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IN RE SURFACE MINING REGULATION LITIG.

UNITED STATES DISTRICT COURT, DISTRICT OF COLUMBIA


August 24, 1978

In re SURFACE MINING REGULATION LITIGATION

The opinion of the court was delivered by: FLANNERY

MEMORANDUM OPINION AND ORDER

This matter comes before the court on plaintiffs' motions for summary judgment. This action involves twenty-four consolidated cases attacking interim regulations promulgated pursuant to the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. § 1201 Et seq. The facts underlying these actions and the regulations are fully set forth in this court's Memorandum Opinion and Order of May 3, 1978 which considered plaintiffs' motions for a preliminary injunction and their initial motions for summary judgment. 452 F. Supp. 327 (D.D.C.1978).

 I. Preliminary and Procedural Issues.

 A number of issues need to be resolved before plaintiffs' substantive challenges may be considered. *fn1" Review of agency rulemaking is limited by statute to this court and review must be sought within 60 days of agency action. 30 U.S.C. § 1276(a)(1). Certain plaintiffs are concerned about the possibility of "unpredictable applications" of the regulations in the future after this action has ended, which would be beyond 60 days after the promulgation of the rules. Review of application of the regulations is limited by statute to the district courts for the district "in which the surface coal mining operation is located." See 30 U.S.C. § 1276(a)(1). Thus, it would not be appropriate for this court to comment on any possible unpredictable applications.

 National Coal Association (NCA) and others again raise procedural issues already addressed by this court in its previous opinion. 452 F. Supp. at 332-333. *fn2" These plaintiffs have not presented any arguments that would persuade the court to reconsider its earlier decision. NCA also asserts that its previous contentions are supported by a memorandum prepared by an attorney for the Interior Department that was made available to it by an unidentified employee of the Department of Interior. Putting aside questions of relevance, privilege, and propriety, the memo adds nothing to the plaintiffs' position. The memorandum discusses procedures and requirements for normal agency rulemaking. As this court indicated previously, given the statutory time constraints which required expedited rulemaking in this case, the procedures employed by the Secretary and the basis and purpose statement accompanying the regulations were reasonable and adequate. See Portland Cement Association v. Ruckelshaus, 158 U.S.App.D.C. 308, 327, 486 F.2d 375, 394 (1973), Cert. denied, 417 U.S. 921, 94 S. Ct. 2628, 41 L. Ed. 2d 226 (1974); Kennecott Copper Corp. v. EPA, 149 U.S.App.D.C. 231, 234-35, 462 F.2d 846, 849-50 (1972); Cf. EDF, Inc. v. Costle, 188 U.S. App. D.C. 95, 578 F.2d 337 (D.C. Cir. 1978).

 Plaintiff Peabody Coal Co. generally challenges the interim program's use of design criteria rather than performance standards. See, e.g., §§ 715.14(b) (2), 715.14(c), 715.15(b)(5)-(9), (11), 42 Fed.Reg. 62681-84 (Dec. 13, 1977). Peabody contends that the Act only authorizes the use of design criteria in the regulation of waste dams. 30 U.S.C. §§ 1265(b)(13), 1265(f). Section 201(c) (2) of the Act, however, gives the Secretary broad discretion to promulgate "such rules and regulations as may be necessary to carry out the purposes and provisions of this chapter." 30 U.S.C. § 1211(c)(2). *fn3" Furthermore, the legislative history of the Act reveals that Congress clearly intended detailed regulations, such as design criteria. See H.R.Rep.No.95-218, 95th Cong., 1st Sess. 85, Reprinted in (1977) U.S.Code Cong. & Admin.News pp. 593, 622. Many of the environmental problems created by surface mining are better regulated through design criteria rather than performance standards and Congress left the decision as to the manner of regulation to the Secretary. To the extent that Peabody challenges the use of uniform nationwide standards, this argument has already been rejected when the plaintiffs' claim that adequate variance procedures were lacking was denied. 452 F. Supp. at 338-339; See 123 Cong.Rec. H3732 (daily ed. April 28, 1977) (remarks of Rep. Udall); 123 Cong.Rec. S7890 (daily ed. May 18, 1977) (remarks of Sen. Metcalf). Peabody also claims that the regulations create an impermissible irrebuttable presumption that the "failure to meet the design criteria automatically amounts to a failure to meet the performance objectives of the Act." This contention is totally without merit. The regulations properly implement the Act and enforcement of the provisions of the regulations will not create any impermissible irrebuttable presumptions.

 The final preliminary issue concerns a disagreement over the standard of review to be applied by this court. Section 526(a)(1) of the Act provides that "Any action subject to judicial review under this subsection shall be affirmed unless the court concludes that such action is arbitrary, capricious, or otherwise inconsistent with law." 30 U.S.C. § 1276(a)(1). The disagreement stems from the language in § 526(b) which provides "Except as provided in subsection (a) of this section, the findings of the Secretary if supported by substantial evidence on the record as a whole, shall be conclusive." 30 U.S.C. § 1276(b). By its terms, the "substantial evidence" test of § 526(b) does not apply to this review of the regulations under § 526(a) and it evidently refers to judicial review of administrative adjudicatory proceedings under § 526(a)(2), which expressly incorporates the standards of § 526(b). 30 U.S.C. § 1276(a)(2); See H.R.Rep.No.95-493, 95th Cong., 1st Sess. 111 (1977); U.S.Code Cong. & Admin.News 1977 p. 593. The fact that the statutory substantial evidence test does not apply to the regulations in this case does not relieve the defendant of all responsibility to establish support for the regulations in the administrative record. Under the arbitrary and capricious standard, the Secretary still must show support for the regulations in the basis and purpose statement or the administrative record. National Nutritional Foods Association v. Weinberger, 512 F.2d 688, 700-701 (2 Cir. 1975); See Camp v. Pitts, 411 U.S. 138, 142-43, 93 S. Ct. 1241, 36 L. Ed. 2d 106 (1973); W. Rodgers, Environmental Law § 15, at 19 (1977). This support, however, need not show to a certainty that the regulations adopted by the Secretary are necessarily the best or the only possible method of regulation. See Ethyl Corp. v. EPA, 176 U.S.App.D.C. 373, 401 & n. 58, 541 F.2d 1, 28 & n. 58 Cert. denied, 426 U.S. 941, 49 L. Ed. 2d 394, 96 S. Ct. 2662 (1976); Amoco Oil Co. v. EPA, 163 U.S.App.D.C. 162, 175, 180-181, 501 F.2d 722, 735, 740-41 (1974); Industrial Union Department, AFL-CIO v. Hodgson, 162 U.S.App.D.C. 331, 338-39, 499 F.2d 467, 474-75 (1974). The Secretary still retains the broad discretion necessary to make policy judgments, especially in areas of environmental law such as the one presently before the court, where all the relevant data may not yet be available and the possibility of irreparable environmental harm exists. See Ethyl Corp., supra, 176 U.S.App.D.C. at 401 & n. 58, 541 F.2d at 28 & n. 58; Amoco Oil Co., supra, 163 U.S.App.D.C. at 175, 180-181, 501 F.2d at 735, 740-41; Industrial Union Department, AFL-CIO, supra, 162 U.S.App.D.C. at 338-39, 499 F.2d at 474-75. Furthermore, in implementing a new statute, an agency's reasonable interpretation of the Act is entitled to deference from the reviewing court. See E. I. duPont de Nemours & Co. v. Train, 430 U.S. 112, 134-35, 97 S. Ct. 965, 51 L. Ed. 2d 204 (1977); Train v. NRDC, Inc., 421 U.S. 60, 87, 95 S. Ct. 1470, 43 L. Ed. 2d 731 (1974); EDF, Inc. v. Costle, 188 U.S. App. D.C. 95, 578 F.2d 337 (D.C. Cir. 1978). With these considerations in mind, the court will proceed to the substantive review of the regulations.

