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14 ELR 20617 | Environmental Law Reporter | copyright © 1984 | All rights reserved In re Permanent Surface Mining Regulation LitigationNo. 79-1144 (D.D.C. July 6, 1984)The court remands in part revised regulations promulgated under the Surface Mining Control and Reclamation Act (SMCRA). The court first notes that SMCRA § 526 calls for the court to uphold the regulations unless arbitrary, capricious, or otherwise inconsistent with law. Where, as here, the regulations represent a change of policy, the agency must state permissible reasons for the change. The court next addresses challenges to regulations governing mining on federal lands. It holds that the government's new definition of "mining plans," as used in SMCRA § 523(c), is inconsistent with the statute, as it delegates to the state the Secretary of the Interior's duty to review reclamation plans for mining on federal lands. The court also strikes the new, more restrictive definition of fedral lands in the regulations. The Secretary did not adequately set out reasons for the change of definition, and the new definition contradicts the statutory definition of surface mining. The court next considers challenges to regulations dealing with coal processing and support facilities. Concerning off-site coal processing, the court reiterates a prior holding that SMCRA regulates off-site facilities and processing plants. The Secretary's regulations, which would regulate loading, crushing, sizing, and similar activities only if done at or near the mine site are contrary to the court's prior interpretation of SMCRA § 701(28)(A). The words "in situ" in that section, which the Secretary took to limit his power to regulate physical processing activities, should be read to apply only to "distillation or retorting." Concerning support facilities, the court first upholds the regulations' applicability to railroads that meet the definition of support facility. The industry challenge to the regulation requiring approval from affected utility owners is untimely, since the regulation is essentially identical to its predecessor, which went unchallenged. Even so, the challenge is without merit, since the Secretary has jurisdiction to protect utility facilities within the permit area. However, the court strikes the part of the regulations that requires facilities to be physically close to the mine to qualify as "support facilities," ruling that the statute establishes a test of functional, not geographic, relationship. The court rejects an environmentalist challenge that the support facility regulations are legally deficient for failing to set minimum standards for support facilities, holding that SMCRA does not require the Secretary to impose specific performance standards and design criteria. Turning to the auger mining regulations, the court upholds the regulations' limited exception for backfilling and grading of preexisting highwalls, holding that the Act does not expressly call for reclamation of existing highwalls, and that the Secretary adequately justified the exception. The court also upholds the new barrier pillar standards. Though less specific than the old standards, they are consistent with the Act, and their promulgation was not arbitrary or capricious. Also valid is the Secretary's interpretation of the auger mining regulations to allow him to weigh a miner's economic circumstances in deciding whether auger mining would maximize utilization of the coal resource. Finally, the court reiterates a previous holding that nothing in SMCRA empowers the Secretary to regulate the non-erosional aspects of air quality. The court issues an order dismissing seven issues that parties agree are not in dispute, remands to the Secretary 30 C.F.R. §§ 700.5 (surface coal mining operation) and 701.5 (coal preparation and coal processing) and grants summary judgment to the government on all other matters. [Related cases appear at 9 ELR 20720, 10 ELR 20113, 20208, 20526, 11 ELR 20941 — Ed.] Counsel for Plaintiffs L. Thomas Galloway Counsel for Defendants Milo Mason Counsel for Defendant-Intervenors Warner Gardner, I. Michael Greenberger Flannery, J.: Once again this court adjudicates the issues originating from the Surface Mining Coal and Reclamation Act of 1977 ("SMCRA" or "The Act"). The Secretary of Interior was required to develop interim and then permanent regulations to govern the surface mining of coal in the United States. The interim regulatory program became effective in early 1978. See In re Permanent Surface Mining Regulation Litigation, 452 F. Supp. 327 (D.D.C. 1978). In March, 1979, Secretary Andrus promulgated the permanent program surface mining regulations. Challenges to these regulations were filed in this court by the coal industry, several states and citizen and environmental groups. This court resolved those challenges in three opinions filed in 1980. During the pendency of those rulings before the United States Court of Appeals for the District of Columbia Circuit, the Reagan Administration announced that it would repromulgate those regulations. The court of appeals, therefore, remanded the case to this court to consider any challenges to these new regulations. Challenges to the new regulations were filed by various citizen and environmental groups as well as industry representatives. This court organized the regulations into three rounds of briefing. The cross-motions for summary judgment involving the regulations considered in the first round of briefing are now before the court and are ripe for consideration. The standard of review of the regulations promulgated pursuant to the Act is described in the Act as follows: Any 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. 30 U.S.C. § 1276(a)(1). This is a narrow scope of review. This court will not substitute its judgment for that of the agency. The agency, however, is obligated to review the relevant information and articulate a rational explanation for its action. Motor Vehicle Manufacturers' Association v. State Farm Mutual Automobile Insurance Company, U.S. , 103 S. Ct. 2856, 2866-67, L. Ed. 2d [13 ELR 20672] (1983). The agency must demonstrate how it resolved significant problems raised by comments and explain how it arrived at the ultimate rule. Rodway v. United State Department of Agriculture, 514 F.2d 809, 817 (D.C. Cir. 1975). In reviewing these regulations this court is will aware of two competing currents. It is well established that reasonable agency interpretive positions should be upheld. On the other hand, the courts "remain the final arbiters of statutory meaning." Natural Resources Defense Council, Inc. v. EPA, 725 F.2d 761, 767 [14 ELR 20191] (D.C. Cir. 1984). The problem facing the reviewing court is exacerbated when an agency reverses its prior position. Id.; see NAACP v. FCC, 682 F.2d 993, 998 (D.C. Cir. 1982). Although the court must not put the agency in a straight jacket to prevent any change in a course once set, the court must be satisfied that the agency states permissible reasons for this change. The new position must, of course, be consistent with the law. Virtually all of the challenged regulations now before the court represent changes in policy set by the previous administration. This court will examine the regulations and uphold them to the extent they are consistent with the language of SMCRA as interpreted in light of the legislative history. See Water Transport Association v. ICC, 715 F.2d 581, 592 (D.C. Cir. 1983). If that language permits the agency's interpretation then the latter be upheld. If, however, the agency's interpretation "'frustrates the policy that Congress sought to implement," no amount of deference can save it." Id. (quoting Federal Election Commission Democratic Senational Campaign Committee, 454 U.S. 27, 32, 102 S. Ct. 38, 42, 70 L. Ed. 2d 23 (1981). Bearing the standard of review in mind, the court now turns to the regulations before it. 1. Definition of "Mining Plans" in § 523(c). The federal lands portion of the Act is found in 30 U.S.C. § 1273. Subsection (c) describes, in part, the relationship between the Secretary and the states in which the land is located. That subsection provides for cooperative agreements between the Secretary and the states with