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9 ELR 20720 | Environmental Law Reporter | copyright © 1979 | All rights reserved In re Permanent Surface Mining Regulation LitigationNo. 79-1144 (D.D.C. August 21, 1979)In a suit raising numerous challenges to the Secretary of the Interior's regulations establishing a permanent surface mining control program, the court continues a preliminary injunction against enforcement of the August 3, 1979 deadline for submission of state programs, denies industry plaintiffs' motions for preliminary relief regarding the permit application requirements, and grants summary judgment for the Secretary on the public participation and ex parte contacts issues. The Surface Mining Control and Reclamation Act required states to submit proposed programs regulating surface mining within their borders by August 3, 1979. On July 25, 1979, the court preliminarily enjoined this deadline, and the instant decision continues the injunction because of the failure of the Secretary to meet his own deadlines under the Act for the promulgation of final regulations for the permanent program. Injunctive relief is appropriate because plaintiffs are likely to succeed on the merits of their claim that as a result of the Secretary's delay they have had insufficient time to prepare their programs; furthermore, the August 3 deadline was "directory" rather than mandatory. In addition, the states would suffer irreparable harm if held to the August 3 deadline, which outweighs prospective harm to the Secretary for being unable to evaluate the state plans adequately before the June 3, 1980 deadline by which such plans must be approved or replaced with federal plans. The court also points out that Congress will probably extend the June 3 deadline, and the public interest will be better served by an extension of the August 3, 1979 deadline. Turning to the environmental plaintiffs' challenges to the regulations, the court upholds as within his discretion the Secretary's refusal to establish detailed requirements for citizen participation in the development of state programs. The court also rejects claims that the Secretary should bar ex parte contacts between state and federal officials prior to the submission of a state program and denies environmental plaintiffs' motion to compel discovery on all but a limited part of the ex parte contacts issue. As to the industry plaintiffs' claim that the permit application requirements are so burdensome as to threaten the continued operation of their mines, the court concludes that they have failed to show likely success on the merits or irreparable harm in the absence of injunctive relief. Plaintiffs have failed to demonstrate that the permit regulations provide insufficient discretion to the states; however, the adequacy of state discretion can best be evaluated during consideration of this action on the merits. The court also rules that a separate plaintiff is not likely to succeed on the merits of its claim that the court should carve out a smallproducer exception greater than that provided in the Act. Counsel for Environmental Plaintiffs L. Thomas Galloway Jonathan Lash Counsel for Commonwealth of Virginia Counsel for Defendant William M. Eichbaum, Associate Solicitor Counsel for Industry Plaintiffs Thomas G. Johnson, Jr., Senior Counsel Guy Nevill I. Michael Greenberger Robert W. Jordan Harvey M. Sheldon Flannery, J.: The case before the court involves numerous challenges to the validity of the Secretary of the Interior's regulations setting standards for permanent programs regulating the surface mining of coal in the United States. At this stage of the proceedings, the court has before it six motions for preliminary injunctive relief and a discovery motion. At the hearing on these motions on July 25, 1979, the court granted motions filed by the State of Illinois and the Commonwealth of Virginia to enjoin the requirement that they submit draft programs for surface mining within their borders by August 3, 1979.The reasons for the grant of injunctive relief were set forth briefly in an order granting the preliminary injunction and will be discussed more fully in this Memorandum Opinion.The court will deny the industry motions for preliminary relief, will deny most of the environmental plaintiffs' discovery requests, and will enter summary judgment for the defendant on the public participation and ex parte contacts issues. Background and Standard of Review The Surface Mining Control and Reclamation Act of 1977 was enacted by Congress on August 3, 1977. It established a two-tier regulatory program designed to allow the mining of coal while protecting the environment from the damaging effects of suface mining. The first "tier" of the program was an interim regulatory program which became effective in early 1978. 30 U.S.C.A. §§ 501-502 (Supp. 1978); In re Surface Mining Regulation Litigation, 452 F. Supp. 327, 331 [8 ELR 20407] (D.D.C. 1978). The interim regulations were reviewed by this court and certain aspects of that case are now on appeal. During the pendency of the interim program, the Secretary's Office of Surface Mining (OSM) was required to promulgate permanent regulations by August 3, 1978. 30 U.S.C.A. § 501(b) (Supp. 1978). The final regulations, however, were not published until March 13, 1979. They consist of approximately 150 pages of regulations1 and 400 pages of explanatory comment.2 The regulations are designed to provide the basis for a comprehensive program for surface mining, which will be implemented either by the states, if they submit a plan acceptable to OSM,3 or by the Secretary if they do not.4 After the regulations were promulgated, the various parties to this action filed nine separate complaints attacking numerous aspects of the regulations. The court ordered that the case be consolidated and set up a three-stage briefing schedule. The present dispute concerns the need for preliminary relief pending the court's consideration of the many challenges to the regulations on the merits. After the resolution of these issues, the parties will brief approximately half of the roughly 100 specific challenges to the regulations for a hearing in mid-November, and will brief the remaining issues for a hearing in mid-January 1980. Six plaintiffs or groups of plaintiffs have filed motions for preliminary relief. The State of Illinois and the Commonwealth of Virginia requested the court to enjoin the application of the August 3, 1979 deadline for submission of state programs, alleging that they had insufficient time to prepare the programs because of the Secretary's delay in promulgating the regulations, and contending that the denial of relief would cause them irreparable harm. The court granted this request.5 The environmental plaintiffs jointly challenge the Secretary's failure to promulgate detailed regulations for public participation in the preparation of state programs. They also seek to enjoin [9 ELR 20722] "unlawful ex parte contacts" between state and federal officials during the preparation of state programs. Finally, the environmental plaintiffs have initiated discovery regarding alleged ex parte contacts between the President's Council of Economic Advisors (CEA) and the Office of Surface Mining after the close of the comment period for the permanent regulations. The Secretary opposed the discovery requests and the parties briefed this issue pursuant to a court-approved schedule for decision at this time. Three of the industry plaintiffs attack the permit requirement regulations promulgated by the Secretary pursuant to §§ 506-508 of the Act, 30 U.S.C.A. §§ 1256-1258 (Supp. 1978).The Peabody Coal Company (Peabody) contends that the "cumulative burden" of the permit regulations is so great that the industry will be irreparably harmed by compliance and that the two months allotted for the preparation of "complete" permit applications are patently insufficient. A group of plaintiffs led by the Pennsylvania Coal Mining Association (the Pennsylvania plaintiffs) join in the Peabody motion, but also stress the allegedly destructive impact of the permit requirements on small operators in the State of Pennsylvania. Finally, the National Coal Association and the American Mining Congress (NCA/AMC) challengethe basis and purpose statement accompanying the permit regulations, alleging that it dealt inadequately with the financial and time constraint impacts on the industry. After consideration of the various motions and the oppositions filed by the Secretary, the court will (1) allow the injunction issued on July 25 to remain in effect; (2) deny the environmental plaintiffs' motions, except to allow limited discovery; and (3) deny the industry plaintiffs' requests for preliminary relief. In considering the motions for preliminary relief, the court bears in mind two aspects of the applicable standard of review. Section 526 of the Act provides that the rules promulgated by the Secretary shall not be set aside unless they are determined to be "arbitrary, capricious, or otherwise inconsistent with law." 30 U.S.C. § 1276(a)(1) (Supp. 1978). In addition, the present posture of the case, the moving parties must demonstrate the likelihood of success on the merits and the possibility of irreparable harm to them if injunctive relief is not granted. They must also show that the harm to the Secretary or to third parties, or the public interest does not compel the denial of interim relief. Washington Metropolitan Area Transit Authority v. Holiday Tours, 559 F.2d 871 (D.C. Cir. 1977); Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921 (D.C. Cir. 1958). Thus, the plaintiffs must demonstrate the likelihood that they will show that the Secretary has acted arbitrarily or capriciously to prevail on their motions for injunctive relief.6 Commonwealth of Virginia and State of Illinois — Motion to Enjoin the Implementation of the August 3, 1979 Deadline For Submission of Proposed State Programs The Commonwealth of Virginia and the State of Illinois challenge the implementation of a statutory deadline in the Act that would require them to submit proposed state programs for the implementation of the Act by August 3, 1979. Section 503(a) of the Act, 30 U.S.C.A. § 1253(a) (Supp. 1978), requires states that wish to assume exclusive jurisdiction over the regulation of surface coal mining to submit to the Secretary a plan within 18 months after the enactment of the Act. The Act became effective on August 3, 1977. A separate provision of the Act allows the Secretary to extend the submission date by an additional six months if the implementation of a state program would require action by the state legislature. Id. § 1254(a). The Secretary, during the course of promulgating the final regulations, determined that every state subject to the Act would require legislative action, and exercised his extension authority. 