National Wildlife Federation v. Lujan

Nos. 88-2416 et al (D.D.C. August 30, 1990)

The court rules on challenges to Surface Mining Control and Reclamation Act (SMCRA) regulations governing termination of jurisdiction, inspection of abandoned sites, coal preparation plants, prime farmland, water impoundments, probable hydrologic consequences, and post-mining roads. The court first holds that the rule that allows the state agency charged with implementing SMCRA to terminate its regulatory jurisdiction when an operator has performed all his duties to reclaim a site is contrary to SMCRA. SMCRA § 521(a) imposes an ongoing duty on the Secretary of the Interior to correct violations of the Act. Congress recognized that dangerous conditions may arise years after mining and reclamation have ended and thus gave the Secretary and the states the power to inspect and enforce any apparent violation, no matter how long after mining has ceased. The court next holds that the rules on how often an abandoned site must be inspected also violate SMCRA. SMCRA § 517(c) requires at least one partial inspection per month and one full inspection per quarter for all surface mining sites. The regulations create a class of mines called "abandoned sites" that must be inspected only as often as necessary to monitor changes of environmental conditions or operational status. The court holds that this rule, while it makes good sense, conflicts with the plain language of § 517(c), which does not include an exception for abandoned sites.

The court holds that the Secretary improperly relied on the proximity of an off-site coal processing plant to a mine to decide whether SMCRA covers the plant. The court's prior rulings established that the Secretary must regulate off-site processing plants, including dry handling facilities such as crushing, sizing, and screening plants. The regulation making proximity to a mine the decisive factor in determining whether to regulate off-site processing plants conflicts with these rulings. The court rejects an industry claim that all rules dealing with off-site processing plants should be reproposed because the regulated parties never got true notice of the integrated regulatory process. Although the issue has been the subject of a number of rulemakings and judicial interpretations, petitioner had notice of the rule and a chance to comment on it. The court also holds that off-site facilities that only perform crushing and sizing incidentally to coal loading are subject to regulation under the Act.

The court rejects challenges to the prime farmland regulations. The rule allows mine operators to build water impoundments on former prime farmland if it creates a matching amount of new prime farmland on land that was not prime farmland before mining. The rule complies with the Act's purpose of preserving prime farmland by preventing an operator from decreasing the amount of prime farmland in the permit area. The court holds that the Secretary properly prohibited impoundments that aid farming or improve yields but reduce the amount of prime farmland. Nothing in SMCRA requires the Secretary to allow operators to build impoundments on prime farmland in these circumstances. The court holds that the Secretary acted within his authority in dropping the exemption for surface mining support facilities from the requirements for restoring prime farmlands. An earlier decision ordered the Secretary to more thoroughly explain his rationale for adopting an exemption for support facilities or to suspend the exemption. The Secretary decided to suspend the exemption. The court cannot now order the Secretary to explain the rule rather than suspend it.

The court rejects challenges to the water impoundment rules. The rule governing stability of impoundments imposes stricter performance standards on impoundments that would be regulated under the Mine Safety and Health Administration Act and where failures would be expected to cause loss of life or serious property damage. SMCRA § 515(b)(8) requires impoundments to meet standards established by the Soil Conservation Service (SCS). The court holds that the Secretary's rule clearly meets SCS standards. The court holds that a challenge to rules governing storage-based temporary impoundments and spillways of permanent impoundment structures is moot, since the Secretary is planning a rulemaking on this issue.

The court rejects challenges to the post-mining road regulations. The court holds that the rule designating all post-mining roads as primary roads, which must meet higher design standards than ancillary roads, is rational and consistent with SMCRA. SMCRA's language on the performance standards for roads is written in broad terms and clearly authorizes a rule imposing higher design standards on roads that will be retained after mining. The court holds that the Secretary rationally required that roads be built to mitigate adverse effects on lands that the Act declares unsuitable for mining. The Secretary logically reasoned that land needing extra care should be specifically protected from the harm that roads may cause. Finally, the court holds that a rule requiring operators to discuss the probable hydrologic consequences (PHC) of their mining operations in their permit application is not arbitrary and capricious. The Secretary adequately explained his decision to limit the required discussion of PHC to the life of the permit, rather than the life of the mine.

Counsel for Plaintiffs
Lloyd Thomas Galloway
Galloway & Greenberg
1835 K St. NW, Washington DC 20006
(202) 833-9084

Counsel for Defendants
John S. Gregory
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2794

[21 ELR 20126]

Memorandum Opinion

In this matter, the Court continues to rule on further challenges to regulations implementing the Surface Mining Control and Reclamation Act of 1977 ("SMCRA" or "the Act"), 30 U.S.C.A. 1201 et seq. The Act seeks to protect society and the environment from the harmful effects of surface coal mining, sometimes known as "strip mining," as well as damage to surface land caused by underground coal mining.

In these seven consolidated cases, environmentalist and industry plaintiffs separately ask the Court to strike down certain SMCRA regulations in seven areas. The environmentalists (the National Wildlife Federation and other groups, collectively "NWF") challenge rules on (1) termination of jurisdiction, (2) inspection of abandoned sites, (3) coal preparation plants, (4) prime farmland, (5) water impoundments, and (6) probable hydrologic consequences. Representatives of coal mine operators (two organizations, the American Mining Congress and the National Coal Association, collectively "industry") challenge the rules on (7) post-mining roads and two different aspects of the rules on prime farmland from that attacked by NWF, (4) above. An individual coal company, Black Gold Sales, Inc., also attacks rules on coal preparation plants, (3) above. The government defendants ask the Court to uphold the rules as a valid exercise of their authority under the Act to regulate coal mining operations.¹ To mix up the parties further, industry and the environmentalists have been granted intervenor-defendant status to oppose certain of the challenges brought by the other. Within the seven disputed areas, 14 separable issues are before the court on cross motions for summary judgment.

As discussed further below, the Court rules in favor of the plaintiffs on the questions of termination of jurisdiction, inspections of abandoned mines, and the use of proximity to determine whether the Act governs an off-site processing plant. The Court decides in the Secretary's favor on Black Gold's challenge to the off-site processing plant rules,the prime farmland rules, the first water impoundment issue,the two postmining road matters, and the probable hydrologic consequences question. The Court dismisses as moot two other challenges to the water impoundment regulations.

This past year, the Court has had before it 16 different cases in four consolidated groups calling for decisions about various SMCRA regulations. In an earlier opinion, Nat'l Wildlife Fed'n v. Lujan, 733 F. Supp. 419, 31 Env't Rep. Cas. 1007 [20 ELR 20819] (D.D.C. Feb. 12, 1990) ("NWF III, Round I,"), the Court dealt with the first three cases. In Nat'l Wildlife Fed'n v. Lujan, Nos. 88-0208, 88-3200, 88-3225, Mem. Op. (D.D.C. June 8, 1990), 31 Env't Rep. Cas. 1617 [20 ELR 21175] ("NWF III, Round II"), the Court resolved three additional cases. Today, the Court will decide the issues arising from the third set of seven consolidated cases. One other group of three cases remain[s]. This is the fourth time this court has reviewed several groups of SMCRA rules.² Many issues decided today arise from rulings made in 1984 and 1985 during the third review of SMCRA regulations. The Court remanded several regulations back to the Secretary to be revised or for additional comment, and plaintiffs challenge some of the Secretary's actions on remand.

I. Standard of Review

Having discussed this at some length in NWF III, Round I, 733 F. Supp. at 422, and NWF III, Round II, Mem. Op. at 3-4, the Court will simply quote the statutory command on the subject and refer to its previous elaborations of the standard of review. SMCRA § 526(a)(1), 30 U.S.C.A. § 1276(a)(1), provides:

[21 ELR 20127]

Any action subject to judicial review under this subsection shall be affirmed unless the court concludes that such action is arbitrary, capricious, or otherwise inconsistent with law.

II. Termination of Jurisdiction, 30 C.F.R. § 700.11(d)

NWF challenges the rule as contrary to the Act's scheme of enforcement.³ This rule permits the state agency charged with implementing SMCRA to wind up its role in enforcing the Act at the site of a surface mining activity when the operator has performed all of his duties to reclaim the site. Finding NWF's views to reflect the language of the statute, the Court must remand this rule to the Secretary as contrary to the Act.

In promulgating this rule, the Secretary explained that termination of jurisdiction had caused problems between his agency that enforces the Act, the Office of Surface Mining Reclamation and Enforcement (OSMRE), and state regulatory authorities. These problems arise when the authority releases all of the operator's bonds or finds that the site has been fully reclaimed.⁴

[T]he general practice among State regulatory authorities has been to terminate regulatory jurisdiction . . . upon a finding that all reclamation has been successfully completed. The effect of terminating jurisdiction . . . is that inspections at the site are terminated, and the regulatory authority then lacks authority to enforce the program at the particular site. OSMRE has not objected to the States' general practice of terminating regulatory jurisdiction in this manner. However, OSMRE, in its oversight role, has conducted some oversight inspections after the State has [terminated jurisdiction.] When notified that OSMRE has reason to believe violations may exist . . . regulatory authorities normally have declined to take any action because they contend that, under State law, enforcement authority has terminated . . . . As a result, OSMRE has sometimes taken Federal enforcement actions at such sites. . . . These . . . enforcement actions occasionally have resulted in disagreements between OSMRE and the states . . . . Therefore, it is appropriate [to] set specific standards for such terminations to be included in State and Federal programs.

53 Fed. Reg. 44356. Because NWF's objections go to the concept of terminating [sic] jurisdiction, the rule is only quoted in the margin.⁵

2a.

The environmentalists argue that the Secretary's rules are unlawful because the Act mandates enforcement whenever a violation is found. According to NWF, the rules enable an operator to evade responsibility for violations of the Act. NWF further contends that the rules are at odds with the basic purpose of SMCRA, which is to protect the public and the environment from the possible dangers of strip mining.

In NWF's view, Congress never intended that the Act could become unenforceable at a mining site where there are uncorrected violations.⁶ NWF points to § 521's language, which calls for inspectors [21 ELR 20128] "to take mandatory enforcement action whenever they observe 'any condition or practices' that create 'an imminent danger to the health or safety of the public,' or a 'significant, imminent environmental harm' . . ." NWF's Mem. in Supp. at 15 (quoting SMCRA §§ 521(a)(2), 30 U.S.C.A. § 1271(a)(2)). In NWF's view, the provision for on-going inspection and enforcement is a clear indication that jurisdiction may not be terminated.

As a practical matter, NWF adds, "the long term stability of many structures created by the mining process cannot be assured prior to bond release. Nor is it always possible to learn of other mine-related problems, such as groundwater contamination, before the bond release expires." Id. at 15-16. NWF states that it does not object to releasing the operator's bond. But, it contends that bond release should not cut off further recourse against the operator for a violation of the Act not discovered until later. NWF points to the Act's legislative history expressing Congress' concern about mining disasters resulting from inadequate reclamation that went undetected for years.

Alternatively, NWF asserts that if the Act is silent on when enforcement may end, then it should be read not to permit regulators to end their jurisdiction. NWF contends that any law without a statute of limitations or stated period of response should be presumed to intend none.

The Secretary responds that Congress intended to end enforcement under the Act when the operator's bond is released. According to the Secretary, the Act makes clear that surface coal mining and reclamation is only a temporary use of the land. "[T]he Act establishes a scheme under which, at the time of bond release, the regulatory authority must have made the finding that an operator has satisfied all reclamation requirements. At that point, assuming that the regulatory authority has properly released the bond, no more functions exist under the Act for the regulatory authority to perform." Fed. Defts' Mem. in Opp. at 35.

"By its terms, the Act regulates a surface coal mining operation only from the time at which mining operations begin to the time at which the operator has fulfilled all reclamation obligations and the period of extended liability for revegetation has expired. Nothing in the Act requires a regulatory authority to conduct inspection or enforcement activities after that period of time." Id. at 37. The Secretary argues that once a bond is released, a site no longer is a surface coal mining operation within the terms of the Act.

According to the Secretary, his interpretation of the Act is entitled to deference. "In this case, although Congress did not speak specifically to the problem of terminating jurisdiction, it did so implicitly" through release of the bond when reclamation is finished. Id. at 41. The Secretary argues that his regulation is a reasonable means of carrying out this implicit provision, and that his fleshing out the details of terminating jurisdiction is in accord with Congressional intent. Therefore, it must stand.

The Secretary next takes on NWF's contention that the rules violate the Act's enforcement provisions. Although state and federal authorities will not continue to inspect the sites, the Secretary argues that his rules will not affect the right of citizens to bring civil actions under the Act's § 520, 30 U.S.C.A. § 1270. In the Secretary's view, "when a person brings an action under § 520 following bond release, the court will determine if a cause of action exists and this regulation cannot add to or decrease the determination." Id. at 45 (quoting the preamble to the rule, 53 Fed. Reg. 44356, 44358). The Secretary also disputes the environmentalists' citation to the mine safety act. "NWF, however, cites no authority for the proposition that, in a case where two statutes are silent on a particular issue, the silence of one of those statutes must create an affirmative provision in the other by implication." Id. at 46 (emphasis in original).

NWF's concern that violations will go undetected is not well-founded either, according to the Secretary. He points out that active sites must be partially inspected monthly and fully inspected four times each year.⁷ Moreover, the Secretary also notes that the bond is not released in full, and thus jurisdiction does not terminate, upon the immediate completion of reclamation. Because the Act's performance standards require the operator to assume responsibility for successful revegetation of a mined area, there is a minimum of five years, and in some cases of ten years, before the bond may be released. The Secretary also points to the Act's provisions enabling interested parties and private citizens to oppose release of a bond. Coupled with the requirement that a state regulatory authority specifically find that all reclamation has been completed, these provisions make unlikely any premature termination of jurisdiction, according to the Secretary. He adds that his rules, which for the first time spell out standards for terminating jurisdiction, should prevent states from releasing an operator's bond too early.

On this issue, the Court must agree with NWF. In the first place, the Court reads the language of SMCRA §§ 521(a)(1) and (a)(2) as imposing an on-going duty upon the Secretary to correct violations of the Act. This appears to be without limitation. In this regard, the statute itself prevents the Secretary from taking himself out of the game. He is the ultimate umpire, and he may not leave after the seventh inning simply because he thinks the outcome is not in doubt. Nor may he permit the other umpires, that is the regulatory authorities, to leave either. The Secretary and the state regulatory authorities have a responsibility — one that Congress gave them — to prevent the harm to the environment that Congress judged unregulated surface mining to entail.

It is also difficult for the Court to believe that Congress lightly skipped over the matter of terminating jurisdiction. The fastest look at the Act shows that it reflects considerable thought about the most consuming detail. The Secretary argues that Congress was silent about terminating jurisdiction. Therefore, it must have wanted to do so after a reasonable time. By far the more likely reading of Congress' intent is that Congress recognized that dangerous conditions could arise even many years after the end of mining and reclamation operations. As a result, it gave the Secretary and the regulatoryauthorities the power to inspect and enforce, whenever an apparent violation was noticed, no matter how long after mining. Moreover, the Act also reflects that harm to the environment can occur through accumulation of little things over a long time. At issue here is not just whether a dam will crack and burst after many years. The Act shows deep concern about changes to the quality of ground water and streams because of erosion or run-off that could take many years to come to full effect. Recognition of such concerns strongly shows that Congress deliberately chose not to limit the time for enforcement.

The Court is aware that when more than one interpretation of a law is plausible, then the Secretary should be accorded deference in the one he has chosen. That is true, however, when the interpretation does no violence to the goals of the Act in question. Here, the twin goals of the Act are to protect the environment and to foster a healthy coal-mining industry. The Secretary's rule can have the effect of hindering the former without achieving any significant benefit to the latter. The Court believes that its ruling on this issue, based upon the language of the statute, is buttressed by sound practical considerations. The idea of keeping things neat and tidy, and avoiding open-ended commitments has appeal. That is, after all, why there are statutes of limitations.⁸ But, the fact is that if it is unlikely that a violation could crop up more than five years after reclamation and initial revegetation, then the supposedly open-ended commitment does not commit very much. On the other hand, if things are as NWF contends, and a serious violation could first attract attention some years after reclamation, then it would be better for the government to have the power to deal with it. Furthermore, the Secretary admits that he has had to take enforcement actions after regulatory authorities have taken a site off their books. This alone suggests that there is a need for on-going jurisdiction after reclamation has taken place.