approved state programs "to provide for state regulation of surface coal mining and reclamation operations on Federal lands within the State." Id. at § 1273(c). The Secretary must find that the state has adequate resources to implement the agreement before entering into it. The center of the controversy involving the contested regulation is the final sentence of this subsection, which reads as follows: Nothing in this subsection shall be construed as authorizing the Secretary to delegate to the States his duty to approve mining plans on Federal lands, to designate certain Federal lands as unsuitable for surface coal mining pursuant to section 1272 to this title, or to regulate other activities taking place on Federal lands. Id. (emphasis added). The key to the resolution of this program is the definition of "mining plans." NWF maintains that mining plans should include mining and reclamation plans that detail compliance with the relevant provisions of the Mineral Leasing Act of 1920, as amended, (MLA) 30 U.S.C. 181, et seq., as well as those of SMCRA. OSM's initial regulations, as published on March 13, 1979, adopted this position. See 30 C.F.R. 740.5 (1980). NWF does not take the position that the Secretary is required to determine whether all of the SMCRA requirements are met by every operation that plans to mine leased federal coal. Instead it asserts that the Secretary must make a decision as to the qualification of the operation and reclamation plan component of the permit application. The government argues that the mining plan referred to in 30 U.S.C. § 1273(c) is the mining plan required by the MLA. See 30 C.F.R. § 740.5 (1983). It argues further that the review of the permit application under SMCRA is distinct from the approval of the mining plan which is governed by the dictates of MLA. The former is to be conducted by the states with cooperative agreements, and the latter is to be performed by the Secretary. That scheme, the government asserts, would minimize the duplicative responsibilities of the state and the Office of Surface Mining, (OSM). 47 Fed. Reg. 25,097 (1982). It would also, allegedly, serve the congressional intent that the state be the governmental entity primarily responsible for regulating surface mining under SMCRA. Id. It is beyond question that, in general, the states bear the major responsibility for implementation of SMCRA. See In Re Permanent Surface Mining Regulation Litigation, 653 F.2d 514, 516 [11 ELR 20941] (D.C. Cir. 1981). With regard to federal lands, however, the Secretary has a somewhat more prominent role than he does with regard to non-federal lands. See, e.g., H.R. REP. NO. 218, 95th Cong., 1st Sess. 57, reprinted in, 1977 U.S. CODE CONG. & AD. NEWS 593, 595 (indicating purpose of bill to establish standards administered by states on "non-federal lands.") This increased responsibility in an area where the federal interest is arguably greater is supported by logic. The issue before the court is whether the new regulations result in a de facto delegation from the Secretary to the states of authority to approve "mining plans," as that term is used by Congress, for federal lands, in defiance of the direct prohibition of such a delegation in section 523(c). All parties are agreed that "mining plan" as used by Congress in 30 U.S.C. § 1273(c), refers to a plan required by the MLA. That term, however, is not defined in that Act, although light is shed on its meaning by two sections of the MLA. Section 2a(2) of the Act states that any mining plan must require development, operation, and production so that the mineral reserves will be mined within a time period established by the Secretary, not to exceed forth years. 30 U.S.C. § 202a(2). The mining plan includes an operation and reclamation plan, required by the MLA as follows: Prior to taking any action on a leasehold which might cause a significant disturbance of the environment, and not later than three years after a lease is issued, the lessee shall submit for the Secretary's approval an operation and reclamation plan. The Secretary shall approve or disapprove the plan or require that it be modified. Id. at § 207(c). Congress did not elaborate on the content of this operation and reclamation plan. The government asserts that the Secretary would complete the operations aspect of the mining plan approval responsibility through review of the resource recovery and protection plan. The reclamation aspect would be fulfilled in four ways: 1. Minerals Management Service's review of the reclamation schedule, required in the resource recovery and protection plan; 2. OSM's oversight of State programs and cooperative agreements under SMCRA; 3. NEPA compliance activities; 4. review to verify that the mining plan is in compliance with any lease terms and conditions. 47 Fed. Reg. 25097 (1982). The government misses the point. The issue with regard to this regulation is not whether the Secretary has adequate means to compensate for the authority that the new regulations take away from him, but rather, whether it is permissible to take the authority away in the first instance. All but the first of the above mechanisms listed by the government are found in other sections of the Act and are totally independent of the Secretary's duty to approve mining plans. It appears, therefore, that the new regulations reduce a review of the reclamation aspect of a mining plan to nothing more than review of a reclamation schedule.1 Furthermore, even the Secretary's review of the mining plan, as defined under the new regulations, is not independent of the states' review of the permit application. The recommendation of approval, disapproval or conditional approval of the mining plan submitted by OSM to the Secretary is to be based, in part, upon the finding and recommendations of the regulatory authority with respect to the permit application and the state program. 30 C.F.R. § 746.13(f) (48 Fed. Reg. 6915, 6941, February 16, 1983). All parties agree that the phrase "reclamation plan" as used in the MLA is ambiguous. The MLA was not a stripmining bill and did not address many of the environmental issues involved in mining. SMCRA does address these issues in detail, however, and specifically sets out guidelines for reclamation.See, e.g., 30 U.S.C. § 1258 (setting out reclamation plan reqirements). It is beyond question that the MLA, which predates SMCRA, could not have contemplated the requirements of SMCRA. Nonetheless, once SMCRA became law, the gap in definition that previously existed was filled in emphatic terms. It is anomalous to suggest that when Congress, in SMCRA, refers to a "mining plan" and defines a portion of the plan, i.e., reclamation plan, in detail, it intended to have this in-depth definition ignored simply because the term first appeared in an Act, the MLA, which did not define the term. This court finds, therefore, that the regulation defining mining plan cannot ignore the clarification provided by SMCRA. The admonition against delegation contained in section 523(c) means that the Secretary must render a decision on the operation and reclamation plan portions of the permit application.2 A related issue is whether the Secretary must exercise this authority. This court finds that the language of the Act, as well as the legislative history, answer this question in the affirmative. Section 523(c) states that the Secretary has a "duty" to approve the mining plans. The language of the Act, therefore, describes approval of the mining plans as an obligatory, rather than discretionary task. The legislative history supports this conclusion. The House report's explanation of section 523(c) states that "the Secretary retains his responsibility to approve or disapprove individual plans." H.R. REP. NO. 218, 95th Cong., 1st Sess. 69, reprinted in 1977 U.S. CODE CONG. & AD. NEWS, 593, 607 (emphasis added). Congress used these mandatory terms rather than a discretionary term such as "authority." The approval or disapproval of a portion of the permit application by the Secretary does not thwart Congress' express intent to vest the states with primary responsibility to regulate surface mining and reclamation operations. See 30 U.S.C. § 1201(f). The Secretary is exercising this power only when federally owned