Union Carbide Corp. v. Andrus

Nos. 79-2142, -2163 (S.D. W. Va. July 17, 1979)

Granting defendants' motions to dismiss for failure to state a claim and for lack of jurisdiction, the court upholds enforcement actions taken by the Interior Department's Office of Surface Mining Reclamation and Enforcement (OSM) pursuant to the interim regulatory program under the Surface Mining Control and Reclamation Act, ELR STAT. & REG. 42401. Plaintiffs first argued that OSM is required by § 521(a)(1) of the Act to notify the state prior to commencement of a federal enforcement action. The court finds, however, that the notification requirement does nto apply in the interim phase of the regulatory program. The court further finds that review of such a claim in any event lies in the federal district court in the District of Columbia, pursuant to § 526(a)(1). Second, the court rules that enforcement during the interim program is not confined to the precise terms of § 521, and plaintiffs, though not "permittees" under the statutory definition, are nonetheless subject to the interim regulations. The court defers the motion to dismiss this portion of the complaint, however, to give plaintiffs an opportunity to amend it by raising constitutional issues. Third, the court holds that OSM's determination that West Virginia's regulations comply with the initial federal regulatory program does not estop defendants from enforcing the interim program in West Virginia. Estoppal is unwarranted because there has been no detrimental reliance and because there can be no waiver of the Interior Secretary's enforcement authority. Finally, the court grants summary judgment against plaintiffs' claim that their operators are exempt from the interim program because they are on lands on which operations were not regulated by the state at the time the Act was passed. West Virginia subsequently adopted regulations for the lands in question, and given the broad policy of environmental protection underlying the Act, the court concludes that regulation under the Act was not limited to lands regulated by the state at the date of enactment.

Counsel for Plaintiffs
Gregory R. Gorrell
Jackson, Kelly, Holt & O'Farrell
P.O. Box 553, Charleston WV 25322
(304) 345-2000

Counsel for Defendants
Rebecca A. Betts, Ass't U.S. Attorney
P.O. Box 3234, Charleston WV 25332
(304) 345-2200

John Woodrum, Mayre Wright, Mark McGraw
Office of the Solicitor, Region I
Office of Surface Mining, Department of the Interior
950 E. Kanawaha Blvd., Charleston WV 25301
(304) 343-8928

Alfred P. Ghiorzi
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2738

[9 ELR 20701]

Copenhaver, J.:

These consolidated actions involve multifaceted challenges to the manner in which the Secretary of the Department of the Interior (hereinafter, the Secretary) has implemented the enforcement provisions of the interim regulatory program of the Surface Mining Control and Reclamation Act of 1977 (hereinafter, the Act), Pub. L. No. 95-87, 91 Stat. 445 (1977). As alleged in the complaints, jurisdiction arises under 28 U.S.C. § 1331, and is premised on a general federal question as to whether the Secretary has acted beyond his statutory authorization. See Califano v. Sanders, 430 U.S. 99, 104-07 (1976).¹

Plaintiffs herein operate either surface mines, underground mines whose operations have surface impacts, or both. The term "surface coal mining operations" as contained in the Act is defined to include both surface mining activities and the surface effects of underground mining. Plaintiffs' operations fall within the ambit of this definition.

Plaintiffs seek a declaratory judgment that the Secretary's actions during the interim phase of the regulatory program in issuing notices of violation and cessation orders without first notifying the state regulatory authority and permitting it to take appropriate corrective action is contrary to the requirements of § 521(a)(1) of the Act. Plaintiffs request preliminary and permanent injunctive relief against the Secretary restraining federal inspections and enforcement activity undertaken without first complying with the provisions of § 521(a)(1). Plaintiffs further seek preliminary and permanent injunctive relief enjoining the Secretary from issuing federal notices of violation and cessation orders with respect to surface effects of underground mining operations under the provisions of § 521(a)(3) where the persons conducting such operations are not "permittees" under the Act.

More specifically, the complaints allege in paragraphs VII, VIII, IX and X, respectively, that:

(1) the Secretary has misinterpreted and misapplied the Act's interim regulatory program by failing to provide notice, which plaintiffs contend is required, to the State regulatory authority prior to the commencement of federal enforcement action, section 521(a)(1), 30 U.S.C.A. § 1271(a)(1) (Supp. 1979)²

(2) the Act's cessation orders and notices of violation provisions are not applicable to West Virginia underground coal mining operations during the Act's interim phase because the operators are not "permittees" within the meaning of the Act, section 521(a)(3);

(3) the Department of the Interior is equitably estopped from enforcing the interim program in West Virginia by virtue of a letter written by the defendant Walter N. Heine, Director of the Office of Surface Mining Reclamation and Enforcement, to David C. Callaghan, Director of the West Virginia Department of Natural Resources, which letter, the plaintiffs contend, delegated primary interim authority to the State, section 101(f); and

(4) West Virginia underground mining operations are not subject to the interim regulatory program because they were not operations "on lands on which such operations are regulated by a State" at the time of enactment of the Act, section 502(c).

This matter is now before the court on the Secretary's motions to dismiss for failure to state a claim upon which relief can be granted and for lack of jurisdiction. By agreement of the parties, the motions to dismiss paragraph X of each complaint will be treated as motions for summary judgment. In addition to the briefs of the parties, the court is in receipt of the amicus curiae brief of the West Virginia Coal Association pursuant to permission granted by the court with the agreement of all counsel in the case.

These actions emanate from an understandable preference by the affected coal mining operators for regulation by state authorities who, as in West Virginia, have traditionally fulfilled the regulatory role in this field. Inasmuch as the state can be expected to retain the primary regulatory responsibility for administration under the permanent phase of the Act which will arrive whenever federal approval is given to the state program under § 503, it would not seem illogical that a state, at least one with the experience and expertise of West Virginia in this field, be afforded a similar role during the interim phase. Nevertheless, as is seen by the analysis that follows, Congress chose instead to vest the primary interim responsibility in the Secretary.

Although Congress prescribed functions for both state and federal authorities during the interim phase, the major interim role abides with the Secretary. This conclusion, however, is not readily reached. The Act, as a product of considerable concern and compromise, abounds with apparent inconsistencies. Oft-times, much of the legislative history is couched in such equivocal terms as to be of little value in assessing the congressional intent. [9 ELR 20702] In turn, the Secretary's regulations reflect at times a degree of consequent confusion.

In passing on the statutory questions raised in the defendants' motions, the court has been guided by the principle that the ultimate objective of statutory construction is to give effect to the intent of Congress. City of New York v. Train, 494 F.2d 1033, 1042 [4 ELR 20188] (D.C. Cir. 1974), aff'd, 420 U.S. 35 [5 ELR 20162] (1975). Where the court has confronted ambiguity, it has attempted to reconcile varying provisions with reference to the statutory language, the Act's purpose, and the relevant legislative history. Aviation Consumer Action Project v. Washburn, 535 F.2d 101, 106-07 (D.C. Cir. 1976). Where the Act is clear and unequivocal on its face, the court has relied solely on the plain meaning of the words of the Act itself. United States v. Oregon, 366 U.S. 643, 648 (1961).

I. Whether Notice To State Is A Prerequisite to Federal Action Under § 521(a)(1)

Paragraph VII of each complaint challenges the manner in which the Secretary has implemented § 521(a)(1) of the Act. Section 521(a)(1) provides:

Whenever, on the basis of any information available to him, including receipt of information from any person, the Secretary has reason to believe that any person is in violation of any requirement of this Act or any permit condition required by this Act, the Secretary shall notify the State regulatory authority, if one exists, in the State in which such violation exists. If no such State authority exists or the State regulatory authority fails within ten days after notification to take appropriate action to cause said violation to be corrected or to show good cause for such failure and transmit notification of its action to the Secretary, the Secretary shall immediately order Federal inspection of the surface coal mining operation at which the alleged violation is occurring unless the information available to the Secretary is a result of a previous Federal inspection of such surface coal mining operation. The ten-day notification period shall be waived when the person informing the Secretary provides adequate proof that an imminent danger of significant environmental harm exists and that the State has failed to take appropriate action. When the Federal inspection results from information provided to the Secretary by any person, the Secretary shall notify such person when the Federal inspection is proposed to be carried out and such person shall be allowed to accompany the inspector during the inspection.

