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15 ELR 20481 | Environmental Law Reporter | copyright © 1985 | All rights reserved In re Permanent Surface Mining Regulation LitigationNo. 79-114 (D.D.C. October 1, 1984)The court remands in part the Office of Surface Mining's revised Surface Mining Control and Reclamation Act (SMCRA) regulations dealing with subsidence, prime farmland, roads, alluvial valley floors, stream buffer zones, excess spoil, performance bonds, backfilling and grading, topsoil, and fish and wildlife. As a preliminary matter, the court holds that the citizen and environmental plaintiffs have standing and that their challenges to unused delegations of regulatory power are ripe. Turning to substantive issues, the court deals first with challenges to the subsidence regulations. Although SMCRA expressly deals only with prevention of subsidence, the regulations requiring remedy of subsidence are consistent with the language of the statute and congressional intent; do not unlawfully interfere with private, state law remedies for subsidence damages; and, as yet, have not worked a taking of property. The court holds that the regulation requiring underground miners to give notice to surface owners and occupants is consistent with the Act and a reasonable exercise of agency discretion. The court remands he regulation that allows state law to govern redress of damage to surface structures because the final rule was radically different from the proposed rule and so was promulgated without adequate notice or comment. Reserving judgment on the water supply protections in the hydrology regulations, the court holds that the water supply protections in the subsidence regulations are reasonable and need not require replacement of water where protection cannot be assured. The new regulations do not delete a requirement that underground miners supply structural information, since that requirement was not a part of the previous regulations. The court reserves judgment on whether the regulations must require pre-subsidence surveys and monitoring, but advises the agency to receive comments on the question on remand. The court then considers challenges to the prime farmland regulations. The requirement that miners grow crops on restored lands to prove that restoration has worked, rather than relying on soil surveys, is consistent with the statute. The regulation requiring pre- and post-reclamation soil surveys in addition to the cropping is also consistent with the statute and reasonable. The court strikes down a regulation allowing reclaimers to create non-farm-related water bodies as inconsistent with the Act's post-mining use restrictions. The regulatory exception to those restrictions for certain mining activities affecting a minimal amount of land must be remanded, for the agency irrationally ignored distinctions between surface and underground mining activities and failed to provide sufficiently specific limits to the exception. Finally thecourt holds that the soil compaction standards, which the Soil Conservation Service is to prepare, must be promulgated with notice and comment. Turning to the road regulations, the court first holds that the regulation requiring underground miners to reclaim roads is required by the Act and therefore reasonable. However, the court remands the road regulations for lack of notice and comment, holding that the criteria used in the road classification section in the final rule were not even hinted at in the proposed rule. Moving on to the regulations governing treatment of alluvial valley floors (AVFs), the court declines to hold the regulatory definition of subirrigation overbroad, noting that the definition contains sufficient limitations to prevent it from being extended beyond what Congress intended. However, the regulatory definition equating "farming" and "agricultural activities" as they relate to AVFs is inconsistent with other regulations and the presumption that Congress would have used a single term if it intended a single meaning. Also, the court rules that the SMCRA AVF exemptions for undeveloped rangeland and farming on small acreages do not apply to the SMCRA requirements for protecting hydrologic balance. Therefore, the regulations correctly set hydrological requirements for undeveloped rangeland and farms of small acreage. The court also holds that the regulations protect water systems that supply AVFs outside the permit area. The regulations are not flawed for allowing the agency to deny coverage under the AVF exemptions without public participation, since the public has opportunity to challenge any provision of a permit before it is finally approved. Neither are the regulations flawed for measuring water quality and quantity impacts solely in terms of damage to agricultural activities. The agency failed, however, to explain why it dropped the requirement that permit applicants supply specified information on essential hydrologic functions.Finally, the court upholds that part of the regulation defining the extent of the small acreage farming exception as not arbitrary or capricious. The court next upholds he agency's decision to change the stream buffer zone requirement from one requiring buffers around streams with a biological community to one requiring buffers around perennial or intermittent streams. The agency gave a rational explanation for the change. Turning to the excess spoil regulations, the court holds that the new nondegradability requirements for excess spoil are consonant with the Act, rationally justified, and adequately described. Also, the definition of excess spoil does not create a loophole to the requirement that spoil be used to return an area to its approximate original contours. The court then addresses challenges to the bonding requirements. The court finds it reasonable that the regulations do not require a an initial bond large enough to cover subsidence damages, since no permit would be granted if subsidence was initially expected. However the regulations that allow posting of a bond for less than the entire area to be mined within the permit term contradict the statute. Similarly flawed are the regulations allowing miners to post separate bonds to guarantee specific phases of reclamation within a single permit term. The court holds that the regulations governing bond release hearings need not require adjudicatory procedures. Examining challenges to the backfilling and grading regulations, the court remands the revised regulations governing terracing because they provide no guidance on when terracing might violate the statutory requirement that the pre-mining surface configuration be restored. Similarly, the court holds that the regulations must be revised to provide guidance on whether reclamation meets the statutory requirement that it be as contemporaneous as practicable with the mining operation and to provide guidance on when the exceptions to the original contour requirement for areas of thin or thick overburden apply. Addressing challenges to the topsoil regulations, the court holds that the regulation allowing reclaimers not to put topsoil on certain steep embankments is reasonable and properly implement the requirements of the Act. The court also upholds as reasonable the regulations allowing long-term storage of topsoil on a "host" site. Turning at the last to challenges to the regulations protecting fish and wildlife, the court first holds that an earlier court of appeals decision had reinstated regulations requiring operators to supply information on fish and wildlife resources. Though the new regulations do not impose any such requirement, the subject was expressly excluded from the rulemaking, so no rationale was provided for abandoning the requirement. The requirement must therefore still be in effect. The court also holds that the agency failed to give cogent reasons for deleting a requirement that toxic ponds be fenced. Ruling on three endangered species challenges, the court holds (1) that amending the regulations to ignore state-listed species violated SMCRA, (2) that deletion of a requirement that operators report the presence of critical habitat was rational since the permit application process adequately protects critical habitat, and (3) that prohibiting only operations that will jeopardize species rather than ones that are likely to jeopardize species violates the directives of the Endangered Species Act. The court rejects challenges to new, less specific regulations on protecting raptors from electrocution on powerlines, finding that the agency gave adequate explanation for the change, was not required to specifically address protection of non- raptors, did not write an overly broad exception into the regulation. Finally, the court holds that the agency's relaxation of bans on construction of migration barriers and use of persistent pesticides were rational exercises of discretion. [Related cases appear at 9 ELR 20720; 10 ELR 20113, 20208, 20526; 11 ELR 20941; 14 ELR 20617; and 15 ELR 20494.] Counsel are listed at 14 ELR 20617. Memorandum Once again, this court addresses the myriad issues presented by challenges to the regulations promulgated by the Secretary of the Interior, ("Secretary"), pursuant to the Surface Mining Control and Reclamation Act of 1977, ("SMCRA"), 30 U.S.C. § 1201 et seq. This Memorandum resolves the cross-motions for summary judgment presented to this court in the second round of briefing. The standard of review employed by this court is set forth in its Memorandum of July 6, 1984, at 2-3. Beofre this court turns to the substantive challenges to the regulations, it must address two procedural issues. The Industry plaintiffs, ("Industry"), argue that the Citizen and Environmental plaintiffs, ("NWF"), lack standing and that its arguments are not ripe for judicial review. These arguments are meritless for the reasons briefly described below. As Industry notes, section 526(a)(1) of SMCRA demonstrates a congressional intent to extent standing to the full limits of Article III. Havens Realty Corp. v. Coleman, 455 U.S. 363, 372, 102 S. Ct. 1114, 1121, 71 L. Ed. 2d 214 (1982). Plaintiffs must demonstrate "a distinct and palpable injury" to bring a court action. Warth v. Seldin, 422 U.S. 490, 501, 95 S. Ct. 2197, 2206, 45 L. Ed. 2d 343 (1975). A review of each of plaintiffs' complaints demonstrates that they have satisfied this requirement. The allegations contained in those complaints are uncontradicted, and must be accepted as true. Id.; 422 U.S. at 502; 95 S. Ct. 2207. Plaintiffs have alleged an actual injury redressable by the court, and, therefore, have standing to sue. In addition, Industry argues that the issues raised by NWF are not ripe for determination. The crux of this argument appears to be that many of NWF's challenges involve the delegation of responsibility to the regulatory authority. Industry alleges that NWF's challenges, therefore, are not ripe until the regulatory authorities exercise the authority vested in them by the Secretary. Industry misses the point. As will become apparent below, NWF does not challenge, and this court does not prejudge the wisdom of the regulatory authorities. rather, this court examines the statute to determine whether the delegation itself is permissible under the Act. In such situations the court must determine whether the Secretary has provided sufficient guidance to the regulatory authority to ensure that the Act's requirements are carried out. This determination has nothing to do with the actual exercise of authority by the regulatory authority, but turns on an examination of the Act and the regulations. Therefore, these issues are clearly ripe for determination. Both Industry and NWF challenge the Secretary's regulations dealing with subsidence. This court will turn to Industry's challenge first. A. Requirement to Restore Subsided Land The Industry plaintiffs argue that the regulations requiring restoration of subsided land without regard to state law or contracts are invalid. The challenged regulation states that: (1) Correct any material damage resulting from subsidence caused to surface lands, to the extent technologically and economically feasible, by restoring the land to a condition capable of maintaining the value and reasonably foreseeable uses which it was capable of supporting before subsidence. 30 C.F.R. § 817.121(c)(1). This regulation requires the underground mine operator to restore all land that is materially damaged by subsidence. No provision is made for private contract right that might exist between the operator and the landowner, or for state law. Industry argues that this regulation is contrary to the Act, destructive of state law, and impracticable. The Secretary asserts that the duty to restore the land stems [15 ELR 20483] from sections 515(b)(2), 516(b)(1), and 516(b)(10) of the Act. It is clear that section 515(b)(2) would support the Secretary's position. As noted in this court's prior opinion,1 § 515(b)(2) states that all surface coal mining and reclamation operations must "restore the land affected to a condition capable of supporting the uses which it was capable of supporting prior to any mining." 30 U.S.C. § 1265(b)(2). The issue is whether section 515(b)(2) is applicable to underground mining operations. The solution lies in an examination of section 516. Section 516 governs the surface effects of underground coal mining operations. This section states that "other surface impacts not specified in this subsection" must: operate in accordance with the standards established under section 1265 of this title for such effects which result from surface coal mining operations: Provided That the Secretary shall make such modifications in the requirement imposed by this paragraph as are necessary to accommodate the distinct difference between surface and underground coal mining.2 12 U.S.C. § 1266(b)(10). The question, therefore, is whether the surface impact of material damage to land from subsidence is specified in section 516(b).3 Subsection (b)(1) of this section does address the area of subsidence. That subsection states that an underground mining permit must require the operator, to the extent technologically and economically feasible, to take measures to prevent subsidence causing material damage and to maintain the value and use of the surface lands. 