In short, the statute's language militates against the Secretary's position. So does his own experience and a view of the practical consequences. The statute's language would be enough to suggest striking down the rule. The combination of all factors compels the Court to do so.

[21 ELR 20129]

III. Inspection of Abandoned Sites

NWF challenges the Secretary's rules on how often an abandoned mine site must be inspected. See 30 C.F.R. §§ 840.11(g) and 840.11(h) (1989), and 30 C.F.R. §§ 842.11(e) and 842.11(f) (1989).⁹ Although Court deems these rules to be very practical, they conflict with the plain language of the Act. As a result, the Court must remand these to Secretary.

SMCRA § 517(c), 30 U.S.C.A. § 1267(c), "Inspection intervals," states:

The inspections by the regulatory authority shall (1) occur on an irregular basis not less than one partial inspection per month and one complete inspection per calendar quarter for the surface coal mining and reclamation operation covered by each permit . . . .

(Emphasis supplied.)

In 1988, the Secretary amended his rules that implement this command. He created a class of mines "abandoned sites." See 30 C.F.R. §§ 840.11(g) and 842.11(e) (published at 53 Fed. Reg. 24872 (June 30, 1988)).¹⁰ When a site has been declared abandoned, it does not have to be inspected as often. See 30 C.F.R. §§ 840.11(h) and 842.11(f) (1989). Instead, abandoned sites must be inspected as often as "necessary to monitor changes of environmental conditions or operational status at the site." Id.

The rules in question have two main parts: first, the definition of an abandoned site; second, the process to certify a site as abandoned so that the regulatory authority may cut back on the number of inspections.

Before it can certify a site as abandoned, the regulatory authority must find in writing that:

(1) all mining and reclamation have ceased;

(2) it has issued (i) a notice of a SMCRA violation; and (ii) either the violation went uncorrected and the authority got a cease work order or the authority could not serve notice of the violation;

(3) it is (i) acting to see that the mine operator can get no more mining permits while the violation continues; and (ii) either that the operator is correcting the violation or that there is no prospect of getting the operator to correct it or to pay for correcting it.

(4) if the site was permitted or bonded, (i) the permit has expired, been revoked, or the authority is trying to get it revoked; and (ii) the bond has been forfeited or the authority is trying to get it forfeited.

See 30 C.F.R. § 840.11(g) (1989).

After certifying a site as abandoned, before the regulatory authority may cut back on inspections, it must; (1) "evaluate the environmental conditions and operational status of the site;" and, (2) document in writing how often inspection is needed to find changes in environmental conditions or operational status, and why that many inspections are appropriate. See § 840.11(h).

2a.

NWF attacks the Secretary's action on several grounds. First, it contends that the regulations violate SMCRA § 517(c), which states no exceptions to its requirement of an average of 12 partial and four complete inspections per year. The environmentalists argue that Congress has "directly spoken to the precise question at issue." NWF's Mem. in Supp. at 31 (quoting Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842 [14 ELR 20507] (1984)). In NWF's view, "The revised rules are inconsistent with the clear and unambiguous language of Section 517(c) . . . . The Act does not provide for any exceptions to the mandatory minimum inspection frequencies, and none can be created by regulatory fiat." Id. NWF cites language from United States v. Rutherford, 442 U.S. 544, 552 (1979) that "[e]xceptions to clearly delineated statutes will be implied only where essential to prevent 'absurd results' or consequences obviously at variance with the policy of the enactment as a whole."

NWF also cites Virginia Citizens for Better Reclamation, Inc., v. Watt, No. 83-1828 (4th Cir. June 6, 1984), 20 Env't Rep. Cas. 2235 [14 ELR 20679]. Virginia Citizens struck down an element of the Virginia state program to regulate surface mining operations. Virginia had proposed, and the Secretary had approved, a state rule providing that inactive and abandoned mine sites need only be inspected once every six months. The Court stated:

The conclusion that semi-annual inspections would suffice to serve the Act's purposes would appear rational, not arbitrary. But the Act requires more; it requires the Secretary to conclude that the state plan is in accordance with the Act. This [the Secretary] cannot do without arguing that § 1267 should not be read to apply to abandoned mines. There is no basis on which to make such an argument, and the Secretary's approval of this portion of the Virginia plan is arbitrary.

Id., 20 Env't Rep. Cas. at 2241.

Last, NWF attacks the Secretary's primary reason for the rule: it saves manpower now being wasted on meaningless inspections when it could be out inspecting active sites with violations that need correcting. According to the environmentalists, the Secretary may not strike a new balance between the conflicting needs to inspect abandoned sites and to allocate resources to other enforcement. "The allocating of manpower in effectuating inspections is a choice which Congress already made, and the Secretary may not substitute his own policy choice in contravention of the Act. Only Congress may change the inspection frequency requirement." Id. at 34.

In the face of the language of § 517(c), the Secretary argues that Congress did not intend "to require twelve inspections a year in perpetuity at sites which have been completely abandoned and at which inspections will accomplish nothing." Fed. Defts' Mem. in Supp. at 69. The Secretary adds that "[n]othing in the Act or its legislative history,however, suggests that Congress expected regulatory authorities to continue to inspect abandoned sites with uncompromising frequency after diligent inspection and enforcement measures at the inspector level have proven ineffective to abate violations and secure reclamation." Id.

The upshot of the Secretary's argument is that to read the language of the statute so scrupulously is to render it a nullity. The goal of the section on inspections is to see that sites posing a threat are inspected regularly enough to catch violations. In the Secretary's view, many abandoned sites are stable and do not pose any threat. Moreover, the Secretary contends that his rules do not permit a cutback in inspections until it has been shown conclusively that the regulatory authority has taken every possible step to enforce the Act through: (1) prosecuting the violations to the point of a cease work order; (2) seeing that the permit is revoked, and that the operator can get no more permits; (3) forcing the operator to pay for abatement or confiscating his bond to fund reclamation. At such a point, the Secretary argues, Congress could not possibly have wanted regulatory authorities to spend resources on routine inspections of abandoned sites, when such resources could be better used to enforce the Act at other sites.

Attacking NWF's view that Congress struck a balance between conflicting interests when it set "minimum inspection frequencies," the Secretary states "this statement highlights . . . flaws in NWF's rigid interpretation of the statutory language." Id. at 76. Pointing to a finding made in the preamble to these rules,the Secretary adds, "Congress could not possibly have intended to allocate a third of the inspection resources in Tennessee — 2900 inspections a year — to sites where inspections can accomplish nothing. To conclude that it intended such a vast waste of limited manpower and resources is absurd." Id. at 76-77.

[21 ELR 20130]

The Secretary also contends that his rule does not drop the requirement to inspect abandoned mine sites. Instead,he argues, the rule crafts a very particular limitation. It enables a change in the frequency of inspections from a rate appropriate to an active mine to one that ensures that an abandoned mine's environmental and operating conditions have not changed. According to the Secretary, the regulatory authority must document its decision on the number of inspections to be sure it meets the conditions at the site. Having already been required to take all steps to secure enforcement, the regulatory authority is not given limitless discretion in setting the number of inspections. In short, the Secretary contends that he has fashioned a common sense rule with carefully limited exception to the statutory mandate.

Last, the Secretary argues that this is not the first time he has made such an exception. He points to the subsection of §§ 840.11 and 842.11 that cover inactive mines. These rules, § 840.11(a) & (b) and 842.11(c)(2), permit partial inspections of inactive mine sites as often as necessary to ensure effective enforcement of the regulatory program and the Act. Full inspections must be conducted once a quarter. Nobody challenged this rule when the Secretary published it in 1982. In the Secretary's view, the rule for abandoned sites is in the same vein as that for inactive sites, and should be upheld.

NWF's replies [sic]: "Frequent inspections of 'abandoned sites,' which by definition have unabated violations . . . is scarcely 'absurd' . . . ." NWF's Reply at 32. The environmentalists add,

Frequent inspections are the critical and irreplaceable safety base of the Act. When violations occur and enforcement is unsuccessful, the result is . . . 'abandoned sites.' In the absence of abatement, continuing inspections of these sites at the statutory frequencies at least ensures that people will be warned of any imminent or non-imminent harm.

Id.

On this issue, the practicalities are with the Secretary. Unfortunately for him, the statute, and such case law as there is, are with the environmentalists. In the Court's view, the statute and case law beat common sense. The Court will not, and should not, ignore the plain language of the statute. That plain language sets a schedule for inspections. That language cannot be varied simply because it has had unexpected or undesired results. Or, at least, the Court should not vary the language of the statute. That is a task for the Congress. The Court agrees with the Secretary that it is not wise to spend a lot of time and effort inspecting abandoned sites every month when nothing changes. The Court further believes that the Secretary crafted a carefully limited exception to the statute. The difficulty is that it flies into the face of Congress' views as expressed openly in that statute.

The Secretary was able to get away with a similar exception for inactive sites because no one challenged that action. This time someone has, and the new regulatory exception cannot survive when compared with the statute which lacks such an exception. This Court will not construe an ambiguity into what otherwise is unambiguous language simply because the result comports with common sense. That would be legislating from the bench. The Secretary knows where Congress sits, and the states whose enforcement efforts are cramped by the Act's inspection schedule have representatives in Congress. It is to them that this matter must be brought for a change, not to the Court.

IV. Off-Site Coal Preparation Plants, general background¹¹

On this issue, the environmentalists challenge the Secretary's explanation of his regulations at 30 C.F.R. §§ 785.21 and 827.21. NWF attacks the Secretary for using the proximity of an off-site processing plant to a mine to decide whether SMCRA covers the plant. Additionally, Black Gold Sales, Inc., challenges these regulations from the perspective of industry. Black Gold attacks the rules on the ground that they bring off-site loading facilities within SMCRA's scope although the Act excludes such plants from the definition of surface coal mining operations. Black Gold also asks the Court to strike down all of the off-site processing plant rules because the Secretary published them without giving the public the proper notice and chance to comment required by law. The Court agrees with NWF that the Secretary improperly inserted proximity into the question of his jurisdiction. It rejects Black Gold's challenges as without foundation in law.

In previous rounds, the parties have fought sword to shield over whether the Secretary may regulate coal processing plants located away from a mine site, and, if so, just what off-site plants the Act covers. They join battle again today. The underlying issue is whether such plants fit the Act's definition of a surface coal mining operation.

SMCRA has a two-part definition of "surface coal mining operations," stating that they are:

(A) activities conducted on the surface of lands in connection with a surface coal mine or . . . surface operations and surface impacts incident to an underground coal mine . . . Such activities include . . . the cleaning, concentrating, or other processing or preparation, loading of coal at or near the mine site . . . and

(B) the areas upon which such activities occur or where such activities disturb the natural land surface. Such areas shall also include . . . processing areas . . . and other areas upon which are sited structures, facilities, or other property or materials on the surface, resulting from or incident to such activities.

SMCRA § 701(28), 30 U.S.C.A. § 1291(38) (all emphasis supplied).

In 1979, the Secretary read the act to cover off-site coal processing plants,and issued rules regulating them. In line with the structure of the SMCRA regulatory program, the Secretary published rules on permits to operate off-site coal preparation plants (30 C.F.R. § 785.21) and on performance standards for such plants. 30 C.F.R. §§ 827.1-827.13.¹² The Court upheld the rules. See PSMRL I, Round II, 19 Env't Rep. Cas. at 1501.

The Court grounded its decision on each of the two parts of the definition. First, the Court found that the Secretary may regulate off-site coal processing plants under § 701(28)(A) because (a) they fall within the phrase "the cleaning, concentrating, or other physical processing or preparation," and (b) "at or near the mine site" modifies only "loading of coal" and not "processing or preparation." Id. Second, the Court found that § 701(28)(B) covers offsite preparation plants because of the language referring to "processing areas . . . and other areas upon which are sited structures, facilities, or other property or materials on the surface resulting from or incident to such activities." Under PSMRL I, Round II, each part of the definition of surface coal mining operations let the Secretary regulate off-site coal processing or preparation plants.

The Court of Appeals never finished reviewing the PSMRL I decisions because a new Presidential Administration took office while the case was on appeal. The new Secretary decided to overhaul his predecessor's entire SMCRA regulatory regime and to repromulgate a new set of rules. Nevertheless, the new Secretary also asserted jurisdiction over off-site coal preparation plants. See 30 C.F.R. §§ 701.5, 785.21, and Part 827 (1984). This Court again upheld this exercise of jurisdiction in PSMRL II, Round I, 21 Env't Rep. Cas. 1199-1203.

The PSMRL II, Round I ruling on coal processing and preparation had two parts: (1) as mentioned, it re-iterated the earlier finding that the Secretary may regulate off-site coal preparation plants under either § 701.(28)(A) or § 701(28)(B) of the definition; 2) the Court ruled that coal preparation or processing had to be defined [21 ELR 20131] to cover activities where coal is handled without being washed, cleaned, or otherwise separated from its impurities.¹³

The first ruling agreed with the Secretary's position, but the second one did not. The second part of the decision remanded back to the Secretary the rule defining "coal preparation or processing" and "coal preparation plant" to be amended to include activities where coal is handled but not cleaned. Thus, the confluence of the two decisions was that the Secretary must regulate coal preparation plants not located at a mine that do not clean coal.

Apart from coal preparation plants, in 1983, the Secretary also had asserted jurisdiction over what he called "support facilities." 30 C.F.R. § 701.5 (1984). Support facilities were defined to be those:

"resulting from or incident to an activity [listed in the first part of the statutory definition of surface coal mining operations] and the area upon which such facilities are located. . . . 'Resulting from or incident to' an activity connotes an element of proximity to that activity."

Id.¹⁴

This Court found that the element of proximity stated in the definition was contrary to the Act. PSMRL II, Round I, 21 Env't Rep. Cas. at 1201-02. As relevant today, this Court found that the phrase "resulting from or incident to," used in § 701(28)(B), forbade a geographic test and required the Secretary to use a functional one.

Aggrieved parties appealed this Court's rulings striking down the use of proximity in defining support facilities and upholding the Secretary's jurisdiction over off-site coal preparation plants. Whether coal preparation or processing includes activities that do not clean coal did not go up for review.

The Court of Appeals affirmed this Court's ruling on the Secretary's jurisdiction over off-site coal preparation plants, but not quite on the same grounds. The appeals court was not so sure that § 701(28)(A) let the Secretary regulate off-site coal processing facilities. NWF v. Hodel, 839 F.2d at 744.¹⁵ Instead, it held that § 701(28)(B)'s language "processing areas . . . resulting from or incident to" a surface coal mine enabled the Secretary to regulate an off-site coal preparation plant. Thus the Court relied on § 701(28)(B)'s language, but not necessarily that of § 701(28)(A), to uphold the Secretary's jurisdiction over off-site preparation plants.

On the use of proximity to define a support facility, the Court of Appeals reversed this Court stating:

The phrase "resulting from or incident to" clearly suggests a causal connection, which, while not indicating an element of geographic proximity, certainly does require some type of limiting principle of proximate causation that is familiar to courts in tort law. Otherwise, every support facility that could be considered a "but for" result of a surface coal mining operation would be subject to SMCRA regulation. Since causation analysis is necessarily so heavily informed by explicit policy considerations, a statutory phrase such as the one at issue here is an obvious example of the sort of congressional delegation of policy choices to an agency that courts are bound to respect. Moreover, we note that the Secretary's regulations do not preclude the consideration of factors other than proximity. . . Proximity is used as a guiding principle in a flexible implementation of the statute. . . . We cannot say that the Secretary's regulations reflect an unreasonable interpretation of vague statutory language.

NWF v. Hodel, 839 F.2d at 745.¹⁶

As a result of this Court's PSMRL II, Round I ruling, the Secretary enlarged the definition of "coal preparation" to cover processing coal without cleaning it. He made a parallel change to the definition of "coal preparation plant." See 30 C.F.R. § 701.5 (1989) (promulgated in 53 Fed. Reg. 17724, published May 11, 1987). The Secretary did so before the appeals court ruled on the issue of proximity and "resulting from or incident to" in § 701(28)(b).

After NWF v. Hodel upheld the use of proximity as a factor to decide what "resulting from or incident to" means, the Secretary decided to revise other rules on off-site coal preparation plants. See 53 Fed. Reg. 47384 (November 22, 1988) (publishing final rule proposed in 53 Fed. Reg. 23526 (June 22, 1988)).