30 C.F.R. § 731.12, 44 Fed. Reg. 14951, 15324 (1979). Thus, under the terms of the final regulations, the states must submit plans by August 3, 1979. The gist of the challenge to the August 3 deadline is that the Secretary failed to meet his own deadlines required by the Act. The Act directed the Secretary to promulgate final regulations covering a permanent regulatory program for surface coal mining within one year of the effective date of the Act. 30 U.S.C.A. § 1251(b) (Supp. 1978). Thus, the regulations were to be promulgated by August 3, 1978. They were not actually released in final form until March 13, 1979. This would give the states, if they were to meet the August 3, 1979 deadline, about four and one-half months to review the final regulations, prepare their own plans, secure appropriate legislation, and present the plans to the Secretary for approval. The Secretary clearly expected, when promulgating the final regulations, that the states would be required to meet the August 3 deadlines. 30 C.F.R. § 731.12. After the promulgation of the regulations, the states voiced vociferous objection to the short time allowed for preparation of state plans, and indicated at the outset of proceedings before this court that they would challenge the August 3 deadline. On June 25, 1979, Senator Jackson, at the Administration's request, introduced legislation in the Senate (S. 1403) that would provide an extension of seven months of all deadlines contained in the Act for the submission of state programs or the implementation of a federal program. At the same time, the Secretary moved to provide some relief to the states by requesting an opinion from the Solicitor of the Department of the Interior on his authority to grant further extensions of time for the submission of state programs. The Solicitor concluded that, although the August 3, 1979 deadline was directory in nature and could be extended, the June 3, 1980 deadline for implementation of a permanent program required by § 504(a) of the Act, 30 U.S.C.A. § 1254(a) (Supp. 1978), was mandatory and could not be extended by action of the Secretary. Solicitor's Memorandum of July 2, 1979, at 19. The Secretary therefore resisted an attempt by the State of Illinois to secure an expedited hearing on its motion for preliminary relief by representing that Congress would take action soon, and if Congress did not act, the Secretary unilaterally would extend the August 3 deadline. On the basis of this representation, and in the belief that congressional action would be more appropriate than judicial intervention, the court denied Illinois' motion for an expedited hearing. As of the date of the hearing in this matter, however, Congress had not enacted an extension of time. The Secretary nonetheless maintained that the entire issue was moot, because the Secretary had promised to grant an extension, although "[t]he exact extent and manner of an extension by executive action is still under consideration." At the hearing on July 25, the Secretary represented to the court that he was prepared to sign a proposed regulation that would enable the states to extend their time for submission up to 60 days on a case-by-case basis. The regulation would provide that the submission date could be extended only on a showing by the state that the delay was justified, after an application for an extension, wih the final decision to rest in the hands of the Secretary. At the hearing, the court held that Illinois and Virginia had demonstrated a likelihood that the retention of the August 3 deadline would be arbitrary and capricious, and that the proposed, qualified 60-day extension did not change this conclusion. The following shall constitute the court's findings regarding the propriety of injunctive relief. Likelihood of Success on the Merits The parties all agree that the August 3, 1979 deadline is "directory" in nature. The court also concludes that this deadline was intended to provide the Secretary and the states with goals, rather than absolute timetables that carry a penalty for non-compliance.Compare Tennessee Valley Authority v. Hill, 437 U.S. 153, 193-95 [8 ELR 20513] (1978) with Ralpho v. Bell, 569 F.2d 607, 627-28 (D.C. Cir. 1977), rehearing denied, 569 F.2d 636 (per curiam). The 12-month and 18-month timetables provided a guide for the conduct of orderly procedures in developing and implementing a comprehensive set of regulations governing the surface mining of coal. The Solicitor of the Department of the Interior [9 ELR 20723] concluded, however, that the June 3, 1980 deadline is mandatory in nature and may not be extended by the Secretary. This result, according to the Solicitor, is compelled by an examination of the consequences of a failure to meet that deadline. These are that (1) the Secretary must promulgate and implement a permanent regulatory program by June 3, 1980, if a state program has not been approved or is not being enforced; (2) citizen participation and bonding requirements will not become fully effective until a permanent program is in effect; and (3) the protection of the environment contemplated by the Act will not be fully available until the permanent program is in effect. Solicitor's Memorandum, at 7-8. The court need not resolve the question whether the June 3, 1980 deadline is mandatory at this time, because the injunction issued by the court does not apply directly to the June 3 deadline and because the court concludes that, even if the June 3 deadline is mandatory, the states nevertheless are entitled to relief. The court is presented, therefore, with a situation in which all parties agree that the August 3 deadline is directory and should be extended, but in which the Secretary will not grant the states an extension of seven months so that they will have the full 12 months provided for by the Act. It may be that the full one-year period is "directory" and could, in certain circumstances, be adjusted by a small amount. On the facts of this case, however, the court concludes that the four and one-half months left to the states are patently insufficient, and that the possibility of a two-month extension, even if it were to be granted, does not ease the time constraints felt by the states. Consequently, the Virginia and Illinois motions are not moot, and the states are likely to prevail on the merits of their request. Irreparable Harm to the States The states will suffer irreparable harm if they are not afforded relief on their request for additional time to prepare proposed programs. The Act requires them to submit a plan for approval by the Secretary. If the Secretary finds the plan unacceptable, and the state cannot revise it to the Secretary's satisfaction, the federal government will assume jurisdiction over surface coal mining in the state. Congress recognized that this was an undesirable, but possibly necessary step. See 30 U.S.C.A. § 1201(f) (Supp. 1978) (because of diversity in physical conditions, primary responsibility for regulating operations "should rest with the States"); id. § 1202(g) (purpose of the Act is to assist the states in developing and implementing a program to achieve purposes of Act); id. § 1211(c)(9) (OSM to assist states in meeting requirements of act with programs that reflect local conditions). The Senate Committee on Energy and Natural Resources, in its committee report on the final version of the Act, stated that: The assumption of regulatory authority over surface mining operations in any State by the Secretary through promulgation of a Federal program for that State is regarded by the Committee as a "last resort" measure . . . . It is certainly preferable that the State regulate such operations through State programs, which meet the requirements of the Act. The Committee hopes and expects that the States, in good faith, will develop and implement strong State programs. However, if they fail to do so, the purpose of the Act and this section in particular is to insure that the full reach of the Federal constitutional powers will be exercised to achieve the purpose of the