30 U.S.C. § 1266(b)(1). Thus, it is clear that (b)(1) addresses, at least in one sense, the problem of subsidence. It is equally clear, however, that this subsection not provide a solution to that problem. (b)(1) requires industry to take all feasible steps to prevent subsidence, but it does not address the question of what happens if subsidence does occur. The Secretary argues that this void is filled by section 515(b)(2), and, therefore, requires underground miners to restore land materially damaged by subsidence. Industry argues that the statute requires that this void be left unfilled. Congress was well aware of the serious problem caused by subsidence. See, e.g., H.R. Rep. No. 218, 95th Cong., 1st Sess. at 126 (1977). Industry's interpretation of the Act is that although Congress was concerned with this problem, and explicitly required underground miners to do everything feasible to prevent subsidence that materially damaged land, it allowed this land to be left in its damaged condition once subsidence occurred. This reading of the Act is not in accordance with congressional intent.4 A close reading of the statute supports the Secretary's position. The "surface impact" of subsidence is not addressed in section 516(b)(1). Miners are required to prevent subsidence but not to redress its impact once it occurs. Furthermore, the proviso in section 516(b)(10) gives the Secretary the power to accommodate the differences between the duty to restore land materially damaged by subsidence from surface mines and that damaged by underground mines. The Secretary found that no differences requiring accommodation existed and imposed a restoration requirement in both cases. This court finds, therefore, that the Secretary's regulation is based on a reasonable reading of the statute. Industry argues that the regulation should be struck down because it infringes on state laws that provide remedies in tort and contract for subsidence damage. These remedies redress injuries suffered by private parties, but not necessarily to the land itself. As the Secretary points out, private parties should not be able to circumvent Congress' will by forming contracts. Congress did not pass this Act solely to protect individuals' property rights. This Act was passed to protect this nation's land, and shield "the environment from the adverse effect of surface coal mining operations," and surface effects of underground mining for generations yet unborn. See 30 U.S.C. § 1202(a). A balance must be struck, of course, between protecting the environment and the need for coal as an essential source of energy. 30 U.S.C. § 1202(f). That balance, however, is to be struck by Congress, the Secretary, and the regulatory authority, and not by private parties. State law will be applied in this area to the extent it is consistent with the statutory scheme set out by Congress, as enforced by the Secretary. This court has found, as stated above, that a requirement of restoration for material damage is consistent with congressional intent. Any state law that blocks this requirement "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67, 61 S. Ct. 399, 404, 85 L. Ed. 581 (1941). Federal law would pre-empt state law in such a situation. See Aronson v. Quick Point Pencil Company, 440 U.S. 257, 262, 99 S. Ct. 1096, 1099, 59 L. Ed. 2d 296 (1979). Furthermore, Industry has painted a scenario of conflict between state and federal law, yet this conflict does not necessarily exist. There is no indication from the Act that Congress intended to pre-empt state common law. Indeed, it is apparent that the Act and state common law can co-exist and serve the goals of the statute, as well as protect state concerns. See Ginn v. Consolidation Coal Company, 437 N.E.2d 793, 795-96 (Ill. App. 1982).5 Finally, Industry argues that enforcement of these regulations would result in an unconstitutional taking of property without due process of law. This court finds hat the "mere enactment" of the regulation does not constitute a taking. See Hodel v. Virginia Surface Mining & Reclamation Association, 452 U.S. 264, 295-96, 101 S. Ct. 2352, 2370-71, 69 L. Ed. 2d 1 [11 ELR 20569] (1881). This issue, therefore, is not ripe for determination until the regulation is actually applied. Id. The Secretary promulgated a regulation requiring underground miners to mail a notice to all owners and occupants of surface property above the underground workings. 30 C.F.R. 817.122.The notice must include specific areas and dates detailing the mining operations, and indicating locations where the operator's subsidence control plan may be examined. Id. This notice must be provided at least six months prior to mining, unless a shorter period of time is approved by the regulatory authority. Id. Industry argues that there is no statutory authority for the regulation and that the notice requirement is arbitrary and capricious. The court will consider these arguments in turn.6 The Secretary stated that this regulation is based on sections 513 and 516 of the Act. The former section relates to public notice and public hearings, and the latter concerns surface effects of underground coal mining operations. Section 516 sets forth the requirements that an underground miner must meet when applying for a permit. 30 U.S.C. § 1266(b). Section 513 requires public notice for such permits. 30 U.S.C. § 1263(a). The Secretary believes that the notice requirement set forth in 30 C.F.R. § 817.122 is a necessary adjunct to the requirements of section 513 because of the material damage that subsidence can cause. 48 Fed. Reg. 24647 (June 1, 1983). This court finds that the challenged regulation is supported by the sections of the statute cited by the Secretary as well as the general goal of Congress to "assure that the rights of surface landowners and other persons with legal [15 ELR 20484] interest in the land . . . are fully protected" from mining operations. 30 U.S.C. § 1202(b). Finally, Industry argues that the regulation is arbitrary and capricious. The nature of the mining plan is such, it maintains, that it is constantly changing. It also argues that because of the nature of subsidence, the notice is useless. These arguments, however, should have been made to the Secretary and not to this court. Furthermore, the time period provided for in the regulation is flexible. The notice requirement is consistent with the Act, and is a reasonable exercise of the Secretary's discretion. This court now turns to the challenges presented by NWF. The Secretary's final regulations require operators to redress material damage to surface structures or facilities from subsidence only to the extent required by state law. 30 C.F.R. § 817.121(c)(2). In 1982, Secretary Watt promulgated a regulation that addressed damage to structures from subsidence. 47 Fed. Reg. 16610 (April 16, 1982). That regulation was substantially similar to the regulation prolmulgated by Secretary Andrus, and required the operator to restore the damaged structure or compensate the owner in some way. Id. It did not provide an exception, or tie the requirement to state law in any way. NWF argues that the present regulation was passed without adequate notice or comment, as required by the Administrative Procedures Act ("APA"). Although the APA requires the agency to reveal the terms and substance of the proposed rule, "the notice need not contain 'every precise proposal which [the agency] may ultimately adopt as a rule.'" Ethyl Corporation v. EPA, 541 F.2d 1, 48 [6 ELR 20267] (D.C. Cir. 1976), quoting, California Citizens Band Association v. United States, 375 F.2d 43, 48 (9th Cir.), cert. denied, 389 U.S. 844, 88 S. Ct. 96, 19 L. Ed. 2d 112 (1967). The key determination is whether interested parties are provided an adequate opportunity to comment on the final rule. See, e.g., Rodway v. Department of Agriculture, 514 F.2d 809 (D.C. Cir. 1975). The final rule now before the court represents a radical change from the proposed rule. The final rule, by relying on state law, returns the treatment of structures damaged by subsidence to the situation that existed before SMCRA was passed. This is a complete reversal of policy from the proposed regulation, which required restoration of these structures or compensation for the damage. The Secretary argues that the final rule was adopted as a result of comments and was within the scope of the proposal. See 48 Fed. Reg. 24645 (June 1, 1983). This court might be persuaded by this argument if the rule proposed by Secretary Watt in 1982 had been the first proposed regulation in this area. This, however, is not the case. The Secretary's proposed regulation is virtually identical to that promulgated by Andrus. In light of this history, interested parties should not have been required to anticipate a complete reversal of policy on the basis of a comment.7 This court finds, therefore, that 30 C.F.R. § 817.121(c)(2) must be remanded for proper notice and comment. D. Protection of Water Supplies. NWF argues that the Secretary improperly failed to protect water supplies and/or require replacement of water supplies damaged by subsidence. This is a confusing area because a challenge regarding water supplies would be more appropriate under the hydrology regulations to be considered in the third round of briefing. Nonetheless, the court will briefly consider the arguments raised by NWF. The position taken by the Secretary with regard to this challenge is reasonable. The Secretary appears to agree with the environmentalists that the reclamation plan requirements of Section 508(a)(13) apply to underground mine operations through Section 516(d). The Secretary has adopted these requirements in the permitting regulations for underground mining, 30 C.F.R. § 773.15(c)(5), and the hydrology regulations. 30 C.F.R. §§ 784.14; 817.41. See 48 fed. Reg. 24640 (June 1, 1983). These regulations adequately implement the statutory requirements. Beyond this, the court will not examine the hydrology regulations until Round III. NWF argues that section 508(a)(13)(C) requires replacement of water where protection of the supply cannot be assured. This court has previously struck down a regulation that required underground miners to replace the water supply damaged by their operations. May Opinion at 37. If NWF's argument was adopted, section 508(a)(13)(c) would duplicate section 717(b). Both apply to surface mines, but only the latter requires water replacement. Section 508(a)(13)(C) provides for the "protection" of the water supply, and "alternate sources of water where such protection of quantity cannot be assured." 30 U.S.C. § 1258(a)(13)(C). This does not require water replacement, and, to the extent this section is made applicable to underground mines, the Secretary's hydrology and permitting regulations adequately implement its requirements. E. Minimum Standards for Subsidence Control Plans. NWF argues that the new regulations delete a requirement that information relating to the strength of the floor, roof and coal seam be provided. 30 C.F.R. § 784.20(c). It must be noted, however, that the regulations promulgated by Secretary Andrus did not include such a requirement. See 30 C.F.R. § 784.21 (1980). Indeed, the present regulation allows for the gathering of additional information by providing that the regulatory agency may require the submission of additional information as necessary to ensure compliance with the subsidence control requirements of § 817.121. NWF asserts that information regarding the strength of the roof, etc., was provided for in the preamble to the regulations. This court does not believe that the preamble required submission of this information. See 44 Fed. Reg. 15273. Plaintiff's comments were considered, and rejected, 48 Fed. Reg. 24641 (June 1, 1983), and this court finds that the Secretary acted reasonably in so doing. This court holds that the requirements of section 516(b)(1) can be met without a mandating that this information be required in all instances. To the extent it is necessary to achieve these requirements, it must be obtained by the regulatory authority. F. Pre-Subsidence Surveys and Monitoring The previous regulations required the use of the pre-subsidence surveys and monitoring, if any, to determine the degree of material damage to the structures due to subsidence.30 C.F.R. § 784.20(d) (1980). NWF alleges that these requirements were deleted without explanation. The Secretary's position with regard to this regulation is consistent with his position on the requirement of restoration of structures damaged by subsidence. See, supra, section I.C. The Secretary maintains that this is a purely private matter between the operator and the owner of the surface structure. See 49 Fed. Reg. 24642 (June 1, 1984). Therefore, the Secretary believes, section 516(b)(1) does not relate to such matters, and there is no reason to require the operators to take steps to measure the damage. The Secretary argues that the statutory requirement is met by the requirement to conduct a survey and monitoring to prevent and control subsidence. 30 C.F.R. § 784.20(a). The fate of this regulation is inextricably linked to the issue of whether operators must restore structures materially damaged by subsidence. The court did not reach this issue because it found that notice of the proposed regulation was inadequate. This court will not order the Secretary to adopt former 30 C.F.R. § 784.20(d) (1980), but finds that he should receive comments on the deletion of this section in conjunction with the comments on structures damaged by subsidence. Once again, both Industry and NWF challenge the Secretary's regulations in this area. This court will examine Industry's challenges first. Industry objects to the regulation that requires the operators to prove that they restored the soil productivity of prime farmland by actually growing crops for a minimum of three years. 