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SURFACE MINING REGULATION LITIG.

May 3, 1978

SURFACE MINING REGULATION LITIGATION

Thomas A. Flannery, United States District Judge.


The opinion of the court was delivered by: FLANNERY

THOMAS A. FLANNERY, UNITED STATES DISTRICT JUDGE

 I. Introduction

 This matter comes before the court on plaintiffs' motions for summary judgment and for a preliminary injunction. This action involves twenty-two consolidated cases attacking regulations promulgated by the Secretary of Interior pursuant to the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. § 1201 et seq., which was enacted on August 3, 1977.

 The Act establishes a two-tier regulatory program to protect the environment from the damaging effects of surface coal mining. The two-tiers include an interim program, that is presently before the court, and a permanent program which will be implemented over the next two years. Section 501(a) of the Act requires the Secretary to promulgate within 90 days of enactment regulations establishing the interim regulatory program. The interim regulations were promulgated on December 13, 1977 *fn1" and they include standards for inter alia, spoil and waste disposal, reclamation operations, the use of explosives and impoundments, topsoil protection, hydrology system protection and revegetation. See 42 Fed. Reg. 62639 (Dec. 13, 1977). New surface coal mining operations commencing on or after February 3, 1978 must comply with the performance standards of the interim regulations when the operations begin. All surface mining operations which commenced prior to February 3, 1978, with certain exceptions, must comply with the performance standards of the interim program by May 3, 1978.

  Certain plaintiffs seek a preliminary injunction to enjoin the implementation and enforcement of certain regulations that they contend will cause irreparable injury to them if the regulations become operative on May 3, 1978. These plaintiffs assert that the provisions should not be allowed to become effective until the court has the opportunity to perform a full substantive review pursuant to the standards of section 526 (a)(1). Other plaintiffs have asked the court to grant summary judgment to them on attacks to regulations that they claim the court can determine to be arbitrary, capricious or inconsistent with law under § 525(a)(1) at this stage of the proceedings. Generally, the industry plaintiffs *fn2" have joined in each others' motions. The environmental groups that are plaintiffs have moved for summary judgment on their challenge to two subsections of the regulations. The federal defendants *fn3" contend that all of the issues can be resolved as motions for summary judgment because the judicial review involved is a review of the merits of the administrative record which is before the court. *fn4" The federal defendants believe that the need for a preliminary injunction will arise only if the court is unable to decide the merits prior to May 4, 1978. The federal defendants have not made any motions for summary adjudication and they only ask that this court deny plaintiffs' motions for summary judgment and a preliminary injunction.

 II. Industry Plaintiffs' Motions

 The industry plaintiffs' motions will be dealt with first. Their attack involves both procedural challenges concerning the manner of promulgation of the regulations and substantive challenges to the regulations themselves. The substantive challenges include: (1) that five matters to be regulated in the permanent program are improperly regulated in the interim program; (2) that adequate exemption and variance procedures are lacking throughout the interim regulations; (3) that the regulations improperly extend to pre-existing structures and facilities; (4) that prime farmlands standards have been improperly extended to non-prime farmland areas; (5) that the prime farmlands statutory grandfather exemption has been improperly narrowed; (6) that waste impoundment has been improperly regulated; (7) that the regulations improperly limit blasting; (8) that the regulations improperly limit the discharge of manganese into alkaline surface water; and (9) that the regulations improperly implement the small operators exemption. *fn5" The procedural challenges allege: (1) that the Secretary failed to consider the effects of the regulations on the economy, inflation, and the nation's coal supply; and (2) that the basis and purpose statement accompanying the regulations is inadequate. *fn6" Plaintiffs' procedural challenges will be considered first.

 A. Plaintiffs' Procedural Challenges

 One of plaintiffs' assertions is that the basis and purpose statement accompanying the interim regulations is inadequate. The basis and purpose statement precedes the regulations in the Federal Register. 42 Fed. Reg. 62639-62675 (Dec. 13, 1977). The federal defendants also note that two sections of the regulations, § 700.2 and § 710.2, outline the objectives of the regulations. Furthermore, the defendants assert that the certified index to the administrative record filed in this action on March 20, 1978 serves to remedy any inadequacies of the statement in identifying the bases of the regulations.