coal is involved, as noted below. Furthermore, the Secretary's participation does not rob the states of their role. If the Secretary approves the mining plan then the state is still free to approve or reject the permit application. This dual system of review makes it even clearer that the Secretary must exercise his power to review mining plans. In every case that he did not, the effect would be to delegate that responsibility to the states. That result is explicitly forbidden by the statute. This court holds, therefore, that the Secretary must exercise his power to approve or disapprove the operation and reclamation plan component of the permit applications for mining and leased federal land.3 Therefore, the portion of the regulation defining a mining plan, 30 C.F.R. § 740.5 (1983), must be remanded and repromulgated in a manner not inconsistent with this opinion. NWF argues that the removal of the Secretary from the permit approval process prevents him from exercising his responsibility under other environmental acts, as well as his responsibility under SMCRA. The government maintains that the Secretary can protect his responsibilities through, among other things,4 his approval power of mining plans. As noted above, this court finds that the mining plan includes the operation and reclamation plan [14 ELR 20620] portion of the permit application. In light of this holding, the court finds that the power to approve or disapprove the mining plan is sufficient to protect the Secretary's responsibilities under this and other acts. 3. Exceptions to Federal Lands. NWF argues that the new regulations impermissibly create exceptions to the definition of federal lands. See 30 U.S.C. § 1291(4). The regulation that is challenged states the following: (a) Upon approval or disapproval of a regulatory program for a State, that program and this subchapter shall apply to: . . . (3) Surface coal mining and reclamation operations on lands where either the coal to be mined or the surface is owned by the United States, except as specified in this subsection. 30 C.F.R. § 740.11(a)(3) (48 Fed. Reg. 6821 (1983)). Congress stated that the federal lands program, including permit requirements, apply to all surface coal mining and reclamation operations that take place on all federal lands. 30 U.S.C. § 1273(a). The Secretary, through the regulation quoted above, has limited the definition of federal lands and therefore, the applicability of the federal lands program. The question before the court is whether this limitation is arbitrary, capricious or otherwise contrary to law. NWF argues that this regulation blocks the application of the federal lands program in situations where the federal government owns the coal but not the surface, yet no plan currently exists to mine the coal. As an example of a situation which the Secretary's definition of federal lands does not cover yet a federal interest is arguably implicated, NWF cites an instance where an operator places a surface facility on a private surface above federal coal. This, it argues, would effectively prevent the federal coal from being mined, and would not fall within the Secretary's jurisdiction under the present regulations. This is closely related to NWF's objection to the exclusion from the definitions of federal lands of lands affected by mining.5 These challenges will be dealt with together below. The first version of the regulation in question extended the definition of federal lands to "lands where either the surface or mineral interests owned by the United States will be directly affected by such operations except as specified in this subchapter."6 47 Fed. Reg. 25107 (1982). The present definition is much more limited and discards the "directly affected" test completely. NWF asserts that the present regulation violates the clear language of 30 U.S.C. § 1291(4) defining federal lands.7 That definition is straightforward, but clearly does not answer the dilemma posed by NWF's problem.8 The federal coal beneath the hypothetical surface facility, built on the state-owned surface, is federal land. This is true under both regulations, as well as the statute. The real question, however, is not answered by reference to the statutory definition: If there is no plan to mine that federal coal, does the federal lands program apply to operations that affect it?9 The Secretary has answered this question in the negative and that answer is fully consistent with the statutory definition of federal lands. Because the real question involves the application of the federal lands program, however, the section describing that program must be consulted. In order to determine in what situations surface coal mining and reclamation operations are deemed to take place on federal lands, under the statute, the definition of "surface coal mining operations" must be examined.10 In relevant part, that definition is as follows: (28) "Surface coal mining operations" means — . . . (B) the areas upon which such activities occur or where such activities disturb the natural land surface. Such areas shall also include any adjacent land the use of which is incidental to any such activities, all lands affected by the construction of new roads or the improvement or use of existing roads to gain access to the site of such activities and for haulage, and excavations, workings, impoundments, dams, ventilation shafts, entryways, refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, storage areas, processing areas, shipping areas and other areas upon which are sited structures, facilities, or other property or materials on the surface, resulting from or incident to such activities. 30 U.S.C. § 1291(28)(B).This is a sweeping definition and would seem to be the inspiration for the "affected by" test discussed above. As noted above, the Secretary initially adopted a regulation that employed an "affected by" test to determine the scope of the federal lands program. This court is not convinced that the Secretary set forth clear and cogent reasons for his change of course. The Secretary appears to have used an "affected by" test to justify deletion of the "affected by" regulation. The Secretary stated that: OSM believes that, because of the interaction of the State primacy provision, section 503 of the Act, with section 523 of the Act, the Federal lands program can be interpreted to exclude State or privately-owned surface overlying Federally-owned coal where the operation will not involve mining the Federally-owned coal and where there will be no disturbance of the Federally-owned estate. 48 Fed. Reg. 6921. The Secretary seems to have found that the federal interest will never be affected, or is insignificant even if it is affected. It is difficult to understand how the Secretary can determine this for all cases in advance. Secondly, the Secretary's justification for the regulations that are under challenges in this section, i.e., primacy of state enforcement of the Act, does not apply with equal vigor in this area of the statute. When Congress discussed state administration of the Act, it virtually always referred to non-federal lands. See, e.g., H.R. REP. NO. 218, 95th Cong., 1st Sess. 57 (1977). Thus, this goal does not shed light on what the definition of the federal lands program includes. Finally, the challenged regulation contradicts the definition of surface mining activities quoted above. That definition is extremely broad and employs an "affected by" test. The Secretary is powerless to limit this statutory definition. Similarly, if surface mining activities take place on federal lands, the Secretary is powerless to exclude them from the federal lands program. The regulations, therefore, must be remanded and reshaped to reflect the extent of coverage of the federal lands program described above. B. Coal Processing and Facilities This area of the statute, and the regulations promulgated pursuant to it, deal with the Secretary's responsibility for offsite mining facilities. The statutory authority for the regulation of offsite facilities and operations originates from the definition of "surface coal mining operations." The first part of that definition is as follows:11 Activities conducted on the surface of lands in connection with a surface coal mine or subject to the requirements of section 1266 of this title surface operations and surface impacts incident to an underground coal mine, the products of which enter commerce or the operations of which directly or indirectly affect interstate commerce. Such activities include excavation for the purpose of obtaining coal including such common methods as contour, strip, auger, mountaintop removal, box cut, open pit, and area mining, the uses of explosives and blasting, and in situ distillation or retorting, leaching or other chemical or physical processing and the cleaning, concentrating, or other processing or preparation, loading of coal for interstate commerce at or near the mine site . . . 