30 C.F.R. §§ 823.15(b)(3) and (b)(5). It argues that Congress intended that the operators protect the capacity of prime farmlands. This can be demonstrated, allegedly, by soil surveys. The Secretary maintains that the only way to effectively ensure that soil productivity is restored is to require actual cropping on that land. See 48 Fed. Reg. 21462 (May 12, 1983). It is beyond dispute that reclamation of prime farmland was an area of particular concern to Congress. It is also beyond dispute [15 ELR 20485] that Congress mandated that the regulatory authority only allow mining on prime farmland if the operator has the capability to restore the mine area to equivalent or higher levels or yield as non-mined prime farmland in the area. See 30 U.S.C. §§ 1260(d)(1), 1269(c)(2). The question is: What standard will be employed to determine whether the land has been restored as required by the statute? The statute addresses the restoration requirements in this area from two perspectives. Initially, it requires that certain inquiries and findings be made before a permit is issued.8 This activity takes place before any mining or reclamation operations begin. The regulatory authority has only one mechanism to assure that these reclamation operations are successful: The bond posted by the miner. The section governing bond release, therefore, is relevant to determining the measuring stick for success of restoring prime farmland. That section states that: No part of the bond or deposit shall be released . . . until soil productivity for prime farm lands has returned to equivalent levels of yield as nonmined land of the same soil type in the surrounding area under equivalent management practices as determined from the soil survey performed pursuant to section 1257(b)(16) of this title. 30 U.S.C. § 1269(c)(2). Industry interprets this section to require that the soil's capacity, as determined by a soil survey, be restored to pre-mining levels. It would be arbitrary and capricious, Industry asserts, to require that this be demonstrated by cropping. The Secretary argues that the timing of the surveys precludes them from being the sole determining factor of whether the land was properly restored. The survey required by § 1257(b)(16) must be performed before mining takes place, to determine the exact location of the prime farmland.Thus, Congress could not have envisioned that this survey could, by itself, reveal the success of the reclamation operation. Although a soil survey is not mandated by the statute, for this purpose, the Secretary considered the viability of conducting a soil survey after the reclamation had been completed to ascertain whether the statutory standards of restoration had been met, and he stated that: OSM has determined that cropping is the only method currently available to test the restoration of the productivity of prime farmland soils because insufficient research has been published that demonstrates the reliability of any other method.9 48 Fed. Reg. 21458 (May 12, 1983). Industry can point to no section of the Act that would be violated by the requirement of cropping. The Secretary must be given due deference in determining how a statutory standard is to be met. The Secretary reached the conclusion that cropping is the only means through which the statutory goal of restoration of prime farmland can be met, after considering the relevant data, and articulating a reasonable explanation or his action. See Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Company, U.S. , 103 S. Ct. 2856, 2866, L. Ed. 2d (1983). This regulation, therefore, must be upheld. In a related challenge, Industry argues that if the cropping requirement is upheld on the basis of the ineffectiveness of soil surveys then the operators should not have to conduct these surveys before their bond is released. The purpose of the surveys required by the rules must be discussed in order to clarify the regulatory scheme in this area. The first survey to be conducted is designed to locate prime farmland within the permit area. If no soil survey of the permit area exists, the permit applicant must conduct its own survey. 30 C.F.R. § 785.17(b)(3). Industry argues that it should not have to bear the burden of conducting this survey if it is incapable of determining soild productivity. This argument is unpersuasive for two reasons. Initially, the Secretary did not find that a soil survey is useless for all purposes. Indeed, it may be the best, or only way to determine whether land qualifies as prime farmland. Secondly, the Secretary does not have discretion in this area. Congress mandated that: For those lands in the permit application which a reconnaissance inspection suggests may be prime farm lands, a soil survey shall made or obtained according to standards established by the Secretary of Agriculture in order to confirm the exact location of such prime farm lands, if any. 30 U.S.C. § 1257(b)(16) (emphasis added). thus, the regulation requiring the pre-permit survey finds direct support in the statute. The second survey takes place after the reclamation process has begun. There are two general requirements set forth in the Act for the reclamation of prime farmland. Initially, there are performance standards for soil reconstruction. 30 U.S.C. § 1265(b)(7). The more specific requirements to be met by the operators for soil reconstruction are set forth at 30 C.F.R. § 823.14. The Secretary's finding that soil surveys are not effective for determining soil productivity has no bearing on whether these surveys can be used by the Soil Conservation Service to establish soil reconstruction specifications. These specifications are based on the characteristics of the soil revealed by the pre-permit survey. This regulation, therefore, is also reasonable. The second area of reclamation is restoration of soil productivity as required by 30 U.S.C. § 1269(c)(2). The Secretary has determined, as discussed above, that the only method to assure that this statutory requirement is met is through cropping. Thus, the regulation states that restoration of soil productivity is measured by actual crop yield and not by soil surveys. 30 C.F.R. § 823.15(b). It is the determination that the prime farmland soil has been restored to pre-mining productivity levels, based on actual crop yields, and not soil surveys,10 that triggers the release of the operators' bond. 30 U.S.C. § 1269(c)(2); 30 C.F.R. § 800.40(c)(2). This court finds that this regulatory scheme is reasonable and consistent with the Act. These regulations, therefore, must be upheld. The general rule of the Act as well as the regulations is that prime farmland be returned to cropland after the mining operation has been completed. See 30 U.S.C. § 1260(d)(1); 30 C.F.R. § 785.17(e)(1). The Secretary has created an exception to this rule for water bodies. 30 C.F.R. § 823.11(b). NWF argues that this exception is arbitrary and capricious, and contrary to the Act. The Supreme Court considered the prime farmlands provision of the Act, in a somewhat different context. Hodel v. Indiana, 452 U.S. 314, 331-33, 101 S. Ct. 2376, 2386-88, 69 L. Ed. 2d 40 [11 ELR 20581] (1981). The Court accepted the finding that the Act makes no allowance for variances from the prime farmlands requirements. Id. The Secretary believes that this finding is not dispositive of the issue. 48 Fed. Reg. 21454 (May 12, 1983). Defense counsel stated at oral argument and in their brief that water bodies inconsistent with cropland are prohibited. In other words, only those water bodies necessary for irrigation of prime farmland would be allowed. Impoundments will be allowed, the Secretary argues, only if they are found to be beneficial or necessary to agricultural activity. This court need not reach the question of whether such impoundments are permissible, because it does not find that the regulations limit impoundments to that extent. This court agrees [15 ELR 20486] with Industry that purposes for impoundments allowed by the present regulations include recreational, municipal water supply, replacement of wetlands, livestock consumption, and esthetic improvement. See Industry Intervenors' Cross-Motion for Summary Judgment at 114-16. There is nothing in the regulations that would prevent impoundments for these purposes.11 Impoundments designed to serve the above uses may be desirable, but it is an impermissible use of prime farmland under the Act. 30 U.S.C. § 1260(d)(1). This regulation, therefore, must be struck down because it provides a broad and impermissible variance from the post-mining use of prime farmland.12 C. Exemptions for Coal Preparation Plants, Support Facilities and Roads The regulation in question creates an exception to the general rule for post-mining use of prime farmland for coal preparation plants, support facilities, and roads of surface and underground mines that affect a minimal amount of land. 30 C.F.R. § 823.11(a). NWF objects to this regulation on two grounds. Initially, it objects to the exemption as it relates to surface facilities. Secondly, it asserts that the regulation must have spatial and temporal limits on the amount of exempted land. This court previously analyzed the question of whether the prime farmland requirements could be applied to underground mines. May Opinion at 1-3. The court found that the interaction of sections 506(a) and 701(28) allowed the Secretary to apply the prime farmland requirements to underground mining operations. Id. at 3. Nonetheless, an across-the-board application of these requirements, without an exemption for surface facilities that are actively used over extended periods of time but affect a minimal amount of land, was found to be arbitrary and capricious. Id. This court's opinion was based on differences between surface and underground mining operations. These basic differences become evident in analyzing disturbances of prime farmland. Surface mining disturbs larger portions of the land surface for shorter periods of time than does underground mining. As a result, an application of prime farmland requirements to preparation plants for underground mining operations requires the segregations of topsoil and underlying horizons, and storage of that topsoil for 20-40 years. May Opinion at 3: This situation does not exist at surface mines where topsoil need not be stored for many years, but can be redistributed over the areas disturbed by surface operations.13 The Secretary does not address this distinction, but states that the listed surface facilities for surface mining operations should be exempted from the prime farmland requirements, based on this court's analysis, "because of the similarity of such long-term uses and their effects for both types of mining." 48 Fed. Reg. 21452 (May 12, 1983). This reasoning ignores the basic differences between surface and underground mining operations. The key is not only that the surface facilities will be used for a long period of time, but also that in underground mining the soil must be maintained and stored for that same period of time. This is not true of surface mining operations, and thus the Secretary's reasoning is flawed. This regulation, therefore, must be remanded. This court finds that the Secretary must provide some guidelines for the regulatory authorities in this area. The exemption properly applies to the listed surface facilities that are "actively used over extended periods of time and where such uses affect a minimal amount of land." 30 C.F.R. § 823.11(a). The Secretary has provided no indication of what he considers an extended period of time or a minimal amount of land. He cites the need for flexibility, 48 Fed. Reg. 21453, and this court is sensitive to that concern.Nonetheless, the Secretary has a duty to "flesh out" the statutory requirements. In re Permanent Surface Mining Regulation Litigation, 653 F.2d 514, 527 [11 ELR 20941] (D.C. Cir. 1981). This duty is particularly important in the context of this regulation. As discussed above, Congress did not intend any broad variance from the prime farmlands requirement. In this regulation the Secretary created an exception to those requirements and allowed the regulatory authorities to define the limits of that exception. This is not permissible. The Secretary, at the very least, must provide guidelines limiting the scope of this exemption. D. Minimum Standards for Soil Reconstruction and Soil Compaction. SMCRA states that, with respect to prime farmlands, specifications for removal, storage, replacement, and reconstruction of soil are to be established by the Secretary of Agriculture. 30 U.S.C. § 1265(b)(7). In compliance with this section of the Act, the Secretary directs the U.S. Soil Conservation Service to set soil reconstruction specifications. 30 C.F.R. § 823.14. NWF objects to this regulation on the ground hat no notice or hearing will be provided for these specifications. The Secretary stated that "OSM has recommended to the SCS that they publish these specifications for public review." 48 Fed. Reg. 21455 (May 12, 1983). These specifications qualify as "rules under 5 U.S.C. § 551(4), and, therefore, must be subject to public review. This court finds that these specifications must be published in the Federal Register for comment by the public. NWF further challenges this regulation on the ground that it fails to set minimum standards for compaction, but merely restates the statutory requirement of "proper compaction." 30 U.S.C. § 1265(b)(7)(c); 30 C.F.R. § 823.14(c). This problem, however, will be addressed by SCS in the soil reconstruction specifications. Soil density is a soil reconstruction specification that must be developed by the SCS within each state. 48 Fed. Reg. 21457 (May 12, 1983). This court finds that this approach is consistent with the statute, and is not arbitrary or capricious. The final regulations promulgated by the Secretary with regard to roads have drawn challenges from both Industry plaintiffs and NWF. This court now turns to the challenge14 raised by Industry. Industry challenges the requirement, as applied to underground mine operations, that: A road not to be retained for use under an aproved postmining land use shall be reclaimed immediately after it is no longer needed for mining and reclamation operations, including: (4) Reshaping allcut and fill slopes to be compatible with the postmining land use and to complement the drainage pattern of the surrounding terrain. 