Paragraph VII alleges that the Secretary has undertaken enforcement actions under the interim regulatory program without having provided the notice contemplated in § 521(a)(1) to the state through the West Virginia Department of Natural Resources.

The Act incorporates a two-phase regulatory plan which implements its provisions. The first, the interim regultory program, puts into effect the most critical environmental performance standards soon after the enactment of the Act and contemplates a dual state-federal enforcement role. See S. REP. NO. 128, 95th Cong., 1st Sess. 57 (1977). The second, the permanent regulatory program, is a comprehensive national regulatory scheme. It places enforcement primacy in those states which demonstrate to the satisfaction of the Secretary that they have the necessary resources and personnel to successfully implement the Act. In the absence of a federally approved state program for the permanent regulatory scheme, the Act directs the Secretary to promulgate and implement a federal program for such a state. The Act is now in its interim phase.

Pursuant to § 502(e), the Secretary had authority to enforce the environmental performance standards of the interim regulatory program. These environmental performance standards are referenced in § 502(c) of the Act. Section 502(b) of the Act makes the interim environmental performance standards applicable to surface coal mining operations on lands on which such operations are regulated by a state which commence operation pursuant to a permit issued by a state six months or more after August 3, 1977, the date of enactment of the Act. Section 502(c) of the Act makes the same standards applicable to surface coal mining operations, regardless of the issuance of a permit, from and after nine months following August 3, 1977.

Section 502(e) of the Act specifies three main features of the Secretary's enforcement authority during the interim phase. First, the Secretary is delegated the non-discretionary responsibility of inspecting "surface coal mine sites which may be made (but at least one inspection every six months), without advance notice to the mine operator and for the purpose of ascertaining compliance with" the performance standards in effect during the interim program. Section 502(e)(1). The Act directs that violations identified during such an inspection shall be corrected by enforcement action "to be implemented pursuant to the Federal enforcement provision of this title . . . ." Id.

Next, the Act directs the Secretary to order the immediate federal inspection of an operation when he is in receipt of state inspection reports which indicate that an operation has been in violation of the interim performance standards "during not less than two consecutive State inspections . . . ." Section 502(e)(2). In such an instance, the Secretary is directed to take "necessary enforcement actions." Id. Such enforcement is "to be implemented pursuant to the Federal enforcement provisions of this title." Id.

Thirdly, the Act directs the Secretary to order the immediate federal inspection of an operation "upon receipt by the Secretary of information which would give rise to reasonable belief that [the interim environmental performance] standards are being violated by any surface coal mining operation . . . ." Id. In such an instance, the Secretary is again directed to take "necessary enforcement actions" which are "to be implemented pursuant to the Federal enforcement provisions of this title." Id.

The "Federal enforcement provisions" in all three of the interim enforcement settings delineated above relate to the notice of violation and cessation provisions of § 521 and the civil penalty provisions of § 518. The staturory focal point of paragraph VII of the complaints is subsection (a)(1) of § 521. Quoted in full at [9 ELR 20702] above, it provides in pertinent part that:

Section 521(a)(1). The Act defines a "State regulatory authority" as "the department or agency in each State which has primary responsibility at the State level for administering the Act." Section 701(26). A "regulatory authority" is defined as "the State regulatory authority where the State is administering this Act under an approved State program or the Secretary where the Secretary is administering this Act under a Federal program." Section 701(22). A"State program" is a program established by a state pursuant to § 503 of the Act. Section 701(25). Such a program implements the permanent phase of the Act, and requires a state to submit a detailed plan to the Secretary within 18 months of the date of enactment in order for the state to obtain primary jurisdiction to implement and enforce the Act. Section 503. The Secretary's enforcement role in a state which has an approved state permenent program is best described as supplementary.

Paragraph VII presents the question of whether § 521(a)(1) is operative during the interim phase of the Act. The court is of the opinion that § 521(a)(1) of the Act was not intended by Congress to be effective during the interim regulatory program. This conclusion is based upon the most reasonable and internally consistent construction of §§ 502(e) and 521(a) and the relevant legislative history.

As noted, supra, federal inspection delineated in § 502(e) occurs in one instance where "upon receipt by the Secretary of information which would give rise to reasonable belief that [the interim] standards are being violated by any surface coal mining operation, the Secretary shall order the immediate inspection of such operation by Federal inspectors and the necessary enforcement actions, if any, to be implemented pursuant to the Federal [9 ELR 20703] enforcement provisions of this title." Section 502(e)(2). The dictates of § 502(e)(2) are quite clear. If the Secretary receives information which is sufficient to give rise to a "reasonable belief" that the interim environmental performance standards are being violated, he must order an immediate federal inspection. The Act then directs that if enforcement actions is deemed necessary, the Secretary is to take action pursuant to § 521 and he may take steps to assess a civil penalty under § 518.

Section 521(a)(1) provides for federal inspection authority in terms which are virtually the same as the terms contained in § 502(e)(2). When read simultaneously, §§ 502(e)(2) and 521(a)(1) authorize federal inspections in identical situations but produce significantly different responses by the Secretary. When the Secretary has a "reasonable belief" under § 502(e)(2) that a surface coal mining operation is in violation of the interim requirements, or when the Secretary has a "reason to believe" under § 521(a)(1) that a surface coal mining operation is in violation of any requirement of the Act or any permit condition required by it, a federal response is required. Section 502(e)(2) directs that "the Secretary shall order the immediate inspection of such operation by Federal inspectors and the necessary enforcement actions . . ." Section 521(a)(1), on the other hand, states that the "Secretary shall notify the State regulatory authority, if one exists, in the State in which such violation exists." If no regulatory authority exists, or if the state fails to take appropriate action, § 521(a)(1) requires the Secretary to "immediately order [the] Federal inspection of the surface coal mining operation at which the alleged violation is occurring unless the information available to the Secretary is a result of a previous Federal inspection of such surface coal mining operation."

Thus, § 502(e)(2) requires an immediate federal inspection and enforcement action while § 521(a)(1) requires notice to thestate regulatory authority, if one exists, in order that it might take appropriate action. Can these two provisions be reconciled?

If the notice requirement of § 521(a)(1) is treated as a condition precedent to federal enforcement actions and not federal inspections, §§ 502(e)(2) and 521(a)(1) would seem at first to be reconcilable. Such a reading must be based wholly upon the language in § 521(a)(1) which provides that if no state regulatory authority exists, or if after notification a state regulatory authority fails to take appropriate action, "the Secretary shall immediately order Federal inspection . . . unless the information available to the Secretary is a result of a previous Federal inspection of such surface coal mining operation." (Emphasis added.) Since § 521(a)(1) provides by its own terms that a federal inspection may occur prior to the required notice to the state regulatory authority, a federal inspection can be regarded as serving as the "basis of any information available to" the Secretary which triggers the notice requirement.This reading would be compatible with the § 502(e)(2) requirement that federal inspections occur immediately inasmuch as the § 521(a)(1) notice can occur subsequent to a federal inspection but prior to any federal enforcement which is required by such an inspection. Nevertheless, an examination of the specific enforcement provisions of § 521(a) compels the conclusion that such construction of § 521(a)(1) is fatally flawed.