 The basis and purpose statement published with the regulations (1) is an adequate statement of "how and why the regulations were actually adopted", Amoco Oil v. EPA, 163 U.S. App. D.C. 162, 501 F.2d 722, 739 (1974); (2) sets forth "a thorough and comprehensible statement of the reasons" for the agency's decisions, National Nutritional Foods Ass'n v. Weinberger, 512 F.2d 688, 701 (2d Cir. 1974); (3) explains the agency's policy choices and standards, Environmental Defense Fund v. EPA, 150 U.S. App. D.C. 348, 465 F.2d 528, 539 (1972) and (4) explains the agency's resolution of "significant problems raised by the comments," Rodway v. United States Department of Agriculture, 168 U.S. App. D.C. 387, 514 F.2d 809, 817 (1975). Given the statutory time constraints, the basis and purpose statement sufficiently details the Secretary's actions and how the comments were considered and the problems resolved. See Kennecott Copper Corp. v. EPA, 149 U.S. App. D.C. 231, 462 F.2d 846, 849-50 (1972). To the extent that the statement lacks citations to the technical data supporting the regulations, this deficiency was properly remedied by the certified index to the administrative record filed on March 20, 1978. Portland Cement Association v. Ruckelshaus, 158 U.S. App. D.C. 308, 486 F.2d 375, 394 (1973), cert. denied, 417 U.S. 921, 41 L. Ed. 2d 226, 94 S. Ct. 2628 (1974). The certified index adequately identifies the technical literature relied upon by the Secretary in support of the regulations. In their Joint Reply Brief (II) the plaintiffs generally attack the adequacy of the data cited in support of the regulations. This court is of the opinion that these objections can be more fully considered during this court's substantive review of the specific regulations, rather than through broad assertions at this stage of the litigation.

 The plaintiffs' second procedural challenge concerns the Secretary's alleged failure to consider the effect of the regulations on the economy, inflation, and the nation's coal supply. Plaintiffs assert that the Secretary's failure to issue an economic impact statement with the regulations violated § 102(f) of the Act (30 U.S.C. § 1202(f)), Executive Order 11821, an Office of Management and Budget (OMB) circular, and the Department of Interior's own regulations. First, section 102(f) of the Act does not require an economic impact statement. *fn7" Second, a private civil action is not available for enforcement of Executive Order 11821. Independent Meat Packers Ass'n v. Butz, 526 F.2d 228, 234-36 (8th Cir. 1975) cert. denied, 424 U.S. 966, 96 S. Ct. 1461, 47 L. Ed. 2d 733 (1976); see Stevens v. Carey, 483 F.2d 188, 190 (7th Cir. 1973) (Executive Order 10988); Farkas v. Texas Instrument, Inc., 375 F.2d 629, 632-33 (5th Cir.), cert. denied, 389 U.S. 977, 19 L. Ed. 2d 471, 88 S. Ct. 480 (1967) (Executive Order 10925); Manhattan-Bronx Postal Union v. Gronouski, 121 U.S. App. D.C. 321, 350 F.2d 451, 456 (1965), cert. denied, 382 U.S. 978, 15 L. Ed. 2d 469, 86 S. Ct. 548 (1966) (Executive Order 10988). Third, the Secretary's decision not to prepare an economic impact statement for the interim regulations was reasonable and not in violation of the OMB circular and the Department's internal rules. The Secretary's actions in determining that the interim regulations did not constitute a "major proposal" so as to require an economic impact statement and relying on the Library of Congress and Congressional Budget Office studies were not arbitrary, capricious or inconsistent with law. This court is of the opinion that the Secretary gave due consideration to the effects the interim regulations would have on the economy, inflation, and the nation's energy supply as is evidenced by the basis and purpose statement and the administrative record. Therefore, plaintiffs' motions concerning procedural challenges will be denied. *fn8"

 B. Plaintiffs' Substantive Attacks

 (1) Interim v. Permanent Regulations

 In challenging specific provisions of the regulations, plaintiffs first assert that five provisions to be included in the permanent program were improperly implemented in the interim program. The plaintiffs assert that the Secretary improperly included regulations concerning the surface effects of underground mining, prime farmlands, spoil disposal, waste, and alluvial valley floors in the interim program.