30 C.F.R. § 817.150(f)(4). Industry alleges that because underground mines can operate for forty years, the operators will be forced to disturb settled land in order to satisfy this requirement. The Secretary points out that this regrading is required by section 515(b)(3), which is applicable to underground mining through section 516(b)(10). 48 Fed. Reg. 22120. The term "reshaping" was employed to encompass the act of regrading. Id. Congress explicitly required regrading to restore the original contour of the land. 30 U.S.C. § 1265(b)(3). The legislative history supports the Secretary's application of this requirement to underground mining operations.15 [15 ELR 20487] Furthermore, the Secretary's regulation does not ignore the individual circumstances of different mine sites as Industry suggests. The regulation explicitly takes into account the postmining land use of the mined territory. Therefore, each road will be reshaped in a manner that is compatible with the postmining land use. In light of this expression of intent in the congressional reports, and the Act itself, this court finds that the Secretary's regulation is required by the Act and is, therefore, reasonable. NWF raises both procedural and substantive challenges to the regulations governing the treatment of roads. For the second time in the history of the roads regulations NWF alleges that the regulations that set forth the classification of roads were promulgated without notice and opportunity for comment. This court upheld NWF's first challenge, finding that the final regulations that applied different standards depending on the length of use of the roads were promulgated without adequate notice. May Opinion at 32-35. In that situation, plaintiffs were not given any notice that the Secretary was considering a classification system. Id. at 35. In the present case, the Secretary's proposed regulations retained the old classification system based on frequency of use. 47 Fed. Reg. 16593 (April 16, 1982). The Secretary, however, abandoned this criterion on which he based the classifications contained in the proposed regulation and adopted new criteria in the final regulation. Although this situation presents a closer question, this court finds that plaintiffs' challenge must, once again, be upheld. The Secretary has noted the importance of he reclamation of roads. He stated that: Studies have shown that roads constitute approximately 10 percent of the total area directly disturbed by surface mining operations, and in some areas the land area disturbed by roads actually exceeds the area disturbed by the mine. 47 Fed. Reg. 16592 (April 16, 1982). It is imperative, therefore, that the final regulations in this area be promulgated only after notice and comment as required by the Administrative Procedures Act. 5 U.S.C. §§ 553(b), (c). As noted above, the proposed regulation was based on frequency of use. The regulations now before the court are based on factors not related to frequency or duration of use.16 48 Fed. Reg. 22116 (May 16, 1983). Those regulations base the different categories of roads on the purpose for which the roads are used. 30 C.F.R. § 816.150(a). Nothing in the proposed regulations or the preamble to those regulations hints that the Secretary was considering adoption of classifications other than those proposed, let alone the specific ones adopted. This court is well aware that the notice "need not contain every precise proposal which (the agency) may ultimately adopt as a rule." Ethyl Corporation v. EPA, 541 F.2d 1, 48 [6 ELR 20267] (D.C. Cir. 1976). The notice, however, must set forth the substance of the proposed rule. Id. This requirement is particularly important when the proposed regulations relate to a critical area, such as the road classification system. This court finds that the Secretary did not provide adequate notice or opportunity to comment on 30 C.F.R. § 816.150(a), in violation of the APA. That regulation, therefore, must be remanded.17 Industry challenges the Secretary's final regulations governing the treatment of alluvial valley floors (AVF), in three areas. The court shall consider these in turn. A. Definition of Subirrigation Congress defined AVF's, in part, with regard to subirrigation. The definition refers to: the unconsolidated stream laid deposits holding streams where water availability is sufficient for subirrigation or flood irrigation agricultural activities but does not include . . . 30 U.S.C. § 1291(1). The Secretary has defined subirrigation as follows: With respect to alluvial valley floors, the supplying of water to plants from underneath or from a semisaturated or saturated subsurface zone where water is available for use by vegetation. 30 C.F.R. § 701.5. Industry argues that the Secretary's definition is overbroad because it includes all methods of supplying water from underneath. The definition of subirrigation, Industry argues, must be limited to situations where the water is supplied by underlying alluvial aquifiers. Industry points to the House Report to support its contention AVF's be defined in more narrow terms. The section of that report pertaining to AVF's begins by noting that AVF's form the "backbone" of the agricultural and cattle ranching economy in the arid and semiarid coal mining areas. H.R. Rep. No. 218, 95th Cong., 1st Sess. at 116, reprinted in 1977 U.S. Code Cong. & Ad. News 593, 649. The report states that Congress recognized that it is possible to mine on valley floors without significant damage. Id. at 118; 650. The House stressed the importance of preserving the essential hydrologic functions of these areas. Id. The report does not limit the definition of subirrigation. It does refer to "subirrigation of the flood plain by underflow," but it does not state that alluvial aquifiers must be the sole source of that underflow.18 Id. at 119; 651. Industry alleges that "underflow" cannot be interpreted as including water from precipitation, yet, the Secretary's definition of subirrigation could include this water source. Any confusion in this area, however, is eliminated by the definition of "essential hydrologic functions," which makes it clear that precipitation is not a major water source to AVF's. 30 C.F.R. § 701.5. The definitions in this area must be considered together, and cannot be isolated and effectively examined. See 48 Fed. Reg. 29807 (June 28, 1983). It is also important to note that there are other limitations in the definition of AVF's that prevents that term from being defined in terms broader than those envisioned by Congress. See 30 U.S.C. § 1291(1). This court finds that the regulations in this area implement Congress' intent to allow mining on AVF's while preserving the area's essential hydrologic functions. The statutory definition of AVF's provides sufficient limitations to avoid any potential over-extension of that term. Industry challenges the Secretary's definition that equates "farming" and "agricultural activities" as they relate to AVF's. 30 C.F.R. § 701.5. It believes that farming is a subset of agricultural activities and argues that a definition that equates these two terms is overbroad. The Secretary maintains that the meaning of both terms, with regard to AVF's, is the same. 48 Fed. Reg. 29803 (June 28, 1983). The court finds that the Secretary's regulations in this area are internally inconsistent. Ifthe meaning of farming and agricultural activities were the same then it would not have been necessary for the Secretary to amend the regulations so that they tracked the terms used in the statute. See 30 C.F.R. §§ 785.19(b)(2)(i), 785.19(d)(2)(ii), 822.12(a)(1), 822.13(a)(2). Furthermore, if the Secretary's premise is correct then these amendments would not "more closely meet the intent of the statute." 48 Fed. Reg. 29813 (June 28, 1983). Congress used term "agricultural activities" in its definition of AVF's, 30 U.S.C. § 1291(1), and "farming" in describing permit requirements. Id. at § 1260(5)(A). This court will not presume to define these terms, but the use of different words does connote [15 ELR 20488] an intent to prescribe a different meaning. See National Insulation Transportation Committee v. I.C.C., 683 F.2d 533, 537 (D.C. Cir. 1982). The Secretary's amendments of his regulations support this position. This court finds, therefore, that the Secretary must reconsider the definition of farming and agricultural activities, and any additional regulations necessary to conform them to congressional intent in this area. C. Exemption Protecting Hydrologic Functions. This area of regulation involves an extremely complicated interaction of provisions in the Act. This complexity is exemplified by the challenges presented by both Industry and NWF based on their different readings of the same set of regulations. This court will review the applicable sections of the Act before addressing the regulations that seek to implement the statute's requirements or he challenges to those regulations. The three sections involved in this problem are sections 510(b)(3), 510(b)(5)(B), and 515(b)(10)(F). Section 510(b)(3) requires that a permit application contain information involving the impact of mining on the hydrologic balance of the permit area. 30 U.S.C. § 1260(b)(3). In addition, the regulatory authority must find, on the basis of this information, that the information is designed to prevent material damage to hydrologic balance outside the permit area. Id. Section 515 sets forth environmental performance standards. Section 515(b)(10)(F) states the mine operators must preserve the essential hydrologic functions of AVF's in arid and semiarid areas of the country, and thus minimize disturbances of the hydrologic balance at the mine-site and associated offsite areas and to the quality and quantity of water in surface and ground water systmes. 30 U.S.C. § 1265(b)(10)(F). Finally, section 510(b)(5) states that information must be provided, and the regulating authority must find that: The proposed surface coal mining operation, if located west of the one hundredth meridian west longitude, would — (A) not interrupt, discontinue, or preclude farming on alluvial valley floors that are irrigated or naturally subirrigated, but, excluding undeveloped range lands which are not significant to farming on said alluvial valley floors and those lands as to which the regulatory authority finds that if the farming that will be interrupted, discontinued, or precluded is of uch small acreage as to be of negligible impact on the farm's agricultural production or, (B) not materially damage the quantity or quality of water in surface or underground water systems that supply these valley floors in (A) of subsection (b)(5) of this section. The basic issue facing the court is whether the exemptions in section 510(b)(5) for undeveloped rangeland and farming on small acreage, apply to the requirements pertaining to hydrologic balance contained in sections 510(b)(3) and 515(b)(10)(F). After careful consideration of the words and purpose of the statute, as well as the relevant legislative history, this court finds they do not. An examination of the purposes of these sections sheds light on the problem. Section 510(b)(5) is designed to protect farming on AVF's in the western part of the country, and to protect the water flowing to these AVF's. Congress balanced the desirability of protecting this farming and waterflow with the desirability of mining coal, and created limited exemptions to these protections. These exemptions are for undeveloped range lands not significant to farming and actual farming on small acreage. The purpose of this section, however, remained to provide additional protection for farms on western AVF's. Its focus is limited to a specific geographical area and a specific use of the land: farming. The water requirements of this section, similarly, are designed to protect farming. In contrast, section 510(b)(3) seeks to protect the hydrologic balance of lands affected by mining, in general. The evidence that supports a finding that this section applies to all operations, including those exempted by section 510(b)(5)(A), is in three areas. Initially, maintaining hydrologic balance has benefits beyond enhancing farming. See, e.g., H.R. Rep. No. 218, 95th Cong., 1st Sess. at 112, reprinted in 1977 U.S. Code Cong. & Admin. News 593, 645. Thus, a finding that damaging the water quality or quantity to an AVF will not significantly inhibit farming does not mean that Congress intended to allow damage to the hydrologic balance and forfeit the other benefits that balance entails. Secondly, the definition of hydrologic balance is more broad than protecting water quality and quantity. 30 C.F.R. § 701.5. Finally, the House Report states that the regulatory authority's finding that the operation is designed to prevent off-site impacts to the hydrologic balance of the area affected, as well as the operator's assessment of the probable cumulative impact of all anticipated mining in the area on the hydrologic balance, are totally independent and separate from the finding under section 510(b)(5). H.R. Rep. No. 218, 95th Cong., 1st Sess. at 92, reprinted in 1977 U.S. Code Cong. & Admin. News 593, 628-29. The former determinations must be made even if the regulatory authority finds that one of the exceptions in section 510(b)(5) applies. These exceptions, therefore apply only within that subsection and do not provide an exception to section 510(b)(3). This finding is buttressed by the requirements in section 515(b)(10)(F). That section provides that the operator must preserve the essential hydrologic functions of AVF's in the arid and semiarid areas of the country. 30 U.S.C. § 1265(b)(10)(F). Once again, the words of the statute indicate that protecting the hydrologic balance is a broader goal than merely preventing material damage to the "quantity or quality of water." The section states that the operator must "minimize the disturbances to the prevailing hydrologic balance at the mine-site and in associated offsite areas and to the qualityand quantity in surface and ground water systems . . ." 