Act. S. REP. NO. 128, 95th Cong., 1st Sess. 73 (1977). The Secretary also recognizes that the implementation of a federal program is a "serious consequence" for a state that lacks an adequate plan. Solicitor's Memorandum, supra, at 7. The promulgation of a federal plan totally deprives the state for an indefinite time of the ability to regulate coal mining on either private or federal lands within its boundaries, and the Secretary becomes the exclusive regulatory authority. Id.; see 30 U.S.C.A. § 504(a) (Supp. 1978). The Secretary would assume ongoing control over all aspects of surface mining in the state, an event that Illinois characterizes as "usurpation of states' rights to regulate surface and underground coal mining through its police power," Illinois Memorandum, at 1, and which the various states have challenged in legal actions as violations of the Commerce Clause and of the Tenth Amendment. Defendants' Memorandum, at 15-16 and note. In the absence of relief from the court, the states, in trying to meet the August 3 deadline or an unspecified extension of up to two months, will suffer immediate serious harm in a number of ways. The Commonwealth of Virginia, for example, indicates that the Virginia General Assembly attempted to pass adequate enabling legislation in early 1979, but was hindered by the absence of final regulations, which should have been published by then. The Assembly will not meet again until early 1980 and therefore enabling legislation cannot be passed until then. Griles Aff. P5. The rush to complete the plan by August 3, 1979 has resulted in considerable expense for consultants, attorneys, and staff, although it appears that some of this cost may be defrayed by federal grants. Id. P6, see Defendants' Memorandum, at 13. Public hearings have been held or were to be held, but the confusion resulting from the late promulgation of the regulations and uncertainty over judicial challenges has prevented meaningful comment. Griles Aff. P7. Mr. Griles further stated, in an affidavit prepared in June, 1979: 8. In July, 1979, The Board of Conservation and Economic Development will consider the proposed program after the public comment period closes. It, as well as its staff, of which I am a principal member, will face the same dilemma and quandry, knowing that any action taken will later be changed or repeated. Regulations adopted under these conditions will have little meaning and, as stated, will not really be regulations at all. As a government official and public servant, I feel that such events will harm the whole regulatory process and the psychological disorientation caused thereby will spill over into other similar activities, as well as causing serious administrative problems for the Department. The State of Illinois, by affidavit of Douglas Downing, Supervisor of the Land Reclamation Division of the Illinois Department of Mines and Minerals, has provided the court with a lengthy affidavit describing the harm that will flow from the August 3, 1979 deadline, and providing as attachments the views of numerous governors of the various states. Their views and protestations are contained in the record and need not be set forth at great length, but they reflect a unanimous view that (1) the severe burdens inposed by an overly short deadline will require considerable wasted time, expense, and manpower on work that undoubtedly will have to be done over again; (2) the press of work done in attempting to meet the August 3 deadline precludes the development and submission of serious alternatives to the federal program, as contemplated by the Act; and (3) public participation is restricted by the lack of time for deliberate review of the proposed program. In view of the compelling showing by the Commonwealth of Virginia and the State of Illinois, it is apparent that the states will suffer irreparable harm by the imposition of the August 3 deadline. It is also evident that the states need the full year contemplated by Congress to prepare an adequate program, and that the Secretary's promise of "appropriate" time provides only the illusion of relief. Harm to Other Parties if the Injunction is Granted The Secretary and the OSM will be hindered in their attempts to review state submissions by the grant of an injunction. The Act contemplates review at two levels of OSM, the concurrence of other federal agencies, public comment, and an opportunity for the states to revise their plans. See U.S.C.A. § 503 (Supp. 1978). The grant of an injunction could impair the agency's ability adequately to evaluate state plans. A number of factors, however, considerably mitigate possible harm to the Secretary caused by a grant of interlocutory relief. First, any harm that will come to the Secretary is the direct result of the Secretary's own delay in promulgating final regulations for use by the states in drafting their plans. The court sees no reason to place the burden resulting from the Secretary's delay on the states. Second, the Secretary appears to be proceeding vigorously in seeking relief from Congress by way of a seven-month extension [9 ELR 20724] of the June 30, 1980 deadline. Given the apparent agreement by all concerned that some form of relief is required, it is probable that Congress will, in the near future, grant the requested extension.7 Balancing this possibility against the immediate harm to the states, the court concludes that any prospective harm to the Secretary fails to overcome the states' need for immediate relief. The public has an interest in the orderly promulgation of comprehensive programs for surface mining and reclamation that reflect the congressional goals of protection of the environment, adequate levels of coal production, and the opportunity for states to develop alternatives to the federal program that reflect their local conditions. The court concludes that additional time is required for the states to develop programs, particularly in view of their need to develop reasoned alternatives to portions of the federal program. The environmental protections under the interim regulations are less comprehensive than they would be under the final regulations, but no one would contend that they are wholly inadequate. The court considers the public interest in reasoned consideration of the plans important in avoiding the waste of effort and funds, and consequent public disillusionment, that will accompany a headlong rush to complete the plans in an inadequate time. The court also believes that it is in the public interest to provide some relief from the states in the interest of federal-state relationships. The injunction granted on July 25 shall remain in effect as provided in the injunction. National Wildlife Federation: Challenges to Public Participation Provisions and Alleged Ex Parte Contacts The environmental plaintiffs focus their request for preliminary relief on the public participation portions of the state program approval process and on alleged "ex parte" contacts between state officials and the Department of the Interior in which state surface mining and reclamation programs are discussed.On the public participation issue, the environmental plaintiffs allege that, unless the court so orders, the "[d]efendant will not promulgate regulations establishing the procedures and requirements for public participation in the development of State regulatory programs under the Act. States are not making and will not make adequate provision for such public participation without specific and binding regulations." NWF Motion, p. 2.8 On the ex parte issue, the environmental plaintiffs allege that "[u]nless restrained by this Court, Defendant will continue to engage in secret ex parte contacts with State officials to discuss the substance of State regulatory programs submitted or to be submitted to Defendant under the Act . . . ." Id. The court considers these issues sufficiently clear to permit a ruling on the merits. See FED. R. CIV. P. 65(a)(2). Summary judgment will be entered for the Secretary on these issues. The environmental plaintiffs challenge the Secretary's refusal to establish detailed requirements for citizen participation in the development of state surface mining programs as inconsistent with the Act and arbitrary and capricious. The Act is structured to allow states in which surface mining operations are conducted to regulate such operations by developing and submittingto the OSM a program that comports with the Act and meets the approval of the Secretary. The only explicit congressional requirement for approval of state programs that involves citizen participation is that the Secretary hold at least one public hearing on the program within the state prior to approval. 30 U.S.C.A. § 253(b)(3) (Supp. 1978). The Secretary nonetheless promulgated regulations requiring citizen participation pursuant to a general statutory power to establish procedures for the preparation, submission, and approval of state programs. Id. § 1251(b). These requirements are, first, that the application for program approval contain, inter alia, "[n]arrative descriptions, flow charts or other appropriate documents": (14) Providing for public participation in the development revision and enforcement of State regulations, the State program, and permits under the State program. 