 II. Substantive Issues.

 A. Spoil and Soil.

 The industry plaintiffs challenge several provisions of the regulations which control the disposal of spoil and the handling of soil. Sections 715.14(b)(2) and 715.15(a)(7) of the regulations *fn4" limit the use of terraces in postmining reclamation and establish design criteria for their use. Under the regulations, the regulatory authority must approve the use of terraces. The regulations do not prohibit terracing; they merely provide for oversight by the regulatory authority in the use of terraces. The plaintiffs' basic assertion is that this control over terracing is improper. It appears, however, that the regulation of terracing is proper and a reasonable implementation of Congress' command that the operators "restore the approximate original contour of the land." 30 U.S.C. § 1265(b)(3); See 30 U.S.C. § 1291(2). Furthermore, the Secretary adequately explained the reasons for the provisions of the regulations. 42 Fed.Reg. 62644-45, 62646 (Dec. 13, 1977).

 Plaintiffs' next attack is directed at sections 714.14(j) and 715.17(g) of the regulations which provide that toxic, acid-forming, and combustible materials:

 

shall be covered with a minimum of 4 feet of nontoxic and noncombustible material; or, if necessary, treated to neutralize toxicity in order to prevent water pollution and sustained combustion, and to minimize adverse effects on plant growth and land uses.

 42 Fed.Reg. 62683, 62686 (Dec. 13, 1977). Plaintiffs contend that this requirement is arbitrary, capricious and lacks adequate support in the basis and purpose statement and the administrative record. The plaintiffs focus their attack on the four feet of cover requirement and virtually ignore the treatment alternative provided by the regulations. The basis and purpose statement clearly provides that "Materials that are adequately treated need not be buried." 42 Fed.Reg. 62645 (Dec. 13, 1977); See 42 Fed.Reg. 62655. The Secretary also has indicated that a combination of treatment and cover may be used to reduce the four feet of cover requirement. The administrative record reveals that the commentators were divided with respect to the amount of cover that is necessary to prevent water pollution. The record indicates that the Secretary exercised his discretion in a reasonable manner in making a sound policy judgment based on conflicting recommendations and data. The Secretary fully explained the reasons for his action in the basis and purpose statement. 42 Fed.Reg. 62645-46, 62655 (Dec. 13, 1977). Therefore, this court cannot conclude that the regulations are arbitrary, capricious or that they lack adequate support in the administrative record and the basis and purpose statement.

 Plaintiffs attack several provisions that regulate the use of valley and head-of-hollow fills for spoil disposal. The State of West Virginia challenges the design and construction criteria of § 715.15(b) of the regulations in general as being arbitrary, capricious and inconsistent with law. In essence, West Virginia raises the same objections concerning the use of design criteria that Peabody Coal Co. employed in its attack on the utilization of design criteria throughout the regulations. The court's discussion, Supra, in reference to Peabody's argument is equally applicable here. To the extent that West Virginia contends that the valley and head-of-hollow fill regulations lack adequate variance procedures, this claim also has been previously rejected by this court with respect to the regulations as a whole. 452 F. Supp. at 338-339. The court can only reiterate its holding that "Throughout the Act Congress made it clear that the only alternative that the operators had was to comply or not conduct operations." Id. at 338-339. West Virginia also contends that the basis and purpose statement is inadequate in reference to § 715.15(b). It is readily apparent, however, that the Secretary reached a reasoned result and adequately explained his decision. 42 Fed.Reg. 62646-48 (Dec. 13, 1977). Finally, the state also challenges the record support for the regulations. In this regard, West Virginia has filed a motion to supplement the record, or in the alternative, to lodge a relevant document with the court.

 In the basis and purpose statement, in support of § 715.15(b), the Secretary stated "The regulations are adequately supported by ongoing studies." 42 Fed.Reg. 62647 (Dec. 13, 1977). West Virginia contends that only one document listed in the certified index to the administrative record filed in March can be characterized as an "ongoing study." The study referred to is a 1977 interim report concerning valley and head-of-hollow fills prepared by the consulting firm of Skelly and Loy. See Skelly & Loy, Environmental Assessment of Surface Mining Methods, Head-of-Hollow Fill and Mountain Removal, Interim Report (1977). West Virginia first asserts that the interim study does not support the regulation. In addition to being conclusory, West Virginia's contentions concerning the study, and the administrative record as a whole, are insufficient for the court to find the Secretary's action arbitrary, capricious, or inconsistent with law. In its motion to supplement the record, supported by Consolidation Coal Co., West Virginia also asserts that a March, 1978 update to the 1977 report prepared by the same firm undermines the Secretary's decision concerning design criteria. See Skelly & Loy, Environmental Assessment of Surface Mining Methods, Head-of-Hollow Fill and Mountaintop Removal, Interim Report (March 1978). As this court held in an earlier opinion, "this court's review of the regulations in question is limited by statute, to the administrative record "made before the Secretary' and the court has no authority to allow a new record to be developed." CA78-162, Mem.Op. at 1 (D.D.C. April 18, 1978); See 30 U.S.C. § 1276(b). Therefore, the court cannot consider the 1978 report in its review of the regulations because it is not part of the record made before the Secretary.

 The situation presently before this court, however, is similar to the one that faced the United States Court of Appeals for the District of Columbia Circuit in EDF, Inc. v. Costle, 578 F.2d 337 (D.C.Cir. Feb. 10, 1978). There the Environmental Protection Agency had promulgated interim regulations which were under attack, when a report prepared by the National Academy of Sciences for Congress brought into question the sufficiency of the regulations. 578 F.2d at 345. The Court of Appeals did not utilize the new data in reviewing the regulations, but instead remanded the regulations to the agency to assess the new findings and consider possible amendments to the regulations. 578 F.2d at 344-345. Similarly, this court will leave § 715.15(b) in force, but remand the regulations to the Secretary for reconsideration in light of the March 1978 report. See EDF, Inc., supra, 578 F.2d at 345. *fn5" The Secretary shall file a report with the court concerning his reconsideration of the regulation within 60 days of the date of this opinion. The court will not enjoin the operation and enforcement of the regulation because of its finding that the regulation was reasonable and supported by the record and because of the possibility of injury to the environment and the public health and safety if the operations in question were to go unregulated. The additional costs that the industry plaintiffs will have incurred if the regulation is later amended are minute when compared to the possible harm that might result. In accordance with this holding, the court will deny West Virginia's motion to supplement the record, or in the alternative, to lodge a relevant document with the court.

 Industry plaintiffs challenge two specific provisions of § 715.15 concerning underdrains and the compaction of spoil in valley fills. See §§ 715.15(b)(6), (7), 42 Fed.Reg. 62684 (Dec. 13, 1977). *fn6" Section 715.15(b)(6) sets certain requirements for rock underdrains that must be constructed in valley and head-of-hollow fills. It is the design criteria for the underdrains that are being challenged. Plaintiffs contend that the criteria are arbitrary and capricious and lack adequate support in the basis and purpose statement and the administrative record. It is readily apparent, however, that the Secretary's action was reasonable and adequately supported by the basis and purpose statement and the administrative record. It is clear from the arguments of both sides that precise standards that completely ensure safe *fn7" valley fills are not yet available. In regulating underdrains, it appears that the Secretary was concerned with imposing minimum standards that provide an extra margin of safety. See 42 Fed.Reg. 62646-47 (Dec. 13, 1977). Although safe underdrains may in some instances be constructed to specifications below those set by the Secretary, the Secretary's action in promulgating these minimum standards was not arbitrary or capricious. Furthermore, the provisions of the regulation are adequately supported by the basis and purpose statement and the administrative record. See Fed.Reg. 62646-47; Skelly & Loy, Supra, at I-5, II-4, VII-7, -44, -53 (1977). Therefore, § 715.15(b)(6) of the regulations will be upheld. The regulation will be reconsidered, however, pursuant to this court's remand for review in light of the recent Skelly & Loy report.