Section 521(a)(3) of the Act provides the fundamental mechanism for enforcement of the Act when, based upon a federal inspection, the Secretary determines that a permittee is in violation of the Act or a permit condition required pursuant to it. Section 521(a)(3) states in relevant part:

When, on the basis of a Federal inspection which is carried out during the enforcement of a Federal program or a Federal lands program, Federal inspection pursuant to section 502, or section 504(b) or during Federal enforcement of a State program in accordance with subsection (b) of this section, the Secretary or his authorized representative determines that any permittee is in violation of any requirement of this Act or any permit condition required by this Act; but such violation does not create an imminent danger to the health or safety of the public, or cannot be reasonably expected to cause significant, imminent environmental harm to land, air, or water resources, the Secretary or authorized representative shall issue a notice to the permittee or his agent fixing a reasonable time but not more than ninety days for the abatement of the violation and providing opportunity for public hearing.

If, upon expiration of the period of time as originally fixed or subsequently extended, for good cause shown and upon the written finding of the Secretary or his authorized representative, the Secretary or his authorized representative finds that the violation has not been abated, he shall immediately order a cessation of surface coal mining and reclamation operations or the portion thereof relevant to the violation . . . .

The first sentence of § 521(a)(3) indicates that its requirements are applicable in four situations: (1) where the Secretary is enforcing a federal program in a state which failed to satisfy the requirements of § 503 or a federal lands program established pursuant to § 523; (2) where the Secretary is conducting an inspection pursuant to § 502, the interim regulatory program; (3) where the Secretary is conducting an inspection pursuant to § 504(b) in a state which has a state program but which has failed to enforce parts of its program; and (4) where the Secretary is enforcing the Act in lieu of a state regulatory authority when it has been determined, after a public hearing, that the state has failed "to enforce all or any part of the State program effectively, and he further finds that the State has not adequately demonstrated its capability and intent to enforce such State program" pursuant to § 521(b).

Thus, if on the basis of a federal inspection conducted during the interim regulatory program (the second of the four settings enunciated above), "the Secretary or his authorized representative determines that any permittee is in violation of any requirement of this Act or any permit condition required by this Act; but such violation does not create an imminent danger . . . the Secretary or his authorized representative shall issue a notice to the permittee . . . fixing a reasonable time but not more than ninety days for the abatement of the violation and providing opportunity for public hearing." Section 521(a)(3) [emphasis added]. The imposition of the § 521(a)(1) notice requirement as a condition precedent to federal enforcement of the interim regulatory program pursuant to § 521(a)(3) is contrary to the unequivocal terms of § 521(a)(3).

This construction is confirmed by the legislative history of the Act. The House committee report states:

Where the Secretary is the regulatory authority or Federal inspection is being conducted pursuant to sections 502, 504(b) or subsection (b) of section 521, and a Federal inspector determines that a permittee is violating the act or his permit but that the violation is not causing imminent danger to the health or safety of the public or significant, imminent environmental harm, then the inspector must issue a notice to the permittee setting a time within which to correct the violation. The inspector can extend this initial period for up to 90 days. If the violation has not been corrected within the established time, the inspector must immediately order a cessation of the mining operation relevant to the violation.

The enforcement mechanism of section 521(a)(3) will be utilized by the inspector in the great majority of compliance problems. It not only enables the inspector to gain immediate control of the problem, but also provides him with essential flexibility to appropriately deal with minor as well as major violations.

H.R. REP. NO. 218, 95th Cong., 1st Sess. at 130 (1977) [emphasis added]. The Senate committee's comments on federal notices of violation are almost identical to the House committee's with one important addition³

Where the Secretary is the regulatory authority or a Federal inspection is being conducted pursuant to section 402, 404(b) or subsection (b) of section 421, and a Federal inspector determines that a permittee is violating the Act or his permit but that the violation is not causing imminent danger to the health or safety of the public or significant, [9 ELR 20704] imminent environmental harm, then the inspect must issue a notice to the permittee setting a time within which to correct the violation. The inspector can extend this initial period for up to ninety days, but the total abatement period cannot exceed ninety days. If the violation has not been corrected within the established time, in the opinion of the inspector, the inspector must immediately order a cessation of the mining operation or the portion relevant to the violation. The inspector when issuing a cessation order under this section shall determine what measures are necessary to abate the violation in the most expeditions [sic] manner possible. The inspector shall include the necessary steps in the order of cessation.

The enforcement mechanism of section 420(a)(3) [sic] will be utilized by the inspector in the great majority of compliance problems. It not only enables the inspector to gain immediate control of the problem, but also provides him with essential flexibility to appropriately deal with minor as well as major violations.

In order to prevent federal-state overlap, the federal inspector is only to use his authority under section 421(a)(3) where the Secretary is the regulatory authority. However, in other circumstances the Secretary must insure, in accordance with the provisions of section 421(a)(1), that the State is notified of the compliance problem so that it may act under the terms of the approved state program.

S. REP. NO. 128, 95th Cong., 1st Sess. at 91-92 (1977) [emphasis added].

The last paragraph of the Senate report is ambiguous in that the first sentence of the last paragraph states that federal authority under § 521(a)(3) can only be used where the Secretary is the regulatory authority, i.e., acting under a federal program pursuant to § 504. However, the second sentence indicates that § 521(a)(1) notice is required in order to prevent federal-state overlap when a state is acting "under the terms of the approved state program" pursuant to § 503. Id. The court concludes that the Senate committee intended that last sentence to be controlling. The first sentence of the first paragraph of the excerpt reiterates the four situations in which § 521(a)(3) applies. In none of those four situations is there the possibility that there will be "federal-state overlap" because in no instance will a state be acting "under the terms of the approved State program." Thus, although the legislative history on the point is not a model of clarity, the most reasonable construction of §§ 502(e)(2), 521(a)(1), and 521(a)(3), coupled with the legislative history, compels the conclusion that federal enforcement under § 521(a)(3) is only subject to the notice requirement of § 521(a)(1) when the Secretary is acting in a state with an operative approved state program. This conclusion precludes the use of the § 521(a)(1) notice requirement as a condition precedent to federal inspections or enforcement during the interim regulatory program.⁴

Another particularly compelling aspect of the Act's legislative history which supports the conclusion that § 521(a)(1) is not operative during the Act's interim phase relates to § 502(e) of the Act as it was drafted in H.R. 2, the House bill as approved by the House of Representatives. H.R. 2 did not contain the provision requiring the Secretary to undertake the non-discretionary inspection of every surface coal mining operation at least once every six months which was subsequently included in § 502(e)(1) of the Act. H.R. 2 did state however that the Secretary's interim enforcement program must "provide that the State regulatory agency responsible for regulating reclamation of surface coal mining operations shall be given notice prior to any Federal inspection . . . ." H.R. 2, 95th Cong., 1st Sess. § 502(e)(2) (1977). The House committee, in commenting upon the interim notice requirement contained in the House version, made it clear that § 521(a)(1) did nto apply during the interim regulatory program:

Enforcement

(a) During the interim program, upon receipt of any information which may be furnished by any person, and which gives rise to a reasonable belief that the interim standards are being violated, the Secretary is to order th immediate inspection of all alleged offending operation. The person who provides the Secretary with the information is to be notified as to the time of the inspection and may accompany the inspection [sic] during the inspection. Under the committee amendment, notice must be given the State prior to such an inspection (section 502(f)) [sic, § 502(e) in H.R. 2].

(b) A provision similar to that described immediately above is operative after the interim period (section 521).

H.R. REP. NO. 218, 95th Cong., 1st Sess. at 89 (1977) [emphasis added].

The Senate bill, S. 7 did require regular inspections as part of the interim federal enforcement program, but did not contain a requirement that notice be provided to state regulatory authorities prior to commencing federal inspection or enforcement efforts during the interim program. S. 7, 95th Cong., 1st Sess. § 402(e) (1977). Inasmuch as the language of § 502(e)(1) of the Act is virtually identical to § 402(e)(1) of S. 7, the conference committee clearly rejected the prior notice requirement contained in § 502(e)(2) of H.R. 7. This is consistent with the conference committee's inclusion of non-discretionary routine federal inspections during the interim regulatory program in the Act. The same legislative history also indicates that § 521(a)(1) was not intended to apply to federal inspections and enforcement during the interim regulatory program.⁵

The court has undertaken this extensive analysis of the paragraph VII claim by reason of the complexity of the issue presented and the importance of its resolution to the coal industry and the Secretary alike.⁶ The court must conclude from its examination [9 ELR 20705] of the relevant statutory provisions and legislative history that § 521(a)(1) cannot be reasonably construed to require the notice prescribed therein as a condition precedent to federal inspections and enforcement during the interim regulatory program.