30 C.F.R. § 731.15(g)(14), 44 Fed. Reg. 15325 (1979) (emphasis added). Second, the Secretary will not approve a program unless he finds that it: (10) Provide[s] for public participation in the development, revision and enforcement of State regulations and the State program, consistent with public participation requirements of the Act and this Chapter. Id. § 732.15(10), 44 Fed. Reg. 15327 (1979) (emphasis added). The Secretary maintains that this structure, which places upon the states the onus of developing citizen participation plans, gives the Office of Surface Mining flexibility in working with the states and gives the states flexibility in selecting methods best suited to their individual conditions. 44 Fed. Reg. 14965 (1979). Rather than mandate a certain procedure, the Secretary has included the above general conditions in the approval process and has sent a letter to the head of the regulatory authority in each coal-mining state bringing the citizen participation requirement to the state's attention. See Def. Ex. A. The plaintiffs assail the general requirements as "legally and practically inadequate" to assure citizen participation. They point to § 102(i) of the Act as requiring public participation in the preparation or development of a state program. That section indicates that it is the purpose of Congress to: (i) assure that appropriate procedures are provided for the public participation in the development, revision, and enforcement of regulations, standards, reclamation plans, or programs established by the Secretary or any State under this chapter. 30 U.S.C.A. § 1202(i) (Supp. 1978). The plaintiffs contend that allowing the states to develop their own participation requirements, subject to after-the-fact review by the Secretary, cannot amount to "appropriate" procedures for public participation. NWF Memorandum p. 6; see 30 U.S.C.A. § 1251(b) (Supp. 1978); id. § 1202(i). The environmental plaintiffs cannot succeed on the merits of this claim. The language they cite from the Act demonstrates a strong congressional intent that citizens be allowed to participate in all aspects of the regulation of surface mining, but does not explicitly require the Secretary to promulgate regulations directing the form of participation in the development of state plans. It is evident from the statute, the regulations, and the record in this case that citizens have been actively involved in the promulgation of regulations by the OSM that will guide the states in preparing their own plans.Citizens also will have an active role in numerous aspects of the ongoing regulatory scheme, including the approval by the Secretary of the state plan. The position taken by the Secretary is not that citizens are barred from the program development process at the state level; rather, it is that the Secretary has required this participation without specifying precisely the form it must take. The court sees nothing in the Act that would mandate this type of regulation. In the absence of a specific directive from Congress, the court agrees with the defendant that the Secretary has considerable discretion in implementing the general statutory directive to ensure public participation. See SEC v. Chenery Corp., 332 U.S. 194, 202-03 (1946). The Secretary has chosen to ensure citizen participation in the development process by allowing the states to develop their own schemes and by conditioning approval of the plan on adequate participation. This procedure is within the Secretary's authority and is not an abuse of discretion. The State of Illinois would like more guidance on the type of [9 ELR 20725] procedures acceptable to the Secretary, and joins the environmental plaintiffs, arguing that guidance from the Secretary would avoid the possibility of after-the-fact rejection due to inadequate participation. It may be true that reviewing citizen participation levels after the submission of a program is less efficient than setting forth general guidelines for such participation. Nonetheless, the court's role in reviewing this decision is to determine whether such procedures are mandated by the Act, not to "stray beyond the judicial province to explore the procedural format or to impose upon the agency its own notion of which procedures are 'best' or most likely to further some vague, undefined public good." Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 [8 ELR 20288] (1978). Finally, the plaintiffs' reliance on Citizens for a Better Environment v. EPA, No. 78-1042 (7th Cir. Jan. 26, 1979), 9 ENVIR. L. REP. 20092, is misplaced. That case arose under the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq., which contains an explicit provision compelling the Administrator of the EPA to "develop and publish" regulations containing guidelines for public participation in, inter alia, "the development . . ." of plans or programs under the Act. See id. § 1251(e). Moreover, the court in that case relied upon legislative history indicating a congressional desire that the EPA direct the form of participation in the development in state programs. Slip op., at 6. In the present case, the court finds no such explicit statutory duty, and the environmental plaintiffs have not pointed to any legislative history that would disturb this conclusion. Summary judgment on this issue will be entered for the defendants. B. Ex Parte Contacts Between State and Federal Officials The environmental plaintiffs take the position that the Secretary is effectively foreclosing citizen participation in the program approval process by refusing to bar ex parte communications between Department of the Interior officials and state officials. They contend that the process by which a state program is developed, refined, and presented to the Secretary amounts to an informal rule making, so that the traditional rule-making restriction on ex parte contacts should apply.9 In support of their position, the environmental plaintiffs have marshalled three arguments. First, they maintain that the approval-disapproval process is a rulemaking proceeding. Second, they contend that, even if the process is not a rule making, the requirement in the Act for a hearing in the submitting state prior to program approval provides a basis for similar restrictions on ex parte communications. Finally, they urge the court to hold that the Federal Advisory Committee Act requires that communications between the Department of the Interior and the states be made public.10 The Secretary argues that, regardless of the characterization of the state program approval process, it is imperative that the Secretary consult with officials from the states on an informal, ongoing basis, both to provide information and to discuss matters of substance. According to the Secretary, the public access provisions of the Act are already adequate, and recent cases in the United States Court of Appeals for the District of Columbia Circuit limiting ex parte contacts arose in the context of private parties and should not be applied to communications between state officials and officers of the federal government. The court agrees that on the facts of this case the plaintiffs are not entitled to the relief they seek. The court distinguishes between the "presubmission" and "post-submission" stages of state program preparation. The presubmission period is that period of time after the promulgation of the final OSM regulations (March 13, 1979) and the formal submission of a state program to OSM for review (March 3, 1980, under the terms of the court's Order). The "postsubmission" stage commences when the OSM receives the program, and continues until the program is either accepted or rejected. The court will not rule at this time on the "postsubmission" period issues, although it would appear that a more formal relationship between OSM and the states would be appropriate during the postsubmission period. No ruling is required, because the postsubmission period will be the subject of "guidelines" to be issued by the Secretary. 44 Fed. Reg. 14958 (1979). The Secretary initially concluded in issuing the proposed regulations that the process of approving a state program was a rule-making proceeding. See 43 Fed. Reg. 41676 (1978). Accordingly, he proposed that, after the submission of state programs for approval, the process be open to all parties, without ex parte communications. In the Preamble to the Final Regulations, however, the Secretary stated that a number of commentators had requested that presubmission meetings be open to the public, and that a state, by contrast, proposed that the OSM Regional Director be allowed to assist in the preparation of state programs in an advisory capacity, including a preliminary review of the program without public notice and participation. The Secretary then stated: The Office has not accepted these comments to establish requirements within the regulations for presubmission and postsubmission meetings between the office and a State to discuss program development. These final regulations therefore do not specifically prohibit ex parte contact prior to or following program submission. It should be noted that this explanation represents a change in intended policy from that contained in the Preamble to the proposed regulations. The recommendation to change the regulation to provide for open meetings between the States and OSM has not been accepted since it is not required by the Act. The presubmission meetings will be crucial to program development and the Office intends to meet often with States during this time to provide assistance. Many of these meetings are likely to be working sessions which extend over days or weeks. With regard to meetings following program submission. [sic] The Office intends to issue procedural guidelines prior to submission of State programs. These guidelines will address the format for postsubmission exchanges that will occur between OSM and the State. It must be noted that the final regulations provide for an additional period of time following program submissions in which States will be permitted to make modifications. Certainly there must be free exchange between OSM and the State during this additional period for program modification. The provisions for public participation in the development process are discussed further in Part 732. 