 Section 715.15(b)(7) of the regulations requires the compaction of spoil to be used in valley fills "in lifts that are less than four feet thick." The plaintiffs claim that this requirement is arbitrary and capricious and lacks adequate support in the basis and purpose statement and the record. *fn8" The regulation of spoil compaction is adequately supported by the statute, the basis and purpose statement, and the administrative record. 30 U.S.C. §§ 1265(b)(3), (10); 42 Fed.Reg. 62646-47 (Dec. 13, 1977); Skelly & Loy, Supra, at VII-42 (1977); See H.R.Rep.No.95-218, 95th Cong., 1st Sess. 101, Reprinted in (1977) U.S.Code Cong. & Admin.News. pp. 593, 634. Moreover, the specific four foot requirement is supported by § 10.5 of West Virginia's regulations and the Grim study. See Grim, Environmental Protection in Surface Mining of Coal 61 (1974). Section 715.15(b)(7), like § 715.15(b)(6), will be reconsidered along with all of the provisions of § 715.15(b) upon remand for review in light of the March, 1978 Skelly & Loy report, Supra. In reviewing § 715.15(b)(7), the Secretary should also take into account the fact that West Virginia, in a proposed amendment to its regulations, is considering allowing variances from the four-foot lift requirement. Furthermore, the Secretary should disclose the substance of the consultations that the Department had with "those who have made studies of head-of-hollow fills" that are referred to in the basis and purpose statement. 42 Fed.Reg. 62646; See United States v. Nova Scotia Food Products Corp., 568 F.2d 240, 252 (2nd Cir. 1977). The Secretary also should allow interested parties to comment on the substance of the consultations and these comments should be considered in the review of the regulation.

 The National Coal Association and others generally attack the prime farmlands regulations. The only challenge specific enough to warrant discussion concerns the historical use clause of § 716.7(a)(1). Section 716.7(a)(1) defines prime farmlands, in part, as lands which "have been used for the production of cultivated crops . . . for at least 5 years out of the 20 years preceding the date of the permit application." The explanation given by the Secretary for this clause, which was not included in the basis and purpose statement, was that the 5 out of 20 requirement was necessary in order to include lands used for cultivation in a long-term rotation (i. e. lands only used once every four years). In addition to the Secretary's failure to point to support for this standard in the basis and purpose statement or the administrative record, the regulation is clearly overbroad in achieving its stated purpose. As the plaintiffs note, the regulation draws into its coverage lands that have not been farmed for 15 years prior to the permit application, but were farmed for the 5 years before the period of idleness. Because of the lack of explanation or support, and the fact that the definition is too broad for the purpose now given, use of the definition in the historical use clause of § 716.7(a)(1) by the Secretary will be enjoined and the regulation remanded to the Secretary for reconsideration.

 Finally with respect to spoil and soil, the plaintiffs challenge the application of standards from some of the provisions discussed above (i. e., § 715.15(b)(6) (valley fill underdrains), § 715.15(b)(7) (compaction of spoil), § 715.14(j)(1) (cover of toxic material)) to underground mines in sections 717.14, 717.15 and 717.17. Plaintiffs' argument that the standards incorporated are invalid must be rejected in accordance with this court's discussion of the specific provisions, Supra. Plaintiffs assertions that the regulations concerning underground mines are unexplained and unsupported and fail to take into account the distinct differences between surface and underground mining must also be rejected. Support for the specific standards has been discussed, Supra, and was found to be adequate. With respect to the application of the standards to underground mining, the Secretary's action is explained in the basis and purpose statement. 42 Fed.Reg. 62662-63 (Dec. 13, 1977). The Secretary also considered the distinct differences between surface and underground mining in the regulations and explained the differing standards in the preamble to the regulations. See § 717, 42 Fed.Reg. 62695-62700; 42 Fed.Reg. 62662-63 (basis and purpose statement). Therefore, the Secretary's action will be upheld.

 B. Reclamation.

 Peabody Coal Company challenges § 715.13(b)(2) which requires the restoration of lands disturbed by surface mining to the "premining use of surrounding lands that have received proper management" where the disturbed lands were improperly managed prior to mining. *fn9" Peabody contends that the regulation goes too far in requiring restoration that improves the capability of the land beyond the state it was in prior to mining. Peabody insists that the standard is not supported by the Act and is unconstitutional. Contrary to Peabody's assertions, the regulation is fully supported by § 515(b)(2) of the Act which requires restoration "to a condition capable of supporting the uses which it was capable of supporting prior to any mining, or higher or better uses of which there is a reasonable likelihood . . ." 30 U.S.C. § 1265(b)(2); See S.Rep.No.94-128, 95th Cong., 1st Sess. 76-77 (1977); H.R.Rep.No.95-218, 95th Cong., 1st Sess. 93, Reprinted in (1977) U.S.Code Cong. & Admin.News pp. 593, 630. The Act, its legislative history, and the regulation all speak in terms of capability rather than the actual state of the land prior to mining and the court cannot find that the standard is inconsistent with law. Moreover, the parties dispute appears to have been narrowed to questions of application that are better left for determination when the regulation is applied. The court also is of the opinion that it would be inappropriate for the court to rule on Peabody's constitutional claims under the Commerce Clause and the Due Process Clause, to the extent that they have not been withdrawn, in the absence of a concrete factual setting. Diamond Shamrock Corp. v. Costle, 188 U.S.App.D.C. 407, 580 F.2d 670, 672-674 (1978); See Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967). Therefore, § 715.13 will be upheld.

 C. Hydrology.

 The first issue raised by the plaintiffs concerning regulation of hydrologic functions is the definition of an aquifer in § 710.5. Although it appears that the challenge has been withdrawn because of the government's further interpretation of the definition, to the extent that the regulation remains under attack it will be upheld. Given the Secretary's interpretation of the definition in light of possible ambiguities, the plaintiffs have not established that the regulation is arbitrary, capricious, or inconsistent with law.

 The next issue concerns this court's preliminary injunction contained in the May 3, 1978 opinion and order which enjoined the enforcement of § 715.17(a) 452 F. Supp. at 343-344. *fn10" Section 715.17(a) was enjoined to the extent that it "supersedes, amends, repeals and modifies the provisions of the Federal Water Pollution Control Act and its regulations." Id. at 347; See 30 U.S.C. § 1292(a). The plaintiffs now move for summary judgment and a remand of the regulations for reconsideration in light of this court's earlier opinion. The government claims that the court has read the Secretary's authority too narrowly and that the regulations are not inconsistent with the Federal Water Pollution Act (FWPCA). The court, however, did not unduly limit the Secretary's discretion. The court stated in its earlier opinion that the "Secretary has the authority to apply the standards of the FWPCA to the operators and to fill the gaps of the program with a more comprehensive regulatory scheme." 452 F. Supp. at 344. Thus, where the Secretary is regulating areas not covered by the FWPCA program, his discretion is not limited by § 702(a) of the Act. 30 U.S.C. § 1292(a). Where, however, the Secretary is regulating areas covered by the FWPCA regulatory program, the Secretary's program may not amend, modify, supersede or repeal any provisions of the FWPCA or its regulations.

 The question then becomes the extent to which, if at all, the surface mining regulations improperly supersede, amend, repeal or modify the provisions of the FWPCA program. As the court noted in its earlier opinion, Amherst Coal Co. questions the effect of certain provisions of § 715.17(a) on: 1) the variance procedure contained in the EPA's effluent limitation regulations for the coal mining point source category; 2) the exemption for unusual precipitation events in the same regulations and its effect on sedimentation pond design; and 3) the provisions for area wide waste treatment management of § 208 of the FWPCA, 33 U.S.C. § 1288. 452 F. Supp. at 344, n. 26. With respect to the relationship between §§ 715.15(a) and 717.17(a) of the regulations and § 208 of the FWPCA, this court addressed the issue in its Memorandum Opinion and Order of August 9, 1978 denying plaintiff Consolidation Coal Co.'s motion for a temporary restraining order. The court hereby incorporates its findings and decision of August 9, 1978 into this memorandum opinion and order.

