superfesky knew that the state agency had been regularly inspecting and supervising their facility, since over 400 residents had lodged a citizens' complaint concerning the mine's pollution of a nearby stream, Mr. Superfesky felt compelled to take independent action. On March 30, after completing a two day inspection, pursuant to § 502(e) of the Act, 30 U.S.C. § 1252(e), the inspector issued a notice of violation alleging several based of non-compliance with federal regulations. The notice was issued over the contemporaneous protests of Eastover personnel. Eastover employees informed the inspector that Eastover knew it was not in compliance with law and that it had been cooperating with and receiving assistance from the state, and that it had been given until April 15, the state-imposed deadline, to come into compliance.

Eastover contested the notice of violation. On June 7, 1979, a consolidated hearing was held on the notice of violation and the civil penalty. The administrative law judge held that the violations had in fact occurred. He did not pass on the amount of the penalty assessed, $5,800.00, as Eastover did not contest it.The judge also concluded that dual and inconsistent enforcement of state and federal regulations were permissible, although perhaps not contemplated, under 30 C.F.R. §§ 721, 722.Following application for discretionary review by Eastover, on January 21, 1980, the Interior Board of Surface Mining and Reclamation Appeals affirmed the decision of the administrative law judge. In compliance with the short statute of limitations for judicial review of the Secretary's decisions, 30 U.S.C. § 1272(a)(2), the plaintiff filed this suit on February 7, 1980.

As a preliminary matter, the federal defendants contend that this Court lacks jurisdiction because the plaintiff seeks to attack the validity of the Secretary's regulations governing federal inspection and enforcement procedures. 30 C.F.R. §§ 721, 722. Because judicial review of rules and regulations promulgated by the Secretary pursuant to the Surface Mining Act must be brought in the United States District Court for the District of Columbia Circuit, 30 U.S.C. § 1276(a)(1), the defendants suggest that this action be dismissed. The defendants, however, cannot avoid judicial review of administrative decisions merely by alleging that the plaintiff seeks to challenge enforcement of enacted regulations. Rulemaking decisions are decisions of general questions of policy and of law, and generally affect the regulated industry as a whole. Adjudicatory decisions are decisions on specific facts about particular problems, and generally do not affect the regulated industry as a whole. United States v. Florida East Cast Railway Co., 410 U.S. 224, 245 (1973); Independent Bankers Association of Georgia v. Board of Governors, 516 F.2d 1206, 1215 (D.C. Cir. 1975). Compare 5 U.S.C. § 553 (1981) with 5 U.S.C. § 554 (1981).

It is clear from the face of the complaint that the decision of the Secretary arose out of adjudicatory proceedings relating to the [12 ELR 20924] activities of the plaintiff coal company, and did not arise from formal or informal rulemaking proceedings, purporting to affect the activities of the industry as a whole. No doubt, the defendants are correct in their assertion that judicial review of rules and regulations in just one forum ensures uniformity. But the benefits of uniformity were never deemed by Congress to outweigh the costs of compelling judicial review of adjudicatory proceedings in one specific forum. Compare 30 U.S.C. § 1276(a)(1) with 30 U.S.C. § 1276(a)(2). Challenges to either the enforcement or enactment of Congressional legislation or administrative regulation do not transform by some alchemy an adjudicatory proceeding into a rulemaking proceeding. As this Court has jurisdiction to review the Secretary's order, it turns to the substantive issue, the merits of which appear to be of first impression.

The Surface Mining Act is a comprehensive scheme "to protect society and the environment from the adverse effects of surface coal mining operations." 30 U.S.C. § 1202(a). Section 201(c), 30 U.S.C. § 1211(c), establishes the OSM and charges it with the primary administration and implemention of the Act:

Section 501, 30 U.S.C. § 1251, establishes a two-stage program for the regulation of surface coal mining, an initial, or interim regulatory phase, and a subsequent, permanent phase. The interim program mandates immediate promulgation and federal enforcement of some of the Act's environmental protection performance standards, complemented by continuing state regulation. Under the permanent phase, a regulatory program is to be adopted for each State, mandating compliance with the full panoply of federal performance standards, with enforcement responsibility lying with either the State or Federal Government.

Hodel v. Virginia Surface Mining and Reclamation Association, Inc., __ U.S. __, 49 U.S.L.W. 4654, 4655 [11 ELR 20569] (1981). While the act contemplates primary enforcement of the permanent regulatory plan by each state, the Secretary is mostly responsible for enforcing the interim program. 30 U.S.C. § 1252(e).

The source of the plaintiff's problems result from the concurrent enforcement of the interim regulatory program. Under § 502, 30 U.S.C. § 1252, the various states are free to "pursue their own regulatory and inspection programs during the interim phase, and they may assist the Secretary in enforcing the interim standards." Hodel v. Virginia Surface Mining, supra at , 49 U.S.L.W. at 4655 (footnote omitted). Indeed, the states are encouraged to participate because they received federal reimbursement for assistance in enforcing federal interim regulations. Id. at , 49 U.S.L.W. at 4655, n.5; see also 30 U.S.C. § 1252(e)(4).

While there appears to be little restraint on the states to abide their own interim programs inconsistent with those of the Secretary, such inconsistency does not appear to have been the intent of Congress. Since "the major interim role abides with the Secretary," Union Carbide Corp. v. Andrus, Civ. No. 79-2142, memorandum order at 4 (S.D.W.V. July 17, 1979), federal regulation must necessarily supersede inconsistent state regulation. The only question in his controversy is whether inconsistent state regulation has any force or effect.

Simultaneous to raising this broad question, the Court declines to answer it, for a decision in this case is not compelled by broad policy consideratons, but by its narrow and specific facts. Neither of the two parties have briefed the federalism and fairness considerations inherent in resolving the broad policy issue. Moreover, this matter was submitted to the Court prior to the Supreme Court's rendering of a decision in Hodel v. Virginia Surface Mining, supra. The potential federalism considerations raised are theory issues: the federal preservation of the integrity of state law, cf. Younger v. Harris, 401 U.S. 37 (1971) (preservation of state institutional autonomy), and state sovereignty as a limit on congressional power, see, e.g., Hodel v. Virginia Surface Mining, supra, and National League of Cities v. Usery, 426 U.S. 833 (1976). Additionally, the federal assessment of a penalty for conduct authorized by a state may offend the requirements of due process. See Hodel v. Virginia Surface Mining, supra at , 49 U.S.L.W. at 4664 (Surface Mining Act's civil penalty provisions facially do comport with due process, but may be violative as applied).

In accordance with Siler v. Louisville & Nashville Railway Co., 213 U.S. 175, 191-193 (1909), therefore, this Court will not resolve the constitutional questions. The Court concludes upon an examination of the record that the Secretary's decision is supported by substantial evidence. 3 U.S.C. § 1276(b). This Court does not take great pleasure in enforcing this matter when the Kentucky authorities had given the operator a grace period, especially where the Secretary does not claim collusion between the state and Eastover. However, the Secretary was certainly within his right to enforce compliance under the circumstances.

This 6th day of January, 1982.

Judgment

In accordance with the Memorandum and Order of even date, it is hereby

ORDERED AND ADJUDGED that plaintiff take nothing, that the defendants be and are granted summary judgment against the plaintiff, with the plaintiff to bear the costs of this action.

This 6th day of January, 1982.

Order

In accordance with the Memorandum of even date, it is hereby ORDERED AS FOLLOWS:

1. The motion of the plaintiff for summary judgment be and is denied.

2. The motion of the defendants for summary judgment be and is hereby sustained.

3. The Secretary's decision be and is enforced.

This 6th day of January, 1982.