44 Fed. Reg. 14958 (1979). Part 732 of the final regulations allows parties to receive notice of a proposed plan, and affords them with an opportunity to comment on the proposed State program. See 44 Fed. Reg. 15326 (1979). The Secretary does not seriously maintain that the promulgation and approval of a state plan is not a rule-making proceeding, and it appears that, at least from the time of the submission of the proposed plan, it is a rule-making proceeding. Section 526 of the Act, 30 U.S.C.A. § 1276 (Supp. 1978), is divided into two parts. Subsection (a)(1), read in context, applies to rule-making proceedings. Subsection (a)(2), read in context, applies to adjudicative proceedings. At some point in the process, the preparation of a state program seems to become equivalent to "any other action constituting rulemaking," subject to review under the arbitrary and capricious standard. The plaintiffs maintain that the "submission and approval-disapproval of State programs contain all the indicia of an informal rulemaking." NWF Memorandum, p. [9 ELR 20726] 20. Significantly, they point to the entire panoply of postsubmission procedures in support of this contention.11 It is far from clear that the initial preparation of a plan at the state level constitutes a rule-making proceeding.12 Moreover, even the case law cited by the plaintiffs views the formal issuance of a notice of proposed rule making as the key factor triggering the ex parte contacts doctrine. Home Box Office, Inc. v. FCC, 567 F.2d 9, 57 (D.C. Cir. 1977). The court concludes that the presubmission period is not a "rulemaking." Even if it were, the court agrees with the Secretary that on the facts of this case informal meetings are not improper. None of the recent ex parte contact cases involved the situation now before the court. In National Small Shipments Traffic Conference, Inc. v. ICC, 590 F.2d 345 (D.C. Cir. 1978) the court of appeals concluded that the ICC violated a requirement that any determination of a tariff's fairness be made after a "hearing" by allowing ex parte contacts to provide the basis for a decision to discontinue a rate making investigation. Id. at 350-51. The exparte communications were between the ICC and "counsel for the Eastern Carriers," who were intimately involved in the ratemaking proceeding, as well as "extra-record statements made by representatives of the carriers . . . ." Id. at 348-49. The court determined that, although the ICC has substantial flexibility in structuring its "hearings," certain minimum constraints, including a ban on ex parte proceedings, must be observed. Id. at 351.13 In United States Lines v. Federal Maritime Commission, 584 F.2d 519 (D.C. Cir. 1978), the court struck down an amendment to a "joint service agreement" that allowed competitors of a petitioning party to operate jointly in maritime trade between North America and Europe. Id. at 523-24. One of the reasons for striking down the amendment was the existence of ex parte contacts between the Commission and a party to the quasi-adjudicatory proceedings as well as between the Commission and representatives of the French and German governments. Id. at 537-38. These communications were not reported to the primary party to the proceeding. As the court stated: USL was not informed of, let alone given the opportunity to respond to, the new arguements of Euro-Pacific or of the French and German governments as to the proposed agreement. Nor did USL know of or have the opportunity to respond to the arguments which Euro-Pacific conveyed secretly to the Commission in response to USL's protest. And it was after consideration of these ex parte arguments and responses, with no opportunity for further rebuttal, that the Commission reversed its position on participation of ICT. Id. at 540-41. The court of appeals also remanded a rule-making record for supplementation in Home Box Office, Inc. v. FCC, 567 F.2d 9 (D.C. Cir. 1977), because of ex parte contacts involving virtually every participant in proceedings before the Commission. Id. at 52. Finally, in Environmental Defense Fund v. Blum, 458 F. Supp. 650 [8 ELR 20748] (D.D.C. 1978), Judge Gesell remanded a decision allowing the use of a pesticide to the Agency because of "procedural defects which permeate the balance of the agency's rulemaking." Id. at 659. A substantial amount of information, including several submissions by the State of Mississippi, was submitted to the Agency without an opportunity for adversarial comment, even after the close of the rule-making period. Id. at 660. The present case is distinguishable in a number of respects from the cases cited above. First, most of the contacts complained of in the cases above were from private parties regarding a private benefit from the Agency. EDF v. Blum does not mean, as the environmental plaintiffs suggest, that state officials automatically are in the same position as private parties when talking with federal officials. It does counsel a close look at the nature of their activities. Second, the Office of Surface Mining and the state regulatory officials involved are charged with the responsibility of working cooperatively in formulating state programs. This is designed to be a non-adversary proceeding, particularly during the presubmission stage. Most important, in this case the contacts between state and federal officials during the presubmission stage will result in a proposed state program. During the postsubmission stage, interested parties will have ample opportunities to examine and comment upon the proposed regulatory program, removing the central problem of EDF v. Blum. It is for this reason that the plaintiffs' "hearing" argument lacks merit. The doctrine proscribing ex parte contacts has enjoyed substantial growth in recent years, but it is not an inflexible, mechanical rule. The court concludes that in the case at bar the dangers associated with such contacts are not present in the ongoing consultation between state and federal officials prior to the submission of a state program. The Secretary has explained that flexibility is required in ongoing contacts over days or weeks while all concerned are explaining and discussing the requirements of the Act. This is not arbitrary or capricious. Summary judgment shall be entered for the defendants on this issue. Environmental Plaintiffs: Motion to Compel Discovery After the initiation of this action, the environmental plaintiffs initiated discovery regarding allegedly illegal ex parte contacts between the Office of Surface Mining and the President's Council of Economic Advisors (CEA). These contacts allegedly took place after the close of the comment period on the permanent regulations, and allegedly had a substantial impact on the air quality sections of the regulations. The environmental plaintiffs filed interrogatories, a request for production of documents, and a motion to supplement the record, as well as noticing several depositions. The Secretary opposed this motion, arguing that as a matter of law contacts between the CEA, as a presidential advisor, and the OSM, as part of a Cabinet-level agency, are not illegal, so that the threshold showing for discovery had not been made. The parties briefed this issue pursuant to a court-approved schedule for argument on July 25 and a decision at this time. The environmental plaintiffs agree that consultation between the President's advisors and other entities in the executive branch is not illegal. Their argument concerns the procedures employed in the present case, whereby the CEA, after conducting itself throughout the rule making as an outside party, suddenly transformed itself into a consultant to the Secretary. They maintain that if the CEA decides to act as an "insider," then it must "play by the rules." Moreover, according to the environmental plaintiffs, the CEA violated traditional norms of rule-making procedure, at least for "insiders," by engaging in extensive solicitation of comments from industry groups and presenting these views to the Secretary as CEA's own views. The court will deny most of the discovery sought by the environmental plaintiffs, but will permit a limited amount of exploration to determine whether documents exist that were presented off-the-record to CEA without the opportunity for adversarial comment. The parties do not dispute the general rule that review of administrative actions must take place on the basis of the administrative record, and that the courts are reluctant to permit discovery in such cases. See, e.g., Doraiswamy v. Secretary of Labor, 555 F.2d 832 (D.C. Cir. 1976), and cases cited therein. It is axiomatic, however, that the courts must ensure that documents actually relied upon by the decision maker were subjected to adversarial comment and have been placed in the record