 In the August 9, 1978 opinion the court found that because the EPA had no authority to regulate nonpoint source discharges under § 208 and the states had not yet acted, "This is precisely the type of situation envisioned by the Act where the Secretary of the Department of Interior would step in and regulate in order to prevent water pollution by the mining operations." CA78-162, at 2 (D.D.C. Aug. 9, 1978); 30 U.S.C. §§ 1265(b)(10), 1292(a); See 452 F. Supp. at 344 (D.D.C. May 3, 1978). Thus, the court further found that although Congress left the regulation of certain areas of water pollution to the states under § 208, it "filled the gap with respect to surface mining and the surface effects of underground mining in the Surface Mining Control and Reclamation Act of 1977." CA78-162, at 2 (D.D.C. Aug. 9, 1978); See W. Rodgers, Environmental Law § 4.4, at 375-86 (1977). Thus, the court cannot conclude that the requirements of §§ 715.17(a) and 717.17(a) repeal, amend, supersede, or modify the provisions of § 208 of the FWPCA because the Secretary has filled a regulatory gap where the EPA has no authority to act and the states have not yet promulgated a regulatory program. This interpretation also is supported by the language of § 702(a)(3) of the Act. 30 U.S.C. § 1292(a)(3). Section 702(a)(3) provides that the regulations implementing the Act shall not supersede, modify, amend or repeal the provisions of the FWPCA and its regulations and the "State laws enacted pursuant thereto." Because the states have not yet enacted and implemented regulatory programs, the prohibition of the Act has not been violated.

 Amherst's other two challenges concern the failure of §§ 715.17(a) and 717.17(a) to include variance and exemption provisions similar to those in the FWPCA regulatory program. See 40 C.F.R. §§ 434.22, 434.32, 434.42 (1977). The exemptions for unusual precipitation events cited by Amherst may more appropriately be described as the absence of regulation. See 40 C.F.R. §§ 434.22(c), 434.32(b), 434.42(b) (1977). The provisions state that certain overflows and discharges are not subject to the effluent limitations of the regulations. Id. Thus, the lack of regulation also will be interpreted as a regulatory gap that has been filled by the Surface Mining Control and Reclamation Act and its regulations. Therefore, the court cannot conclude that the Secretary's decision to regulate in this area was arbitrary, capricious or inconsistent with law. Furthermore, §§ 715.17(a) and 717.17(a) do not amend, supersede, modify or repeal the FWPCA regulatory program.

 The variance procedures referred to by Amherst provide relief from the effluent limitations of the FWPCA regulations. 40 C.F.R. §§ 434.22, 434.32, and 434.42 (1977). This court has already upheld the numerical effluent limitations promulgated by the Secretary. 452 F. Supp. at 343. With respect to variances, the court also noted that "Throughout the Act Congress made it clear that the only alternative that the operators had was to comply or not conduct operations." Id. at 338-339. The absence of variance procedures in the regulations presently before the court also will be construed as the plugging of a regulatory gap with a more stringent program. The tightening of the FWPCA program by the Secretary did not amend, supersede, modify or repeal the FWPCA regulatory program within the meaning of § 702(a)(3). Thus, the court concludes that the Secretary's action in fulfilling the statutory mandate of § 515(b)(10) that he promulgate a comprehensive program to prevent water pollution was not arbitrary, capricious, or inconsistent with § 702(a)(3). 30 U.S.C. §§ 1265(b)(10), 1292(a)(3). Therefore §§ 715.17(a) and 717.17(a) will be upheld because the regulations do not amend, supersede, modify or repeal the provisions of the FWPCA and its regulations.

 Plaintiffs also challenge § 715.17(d)(3) of the regulations which prohibits operators from disturbing land within 100 feet of an intermittent or perennial stream unless authorized by the regulatory authority to do so. The plaintiffs contend that § 715.17(d)(3) is arbitrary and capricious and not supported by the basis and purpose statement or the administrative record. It is readily apparent, however, that the buffer zone requirement is a reasonable effort to protect the water quality of streams and is supported by the basis and purpose statement. 42 Fed.Reg. 62652 (Dec. 13, 1977). With respect to support in the administrative record, the Secretary has pointed to ample support, but the sources relied upon in the government's brief were not listed in the certified index in reference to § 715.17(d)(3). Therefore, the court will require that the Secretary receive additional comments concerning this regulation in light of the recent reference to specific support for the regulation and the Secretary shall reconsider the regulation in light of the additional comments received. The court will not enjoin enforcement of the regulation, however, because: 1) the requirement of the regulation is reasonable and the regulation is not arbitrary, capricious, or inconsistent with law; 2) the regulation contains a variance procedure based upon authorization by the regulatory authority; and 3) the requirement of the regulation is supported by state authorities *fn11" and technical literature. *fn12"

 Plaintiffs' next attack is directed at the road gradient requirements of § 715.17(1)(2)(ii). Plaintiffs claim the requirements are unreasonable and the regulation lacks support in the basis and purpose statement and the administrative record. The regulation sets maximum grades for roads associated with surface mining operations. This court is of the opinion that the regulation is reasonable and consistent with the Act. § 515(b)(10), 30 U.S.C. § 1265(b)(10); See H.R.Rep.No.95-218, 95th Cong., 1st Sess. 128, Reprinted in (1977) U.S.Code Cong. & Admin.News pp. 593, 660. Furthermore, there is adequate support for the road gradient requirements in the basis and purpose statement *fn13" and the administrative record. *fn14" Therefore, § 715.17(1) (2)(ii) of the regulations will be upheld.

 Plaintiffs also challenge sections 715.18(b)(3)(ii) and (vii) of the regulations which set standards for the construction of waste dams. *fn15" Section 715.18(b)(3)(vii) requires that the facility be capable of evacuating "90 percent of the volume of water stored during the design precipitation event within 10 days." Section 715(b)(3)(ii) imposes a three-foot freeboard requirement between the top of the dam and the surface of the water impounded. Plaintiffs contend that these requirements are unreasonable and lack adequate support in the basis and purpose statement and the administrative record. As to both the freeboard and the 90 percent drawdown requirement, the Secretary noted in the basis and purpose statement that regulation of waste dams was necessary in order to protect the public and the environment. 42 Fed.Reg. 62658 (Dec. 13, 1977). The government's discussion in its brief of the drawdown and freeboard requirements indicates that the regulations are reasonable and adequately supported by the administrative record. See Defendants' Memorandum in Opposition to Motions for Summary Judgment and Partial Summary Judgment at 22-28. The problem, however, is that the Secretary resolved some differences of opinion and made several policy judgments that were not disclosed in the basis and purpose statement. The discussion of the requirements in the basis and purpose statement is very brief and the authorities cited by the Secretary do not supply the direct support indicated. See 42 Fed.Reg. 62658 (Dec. 13, 1977); U.S. Corps. of Engineers, Engineering & Design Stability of Earth and Rock-Fill Dams, Engineer Manual EM 1110-2-1902 (1970). The government's discussion at this stage is much more detailed. Although the scope of the discussion in the basis and purpose statement need not have been as detailed as the present explanation, disclosure of the decisions and policy judgments made was necessary. Given the expanded "statement of basis and purpose" now revealed by the government, the Secretary should accept additional comments and reconsider the regulation. Faced with a similar situation with regard to the stream buffer zone requirement, the court did not enjoin the operation of the regulation pending review. Unlike the buffer zone requirement, however, these dam requirements are absolute and there is no variance procedure. In addition, a change in the requirements at issue here at a later date will have a greater effect on methods of construction and operation. *fn16" Therefore, enforcement of sections 715.18(b)(ii) and (vii) will be enjoined until the Secretary issues his decision concerning reconsideration of the drawdown and freeboard requirements.

 D. Explosives.

 The plaintiffs challenge several provisions of the regulations which limit the use of explosives in surface mining operations. *fn17" The first attack is directed at § 715.19(e)(1)(vi) which establishes a decibel limit for air blasts caused by the use of explosives. The limit established by the regulation is a 128 decibel linear peak. The operators contend that a 136 decibel limit would be reasonable and supported by the record. The record reveals, however, that the 128 decibel limit was at the lower end of the range recommended by the Bureau of Mines and that the limit is reasonable and supported by the record. See 42 Fed.Reg. 62658 (Dec. 13, 1977). The action taken by the Secretary reflects a policy judgment traditionally left to the discretion of the authority promulgating regulations. The Secretary's explanation of his action in the basis and purpose statement was adequate and the standard imposed is supported by authorities identified in the basis and purpose statement and the certified index.