30 U.S.C. § 1265(b)(10). This hydrology requirement applies regardless of whether farming occurs.19 This court now turns to the specific challenges raised by the parties. Industry argues hat the hydrologic requirements should not apply to undeveloped rangeland and farms involving small acreage. As discussed above, sections 510(b)(3) and 515(b)(10)(F) apply to the land excepted under section 510(b)(5). Therefore, all applicants must provide information to demonstrate that the essential hydrologic functions of AVF's will be preserved. 30 C.F.R. § 822.11, 822.13. The requirements of section 515(b)(5), and the exceptions therein, are implemented in 30 C.F.R. §§ 785.19 and 822.12. These regulations are in accordance with the statutory scheme discussed above, and are not arbitrary or capricious. Industry's challenge, therefore, is rejected. NWF argues that the Secretary failed to prohibit material damage to water systems that supply AVF's outside the permit area. This assertion is simply not true. The Secretary stated emphatically that: In all cases the essential hydrologic functions of alluvial valley floors must be preserved (or restored) under Section 515(b)(10)(F) of the Act, and the requirements of Section 510(b)(3) of the Act, relating to prevention of material damage to the hydrologic balance outside the permit area, must also be met. 48 Fed. Reg. 29806 (June 28, 1983) (emphasis added). The requirements of section 515(b)(10)(F) are implemented by 30 C.F.R. §§ 786.19(c) and 822.11. The requirements of section 510(b)(3) are implemented by 30 C.F.R. §§ 773.15(c)(5), 816.41, and 817.41. These requirements are reasonable, and will be upheld. NWF argues that the regulations allow the regulatory authority to make a decision as to the applicability of a statutory exemption under section 515(b)(5), before the public has had an opportunity to participate in the permit approval process. See 30 C.F.R. §§ 785.19(b), (c). The Secretary has not shut the public out of the permit approval process. This regulation allows the Secretary to summarily deny a permit application because of the non-applicability of a statutory exemption. 30 C.F.R. § 785.19(c). This process saves the time and resources of the regulatory authority, as well as the operator. The public will have an opportunity to challenge the granting of the statutory exception and any other provision of the permit before that permit is approved. 30 U.S.C. § 1260(a).This regulation is reasonable and consistent with the statute. E. Definition of "Materially Damage the Quantity and Quality of Water." NWF challenges the Secretary's definition of the phrase "materially damage the quantity and quality of water" on the ground that the definition focuses solely on the impact to agricultural activities. 30 C.F.R. § 701.5. NWF argues that the protections afforded by sections 510(b)(3) and 515(b)(10)(F) go beyond agricultural activities. As noted above, the hydrologic requirements imposed by these sections are broader than protection of the quantity and quality of water. The protection provided by section 515(b)(5)(B), however, is limited to ensuring that the operator does not "materially damage the quantity or quality of water." 30 U.S.C. § 1260(b)(5)(B). That section is focused on agricultural activity. The only regulations using the challenged phrase are those implementing section 515(b)(5). 30 C.F.R. §§ 785.19(d)(2)(iii), 822.12. The regulations implementing sections 510(b)(3) and 515(b)(10)(F), referenced supra, are phrased in more expansive terms. These regulations are consistent with the statute, as analyzed above, and must be upheld. F. Minimum Standards for Essential Hydrologic Functions The regulations promulgated by Secretary Andrus contained an extensive description of "characteristics which support the essential hydrologic functions" of alluvial valley floors that had to be evaluated in a permit application. 30 C.F.R. §§ 785.19(d)(3), 822.11(c) (1980). NWF argues that these categories of information were deleted from the present regulations without adequate explanation. This court agrees, and remands this issue to the Secretary for further consideration. The Secretary explained the deletion of § 785.19(d)(3) in the following paragraph: Final § 785.19(d) will not enumerate the technical data, information, and analysis required by a complete permit application contained in previous § 785.19(d)(2) and (3), but will continue to require generally that sufficient information be submitted to enable the regulatory authority to make the necessary determinations. Because the determinations will have to be supported, the final rules should not change the level of protection afforded AVF's. The principal difference is that the regulatory authority will have the flexibility to adjust the type of data and level of analysis necessary on which to base its determinations. 48 Fed. Reg. 29814 (June 28, 1983). The Secretary is candid in stating that the level of protection "should not" change. As this language demonstrates, the Secretary does not know whether the level of protection will change because he no longer knows what information the regulatory authorities will require or consider. The only justification that the Secretary offers for this change is increased flexibility to the regulatory authority. This court does not believe that this is a sufficient explanation to justify the abandonment of the detailed requirements in the previous regulations. As the Secretary stated supra at IV.C., Congress was extremely concerned about protecting the AVF's. That concern was manifested in sections 510(b)(3) and 515(b)(10)(F). It is not reasonable for the Secretary to react to this concern by eliminating all guidelines for the operators and regulatory authorities that previously appeared in 30 C.F.R. § 785.19(d)(3).20 Furthermore, the old regulations did not lock the regulatory authority into a rigid mathematical formula that undermined all discretion. They merely provided a framework in which the regulatory authority was to exercise its discretion. Finally, the Secretary's regulation does not meet its stated goal. The flexibility is not given to the regulatory authority but to the operator. It is the operator that must decide what characteristics are necessary to preserve the essential hydrologic functions of the AVF. 30 C.F.R. § 785.19(d)(2)(i). If anyone is given increased flexibility by the new regulations it is the operator and not the regulatory authority. In actuality, both parties are forced to operate in the dark, and that is not a reasonable situation in an area that Congress has expressed such deep concern. This regulation must be remanded for the Secretary to provide guidance to the operators and the regulatory authority as to what type of information would satisfy 30 C.F.R. § 785.19(d)(2)(i). The Secretary has struggled with the regulations in the small acreage exception area of the Act, 30 U.S.C. § 1260(b)(5)(A), since the Act's inception. See February Opinion at 51. Congress did not provide any guidance as to how small acreage would be defined so that any interruption on such acreage would have a negligible impact on the farm's agricultural production. NWF objects to the Secretary's regulation because it measures the impact over the life of the mine. This court finds, however, that this regulation is in accordance with 30 U.S.C. § 1260(b)(5)(A). NWF can point to no section of the statute that would preclude the Secretary's definition. The Secretary had to fix some period of time, and the life of the mine, although perhaps not the period this court would choose, is not arbitrary and capricious. The only challenge remaining to the regulations in this area is raised by NWF.21 It argues that the standard contained in the regulations for stream buffer zones, i.e., land within 100 feet of a perennial or intermittent stream, violates sections 515(b)(10) and 515(b)(24) of SMCRA. 30 C.F.R. §§ 816.57; 817.57. More specifically, NWF objects to the substitution of the term "intermittent streams" for streams with a biological community, as provided in the previous regulations. The Secretary has provided a rational basis for the amendment of the regulation. He indicated that the previous standard was confusing and difficult to apply. 48 Fed. Reg. 30313. Certain areas, the Secretary argues, with little biological or hydrologic significance contain a biological community at some time of the year. Id. This led to confusion on the part of operators seeking to apply the former standard. Id. This court finds that it is precisely this type of justification, based on practical experience and expertise, that satisfies the requirement for amending a former regulation. See, e.g., Motor Vehicle Manufacturer's Association v. State Farm Mutual Automobile InsuranceCompany, U.S. , 103 S. Ct. 2856, 2866-67, L. Ed. 2d [13 ELR 20672] (1983). Furthermore, the proposed regulation is not in conflict with either section 515(b)(10) or 515(b)(24). Finally, NWF's fears concerning damage to the wildlife in this area are unfounded. Although 30 C.F.R. § 816.57 no longer refers to biological communities, other regulations support hydrologic balance and the wildlife. See, e.g., 30 C.F.R. §§ 816.41-46, 816.97(a). The challenged regulations, therefore, must be upheld. Both Industry and NWF challenge the Secretary's regulations in this area. This court will examine these challenges in turn. A.Nondegradability Requirement The Secretary has altered his durable rock fill regulation by requiring the use of the nondegradable rock. The new regulation requires that: Excess spoil consists of at least 80 percent, by volume, durable, nonacid- and nontoxic-forming rock (e.g. sandstone or limestone) that does not slake in water and will not degrade to soil material. 30 C.F.R. § 816.73(b) (emphasis added). Industry argues that this nondegradability standard has no support in the record and lacks a standard for determining compliance. As in the previous section, the Secretary promulgated this regulation in response to confusion that arose from an application of the previous regulation. 48 Fed. Reg. 32921 (July 19, 1983). The Secretary set forth a clear explanation of soil degradability by stating that: Soil materials are, in relation to durable rock fills, any materials that have degraded or will degrade to such a size as to block or cause failure of the underdrain system.22 Id. Such soil material endangers the stability of the fill. Id. This regulation complements 30 C.F.R. §§ 816.73(c), (e), in protecting the stability of these rock fills. There is no dispute that this result is consonant with the dictates of the Act. This court finds that the Secretary has adequately described a reasonable rationale for the challenged regulation and has adequately described the standards employed by that regulation. NWF argues that the definition of excess soil creates an impermissible exception to the return to approximate original contour requirement for remining. It maintains that the definition creates a loophole allowing the use of less than all available spoil to backfill. This assertion is simply not true. The Secretary's backfilling requirements for previously mined areas state, in unequivocal terms, that: "All spoil generated by the remining operation and any other reasonably available spoil shall be used to backfill the area. 30 C.F.R. § 817.106(a)(1). Thus, no loophole is created to these emphatic terms. Soil used to achieve approximate original contour is not excess soil. This regulation is consistent with the Act and must be upheld. NWF challenges the Secretary's bonding regulations in four areas.23 The court will examine each of these in turn. A. Bond for Effects of Subsidence. NWF challenges the regulations on the ground that they fail to require bond for reclamation of the surface effects of underground mines. Section 509(a) of the Act states that the amount of the bond required depends upon the reclamation requirements for the area. NWF argues that the bond must be set at an amount sufficient to cover the cost of restoring subsided land.24 The Secretary notes that this is an extremely confusing area of the Act and the regulations. He also maintains that the present regulations do not represent a radical change from the previous regulations. Under the present regulations the bond required by the regulations stands liable for material damage caused to the land by subsidence. 30 C.F.R. § 800.17(a). The initial bond does not cover material damage to land by subsidence because no damage is anticipated before the mining begins. Indeed, if material damage to the land from subsidence is anticipated then the mining operation will not be allowed to go forward. See 30 U.S.C. § 1266(b)(1). At the beginning of the underground mining operations, therefore, it would be pure speculation to require bond for damage to land from subsidence. The bond must be adjusted, however, as necessary, to cover restoration of the land once material damage occurs due to subsidence.25 30 U.S.C. § 1266(d); 30 C.F.R. § 800.15. The court finds that this regulatory scheme is reasonable and implements the requirements of the Act in this area. These regulations must be upheld. The Secretary has promulgated regulations that would allow the operator to post a bond for an area smaller than the entire area to be mined in a given permit term. 30 C.F.R. § 800.11(b). NWF argues that this regulation violates section 509(a), which states, in pertinent part, that: The bond shall cover that area of land within the permit area upon which the operator will initiate and conduct surface coal mining and reclamation operations within the initial term of the permit. 