for subsequent review. The court concludes that much of the information sought by the environmental plaintiffs probes too deeply into the deliberative process of the Agency to be justifiable discovery on the [9 ELR 20727] record in this case. A review of the interrogatories and the request for production of documents indicates that the plaintiffs seek to explore each and every contact between OSM, CEA, and various officials and entities engaged in the rule-making proceeding, as well as all steps taken by the Secretary in examining, deciding, and approving the permanent regulations. Interrogatory Number Five, for example, requests a list and description of every contact between "personnel in the Office of the Assistant Secretary and personnel in OPA/PBA between September 18, 1978 and March 13, 1979." Both of these entities, according to the environmental plaintiffs' own definitions, are within the Department of the Interior. The court need not review further similar examples. It is sufficient to note that (1) the environmental plaintiffs were well aware of CEA's position on air quality; (2) CEA prepared a list of contactsreceived from outside parties when it decided to meet with OSM officials; and (3) the comment period was reopened in early 1979 to allow adversarial comment on contacts with CEA. Given this predicate for the orderly development of a record, and given the environmental plaintiffs' concession that communications between the CEA and the OSM were not improper, the court will not compel an exploration of the internal decision-making process. The environmental plaintiffs' desire to explore the "effects" of CEA/OSM contacts does not overcome the presumption that internal agency contacts are proper. The plaintiffs have made a showing, however, that there might have been contacts between industry sources and the CEA that provided substantive information which was relied upon by the CEA and eventually the Secretary without being placed on the public record. The environmental plaintiffs refer, for example, to a submission from Grafton Coal, and a study done by the Environmental Research and Technology, Inc., DOE contractors, as examples of submissions that were off the record and might still be outside the administrative record. To ensure that the record is complete, the court will permit a limited amount of discovery to determine what contacts the CEA had with outside parties during the rule-making proceeding, how much of this information was subjected to comment in early 1979, and how much, if any, remains outside the record before this court. The interrogatories propounded by the environmental plaintiffs clearly are overbroad and unjustified on the record of this case, and the motion to compel as to them will be denied in its entirety. The requests for production of documents will be allowed only to the extent that they seek the production of documents received by CEA from outside parties between September 18, 1978, and March 13, 1978, that have not been placed on the public record. The motion to supplement the record will be denied, because the court concludes that the proffered material constitutes internal guidelines not binding on the Agency and that it was not a part of the Secretary's deliberations in promulgating the regulations under the review. The noticed depositions will not be had. The Industry Plaintiffs' Attack on the Permit Application Regulations The industry plaintiffs have mounted an assault on the Secretary's permit application regulations contained in 30 C.F.R. §§ 778-782. The Peabody Coal Company argues that the "cumulative burden" of the regulations is so great that the coal mining industry will be irreparably harmed by the cost of preparing applications for permits to continue the operation of existing mines. Peabody also argues that the requirement imposed by the regulations that the application be "complete" when submitted, and that the entire application be submitted within two months of the implementation of a regulatory program goes beyond the Secretary's authority and raises serious constitutional questions. The Pennsylvania plaintiffs agree with the Peabody Memorandum, and supplement it with argument of their own, focusing on the impact of the permit regulations on small operators in Pennsylvania. Finally, the National Coal Association and the American Mining Congress, et al., (NCA/AMC) concur in the Peabody arguments as well as contending that the Secretary's basis and purpose statement fails adequately to address the question of impact on the industry. After considering the memoranda submitted by the industry plaintiffs and the response filed by the defendants, the court concludes that the industry plaintiffs have failed to make the showing required for the grant of injunctive relief.14 Likelihood of Success on the Merits Section 502(d) of the Act, 30 U.S.C.A. § 1252(d) (Supp. 1978) requires the filing of a permit for existing mines: (d) Not later than two months following the approval of a State program pursuant to Section 503 or the implementation of a Federal program pursuant to 504, . . . all operators of surface coal mines in expectation of operating such mines after the expiration of eight months from the approval of a State program or the implementation of a Federal program, shall file an application for a permit with the regulatory authority . . . . The penalty for failing to submit an application for a permit is the cessation of surface mining activity eight months after the implementation of a regulatory program. 30 U.S.C.A. § 1256(a) (Supp. 1978). The permit application requirements are set forth in § 507 of the Act, 30 U.S.C.A. § 1257, and they include the requirement that each application contain a reclamation plan, the details of which are set forth in § 508 of the Act. Id. §§ 1257(d), 1258. The statutory requirements for a permit are exceedingly detailed and comprehensive. The Secretary promulgated regulations that compound the detail required by the Act. These are parts 778-780 of C.F.R., establishing specific requirements for application contents for surface coal mines, and parts 782-784, establishing requirements for applications for underground coal mines. 44 Fed. Reg. 15349-15370 (Mar. 13, 1979). The Secretary, in conformity with the Act, requires the application to be filed within two months after the approval of a regulatory program. 30 C.F.R. § 771.21(a)(1). He went beyond the explicit terms of the Act, however, in requiring the application to be "complete," which means that it must contain all information required under the Act, the regulations, and the regulatory program. Id. §§ 770.5, 771.13. The Secretary's basis and purpose statement for the two-month period and the "complete" application requirement was as follows: Several commenters stated that the requirement for having a valid permit to mine coal within eight months from the date on which a regulatory program is approved by the Secretary was much too short. Because two months are allowed for operators to file applications after the program is approved, six months remain for the regulatory authority to review the application. Under Section 506(a), however, permits for existing mines continue in effect, if the regulatory authority does not act within six months. Several commenters felt that the six-month review period was too long. The comments were rejected, because these time limits are required by Sections 502(d) and 506(a) of the Act. 30 C.F.R. § 771, 44 Fed. Reg. 15014. Several commenters requested that the reference in proposed Section 771.13(a) to a "complete" application be deleted. This comment was rejected. Public participation and the review process cannot go forward until a "complete application" is on file, as required by sections 502(d), 513, and 514 of the Act. Ordinarily, those processes will take approximately six months to conclude, so that complete applications are needed within two months of [9 ELR 20728] institution of the permanent regulatory program if the regulatory authority is to meet the eight-month deadline of Section 506(a) of the Act. 30 C.F.R. § 771.13, 44 Fed. Reg. 15015. Several commenters objected to the two-month application filing deadline after initial institution of permanent regulatory programs. These comments were rejected, because that date is required under Section 502(d) of the Act. The Office also notes that the final rules have eliminated the provisions for mandatory one full wateryear data collection requirements at Sections 779.16 and 783.16. Those provisions were cited by the commenters objecting to the two-month deadline as the major obstacle to meeting that time limit. As with other aspects of the application, that change allows for the use of existing data to extrapolate, through valid predictive devices such as modeling, to satisfy the requirements of parts 779-780, 783-784. 