 The plaintiffs also challenge the particle velocity limitation of § 715.19(e) (2)(ii). Section 715.19(e)(2)(ii) limits, in all blasting operations, the maximum peak particle velocity of the ground motion in any direction to 1 inch per second at the immediate location of dwellings or certain buildings. Again the plaintiffs assert that the limitation is unreasonable and not supported by the administrative record. The record indicates, however, that the Secretary carefully weighed conflicting recommendations and reached a reasonable result that ensures the safety of the public and the protection of property. 42 Fed.Reg. 62659 (Dec. 13, 1977); Nicholls Et al., Blasting Vibrations & Their Effects on Structures (U.S. Bureau of Mines Bulletin 656) (1971); See Ethyl Corp. v. EPA, 176 U.S.App.D.C. 373, 397, 434-435, 541 F.2d 1, 24, 37-38 Cert. denied, 426 U.S. 941, 96 S. Ct. 2662, 49 L. Ed. 2d 394 (1976). Although a more lenient standard also might be reasonable, the court cannot conclude that the Secretary's action in promulgating the regulation was arbitrary, capricious, or inconsistent with law. Therefore, the maximum peak particle velocity regulation will be upheld.

 E. Enforcement.

 Plaintiffs next set of challenges is directed at several provisions of the regulations that deal with enforcement of the regulations. The first attack concerns the warrantless search provision of § 721.12. Section 721.12 of the regulations authorizes warrantless searches by representatives of the Secretary of surface coal mining and reclamation operations and premises in which any records required to be maintained are located. The Secretary has indicated that the scope of the regulation will be limited by: 1) a clarification which will require inspectors to obtain warrants before entering any building on the permitted area; and 2) confining warrantless inspections to the permit area and areas where monitoring equipment or records are kept which will insulate other buildings not regulated under the Act from warrantless inspections. Thus, the narrowed issue before the court is the permissibility of warrantless inspections of the permit area.

 In light of Marshall v. Barlow's Inc., 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978), the government asserts three justifications for the warrantless search provision: 1) the need, as perceived by Congress, for prompt unannounced inspections to ensure compliance with the Act; 2) the operators' implied consent to warrantless searches by their participation in a pervasively regulated industry; and 3) the operators' lack of privacy interest because of the location of the areas to be inspected in "open fields." It is now well settled that the Fourth Amendment's warrant requirement applies to commercial buildings and that warrantless searches are generally unreasonable "unless some recognized exception to the warrant requirement applies." Marshall, supra, 98 S. Ct. at 1819-20. Thus, the Secretary asserts that the pervasively regulated industry and open fields exceptions apply here.

 The Secretary argues that because surface mining operations occur in "wide-open areas," the operators have no significant privacy interests that necessitate the protection of a warrant requirement. This theory is, in essence, the "open fields" exception to the fourth amendment warrant requirement. Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 861, 865, 94 S. Ct. 2114, 40 L. Ed. 2d 607 (1974); See Hester v. United States, 265 U.S. 57, 59, 44 S. Ct. 445, 68 L. Ed. 898 (1924). In the absence of a concrete factual setting it is impossible for the court to determine the applicability of this exception. See Diamond Shamrock Corp. v. Costle, 188 U.S.App.D.C. at -- - -- , 580 F.2d at 672 - 674 (1978). It would be inappropriate and improper for the court to consider in a generalized factual setting the issues of how "open" mining operations are and the privacy interests and expectations of the operators. Therefore, the court will not consider whether the open fields exception to the fourth amendment's warrant requirement validates the warrantless search provision of § 721.12 of the regulations.

 The Secretary also contends that the exception from the search warrant requirement which has been recognized for pervasively regulated businesses and closely regulated industries applies here. Marshall, supra, 98 S. Ct. at 1820-21; United States v. Biswell, 406 U.S. 311, 315-17, 92 S. Ct. 1593, 32 L. Ed. 2d 87 (1972); Colonnade Catering Corp. v. United States, 397 U.S. 72, 74-77, 90 S. Ct. 774, 25 L. Ed. 2d 60 (1970). Under this exception, certain industries, like liquor and firearms, "have such a history of government oversight that no reasonable expectation of privacy could exist for a proprietor over the stock of such an enterprise." Marshall, supra, 98 S. Ct. at 1821 (citation omitted). It appears that the coal industry can be distinguished from ordinary businesses by its "long tradition of close government supervision of which any person who chooses to enter such a business must already be aware" and thus, the exception to the warrant requirement applies because of the operators' implied consent. Marshall, supra, at 1821; See Almeida-Sanchez v. United States, 413 U.S. 266, 271, 93 S. Ct. 2535, 37 L. Ed. 2d 596 (1973).

 Regulation of the coal industry has been more pervasive and specific than that mandated by OSHA which was at issue in Marshall. See Youghiogheny & Ohio Coal Co. v. Morton, 364 F. Supp. 45, 49-50 & n. 3 (S.D. Ohio 1973) (three-judge court). In Youghiogheny, the court upheld the warrantless search provisions of the Federal Coal Mine Health & Safety Act of 1969, 30 U.S.C. § 801 Et seq., and found the coal industry to be a "pervasively regulated industry." Id. at 50. The establishment of the Bureau of Mines began the federal regulation of coal mining in 1910 and federal inspectors were authorized to enter and inspect mines for health and safety hazards, which is the focus of the present Act, in 1941. See Coal Mine Safety Act of 1941, 55 Stat. 177 (formerly 30 U.S.C. § 451 Et seq. ). The fact that the present Act focuses on the environmental harm of surface mining and the surface effects of underground mining does not affect the finding that the industry is pervasively regulated. The primary concern of the Act, like the other regulatory statutes, is the public health and safety. In addition to being regulated under the Federal Coal Mine Health and Safety Act of 1969, the industry is also subject to provisions of the Federal Water Pollution Control Act, 33 U.S.C. § 1251 Et seq., the Clean Air Act, 42 U.S.C. § 1857 Et seq., and the Black Lung Benefits Act of 1972, 30 U.S.C. § 901 Et seq. Furthermore, the industry also is regulated by many of the states.

  Given the operators consent to certain restrictions by virtue of their operations in a pervasively regulated industry, the court also concludes that the warrantless search provisions of the Act and the regulations are reasonable as limited by the Secretary. As was noted above, no building will be entered without a search warrant, therefore, warrantless inspections of the permit area will only be conducted. The reasonableness of the warrantless inspections also is evidenced by the need, as perceived by Congress, for such searches. See 30 U.S.C. §§ 1252(e), 1267(a), (b)(3). Furthermore, the extent of the warrantless inspections is reasonably limited in time, place, and scope. See United States v. Biswell, supra, 406 U.S. at 315, 92 S. Ct. 1593, 32 L. Ed. 2d 87. As was indicated above, the place of the search is limited to the permit area, excluding buildings. The time of the searches, at least with respect to records and monitoring equipment, is limited by statute to "reasonable times." 30 U.S.C. § 1267(b)(3). The scope of the search also is limited to that necessary to ascertain whether the operations are in compliance with the Act and the regulations. See 30 U.S.C. §§ 1252(e), 1267(a). Finally, the need for, and therefore the reasonableness of, warrantless searches are supported by the necessity of the inspections in order to ensure that the public health and safety and the environment are protected.