This result, however, does not leave § 521(a)(1) without content or meaning. On the contrary, its requirement of notice by the Secretary to the state regulatory authority clearly applies under the permanent regulatory program where the state has an approved state program. See H.R. REP. NO. 218, 95th Cong., 1st Sess. at 129 (1977).

The court turns next to the jurisdictional question raised in the defendants' motions to dismiss. As is implicit on the face of the complaints, plaintiffs do not seek review of the statutory provisions as applied in a particular enforcement action. Instead, plaintiffs contend that the questions presented are a matter of statutory construction giving rise to a federal question cognizable by this court under 28 U.S.C. § 1331(a).

Congress has provided that responsibility for the interpretation of the entire Act for purposes of the interim regulatory program is, in the first instance, with the Secretary. Section 501(a). Accordingly, the Secretary promulgated an interim regulatory program which took effect on December 13, 1977. These regulations were the subject of a major challenge in the United States District Court for the District of Columbia pursuant to the Act's rule-making review provision, § 526(a)(1), which resulted in two reported decisions. See In re Surface Mining Regulation Litigation, 452 F. Supp. 327 [8 ELR 20407] (D.D.C. 1978); In re Surface Mining Regulation Litigation, 456 F. Supp. 1301 (D.D.C. 1978). More importantly, the interim regulations contain rules implementing procedures governing federal enforcement of the interim regulatory program under §§ 501(e) and 521(a) of the Act. See 30 C.F.R. § 710.1(b)(1) (1978) and 30 C.F.R. §§ 722.1 to 722.17 (1978). The preamble to the interim regulations indicates that the industry and the public submitted substantial commentary on the Secretary's interpretation of § 521(a) of the Act as manifested in parts 721 and 722 of the regulations. See 42 Fed. Reg. 62,644 to 62,670 (Dec. 13, 1977). There is no indication in the preamble that the precise theories asserted by the plaintiffs regarding § 521(a) were presented to the Secretary while the rules were being promulgated.

Section 526(a)(1) of the Act provides the avenue through which a party can obtain review of rule making by the Secretary which is national in scope, whether it be for the interim or permanent regulatory programs:

Judicial review. — (a)(1) Any action of the Secretary to approve or disapprove a State program or to prepare or promulgate a Federal program pursuant to this Act shall be subject to judicial review by the United States District Court for the Distric which includes the capital of the State whose program is at issue. Any action by the Secretary promulgating national rules or regulations including standards pursuant to sections 501, 515, 516, and 523 shall be subject to judicial review in the United States District Court for the District of Columbia Circuit. Any other action constituting rulemaking by the Secretary shall be subject to judicial review only by the United States District Court for the District in which the surface coal mining operation is located. 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. 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, or after such date if the petition is based solely on grounds arising after the sixtieth day. Any such petition may be made by any person who participated in the administrative proceedings and who is aggrieved by the action of the Secretary.

Section 526(a)(1) [emphasis added]. Prior to such review, interested parties have the opportunity to participate in the notice and comment phase of the rule-making process delineated in § 501(a) of the Act.

Keeping in mind that the plaintiffs do not seek the review of a direct application of § 521(a) of the Act (or the rules promulgated pursuant to it) in a particular enforcement proceeding, it becomes apparent that the plaintiffs could have presented the same allegations contained in paragraph VII during the Secretary's promulgation of the interim rules and, again, in conjunction with the judicial review which followed. A party cannot circumvent the rule-making review process established by Congress by drafting its allegations solely in terms of the Act in the hope of litigating issues which in reality reach not the validity of the statute, but go towards the validity of the previously promulgated interim regulatory program.⁷ Yet, paragraph VII follows this precise path. If the court were to agree with the plaintiffs' interpretation of § 521(a)(1), it would be compelled to mandate changes in the Secretary's regulations regarding the enforcement scheme developed therein.

The plaintiffs do not directly challenge the validity of the regulations which implement § 521(a)(1), nor is it suggested that the Secretary has failed to comply with his own regulations. Instead, paragraph VII purports to seek a construction of § 521(a)(1) without reference to the Secretary's regulations or a particular enforcement proceeding. The ultimate result of such a review, however, would be to call into question the validity of the regulations. This process is the function of judicial review of administrative rule making which has been, as was previously noted, provided for by the Congress in § 526(a)(1) of the Act.

The plaintiffs are not prejudiced by the requirement that they raise claims such as those asserted in paragraph VII in the rulemaking review process provided by the Act. If experience under the interim regulatory program provides a new, initially unforeseeable perspective on the import or meaning of certain regulations, creating legitimate questions as to whether the regulations comport with the Act, Congress has provided a mechanism for relief by an aggrieved party. The rule-making review provision of the Act, § 526(a)(1), requires that petitions for judicial review be filed within 60 days from the date the regulations are finally promulgated. However, this time requirement is not absolute. Petitions may also be received after 60 days "if the petition is based solely on grounds arising after the sixtieth day." Section 526(a)(1). In either case, the proper forum is the District Court for the District of Columbia, and not this court. See 5 U.S.C. § 703.⁸

Accordingly, the court is of the opinion that paragraph VII fails to state a claim for which relief can be granted and, further, that the proper forum for review of such a claim is in any event the District Court for the District of Columbia.

II. Whether Plaintiffs Are Permittees

Paragraph VIII of each complaint alleges that the Secretary's enforcement of the Act with regard to underground mining operators is "not in accordance with § 521(a)(2) and (3) of the Act (30 U.S.C. § 1271(a)(2) and (3)), which requires that cessation orders and notices of violation be based on federal inspections conducted in accordance with law and further limits issuance of federal notices of violation to a 'permittee.'" Complaints at 6. Each plaintiff contends that it is not a "permittee" as that term is used in the Act. Except for the reference to "permittee," the complaints do not state in what other respects the Secretary's federal inspections are not "in accordance with law." This reference apparently relates to the § 521(a)(1) notice requirement which has been discussed in Part I above.

Underground mining operations are subject to federal inspections and enforcement during the interim regulatory program. [9 ELR 20706] This understanding is dictated by § 501(a) of the Act which requires that "[n]ot later than the end of the ninety-day period immediately following the date of enactment of this, the Secretary shall promulgate and publish in the Federal Register regulations covering an interim regulatory procedure for surface coal mining and reclamation operations setting mining and reclamation performance standards based on and incorporating the provisions set out in § 502(c) of this Act." In addition, the environmental performance standards effective during the interim regulatory program are made applicable to "all surface mining and reclamation operations . . . ." Section 502(c). The Act defines "surface coal mining and reclamation operations" to mean "surface mining operations and all activities necessary and incident to the reclamation of such operations after the date of enactment of this Act . . . ." Section 701(27). "Surface coal mining operations" is defined in part to mean "activities conducted on the surface of lands in connection with a surface coal mine or subject to the requirements of section 516 surface operations and surface impacts incident to an underground coal mine, the products of which enter commerce or the operations of which directly or indirectly affect interstate commerce." Section 701(28)(A). See also 30 C.F.R. § 700.5 (1978) ("Surface Coal Mining Operations"). The interim regulatory program is therefore applicable to the surface impacts incident to an underground coal mine by the plain meaning of the Act's definitional sections.

Moreover, the legislative history amply illustrates that Congress intended § 502 to include the regulation of underground coal mining operations during the interim program. The following exchange occurred in debate on the floor of the Senate:

MR. METZENBAUM.I should like to inquire of the chairman of the Senate subcommittee whether it is his understanding that the interim regulatory program applies to the surface effects of deep mining in States that regulate any such effect.