 Section 501(a) of the Act requires that within 90 days of enactment the Secretary publish 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 section 502(c) of this Act." 30 U.S.C. § 1251(a). Section 502(c) specifically incorporates into the interim program eight subsections of section 515 -- 515(b) (2), (3), (5), (10), (13), (15), (19), and 515(d). The plaintiffs argue that the eight general performance standards selected from the 25 standards set forth in § 515 to be included in the interim program exclusively limit the scope of the program. The defendants contend that Congress did not intend to exclude all of the other standards from the interim regulations. The defendants assert that in order to meet the goals and objectives of the interim program and provide the protection required in the interim program certain other standards included in the permanent program were necessarily adopted in the interim regulations. The five areas challenged by the plaintiffs will be discussed individually.

 (a) Surface Effects of Underground Mining

 The defendants contend, however, that the surface effects of underground mining can be regulated pursuant to sections 502(c) and 515. Section 502(c) makes the interim regulations applicable to "all surface coal mining operations." Section 701(28) defines surface coal mining operations to include "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 . . . ." 30 U.S.C. § 1291(28). Thus, the defendants rely on the definitional section to reach the surface impacts incident to underground mines in the interim regulations. *fn9" The defendants also cite the legislative history of the Act to illustrate Congress' intent to have the surface effects of underground mining regulated in the interim program. S.Rep. No. 95-128, 95th Cong., 1st Sess. 71 (1977); 123 Cong. Rec. S12443 (daily ed. July 20, 1977) (remarks of Senator Metcalf). *fn10" This court is of the opinion that the Secretary's promulgation of six limited provisions regulating the surface effects of underground mining in the interim program was not arbitrary, capricious or inconsistent with law.

 The plaintiffs also assert that the regulations concerning the surface effects of underground mines are invalid because the Secretary failed to obtain the concurrence of the head of the Mine Enforcement & Safety Administration prior to promulgation. Section 516(a) of the Act states that rules directed toward the surface effects of underground mining:

 
Shall not conflict with nor supersede any provision of the Federal Coal Mine Health and Safety Act of 1969 nor any regulation issued pursuant thereto, and shall not be promulgated until the Secretary has obtained the written concurrence of the head of the department which administers such Act.

 On the date the regulations were promulgated, December 13, 1977, the MESA, which administers the Coal Mine Health and Safety Act of 1969, was part of the Department of the Interior. The defendants argue that the "head of the department" was the Secretary of the Interior, the person who promulgated the regulations. Thus, the defendants contend that the concurrence of the Secretary in regulations he was promulgating was unnecessary.

 Although interpreting the Act to require the Secretary to concur in his own regulations does not appear totally satisfactory, the result suggested by the plaintiffs would not be more meaningful. Plaintiffs would require that the Secretary have obtained the concurrence of the Administrator of MESA, a subordinate of the Secretary. Obtaining the necessary concurrence would have been only a formality. This court is of the opinion that the Secretary did not have to obtain the concurrence of the Administrator of MESA and that § 516(a) only requires that the Secretary obtain the concurrence of the Secretary of Labor before the permanent regulations are promulgated. Therefore, plaintiffs' motions as to the regulations concerning the surface effects of underground mines will be denied.