 Plaintiffs also question the constitutionality of sections 521(a)(2) and (3) *fn18" of the Act and 722.11 of the regulations which permit the Secretary to order cessation of coal mining operations without prior notice or a hearing. The plaintiffs contend that these provisions violate the Due Process Clause of the Fifth Amendment to the Constitution. Section 521(a)(2) of the Act requires that a federal inspector issue a cessation order when a violation of a permit condition or any other condition or practice: 1) "creates an imminent danger to the health or safety of the public;" or 2) "is causing, or can reasonably be expected to cause significant, imminent environmental harm to land, air or water resources." 30 U.S.C. § 1271(a)(2). *fn19" In providing for the issuance of cessation orders, sections 722.11(a) and (b) of the regulations adopt the language of the Act.

 Although the Constitution generally requires notice and a hearing prior to a governmental deprivation of private property, there are exceptions to this requirement in extraordinary and emergency situations where a significant government interest justifies delaying the hearing until after the deprivation. Fuentes v. Shevin, 407 U.S. 67, 90-92, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972); Boddie v. Connecticut, 401 U.S. 371, 378-79, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971). Summary administrative action prior to a hearing has been upheld by the Supreme Court in these situations in order to protect an important governmental or public interest. *fn20" E. g., Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 677-80, 94 S. Ct. 2080, 40 L. Ed. 2d 452 (1974) (seizure of rental yacht carrying marijuana); Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 599-600, 70 S. Ct. 870, 94 L. Ed. 1088 (1950) (seizure of mislabeled vitamin product); Bowles v. Willingham, 321 U.S. 503, 519-21, 64 S. Ct. 641, 88 L. Ed. 892 (1944) (rent control orders); Phillips v. Commissioner of Internal Revenue, 283 U.S. 589, 595-97, 51 S. Ct. 608, 75 L. Ed. 1289 (1931) (collection of federal revenue); Central Union Trust Co. v. Garvan, 254 U.S. 554, 566, 41 S. Ct. 214, 65 L. Ed. 403 (1921) (seizure of enemy property); North American Cold Storage Co. v. Chicago, 211 U.S. 306, 315-21, 29 S. Ct. 101, 53 L. Ed. 195 (1908) (seizure of contaminated food). Similarly, section 521(a)(2) of the Act provides for summary action by the Secretary through his representatives in emergency or extraordinary situations and its provisions comply with the requirements of the due process clause.

 The standards of the due process clause to be applied to statutes which allow deprivations prior to a hearing were enunciated by the Supreme Court in Fuentes v. Shevin. The court must find:

 

First, in each case, the seizure has been directly necessary to secure an important governmental or general public interest. Second, there has been a special need for very prompt action. Third, the State has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance.

 Fuentes, supra, 407 U.S. at 91, 92 S. Ct. at 2000; See Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) (court should consider private interest, public interest, and risk of erroneous deprivation). The standards of § 521(a)(2) of the Act and the provisions of the regulations that apply and interpret the Act meet this test. First, the deprivation under a cessation order does "secure an important governmental or public interest." See 30 U.S.C. § 1201(c) (congressional finding of public and governmental interests). The Act seeks to protect the "health and safety of the public" and the "land, air, and water resources" of the United States. 30 U.S.C. § 1271(a)(2). Similar interests have been sufficient to warrant deprivations prior to a hearing in other instances. See, e.g., Ewing, supra, 339 U.S. at 599-600, 70 S. Ct. 870 (public health); North American Cold Storage Co., supra, 211 U.S. at 315-21, 29 S. Ct. 101 (public health); Sink v. Morton, 529 F.2d 601, 604 (4th Cir. 1975) (public safety); Morton v. Dow, 525 F.2d 1302, 1305-06 (10th Cir. 1975) (public safety).

 Secondly, the use of cessation orders is limited to circumstances where there "is a special need for very prompt action." As was noted above, cessation orders can only be issued where there is imminent danger to the public health or safety or there is a reasonable risk of significant, imminent environmental harm. *fn21" The need for prompt action is further supported by the substantial governmental and public interests involved.

 Finally, the standards of the Act and the regulations will maintain "strict control over (the government's) monopoly of legitimate force" and will reduce "the risk of an erroneous deprivation." Fuentes, supra, 407 U.S. at 91, 92 S. Ct. at 2000; Mathews, supra, 424 U.S. at 335, 96 S. Ct. 893 at 903. Under the Act, the government itself acts through its authorized representatives rather than through private parties. See Fuentes, supra, 407 U.S. at 93, 92 S. Ct. 1983. One of the plaintiffs' main contentions is that the standards under which a cessation order may be issued are too vague, subjective, and broad. Section 701(8) of the Act defines the threat of "imminent danger to the health and safety of the public" as the existence of a condition which could:

 

reasonably be expected to cause substantial physical harm to persons outside the permit area before such condition, practice, or violation can be abated. A reasonable expectation of death or serious injury before abatement exists if a rational person, subjected to the same conditions or practices giving rise to the peril, would not expose himself or herself to the danger during the time necessary for abatement.

 30 U.S.C. § 1291(8). Section 700.5 of the regulations defines a "significant, imminent environmental harm to land, air or water resources" as follows:

 

(i) An environmental harm is any adverse impact on land, air, or water resources, including but not limited to plant and animal life.

 

(ii) An environmental harm is imminent if a condition, practice or violation exists which (a) is causing such harm or (b) may reasonably be expected to cause such harm at any time before the end of the reasonable abatement time that would be set under section 521(a)(3) of the Act.

 

(iii) An environmental harm is significant if that harm is appreciable and not immediately reparable.

 The court concludes that these standards are sufficiently specific to strictly control government action in order to reduce the risk of an erroneous deprivation. *fn22" The adequacy of these standards is further evidenced by an examination of similar standards that have been upheld in other areas. See, e.g., Ewing, supra, 339 U.S. at 595-96, 70 S. Ct. at 871 ("dangerous to health . . . or would be in a material respect misleading to the injury or damage of the purchaser or consumer"); Fahey v. Mallonee, 332 U.S. 245, 250-51 n. 1, 67 S. Ct. 1552, 1554, 91 L. Ed. 2030 (1947) ("is in an unsound or unsafe condition, or has a management which is unsafe or unfit to manage a Federal savings and loan association"); Sink, supra, 529 F.2d at 604 ("could significantly and substantially contribute to the cause and effect of a mine safety or health hazard;" 30 U.S.C. § 814(c)(1)). *fn23"

 As the defendants have noted, this case and the statute at hand are analogous to the situation and standards faced by the Supreme Court in Ewing v. Mytinger & Casselberry, Inc. In Ewing, the Supreme Court upheld the Food and Drug Administration's seizure of misbranded articles under the standard quoted above. 339 U.S. at 599-600, 70 S. Ct. 870. The Supreme Court stated:

 

Discretion of any official may be abused. Yet it is not a requirement of due process that there be judicial inquiry before discretion can be exercised. It is sufficient, where only property rights are concerned, that there is at some stage an opportunity for a hearing and a judicial determination.

 339 U.S. at 599, 70 S. Ct. at 873. In the scheme presently before the court, the administrative official's discretion is sufficiently limited while allowing him the discretion to protect the government's and the public's interests.

 Finally, the plaintiffs allege that the statute fails to provide a prompt hearing after the issuance of a cessation order. After the issuance of a cessation order, several options are available to an operator. Under § 525(c) the operator may request temporary relief from the Secretary who must issue an order or decision on the request within five days of its receipt. 30 U.S.C. § 1275(c). In order for relief to be granted, a hearing must be held, but one is not required if relief is denied. Id. Section 525(b) of the Act provides formal review procedures for a cessation order. 30 U.S.C. § 1275(b). Under this section, in conjunction with § 525(a), unless temporary relief has been granted, a hearing must be held and the Secretary must issue his written decision within 30 days of receipt of the operator's application for review. *fn24" 30 U.S.C. §§ 1275(a), (b). In addition to the formal review procedure, § 521(a)(5) of the Act and § 722.15 of the regulations provide an informal review procedure. 30 U.S.C. § 1271(a)(5). Under these provisions an informal hearing at or near the minesite must be held within 30 days of the operator's request for relief and OSM must issue a written decision within 15 days of the hearing. 30 U.S.C. § 1271(a)(5); 30 C.F.R. § 722.15. Finally, under § 521(a)(5) of the Act a cessation order expires after 30 days if a public hearing has not been held at or near the minesite. Therefore, the court concludes that adequate procedures for a prompt hearing and administrative review, with judicial review thereafter, are provided by the Act and the regulations. In consideration of the entire statutory and regulatory scheme surrounding the issuance of cessation orders under § 521(a)(2) of the Act and § 722.11 of the regulations, this court finds that the provisions of the Act and the regulations comport with the Due Process Clause of the Fifth Amendment to the Constitution.