30 U.S.C. § 1259(a). The despute centers around the meaning of the phrase "within the term of the permit." NWF argues that Congress intended "within" to mean "during." The Senate Report provides persuasive authority for NWF's position. After noting that the performance bond is "one of the most important aspects of any program to regulate surface mining and reclamation" the Report states that the "bond must cover the entire area to be mined during the initial term of the permit." S. Rep. No. 128, 95th Cong., 1st Sess., at 78 (1977) (emphasis added). The Secretary alleges that this reading of the word "within" is contradicted by the use of the plural, "bonds", in section 509(a). This argument fails to recognize the difference between the use of "permit area" and "permit term" in this section. A permit term is five years. The permit area is the entire area that is anticipated to be mined over the life of the mine, during successive permit terms. Additional bonds are required for each additional permit term. As explained by the Senate Report, "[a]s additional land is mined the bond is increased proportionately for succeeding permit renewals." S. Rep. No. 128, 95th Cong., 1st Sess., at 78. Finally, the Secretary argues that his regulation is authorized by section 509(c). That section allows the Secretary to establish a program that will achieve the objectives of the bonding program. 30 U.S.C. § 1259(c). This alternative, however, is to be employed "in lieu of the establishment of a bonding program." Id. Although this section gives the Secretary flexibility with regard to alternatives to bonding, it does not give the Secretary the dictates of sections 509(a) and (b). This court finds, therefore, that the Secretary's regulation contradicts the statute and the legislative history to the extent that it allows the bond to be posted for an area less than the entire area to be mined within the initial permit term. 30 C.F.R. § 800.11(b), therefore, must be remanded. The Secretary's regulation allows miners to post bond to "guarantee specific phases of reclamation within the permit area." 30 C.F.R. § 800.13(a)(2). NWF argues that this bonding scheme allowing phased liability is inconsistent with section 509(b). That section addresses the question of the liability period and states that: Liability under the bond shall be for the duration of the surface coal mining and reclamation operation and for a period coincident with operator's responsibility for revegetation requirements in section 1265 of this title. The Secretary argues that this regulation is authorized by sections 509(a) and (c). An examination of those sections, however, does not support the Secretary's position. Section 509(a) does speak of several bonds, but that reference is to "succeeding increments of surface coal mining and reclamation operations" that are initiated in new permit terms. This section does not give the Secretary authority to break the bond into specific phases of reclamation. It simply allows the bond to increase as the acreage of land affected by the mining operations increase over successive permit terms. As noted above, the bond must cover the mining operations anticipated over the course of a permit term. There is nothing in section 509(a) that indicates Congress wanted to permit a phased bonding system.26 As noted above, section 509(c) does not give the Secretary authority to contradict the other requirements of the bonding program. This court finds, therefore, that the regulations allowing phased bonds are contrary to the Act and must be remanded. NWF argues that the regulations governing the bond release hearings are invalid because they fail to provide for an adjudicatory hearing. NWF's argument is based on the identity of language in the standards for permit hearings in section 514(e), and the standards for bond release hearings. The permit hearing is adjudicatory, and therefore, NWF argues, the bond release hearings should also be adjudicatory. The flaw in this argument is that section 514(c) explicitly requires that the permit hearings be adjudicatory in nature. 30 U.S.C. § 1264(c). There is no parallel section with regard to bond release [15 ELR 20491] hearings. Congress' need to include this language in section 514(c) to make that hearing adjudicatory in nature, and the omission of this language in section 519 indicates an intent to have the bond release hearing be non-adjudicatory in nature. This court finds that the regulation at 30 C.F.R. § 800.40(g) properly implements Congress' expressed intent and is not arbitrary or capricious. NWF raises two challenges to the Secretary's regulations in this area. Initially, it argues that the Secretary's failure to promulgate standards requiring cut and fill terraces to closely resemble the premining surface configuration is arbitrary and capricious. Secondly, it challenges the Secretary's failure to establish minimum standards for backfilling and grading operations. The court will consider these challenges in turn. NWF alleges that the Secretary's regulation in this area, 30 C.F.R. § 816.102(g), creates an exception, in violation of section 515(b)(3), to the requirement that the mined land be returned to approximate original contour, ("AOC"). NWF acknowledges that proper terracing is allowed by the Act. 30 U.S.C. § 1291(2). The lack of standards for these terraces, it argues, improperly allows an exception to AOC. The present regulations, in contrast to the previous rules,27 describe the situations where "cut-and-fill terraces" may be allowed, but it does not provide any guidelines for that terracing. The Secretary first explained his amendment of former 30 C.F.R. § 816.102(b) by stating that a terrace width of twenty feet was the minimum width that would achieve the goals of stability, erosion control and adequate permanent access to the reclamation area. 46 Fed. Reg. 39984 (August 5, 1981). The Secretary believed that the environmental benefits could be achieved by eliminating the twenty foot standard, and giving the regulatory authority increased flexibility. The Secretary repeatedly stated that the regulations contain the general standards for terraces, i.e., safe and stable, yet he declined to propose even general guidelines. 47 Fed. Reg. 18552 (April 29, 1982). The final regulations represent an abdication of authority by the Secretary to the regulatory authority. The Secretary is correct in asserting that terracing is not prohibited by the AOC requirement. That terracing, however, must be performed so that the postmining surface: closely resembles the general surface configuration of the land prior to mining and blends into and complements the drainage pattern of the surrounding terrain . . . 30 U.S.C. § 1291(2). The present regulations do nothing to achieve this statutorily required standard beyond instructing the regulatory authority to enforce the goal. The regulations require AOC, but do little more than state the requirement. 30 U.S.C. § 816.102. The Secretary should not be bound by the previous twenty foot minimum width. Similarly, the Secretary need not lock the regulatory authority into a standard that forbids him to consider site-specific factors. See 48 Fed. Reg 23363 (May 24, 1983). Nonetheless, the Secretary must provide some parameters within which the regulatory authorities can operate. It is only through these guidelines that the Secretary can ensure that the statutory requirements of section 515(b)(3) will be fulfilled. The court holds, therefore, that 30 C.F.R. § 816.102(g) must be remanded. B. Minimum Standards for Backfilling and Grading NWF's challenges in this area are essentially the same as those discussed immediately above. NWF complains of a lack of standards for contemporaneous reclamation, and thin and thick overburden. 1. Contemporaneous Reclamation The Statutory requirement in this area stated in section 515(b)(16) which requires that "all reclamation efforts proceed . . . as contemporaneously as practicable with the surface coal mining operations." 30 U.S.C. § 1265(b)(16). The Secretary argues that this requirement is met through the detailed time table required in the permit application. 30 C.F.R. § 780.13(b)(1).28 Furthermore, the states are free to establish time periods for backfilling and grading so that they would not be forced to make a permit-by-permit determination. 48 Fed. Reg. 23357 (May 24, 1983). These arguments are virtually identical to the ones made in the previous section. It is clear that Congress intended the states to have a major role in enforcing the dictates of the statute. It is the Secretary's duty, however, to spell out those requirements. See In Re: Permanent Surface Mining Regulations, 653 F.2d 514, 527 (D.C. Cir. 1981). Merely restating the statutory requirement that reclamation be performed as contemporaneously as practicable, does not help the states in enforcing the Act's requirements. The reclamation schedules will include detailed timetables, but the Secretary has not provided any guidance, in the regulations, as to how to judgethese schedules against the statutory standard. States' interpretation of "as contemporaneously as practicable" could differ significantly and, therefore, thwart Congress' goal of instituting a nationwide program protecting society and the environment from the adverse effects of surface mining operations. 30 U.S.C. § 1202(a). This is an unsatisfactory state of affairs with regard to a standard that Congress explicitly listed as a purpose of the Act, thereby emphasizing its importance. 30 U.S.C. § 1202(e). As stated above, these guidelines need not lock the regulatory authority into strict limitations. Indeed, the Act direct that the practicalities of each situation be considered. 30 U.S.C. § 1265(b)(16). The guidelines, however, are necessary to allow the regulatory authority to exercise its discretion intelligently with regard to the statutory requirements. The guidelines do not result in identical enforcement of the Act by different states because the regulatory authority must consider extenuating circumstances that makes meeting a given timetable impracticable. They do result, however, in bringing the states within a relatively uniform system by providing them with a benchmark. This court finds that such guidelines, under this section of the Act are necessary to implement the intent of Congress. This court holds, therefore, that 30 C.F.R. § 816.100 must be remanded. Once again, the problem posed by the regulations in this area is substantially similar to that addressed in the two sections immediately above. The statute creates a limited exception from the requirement of return to approximate original contour for areas of thin and thick overburden. The previous regulations provided a formula for defining thin and thick overburden.29 The present regulations eliminate that formula and substitute the statutory standard. The Secretary's justification for this action is extraordinarily brief. 48 Fed. Reg. 26764 (June 21, 1982). He stated that: The mathematical limit set in existing § 816.104(a) has proved to be impractical because of its impreciseness. Consequently, the guideline in the Act would be substituted in proposed § 816.104(a). Id. The same justification is offered by the Secretary with regard to thick overburden, 30 C.F.R. § 816.105. The Secretary's stated rationale does not justify the regulation. Although the Secretary offers no explanation as to why a precise definition is impracticable, this court will accept his assertion. This does not justify, however, the mere restatement of the statutory standard. As stated above, the Secretary has a duty to provide guidance to the regulatory authorities in enforcing the statute. The Secretary has not attempted to do this in the overburden area, an exception to the AOC requirement the importance of which was noted above, and his actions are arbitrary and capricious. This court finds, therefore, that 30 C.F.R. §§ 816.104(a), 816.105(a), must be remanded. IX. Topsoil A. Placing of Topsoil on Postmining Embankments of Impoundments and Roads The regulation in question states, as follows: The regulatory authority may choose not to require the redistribution of topsoil or topsoil substitutes on the approved postmining embankments of permanent impoundments or of roads if it determies that — (i) Placement of topsoil or topsoil substitutes on such embankments is inconsistent with the requirement to use the best technology currently available to prevent sedimentation, and (ii) Such embankements will be otherwise stabilized. 30 C.F.R. § 816.22(d)(3). NWF objects to this regulation as creating a broad exception to the topsoil replacement requirements of the Act. 30 U.S.C. §§ 1265(b)(5), (b)(6), (b)(19). The Secretary argues that this regulation only applies when replacement of topsoil is physically impossible, or creates a result contrary to the Act's mandate. Specifically, the exception applies in only two situations: 1. an interior wall of impoundments where placement of topsoil would be physically impossible or result in excessive erosion; and 2. a steep embankment of a road. The Secretary has based his regulation on practical experience as well as the dictates of the statute. Initially, the Secretary found that placing topsoil in these areas would cause "the loss of topsoil that could be better used elsewhere in the permit area." 48 Fed. Reg. 22097. This result would clearly be contrary to the intent of Congress. Furthermore, the Secretary found that strict adherence to the topsoil replacement requirement in these cases would violate the statutory requirement to use the best technology currently available to prevent sedimentation. 30 U.S.C. § 1265(b)(10). NWF agrees that placing valuable topsoil on steep embankments could result in a loss of topsoil. It argues that this exception would not be necessary if the roads and impoundments were designed properly. This argument, however, is nonresponsive. The Secretary has promulgated regulations addressing the requirements for roads and impoundments. See, e.g., 30 C.F.R. §§ 816.49, 816.150. The regulations presently before the court do not allow angle of repose slopes. 