The Secretary left the definition of coal preparation plants unchanged from the version promulgated May 11, 1987, in response to the Court's PSMRL II, Round I remand. Instead, he rewrote the two rules dealing with permits for off-site preparation plants (30 C.F.R. § 785.21) and the scope of the performance standards for these facilities (30 C.F.R. § 827.1). The former rules covered coal preparation plants outside the permit area of a specific mine, other than such plants which are located at the site of ultimate coal use. The revised rules dropped the language about the site of ultimate coal use. Instead, the new rules applied to coal preparation plants operated in connection with a coal mine. See language of 1988 and 1989 rules quoted in margin.¹⁷

In the preamble to the amendments, the Secretary stated that they had been necessitated by the Court's decision that coal processing includes activities where coal is not washed. According to the Secretary, he had long believed that SMCRA does not reach facilities where coal is ultimately used and where it may also be crushed or sized, without being cleaned. Before the Court's PSMRL [21 ELR 20132] II,Round I "impurities" ruling, the Secretary had classified all coal preparation activities as either "in connection with a mine" or "in connection with an end user," the former being regulated, and the latter not. Now that coal preparation includes activities that do not purify coal, the former classification is no longer useful, according to the Secretary. He gave examples of facilities that SMCRA does not govern and that the old rules excluded, but that might be covered by the new definition of coal preparation plants. These include the docks at Baltimore, Md., Hampton Roads, Va., and Long Beach, Calif. 53 Fed. Reg. 47384, 47385 (November 22, 1988). According to the Secretary, the new "in connection with a coal mine" language exempts these facilities. The new phrase also made redundant the former language about "not at the site of ultimate coal use." Explaining the "in connection with" language, he stated:

No definition of the term . . . is included in this final rule. Any attempt to further define this phrase . . . would unduly restrict the discretion that regulatory authorities must have . . . to make valid decisions about the applicability of the performance standards . . . in individual cases. . . . Regulatory authorities will find ample guidance for making determinations as to whether a coal preparation plant is being operated in connection with a coal mine in the language in the definitions of "surface coal mining operations" [in the Act and the rules], in case histories . . . and in preamble discussions [of previous rules].

[The Secretary] continues to believe that the ability of mine operators, or coal handlers directly servicing such operators, to have control of processing operations is essential in establishing that a processing plant is being operated in connection with a coal mine . . . .

[Because of the NWF v. Hodel ruling on proximity, the Secretary] believes that geographic proximity, as well as the functional relationship between mines and coal preparation plants, are proper factors to be considered .. . when identifying off-site preparation plants which operate in connection with a coal mine and therefore are subject to regulation under SMCRA.

Id. at 47385-86.

A. NWF's challenge to use of proximity

The environmentalist [sic] ask the Court to remand the new rules because they "improperly abridge[] the jurisdictional ambit of the Act by allowing proximity to be used as a factor in determining whether an activity enumerated in Section 701(28)(A) is conducted 'in connection with' mining." NWF's Mem. in Supp. at 53-54. As a practical matter, NWF fears that the new rules let the Secretary get around the Court's two PSMRL II, Round I rulings that together require him to regulate off-site coal preparation plants where coal is not washed.

NWF's main argument is that the Secretary's justification of using proximity is based upon a misreading of the statute and the Court of Appeals ruling in NWF v. Hodel. The environmentalists argue that NWF v. Hodel only endorsed using proximity in the context of deciding what "resulting from or incident to" means. NWF points out that this language is from subparagraph (B) of the definition of surface coal mining operations in § 701(28). Further, NWF notes that NWF v. Hodel approved proximity only when deciding a question about support facilities, not coal preparation plants, which are at issue here. NWF then contends that while support facilities are regulated under subparagraph (B), off-site coal preparation plants are regulated under the authority granted in subparagraph (A). According to NWF, the Secretary concedes this because the "in connection with" language only appears in subparagraph (A). Therefore, according to NWF, the Secretary has improperly cited NWF v. Hodel to justify using proximity as a factor in deciding whether an off-site coal preparation plant is "in connection with" a coal mine.¹⁸

NWF also argues that if subparagraph (B) is the only source of authority over off-site coal preparation plants, then it still does not require proximity to be a factor in jurisdiction. According to NWF, the words "resulting from or incident to" do not modify "processing areas" in § 701(28)(B)'s phrase "processing areas . . . and other areas upon which are sited structures, facilities or other property or materials on the surface resulting from or incident to such activities." Rather "resulting from or incident to" only modifies "and other areas upon which are sited . . . ."

The environmentalists next contend that the new rules reverse the Secretary's long-standing policy of regulating off-site coal processing and preparation plants wherever located, except at the site of an end user. According to NWF, such a policy correctly reflects the broad remedial purposes that Congress had in mind when enacting SMCRA. The environmentalists cite the Secretary's statements in the preambles announcing proposed or final rules on off-site processing plants in 1979 and 1983. NWF then charges that the Secretary has failed to explain why he reversed this policy when putting out the new rules. It asks the Court to remand them on this ground as well.

In response, the Secretary contends that he has not reversed his long-standing policy. He essentially states that he has always regulated only those off-site processing plants operated in connection with a mine. But, when the rules stated that an activity had to clean or wash coal to process it, the Secretary's experience showed that such plants usually were either near or under the control of a mine operation or near or under control of an end user. The former were in connection with a mine and the latter not; Congress intended SMCRA to cover the former, and not the latter. Thus by excluding coal processing at the site of the end user, the Secretary drew a bright line test in his rules that correctly reflected the limits of his jurisdiction over off-site coal processing plants. Because this distinction was so clear, the Secretary used it rather than the vaguer "in connection with."¹⁹

On the other hand, facilities that "dry" handle coal, by crushing and sizing it, may be located at intermediate sites that are neither near or under control of a mine nor near or under the control of an end user. Some come under SMCRA's coverage; others do not. Now that coal processing includes crushing and sizing, the Secretary contends he had to find a new line to mark the limits of his jurisdiction. He can no longer use the old bright line test of located at an end user, so he has fallen back upon the statutory phrase "in connection with." That language gives rise to rather a "dimmer" line test, so the Secretary now must speak of the formerly unspoken consideration of geography tacitly present in the old rules for determining which plants are regulated. Far from changing his policy, the Secretary argues that he is keeping faith with his consistent view that not all crushing and sizing facilities may be regulated. The only ones that the Act lets him regulate are those operated in connection with a coal mine.

The Secretary next argues that his revised regulations are in keeping with the Court of Appeals rulings on the scope of the definition of "surface coal mining operations" in the Act. First, the Secretary contends that the Court of Appeals explicitly held that "the Secretary may reasonably construe the meaning of 'processing areas . . . resulting from or incident to such activities' to include processing facilities that are not at or near the mine site." NWF v. Hodel, 839 F.2d at 745 (quoting § 701(28)(B)). The appeals court then held that "resulting from or incident to" requires some type of limiting principle. Further, the Court of Appeals endorsed using proximity as one such limitation. In the Secretary's view, the phrase "in connection with" requires the same kind of limiting prin- [21 ELR 20133] ciple, and proximity is as sound for "in connection with" as it is for "resulting from or incident to." Fed. Defts' Mem. in Supp. at 100. The Secretary also points out that use of proximity makes sense considering that the Court of Appeals indicated that it is better to read the § 701(28)(A)'s phrase "at or near the mine site" as modifying "other processing or preparation."

The Court's agreement with NWF is limited. The Court reaffirms its earlier rulings that: (1) the Secretary must regulate off-site processing plants; and, (2) the language of the Act clearly indicates that crushing, screening, and sizing coal are covered by SMCRA as processing activities. The Court of Appeals has upheld the former ruling, and the latter is now settled law. Whether or not the Secretary so intended, it appears to the Court that the Secretary's explanation of his rule makes proximity to a mine the decisive factor in determining whether to regulate an off-site processing plant. In essence, this appears to mean that the Secretary would not regulate off-site plants, except in comparatively rare instances. That is contrary to the SMCRA's definition of surface coal mining operations. It would gut this Court's rulings made successively in PSMRL I, Round II, PSMRL II, Round I, and NWF III, Round I. To that extent, the regulation conflicts with the law.

The Court does not object with the Secretary's "in connection with" language. That is, after all, the language of the statute, at least in § 701(28)(A). The Secretary feels he must draw a new line because he has to regulate "dry handle" facilities, or tipples, as processing plants. The difficulty is not with the idea of drawing a new line; rather the problem is with where he seems to have drawn it, and that is altogether too close to the mine site. The Court agrees with the Secretary that his jurisdiction under the Act does not appear to run to the docks at Hampton Roads, Baltimore, or Long Beach. But to say that the Secretary need not send his inspectors swarming over the quayside is a far cry from saying that only dry processing plants near a mine site will be regulated. The latter is just as squarely in conflict with the Act as is the former.

It should be recalled that the Court of Appeals in NWF v. Hodel endorsed the use of proximity to define in part the idea of "resulting from or incident to" only in the context of support facilities, such as offices. It does not necessarily follow at all that proximity is an appropriate defining factor for processing plants. Processing and preparation plants differ from offices and similar support facilities in the threat they pose to the environment if not regulated and reclaimed. What the Court of Appeals endorsed was "some type of limiting principle of proximate causation that is familiar to the Courts in tort law." NWF v. Hodel, 839 F.2d at 745. The Court added that "causation analysis [is] heavily informed by explicit policy considerations." Id. In the context of support facilities, the Court deferred to the Secretary's choice of proximity as the limiting factor that reflected Congress' policy with respect to that type of facility. There, the Secretary wrote essentially on a blank sheet. Here his choice flies in the face of Congress' policy of regulating off-site processing plants, as both this Court and the Court of Appeals have interpreted that policy. Consequently, this Court cannot defer to the Secretary's decision to use proximity in the context of off-site processing plants. Therefore, the Court will remand this regulation to the Secretary for him to clarify that proximity may not be the decisive factor in deciding to regulate an off-site processing plant. The Secretary may wish to find another limiting factor to define "in connection with" a mine that is not based on proximity, or he may wish to use his former criteria and state than an off-site processing plant operated in connection with a mine but off the mine site will be regulated without regard to its proximity to the mine. In either event, the Secretary needs to tailor his action to this Court's and the Court of Appeals' consistent statements that the Act requires regulation of off-site processing and preparation plants, including dry handling facilities such as crushing, sizing, and screening plants.

B. Black Gold Sales, Inc.'s challenge

1. All off-site processing plant rules

Black Gold argues that not just 30 C.F.R. §§ 785.21 and § 827.1 should be remanded, but that the Secretary should have to repropose "all . . . regulations dealing with preparation plants and off-site facilities." Black Gold's Mem. in Supp. at 7. According to Black Gold, the Secretary has regulated off-site processing plants in an improper piecemeal fashion by promulgating disjointedly a string of rules that closely relate to each other. As a result, those affected never get true notice of the integrated regulatory program nor a chance to comment on the overall scheme of regulating off-site coal processing plants. Black Gold cites no cases to support the view that this course of regulatory conduct warrants the remand sought.

Black Gold argues that rules on "off-site processing facilities have been in a constant state of change. OSMRE has endeavored to define the class of facilities regulated under the Act in no less (sic) than six different rulemakings dating back to September 1977." Id. at 3. Black Gold adds:

The problem with [the] November, 1988 final rule is that the action taken, in effect, changes the entire definition of those coal preparation and processing plants which will be regulated under . . . the Act, all without allowing public comment on the entire regulatory scheme affected. Thus, because of the piecemeal nature of [the] latest rulemaking, interested parties have never been given a meaningful opportunity to voice their opinion of the fairness and propriety of [these] rulings.

Id. at 5.

In response, the Secretary argues that his preambles to the proposed final rules on off-site processing plants gave full notice. He contends that all the law requires is that he give "either the terms or substance of the proposed rule or a description of the subjects and issues involved." Fed. Defts' Mem. in Opp. at 104 (quoting the Administrative Procedure Act, 5 U.S.C.A. § 553(b)(3)). "The test as to adequate notice is whether the agency fairly apprised interested persons of the subjects and issues of the rulemaking." Id. (citing Small Ref. Lead Phase-Down Task Force v. USEPA, 705 F.2d 506, 547 [13 ELR 20490] (D.C. Cir. 1983)).

The Court concedes that the history of the off-site processing issue has been tortuous. But that itself is not ground for remanding the entire set of regulations on this issue. It is clear that Black Gold had notice of the rule and the chance to comment on it, because in fact Black Gold did comment on it. It is further clear that Black Gold and others understood what the Secretary proposed to do when he published the announcement of his intent to amend the rule. The Court is unaware of what else the Secretary should have done, or any case law that suggests he failed in his duties under the Administrative Procedure Act. The fact that Black Gold does not like the outcome of the Secretary's action or finds the regulation frustrating, without more, is not grounds for this Court to remand the Secretary's rule.

2. Jurisdiction over off-site coal loading facilities

Black Gold has a second, more specific complaint. It appears to argue that the Secretary has improperly extended his rules to regulate off-site loading facilities. Although Black Gold does not cite to the statute, or any cases, § 701(28)(A) does state that surface coal mining operations includes "loading of coal for interstate commerce at or near the mine site." (Emphasis supplied.) Regardless of whether "at or near the mine site" limits "processing or preparation," as discussed above, it is abundantly clear that it does modify "loading of coal."

If this were as far as Black Gold went, the Court might have to agree and remand the rule in question. Black Gold goes further, however. Black Gold's real complaint is not that the Secretary is regulating off-site loading facilities in violation of the Act. It is that the Secretary's rules cover off-site loading facilities where, incidental to loading coal, the coal also is crushed and sized. Black Gold states that the Secretary should be "required to revise its regulations to clearly state that off-site facilities which are only engaged in crushing and sizing incidentally to coal loading, are not subject to the coal processing regulations." Black Gold's Mem. in Supp. at 8.

This argument flies in the face of settled Court rulings and the Secretary's own position. This Court has twice found that the Secretary may regulate off-site processing facilities, PSMRL I, Round II, 19 Env't Rep. Cas. at 1501; PSMRL II, Round I, 21 Env't Rep. Cas. at 1199-1203. The Court of Appeals has specifically affirmed this decision. NWF v. Hodel, 839 F.2d at 745. Next, this Court has found that coal processing includes crushing and sizing, PSMRL II, Round I at 1501. As noted, that decision was not appealed, and is now settled. It means that the Act reaches a facility in connection with a mine, but not at a mine site, where coal is [21 ELR 20134] crushed and sized, as well as loaded. While generally facilities where coal is loaded for interstate commerce have to be at a mine site to be covered under SMCRA, if coal is also processed or prepared there, then the facility comes under the Act. It does so not as an off-site loading facility, but as an off-site processing facility. As a result, Black Gold's problem is not the loading but the processing. Black Gold has not shown the Court why it should alter its previous rulings, and this Court really cannot overturn them, since they have been affirmed on appeal. Black Gold's recourse ultimately must be to Congress. Its challenge will be denied here.

VI. Prime Farmland Issues

The environmentalists bring one challenge on this issue, while industry brings two others. Finding that the Secretary has lawfully exercised his discretion in all three instances, the Court will reject all three challenges and uphold the Secretary.

a. background on prime farmland

Prime agricultural lands are those available for growing crops which have the soil quality, growing season, and moisture supply needed to produce sustained high yields economically when treated and managed according to modern farming methods. Such lands can be farmed intensively with minimum adverse environmental impacts, lower energy and economic inputs, and higher yields than nonprime lands. . . . Recognizing that mining is only a temporary use of the land, it appeared especially important to require restoration of their productivity levels as part of the mining and reclamation process.

H.R. Rep. No. 95-218, 95th Cong., 1st Sess. 105-06, reprinted in 1977 U.S. Code Cong. & Admin. News 593, 638-39.

As a result of this recognition, Congress wrote into the Act a number of provisions dealing with prime agricultural or farm land.²⁰ Although Congress let coal operators mine prime farmland, it levied special requirements to be met when this is done.²¹ In particular, Congress wrote a detailed performance standard for prime farmland in SMCRA § 515(b)(7), 30 U.S.C.A. § 1265(b)(7). The standard requires operators to undertake a complex effort of segregating different levels of soil, storing them during mining, and then recombining and compacting them so that the full productivity of the soil is restored.²²

A. 30 C.F.R. § 785.17(e)(5), impoundments on prime farmland

a. background on impoundments

This rule lets mine operators build man-made lakes, also known as water impoundments, on what had been prime farmland rather than reclaim the land by replacing and reconstructing the soil as set forth in the performance standard for prime farmland, 30 U.S.C.A. § 1265(b)(7) above. Under the current rules, an operator may build an impoundment on what was prime farmland if it creates a matching amount of new prime farmland elsewhere on land that was not prime farmland before mining. The rule states:

The aggregate total prime farmland acreage shall not be decreased from that which existed prior to mining. Water bodies, if any to be constructed during mining and reclamation operations must be located within the post-reclamation non-prime farmland portions of the permit area. The creation of such water bodies must be approved by the regulatory authority and the consent of all affected property owners within the permit area must be obtained.