30 U.S.C. § 1291(28)(A). The conflict between the parties lies in the question of what the phrases "at or near the mine site" and "in situ" modify. The Secretary's regulations take a functional approach to the problem of when the Act applies to offsite facilities. Facilities that conduct "cleaning, concentrating, or other processing or preparation," will be subject to the Act's jurisdiction regardless of location, as long as they are operated "in connection with a mine." 48 Fed. Reg. 20395 (1983).Coal preparation or coal processing is defined under the new regulations as "cleaning, concentrating, or other processing or preparation of coal in order to separate coal from its impurities." 30 C.F.R. § 701.5 (emphasis added). The separation of the impurities from coal, therefore, is where the Secretary makes his distinction. Facilities that do not engage in coal preparation, as defined, and which principally load coal are subject to the jurisdiction of the Act only when they are located "at or near mine site." 48 Fed. Reg. 20396 (1983). Finally, facilities that are not listed as an activity in Section 701(28)(A) are subject to the jurisdiction of the Act when they are located in areas "resulting from or incident to a regulated activity." See 30 U.S.C. § 1291(28)(B). The environmentalist plaintiffs object to this delineation of jurisdiction as too narrow and the surface miners object to it as too broad. The coal miners argue that the Secretary has no jurisdiction to regulate offsite mining facilities. Their main argument is that the Act and its legislative history applies to "operators" and not "operations." Processing facilities, they argue, do not come within the statutory definition of operators, 30 U.S.C. § 1291(13), and, therefore, are excluded from the jurisdiction of the Act. This analysis ignores the broad definition of surface mining operations in the statute, as well as the broad remedial purpose of the Act. This court has already considered and rejected arguments similar to those made now by surface miners.In re: Permanent Surface Mining Litigation, Civ. No. 79-1144, at 51-53 (D.D.C. May 16, 1980). In that case, this court recognized the Secretary's authority to regulate offsite surface mining facilities, and it sees no reason to reverse its position. Indeed, that position was adopted by the United States Court of Appeals for the Sixth Circuit. Shawnee Coal Co. v. Andrus, 661 F.2d 1083, 1993-94 [11 ELR 21040] (1981); see also Deboard v. Watt, Civ. No. 82-99 (E.D. Ky., Sept. 29, 1982); but see Drummond Coal Co. v. Andrus, Civ. No. CV-80-M-0829 (N.D. Ala., April 20, 1981) (limiting jurisdiction of Secretary to processing plants "at or near" the mine sites). This court, therefore, once again affirms the Secretary's jurisdiction to regulate offsite facilities and processing plants.12 NWF challenges the regulations in this area arguing that the Secretary's limitation of jurisdiction is arbitrary, capricious, and contrary to the language of the statute. It asserts that the physical processing of coal should be regulated without regard to the proximity to the mine even if it does not involve the separation of coal from its impurities. It bases its argument on this court's finding that the limiting phrase "at or near the mine site" refers only to the loading of coal in Section 701(28)(A). In Re Permanent Surface Mining, Civ. No. 79-1144 (D.D.C. May 16, 1980). The Secretary has abided by this court's finding in this regard, and recognizes that "at or near the mine site" does not modify "cleaning, concentrating, or other processing or preparation" or any part of the definition beyond the loading of coal. 48 Fed. Reg. 20393 (1983). At the center of this controversy is the Secretary's definition of coal processing. This definition limits coal processing to the separation of coal from its impurities. See 48 Fed. Reg. 20394 (1983). Under this definition loading, crushing, sizing and other similar activities would generally not be considered coal processing.13 The Secretary would regulate these operations only at or near the mine site. Support for this interpretation is the Secretary's argument that "physical processing" and "other processing or preparation" are modified by "in situ." Id. at 20395. This analysis is contrary to this court's prior interpretation of Section 701(28)(A). Although this court did not specifically address the "in situ" phrase in this section, it did address a phrase in that same sentence, and that analysis applies to the question at hand. In Re Permanent Surface Mining, at 52. As in that case, each set of activities in the phrase now under consideration are separated by commas. The modifier's impact ends at the comma. Thus, "in situ" modifies distillation or retorting, but not leaching or other chemical or physical processing.14 The separate treatment of distillation and retorting is underlined by the Senate Report. In that report the Senate refers to in situ distillation or retorting, in a separate and distinct context from leaching, and other processing.15 S. REP. NO. 128, 95th Cong., 1st Sess. 98 (1977). As noted above, this same result was reached by the court in Shawnee Coal, supra. In that case the court, referring to Section 701(28), stated that: This provision leaves little doubt that Congress intended tippling operations to fall within the Act's ambit. And for the reasons outlined in In Re Permanent Surface Mining Regulation Litigation, (D.D.C. 1980) (No. 79-1140) we conclude that Congress intended the Act to encompass offsite processing operations, such as Shawnee's tippling operation.16 661 F.2d at 1094. Although the question before the court in Shawnee Coal in this area was limited to whether the agency's jurisdiction was conspicuously lacking, id. at 1093, the above-cited language of the court was far broader than this narrow issue. This court finds, therefore, that the Secretary's definitions of "coal preparation," "coal processing," and "coal preparation plant" are based on a misreading of the statute. The resulting limitation of the Act's coverage and the Secretary's jurisdiction over leaching, physical processing, or chemical processing when these operations do not involve the separation of coal from its impurities, to situations where these operations are conducted in situ is contrary to the statute and cannot stand.17 The facilities that are in question in this area of the regulations are those not identified as an activity under Section 701(28)(A) of the Act,18 but which "support" coal mines. Two [14 ELR 20622] examples of these "support facilities" are mine offices, and storage areas. Under the new regulations these facilities would be subject to the jurisdiction of the Secretary when they are "resulting from or incident to" a regulated activity. See 30 U.S.C. § 1291(28)(B). The Secretary has interpreted the above-quoted phrase as imposing a geographical proximity test to determine whether a support facility is regulated under the Act. 48 Fed. Reg. 20397 (1983). The Secretary concluded that "areas which result from or are incident to activities must be near those activities." Id. The coal miners argue that the Secretary exceeded his jurisdiction by promulgating regulations concerning railroads. They argue that Congress did not give the Secretary the power to regulate railroads as support facilities. Congress declined to do so, they maintain, because the railroads are beyond the coal operator's control. As stated above, the definition of "surface coal mining operations" is extremely broad. 