MR. METCALF. They do. Section 502 requires compliance with the interim regulations by "coal surface mining operations" which is defined to include the surface effects of deep mining. If a State presently regulates any surface effect of deep mining, then the interim regulation adopted under section 501 and the program under section 502 would apply in that State.

123 CONG. REC. S12,443 (daily ed. July 20, 1977) (remarks of Senators Metzenbaum and Metcalf). The Senate Committee also addressed this point:

S. REP. NO. 128, 95th Cong., 1st Sess. at 71 (1977).⁹ Thus, the scope of § 502 encompasses the surface impacts of underground mining operations during the interim regulatory program. See also In re Surface Mining Regulation Litigation, 452 F. Supp. 327, 334-35 [8 ELR 20407] (D.D.C. 1978).

It is important at this juncture to note that paragraph VIII does not question the authority of the Secretary to promulgate interim regulatory standards with respect to underground coal mining operations. The preceding discussion is necessary, however, in order to fully appreciate the nature of the claim stated in paragraph VIII. Paragraph VIII simply alleges that plaintiffs do not fall within the meaning of "permittee," and as a result cannot be subjected to § 521(a)(2) and (3) enforcement actions.

As has been previously discussed, § 502(e) directs that federal enforcement of the interim regulatory program is "to be implemented pursuant to the Federal enforcement provision of this title." Section 502(e)(1), (e)(2). The federal enforcement provisions of the Act are found in § 521 as well as in the civil penalty provisions of § 518. Paragraph VIII of each complaint is addressed specifically to §§ 521(a)(2) and 521(a)(3). Section 521(a)(2), the imminent danger provision, reads in pertinent part:

(2) When, on the basis of any Federal inspection, the Secretary or his authorized representative determines that any condition or practices exist, or that any permittee is in violation of any requirement of this Act or any permit condition required by this Act, which condition, practice, or violation also creates an imminent danger to the health or safety of the public, or is causing, or can reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources, the Secretary or his authorized representative shall immediately order a cessation of surface coal mining and reclamation operations or the portion thereof relevant to the condition, practice, or violation . . . .

The issuance of § 521(a)(2) orders of cessation are clearly not limited to "permittees." The Secretary's broad authority to issue orders of cessation includes the situation where "the Secretary or his authorized representative determines that any condition or practice exist . . . which condition, practice or violation also creates an imminent danger to the health or safety of the public, or is causing, or can reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources . . . ." Section 521(a)(2). And so, § 521(a)(2) by its express terms ranges well beyond "permittees."

However, the language of § 521(a)(2) is not wholly determinative of paragraph VIII; § 521(a)(3), which deals with the nonimminent danger violation, is by its terms limited to "permittees." Section 521(a)(3) states:

(3) When, on the basis of a Federal inspection which is carried out during the enforcement of a Federal program or a Federal lands program, Federal inspection pursuant to section 502, or section 504(b) or during Federal enforcement of a State program in accordance with subsection (b) of this section, the Secretary or his authorized representative determines that any permittee is in violation of any requirement of this Act or any permit condition required by this Act; but such violation does not create an imminent danger to the health or safety of the public, or cannot be reasonably expected to cause significant, imminent environmental harm to land, air, or water resources, the Secretary or his authorized representative shall issue a notice to the permittee or his agent fixing a reasonable time but not more than ninety days for the abatement of the violation and providing opportunity for public hearing . . . .

Insofar as § 502(e) establishes the Secretary's enforcement authority during the interim regulatory program and requires that federal enforcement "be implemented" pursuant to § 521 and the civil penalties contained in § 518, the precise question presented by paragraph VIII is whether federal enforcement during the interim program is accordingly confined to the precise terms of § 521.

The Act defines a "permittee" as "a person holding a permit." Section 701(18). A "permit" is defined as "a permit to conduct surface coal mining and reclamation operations issued by the State regulatory authority pursuant to a State program or by the Secretary pursuant to a Federal program." Section 701(15). A state program is by definition a program established by astate pursuant to § 503. See § 701(25). A federal program is by definition a program established by the Secretary pursuant to § 504. See § 701(6). Section 503 state programs and § 504 federal programs implement the permanent phase of the Act. See §§ 503-504. Thus a permittee is a person holding a permit issued under a state program or a federal program for purposes of the permanent regulatory program.

[9 ELR 20707]

Based on the foregoing, it is possible to construe the use of the term "permittee" in § 521(a)(3) as rendering the section ineffective during the interim regulatory program. However, such a reading fails to take account of the first sentence in § 521(a)(3) which provides in effect that the entirety of § 521(a)(3) applies during the interim program when a "Federal inspection is being conducted pursuant to section 502." Although § 521(a)(3) refers only to violations by and notices to (as well as cessation orders against) a "permittee," and the term "permittee" by statutory definition is limited to permanent program permittees, the reference in § 521(a)(3) to federal inspections being conducted under the interim program of § 502 can only be given meaning by expanding the term for interim program purposes. During this interim period, "permittee" must include persons, with or without a permit, conducting surface coal mining and reclamation operations regulated by a state under state law.¹⁰ The Secretary has adopted this interpretation by regulation:

During the initial regulatory program the term ["permittee"] includes persons conducting surface coal mining and reclamation operations regulated by a State under State law . . . .

30 C.F.R. § 700.5 (1978).

Moreover, this statutory contradiction is more readily reconciled when read in light of Congress' design of the interim regulatory program found in § 502. There, Congress specified the effective dates, the scope, the substantive content and the inspection process of the interim regulatory program. In addition, Congress specified which lands or operations would be the subject of federal enforcement actions implemented pursuant to § 521 during the interim regulatory program. In the case of a § 502(e)(1) routine inspection, federal enforcement is to be directed at "surface coal mine sites" found to be in violation of the interim performance standards. In the case of § 502(e)(2) inspections, federal enforcement is to be directed at "any surface coal mining operation" found in violation of the interim performance standards. On their face, neither of these two subsections contemplate limiting federal enforcement to permittees. Thus, the most consistent and logical reading of these subsections with § 521(a)(3) is that the Secretary is to fashion federal enforcement action directed at "surface coal mine sites" and "any surface coal mining operations" during the interim regulatory program based upon the enforcement scheme developed in § 521(a). [Emphasis added.]

To read §§ 502(e) and 521(a)(3) together and conclude that an operation may fall within the requirements of the interim regulatory program, yet not be subject to federal enforcement for violations of the interim requirements because the operator is not holding a permit as defined by the Act or otherwise would not only substantially limit the Secretary's enforcement authority over operations clearly within the ambit of § 502, but would be contrary to the scope of the interim regulatory program. Any other reading of these two sections renders the interim regulatory program unenforceable against a potentially significant number of surface coal mining operations. Such a construction would frustrate Congress' concern over the competitive disadvantages which would result if surface coal mining operations were held to different regulatory standards between the various states. As set forth in the Act's Statement of Findings and Policy:

[S]urface mining and reclamation standards are essential in order to insure that competition in interstate commerce among sellers of coal produced in different States will not be used to undermine the ability of the several States to improve and maintain adequate standards on coal mining operations within their borders.

Section 101(g).

In sum, federal enforcement authority to issue notices of violation and cessation orders and impose civil penalties during the interim regulatory phase pursuant to § 502(e), in light of the only reasonable and consistent construction of that section with the other provisions of the Act, is not governed by the statutory definition of the term "permittee."

Turning to the jurisdictional issue raised by defendants' motions to dismiss paragraph VIII, the court's discussion of judicial review of the Secretary's interim rule making in Part I of this order is equally applicable to that statutory question. The Secretary has promulgated interim rules modeled after §§ 521(a)(2) and 521(a)(3) of the Act. See 30 C.F.R. §§ 722.11-722.12 (1978). As already noted, the Secretary has also promulgated a rule defining the term "permittee" for purposes of the interim regulatory program as including "persons conducting surface coal mining and reclamation operations regulated by a State under State law . . . ." 30 C.F.R. § 700.5 (1978). If the plaintiffs desire to challenge the legality of the Secretary's regulations, they may do so if their chaim is based on grounds arising after the 60th day following the promulgation of the regulations and if they bring their action before the District Court for the District of Columbia. Section 526(a)(1). This method of review is consistent with the Administrative Procedure Act which provides in pertinent part that "[t]he form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute . . . ." 5 U.S.C. § 703.