30 C.F.R. § 785.17(e)(5) (1989).²³

The Court dealt with a similar issue in its opinion in PSMRL II, Round II, 21 Env't Rep. Cas. at 1734. The rule then in question exempted operators from the general requirement to return prime farmland to its original state after mining. In particular, the rule permitted operators to build water impoundments on what had been prime farmland if the water bodies were "designed and constructed to minimize the loss of prime farmland." 30 C.F.R. § 823.11(b) (1983).²⁴

The Secretary defended the former regulation on the ground that it only permitted impoundments that were beneficial or necessary to agriculture. The other parties agreed that the 1983 rules as written permitted an operator to build impoundments on prime farmland for such uses as municipal water supply, recreation, watering livestock, better scenery, and wetlands. The Court therefore rejected the 1983 rule as contrary to SMCRA because it allowed an operator to make formerly prime farmland into something other than prime farmland after mining it. In the Court's view, the rule was unlawful because it "provide[d] a broad and impermissible variance from the post-mining use of prime farmland." PSMRL II, Round II, 21 Env't Rep. Cas. at 1734 (footnote omitted).

The Court of Appeals upheld this view in NWF v. Hodel, 839 F.2d at 719-722. "The district court thus most plausibly comprehended Congress to have ordered that permanent water impoundments unconnected to prime farmland use not be constructed on prime farmland. . . . We have no warrant to disturb the district court's solidly-supported disposition." Id. at 722.

In response to that ruling, the Secretary proposed to narrow the exemption to permit impoundments to be built provided that the total acreage of prime farmland is not decreased in the area an operator has a permit to mine (the permit area). See 52 Fed. Reg. 9644, 9646 (March 27, 1987).

About nine months after the comment period had run, the Secretary decided to switch rationalizations. See 53 Fed. Reg. 9453 (March 23, 1988). He decided that he did not need an exemption from the prime farmland performancestandard to let operators build an impoundment on formerly prime farmland. In the Secretary's new view, when the total prime farmland acreage did [21 ELR 20135] not decrease in the permit area, an operator had always been permitted to shift the soil from what had been prime farmland to another location in the mine permit area.

After reopening the comment period to enable interested parties to digest this view, the Secretary dropped his earlier proposal to narrow the exemption. Indeed he dropped the idea of exemptions entirely and promulgated the rule quoted above. His explanation to this final rule made clear that impoundments may be built if:

(1) the permit area has the same amount of prime farmland in it after mining as it did before;

(2) the impoundments are built on land whose use after mining is not prime farmland, although it might have been prime farmland before mining; and

(3) all of the land intended to be prime farmland after mining meets the rest of the rules governing reclaiming and reconstructing the soil of prime farmland.

1. Environmentalists' challenge

NWF objects strenuously to this. In its view, the Secretary's action "is no more or less than a ruse, and a transparent one at that, to evade this Court's prior ruling[,] which explicitly barred permanent water impoundments on prime farmland." NWF's Mem. in Supp. at 6. "It belabors the obvious to point out that under the new regulations land that was prime farmland prior to mining will not be prime farmland after mining, but instead will be a large water body . . . ." Id.

The environmentalists contend that the new rules have the same effect as the old ones that the Court struck down in PSMRL II, Round II. That is, because the 1984 rule would have allowed impoundments upon what had been prime farmland, the soil from such land would have been surplus. Such surplus prime farmland soil presumably would have been placed upon other, non-prime farmland ground, just as the Secretary now proposes to allow, NWF argues.

NWF next attacks the Secretary's view that the new version of the rule merely embodies what had always been permitted.

If allowing major water bodies to be retained on prime farmland was "existing practice" which does not require an "exemption," one might ask what the litigation over the previous exemption was all about, or more to the point, why the Secretary created an exemption to allow water bodies on prime farmland in the old [stricken 1984] regulations. Moreover, one might ask why the Secretary did not inform this Court or the Court of Appeals during the years of hard-fought litigation over the exemption that such was the case.

Id. at 9.

Indeed, NWF adds, upon remand, the Secretary proposed a revised exemption to try to comply with the Court's PSMRL II, Round II ruling striking down the previous exemption. See 52 Fed. Reg. 9644, 9646 (March 25, 1987) (Secretary is "proposing an exemption for water bodies where the total acreage of prime farmland is not decreased in the prime area") (emphasis supplied). According to NWF, this suggests that the Secretary did not recognize that putting impoundments on prime farmland was an existing approved practice. The upshot of NWF's argument is that it is hard to see how an act can be a recognized, approved practice at the same time as an exemption to a general rule prohibiting such an act is being defended or redefined.

The Secretary responds that his new rule violates neither the Act nor prior Court rulings because it "does not allow impoundments to destroy prime farmland." Fed. Defts' Mem. In Supp. at 9.

In short, impoundments allowed by the 1988 regulation will not be on prime farmland but on reclaimed surface mines. The prime farmland will be returned to full agriculture productivity after mining and reclamation; only the location of the prime farmland may be changed within the farmland. The prime farmland will not be lost as a result of approved impoundments.

Id. at 11.

Federal defendants also point out that the U.S. Soils Conservation Service (SCS) strongly supported the new rule in the administrative record. According to the Secretary, five different comments from SCS personnel show that the rule is prudent and in line with SMCRA's strictures on reclaiming and restoring prime farmland. The Secretary adds that a number of state SMCRA regulatory authorities commented that they allow operators to build impoundments on prime farmland, "provided each operator relocates this lost prime farmland to another area of the permit on the same landowner's property." Id. at 13 (quoting Comment of Ohio Department of Natural Resources, Ad. Rec. at 172).

The Secretary also challenges NWF's contentions that the new rule is practically no different from the stricken 1984 one. He contends that the rejected regulation only minimized a decrease in prime farmland, while this rule prevents any decrease at all. According to the Secretary, he proposed the earlier rule as an exemption because he believed a variance was needed when not all prime farmland would be restored. Because the current rule requires that all of the amount of pre-mining prime farmland be restored, although admittedly somewhere else, the Secretary no longer needs an exemption. In this view, he merely has to define more closely when a generally approved practice may specifically be carried out.

The federal defendants also argue that this is in keeping with the Act's legislative history. In the Secretary's view, Congress emphasized restoring "the productivity levels" of prime farmland "rather than maintaining the pre-mining metes and bounds of the prime farmland." Thus, the new rule achieves Congress' true goal.

Last, the Secretary suggests that the current regulation strikes a sound balance between the dictate of SMCRA § 515(b)(7), 30 U.S.C.A. § 1265(b)(7), to restore prime farmland and the provision in § 515(b)(8), 30 U.S.C.A. § 1265(b)(8), permitting operators to build impoundments.

In support of the Secretary on this issue, industry weighs in with the observation that Congress defined prime farmland in terms of "very specific soil characteristics or conditions affecting the soils described." Industry Defts' Mem. in Op. at 3. According to industry, Congress maintained such a focus on soils in structuring the performance standard for prime farmland, which speaks of "specifications for soil removal, storage, replacement, and reconstruction." Industry argues that the Secretary's rule permitting relocation of soils so long as they are reconstructed does no violence to Congress' focus.

The Courtcannot find that the Secretary's rule is contrary to the Act, nor is it irrational. The Act's purpose was to preserve prime farmland, and the Secretary's approach accomplishes that goal in that it prevents an operator from decreasing the amount of prime farmland in the permit area. NWF consistently miscasts this Court's earlier ruling on impoundments on prime farmland, as well as the Court of Appeals decision. Neither Court has ever said that the Act forbids any impoundments on prime farmland. Quite the contrary, both Courts held out the possibility that operators could build impoundments that were necessary for productive use of prime farmland, or beneficial to it. The Secretary has not tailored his rule as narrowly as that, but he has not tailored it so broadly as to conflict with the Act either. It must be recalled that Congresss itself made a policy choice in writing the sections of the Act dealing with prime farmland. It did not flatly ban mining on such land. Instead, Congress recognized that coal mining is important to the country's economy, and balanced that importance with the need to preserve the environment and specifically to conserve prime farmland. The Secretary has performed a similar balancing act on the matter of impoundments. He has ensured that the amount of farmland is not reduced, while permitting the mine operators to build impoundments in certain instances. The Court has no basis to disturb this exercise of discretion.

2. Industry's challenge

As NWF challenges the Secretary's rule because it allows any impoundments on prime farmland, industry attacks it because the rule does not allow impoundments that would be necessary or beneficial to prime farmland.

As noted, the Court's 1984 decision barred impoundments unrelated to prime farmland as a postmining use for prime farmland. The Court did not reach the question of impoundments that are related to farming. PSMRL II, Round II stated: "This Court does not decide the question of whether an impoundment is allowed on [21 ELR 20136] prime farmland after a finding is made that it is necessary or beneficial for the farmland." PSMRL I, Round II, 21 Env't Rep. Cas. at 1734, n.12. In affirming this Court's ruling, the Court of Appeals noted that the "District Court explicitly refrained from deciding whether a regulation confining impoundments on prime farmlands to those 'necessary or beneficial for the farmland' would be compatible with the Act . . . . We too leave that question open . . . ." NWF v. Hodel, 839 F.2d at 720 n.30. On remand, the Secretary decided that local conditions varied too greatly to craft a sound national rule permitting beneficial impoundments on prime farmland. In his final rule, he left for another day the matter of beneficial impoundments that would decrease prime farmland.

Industry argues that the Secretary acted irrationally in forbidding impoundments that air farming or improve yields but decrease the amount of prime farmland. Industry contends that none of the previous Court rulings mandate such a decision. According to industry, the Secretary had stated in published, public accounts of his regulatory agenda that he planned to recast his rules to permit impoundments that are beneficial or necessary for farming. Despite these intentions, the Secretary arbitrarily banned even those impoundments needed to improve use of prime farmland. Industry contends that the Secretary failed to explain his decision properly because he stated no more than:

whether an impoundment is necessary or beneficial is to dependent on site-specific factors such as geology, hydrology, topography, soils, and climate that nationwide standards for creating such an exemption may not be practicable and, at a minimum would require much additional research before any attempt at promulgation. Therefore, the agency does not intend either to propose or to implement such an exemption at this time.

Industry's Mem. in Supp. at 4-5 (quoting 53 Fed. Reg. 40828, 40833-34 (October 18, 1988).

In industry's view, the Act's legislative history and structure make clear that when no nationwide standard can be devised, the Secretary must let state regulatory authorities fill the gap. In this argument, the Secretary acted improperly in declining to permit state regulatory authorities devise their own rules to govern when operators may build impoundments on prime farmland that will benefit the land's agricultural use. In essence, industry argues that when the Secretary cannot come up with a suitable national standard to cover a practice, he may not generally ban the practice, but must permit it and allow the state authorities to write their own rules governing it.

In response, the Secretary argues that he has not so narrowed the conditions for building impoundments in permit areas containing prime farmland. In this view, an operator may build a necessary or beneficial impoundment, provided that the impoundment does not decrease the net amount of prime farmland in the permit area. In essence, the Secretary suggests that his rules do not prevent such impoundments, unless the permit area is entirely prime farmland.

Second, the Secretary contends that industry has miscast the government's authority to regulate. The Secretary asserts that he may devise a general rule permitting few or no exceptions, even though one or more specific exceptions might be useful. This is especially true, the Secretary adds, when it has not been shown that an exception is technically practical. Although the Secretary appears prepared to concede that some impoundments might be beneficial, he contends that he need not publish a rule embodying that view until he has had the chance to study the matter fully. The federal defendants thus ask the Court to recognize the Secretary's discretion to decline to flesh out a general standard when a more detailed one has not been shown to be technically practical. The Secretary further notes that industry has the right to petition him to grant a specific proposed rule provided it supplies the necessary evidence to support the proposal.

Again, the Secretary has acted within the bounds of his discretion. Nothing in the Act specifically requires the Secretary to permit operators to build impoundments on prime farmland if they would make the land more productive or benefit farming activities. Consequently, the Secretary may decide to permit them or not pretty much as he chooses based upon his experience and expertise on coal mining operations. He has chosen to permit impoundments on prime farmland, beneficial or not, provided that there is no loss in acreage. It appears to this Court that this largely subsumes what industry is seeking. To the extent that it does not, which would appear to be when the whole of the permit area is entirely prime farmland, the Secretary believes that no impoundments should be built until he studies the issue more closely. This he is allowed to do, particularly when forbiding such impoundments is a reasonable interpretation of the Act. This Court and the Court of Appeals have indicated that a rule permitting beneficial impoundments might be lawful, but neither Court has ever said that the Act requires a rule permitting beneficial impoundments, nor anything like that. This Court can find no basis for disturbing the Secretary's exercise of his discretion on this issue.

B. 30 C.F.R. § 823.11(a), support facilities

Industry challenges the current version of 30 C.F.R. § 823.11(a). In 1983, the Secretary proposed to exempt certain support facilities from the Act's standards for restoring and reconstructing prime farmland, in particular the requirement to segregate and store soils.²⁵ As proposed, the rule stated:

The requirements of this part [concerning special performance standards for mine operations on prime farmland] shall not apply to

(a) Coal preparation plants, support facilities, and roads of surface and underground mines that are not actively used over extended periods of time and where such uses affect a minimal amount of land . . . .

30 C.F.R. § 823.11(a) (as proposed in 48 Fed. Reg. 21446, 21463 (May 12, 1983).

In an earlier round of litigation, the Court had indicated to the Secretary that it would be appropriate to exempt such plants, facilities, and roads when underground mining was involved. See PSMRL I, Round II, __ Env't Rep. Cas. 1477, 1481 (D.D.C. 1980). The basis for the exemption for underground mines is that their facilities typically cause less disturbance to surface lands than do those of surface mining operations. Additionally, underground mine facilities on the surface often exist for 20-40 years, and storing the soils underneath them for so long is impractical.

As can be seen, the Secretary in 1983 extended the exemption so that neither underground nor surface mine plants, facilities, and roads had to meet the prime farmland performance standards. NWF challenged the rule, and the Court remanded it to the Secretary. PSMRL II, Round II, 21 Env't Rep. Cas. at 1734-35. In essence, the Court continued to find the exemption appropriate for underground mines, but ruled that the Secretary had failed to explain why it should extend to surface mine support facilities. Generally, the Court found that the Secretary had not adequately taken into account the differences between underground and surface mines when exempting both of their facilities from the prime farmland rules.²⁶

The Court of Appeals affirmed the ruling. NWF v. Hodel, 839 F.2d at 722-23. It added, "[t]he District Court, we reiterate, remanded § 823.11(a) because 'the Secretary's reasoning [was] flawed.' . . . The district court did not rule that the requirements of [the statutory performance standards for prime farmland] are nonwaivable even as to soil under support facilities for surface mines, nor do we."

Id. The Court added in a footnote:

[The Act's statutory performance standard for prime farmland], we note, governs prime farmland "to be mined"; reclamation, . . . it appears . . ., might be best achieved for non-mined prime farmland without the removal and segrega- [21 ELR 20137] tion of subsoils described [in the statutory performance standard].

Id. at n.36.

In response to the Court's remand, the Secretary revoked the exemption for facilities associated with surface mines. 50 Fed. Reg. 7274, 7277 (February 21, 1985). Although he thought about revising the exemption for underground mines, he eventually decided this was impractical.²⁷ Ultimately, he retained the existing 1983 § 823.11(a), as modified by suspending its application to surface mines. 53 Fed. Reg. 40828, 40835 (October 18, 1988). In the developments after the Court's remand, the Secretary has not referred to the former exemption for surface mining support facilities, except to state that it has been suspended in response to the Court's ruling.

2a.