30 U.S.C. § 1291(28). It extends to the "use of existing roads to gain access to the site of such activities . . . and . . . facilities, or other property or materials on the surface, resulting from or incident to such activities." Id. at § 1291(28)(B). Obviously, the statute does not encompass all railroads, but rather, those "resulting from or incident to" surface mining operations. The meaning of this limitation will be discussed below, but it is clear that the Secretary is empowered to regulate railroads and other support facilities subject to this limitation. The industry plaintiffs also challenge 30 C.F.R. §§ 816.180 and 817.180, because they require permission from the regulatory authority and the utility owner prior to any adverse affect on utility services. These regulations state that surface coal mining operations and underground mining activities: shall be conducted in a manner which minimizes damage, destruction, or disruption of services provided by oil, gas, and water wells; oil, gas, and coal-slurry pipelines; railroads; electric and telephone lines; and water and sewage lines which pass over, under, or through the permit area, unless otherwise approved by the owner of those facilities and the regulatory authority. Initially, the challenge to these regulations is untimely. These regulations are substantially identical to the regulations adopted by the previous administration at §§ 816.181(b) and 817.181(b). This challenge takes place well after sixty days from the action about which plaintiffs complain. 30 U.S.C. § 1276. This time limitation is jurisdictional and must be strictly applied. Montana v. Watt, No. 82-2421 at 3-6 (D.D.C. 1983). Assuming, arguendo, industry's complaint was timely, it would still be denied. To the extent that the utility facilities are within the permit areas and are affected by mining activities they are within the Secretary's jurisdiction. The Secretary reached this conclusion after considering evidence that disruption of utility facilities could have serious environmental impact. This on-site regulatory power serves the purposes of the Act and is within the parameters set by Congress. NWF maintains that there is no lawful basis for a proximity limitation. It argues that "resulting from or incident to" is a functional rather than a geographic limitation. Once again, the question before the court is one of law: Can the regulation be reconciled with the language of the Act read in light of its legislative history. There is no evidence to support the Secretary's conclusion that areasthat result from or are incident to activities must be located near those activities. 48 Fed. Reg. 20397 (1983). It is beyond a dispute that coal that is mined in one area could be stored in a distant facility. Nonetheless, this distant facility would clearly result from or be operated incident to a surface coal mine, and would fall within the statutory definition of "surface coal mining operations." Regardless of the likelihood of the above situation existing, it is clear that the statute does not allow a limitation based solely on proximity to be placed on the Act's applicability to support facilities.19 Congress' choice of language supports this conclusion. When Congress wanted to express a proximity limitation on the definition of surface mining operations it did so clearly through the use of such terms as "in situ," "at or near the mine site" or "adjacent." These are words of geography rather than words of function. The Secretary has attempted to impose a geographical limitation through his regulation even though Congress declined to do so in the Act. This reduction in the coverage of this Act has no basis in the statute and flies in the face of its remedial purpose. The proximity limitation in the definition of "support facilities," 30 C.F.R. § 701.5, cannot stand. 3. Standards for Support Facilities NWF objects to the regulation in this area because it fails to establish minimum standards for the planning, permitting and performance of support facilities. The regulation in question states that: (a) Support facilities shall be operated in accordance with a permit issued for the mine or coal preparation operation to which it is incident or from which its operation results. (b) In addition to the other provisions of this part, support facilities shall be located, maintained and used in a manner that — (1) Prevents or controls erosion and siltation, water pollution, and damage to public or private property; and (2) To the extent possible using the best technology currently available — (i) Minimizes damage to fish, wildlife, and related environmental values; and (ii) Minimizes additional contributions of suspended solids to streamflow or runoff outside the permit area. Any such contributions shall not be in excess of limitations of State or Federal law. 30 C.F.R. §§ 816.181 and 817.181. NWF claims that the old regulations set specific performance standards including design criteria with respect to signs and markers, disposal of processing waste, etc. NWF argues that the lack of specific standards in the present regulations is arbitrary and capricious. The language quoted in NWF's memorandum omits subsection (a) of the regulations and does NWF's analysis. That subsection states that support facilities must meet the requirements of the permit issued for the mine that it supports.20 Furthermore, the beginning of subsection (b) of the challenged regulations references the requirements in the "other provisions of this part." The Secretary's regulations, therefore, do subject support facilities to performance standards. Although the Secretary has the power to impose specific performance standards and design criteria, In Re Permanent Surface Mining Regulation Litigation, No. 79-1144 at 39-40 (D.D.C. 1980), he is not under a statutory obligation to impose them. The Secretary considered imposing specific standards, but found that the permit requirements would ensure compliance with the regulatory program. 48 Fed. Reg. 20398 (1983). NWF cannot point to any statutory provision that the regulations violate. The Secretary found that the general standards of Section 515(b) will be met through the permit requirement. 30 U.S.C. § 1265. This is a reasonable interpretation of the statutory requirements, and this court will not substitute its judgment for that of the Secretary. The court finds, therefore, that the regulations appearing at 30 C.F.R. §§ 816.181 and 817.181 are not arbitrary, capricious, or otherwise contrary to law. The next set of regulations that have been challenged are in the area of auger mining. Auger mining is defined by the regulations as a method of mining coal at a highwall by drilling holes into an exposed coal seam from the highwall and transporting the coal along an auger bit to the surface. 30 C.F.R. § 701.5. The challenges fall into three areas and are discussed below. 1. Extent of Required Backfill and Grade of Highwalls. NWF argues that the Act explicitly requires that all affected areas must be backfilled and graded in order to achieve the appropriate original pre-mining contour. The regulations would allow an operator to reauger a previously mined area without requiring the operator to completely backfill the highwall with spoil material in all cases. 30 C.F.R. § 819.11(b); 819.13(c); 819.19(b). These regulations, according to NWF, are violative of section 515(b)(3) of the Act which states that: Except as provided in subsection (c) of this section with respect to all surface coal mining operations backfill, compact (where advisable to insure stability or to prevent leaching of toxic materials), and grade in order to restore the approximate original contour of the land with all the highwalls, spoil piles, and depressions eliminated. The issue before the court is whether Congress intended the regrading requirements to apply to preexisting highwalls. Although the above-quoted language in the Act is sweeping,21 it is not clear whether Congress intended the above directives to encompass preexisting highwalls.22 As this court has previously noted,23 in order for a provision to have retroactive application, that intent must be explicitly set forth in the statute. See Union Pacific Railroad v. Laramie Stockyards, 231 U.S. 190, 199, 34 S. Ct. 101, 53 L. Ed. 179 (1913). It does not appear that this clear expression of intent is present in the above section of the Act. This lack of a clear command stands in stark contrast to the explicit directive of the Act that "all existing and new coal mine waste piles" be subject to the requirements of the Act and the regulations. 