 (b) Prime Farmlands

 The plaintiffs' attack on the Secretary's promulgation of regulations covering mining on prime farmlands also is based on the absence of a citation to the prime farmlands provisions, §§ 510(d), 515(b)(7), in § 502(c). In promulgating the prime farmlands regulations, the Secretary relied on § 510(d). 42 Fed. Reg. 62661 (Dec. 13, 1977). Section 510(d), a prime farmlands provision, states that, "Except for compliance with subsection (b), the requirements of this paragraph (1) shall apply to all permits issued after the date of enactment of this Act." Thus, the Secretary contends that Congress made the prime farmlands performance standards effective immediately upon enactment. *fn12" The Secretary's interpretation appears to be reasonable and not arbitrary, capricious or inconsistent with law. *fn13"

 The plaintiffs argue that the statutory definition of the word "permit," see § 701(15), makes § 510(d) only applicable to the permanent program. The plaintiffs' interpretation must be rejected because: 1) the term "permit" is used in the Act in reference to permits other than those issued pursuant to the permanent regulatory program, see §§ 502(a), 510(d)(2); and 2) plaintiffs' construction would render the use of the phrase "date of enactment" in sections 510(d)(1) and (2) meaningless. Although the statutory provision is not ambiguous so as to require resort to legislative history, it also should be noted that the legislative history supports the defendants' interpretation. See S. Rep. No. 95-337, 95th Cong., 1st Sess. 105 (1977) (Conference Report). Therefore, plaintiffs' motions concerning the prime farmlands provisions of the regulations will be denied.

 (c) Spoil Disposal

 The Secretary properly included regulations covering the disposal of spoil in the interim program. Although § 515(b)(22) which covers spoil disposal in the permanent program, was not one of the sections placed in the program via § 502(c), spoil disposal has been properly regulated in the interim program in order to meet the objectives of sections 515(b)(3) and (10) which are included in the interim program by § 502(c). See 42 Fed. Reg. 62646 (Dec. 13, 1977). Section 515(b)(3) establishes spoil and waste handling requirements for surface coal mining operations and section 515(b)(10) provides for the protection of the hydrologic balance.

 The Secretary reasonably concluded that regulation of spoil disposal was necessary to preserve the hydrologic balance and prevent water pollution as required by § 515(b)(10) and to control the restoration of land to its approximate original contour and prevent land erosion as required by § 515(b)(3). *fn14" Even though spoil disposal will be specifically regulated by § 515(b)(22) in the permanent program, the limited regulation of this matter in the interim program to meet the objectives of other provisions was entirely proper and not arbitrary, capricious or inconsistent with law. This overlap, whereby provisions of the permanent regulations are included in the interim regulations in order to fully implement the interim program, was contemplated by Congress. 123 Cong. Rec. S12442-443 (daily ed. July 20, 1977) (remarks of Senators Metcalf and Metzenbaum). Therefore, plaintiffs' motions concerning the spoil disposal regulations will be denied.

 (d) Waste

 The regulations covering waste disposal were properly included in the interim program. Again the Secretary relies on the mandate of § 515(b)(10), incorporated into the interim program by § 502(c), that the hydrologic balance be preserved. See 42 Fed. Reg. 62646 (Dec. 13, 1977). As the defendants contend, "the primary purpose and effect of each of these provisions are the protection of ground and surface water by treatment of the waste and spoils whose runoffs could adversely affect the water quality." Although these areas will be more extensively covered in the permanent regulations pursuant to sections 515(b)(11) and (14), the Secretary was empowered to implement these regulations to prevent water pollution pursuant to § 515(b)(10)(A) and (G). These regulations are necessary to avoid water pollution from waste materials that would prevent the hydrologic balance being maintained in the interim program. *fn15" Because the Secretary's action was not arbitrary, capricious or inconsistent with law, plaintiffs' motions as to the regulations governing waste will be denied.

 (e) Alluvial Valley Floors

 The Secretary also properly included regulations concerning alluvial valley floors in the interim program. § 715.17(j), 42 Fed. Reg. 62687-62688 (Dec. 13, 1977). Section 510(b)(5), which provides for the regulation of mining in alluvial valley floors, is not included in the interim program provisions listed in § 502(c). The Secretary, however, determined that in order to protect the agricultural uses and water systems of the alluvial valley floors to assure that the provisions of § 510(b)(5) could be meaningfully implemented in the ...


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