Industry now challenges the decision to drop the exemption for surface mining support facilities on prime farmland. In industry's view, "The Act requires the segregation and preservation of topsoil and substrata only for prime farmlands 'to be mined and reclaimed' — not for farmlands occupied by support facilities . . . . Congress created the exemption by excluding non-mined farmland soils from § 515(b)(7)'s mandate, and it is the Secretary's duty to implement that mandate." Industry's Mem. in Supp. at 11, citing SMCRA § 515(b)(7), 30 U.S.C.A. § 1265(b)(7). Industry argues that the Secretary must exempt facilities supporting surface mines, and the current rule should be remanded because it lacks such an exemption.

Industry further contends that the Secretary has failed to carry out the Court's directive on remand. According to industry, the Court remanded the rule only so that the Secretary could bolster his reasoning in support of the exemption. In this view, this Court and the Appeals Court endorsed the exemption, but thought the explanation illogical. Therefore, the Secretary did not properly comply with the Court's ruling when he abandoned the exemption rather than explaining it more fully.

In response, the Secretary argues that the Court did not require him to maintain the exemption for surface mining support facilities. Instead, the Secretary contends, the Court required him to provide a more cogent explanation only if he kept the exemption. Having abandoned the exemption, the Secretary seems to argue, he is not required to provide further explanation.

[Industry] claims that the Secretary's "failure" to supply such an explanation provides sufficient reason for this court to set aside the regulations. [Industry] does not claim that the Secretary had to provide a support facilities exemption for surface mines . . . Once the Secretary suspended the exemption as it applied to surface mining operations, he no longer had to explain why two dissimilar types of mining were receiving a similar exemption. Rather, it was only necessary that he explain the action that he took, which he did.

Fed. Defts' Mem. in Opp. at 30.

For the Court to be able to grant industry any relief, it would have to go back to its previous opinion and read that opinion to state that the Act requires an exemption for support facilities of surface mines. This Court never said, and, indeed, the thrust of its earlier opinion is skepticism about such an exemption. The Court did not rule out creating such an exemption, but found the explanation insufficient. The Secretary reacted by suspending the exemption. Plainly, this carried out the effect of the Court's order. It was within the Secretary's discretion not to try again to develop an exemption or an explanation for it. Having directed the Secretary to suspend or explain his rule, the Court is without authority to order the Secretary to choose to explain the rule, rather than simply suspending it. As a result, the Court must accept what the Secretary has done.

III. Water Impoundments, general background²⁸

NWF brings three separate challenges to rules on this issue. The Court will deny the first, and dismiss the second two as moot.

At the outset, the Court notes that this issue involves the interplay of three laws and three federal agencies charged with writing regulations to carry out those laws. Each of the laws governs water impoundments, but with different goals in mind. In addition to (1) SMCRA, the laws are (2) the Watershed Protection and Flood Prevention Act and rules issued under it by the U.S. Soil Conservation Service (SCS), a part of the U.S. Department of Agriculture; and, (3) the Federal Mine Safety and Health Act, and rules issued under it by the Mine Safety and Health Administration (MSHA), a part of the Department of Labor.

The statutory language of SMCRA dealing with impoundments refers directly to the watershed and flood act and indirectly to SCS rules on impoundments that implement the watershed and flood law. The SMCRA rules being challenged here refer to MSHA rules on impoundments. Earlier SMCRA rules referred to both the SCS and the MSHA rules.²⁹

SMCRA sets forth performance standards for surface mining operations with respect to water impoundments. SMCRA § 515(b)(8), 30 U.S.C.A. § 1265(b)(8), states that a surface mine operator may:

create, if authorized in the approved mining and reclamation plan and permit, permanent impoundments of water on mining sites as part of reclamation activities only when it is adequately demonstrated that —

. . .

(B) the impoundment dam construction will be so designed as to achieve necessary stability with an adequate margin of safety compatible with that of structures constructed under Public Law 83-566 (16 U.S.C. 1006) . . .

The cited law is the watershed and flood law, administered through SCS. SCS has adopted technical standards governing the design and construction of impoundments. As relevant here, SCS has two different standards for design and construction of impoundment-like bodies. The stricter appears in Technical Release (TR) 60 "Earth, Dams, and Reservoirs," while the less strict standards are in TR 378 "Ponds."

The Secretary has fleshed out SMCRA's § 515(b)(8) with detailed regulatory rules appearing at 30 C.F.R. §§ 816.49 and 817.49.³⁰ These regulations refer to and incorporate another rule, 30 C.F.R. § 77.216(a). This is not a SMCRA rule, but one issued by MSHA under the mine safety and health law.³¹

MSHA rule § 77.216 regulates impoundment structures if they meet certain criteria of size or potential danger to miners.³² The [21 ELR 20138] rule regulates any impoundment that (a) impounds water or other materials to a height of five feet and stores a volume of 20 acre-feet; or, (b) impounds water or other materials to a height of 20 feet; or (c) is found to pose a hazard to miners. SMCRA rule § 816.49 imposes stricter performance standards on an impoundment if it would be regulated by MSHA, and looser standards if the impoundment would not be regulated by MSHA.

A. 30 C.F.R. § 816.49(a)(3)(i), stability of impoundments

This rule governs how stable an impoundment must be. As now written, it requires an impoundment to meet a higher standard of stability if it would be regulated under MSHA rule § 77.216(a), or if it is located where its "failure would be expected to cause loss of life or serious property damage."³³ Any other impoundment need only meet a lesser standard of stability.³⁴

The SCS regime referred to in SMCRA § 515(b)(8) classifies impoundments in part based upon their size. Regardless of its size, however, SCS also classifies impoundments based upon the degree of danger posed if an impoundment fails, which is akin to a dam bursting and flooding the surrounding area. As both NWF and the Secretary agree, SCS requires that the following two classes of dams must meet the stricter TR 60 standards:

Class (b) — Dams located in predominantly rural or agricultural areas where failure may damage isolated homes, main highways or minor railroads or cause interruption of use or service of relatively important public utilities.

Class (c) — Dams located where failure may cause loss of life, serious property damage to homes, industrial or commercial buildings, important public utilities, main highways, or railroads.

NWF's Mem. in Supp. at 40; Fed. Defts' Mem. in Opp. at 85-86, n.50 (quoting TR 60 at p. 1-1).

2a.

According to NWF, the Secretary's scheme based upon MSHA does not live up to the mandate in SMCRA § 515(b)(8)(B), because it is not as strict as the SCS regime. In NWF's view, 30 C.F.R. § 816.49(a)(3)(i)'s phrase "failure would be expected to cause loss of life or serious property damage" does not cover SCS' class (b) dams "located in predominantly rural or agricultural areas where failure may damage isolated homes, main highways or minor railroads or cause interruption of use or service of relatively important public utilities." Because it does not, NWF argues, the Secretary has not met SMCRA's mandate to make sure that impoundments are as safe as those constructed under the watershed and flood law.

The Secretary has a short, simple answer. He responds that the preamble announcing the current version of § 816.49(a)(3)(i) states that the Secretary:

has adopted a rule that is based on the size and hazard distinctions established by the SCS, yet incorporates this more stringent MSHA criteria . . . . [The Secretary] interprets the phrase "loss of life of serious property damage" in [§ 816.49(a)(3)(i)] to mean loss or damage of the same magnitude as recognized by the SCS in applying its standards . . . .

53 Fed. Reg. 43584, 43589 (October 27, 1988).

According to the Secretary, the SCS standards referred to in the preamble are the SCS class (b) and (c) dams, whose descriptions are quoted verbatim several paragraphs earlier in the preamble. In short, the Secretary argues that he has stated specifically and clearly that § 816.49(a)(3)(i) covers all SCS (b) and (c) dams. Indeed, in the Secretary's view, he has provided greater protection in this rule than does SCS, because he mandated the stricter design standard when an impoundment meets either SCS's qualitative standard for (b) and (c) dams or the MSHA's size standard, which covers more impoundments than does the SCS's looser size standard.

Upon first review of NWF's argument, the Court feared that perhaps it had missed something or misapprehended the argument. But, further careful study confirms that NWF's position is frivolous. The entire issue comes down to: NWF says the rule doesn't take in class (b) dams; the Secretary answers that it does, and this has been stated in the public record. In the Court's reading of the record, NWF is incorrect.

The record shows that the Secretary clearly stated in the preamble that the phrase "loss of life or serious property damage" means the harm "recognized by the SCS in applying its standards (see above)." In context, the only thing above that this can possibly mean is the text of the class (c) and (b) dam standards, which were both quoted in the immediately preceding column. Thus, the Secretary stated that § 816.49(a)(3)(i) takes in everything described in SCS' class (b) "dams located in predominantly rural or agricultural areas where failure may damage isolated homes, main highways or minor railroads or cause interruption of use or service of relatively important public utilities." Taking the public record on its face, it is unclear why this matter remains before the Court.³⁵

B. 30 C.F.R. § 816.49(c)(2) and 30 C.F.R. § 816.49(a)(8), storage-based temporary impoundments and spillways of permanent impoundment structures

In response to NWF's challenges of these rules, the Secretary stated: "Upon careful review of the regulations, the Secretary has decided to revisit the issues . . . . Therefore, the Secretary will propose rulemaking as expeditiously as possible . . . ." Fed. Deft's Mem. in Opp. at 87-88.³⁶

Nevertheless, NWF continues to push forward its challenge to the old rules, asking the Court to remand them to the Secretary and direct him to adopt NWF's position. As the Court has stated before, it has enough live issues before it that it need not add some dead, or at least dying ones to its agenda. In any event, the Court finds that there is no longer a case or controversy before it. This challenge is dismissed as moot.

VII. Postmining Roads

Coal mine operators often build their own roads into and through the site of their mining activities. Recognizing that such [21 ELR 20139] roads can harm the environment, Congress wrote two performance standards governing their construction and maintenance. The Secretary has fleshed out these standards further. To this end, he has classified roads into two broad types. Industry objects to this scheme as irrational. The Secretary also requires that roads be built to mitigate adverse affects [sic] on lands that the Act declares unsuited to mining. Industry argues that this rule improperly grafts the requirements of one SMCRA section on to another unrelated section. Finding these challenges to be without merit, the Court will rule in favor of the Secretary on both.

A. 30 C.F.R. §§ 816.150(a)(2)(ii) and 817.150(a)(2)(iii), postmining roads as primary roads

The Act's performance standards for roads state that a surface mine operator must:

(17) insure that the construction, maintenance, and postmining conditions of access roads into and across the site of operations will control or prevent erosion and siltation, pollution of water, damage to fish or wildlife or their habitat, or public or private property;

SMCRA §§ 515(b)(17), 30 U.S.C.A. §§ 1265(b)(17).³⁷

The Secretary has written detailed regulations that amplify this statutory command. The ones relevant to this case appear at 30 C.F.R. §§ 816.150 and 816.151 and 30 C.F.R. §§ 817.150 and 817.151.³⁸ Section 816.150 divides all roads into either primary and ancillary ones. 30 C.F.R. § 816.150(a) (1989). The rest of the rule states the performance standard that all roads must meet, whether primary or ancillary. The next rule, § 816.151 adds further standards for primary roads.

A primary road is defined as any road that is:

(i) Used for transporting coal or spoil;

(ii) Frequently used for access or other purposes for a period in excess of six months; or

(iii) To be retained for an approved postmining use.

30 C.F.R. § 816.150(a)(2).

The regulation then adds that any road that is not a primary road is an ancillary road. A registered professional engineer must certify that primary roads have been built as designed and in keeping with the plan for mining and reclamation. Primary roads must be built to meet certain higher safety factors, and must have drainage control. These enhanced design standards generally do not apply to ancillary roads.

2a.

Industry attacks this scheme as irrational because it defines as a primary road any one that will be kept as a road after mining is finished. According to industry, the Secretary explained his rule by stating that he decided to classify roads based upon their purpose and amount of traffic, because this enables him to regulate roads depending upon how much they can harm the environment. Industry contends, however, that "the blanket inclusion, within the primary roads category, of all the roads to be retained for an approved postmining land use . . . bears no rational relation to the Secretary's avowed purpose . . . ." Industry's Mem. in Supp. at 13. "[A] road that otherwise would have been classified as ancillary because of its minimal effect on the environment during mining would become a primary road . . . merely because an operator chooses to retain the road after mining is completed." Id. at 13-14 (emphasis in original).

Industry argues that the higher standards for designing and constructing a primary road "would not necessarily enhance environmental protection, and may well have the opposite effect." Id. at 14. For example, industry points out that a road that will have little use during and after mining must still be built to primary road standards. These require that the road be built on the "most stable available surface." Id., citing a primary road design standard in 30 C.F.R. § 816.151(c) (1989). The consequence is that to find the most stable available surface, operators might have to build the road through an area that otherwise would not have been disturbed.

As another example of the irrational results of the rule, industry points to a road that an operator intends to be a primary road to haul coal during mining and only private access to a home after mining. "[I]ts retention of 'primary' status merely because it had a postmining use could cause needless expense to the permittee and adverse effects on the environment, even though the nature and frequency of its use after the completion of mining operations were substantially lessened. The regulation under these circumstances could actually deter reclamation that might otherwise occur." Id. at 15. Industry similarly argues that it makes no sense to build a road to primary standards when the operator plans only to use it for ancillary purposes during mining, and there will be no greater use after mining. "[T]he Secretary has offered no explanation of why the general performance standards, which were sufficient to ensure environmental protection during the mining operation, would not be sufficient during postmining use as well." Id. at 16.

Industry also impeaches the Secretary's authority to consider the road's postmining use. "Moreover, as the Secretary seems to recognize, the purpose of the Act is to protect the environment from the adverse effects of surface mining; where only the postmining use of the land is of concern, the Secretary lacks authority to regulate it." Id. Rather than requiring any road with a postmining use to be built to primary standards, industry suggests that the Secretary mandate the tougher standards only for roads whose postmining use could harm the environment. "It would be the height of illogic and environmentally harmful to require all ancillary roads [sic] which are to be left after mining to be built to meet primary road standards merely because a few should be." Id.

The Secretary responds that he addressed industry's complaints in the preamble, when he stated that

after final bond release, protection from the future environmental consequences of road use and maintenance under the Act ceases. The operator has no responsibility for subsequent adverse environmental impacts related to the road's use and maintenance. In order to provide a reasonable assurance of environmental protection after the site has been reclaimed and in the absence of the operator, [the Secretary] believes that postmining roads must be designed and constructed in compliance with the more stringent primary road standards.

Fed. Defts' Mem. in Opp. at 122 (quoting 53 Fed. Reg. 45200 (November 8, 1988)) (emphasis in Secretary's brief).

In the Secretary's view, any road that will not be used as a road after mining will pose no harm to the environment because it will be reclaimed to what it was before mining. A road that will be used as such after mining poses a real threat to the environment if it is poorly designed and lightly built. "It is implausible to suggest that the environment will be worse off from the regulation when one considers the vast array of damage that poorly constructed unreclaimed roads have already caused and will continue to cause in the absence of the Secretary's regulation." Id. at 128.

The Secretary also challenges industry's argument that he has no authority to consider what a road will be used for after mining. He points to the language of the statute, which states that an operator must "insure that the . . . postmining condition of access roads into and across the site of operations will control or prevent erosion and siltation, pollution of water, damage to . . . wildlife or . . . property." Id. at 123 (quoting SMCRA § 515(b)(17), 30 U.S.C.A. § 1265(b)(17)) (emphasis in Secretary's brief). In addition, [21 ELR 20140] the Secretary cites extensively to the legislative history of this part of the Act to underscore the importance that Congress attached to seeing that roads built for mining are not allowed to harm the environment. He further points to comments in the administrative record that endorsed higher design standards for ancillary roads to support the view that making a postmining road a primary road is reasonable.

The Court rejects industry's challenge for two simple reasons. First, as the Secretary points out, the Act language on the performance standard for roads is written in the broadest terms. It includes a specific reference to the "postmining conditions of access roads into and across the site of operations" which must control or prevent a number of different harms to the environment. To suggest that the Secretary overreached when he specified higher design standards for any road that will be retained after mining is to ignore the plainest of language in the statute. If there were any doubt that the statute authorizes such a rule — indeed, practically commands it — the legislative history would obliterate it. Congress noted:

The access and haul roads . . . are a major source of siltation during and after mining. Present practice . . . is simply to abandon such roads upon completion of mining . . . . In fact, however, there may be little continuing social or economic value for such access to remain . . . .

In order to overcome the continuing and long-standing environmental problems these roads present, the committee specifies in the bill that roads are to be designed and constructed with appropriate limits . . . Such design and construction features are especially critical if roads are part of a long-term postmining intensive land-use development . . . .