48 Fed. Reg. 22098. Assuming arguendo, NWF's argument with regard to the regulations governing roads and impoundments is correct, there is no reason to require the operator to place topsoil on these embankments where the result would be a loss of topsoil. That is the position of the Secretary and that position is reasonable. This court finds, therefore, that the Secretary's regulations properly implement the requirements of the Act, and must be upheld. NWF challenges the Secretary's regulation that, under certain circumstances, would allow the temporary distribution of soil materials on an approved "host" site. 30 C.F.R. §§ 816.22(c)(3), 817.22(c)(3). This regulation applies where topsoil is removed and cannot be replaced for a substantial period of time due to the long-term surface disturbances of underground mining operations and certain long-term surface mining facilities. NWF argues that the Secretary is implementing nationwide a technique that has never been tried before. It also argues that the Secretary has not provided adequate standards to govern the use of this procedure. The Secretary points to an array of studies that support his regulations. Although they may not address the precise procedure that the Secretary employs, he believes that the results of the studies support his position. This court will not substitute its judgment for that of the Secretary in this technical area. The Secretary has come forth with evidence supporting his action. Furthermore, the Secretary has set forth general standards for the use of "host" soils. This is not a situation such as that discussed in VII, supra, where the Secretary must put forth a reasoned analysis of why he deleted a detailed guideline. The Secretary's regulations are reasonable and supported by the evidence in the record. A. Information on Fish and Wildlife Resources NWF challenges the Secretary's regulations on the ground that they fail to require operators to supply information on fish and wildlife resources in permit applications. This court previously addressed regulations that required this information. February Opinion at 38-39. This court remanded those regulations finding that such a requirement must find its authority in a statutory reference in the permit section of the statute. Id. The United States Court of Appeals for the District of Columbia Circuit, sitting en banc, held that such a specific statutory reference is not necessary. In re: Permanent Surface Mining Regulation Litigation, 653 F.2d 514, 527 [11 ELR 20941] (1981). Thus, this court's previous decision remanding those regulations must be vacated. The effect of the decision by the court of appeals was to reinstate the remanded regulations. See Action on Smoking and Health v C.A.B., 713 F.2d 795, 797 (D.C. Cir. 1983). The Secretary cannot amend or revoke those regulations until he conducts a new rulemaking and articulates a rational explanation for his actions. Id. at 798. The Secretary explained his actions with regard to requiring the permit to contain information on fish and wildlife: The District Court remanded 30 C.F.R. § 779.20 and 780.16, which provided permit requirements for fish and wildlife information. See In re: Permanent Surface Mining Regulation Litigation, No. 79-1144, slip op. at 39 (D.D.C. February 26, 1980). OSM subsequently suspended the remanded rules (45 FR 51547, August 4, 1980). Informational requirements on fish and wildlife for permit applications are therefore beyond the scope of this rulemaking. 48 Fed. Reg. 30316 (June 30, 1983) (emphasis added). This is not sufficient to justify revocation of a regulation. The timing of the decisions presented a difficult situation for the Secretary. Nonetheless, he is obligated to provide a reasoned analysis of the change implemented by revocation of the prior regulations. The Secretary obviously did not consider the substantive issues in this area as they were "beyond the scope of this rulemaking." Id. This court, therefore, shall order that 30 C.F.R. §§ 779.20, 780.16 be reinstated until the Secretary holds a new rulemaking considering the requirements that the permit contain information regarding fish and wildlife. The provious regulation in this area required miners, to the extent possible, by employing the best technology currently available, to fence, cover, or use other appropriate methods to exclude wildlife from ponds containing hazardous concentrations of toxic-forming materials. 30 C.F.R. § 816.97(d)(3) (1980). NWF objects to the deletion of this fencing requirement in the present regulations. The Secretary justifies the deletion of this requirement by stating that: To date, there is little evidence of specific damage to wildlife as a result of unprotected toxic ponds on the site of any mining operation. 48 Fed. Reg. 30322 (June 30, 1983). NWF points out, however, that this observation cannot justify deletion of the fencing requirement, but rather, supports retention of that requirement. A regulation requiring protection of toxic ponds has existed since 1979, and that, NWF argues has prevented wildlife from being hurt by these ponds. The Secretary does not address the evidence put forth by NWF indicating that wildlife, and people who consume this wildlife could be injured by the deletion of the fencing requirement. Administrative Record at 6240, 6351. At oral argument, the Secretary alleged that there is no essential difference between the old and new regulations. The present regulation retains the requirement that operators minimize disturbances to fish and wildlife, by utilizing the best technology currently available. 30 C.F.R. § 816.97(a). This regulation does nothing but restate the statutory standard contained in section 515(b)(24). 30 U.S.C. § 1265(b)(24). It does not provide the regulatory authority with any guidance as to how or in what situations this requirement should be implemented. This court finds that the Secretary has not justified the deletion of 30 C.F.R. § 816.97(d)(3) (1980). The regulation at 30 C.F.R. § 816.79(a) must be remanded to incorporate that requirement. C. Endangered and Threatened Species NWF challenges the Secretary's regulations with regard to the protection of endangered and threatened species in three areas. This court will examine these challenges in turn. 1. State-Listed Endangered or Threatened Species NWF objects to the Secretary's regulation on the ground that they eliminate all protections provided to state-listed endangered or threatened species by the previous regulations. 30 C.F.R. § 816.97(b) (1980). The Secretary seeks to justify his action by stating that "endangered or threatened species listed by the state are not necessarily entitled to protection under Federal law." 48 Fed. Reg. 30318.This statement is absolutely true, and, in the absence of section 515(b)(24), it could be applied to the situation at hand. That section, however, requires that disturbances to fish, wildlife, and related environmental values, be minimized. Clearly, there is no greater disturbance to wildlife than the extinction of an endangered species. See, e.g., Administration Record at 6330 (Comment from Oregon Department of Fish and Wildlife). This court finds, therefore, that the Secretary's deletion of any express reference to stated-listed species from final § 816.97(b) is contrary to section 515(b)(24), and is not reasonable. This regulation, therefore, must be remanded. 2. Reporting of Presence of Critical Habitat of Endangered and Threatened Species Former regulation 30 C.F.R. § 816.97(b) (1980), required operators to report the presence in the permit area of any critical habitat of a threatened or endangered species listed by the Secretary. The Secretary argues that critical habitats are protected through the permit application process. 48 Fed. Reg. 30318 (June 30, 1983). The regulations forbid any surface mining operation that will result in the destruction or adverse modification of critical habitats of endangered species. 30 C.F.R. § 816.97(b). The enforcement of this requirement is provided during the permit application procedures. The regulations state that no permit will be granted unless the regulatory authority finds, in writing, that: The operation would not affect the continued existence of endangered or threatened species or result in destruction or adverse modification of their critical habitats, as determined under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) 30 C.F.R. § 773.15(c)(10). NWF acknowledges that these requirements exist, but states that it is easy to miss critical habitats during the permit process. It argues that there is no protection for critical habitats discovered after the permit application takes place. The Secretary notes, however, that critical habitats are not simply "discovered." 48 Fed. Reg. 30318 (June 30, 1983). They are designated, by the Secretary, after an administrative procedure. 16 U.S.C. § 1553(a), (f). After this proceeding is concluded, the present regulation acts to prevent any harm to these habitats. 30 C.F.R. § 816.97(b). This court finds, therefore, that NWF's challenge of the reporting requirements must be rejected. NWF's challenge of the regulation in this area is that it only prevents operations that will jeopardize endangered species and critical habitat. 30 C.F.R. § 816.97(b). The proposed regulation provided protection against operations "likely to" present such danger. NWF argues that the amendment of this language in the final regulation violates section 7(a)(2) of the Endangered Species Act, ("ESA"). 16 U.S.C. § 1536(a)(2). The Secretary was well aware of the requirements of ESA when he promulgated final § 816.97(b). The Secretary stated that: Final § 816.97(b), as proposed and adopted, is intended to satisfy OSM's responsibilities under the ESA and to provide protection for endangered or threatened species listed by the Secretary of the Interior and for critical habitats of such species after appropriate consultation with the affected States. 48 Fed. Reg. 30317. The requirements of SMCRA and ESA are intertwined, to some extent, and their regulatory schemes should be consistent. Section 7(a)(2) of ESA states that the federal agencies and the Secretary shall: insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary . . . to be critical . . . 16 U.S.C. § 1536(a)(2) (emphasis added). This language seems to be the inspiration for the language in the proposed regulation. This language was amended without reference to ESA, and apparently, without consideration of that Act. The Secretary's regulation would allow mining operations to take place that would be likely, but not certain to, jeopardize endangered species and their critical habitat. 48 Fed. Reg. 30317. This regulation violates section 7(a)(2) of ESA and must be remanded as contrary to law.30 D. Protection of Raptors From Electrocution NWF objects to the deletion of former § 816.97(c) on three grounds. The court will examine each of these grounds in turn. 1. Specific Design Criteria for Protecting Large Birds The former regulation required operators to design and construct electric powerlines and other transmission facilities in accordance with guidelines set forth by the Departments of Interior and Agriculture or in other manuals approved by the regulatory authority. 30 C.F.R. § 816.97(c) (1980). The present regulation deletes any reference to the use of guidelines. 30 C.F.R. § 816.97(e)(1). The Secretary explained the deletion of these guidelines. Initially, he found that the U.S. Rural Electrification Administration Bulletin 61-10 (1972), referenced in the former regulation, addressed an unnecessarily expensive technique. 48 Fed. Reg. 30320. The Secretary made a more general finding with regard to guidelines. He stated that: Because specific sources of guidance for wildlife protection may become obsolete or outdated as a result of technical innovations, OSM has eliminated any citations to specific manuals or publications from the final rule. This court finds that the Secretary's position in this area is reasonable. This is not a situation where the Secretary is merely repeating the statutory standard. Indeed, this regulation addresses a very specific application of the general directive in section 515(b)(24). Furthermore, this is not a case in which the Secretary rejected one specific standard and did not replace it with anything to guide the regulatory authority. The Secretary has made a finding that the technology in this area moves so quickly that any attempt to apply guidelines would be futile. This court will not substitute its judgment for that of the Secretary. NWF's challenge must be rejected. NWF objects to this regulation because it only protects raptorial birds. The Secretary argues that any other birds are protected by the general wildlife regulations. See, e.g., 30 C.F.R. § 816.97(a). NWF can point to no requirement in the statute that directs the Secretary to design regulations for non-raptorial birds. It is not clear to this court that this problem extends to non-raptorial birds, nor is it clear that the previous regulation is not also aimed at raptors.31 Lacking more specific information and a statutory directive, this court must reject NWF's challenge. This court will not supplant the function of the Secretary byre-examining and reweighing the evidence in this area. If there is a serious problem, the regulatory authority is given sufficient authority to redress it in 30 C.F.R. § 816.97(a). Finally, NWF objects to the regulation dealing with electric powerlines on the ground that the exception to its requirement is too broad. The regulation sets forth requirements that apply "except where the regulatory authority determines that such requirements are unnecessary." 30 C.F.R. § 816.98(e)(1). NWF argues that this exception is too broad because birds are present throughout the nation. This, however, is not a ground to overturn the regulation. Indeed, if NWF's argument is correct, this exception will never be utilized. It is only when the protection is unnecessary that the exception can be invoked. This court finds that this regulation is reasonable, and must be upheld. E. Wildlife Migration NWF challenges the Secretary's regulation governing the protection of wildlife migration routes. The former regulation banned any new barriers in "known and important wildlife migration routes." 