30 U.S.C. § 1265(b)(13) (emphasis added); see also § 1266(b)(5). The context of this conflict is a situation in which an operator decides to remine an area that has a preexisting highwall.24 In such a situation, the present regulations require that "the highwall shall be eliminated to the maximum extent technically practical." 30 C.F.R. § 819.19(b). The highwall must be completely backfilled unless the volume of all spoil that is reasonably available is demonstreated, in writing, to be insufficient. This determination is made by the regulatory authority. Id. The regulations further define the area that must be examined for adequate spoil. Reasonably available spoil is defined as spoil generated by the mining operation or located in the permit area that is accessible. Id. at § 819.19(b)(2). The permit area includes spoil in the immediate vicinity of the auger mining operations. Id. Any remnant of a highwall must be stable and cannot pose a danger to public health and safety. Id. at § 819.19(b)(4). The Secretary cites several reasons for the state of the present regulations. Initially, as noted above, the Secretary argues that if these highwalls are to be reclaimed at all it will be through remining.If the operators must totally eliminate preexisting highwalls even where there is insufficient spoil then they might have no economic incentive to remine and do any reclamation. The old minesites would be abandoned and, in most cases, the highwall would beleft standing without any of the safety standards imposed by the regulations. 48 Fed. Reg. 19320. This result would not serve the environment, agricultural productivity or the Nation's coal supplies. See 30 U.S.C. § 1202(f). Furthermore, if the operators were required to eliminate highwalls where there was insufficient spoil and they decided to mine despite the economic disincentive, they would be forced to disturb areas on which there were years of vegetation. See 48 Fed. Reg. 19319-20. This situation would also frustrate the goals of the Act. NWF does not directly refute the above arguments, but states that they should have been made to Congress and not this court. The Act and tis legislative history reflects Congress' deep concern that all surface mining and reclamation operations be returned to approximate original contour.25 In fact, Congress passed the Act, in part, to "assure that surface mining operations are not conducted where reclamation as required by this chapter is not feasible." 30 U.S.C. § 1202(c). These statements, however, are prospective. It is clear that any highwalls in future auger mining operations must be totally eliminated, with the exception listed in 30 U.S.C. § 1265(b)(3). Congress has not expressed a clear intent for the elimination of preexisting highwals in all cases. The Secretary has created a limited exception to elimination of highwalls where insufficient spoil exists in the immediate vicinity of the auger mining operation. 30 C.F.R. § 819.19(b). In these limited cases the operator must take measures to reclaim the preexisting highwall, and any remnant must be stable. This court finds that this limited exception is not contrary to the Act. It further finds that the regulations are not arbitrary or capricious, but rather strikes a balance between protection of the environment and agricultural productivity and this country's need for coal. See 30 U.S.C. § 1202(f). 2. Necessity of Minimum Standards for Barrier Pillar Width and Spacing. Auger mining operations must be conducted: in a manner to maximize recoverability of mineral reserve remaining after the operation and reclamation are complete. 30 U.S.C. § 1265(b)(9). To fulfill this statutory requirement Secretary Andrus promulgated regulations that set forth minimum barrier pillar requirements for width and spacing. 44 Fed. Reg. 15448 (1979). The new regulations do not provide specific minimum requirements and are stated in more general terms: Each person who conducts auger mining operations shall leave areas of undisturbed coal, as approved by the regulatory authority, to provide access for future underground mining activities to coal reserves, remaining after augering is completed, unless it is established that the coal reserves have been depleted or are so limited in thickness or extent that it will not be practicable to recover the remaining coal. This determination shall be made by the regulatory authority upon presentation of appropriate technical evidence by the operator. NWF maintains that the above regulation is a mere restatement of the statutory language, and is, therefore, inadequate.26 [14 ELR 20624] The advantages of national standards were noted by Congress in SMCRA. 30 U.S.C. § 1201(g). It must be remembered, however, that the Secretary is free to determine whether regulations are necessary at all to supplement the statutory requirements in any given area. See Id. at § 1211(c)(2). NWF is not arguing that the challenged regulation violates a specific statutory requirement, but rather that it inadequately implements a statutory directive. Thus, the regulation must be examined under the arbitrary and capricious standard. Although the present regulation is much less specific than its predecessor, it cannot be said to be a mere restatement of the statutory language. The regulation requires the operator to leave areas of unmined coal so that there will be future access to the remaining coal reserves. The dimensions of this area will be determined by the regulatory authority after careful consideration of relevant technical evidence. This system recognizes that conditions vary from mine to mine and rigid guidelines designed to serve a statutory goal can instead, when placed into practice, thwart that goal. 48 Fed. Reg. 19317. As noted above, Congress foresaw the need for flexibility in implementing even the most critical standards. NWF also maintains that the states will not have the resources or the independence to make a site-by-site determination as required by the regulation. Congress, however, entrusted the states with the responsibility of developing and implementing the programs that would satisfy the Act's requirements, especially on non-federal lands. 30 U.S.C. § 1202(g). The Secretary, of course, oversees these programs and provides assistance where it is needed. Furthermore, state programs will be approved only if the state has adequate administrative and technical personnel, as well as sufficient funding. 30 U.S.C. § 1253(a)(3). The present regulations, therefore, are consistent with the goals of the Act. Even if this court believed that the promulgation of specific, across-the-board requirements for barrier pillar width and spacing were desirable, it could not substiute its judgment for that of the Secretary. The only determination that this court must make is whether the Secretary's action of promulgating the challenged regulation was arbitrary or capricious. This court finds, for the reasons stated above, that it was not. 3. Consideration of Individual Economic Circumstances of Coal Operators. The dispute in this area arises from the Secretary's interpretation of 30 C.F.R. § 819.11. The relevant portion of that regulation states: (b) The regulatory authority may prohibit auger mining, if necessary to — (1) maximize the utilization, recoverability, or conservation of the solid fuel resource. Id. The Secretary has stated that to determine what constitutes "maximum recoverability" the regulatory authority may consider the economic circumstance of the individual operator. 