H.R. Rep. No. 95-218, 95th Cong., 1st Sess. 128, reprinted in 1977 U.S. Code Cong. & Admin. News 593, 660 (emphasis supplied).

After citation to the language of the statute and the committee report, more discussion of why the Secretary's rule is not contrary to the Act verges on the superfluous. But, the Court further recognizes that the Secretary has put forth strong reasons for his rule. He notes that his experience shows that unless a road that will remain after mining is built to higher standards, it quickly deteriorates. In the Secretary's view, such a road may cause harm to the environment, even when little used. Such a view also squares with what Congress found. The Secretary's gives operators a choice: either reclaim the road, or build it to last without harming the environment. Although it may be possible to conceive of an instance when this may not strictly be necessary, it is clear that the benefits of the rule overall subsume the detriment of extra cost incurred for occasional, isolated exceptions. The Secretary's rule is well-grounded in the Act and legislative history; he has explained his reasoning particularly well. He need do no more. The Court has no difficulty at all in upholding this regulation.

B. 30 C.F.R. §§ 816.150(b)(6) and 817.150(b)(6), preventing or mitigating adverse effects on lands designated as unsuited to mining

The challenged rules state:

(b) Performance standards. Each road shall be located, designed, constructed, reconstructed, used, maintained, and reclaimed so as to:

. . .

(6) Prevent or control damage to public or private property, including the prevention or mitigation of adverse effects on land within the boundaries of the National Park system, the National Wildlife Refuge System, the National System of Trails, the National Wilderness Preservation System, the Wild and Scenic Rivers System, including designated study rivers, and National Recreation Areas designated by Act of Congress . . . .

30 C.F.R. §§ 816.150(b) and 817.150(b)(6) (1989).

This list of areas where operators must prevent or mitigate harmful effects on land is drawn from SMCRA § 522(e)(1), 30 U.S.C.A. § 1272(e)(1). That part of the Act designates certain lands to be unsuitable for coal mining operations, and forbids granting mining permits for operations on these lands after the date of the Act.³⁹ As such, the rule covers roads for mine operations exempted from this part of the Act, as well as roads outside these areas but which could affect them. The Secretary notes that this standard is not subject to the valid existing rights of operators because it covers activities that are allowed, rather than operations that are banned. See 52 Fed. Reg. 42258, 42262 (November 3, 1987) (proposing rules on performance standards for mining roads).

2a.

The gist of industry's argument is that "Congress did not intend to prohibit all 'adverse effects' when it designated specific areas as unsuitable for surface coal mining." Industry's Mem. in Supp. at 18. According to industry, "[n]othing in the Act or the legislative history suggests that Congress intended to single these areas out for special treatment in respects other than as unsuitable for mining, such as by imposing more stringent performance standards with respect to them than with respect to public or private property generally." Id. at 19.

Industry contends that the Secretary may not impose higher performance standards for roads that might affect these areas because Congress went as far as it intended to in protecting these lands by designating them as unsuitable for mining, subject to valid existing rights. "In reality . . . the regulation squarely conflicts with the intent of Congress as to these areas. Where Congress intended to restrict surface coal mining operations like roads, which were outside of but might adversely affect areas protected under § 522(e), it said so." Id. at 21, citing § 522(e)(3), which prohibits mining that could "adversely affect any publicly owned park or places included in the National Register of Historic Sites.["] Industry adds, "[t]he precisely stated purpose for which Congress created the list [of areas unsuited for mining], coupled with Congress' silence as to the list elsewhere in the Act . . . demonstrates that Congress meant to limit the use of the listing to a designation of lands unsuitable for mining, and not for transposition to a wholly different portion of the Act." Id.

Industry's next argument for striking down the rule is that the language of SMCRA's performance standard on roads grants the Secretary the power only to write regulations that "prevent and control 'damage,' not 'adverse effects.'" Id. at 22. "[T]he Secretary's rule alters the statutory standard to the seemingly sweeping but otherwise undefined threshold of preventing 'adverse effects.' . . . Whatever this standard means . . . it hardly comports with the settled doctrine of administrative law that the starting point for interpreting and implementing a statute is the express language of the statute." Id. at 22-23.

Reiterating arguments he made in the preamble to this rule, the Secretary states that coal mining operations located close to these special areas can adversely affect them. "Since these areas received particular attention from Congress in SMCRA as potentially unsuitable for surface mining, the Secretary decided that roads adjacent to these areas should not cause environmental harm, either." Fed. Defts' Mem. in Supp. at 129. According to the Secretary, "[s]upport for this approach is in [the statutory performance standard for mining roads] where Congress instructed the Secretary to 'insure' that roads 'control or prevent erosion and siltation, pollution of water, damage to fish or wildlife or their habitat, or public or private property.'" Id. at 130 (quoting 30 U.S.C.A. § 1265(b)(17)) (emphasis in brief). The Secretary further contends that "[t]he addition of the phrase, 'mitigation of adverse effects,' in the rule is consistent with the . . . explanation in the preamble that, 'where it is appropriate to "flesh out" portions of the Act in the implementing regulations, OSMRE has not hesitated to do so.'" Id. at 130 (quoting 53 Fed. Reg. 45190, 45201). According to the Secretary, he has taken a reasonable approach reflecting concerns that Congress expressed in writing SMCRA.

The Court again finds industry's argument unpersuasive. It is [21 ELR 20141] hardly arbitrary or irrational to take the command that roads should be prevented from harming public property and apply it specifically to land that the Act singles out for special protection from coal mining operations. Stripped of legal jargon, that is all that the Secretary did in this rule. The general performance standard for roads applies to all mining operations. The list of special kinds of land where mining is unsuitable establishes this property as requiring extra protection. The Secretary should not be faulted for reasoning that land needing extra care should not be faulted for reasoning that land needing extra care should be specifically protected from the harm that roads may cause. In this regard, the Secretary's rule is again well-grounded in the provisions of the Act, is entirely consistent with the goals expressed in the Act, and has been satisfactorily explained. The burden is on industry to show that the rule violates the law or is arbitrary. Plaintiffs here have not even begun to lift that burden, much less shoulder and carry it. Industry's challenge must be denied, and the Secretary's thoughtful exercise of his discretion upheld.

VIII. Probable Hydrologic Consequences, 30 C.F.R. §§ 780.21 and 784.14

NWF attacks a rule requiring operators to discuss in their application for a permit what their operations will do to the ground and surface systems in the area to be mined. NWF thinks the discussion should cover a longer period than the life of the permit. This is a particularly complex area. As such the Secretary's interpretation of the Act's requirements is entitled to great deference. Reaffirming an earlier decision that this rule does not violate the Act, the Court finds further that the Secretary's explanation meets the requirements of the law. Therefore, the Court will deny NWF's challenge.

Hydrology is the science "dealing with the properties, distribution, and circulation of water on the surface of the land, [and] in the soil and underlying rocks . . ." Webster's Seventh New Collegiate Dictionary 407 (1970). Congress was greatly concerned about how surface mining can change an area's hydrologic features. The House of Representatives Committee that considered the SMCRA bill devoted nearly seven pages to discussing hydrology and the Act's provisions dealing with the subject.⁴⁰ Congress further reflected its concern by including in the Act specific provisions on hydrology in the sections dealing with (1) applications for mining permits, SMCRA § 507(b)(11), 30 U.S.C.A. § 1257(b)(11), (2) the plan for reclaiming the mining area, SMCRA § 508(b)(13), 30 U.S.C.A. § 1258(b)(13), and (3) the performance standards, SMCRA § 515(b)(10), 30 U.S.C.A. § 1265(b)(10) (surface mining) and SMCRA § 516(b)(9), 30 U.S.C.A. § 1266(b)(9) (underground mining).

SMCRA's § 507(b)(11) dealing with information to be included in the application for a permit states that it must contain

(11) a determination of the probable hydrologic consequences of the mining and reclamation operations, both on and off the mine site . . . and the collection of sufficient data for the mine site and surrounding areas so that an assessment can be made by the regulatory authority of the probable cumulative impacts of all anticipated mining in the area upon the hydrology of the area . . . .

(Emphasis supplied.)

The Secretary's regulations implementing this statutory command appear at 30 C.F.R. §§ 780.21 (surface mining) and 784.14 (underground mining).⁴¹

To understand this issue, it is important to recognize that the rules require two things. First, the operator must state in the application for a permit the mining operation's probable hydrologic consequences, or PHC in SMCRA jargon. (This is what is referred to in the first group of underscored words in the statute above.) The PHC is to be determined for the proposed permit area and the area "adjacent" to it. This is sometimes referred to as a "life-of-the-permit" analysis. 30 C.F.R. §§ 780.21(f) and 784.14(e). Second, the regulatory authority must draw up a cumulative hydrologic impact assessment, or CHIA in SMCRA jargon. (This is what is referred to in the second group of underscored words in the statute above.) The regulatory authority must prepare the CHIA for "the proposed operation and all anticipated mining . . . in the cumulative impact area." 30 C.F.R. §§ 780.21(g) and 784.14(f). This is known as a "life-of-the-mine" analysis.

The gist of the environmentalists complaint is that they think that the operator should be required to determine the PHC on a "life-of-the-mine" basis, just as the regulatory authority must do the CHIA on a life-of-the-mine basis.⁴² Their main argument is that the regulatory authority can hardly do the statutorily required CHIA, which must be on a life of the mine basis, if the operator only supplies the PHC on a life of the permit basis. They also read the statute to require a "life-of-the-mine" PHC.

This exact matter has been before the Court once before in PSMRL II, Round III, 620 F. Supp. 1519, 1528-30 (D.D.C. 1985). Indeed, the regulation before the Court is the same one that was at issue in that earlier case. In that opinion, the Court found the statute could be read to support either a life-of-the-permit or a life-of-the-mine PHC. But, the Court further found that the Secretary had not explained why the life-of-the-mine analysis should be in the CHIA, rather than the PHC. Id. at 1530. The Court remanded the PHC rules (§§ 780(f) and 784(e)) back to the Secretary to supply the missing explanation.

Upon remand, two years, one month, and 13 days later, the Secretary reproposed the exact same rule. See 52 Fed. Reg. 32764 (August 28, 1987). On September 19, 1988, the Secretary made these rules final without change. 53 Fed. Reg. 36394.⁴³

2a.

Given that the rule has not changed, it is unsurprising that the essence of NWF's argument against it has not changed. It still contends that the PHC must be determined for the life of the mine, largely because the regulatory authority cannot write a CHIA unless the PHC focuses on this period. In NWF's view, failing to determine the PHC for the life of the mine leaves a "gap" in the information available to the regulatory authority, a gap fatal to assessing properly the cumulative hydrologic impacts of all mining anticipated. As a result, the regulatory authority is unable to carry out its statutory mission of preparing a CHIA, and the limitation on the scope of the PHC thus is contrary to the Act.

The Secretary contends that he has successfully explained why it is not practical nor useful to have the PHC done on a life-of-the-mine basis and how the regulatory authority can write the CHIA on a life-of-the-mine basis anyway. First, the Secretary notes that the Court earlier found that the rule was not inconsistent with the Act. The Secretary then adds that he has stated that the

The PHC determination is not limited to activities conducted during the permit term, but includes hydrologic impacts both on and off the site of all proposed operations that would be authorized under the permit, irrespective of whether or not they would be conducted during the permit term.

Fed. Defts' Mem. in Supp. at 122 (quoting 53 Fed. Reg. 36394, 36396 (November 8, 1988)).

The Secretary also contends that his rules at 30 C.F.R. §§ 780(21)(g) and 784.21(f) explain how the regulatory authority is to perform the CHIA. He adds that these are not challenged here. In this regard, the Secretary points out that, at its option, the operator may submit additional data to assist the regulatory authority [21 ELR 20142] in drawing up the CHIA. Implicit in this suggestion is the view that the operator almost has to submit such data, because if the regulatory authority cannot put together a CHIA, it may not issue a permit. See SMCRA § 507(b)(11), 30 U.S.C.A. § 1257(b)(11) (CHIA not required until hydrologic information made available by federal or state agency, but permit shall not be approved until information available and incorporated into the application) (See NWF v. Hodel, 839 F.2d at 758, construing statute in this manner.)

According to the Secretary, he advanced "sound technical reasons for including the analysis for future permit expansions in the CHIA rather than in the PHC and limiting the PHC determination to the permit and adjacent areas." Id. at 114, citing the preamble to this rule. These preamble reasons appear to be the following:

(1) A particular PHC has findings relating only to the specific site to be mined. A mine's probable consequences on the area's hydrology depend on what impoundments, drainways, and structures to control silting will be built and where they will be located. The information about where which of these will be built comes from the reclamation plan.

(2) The reclamation plan only covers the operator's activities to be undertaken in connection with a specific permit;

(3) Because the reclamation plan only discusses actions to be taken under the one permit, it does not and need not contain information about where and what impoundments and drainways will be built for operations not covered by the specific permit.

(4) Unless this information about impoundments and other structures is available, probable hydrologic consequence of mining is mere guesswork with no hard foundation.

In this regard, the Secretary contends that it makes no sense to try to develop PHC, based upon location of structures, for longer than the period of the permit because the operator does not know where or when it will build these structures at a time "years before anyone applies for . . . a permit. In fact, the anticipated mining may never occur due to economic realities." Id. at 115.

The Secretary also argues that determining the PHC for a period beyond the permit, that is, for the life of the mine, might

mask or fail to bring into focus adverse impacts which are local in nature. Such localized hydrologic problems are . . . likely to come to the attention of the permit applicant and the regulatory authority when the unit of analysis for the PHC determination is the permit andadjacent areas, and review is limited to the mining activities described in the permit and covered by the reclamation.

Id. at 115 (quoting 53 Fed. Reg. 36394, 36397).

What the Secretary seems to be saying is that if the PHC is done for a life-of-the-mine period, the regulatory authority will not be able to see the trees for the forest. In the Secretary's view, the Act requires the regulatory authority to protect both the individual trees and the whole forest. The regulatory authority gets a view of the trees from the PHC and it looks at the forest when it develops the CHIA. If the regulatory authority looks only at the forest, then it will not be able to protect the trees. Consequently, for the PHC to protect the trees, it must focus on them, that is on the period of the permit, and not the life of the mine.

Despite its lack of technical knowledge, the Court has reviewed the Secretary's arguments in favor of his rule closely. Although the Court cannot assert of its own knowledge that the arguments correctly state the facts, they appear to be logically consistent and valid. It should be noted that the Court is not supposed to substitute its technical expertise, if any it had, in favor of the Secretary's analysis. On a highly technical issue, the Court's job is to make sure that the Secretary's reasons for his choice are not obviously flawed or clearly illogical. The Court cannot convene a legislative or administrative hearing and sort through the experts on all sides. This, in essence, is what NWF would have the Court do on this question.

The Court accepts at face value the following two propositions: (1) PHCs are hard to predict when it is unclear what structures will be built as part of mining, so PHCs are of little use until an operator has planned to the level of detail that would show what structures will be built; (2) PHCs better reflect localized impacts that [sic] does the CHIA, and because it is important to know such specific effects, the requirements of the PHC report should provide that level of detail. These appear to be the Secretary's two main contentions, the latter being another effort to state the "trees for the forest" concept.

Neither of these arguments strikes the Court as having some innate flaw. Indeed, they seem quite sensible, once the assumptions built into them are accepted. The Court necessarily has to defer to the Secretary's technical expertise and accept the underlying assumptions. Having done so, the Court finds that the Secretary has offered rational explanations for why he chose to limit the discussion of PHC to the life of the mine. Therefore, the Court must reject NWF's challenge and uphold the rule.