 In reference to the public hearing within thirty days requirement of § 521(a) (5), plaintiffs contend that § 722.15 of the regulations improperly allows this standard to be satisfied by an informal mine-site hearing. 30 U.S.C.A. § 1271(a)(5); 30 C.F.R. § 722.15. Plaintiffs contend that the Act requires a full adjudicatory hearing before an Administrative Law Judge of the Board of Surface Mining and Reclamation Appeals under the standards of the Administrative Procedure Act, 5 U.S.C. § 554. *fn25" The Act and its legislative history, however, support the Secretary's interpretation that § 521(a)(5) only requires an informal hearing within 30 days of the cessation order. When Congress intended that public hearings conducted under the Act be held in accordance with the procedures of 5 U.S.C. § 554, it explicitly stated the requirement. See 30 U.S.C. §§ 1264(c), 1268(b), 1275(a)(2), 1275(d), 1293(b). The public hearing requirement of § 521(a)(5) does not contain such a requirement and Congress did not indicate that the hearing should be "on the record," which further indicates that the APA does not apply. See United States v. Florida East Coast Railway, 410 U.S. 224, 236-38, 93 S. Ct. 810, 35 L. Ed. 2d 223 (1973); American Telephone & Telegraph Co. v. FCC, 572 F.2d 17, 21-22 (2d Cir. 1978); Mobil Oil Corp. v. FPC, 157 U.S.App.D.C. 235, 247-248, 483 F.2d 1238, 1250-51 (1973). In addition, the entire statutory scheme of administrative review of cessation orders does not indicate that Congress intended to provide a hearing controlled by 5 U.S.C. § 554. See Seacoast Anti-Pollution League v. Costle, 572 F.2d 872, 876 (1st Cir. 1978). Furthermore, the legislative history of the provision, which was added by a floor amendment, reveals that Congress only intended to require an informal hearing within 30 days of a cessation order under § 521(a)(5). 123 Cong.Rec. S12443 (daily ed. July 20, 1977) (remarks of Sen. Metcalf); 123 Cong.Rec. H7586 (daily ed. July 21, 1977) (remarks of Rep. Udall). Therefore, the court finds that the Secretary's interpretation of § 521(a)(5) of the Act in § 722.15 of the regulations is not arbitrary, capricious, or inconsistent with law.

 Plaintiffs' next attack on the enforcement procedures of the regulations is directed at section 722.12(d). *fn26" Section 722.12(d) of the regulations interprets § 521(a)(3) of the Act to allow an operator a maximum of 90 days to abate a violation after a notice is issued. Section 521(a)(3) provides:

 

(T)he Secretary or authorized representative shall issue a notice to the permittee or his agent fixing a reasonable time but not more than ninety days for the abatement of the violation and providing opportunity for public hearing.

 

If, upon expiration of the period of time as originally fixed or subsequently extended, for good cause shown and upon the written findings. . . .

 30 U.S.C. § 1271(a)(3). The plaintiffs contend that the language allowing extensions of time for abatement for good cause shown permits extensions beyond the 90-day maximum period for abatement. Under plaintiffs' interpretation of the Act, the initial period set by the notice of violation cannot exceed 90 days, but the period can be subsequently extended beyond 90 days for good cause shown. If the court adopts the plaintiffs' interpretation, however, the 90-day requirement will be devoid of any meaning. *fn27" Because there is an ambiguity in the statute with respect to the 90-day limit and extensions of time, the court finds it necessary to review the legislative history. In addition to being ambiguous on its face, reading the provision in question in accordance with the statute as a whole, the court cannot accept plaintiffs' view of the "plain meaning" of the section. Both the House and Senate Reports support the Secretary's interpretation and the Senate Report is particularly instructive because the language in the Senate bill is identical to the language of the Act. S.Rep.No.95-128, 95th Cong., 1st Sess. 91 (1977); H.R.Rep.95-218, 95th Cong., 1st Sess. 130, Reprinted in (1977) U.S.Code Cong. & Admin.News pp. 593, 662. Therefore, the court will uphold § 722.12(d) because it is not arbitrary, capricious, or inconsistent with law.

 Plaintiffs' final challenge to the enforcement provisions of the regulations concerns § 722.16(d)(2) and standards for the revocation of permits for a pattern of violations. Plaintiffs contend that the regulation improperly allows the Secretary to revoke a permit for past violations that have been abated rather than only for presently existing violations. *fn28" Section 521(a)(4) of the Act establishes the following standard for determining if there is a pattern of violations requiring a notice to show cause:

 

(A) pattern of violations of any requirements of this chapter or any permit conditions required by this chapter exists or has existed, and if the Secretary or his authorized representative also find (sic) that such violations are caused by the unwarranted failure of the permittee to comply with any regulations of this chapter or any permit conditions, or that such violations are willfully caused by the permittee . . . .

 30 U.S.C. § 1271(a)(4). Section 722.16(d)(2) of the regulations provides that:

 

If the Secretary finds that a pattern of violations exists or has existed the permit and right to mine under this Act shall be either suspended or revoked. . . .

 30 C.F.R. § 722.16(d)(2). The plaintiffs contend that if Congress had intended that past corrected violations be included in the determination of a pattern of violations the Act would have read "are or were caused by the unwarranted failure" and "are or were wilfully caused." Plaintiffs' interpretation, however, would leave the words "has existed" used in reference to a pattern of violations without any meaning. Plaintiffs' attempts to limit a pattern of violations to existing violations without regard for past violations is not supported by the Act. Given the ambiguity in the Act, the court will again consider the legislative history of the Act. Section 521(a)(4) is identical to the pattern of violations provision in the Senate bill and the Senate Report supports the Secretary's interpretation. S.Rep.No.95-128, 95th Cong., 1st Sess. 89 (1977); See S.Rep.No.95-337, 95th Cong., 1st Sess. 110 (1977) (Conference Report). The Secretary has reasonably interpreted the language of the statute and the regulation will be upheld because it is not arbitrary, capricious, or inconsistent with law.

 F. Indian Lands.

 Plaintiffs last set of challenges concerns the regulation of surface mining and the surface effects of underground mining on Indian lands. 25 C.F.R. § 177.101 Et seq.; 42 Fed.Reg. 63394-63410 (Dec. 16, 1977). First, the plaintiffs contend that the Secretary has improperly included enforcement provisions in the regulations promulgated for Indian lands. See 25 C.F.R. §§ 177.112, 177.113, 177.114. Section 710(c) of the Act provides:

 

All surface coal mining operations on Indian lands shall comply with requirements at least as stringent as those imposed by subsections (b)(2), (b) (3), (b)(5), (b)(10), (b)(13), (b)(19), and (d) of section 1265 of this title and the Secretary shall incorporate the requirements of such provisions in all existing and new leases issued for coal on Indian lands.

 30 U.S.C. § 1300(c). Section 710(a) of the Act provides:

 

The Secretary is directed to study the question of the regulation of surface mining on Indian lands which will achieve the purpose of this chapter and recognize the special jurisdictional status of these lands. In carrying out this study the Secretary shall consult with Indian tribes. The study report shall include proposed legislation designed to allow Indian tribes to elect to assume full regulatory authority over the administration and enforcement of regulation of surface mining of coal on Indian lands.