48 Fed. Reg. 19316 (1983). NWF argues that this interpretation violates the performance standards set out by Congress. See 30 U.S.C. § 1265(b). This court does not find a conflict between 30 C.F.R. § 819.11(b), and the statutory requirements for mine operators. The Secretary is not saying that the specific performance standards set out in the statute will be molded to meet the economic circumstances of individual operators. That argument would directly contradict Congress' intent that mining not take place where performance standards cannot be met or where reclamation cannot be completed. See, e.g., 30 U.S.C. § 1202(c). The term "maximize recoverability," however, is inherently vague and, thus, the Secretary has broad discretion to interpret it. The specific requirements that an augering operation must meet are set forth in detail in other regulations that have nothing to do with the economic circumstances of an operator. In fact, subsection (a) states that the auger mining operations must be conducted in accordance with the requirements set forth in Part 816 of the regulations. 30 C.F.R. § 819.11(a). These requirements do not, and cannot, change with the economic situations of the individual miners. The only situation in which the regulatory authority can consider economic constraints on the operator is when he is considering whether to prohibit auger mining. The Secretary's interpretation of this regulation is perfectly consistent with the statute and NWF's arguments. If the regulatory authority determines, after considering the miner's technical and economic constraints, that to allow that particular operator to auger mine would not maximize the utilization, recoverability or conservation of the resource then it can prohibit the auger mining operation. It is also clear that if the regulatory authority determines that an operator cannot meet the specific performance standards detailed in the statute, and expanded upon by the regulations, for whatever reason, it cannot allow the mining operation to take place. These standards do not change with the economic or any other circumstances of the operator. This regulation, however, has a much more limited scope. The challenged portion of the regulation applies only to the prohibition of auger mining, and this court finds that it is consistent with the goals of SMCRA. In addition, NWF argues that the regulation is a mere restatement of the statutory language. although the term "maximize recoverability" appears in both the statute and the regulation, the scope of the two are very different. As noted above, 30 C.F.R. § 819.11(b) deals with the prohibition of auger mining. The statutory standards are analyzed and explained in the other provisions of part 819. This court, therefore, finds that the challenged regulation is not arbitrary, capricious, or otherwise contrary to law. This court has previously held that Section 515(b)(4) of SMCRA does not authorize the Secretary to regulate the nonerosional aspects of air quality. In Re Permanent Surface Mining Regulation Litigation, No. 79-1144 (D.D.C. 1980), at 28. Specifically, the court held that "the Secretary's authority to regulate pollution is limited to activities related to erosion." Id. In reaching that conclusion, the court rejected the interpretation of Section 515(b)(4) now proferred by NWF. Another section of the Act, Section 702(a) also sheds light on this problem. 30 U.S.C. § 1292(a). That section states that nothing in SMCRA should be construed as superseding the Federal Water Pollution Control Act and the Clean Air Act. The EPA has the authority to regulate fugitive dust from surface mines under the Clean Air Act, 42 U.S.C. § 7602(j) (Supp. V 1981), and defendant indicates that EPA has announced its intention to exercise that authority.This buttresses the court's previous finding. This court finds no reason to reverse its earlier position, or the regulations that adopted that position. 48 Fed. Reg. 1160. The Plaintiff Citizen and Environmental Organizations filed a motion for summary judgment on August 15, 1983, raising eighteen issues. On September 30, 1983, the federal defendants filed their cross-motion and memorandum in opposition to the aforementioned motion. On October 21, 1983, the Citizen and Environmental Organization filed their reply memorandum and moved for the entry of an order on seven issues that they contend are not in dispute. The Defendants have represented to the Court as follows: 1. 30 C.F.R. § 785.13 allows approvals by the regulatory authority and the Director of variances from the performance standards of the Act for alternative postmining land uses only when the attainment of such uses would not otherwise be practicable or feasible without the granting of such exceptions; 2. 30 C.F.R. § 785.13(d) requires the inclusion of the terms and conditions of an experimental practice in a permit so that the terms and conditions are enforceable; 3. The Secretary's regulations require Secretarial involvement in all of the important phases of an experimental practice, including the establishment of remedial measures when needed; 4. The experimental practices regulations which require the state regulatory authority and the Director, in those situations where an experimental practice fails, to ensure that operator meet the 30 C.F.R. Chapter VII, Subchapter K performance standards whenever possible; Coal Preparation and Processing Plants 5. Subchapter K requirements including the requirement to replace water supplies contained in 30 C.F.R. § 816.41 apply to coal preparation plants, processing plants, and support facilities; 6. The specific performance standards of 30 C.F.R. §§ 816 or [14 ELR 20625] 817 or 30 C.F.R. § 827 apply to coal processing or preparation plants and support facilities; 7. The auger mining regulations allow consideration of only the "economic circumstances" of the auger mine operator's mining technology and not the economic circumstances of the particular operator. Accordingly, because no dispute exists between the environmental plaintiffs and federal defendants on these issues, and Based on the above representations, and defendants' adherence to same, it is hereby ORDERED, that the foregoing issues are dismissed. This matter comes before the court on cross-motions for summary judgment. After careful consideration of the motions submitted by the parties, opposition thereto, as well as arguments presented by counsel before the court, it is, by the court, this 6th day of July, 1984, ORDERED that the following regulations be remanded to the Secretary for revision in accordance with the foregoing Memorandum: 30 C.F.R. §§ 700.5 (Surface Coal Mining Operation); 701.5 (Coal Preparation and Coal Processing; Coal Preparation Plant); and it is further ORDERED, ADJUDGED, and DECREED that the defendants be granted summary judgment with respect to all other matters considered in the foregoing Memorandum; and it is further ORDERED that this represents a final judgment by this court in the following cases: National Wildlife Federation v. Watt, Civil Action 83-0698; National Wildlife Federation v. Watt, Civil Action No. 83-1093; and National Coal Association v. Department of Interior, Civil Action No. 83-1921. 1. The term reclamation schedule is also ambiguous. It is not defined by the new regulations. It appears, however, to be limited to the timing of the proposed reclamation activities. 2. The government's most recent submission to this court seems to admit that the Secretary has the authority to do this under the present regulations. It states: In any case, the responsibilities of OSM and the Secretary with respect to approval of the mining plan are contained in 30 C.F.R. 746.13 and 746.14 . . ., which do not limit the Secretary's review of reclamation aspects of the proposed operation to a reclamation schedule. Defendants' Memorandum on Whether the Secretary Must Determine Compliance With the Surface Mining Act For Every Mine on Federal Lands, at 11. If this is the government's position then the regulations should state it explicitly. Furthermore, as noted below, the Secretary must exercise this review power. It should be noted that it is possible for the Secreary to review more than one mining plan for a particular mine. The MLA requires a mining plan to be submitted no later than three years after a lease is issued. 