IX. Conclusion

In summary, the Court makes the following rulings:

(1) the regulations at 30 C.F.R. § 700.11(d) on termination of jurisdiction are contrary to the Act and must be remanded to the Secretary to be withdrawn or revised; (2) the regulations at 30 C.F.R. §§ 840.11(g) and 840.11(h) (1989), and 30 C.F.R. §§ 842.11(e) and 842.11(f) (1989) on inspection of abandoned mine sites are contrary to the Act and must be remanded to the Secretary to be withdrawn or revised; (3) the Secretary's explanation of his regulations at 30 C.F.R. §§ 785.21 and 827.1 is contrary to the Act insofar as it makes proximity to a mine site the limiting factor in deciding whether to regulate an off-site coal processing facility, and the matter is remanded to the Secretary for further action consistent with this opinion; (4) insofar as they have been challenged by plaintiff Black Gold Sales, Inc., the regulations on off-site coal processing plants are not arbitrary, capricious, or otherwise inconsistent with law and have been promulgated lawfully; (5) the regulations on impoundments on prime farmland at 30 C.F.R. § 785.17(e)(5) are not arbitrary, capricious, or otherwise inconsistent with law and were promulgated lawfully; (6) the Secretary's decision to suspend regulations on support facilities associated with surface mines on prime farmland at 30 C.F.R. § 823.11(a) was not arbitrary, capricious, or otherwise inconsistent with law; (6) the regulations at 30 C.F.R. § 816.49(a)(3)(i) on stability of impoundments are not arbitrary, capricious, or otherwise inconsistent with law and have been promulgated lawfully; (7) the environmentalists' challenge to rules at 30 C.F.R. § 816.49(c)(2) and 30 C.F.R. § 816.49(a)(8) on storage-based temporary impoundments and spillways of permanent impoundment structures is dismissed as moot; (8) the regulations at 30 C.F.R. §§ 816.150(a)(2)(ii) and 817.150(a)(2)(iii), designating all postmining roads as primary roads, and at 30 C.F.R. §§ 816.150(b)(6) and 817.150(b)(6), preventing or mitigating adverse effects on lands designated as unsuited to mining are not arbitrary, capricious, or otherwise inconsistent with law and have been promulgated lawfully; and (9) the regulations at 30 C.F.R. §§ 780.21 and 784.14 on probable hydrologic consequences are not arbitrary, capricious, or otherwise inconsistent with law and have been promulgated lawfully.

In accordance with the foregoing, the respective cross-motions for summary judgments are granted in part and denied in part. An appropriate order accompanies this opinion.

Judgment and Order

This matter came before the Court on cross-motions for summary judgment. After consideration of the motions, the memoranda of points and authorities in support thereof, the memoranda in opposition thereto, the memoranda in reply, the entire record herein, and for the reasons stated in the accompanying memorandum opinion filed this date, it is by the Court this 30th day of August

ORDERED that the following matters are remanded to the Secretary for further action in accordance with this opinion: 30 C.F.R. § 700.11(d) on termination of jurisdiction; 30 C.F.R. §§ 840.11(g) and 840.11(h) and 30 C.F.R. §§ 842.11(e) and 842.11(f) (1989) on inspection of abandoned mine sites; and, the explanation of 30 C.F.R. §§ 785.21 and 827.1 insofar as it makes proximity to a mine site the limiting factor in deciding whether to regulate an off-site coal processing facility; and it is further

ORDERED that the challenges to the Secretary's rules at 30 C.F.R. § 816.49(c)(2) and 30 C.F.R. § 816.49(a)(8) on storage-based temporary impoundments and spillways of permanent impoundment structures are DISMISSED; and it is further

ORDERED, ADJUDGED, and DECREED that in all other respects, the motions of the federal defendants' and intervenor-defendants for summary judgment be, and the same hereby, are GRANTED; and it is further

ORDERED that this represents a final Judgment by this Court [21 ELR 20143] in the following cases: Civil Actions Nos. 88-2416, 88-3345, 88-3586, 88-3635, 89-0039, 89-0136, and 89-0141.

1. With one exception, the parties in this action are essentially the same as in NWF III, Rounds I and II, and for that matter, as in the three previous rounds of decisions issued during the past 12 years.

2. The Secretary published interim regulations under the Act in 1977, and this court ruled on challenges to them in two opinions, In re Surface Mining Regulation Litigation, 452 F. Supp. 327 [8 ELR 20407] (D.D.C. 1978) and In re Surface Mining Regulation Litigation, 456 F. Supp. 1301 (D.D.C. 1978). These opinions were affirmed in part and reversed in part by In re Surface Mining Reclamation Litigation, 627 F.2d 1346 [10 ELR 20465] (D.C. Cir. 1980).

In 1979, the Secretary published permanent program regulations. Industry and environmentalist groups challenged hundreds of aspects of these, which this court ruled on in three opinions, In re Permanent Surface Mining Regulation Litigation I, 13 Env't Rep. Cas. 1586 [9 ELR 20720] (D.D.C. 1979) (preliminary injunction); In re Permanent Surface Mining Regulation Litigation I, No. 79-1144, Mem. Op. (D.D.C. Feb. 26, 1980), 14 Env't Rep. Cas. 1083 [10 ELR 20208] ("PSMRL I, Round I"); and, In re Permanent Surface Mining Regulation Litigation I, No. 79-1144, Mem. Op. (D.D.C. May 16, 1980), 19 Env't Rep. Cas. 1477 ("PSMRL I, Round II"). One aspect of these was rejected on appeal. In re Permanent Surface Mining Regulation Litigation, 653 F.2d 514 [11 ELR 20941] (D.C. Cir.) (en banc), cert. denied, 454 U.S. 822 (1981).

By this time, a new Presidential Administration had taken office, and the Secretary of Interior, James Watt, decided to revamp the permanent regulations under SMCRA. As a result, the Court of Appeals remanded the entire matter back to the Secretary. Secretary Watt's program also saw extensive challenges, and the court ruled on these in In re Permanent Surface Mining Regulation Litigation II, Round I, No. 79-1144, Mem. Op. (D.D.C. July 6, 1984), 21 Env't Rep. Cas. 1193 [14 ELR 20617] ("PSMRL II, Round I"); In re Permanent Surface Mining Regulation Litigation II, Round II, No. 79-1144, Mem. Op. (D.D.C. Oct. 1, 1984), 21 Env't Rep. Cas. 1724 [15 ELR 20481] ("PSMRL II, Round II"); In re Permanent Surface Mining Regulation Litigation II, Round III-VER, No. 79-1144, Mem. Op. (D.D.C. Mar. 22, 1985), 22 Env't Rep. Cas. 1557 [15 ELR 20494] ("PSMRL II, Round III-VER"); and, In re Permanent Surface Mining Regulation Litigation II, Round III, 620 F. Supp. 1519 [16 ELR 20296] (D.D.C. 1985) ("PSMRL II, Round III"). While these were on appeal, the Court of Appeals remanded the case for this court to address questions of standing, which were decided in In re Permanent Surface Mining Regulation Litigation II No. 79-1144, Mem. Op. (D.D.C. Aug. 10, 1987). The Court of Appeals ultimately affirmed in part and reversed in part these five rulings in Nat'l Wildlife Fed'n v. Hodel, 839 F.2d 694 [18 ELR 20646] (D.C. Cir. 1988).

3. Some explanation follows here about the structure of SMCRA and its implementing regulations. See general discussion of the structure of SMCRA in In re Permanent Surface Mining Regulation Litigation (Peabody Coal), 653 F.2d 514, 516 [11 ELR 20941] (D.C. Cir. (en banc), cert. denied, 454 U.S. 822 (1981).

SMCRA is codified as Chapter 25, Surface Mining Control and Reclamation, of U.S.C.A. Title 30, Mineral Lands and Mining. The key part of the Act for this opinion is Subchapter V, Control of the Environmental Impacts of Surface Coal Mining. SMCRA §§ 501-529, 30 U.S.C.A. §§ 1251-1279. Certain important definitions appear in SMCRA § 701, 30 U.S.C.A. § 1291.

The corresponding regulations appear at Title 30 C.F.R., Mineral Resources, Chapter VII, Office of Surface Mining Reclamation and Enforcement, Department of Interior, Parts 700-955.

In establishing a comprehensive program to regulate surface mining, and the surface impacts of underground mining, Congress directed the Secretary of Interior to devise an "interim" program to regulate surface mining within 90 days from the date of the Act, August 3, 1977. SMCRA § 501(a), 30 U.S.C.A. § 1251(a). Congress directed the Secretary to put together a permanent regulatory program within a year from the date of the Act.

A key SMCRA feature was to create a "federalist" regulatory regime assigning certain roles to the federal government and others to state agencies. Principally, Congress gave to the Secretary of the Interior, through the Office of Surface Mining Reclamation and Enforcement (OSMRE), the power to set national standards for carrying out the Act. To accommodate the widely varying conditions of coal mining throughout the country, and particularly between the eastern and western parts of the U.S., Congress gave individual states the power, if they chose, to create state agencies charged with implementing the Act and enforcing it locally. Some states had already established their own entities to do this job under state law. These state agencies are referred to in the Act and rules as "regulatory authorities."

Under the interim program, the Secretary regulated mining operations directly, unless the state already had a regulatory program. Existing state programs had to comply with the Act's interim standards and rules for an interim program. The minimum statutory standards for the interim program are set forth in SMCRA § 502(c), 30 U.S.C.A. § 1252(c), referring to certain permanent standards set forth in § 515, 30 U.S.C.A. § 1265. The rules for the interim program are set out in Subchapter B of the SMCRA rules, 30 C.F.R. parts 710-725.

Congress set up the interim program both to give the Secretary time to devise a permanent program, and to enable states to set up their own program. The Act itself sets out detailed requirements for a full scheme of permanent regulation that the federal and all state programs must meet.

The statutory regulatory scheme contains four key features: first, anyone intending to conduct a surface coal mining operation must apply for and obtain a permit to do so. SMCRA § 507, 30 U.S.C.A. § 1257, SMCRA defines surface coal mining operations broadly. The definition goes beyond just the site of a strip mine. For example, it reaches activities such as underground mining with surface impacts and coal processing. In addition to covering activities, the definition encompasses the areas where those activities take place. SMCRA § 701(28), 30 U.S.C.A. § 1291(28). The Act requires anyone seeking a permit for any of these to submit a large amount of information in the application, including a detailed plan to reclaim the area of the mining operation. Requirements of the reclamation plan are spelled out at SMCRA § 508, 30 U.S.C.A. § 1258. The Secretary has fleshed out the statutory permit and reclamation plan requirements further in Subchapter G, Parts 773-785. The key rules are: 30 C.F.R. Parts 779 and 783, minimum requirements for information on environmental resources for surface and underground mining, respectively; Parts 780 and 784, minimum requirements for reclamation and operation plan for surface and underground mining, respectively; and Part 785, requirements for permits for special categories of mining, such as that done on farmland, mountaintops, and steep slopes, and for coal preparation plants not at a mine site.

Second, the Act also requires mine operators to post a bond or to indemnify the regulatory authority in the amount of the cost of reclaiming the operation to the full extent that SMCRA requires. SMCRA § 509, 30 U.S.C.A. § 1259. The bond must remain in place for the time necessary to reclaim the operation. The Secretary's rules on bonding requirements are at Subchapter J, Part 800.

Third, perhaps most important, the Act spells out highly detailed performance standards governing how the operation must be conducted and to what degree reclamation must take place. SMCRA § 515, 30 U.S.C.A. § 1265, contains 25 performance standards, many with several sub-parts, for surface mining operations generally, and others for special kinds of surface operations, such as steep-slope mining. Underground mining performance standards almost as numerous are spelled out at SMCRA § 516, 30 U.S.C.A. § 1266. The Secretary has fleshed these out in Subchapter K, Parts 800-828. Probably the two most important are Parts 816 and 817, governing surface and underground mining, respectively. Other standards cover auger mining, mining in alluvial valley floors, and mining on prime farmland.

Fourth, the Act gives the Secretary and state regulatory authorities the power to enforce the Act's provisions through inspections and orders to cease operations. SMCRA § 521, 30 U.S.C.A. § 1271.

At the conclusion of the interim or initial program, as noted, states had the option of submitting their own programs to the Secretary to be implemented in lieu of the permanent program of direct federal regulation. SMCRA requires the Secretary to approve these programs before they may replace the federal effort. While the state programs may differ from the federal one, the Secretary may not approve a state program unless he determines that the state effort meets all of the federal minimum standards. SMCRA §§ 503, 30 U.S.C.A. § 1253. The rules for various individual state programs are contained at Parts 901-950. Some 35 states have their own programs. In the other states, and on certain federal lands, the direct federal permanent program is in effect.

Even when a state has its own program, the Secretary retains the power to oversee the program, to approve amendments, to carry out his own enforcement in certain instances, and ultimately to "seize" or federalize a state program and resume a direct regulatory role.

4. Under SMCRA § 509, 30 U.S.C.A. § 1259(b), the bond must be posted for the period of operating and reclaiming the surface mine, including a period of five or ten years during which an operator is responsible for seeing that plant life successfully grows on the site of the mining operation.

5. The rule states:

(d)(1) A regulatory authority may terminate its jurisdiction under the regulatory program over the reclaimed site of a complete surface coal mining and reclamation operation or increment thereof, when:

(i) The regulatory authority determines in writing that under the initial program, all requirements . . . have been successfully completed; or

(ii) The regulatory authority determines in writing that under the permanent program, all requirements imposed under the applicable regulatory program have been successfully completed or, where a performance bond was required, the regulatory authority has made a final decision . . . to release the performance bond fully.

(2) Following a termination [of jurisdiction], the regulatory authority shall reassert jurisdiction under the regulatory program over a site if it is demonstrated that the bond release or written determination . . . was based upon fraud, collusion, or misrepresentation of a material fact.

30 C.F.R. § 700.11(d) (1989) (published at 53 Fed. Reg. 44356 (November 2, 1988)).

6. In this regard, it should be noted that the standards for reclamation involve building dams that are safe, preventing water pollution or soil erosion, and other activities that may endure long after a mining operation has been completed. In particular, the performance standard for revegetation, see SMCRA §§ 515(b)(19), and 515(20), 30 U.S.C.A. §§ 1265(b)(19) and 1265(b)(20) make an operator responsible for successfully replanting the area of a mine for as long as ten years.

7. This is discussed at some length in the next section on inspection of abandoned mine sites.

8. It is also worth noting that statutes of limitations are positive acts. Presumably without such statutes, the causes of action they limit would be enforceable. Therefore, it is reasonable to believe that the absence of such a limitation should be interpreted as intending the cause not to be limited.

9. These rules are part of Title 30, Chapter VII's Subchapter L on inspection and enforcement procedures under the permanent SMCRA regulator program. Part 840 governs inspection and enforcement by the state regulatory authority, while Part 842 governs federal inspections and monitoring.

As noted in footnote 3, above, SMCRA provides that the Secretary should regulate mining operations on an interim basis. Congress also had the Secretary regulate mining operations in states that chose not to set up their own regulatory regime and for states whose regulation failed to comply with the Secretary's minimum standards. Thus, § 842.11 governs inspections when the federal government is the front-line regulator.

10. The two rules on inspecting abandoned sites are almost the same. The only real distinction between the two is whether the rule refers to "the regulatory authority" or the "office" as the entity inspecting the sites. The "office" is OSMRE. From hereon, the Court will speak only of § 840.11, but it should be understood to refer to both rules.

11. Consistent with the parties' virtually interchangeable usage, the Court treats coal processing and preparation as synonymous. See, e.g., definition of coal preparation at 30 C.F.R. § 701.5 (1989) (chemical or physical processing and cleaning, concentrating, or other processing or preparation of coal); definition of coal preparation plant, id., (facility where coal subjected to chemical or physical processing or cleaning, concentrating, or other processing or preparation); 53 Fed. Reg. 47384 (November 22, 1988) (Secretary unaware of any practical difference between coal processing and coal preparation).

12. 30 C.F.R. § 785.21 falls within Subchapter G (Parts 772-785), which spells out requirements for permits to conduct surface coal mining and reclamation, as well as coal exploration. Part 785 governs requirements for permits for special categories of mining, and § 785.21 specifically sets forth what must be done to get a permit to operate a coal preparation plant that is not within the permit area of any mine.

30 C.F.R. § 827.1 is part of Subchapter K (Parts 810-828), which specifies the performance standards for the permanent SMCRA regulatory program. Part 827 governs the performance standards for coal preparation plants not within the permit area of a coal mine, and § 827.1 sets forth the scope of the general performance standards for off-site plants.

13. In the interplay of rules involved in these decisions, the Secretary had asserted his jurisdiction over off-site coal preparation plants. He did so, however, having defined "coal preparation or coal processing" so that an activity had to separate coal from its impurities to meet the definition. 30 C.F.R. § 701.5 (1984). The Secretary similarly defined "coal preparation plant" to include only facilities that separated coal from its impurities, for example, washed or cleaned coal. Id. Those processes that handled coal without separating impurities were not deemed to be "coal processing or preparation;" facilities where this took place were not "coal preparation plants" under the Secretary's 1983 rules at issue in PSMRL II, Round I. These "non-cleaning" activities can include crushing, sizing, and screening coal, which often take place at facilities known as tipples.