The question remains, nevertheless, as to whether the regulatory scheme of federal interim enforcement set out in the statute and the regulations promulgated thereunder, as found and construed by the court, is constitutionally infirm for failure to prescribe in plainer terms that notices of violation and cessation orders may issue and civil penalties may be assessed during the interim phase against any surface coal mining operation rather than the statutorily defined "permittee." Although this constitutional issue has not been directly raised in the complaints nor presented and argued by the parties, the court observes that noncriminal statutes and regulations thereunder, even though measured by a more relaxed standard than their criminal counterparts, must be drawn in sufficiently definite terms as to escape condemnation under the void-for-vagueness doctrine. See Horn v. Burns & Roe, 536 F.2d 251, 254 (8th Cir. 1976); Brennan v. Occupational Safety & Health Comm'n, 505 F.2d 869, 872-73 (10th Cir. 1974); Massachusetts Welfare Rights Organization v. Ott, 421 F.2d 525, 527 (1st Cir. 1969); Boutilier v. Immigration and Naturalization Service, 387 U.S. 118, 123 (1967); see also Berry v. City of Portsmouth, Virginia, 562 F.2d 307, 312 (4th Cir. 1977).

In passing on a motion to dismiss, a court is under a duty to examine the complaint to determine if the allegations state a claim for relief on any possible theory, even one which is not expressly alleged therein. Quinonez v. Nat'l Ass'n of Securities Dealers, Inc., 540 F.2d 824 (5th Cir. 1975); WRIGHT & MILLER, 5 FEDERAL PRACTICE AND PROCEDURE at 602 (1969). Having done so in the present case, the court is of the opinion that action on the motions to dismiss with respect to paragraph VIII should be deferred in order that plaintiffs might amend paragraph VIII of their complaints so as to present the constitutional challenge here noted. In according this opportunity to the plaintiffs, the court expresses no opinion on the merits of such a challenge, the standing of the plaintiffs to present such a claim, or any jurisdictional problems which may arise thereunder.

III. Whether The Defendants Are Equitably Estopped From Enforcing The Interim Regulatory Program In West Virginia

Paragraph IX of each complaint alleges that a letter written by the defendant Walter N. Heine, Director of the Office of Surface Mining Reclamation and Enforcement, to David C. Callaghan, Director of the West Virginia Department of Natural Resources, under date of September 28, 1978, coupled with § 101(f) of the Act,¹¹ equitably estops the Secretary from enforcing [9 ELR 20708] the interim regulatory program in West Virginia. The complaints allege that in the letter, Mr. Heine "recognized the West Virginia DNR [Department of Natural Resources] as the 'regulatory authority' and stated that the [West Virginia] regulations were 'essentially in compliance with, and adequate to implement, the initial regulatory program.'" Complaints at 8. It is further alleged that the West Virginia Legislature's Rule-Making Review Committee approved the DNR regulations in reliance on the letter.

While it is traditionally held that as against the government the doctrine of equitable estoppel is disfavored, it has on occasion been invoked. See e.g., United States v. Ruby Co., 588 F.2d 697 (9th Cir. 1978). The elements of equitable estoppel are fourfold: (1) the party to be estopped must know the facts; (2) the party to be estopped must have intended that its conduct will be relied upon or that the party asserting the estoppel can reasonably believe that such reliance was so intended; (3) the party asserting the estoppel must be ignorant of the true facts; and (4) the party asserting the estoppel must have relied on the other party's conduct to his detriment. See United States v. Ruby Co., 588 F.2d at 703; American Security & Trust Co. v. Fletcher, 490 F.2d 481, 485 (4th Cir. 1974); Edward Petry & Co. v. Greater Huntington Radio Corp., 245 F. Supp. 963, 969 (S.D.W. Va. 1965).

The court is of the opinion that the motions to dismiss must be granted with respect to paragraph IX for two reasons. First, paragraph IX is devoid of any allegation of detrimental reliance on the part of the plaintiffs. Secondly, the complaint alleges that the Heine-Callaghan letter effectuates a waiver of the Secretary's authority to enforce the interim regulatory program in the State of West Virginia. Even assuming that the letter purports to effectuate such a waiver, this assertion is contrary to the positive command of § 502(e) of the Act that "the Secretary shall implement a Federal enforcement program which shall remain in effect in each State as surface coal mining operations are required to comply with the provisions of this Act, until the State program has been approved pursuant to this Act or until a Federal program has been implemented pursuant to this Act." Section 502(e). Thus, even if the court were to assume in the absence of allegation of detrimental reliance that the plaintiffs have justifiably relied on the Heine-Callaghan letter in some fashion and that such reliance was to their detriment,¹² there remains for resolution the legal question of whether an administrative official may waive the requirements of a statute, so as to effectuate an estoppel with respect to the subsequent enforcement of the statute.

The Act affords no basis upon which the Secretary may delegate his responsibility of enforcing the interim regulatory program to a state. The congressional statement of findings in § 101(f) does not provide such a basis. See note 11, supra; see also Ass'n of American Railroads v. Costle, 562 F.2d 1310, 1316 [7 ELR 20730] (D.C. Cir. 1976). The court is of the view that, even if paragraph IX had alleged the elements of equitable estoppel, as a matter of law a congressional act is not rendered unenforceable by virtue of the unauthorized statements of an administrative official. In Montilla v. United States, 457 F.2d 478 (Ct. Cl. 1972), the court of claims discussed this principle:

It is true that the government may be estopped by the acts and conduct of its agents where they are duly authorized and are acting within the scope of their authority and in accordance with the power vested in them, as, for instance, in certain cases involving contractual dealings with the government. But we know of no case where an officer or agent of the government . . . has estopped the government from enforcing a law passed by Congress. Unless a law has been repealed or declared unconstitutional by the courts, it is a part of the supreme law of the land and no officer or agent can by his actions or conduct waive its provisions or nullify its enforcement. Id. at 986-87.

Paragraph IX of the complaints does not allege the elements necessary for a finding of equitable estoppel. In any event, the doctrine of equitable estoppel is not applicable to support a claim of the kind alleged in paragraph IX. The court is accordingly of the opinion that paragraph IX fails to state a claim for which relief can be granted.

IV. Whether The Plaintiffs' Operations Are On Lands On Which Such Operations Are Regulated By A State

The parties have submitted a stipulation of facts and affidavits with respect to paragraph X. By agreement of the parties, and in accordance with the conversion clause of Rule 12(b) of the Federal Rules of Civil Procedure, the court will treat the defendants' motions with respect to paragraph X as motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Plante v. Shivers, 540 F.2d 1233 (4th Cir. 1976). It is noted that the parties agreed at oral argument that because the question presented in paragraph X is a "purely legal one," there is no basis for requiring the plaintiffs to exhaust any of the administrative remedies provided by the Act.

Section 502(c) of the Act, which is the statutory focal point of paragraph X, is the subject of interim rules promulgated by the Secretary. Section 502(c) provides the basic parameters of the interim regulatory program:

(c) On and after nine months from the date of enactment of this Act, all surface coal mining operations on lands on which such operations are regulated by a State shall comply with the provisions of subsections 515(b)(2) . . . . [Emphasis added.]¹³

The Secretary has given a liberal reading to the language "all surface coal mining operations on lands on which such operations are regulated by a State" contained in § 502(c). See 30 C.F.R. §§ 710.3(a), 710.11(a), 715.11(a) (1978); 42 Fed. Reg, 62,642 (Dec. 13, 1977). The Secretary's regulations look to any form of state regulation which is directed toward the environmental impact of mining. In addition, the Secretary contends that the language "regulated by a State" refers to all surface coal mining operations on lands so regulated, whether such regulations existed at the time of enactment of the Act on August 3, 1977, or as of such subsequent time as the state may have undertaken state regulation. The plaintiffs, however, suggest a restrictive reading of § 502(c), contending that, in order to give the language "regulated by a State" any meaning, it must be construed as a limitation.

