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August 24, 1978


The opinion of the court was delivered by: FLANNERY


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:

 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.

 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 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 ...

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