14. Such facilities included storage areas, mine offices, bath houses, sheds,and shops, for example. The original definition in PSMRL II, Round I included crushing and sizing facilities. As noted, that opinion's ruled [sic] that coal preparation or processing included handling coal without cleaning it and enlarged the definition of coal preparation or processing to cover crushing and sizing. Thus, it removed crushing and sizing facilities from the definition of support facilities.

15. Essentially, the Court thought that the better reading of § 701(28)(A) was to construe "at or near the mine site" as modifying "cleaning, concentrating, or other physical processing or preparation." The Court explicitly declined to overturn that ruling, however. As will be seen, this decision leaves open the question of whether § 701(28)(A) provides a basis for the Secretary to regulate off-site coal processing and preparation facilities, although it is now clear that § 701(28)(B) does.

16. It would appear the that Court of Appeals opinion in NWF v. Hodel contains two separate sections each deciding the issue of using proximity to define support facilities. Compare Section III.D.3 of opinion, entitled "Jurisdiction over Processing and Support Facilities," 839 F.2d at 742-45 (specifically, on p. 745, paragraph beginning "Although he rejected the notion . . . ") with Section III.E.10 of opinion, entitled "Use of Proximity as a Factor in Determining Jurisdiction over Support Facilities," 839 F.2d at 765-66. A close examination leads to the conclusion that each section is dealing with the same issue. Fortunately, the outcome is the same in each section, that is, the Court endorsed using proximity as a factor defining support facilities.

17. These rules previously had read:

§ 785.21. Coal preparation plants not located within the permit area of a mine.

(a) This section applies to any person who operates or intends to operate a coal preparation plant outside the permit area of any mine, other than such plants which are located at the site of ultimate coal use. Any person who operates such a preparation plant shall obtain a permit from the regulatory authority in accordance with the requirements of this section.

30 C.F.R. § 785.21(a) (1988).

§ 827.1 Scope.

This part sets forth requirements for coal preparation plants not within the permit area for a specific mine other than those plants which are located at the site of ultimate coal use.

30 C.F.R. § 827.1 (1988) (underlined [i.e., italicized] language deleted when amended November 22, 1988).

The revised rules read:

§ 785.21. Coal preparation plants not located within the permit area of a mine.

(a) This section applies to any person who operates or intends to operate a coal preparation plant in connection with a coal mine but outside the permit area for a specific mine. Any person who operates such a preparation plant shall obtain a permit from the regulatory authority in accordance with the requirements of this section.

30 C.F.R. § 785.21(a) (1989).

§ 827.1 Scope.

This part sets forth requirements for coal preparation plants operated in connection with a coal mine but outside the permit area for a specific mine.

30 C.F.R. § 827.1 (1989) (underlined [i.e., italicized] language added when amended November 22, 1988).

18. At this point, it should be recalled from the general background above, that this Court had originally found that off-site coal preparation plants could be regulated under subparagraph (A) because "at or near a mine" in the subparagraph only modified "loading of coal" and not "processing or preparation." This Court also found that coal preparation plants could be regulated under subparagraph (B), too. The Court of Appeals disparaged the finding based upon subparagraph (A) because it "tend[ed] to agree that the "clearly better" interpretation was that "at or near the mine site" described "processing or preparation" and not just "loading of coal." Calling that a close question that it need not decide, the Court of Appeals ruled that subparagraph (B) clearly gave the Secretary authority to regulate off-site coal preparation plants, based upon the language "processing areas . . . and other areas upon which are sited structures, facilities, or other property or materials on the surface resulting from or incident to such activities." NWF v. Hodel, 839 F.2d at 744-45.

19. Although the Secretary does not say so, the implicit corollary of this argument is that geography always played some role in deciding whether a coal processing plant, however defined, was regulated. Under the old definition, a consideration of geography was present, but unstated. It was that a washing plant not at the site of an end user probably was fairly near a mine. This being so, it was unnecessary to mention explicitly that geography was a factor.

20. Section 701(20), 30 U.S.C.A. § 1291(20) contains a specific definition of prime farmland, invoking that used by the Department of Agriculture based on "moisture availability, temperature regime, chemical balance, permeability, surface layer composition, susceptibility to flooding, and erosion characteristics and which historically have been used for intensive agricultural purposes . . ."

21. Section 507(b)(16), 30 U.S.C.A. § 1257(b)(16) dictates that operators include a soil survey in their application for a mining permit if it appears that the area the permit will cover includes prime farmland. The survey must confirm the exact location of prime farmlands. The permit application also must have a statement of the land's productivity, SMCRA § 508(a)(2)(C), 30 U.S.C.A. § 1258(a)(2)(C), as well as a plan for reconstructing, replacing, and stabilizing the soil after mining, SMCRA § 508(a)(5), 30 U.S.C.A. § 1258(a)(5). Further, the Act only allows a permit to mine prime farmland to be granted after consultation with the Secretary of Agriculture and after a finding that the operator has the technological capability to (1) perform the soil reconstruction required and (2) restore the mined area "within a reasonable time, to equivalent or higher levels of yield as nonmined prime farmland in the surrounding area. . . ." SMCRA § 510(d)(1), 30 U.S.C.A. § 1260(d)(1). Further, SMCRA § 520(c)(2), 30 U.S.C.A. § 1269(c)(2), forbids releasing an operator's bond "until soil productivity for prime farm lands has returned to equivalent levels of yield as nonmined land in the surrounding area under equivalent management practices."

22. The standard mandates the following:

for all prime farmlands . . . to be mined and reclaimed, specifications for soil removal, storage, replacement, and reconstruction shall be established . . . and the operator shall, as a minimum, be required to —

(A) segregate the A horizon of the natural soil, except where it can be shown that other available soil materials will create a final soil having a greater productive capacity; and if not utilized immediately, stockpile this material separately from other spoil, and provide needed protection from wind and water erosion or contamination by other acid or toxic material;

(B) segregate the B horizon of the natural soil, or underlying C horizons or other strata, or a combination of such horizons or other strata that are shown to be both texturally and chemically suitable for plant growth and that can be shown to be equally or more favorable for plant growth and that can be shown to be equally or more favorable for plant growth than the B horizon, in sufficient quantities to create in the regraded final soil a root zone of comparable depth and quality to that which existed in the natural soil; and if not utilized immediately, stockpile this material separately from other spoil, and provide needed protection from wind and water erosion or contamination by other acid or toxic material; and

(C) replace and regrade the root zone material described in (B) above with proper compaction and uniform depth over the regraded spoil material; and

(D) redistribute and grade in a uniform manner the surface soil horizon described in subparagraph (A).

SMCRA § 515(b)(7), 30 U.S.C.A. § 1265(b)(7). The Secretary has defined many of these technical terms, including each of the horizons, at 30 C.F.R. § 701.5 (1989). In addition, a mine operator on prime farmland must also meet the general performance standard on revegetation set forth in SMCRA § 515(B)(20), 30 U.S.C.A. § 1256(b)(20).

23. Subchapter G of the SMCRA rules, Parts 772-785, deals with the regulations for issuing permits for mining and reclamation operations, as well as coal exploration. Part 785 specifies requirements for permits for special classes of mining operations. 30 C.F.R. § 785.17 covers permits for mining on prime farm land.

24. The rule arose as an exception to the duty to meet certain performance standards in the Act and amplified in the Secretary's regulations, specifically those for reconstructing and replacing the soil on prime farmlands. SMCRA rules subchapter K, Parts 810-828, specifies the performance standards for SMCRA's permanent regulatory program. Part 823 provides the standards for operations on prime farmland. Former 1983 subpart 823.11 stated several exemptions to the standards for prime farmland.

25. As a rule of thumb, facilities supporting a surface coal mining operation are themselves considered a surface coal mining operations [sic]. Just which such facilities are surface coal mining operations has been heavily litigated in earlier rounds of this case. See the discussion of off-site coal preparation plants elsewhere in this opinion.

26. The Court also ruled that the Secretary needed to provide guidelines limiting the scope of the exemption for underground mines because the phrases "actively used over extended periods of time" and "where such uses affect aminimal amount of land" were ill-defined and vague.

27. For underground mines, the Secretary proposed a rule requiring that facilities would be exempt from the prime farmland rules if they would be in place for at least 10 years, and if the facilities would cover less than 3% of the proposed underground extraction area. 52 Fed. Reg. 9644, 9645 (March 25, 1987). After receiving comment on the proposed rule, the Secretary abandoned the 10 years/3% proposal.

28. The Court notes that its copy of the Administrative Record on this issue lacked 52 Fed. Reg. pp. 39366 and 39368 (October 21, 1987). As the administrative record's page numbers have no gaps, that is 52 Fed. Reg. 39365 is Ad Rec. 00002, 52 Fed. Reg. 39367 is Ad Rec. 00003, and 52 Fed. Reg. 39369 is Ad Rec. 00004, the Court suspects that other copies of the record may be incomplete, too. The Court obtained and used a complete copy of this Notice of Proposed Rulemaking when reviewing the impoundments question.

29. The Secretary promulgated the rules being challenged today on remand from the Court's decision on PSMRL II, Round III, 620 F. Supp. 1519, 1536-37 (D.D.C. 1985). That case involved the Secretary's effort to replace earlier regulations that cited both MSHA and SCS standards with rules that referred only to MSHA.

30. Subchapter K of the SMCRA rules sets forth the performance standards for the permanent program. Two of the most important Parts of Subchapter K are Part 816, the performance standards for surface mining activities, and Part 817, similar standards for underground mining activities. In both Parts 816 and 817, subpart 49 (30 C.F.R. §§ 816.49 and 817.49) spells out parallel standards governing temporary and permanent impoundments. Any discussion of § 816.49 should be understood to refer also to § 817.49.

31. Technically, the rule was issued under the Federal Mine Coal Mine Health and Safety Act of 1969, Pub.L. 91-173, Dec. 30, 1969, 83 Stat. 743. Although originally limited to coal mines, this Act was, in effect, replaced, and its reach extended by the more encompassing Federal Mine Safety and Health Amendments Act of 1977, Pub.L. 95-164, Nov. 9, 1977, 91 Stat. 1290. The combined laws, 30 U.S.C.A. § 801, et seq., having the goal of protecting the health and safety of miners, including ones who dig other minerals. The law authorizes the Secretary of Labor through MSHA to issue safety standards that mines must meet to safeguard workers.

32. Chapter I of Title 30 of the Code of Federal Regulations sets forth MSHA regulations. Subchapter O specifies coal mine safety and health rules, and 30 C.F.R. § 77 spells out mandatory safety standards for surface coal mines and surface work areas of underground coal mines. Subpart 30 C.F.R. § 77.216 is the general rule governing "water, sediment, or slurry impoundments and impounding structures."

33. Such an impoundment must have a "minimum static safety factor of 1.5 for a normal pool with steady state seepage saturation conditions, and a seismic safety factor for at least 1.2." 30 C.F.R. § 816.49(a)(3)(i) (1989). This standard appears to provide functionally the same protection as that spelled out in the Soil Conservation Service's TR 60 document. In any event, NWF has not challenged it as giving less protection.

34. These impoundments "shall have a minimum static safety factor of 1.3 for a normal pool with steady state seepage saturation conditions" or meet other "engineering design standards that ensure stability comparable to a 1.3 minimum static safety factor." 30 C.F.R. § 816.49(a)(3)(ii) (1989), referring to an alternative stated in 30 C.F.R. § 780.25(c)(3) (1989). 30 C.F.R. § 780.25 discusses what a surface mine operator must include about its reclamation and operation plan in an application for a mining permit. The counterpart underground mine performance standard for impoundments, 30 C.F.R. § 817.49(a)(3)(ii) (1989), refers to the counterpart underground mine rule on applications for mining permits, 30 C.F.R. § 784.16(c)(3) (1989). The 1.3 minimum static safety factor is much the same as that spelled out in SCS's TR 378.

35. NWF's reply brief gives short shrift to the Secretary's explanation, stating that while the environmentalists "appreciate the concession by the Secretary, the final rules and preamble are not at all clear that the more protective . . . factor . . . applies to all structures meeting the Class (b) or (c) categories of SCS." NWF's reply at 38. Without being unduly tolerant of bureaucratic writing, it was clear to the Court. Therefore, the Court will not take up NWF's suggestion that the rule be remanded "to reflect with greater clarity the position advanced by the Secretary before this Court." Id. at 39 (footnote omitted).

Perhaps NWF may be given a partial absolution, however, because it was not alone in its inability to read the preamble. As an intervenor-defendant opposing NWF's motion for summary judgment, industry argues that the current § 816.49(a)(3)(i) is defensible even had the Secretary not stated in the preamble that it applies to SCS class (b) dams. Indeed, industry goes further: to the extent that the rule does cover impoundments fitting within SCS' class (b) definition, industry asks the Court to remand the rule for lack of notice and comment. Industry Defts' Mem. in Opp. at 32, n.16. This, too, is frivolous. The premable was there for all the world to see on October 27, 1988, and the Court suspects that both NWF and industry saw it and paid attention. The Secretary's defense in his brief citing the preamble is no post-hoc rationalization. Under SMCRA § 526(a), 30 U.S.C.A. § 1276(a), "[a] petition for review of any action subject to judicial review under this subsection shall be filed in the appropriate Court within sixty days from the date of such action . . . ." On that ground, if no other, the Court would have to reject industry's suggestion.

36. In his annual regulatory agenda published April 23, 1990, 55 Fed. Reg. 15264, the Secretary stated that he planned to put out a notice of proposed rulemaking on this subject by June 11, 1990. It does not seem that this had happened by mid-August 1990.

37. These performance standards govern surface coal mining operations. There is no direct counterpart in SMCRA § 516, 30 U.S.C.A. § 1266, which spells out performance standards for the surface effects of underground coal mining operations. Generally, however, SMCRA § 516(b)(10), 30 U.S.C.A. § 1266(b)(10) provides a catch all performance standard. It states that " with respect to the surface impacts not specified in this subsection" the coal mine operator must conduct his activities "in accordance with the standards" established for surface mining operations. This catch all standard specifically applies to "the construction of new roads or the improvement or use of existing roads to gain access to the site of such activities and for haulage . . . ." As a result, the Secretary has promulgated largely parallel regulatory performance standards on roads for surface and underground mining operations.

38. It will be recalled that Part 816 spells out the performance standards for surface mining operations, while Part 817 does the same for the underground counterpart. Insofar as this case is concerned, the rules are the same. The Court will only refer to the surface mining rules at § 816.150, but its discussion should be understood to apply to § 817.150, too.

In addition to these rules, the regulatory program for roads includes a definition, at 30 C.F.R. § 701.5 (1989), of requirements on what information about roads must be in the application for a mining permit, 30 C.F.R. §§ 780.37 (surface mining) and 784.24 (underground mining).

39. The prohibition does not cover operations in effect on the date Congress passed the Act, August 3, 1977, and also is subject to the valid existing rights of mine operators. For a discussion of the Valid Existing Rights (VER) concept, see In re Permanent Surface Mining Regulation Litigation II, Round III-VER, No. 79-1144, Mem. Op. (D.D.C. Mar. 22, 1985), 22 Env't Rep. Cas. 1557 ("PSMRL II, Round III-VER").

40. The House Report stated that "Surface mining operations can have a significant impact on the hydrologic balance of the mined area and its environs. The hydrologic balance is the equilibrium established between the ground and surface waters of an area between the recharge and discharge of waters to and from that system." H.R. Rep. No. 95-218, 95th Cong., 1st Sess. 109, reprinted in 1977 U.S. Code Cong. & Admin. News 593, 642.

41. The two rules are essentially the same, as relevant here, and the Court will refer only to the surface mining rule from here on for convenience. The discussion should be understood to apply to both the surface and underground mining rules. The rule at issue states:

(f) Probable hydrologic consequences determination. (1) The application shall contain a determination of the probable hydrologic consequences (PHC) of the proposed operation upon the quality and quantity of surface water and ground water under seasonal flow conditions for the proposed permit and adjacent areas.

30 C.F.R. § 780.21(f)(1) (1989).

The remainder of the rule spells out in detail what the PHC must contain.

42. It may be helpful to note that an operator may have plans to mine a vast field of coal, but only apply for permits successively to mine each piece of it as he goes along.

43. The comment period ended November 6, 1987. Including cover pages, the Secretary received 42 pages of comments.