 30 U.S.C. § 1300(a). Under § 710(b), the study report was to be submitted to Congress no later than January 1, 1978. Apparently the study has not yet been submitted to Congress. The plaintiffs contend that Congress' failure to include the enforcement provisions of the Act in the provisions enunciated in § 710 as part of the Indian lands interim program coupled with the requirement that the Secretary study the jurisdictional status and submit proposed legislation to Congress, compels the conclusion that the Secretary is without authority to enforce the provisions of the Indian lands interim program. The plaintiffs also contend that the inclusion of § 517, the inspections and monitoring provision, in the sections enumerated in 710(d) to be included in the permanent regulatory program further supports their interpretation of the Act.

 Although the plaintiffs' view of the statutory scheme appears to have some merit in light of the ambiguities of the Act, the court is unable to find the Secretary's actions in interpreting and implementing the Act arbitrary, capricious, or inconsistent with law. Section 710(e) states:

 

With respect to leases issued after August 3, 1977, the Secretary shall include And enforce terms and conditions in addition to those required by subsections (c) and (d) of this section as may be requested by the Indian tribe in such leases.

 30 U.S.C. § 1300(e) (emphasis added). Thus, it may be inferred that Congress intended the Secretary to enforce the provisions of the interim program under § 710(c) as well as the additional provisions included in the leases at the request of the Indian tribes. The Secretary's interpretation is further supported by the fact that the requirement of § 710(c) that the operators "shall comply with requirements" would be an empty mandate if the Secretary lacked the authority to enforce the requirements. Under the plaintiffs' construction of the Act, neither the Secretary, nor the states, nor the Indian tribes would have the power of enforcement to exact compliance with the requirements of the regulations.

 The requirement of §§ 710(a) and (b) that a jurisdictional study be prepared and submitted does not compel a different result. The provision discussing proposed legislation is clearly aimed at turning over regulatory authority and enforcement powers to the Indians, a problem that continually plagued Congress. *fn29" In fact, the language to the effect that the Indian tribes be allowed "to elect to Assume " enforcement of the regulation implies that another body, presumably the Secretary and OSM, would be enforcing the regulations until the election is provided for and made. 30 U.S.C. § 1300(a) (emphasis added). Therefore, this court cannot conclude that Congress intended to defer the designation of an interim regulatory authority with enforcement powers until the study was received and additional legislation enacted.

 Because the provisions of § 710 of the Act are ambiguous on the enforcement issues, the court again will look to the legislative history for guidance. Section 710 of the Act is virtually identical to § 710 of the House bill which was adopted by the Conference Committee. S.Rep.No.95-337, 95th Cong., 1st Sess. 114 (1977) (Conference Report). The House Report that accompanied the bill states:

 

Section 710 also requires operations on Indian lands to comply with requirements at least as stringent as the full program's provisions by 30 months after enactment. The Secretary is to enforce these provisions as well as incorporate such standards into existing and new leases.

 H.Rep.No.95-218, 95th Cong., 1st Sess. 134, Reprinted in (1977) U.S.Code Cong. & Admin.News pp. 593, 666. Thus, it is clear that Congress intended the enforcement provisions to apply to the permanent program and there is no reason for the court to conclude that Congress' intent was any different with respect to the interim program.

 The absence of the enforcement sections from the list of provisions in § 710(c) also is not determinative. The section that designates the sections to be included in the regular interim program also did not include the enforcement sections. 30 U.S.C. § 1252(c). Although § 502(e) provided for enforcement in the regular interim program, with respect to Indian lands the court finds that sections 710(a) and (e) serve this purpose. §§ 30 U.S.C. 1252(e), 1300(a), (e). In addition, the inclusion of § 517 in the list of provisions to be implemented in the permanent Indian lands regulatory program is not conclusive. 30 U.S.C. § 1267. Section 517 concerns inspections and monitoring and not the enforcement provisions of prime concern in the interim regulatory program. See 30 U.S.C. §§ 1268, 1270, 1271, 1275. Plaintiffs also have referred the court to the proviso in § 523(a) that "except as provided in section 710 of this title the provisions of this chapter shall not be applicable to Indian lands." 30 U.S.C. §§ 1273(a), 1300. As the court has noted above, sections 710(a) and (e) include the enforcement provisions of the Act in the Indian lands program by implication. Furthermore, as the defendants have noted, the thrust of this provision is to preclude the states from exercising regulatory authority over Indian lands. *fn30" Therefore, the court concludes that the Secretary's action in promulgating the regulations concerning enforcement of the provisions of the interim regulatory program for Indian lands was not arbitrary, capricious, or inconsistent with law.

 In conjunction with their attack on the enforcement provisions, the plaintiffs also challenge the definition of a permit in 25 C.F.R. § 177.101. Section 177.101 provides that "Permit means an approval by the Secretary of the Interior to conduct surface coal mining and reclamation operations on Indian lands." Plaintiffs contend that although the Secretary is empowered to approve leases, he has no authority to issue or approve coal mining permits because § 506 of the Act was not mentioned in § 710(c). 30 U.S.C. §§ 1256, 1300(c). Because the court has found that sections 710(a) and (e) imply that the Secretary shall be the regulatory authority and enforce the requirements of the Act, the court concludes that the Secretary's action in including the definition of a permit in the Indian lands regulations was reasonable. Many of the enforcement provisions of the Act are directed at the permit requirements rather than the leasing arrangements that exist for Indian lands. Defining a permit as the Secretary's approval to mine on Indian lands was a proper method to resolve any ambiguities that might arise. Therefore, the court will uphold the regulation because it is not arbitrary, capricious, or inconsistent with law.

 Finally, the plaintiffs assert that the court's decision with respect to certain provisions of the general regulations also should apply to identical or similar provisions of the Indian lands regulations. Thus, plaintiffs contend that where the same requirements are contained in both sets of regulations, if the court strikes a provision down in the general regulations it should do the same with respect to the Indian lands regulations. In reference to these "overlapping" regulations, the government relies on its arguments in support of the general regulations. Therefore, to the extent that provisions of the general regulations are the same as provisions of the Indian lands regulations, the court's decision also will apply to the provisions of the Indian lands regulations.

 III. Order.

 In accordance with the memorandum opinion above, it is, by this court, this 24th day of August, 1978,

 ORDERED that the plaintiffs' motions for summary judgment be, and the same hereby are, denied and that judgment shall be entered for the defendants, See 6 Moore's Federal Practice P 56.12 (1976) and cases cited therein, except as follows:

 (1) plaintiffs' motion for summary judgment with respect to 30 C.F.R. § 716.7(a)(1) is hereby granted and use of the definition in the prime farmlands historical use clause is hereby enjoined and the regulation is remanded to the Secretary of the Department of Interior (Secretary) for reconsideration; and

 (2) plaintiffs' motion for summary judgment with respect to the drawdown and freeboard requirements of 30 C.F.R. §§ 715.18(b)(3)(ii) and (vii) and 25 C.F.R. §§ 177.109(b)(3)(ii) and (vii) is hereby granted and enforcement of these provisions is hereby enjoined and the regulations are remanded to the Secretary for reconsideration; and it is further

 ORDERED that West Virginia's motion to supplement the record, or in the alternative, to lodge a relevant document with the court, is hereby denied; and it is further

 ORDERED that the Secretary shall reconsider 30 C.F.R. § 715.15(b) and 25 C.F.R. § 177.106(b) in light of the March 1978 report by the Skelly & Loy consulting firm entitled Environmental Assessment of Mining Methods, Head-of-Hollow Fill and Mountaintop Removal, Interim Report, and the Secretary shall file a report with the court concerning his reconsideration within 60 days of the date of this Order; and it is further

  ORDERED that the Secretary shall disclose the substance of the consultation mentioned in the basis and purpose statement, 42 Fed.Reg. 62646 (Dec. 13, 1977), and accept and consider additional comments with respect to these consultations in his review of 30 C.F.R. § 715.15(b)(7) and 25 C.F.R. § 177.106(b)(7); and it is further

  ORDERED that the Secretary shall accept additional comments concerning the buffer zone requirement of 30 C.F.R. § 715.17(d)(3) and 25 C.F.R. § 177.108(d) (3) and reconsider these regulations in light of the additional comments received.


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