30 C.F.R. § 771.21, 44 Fed. Reg. 15016. Comments were rejected that suggested requirements be lessened under paragraph (a), to allow for the staged submission of application information for up to 17 months after initiation of a permanent regulatory program. Sections 502(d) and 506(a) of the Act contemplate that existing operations will have been reviewed and their applications fully processed and evaluated not later than eight months from institution of a State or Federal program. Public participation requirements, regulatory authority review, and coordination with other government entities will require most of the six months prior to the eight-month deadlines. Those requirements make it imperative that complete applications be provided to the regulatory authority within the two-month deadline of Section 502(d) of the Act and 30 CFR 771.21(a)(1). The claims made by the industry plaintiffs boil down to three basic contentions. First, they maintain that the cumulative impact of the regulations is so overwhelming that the regulations should be modified to permit companies to submit the minimum information required by the Act. Peabody admits, however, that the regulations, when viewed as a whole, appear to be based on the statutory requirements of 30 U.S.C. §§ 1257 and 1258. The court has compared numerous sections of the regulations with the Act, and finds that the remaining industry plaintiffs are not likely to prevail on a claim that the regulations depart from the intent of the statute.15 Peabody's request for relief boils down to an attempt to have the court amend the permit regulations by slashing most of the requirements specified in the regulations. The appendix containing suggested revisions to the regulations would have the court amend the regulations to provide for staged submissions of information or to allow the applicant for a permit to ignore informational requirements which the regulatory agency does not need or desire. Although couched in terms of preliminary relief, this would place the court in the position of rewriting, for the indefinite future, numerous complex and technical regulations. The court lacks the necessary expertise for this endeavor. Moreover, many of the disputes over the ability to use modeling, statistical information, and information in the hands of the agency have been resolved, at least in part, by the submission by Peabody and the defendants of counter forms of orders. After considering Peabody's proposed order and the defendants' response, the court will sign the defendants' form of order, which will be incorporated into this opinion. This will not satisfy Peabody entirely, but it does vitiate some of Peabody's contentions regarding the unreasonable nature of the regulations. The second basic contention put forth by Peabody is that the two-month deadline for the submission of permit applications, coupled with the requirement that the applications be "complete" when filed, is arbitrary and capricious and will impose a crushing burden on the industry. The court is sympathetic to the burdensome argument, but must disagree that the requirement that applications be "complete" is arbitrary or capricious. As the Secretary indicated, the Act requires that permits be filed within two months after the approval of a regulatory program. 30 U.S.C.A. § 1252(d) (Supp. 1978). The Secretary exercised his rulemaking authority to specify that the application be complete. It appears from the record that the states opposed the industry's staged submission proposal. It is evident from the basis and purpose statement that the Secretary concluded that the needs of the public to review the application and of the various administrative agencies to act upon it within six months required that the application be complete when filed. The court concludes that this was not arbitrary or capricious, and that the basis and purpose statement adequately sets forth the reasoning behind the Secretary's decision.16 Peabody's third major contention is that the Secretary has usurped the authority of the state regulatory agencies to define the information they require for permit decisions. To the extent that this challenge is based on the language of the Act, it is without merit. Although § 507 refersconsistently to the "regulatory authority," which ordinarily will be the states, the mere reference to the regulatory authority does not mean that the Secretary cannot promulgate regulations covering the permit process. First, the structure of the Act is such that the regulatory authority could be either the state or the federal government, depending on whether an adequate plan has been submitted and approved. Second, the Secretary has the authority to "publish and promulgate such rules and regulations as may be necessary to carry out the purposes and provisions of this Act," see 30 U.S.C.A. § 1211(c)(2), and the plaintiffs have pointed to nothing that would derogate from this authority in the permit application area. To the extent that the challenge to the permit application regulations is based on a belief that the regulations themselves afford the states with almost no discretion, the court concludes that a ruling on this claim would be premature. The "state window" provisions of the regulations are hotly contested. The court issued an injunction on July 25 that provides the states with more time to prepare alternative proposals to meet the purposes of the Act. Finally, the adequacy of the discretion left to the states can best be evaluated during consideration of this action on the merits. The court concludes that the plaintiffs have failed to demonstrate that they are likely to prevail on their claim that the permit regulations, taken as a whole, provide insufficient discretion to the states. Finally, Peabody contends that the denial of relief would raise "serious constitutional problems." This contention is without merit. The Pennsylvania plaintiffs maintain that the permit regulations will devastate small producers of coal in Pennsylvania, where the industry consists in large part of small producers who mine less than 300,000 tons of coal annually. Their position is that the time necessary to prepare applications and the cost involved will injure them financially and cause gaps in production, leading to severe cash flow problems that will put many producers out of business. They argue that Congress could not have intended this result. The court concludes that the Pennsylvania plaintiffs are not likely to succeed on the merits of their claim that an exception for small producers greater than that provided by the Act should be carved out by the court. As the Secretary notes, Congress accorded small producers special treatment in numerous areas of the Act. Producers of less than 100,000 tons were excepted from the interim regulatory program until January 1, 1979. 30 U.S.C.A. § 1252(c) (Supp. 1978). [9 ELR 20729] They can request the regulatory authority to assume the cost of determining hydrologic consequences and analyzing test borings or core samplings. Id. § 1257(c). The court agrees with the Secretary that "Congress did make special provision for small operators. Where it made no such exception, its choice to cover those operators must be viewed as deliberate." Defendants' Memorandum in Opposition to Various Motions for Preliminary Relief, p. 55. Irreparable Harm to the Plaintiffs The industry plaintiffs maintain that they will be irreparably injured by the cost of compiling permit information if injunctive relief is denied. Although the court is sympathetic to the obvious problems of cost and the difficulties of meeting the two-month deadline, the court concludes that the plaintiffs have not made a sufficient showing of immediate and irreparable injury to justify the issuance of an injunction. In the first place, the grant of injunctive relief to the states may lead to the extension of the June 3, 1980 deadline for the institution of a permanent program. The Secretary has been actively seeking this remedy from Congress. The grant of an extension would give the industry seven more months in which to prepare permit applications for existing mines. Second, much of the industry plaintiffs' case for irreparable injury rests on allegations that information cannot be compiled in time. These contentions are hotly disputed by the Secretary, and it appears to the court that many of the disputes over the industry's ability to employ statistical methods and materials on file have been largely resolved. Thus, both the time involved and the cost of preparing permit applications are likely to be substantially less than the industry estimates. Finally, it appears to the court that small operators will be able to obtain assistance through the Small Operators' Assistance Program. The court concludes that the industry plaintiffs have failed to demonstrate a sufficient level of irreparable harm to overcome their weak case on the merits. A. O. Smith v. FTC, 530 F.2d 515 (3d Cir. 1976). Harm to Third Parties and the Public Interest The public has an interest in the continued production of coal in sufficient quantity to help ease the existing shortage of energy. The public also has an interest, however, in reviewing permit applications that are as complete as possible. Complete information ensures to the maximum possible degree that the environmental degradation will not result from the improvident grant of a permit. Congress recognized the conflicting tensions between these goals, and struck a legislative balance between them. In striking that balance, it is obvious from the statute that Congress considered detailed permit applications to be a key factor in regulating the production of coal. This congressional intent should not be thwarted on the record presently before the court. The industry plaintiffs' motions for preliminary injunctive relief will be denied. An appropriate order reflects the conclusions of the court. Upon consideration of the various motions for preliminary relief that have been filed in this case, the record, and the hearing before the court on