The court concludes from the plain meaning of § 502(c) that [9 ELR 20709] the interim regulatory program is applicable to operations "on lands on which such operations are regulated by a State" regardless of whether such regulation was initiated before or after the date the Act was enacted. Congress placed no restrictions in § 502(c) with regard to when a state must undertake regulation in order to make § 502(c) operative, and this court finds the attempt to engraft such a significant limitation onto the statute insupportable.

Moreover, the limited legislative history on the point suggests that Congress intended that the application of § 502(c) not be "frozen" at the time of enactment of the Act. The only significant congressional commentary on the meaning of the words "on lands on which such operations are regulated by a State" appears in the Senate report which accompanied S. 7. S. REP. NO. 128, 95th Cong., 1st Sess. (1977). The report states:

All surface coal mining operations, which include, by definition surface impacts incident to underground coal mines, are subject to the initial regulation procedures of section 402 of this bill, but only to the extent that they are located on lands on which operations are regulated by a State. Surface coal mining operations located in the two States (Alaska and Arizona) which presently have no regulatory programs directed toward the environmental control of surface coal mining operations are not subject to section 402. Neither are the surface effects of underground coal mining operations subject to section 402, unless the existing State regulatory program is directed at the effects of these operations. This policy is entirely consistent with the State-lead philosphy of this legislation. However, it should be noted that States which do not have a regulatory program established by statute may still participate in the interim program through administrative action of a suitable State agency. Certification of this fact by the Governor of a State to the Secretary of the Interior is sufficient to qualify that state for the interim funding provided in section 402. Id. at 71. [Emphasis added].

The emphasized language indicates that states which did not regulate any or portions of the surface mining operations within the state at the time of the enactment of the Act can still take action to participate in the interim regulatory program after the August 3, 1977, date of enactment. State participation, as contemplated by the funding provision of § 502 which is referred to above, involves both inspection and administration by the state to the limited extent called for under the interim regulatory program of § 502. See § 502(e)(4). While the court has difficulty accepting the Senate committee's assumption that states can undertake significant environmental regulation by mere administrative action alone, there is no indication that the committee intended to confine the application of § 502(c) to those states engaged in regulation on the date of enactment of the Act. Indeed, the intent appears to be to the contrary.

As set forth in the stipulation of facts presented by the parties, the State of West Virginia took legislative action to develop a state program consistent with the interim regulatory program by delegating additional rule-making authority to the Reclamation Commission and the Director of the Department of Natural Resources effective March 11, 1978. The legislation provides that "such authority shall specifically include the authority to regulate and enforce rules and regulations regulating the surface effect of deep mining in this State in conformity with section 515, Title V of P.L. 95-87 and article two, chapter twenty-two of this Code." W. VA. CODE ANN. § 20-6-23a (Supp. 1978). As of March 11, 1978, West Virginia underground mining operations were "operations on lands on which such operations are regulated by a State" within the meaning of § 502(c) of the Act.¹⁴

In addition to the Senate report quoted above, support for the Secretary's reading of § 502(c) can be found in other portions of the Act. Congress included in its statement of findings and policy the following two considerations:

(d) the expansion of coal mining to meet the Nation's energy needs makes even more urgent the establishment of appropriate standards to minimize damage to the environment and to productivity of the soil and to protect the health and safety of the public.

Section 101(d).

(g) surface mining and reclamation standards are essential in order to insure that competition in interstate commerce among sellers of coal produced in different States will not be used to undermine the ability of the several States to improve and maintain adequate standards on coal mining operations within their borders;

Section 101(g). These findings express a policy supporting a liberal application of the Act in order to address the environmental and social impacts of coal mining "urgently" and to ensure uniform application of the Act so as not to give those operations exempt from the Act a competitive advantage. This policy is exhibited in the House committee's comments on §§ 101(d) and 101(g) wherein it is stated that:

The committee amendment recognizes the urgent need for minimum national environmental protection standards in light of the pending increases in coal production to meet national energy needs and in order to eliminate competitive advantages or disadvantages caused by possible production cost savings due to inadequate environmental protection standards.

H. REP. NO. 218, 95th Cong., 1st Sess. at 61 (1977). Furthermore, the Senate committee report indicates that § 502(c) would permit a wide application of the interim regulatory program with the noted exceptions of federal lands, Indian lands, the States of Alaska and Arizona which were recognized as having no regulatory programs directed toward the environmental control of surface coal mining operations,¹⁵ and states which did not have environmental controls directed toward the surface impacts of underground mining. S. REP. NO. 128, 95th Cong., 1st Sess. at 71 (1977); see also H. REP. NO. 896, 94th Cong., 2d Sess. at 40-43 (1976). There is no indication in the legislative history that these exceptions are not subject to change should a state take the steps necessary under state law to enable its participation in the interim regulatory program.¹⁶

The court finds further guidance in determining the proper reading of § 502(c) from the United States Supreme Court's opinion in Udall v. Tallman, 380 U.S. 1 (1965). In that case the Court noted:

When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration. "To sustain the Commission's application of this statutory term, we need not find that its construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings." Unemployment Comm'n v. Aragon, 329 U.S. 143, 153. See also, e.g., Gray v. Powell, 314 U.S. 402; Universal Battery Co. v. United States, 281 U.S. 580, 583. "Particularly is this [9 ELR 20710] respect due when the administrative practice at stake 'involves a contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion, of making the parts work efficiently and smoothly while they are yet untried and new.'" Power Reactor Co. v. Electricians, 367 U.S. 396, 408.

Id. at 16. This court has not found any legislative history which suggests that the Secretary's interpretation of § 502(c) is unreasonable. Rather, the limited legislative history suggests that Congress intended the interim regulatory program to have a broad reach as a matter of national policy. The court concludes that § 502(c) of the Act is not limited to lands regulated by a state at the time of the enactment of the Act. Since the State of West Virginia has explicitly regulated the surface impacts of underground mines as of March 11, 1978, the underground operations of the plaintiffs and others are within the ambit of § 502(c) of the Act.

The court is, therefore, of the opinion that the defendants' motions for summary judgment should be granted with respect to paragraph X of the complaints.

Accordingly, it is hereby ORDERED that the defendants' motions to dismiss be, and the same hereby are, granted with respect to paragraphs VII and IX of the consolidated complaints.

It is further ORDERED that the defendants' motions for summary judgment be, and the same hereby are, granted with respect to paragraph X of the consolidated complaints.

It is further ORDERED that paragraphs VII, IX and X of the within consolidated complaints be dismissed.

As heretofore noted, the court defers decision on the defendants' motions to dismiss paragraph VIII of the consolidated complaints. Plaintiffs are hereby given leave to file an amended complaint in light of the court's discussion of paragraph VIII in Part II of this order within 15 days from the date hereof, in default of which paragraph VIII and the consolidated complaints in their entirety shall be ordered dismissed.

1. The plaintiffs also allege that jurisdiction is based on 5 U.S.C. § 701. That section, however, has been held not to confer an independent jurisdictional basis for the review of federal administrative action. See Califano v. Sanders, 430 U.S. 99 (1976).

2. All statutory references are to 30 U.S.C.A. §§ 1201-1328 (Supp. 1979) unless otherwise indicated.

3. The sections in title IV of S. 7, the Senate bill as approved by the Senate, correspond to the sections of title V of the Act as enacted.

4. The same construction is equally applicable to cessation orders issued by the Secretary during the interim regulatory program pursuant to § 521(a)(2) since such orders are required to be issued "on the basis of any Federal inspection . . . ." Section 521(a)(2) [emphasis added].