30 U.S.C. § 207(c). It is conceivable that this initial plan would have to be submitted before more specific information is available. This does not mean, however, that the Secretary is powerless to review the pertinent updated information provided in the permit application. In such a case, this updated information is nothing more than an amendment or supplement to the original mining plan. Furthermore, in the usual case, the data presented in the "permit application package" will be sufficient for the permit application and mining plan. 48 Fed. Reg. 6914 (1983). Indeed, the regulations envisioned that in the typical case the state would issue the SMCRA permit before the Secretary approved the mining plan. Id. 3. Plaintiffs argue that the Secretary's approval of mining plans also applies to circumstances where no federal coal is to be mined but federal lands will be disturbed. The issues involved in the definition of Federal lands and the scope of the Federal Lands Program are discussed below. 4. OSM is responsible for oversight of the states pursuant to the terms of the cooperative agreements. 30 C.F.R. § 740.4(b)(5). Furthermore, the Secretary has the power, after notice and a hearing, to terminate a cooperative agreement. 30 C.F.R. § 746.15(b). 5. For the reasons stated below, this court believes that the critical issue is not the definition of "federal land" but the application of the federal lands program. That is the issue that the court addresses. 6. Under the regulation, the Secretary would decide, on a case-by-case basis whether the federal interest involved is significantly affected. This court finds untenable the government's position that this regulation would not have covered operations on non-federal lands that "directly affect" federal lands. See Government's Memo at 77. This contradicts the language of the regulation as well as the explanation provided by the Secretary.This version of the regulation "should be interpreted as excluding State or privately-owned surface overlying federal coal where the proposed operation will not directly affect that coal." 47 Fed. Reg. 25098 (1982) (emphasis added). Conversely, this regulation includes state or privately-owned surfaces and federally-owned coal where the proposed operation will directly affect that coal. 7. "'Federal lands' means any land, including mineral interests, owned by the United States . . ." 30 U.S.C. § 1291(4). 8. As quoted above, the statutory definition of federal lands is quite clear and can be applied with relative ease. The key concept is a property interest by the United States. If it exists in the coal or surface, then that coal or surface is "federal land." 9. The Secretary's regulation clarifies the entire statutory phrase that applies the federal lands program "to all surface coal mining and reclamation operations taking place pursuant to any federal law on any federal lands." 30 U.S.C. § 1273(a). 10. The Act states that "'surface coal mining and reclamation operations'" means surface mining operations and all activities necessary and incident to the reclamation of such operations. 30 U.S.C. § 1291(27). Thus, it is to the definition of "surface coal mining operations" that this court must turn. 11. The second portion of this definition is discussed above on pps. [14 ELR 20620]. 12. The government cogently responded to the specific arguments raised by the surface miners in its memorandum, and this court sees no need to repeat those responses, but incorporates them by reference. See Defendants' Memorandum in Support of Their Motion for Summary Judgment and in Opposition to Plaintiffs' Motion for Summary Judgment at 26-32. 13. The Secretary adopted this limited definition despite his finding that "in some circumstances crushing and screening operations may have adverse water, air, and noise impacts." 48 Fed. Reg. 20396 (1983). 14. This result is confirmed by the use of the word "or." Congress has grouped distillation and retorting together and set them apart from leaching and other chemical or physical processing by using a comma. This confirms the conclusion that Congress intended to apply in situ to distillation and retorting alone. 15. Specifically, after listing activities included in the definition of "surface mining operations" the report goes on to state that: Activities not included are the extraction of coal in a liquid or gaseous state by means of wells, or pipes unless the process includes in situ distillation of [sic] retorting and the extraction of coal incidental to extraction of other minerals where coal does not exceed 16 2/3 percent of the tonnage [sic] removed. S. REP. NO. 128, 98th Cong., 1st Sess. 98 (1977) (emphasis added). 16. "Tipples" or "tippling operations" refers to facilities that crush, screen, size and load coal. See Defendants' Memorandum in Support of Their Cross-Motion for Summary Judgment and in Opposition to Plaintiff's Motion for Summary Judgment at 24 n.*. These operations would only be subject to the requirements of the Act if they were "in situ" under the present regulations. 17. The regulation defining "surface coal mining operations" should also be amended to reflect, with clarity, this court's holding. 30 C.F.R. § 700.5. 18. These activities in section 701(28)(A) are expanded somewhat by the finding of the court in above section of this Memorandum. The facilities covered by the Secretary's definition of support facilities is decreased proportionately. 30 C.F.R. § 701.5. 19. In fact, the Secretary recognized that a "proximity relationship is not specifically in Section 701(28)(B)." 48 Fed. Reg. 20397. Nonetheless, he believed that a proximity test was an appropriate way to administer that section. Id. This test, however, is not supported by logic or the statutory language which clearly implies a functional relationship. 20. As discussed above, the language "incident to or from which its operation results" denotes a functional, rather than a geographical relationship. 21. The House Report is as broadly worded as the Act itself. The report states, in pertinent part, that the bill: requires that the mine site be regraded to the approximate original contour. Moreover, the regrading standard of H.R. 2 was formulated to cover all types of mining operations under all conditions. H.R. REP. NO. 218, 95th Cong., 1st Sess. 96, rerinted in 1977 U.S. CODE CONG. & AD. NEWS 593, 633. 22. The Secretary has placed his belief that "Congress did not specifically consider the remining of previously-mined areas" on the record. 48 Fed. Reg. 19320 (1983). 23. See In Re Surface Mining Regulation Litigation, 452 F. Supp. 327, 339 (D.D.C. 1978). 24. As the government notes in its memorandum, these mines will only be reclaimed by coal operators through remining or through money provided by the Abandoned Mine Reclamation Fund. See Defendant's Memorandum at 101. The latter source, however, is grossly inadequate to fund reclamation of these highwalls. Remining is important, therefore, to ensure that these highwalls are reclaimed, if not eliminated. 25. This concern was expressed in the House Report. The Committee stated that: The elimination of highwalls, return of land to approximate original contour, and establishment of viable vegetative cover are among the standards critical to the elimination of the worst effects of coal surface mining. H.R. REP. NO. 218, 98th Cong., 1st Sess. 85, reprinted in 1977 U.S. CODE CONG. & AD. NEWS 539, 621. The Committee went on to state, however, that despite the nature of these standards, the requirements in the Act were flexible, allowing for exceptions and variable terms. Id. 26. The House Report did express certain expectations that the Committee had about the promulgation of regulations. It stated that: The Committee believes that it has struck a balance between legislation which merely frames performance standards in terms of general objectives and standards which are cast in terms more detailed than those generally found in regulatory legislation. In choosing a middle path, the Committee is mindful of the past failures on the State level and thus bases its approval on H.R. 2 on the expectation that federal regulations promulgated under the Act will fully implement the environmental performance standard. Obviously, the mere reproduction of the statutory environmental performance standards in the regulations would be inadequate. H.R. REP. NO. 218, 95th Cong., 1st Sess. 85, reprinted in 1977 U.S. CODE CONG. & AD. NEWS 593, 622. Thus, Congress attempted to write a bill, erring on the side of generality, to allow the Secretary flexibility in implementing these general goals. 14 ELR 20617 | Environmental Law Reporter | copyright © 1984 | All rights reserved |