30 C.F.R. § 816.97(d)(2) (1980). The present regulation deletes such a ban, and requires the operator to: Design fences, overland conveyors, and other potential barriers to permit passage for large mammals, except where the regulatory authority determines that such requirements are unnecessary. The Secretary amended the previous regulation based on a finding that obstruction of wildlife migration is a regional problem indigenous to the West. 48 Fed. Reg. 30322. Therefore, a regulation that banned new fences or applied without exception would not be reasonable. The regulatory authority will be able to grant an exception to this requirement only upon a specific finding "that compliance is unnecessary for wildlife protection." Id. This court will not look behind the Secretary's finding that this is a regional problem. In light of that finding the Secretary's regulation is reasonable. NWF may believe that the previous regulation is more desirable than the present regulation. This, of course, is not a reason for this court to remand the regulation. In addition, if the Secretary's premise is accepted, and the regulation is properly enforced, then the same goal will be reached by both regulations. This regulation, therefore, must be upheld. NWF's final challenge relates to the use of pesticides on the mining area. The previous regulation stated that "persistent pesticides" could not be used unless approved by the regulatory authority. 30 C.F.R. § 816.97(d)(7) (1980). The present regulations delete this specific prohibition. The Secretary stated that the use of pesticides will have to conform with federal and state laws, including the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 136 et seq. 48 Fed. Reg. 30322. The protections in this Act, according to the Secretary, would provide adequate restrictions on the use of pesticides during mining operations in most cases. Id. In other cases, the regulatory authority will be able to impose conditions on the use of pesticides, as necessary. 30 C.F.R. § 816.97(a). As in the sections above, the Secretary must be given substantial deference when enforcing a broad statutory requirement, such as section 515(b)(24). This court finds that the Secretary's regulations in this area are reasonable, consistent with the statute, and must be upheld. An appropriate Order accompanies this Memorandum. 1. See In re: Permanent Surface Mining Regulation Litigation, No. 79-1144 at 64 (Feb. 26, 1980) (hereinafter "February Opinion"). 2. The Secretary believed that there was an insufficient difference between surface and underground mining, in this area, to alter the restoration standards that he believed would otherwise be applied to land materially damaged by subsidence. See 48 Fed. Reg. 24644 (June 1, 1983). 3. This court previously addressed the question of whether the Secretary could require underground miners to restore land materially damaged by subsidence. February Opinion at 63-64. The court held that the restoration requirement was not inconsistent with section 507(f) because section 515(b)(2) requires restoration. The Secretary relied on this court's decision as support for his regulation. 48 Fed. Reg. 24644 (June 1, 1983). 4. The effect of Industry's interpretation ofthis area of the statute would allow the dictates of section 516(b)(1) to be rendered virtually meaningless. A coal operator would have to indicate that he is taking measures to prevent subsidence in order to obtain a permit. Once mining was underway, there would be nothing in the Act to stop the operator from abandoning these measures. The land could be materially damaged, and without a requirement of restoration, the environment would be no better off, with regard to subsidence, than it was before the Act was passed. This court cannot subscribe to such a result involving an area of obvious concern to Congress. 5. Industry presents this court with a list of practical problems stemming from the enforcement of this regulation. Most of these are answered by noting that Industry need not restore all subsided land, but only the land materially damaged by subsidence. These arguments, however, are better made to Congress and the Secretary than this court. This court will not pass on the wisdom of the regulations or the Act. It will examine the regulations to determine whether they are lawful. 6. Industry's argument is untimely. The notice regulation now before the court is not significantly different from the regulation promulgated by Secretary Andrus that was not challenged. Industry's challenge, therefore, is untimely. 30 U.S.C. § 1296(a)(1). Nonetheless, this court will examine the merits of Industry's challenge. 7. In Ethyl, supra, the Secretary did not simply promulgate final regulations once the comments persuaded him to revise the theories on which the rule was based. 541 F.2d at 48. After the second comment period, the Secretary altered the regulation and provided for a third comment period. Id. This is the course that this court finds the Secretary must follow in the present case. Indeed, the changes in the present rule are more drastic than those in Ethyl. 8. As noted above, section 510(d)(1) requires that the regulatory authority find, in writing, before issuing a mining permit, that: The operator has the technological capability to restore such mined area, within a reasonable time, to equivalent or higher levels of yield as nonmined prime farmland in the surrounding area under equivalent levels of management and can meet the soil reconstruction standards in section 1265(b)(7) of this title. 30 U.S.C. § 1260(d)(1). The referenced section provides more specific standards for the treatment of prime farmlands. 30 U.S.C. § 1265(b)(7). An additional performance standard is provided by section 515(b)(20), which requires the operator to assume the responsibility for successful revegetation of mined land. 30 U.S.C. § 1265(b)(20). All permits, of course, are subject to the applicable performance standards. 30 U.S.C. § 1265(a). 9. This finding distinguishes the situation currently facing the court from that tacing the court in the previous set of regulations. This court found that the Act does not require coal operators to engage in farming. February Memorandum at 59. It stated, on the basis of the record before it, that the capability of prime farmlands to support pre-mining productivity could be demonstrated by a soil survey. Id. The pre-mining survey provided for in section 507(b)(16) cannot, of course, by itself, support a finding that the prime farmland has been restored. The present record contains the conclusion of the Secretary that only cropping can effectively measure restoration of prime farmland. This is a technical determination which is entitled to great deference. This same finding was not present when the court issued its February 1980 opinion. 10. The reference to the pre-permit survey in both the Act and the regulation is relevant to soil productivity only to the extent that it is the basis for the soil reconstruction specifications. 11. The only section that the Secretary could even arguably rely on is 30 C.F.R. § 816.49, which is referenced in 30 C.F.R. § 823.11(b). That section states that "the impoundment will be suitable for the approved postmining land use. 30 C.F.R. § 816.49(b)(6). This is nothing but a tautology. The impoundment is the postmining land use, representing an exception to cropland. This section, therefore, does not limit the type of impoundment that will be allowed. 12. This court does not decide the question of whether an impoundment is allowed on prime farmland after a finding is made that it is necessary or beneficial for the farmland. That regulation is not presently before the court. 13. The Secretary argues that redistribution of soil is not always practical because coal preparation plants are at times located a great distance from their mine sites. The court notes that this position is contradictory to the position taken by the Secretary in Round I when he sought to regulate coal preparation plants only if they were "at or near the mine site." See July, 1984, Opinion at 16-19. In addition, this court is persuaded by NWF's argument that if it is practical to transport the coal from the mine site to the preparation plant then it must be practical to transport the soil on the same route. 14. Initially, Industry raised more than one challenge to these regulations.The Secretary agreed, however, that the regulations should exclude roads within coal spoil and refuse disposal areas. The Secretary indicated that he will voluntarily repromulgate a regulation to conform with this understanding. 30 C.F.R. §§ 816.150(b)(8), 817.150(b)(8). 15. The Senate Report, in a section entitled "Surface Effects of Underground Coal Mining Operations," stated: The Secretary is specifically required to consider the distinct difference between surface and underground mining in promulgating his regulations and with respect to surface impacts from repair, haulage, processing and similar facilities, to accommodate the difference in establishing requirements for minimizing such impacts. After surface operations or other mining impacts are complete at a particular site, the area must be regarded and a diverse and permanent vegetative cover established. S. REP. NO. 128, 95th Cong., 1st Sess. at 84 (1977). The Secretary stated that he found no difference between regrading roads related to surface and underground mines. 16. The Secretary abandoned the classification based on frequency of use even though he acknowledged that, in general: The potential for both environmental and property damage attributable to the operation of roads varies with their frequency of use and their conditions of use, such as vehicle speed, vehicle type, operational restrictions, maintenance, schedules, etc. 48 Fed. Reg. 22116 (emphasis added). There is nothing in the record now before the court to indicate that the classifications adopted by the Secretary reflect a consideration of these factors. This may be the result of an inadequate comment period, and the resulting scant discussion of the actual classifications. 17. NWF has put forth several substantive arguments challenging these regulations. The Secretary's defense to these challenges is, in large part, based on the specific requirements for the different classifications of roads. In light of this court's ruling with regard to notice, it feels that a consideration of the merits of these regulations is better left for the time when the court has the full set of regulations before it. 18. Indeed, the only support for this contention is the opinion of Senator Metcalf offered during debate on an amendment to the bill. 123 CONG. REC. 15700 (1977). The court does not believe that this is sufficiently persuasive authority to justify overturning the Secretary's regulation. 19. Indeed, it would be ironic to interpret section 515(b)(5), which was enacted to provide increased protections to farming on AVF's, to decrease hydrologic protections provided to other land. 20. The Secretary's argument that unofficial guidelines exist is unpersuasive. These guidelines are not mandatory and there is no indication that operators or regulatory authorities will heed them. The existence of these guidelines, however, undermines the Secretary's argument that the diversity of conditions at AVF's precludes the use of guidelines. 21. Initially, Industry challenged 30 C.F.R. § 817.57(a), to the extent that it prohibits all underground mining within stream buffer zones. The Secretary has indicated that this regulation is directed only to disturbance of surface lands by surface activities associated with underground mining. This resolved Industry's challenge. 22. Industry argues that all rocks degrade. Although this may be true, it does not undercut the Secretary's regulation. The regulation does not proscribe all degradability, but only rock that will degrade to soil material, as described above. 23. NWF originally challenged the regulations in a fifth area, namely that they improperly omit the name of the person seeking release of the bond from the required notice. See 48 Fed. Reg. 32952 (July 19, 1983). The Secretary did not oppose plaintiffs' contention, and stated that he will repromulgate a regulation requiring the publication of bond release notices to include the name of the applicant. 24. This court will not consider the question of whether bond is required to cover damage to structures damaged by subsidence, because it is not yet clear whether the operators must restore these structures. If this is not a reclamation requirement then no bond is required. 25. If insurance proceeds are used to restore the land then the bond can be reduced accordingly. 26. Congress was explicit in allowing phased release of bond. 30 U.S.C. § 1269(c). This seems to address the problem that the Secretary seeks to redress, from the opposite direction. Although the operator will have to post the bond initially, he will receive a portion of it back after completing a phase of reclamation. This phased release system would not make sense if the operator were only required to post bond for each specific phase of reclamation.Thus, section 519(c) supports this court's reading of section 509. 27. The former regulations did provide relatively detailed guidelines for terracing. 30 C.F.R. § 816.102(b). At the same time, however, those regulations left some discretion in the hands of the regulatory authority. Id. 28. The Secretary must have found that backfilling and grading is a "major step in the reclamation plan." 30 C.F.R. § 780.18(b)(1). Any permit without a detailed timetable for these operations, therefore, is incomplete. 29. The regulations defined thin overburdens as "where the final thickness is less than 0.8 of the initial thickness," 30 C.F.R. § 816.14(a) (1980), and thick overburden as "where the final thickness is greater than 1.2 of the initial thickness." 30 C.F.R. § 816.105(a) (1980). 30. The Secretary details, at some length, the other regulations that protect wildlife. These regulations are supported by section 515(b)(24), but they are not relevant to whether this regulation violates the ESA. 31. The previous regulation cites "Powerline Contacts by Eagles and Other Large Birds." 30 C.F.R. § 816.97(c) (1980).This seems to direct the focus of the regulations to raptorial birds. It is unclear whether the other source material addresses other birds. 15 ELR 20481 | Environmental Law Reporter | copyright © 1985 | All rights reserved |