5. This conclusion is implicit in the following passage from the Senate committee's report wherein the committee expressly recognized the possibility of federal-state overlap in the enforcement of the interim regulatory program:

The role of the Federal government has been carefully delineated in this bill, particularly in regard to its activities in those situations where the State is the prime regulatory authority. During the interim period, section 402(e) provides that beginning no later than six months from the dateof enactment and continuing until a State program has been approved or a federal program has been implemented, the Secretary is required to carry out a federal enforcement program which includes inspections and enforcement actions in accordance with the provisions of section 421. The intent of this provision is to place the Secretary in the role of assuring compliance with the interim standards during the time of the initial regulatory procedure. The Committee recognizes that this may to some extent duplicate State activity, however, it is the view of the Committee that this sort of federal presence at the most crucial time of the administration of this Act will result in uniform, equitable enforcement of the interim standards and will assure that the requirements of the Act get off to a good start. The Committee firmly believes that there is no adequate substitute for the Secretary's oversight role, because of the wide variation in the ability of existing State regulatory authorities to enforce compliance with the interim environmental protection performance standards. A recent study by the Congressional Research Service has documented State regulatory deficiencies in this regard.

S. REP. NO. 128, 95th Cong., 1st Sess. at 57 (1977) [emphasis in original].

6. There is no single provision in the Act or excerpt from the legislative history which synthesizes and articulates with clarity the federal-state relationship intended by Congress during the interim regulatory program. Indeed, the relevant materials, as previously noted, are ambiguous. This ambiguity is most likely responsible for the ambiguity in the applicable regulations. The interim regulations authorize federal inspections and enforcement during the interim regulatory program without prior notice to the state regulatory authority in unequivocal terms. See 30 C.F.R. §§ 722.1 to 722.17 (1978). The same regulations, however, delineate federal and state responsibilities during the interim regulatory program as follows:

§ 710.4 Responsibility.

(a) Under the general direction of the Assistant Secretary, Energy and Minerals, the Director is responsible for administering the initial regulatory program established by the Secretary.

(b) The States are responsible for issuing permits and inspection and enforcement on lands on which operations are regulated by a State to insure compliance with the initial performance standards in Parts 715 through 718 of this chapter. States are required to file copies of inspection reports with the Office. States are also responsible for assuring that permits are not issued which would be in conflict with the restriction on mining found in section 510 of the Act, particularly in regard to alluvial valley floors and prime farm lands, and Section 522(e) of the Act in regard to prohibitions of mining on certain lands.

30 C.F.R. § 710.4 (1978). See also 30 C.F.R. § 700.4 (1978). Perhaps this conflict is best reconciled by simply recognizing that § 710.4 of the regulations, as a general expression, must be understood in light of the more specific regulations touching on the federal-state relationship which follow.

7. The Secretary has promulgated detailed regulations with respect to federal enforcement of the interim regulatory program. See 30 C.F.R. §§ 722.1 to 722.17 (1978). A requirement that the Secretary provide prior notice to the state regulatory authority is notably absent from those regulations. It is this failure to have incorporated a notice requirement in the interim regulations which is the actual gist of the plaintiffs' claims with respect to § 521(a)(1).

8. Counsel for the Secretary stated at oral argument that the inconsistency of a regulation with the Act can be asserted by an operator as a defense to an enforcement proceeding. As noted previously, this case is not before the court in the posture of review of an adjudicative (or enforcement) proceeding.

9. Paragraph X of the complaints raises the issue of whether the State of West Virginia regulates underground mining operations so as to bring them within the scope of § 502(c) of the Act. This question is decided in Part IV of this order.

10. Cf. C-Line, Inc. v. United States, 376 F. Supp. 1043, 1048 (D.R.I. 1974).

11. Section 101(f) states the following as one of 11 findings made by the Congress:

(f) because of the diversity in terrain, climate, biologic, chemical, and other physical conditions in areas subject to mining operations, the primary governmental responsibility for developing, authorizing, issuing, and enforcing regulations for surface mining and reclamation operations subject to this Act should rest with the States; . . . .

This finding, when read in conjunction with the two-tier regulatory scheme incorporated in the Act, is manifested in the design of the permanent phase of the Act which enables each state to assume primary responsibility for the regulation of surface coal mining operations within its borders. See § 503.

12. But see Pope v. City of Atlanta, 418 F. Supp. 665 (N.D. Ga. 1976) where the court, in the context of the defendant city's motion to dismiss, refused to indulge in such an assumption:

To prove estoppel, plaintiff must show that she relied on a statement or representation of the defendant or that the defendant misled the plaintiff, and that the plaintiff was induced to act on the defendant's representations. Broussard v. Phillips Petroleum Co., 160 F.2d [sic] Supp. 905, 913 (W.D. La. 1958), aff'd, 265 F.2d 221 (5th Cir. 1959); Delaware Insurance Co. v. Pennsylvania Insurance Co., 126 Ga. 380, 55 S.E. 330 (1906). Plaintiff has failed to plead such reliance sufficiently:

Estoppel must be pleaded with particularity and certainty . . . . [N]othing can be supplied by inference or intendment, and where there is ground for inference or intendment, it will be against and not in favor of the estoppel . . . [T]he burden is on the party who sets up the estoppel to make out the facts on which it rests.

Coen v. American Surety Co., 120 F.2d 393 (8th Cir. 1941). The plaintiff's claim that the city of Atlanta is estopped from enforcing itsstop work order is thus not supported. 418 F. Supp. at 667.

13. In its entirety, § 502(c) of the Act reads as follows:

(c) On and after nine months from the date of enactment of this Act, all surface coal mining operations on lands on which such operations are regulated by a State shall comply with the provisions of subsections 515(b)(2), 515(b)(3), 515(b)(5), 515(b)(10), 515(b)(13), 515(b)(15), 515(b)(19), and 515(d) of this Act or, where a surface coal mining operation will remove an entire coal seam or seams running through the upper fraction of a mountain, ridge, or hill by removing all of the overburden and creating a level plateau or a gently rolling contour with no highwalls remaining, such operation shall comply with the requirements of section 515(c)(4) and (5) without regard to the requirements of section 515(b)(3) or 515(d)(2) and (3), with respect to lands from which overburden and the coal seam being mined have not been removed: Provided, however, That surface coal mining operations in operation pursuant to a permit issued by a State before the date of enactment of this Act, issued to a person as defined in section 701(19) in existence prior to May 2, 1977 and operated by a person whose total annual production of coal from surface and underground coal mining operations does not exceed one hundred thousand tons shall not be subject to the provisions of this subsection except with reference to the provision of subsection 515(d)(1) until January 1, 1979.

14. On August 14, 1978, the West Virginia Department of Natural Resources promulgated regulations implementing W. VA. CODE ANN. § 20-6-23a (Supp. 1978). Section 16.07 of those regulations makes the majority of those regulations applicable to all existing underground mining operations in West Virginia. See W. Va. Surface Mining Reclamation Regulations, Chpt. 20-6, Series VII at 80 (1978).

15. By affidavit, there is evidence before the court that "during the calendar year 1977 there was only one (1) mining operation in the State of Alaska; a surface mine location in Usibelli, Alaska, with an estimated 1977 production of 710,000 tons." In addition, "during the calendar year 1977, there were only two (2) coal mining operations in the State of Arizona; both owned and/or operated by the Peabody Coal Company with a combined 1977 production estimated at 10,765,000 tons . . . [and that] the two (2) Peabody Coal Company mines in Arizona are located on Indian lands, to-wit, on the Navajo Indian Reservation." Affidavit of John R. Woodrum (July 2, 1979) (citing Keystone Coal Industry Manual, 1978 Coal Mine Directory).

16. The defendants have also asserted that the State of West Virginia had regulatory controls on the surface effects of underground mining as of July, 1976, sufficient to bring it within the terms of § 502(c). While the court finds merit in this argument, it is not necessary for the court to pass on it for purposes of the decision reached herein.