July 25, 1979, it is, by the court, this 21st day of August 1979, in accordance with the foregoing Memorandum ORDERED, that the Preliminary Injunction issued by the court on July 25, 1979 shall remain in force as provided in that Injunction, and it is further ORDERED, that the environmental plaintiffs' motions for preliminary relief shall be, and they hereby are, denied, and summary judgment entered against them as to the claims raised in the motions for preliminary relief, and it is further ORDERED, that the environmental plaintiffs' motion to compel discovery shall be, and it hereby is, denied, except to the extent of discovering whether documents submitted to the CEA have not been made part of the record or have not been the subject of adversarial comments, and it is further ORDERED, that the motions for preliminary relief filed by the three groups of industry plaintiffs shall be, and they hereby are, denied, and it is further ORDERED, as provided the Secretary's proposed form of Order, that (1) Permit applicants may comply with the requirements of 30 C.F.R. parts 778-780 and 782-784 by reliance upon accurate data already in the possession of the applicant or the regulatory authority, through incorporating such data by reference into permit applications, provided that the incorporated information is made publicly available under §§ 507 and 513 of the Surface Mining Control and Reclamation Act, 30 U.S.C. §§ 1257 and 1263, and 30 C.F.R. § 786.11; (2) Permit applicants may comply with 30 C.F.R. parts 778-780 and 782-784, by providing accurate descriptive and predictive information relating to geology, water quality and quantity for a particular mine plan area, based upon expert opinion extrapolation from known data on the geology, water quality and quantity of similar areas, rather than by the collection of new data for the particular site, provided that the data used by an expert [are] included within the permit application, the expert opinion is approved by the regulatory authority, and made available to the public for review and inspection; (3) Permit applicants may comply with the requirements for submitting information on the seasonal variability of surface water quality and quantity and climatological information under 30 C.F.R. §§ 779.16, 779.18, 783.16, 783.18, without the collection of data covering 12 consecutive months, if accurate statistical procedures, as approved by the regulatory authority, are used to extrapolate from data collected in less time; (4) Persons conducting surface coal mining and reclamation operations on Indian lands are not subject to 30 C.F.R. parts 778-780 and 782-784 until further action by the Secretary pursuant to § 710 of the Act; and (5) Nothing herein shall be construed to affect the rights reserved to the states by § 505 of the Act, 30 U.S.C. § 1255, to impose more stringent permit application requirements. 1. 44 Fed. Reg. 15312-15463 (1979). 2. Id. 14902-15309 (1979). 3. 30 U.S.C.A. § 503 (Supp. 1978). The state must submit a plan demonstrating that it has the ability to carry out the provisions of the Act. Id. Among the numerous other statutory requirements, the state must promulgate "rules and regulations consistent with the regulations issued by the Secretary pursuant to this Act." Id. § 503(a)(7). This means that the state must implement the proposed regulations currently before the court, which the Secretary views as the minimum standards for state programs, unless the state suggests "alternatives" that are responsive to local conditions, but still consistent with the Act. 30 C.F.R. § 731.13 (1979). 4. 30 U.S.C.A. § 504 (Supp. 1978). The Secretary is empowered to establish a federal program if a state fails to submit a program acceptable to the Secretary or fails to implement or enforce an approved program. Id. The federal program need not be permanent. The Act allows states to submit a state program after the implementation of a federal program, although the federal program will remain in effect until a satisfactory state program is formulated. Id. § 504(e). 5. The Commonwealth of Virginia also moved to stay this case pending the resolution of a case in Virginia challenging the constitutionality of the Act. This motion was withdrawn at the July 25, 1979 hearing after the court ruled from the bench on the August 3 deadline issue. 6. In the Order consolidating this action, the court indicated that it would consider converting the motions for preliminary relief into motions for summary judgment if it considered the merits sufficiently briefed and perceived no genuine disputes as to any material facts. In such circumstances, of course, the Virginia Petroleum Jobbers criteria need not be considered. The court has exercised this option only with respect to the issues raised by the environmental plaintiffs. 7. Counsel for the Secretary indicated at the July 25 hearing that the proposed extension of time was reported out of committee with additional substantive amendments to the Act. These amendments apparently have the effect of lowering standards for the permit application process. The Secretary indicated that these amendments were totally unacceptable. Whether or not the substantive amendments remain in S. 1403, the court's function is merely to evaluate the possibility that the June 3, 1980 deadline will be extended. The substantive amendments, which apparently would limit the scope of the Secretary's power to regulate the permit process, are irrelevant to the present motions for injunctive relief. 8. The State of Illinois joins in this aspect of the challenge. 9. The environmental plaintiffs moderated their position at the July 25 hearing. They indicated that they need not attend each and every meeting between state and federal officials, only those in which substantive (as opposed to informational) matters were discussed. Moreover, they represented to the court that they did not even desire to participate in the meetings, merely to observe. They asked the court to order the Secretary to publish a notice in the Federal Register whenever meetings of substance were about to occur, so that an observer might be present. This more relaxed position makes the environmental plaintiffs' demands appear more reasonable, and it vitiates to some extent the Secretary's concern that the procedures for public hearings would interfere with preparation of the programs. The ruling sought by the environmental plaintiffs would be difficult to apply, however, and would undoubtedly lead to disputes and interpretative difficulties. Moreover, the central issue — whether the state officials may meet privately with the Secretary or his designees to discuss the state program — remains unchanged. 10. The court concludes that the Federal Advisory Committee Act claim is entirely without merit. 11. These include "[a]s in any other rulemaking," NWF Memorandum at 20, publication of the plan for public comment, the holding of at least one public hearing, and obtaining the concurrence of the Administrator of the EPA. In addition, the Secretary has by the regulations currently under review required a two-tier system of approval, beginning with review, comment, and public meetings at the regional level, followed by a decision by the Secretary. See 30 C.F.R. § 732. 12. The Agency's own policies to date have been to require procedural protection against ex parte contacts after the public announcement and circulation of the draft proposed regulations. 13. According to the court of appeals, ex parte contacts are "offensive" in two respects. First, they "violate the basic fairness of a hearing which ostensibly assures the public a right to participate in agency decisionmaking." Second, they "foreclose effective judicial review of the agency's final decision." 590 F.2d at 351. 14. While this case was under advisement the United States Court of Appeals for the Fourth Circuit ruled in Virginia Surface Mining & Reclamation, Inc. v. Andrus, __ F.2d __ (No. 79-1146 Aug. 10, 1979) [9 ELR 20618], that the proper standards for injunctive relief are those set forth in § 526(c) of the Act, 30 U.S.C.A. § 1276(c)(Supp. 1978). The court has examined those criteria and concludes that they are similar to the standards uniformly used in this circuit, except that they lack a discussion of irreparable harm to the plaintiffs. The court, in the absence of controlling precedent in this circuit, concludes that a court sitting in an equitable role should always consider harm to the plaintiff if injunctive relief is denied. Moreover, the court is not sure that this case involves an "order or decision" of the Secretary. The court has nonetheless reassessed its findings in light of the recent decision, concluding that the findings should remain undisturbed. 15. At the hearing in this matter, the court questioned counsel for Peabody concerning its concession that each particular part of the regulations appeared to have a statutory basis. Counsel for the remaining industry plaintiffs stated that they did not agree with that concession and intended to challenge numerous portions of the permit regulations as lacking a statutory basis. The court's determination at this preliminary stage that the regulations appear to be based on the statute will not preclude challenges to individual portions of the permit regulations. 16. This holding disposes of the primary claim made by the NCA-AMC plaintiffs. 9 ELR 20720 | Environmental Law Reporter | copyright © 1979 | All rights reserved |