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IN RE PERMANENT SURFACE MINING REGULATION LITIG.

July 15, 1985

In re PERMANENT SURFACE MINING REGULATION LITIGATION (Consolidated Action)


The opinion of the court was delivered by: FLANNERY

 FLANNERY, District Judge.

 This opinion addresses issues in the Round III briefing of challenges to regulations promulgated by the Secretary of the Interior under the Surface Mining Control and Reclamation Act of 1977 ("SMCRA" or "the Act"), 30 U.S.C.A. § 1201 et seq. (West Supp.1985). The history of this litigation is set out in this court's Round I opinion filed July 6, 1984. In Re: Permanent Surface Mining Regulation Litigation II, No. 79-1144, slip op., Round I, (D.D.C. July 6, 1984) ("Round I Opinion"). The court decided Round II issues in an opinion filed in this action on October 1, 1984 ("Round II Opinion"). The court agreed to hear and decide in advance of other Round III issues, issues raised by the promulgation of a final rule defining the term "valid existing rights" ("VER") as used in § 522(e), 30 U.S.C. § 1272(e), of SMCRA. The VER issue was decided on March 22, 1985 ("VER Opinion"). Oral argument was heard by the court on the remaining Round III issues on April 4, 1985, and the matter was taken under advisement. Bearing in mind the standard of review set out in this court's Round I Opinion at pp. 2-3, the court now turns to the issues before it.

 I. Hydrology and Geology Permitting

 A. The Secretary's Rule on Water Supply Replacement

 Industry has challenged 30 C.F.R. § 816.41(h) (1984), 48 Fed. Reg. 43991 (1983), which mirrors § 717, 30 U.S.C. § 1307 of SMCRA, and requires replacement of water supplies that have been adversely affected by surface mining operations, claiming that to the extent it would require mining operators with senior water rights to replace the water supplies of users with junior water rights, the regulation violates § 717(a) of the Act which declares that:

 
Nothing in this chapter shall be construed as affecting in any way the right of any person to enforce or protect, under applicable law, his interest in water resources affected by a surface coal mining operation.

 In his response to Industry's motion the Secretary stated:

 
The Secretary agrees that § 717(a) requires deference to State water law on questions of water use, and thus interprets § 717(b) and the rule at issue as not requiring the replacement of water supplies to the extent a surface coal mine operator consumes or legitimately uses the water supply under a senior water right determined under applicable State law.

 Sec. Res. at 6 (emphasis added). Industry then responds that "with the embodiment of this interpretation in the Court's opinion, the regulation no longer may be read to violate SMCRA and we withdraw our challenge to it." Indus. Reply at 11. In their response citizen intervenors challenge the Industry's interpretation of §§ 717(a) and (b) of the Act and argue that the statute cannot be read to allow mining operations the water rights to which they are entitled under state law. The thrust of their argument is that § 717(a) is a savings clause "aimed at preserving rights and remedies for interests injured by mining activities; it is not an exculpatory clause for avoiding statutorily imposed responsibilities under section 717(b)." Intervenors Citizen Plaintiffs' Mem. at 31. They further argue that there is no indication that Congress saw the water replacement provisions of § 717(b) as being subservient to state law. They suggest that this provision is here to retain for those possibly affected whatever rights they have outside SMCRA.

 Citizen-intervenors have not convinced the court -- at least with respect to senior water rights legitimately exercised -- why the miners should not be able to benefit from a plain reading of § 717(a).

 B. Requiring Underground Mine Operators to Restore Premining Recharge Capacity

 Industry plaintiffs next challenge 30 C.F.R. § 817.41(b)(2), 48 Fed. Reg. 43992 (1983), which states:

 
Ground-water quantity shall be protected by handling earth materials and runoff in a manner that will restore approximate premining recharge capacity of the reclaimed area as a whole, excluding coal mine waste disposal areas and fills, so as to allow the movement of water to the groundwater system.

 This challenge is another in the dispute over the extent to which the Act requires underground mines to replace water supplies. The Secretary in his response noted that it was voluntarily suspending this rule: "The Secretary will suspend 30 C.F.R. § 817.41(b)(2) pending a new rulemaking that will develop a more complete administrative record concerning the complex legal and policy issues associated with the requirement for underground miners to restore hydrologic recharge capacity." Sec. Res. at 5 n. 3. Given the Secretary's decision to perform a new rulemaking on this issue, the court concludes that this issue is not now properly before the court and any challenge will be better framed upon completion of the new rulemaking.

 C. Lawful Promulgation of Hydrology Regulations

 Industry plaintiffs challenge the requirement throughout the hydrology performance standard regulations that mining and reclamation activities "be conducted to minimize disturbance of the hydrologic balance within the permit and adjacent areas, [and] to prevent material damage to the hydrologic balance outside the permit area." Indus. Motion at 19 (citing 30 C.F.R. §§ 816.41(a), 817.41(a); 816.41(c)(3)(i), 817.41(c)(3)(i); 816.41(e)(3)(i), 817.41(e)(3)(i); 816.41(i)(1)(i), 817.41(h)(1)(i); 816.43(a)(1), 817.43(a)(1)). Industry complains that "to the extent that these regulations require operators to prevent material damage to the hydrologic balance outside the permit area, they were adopted in violation of the APA and SMCRA, and are inconsistent with SMCRA's substantive mandate." Industry Motion at 19.

 1. The Requirements of the APA

 Industry claims that the final rules as promulgated which require that material damage be prevented outside the permit area were promulgated without adequate notice and comment because nowhere in the proposed rules was such a requirement even hinted at. The Secretary responds by pointing to the fact that with regard to two of the proposed regulations, 30 C.F.R. §§ 816.41(a) and 817.41(a), the Secretary made clear that:

 
The regulatory authority may require additional preventive, remedial, or monitoring measures to assure that material damage to the hydrologic balance is prevented.

 47 Fed. Reg. 27730, 27732 (1982).

 The court notes that this notice made clear that it was the Secretary's position that the regulatory authority would have the legal authority to require that steps be taken to prevent material damage to the hydrologic balance. The court also notes that the above language was used in the portion of the proposed regulations labeled "General." Thus, it is misleading to characterize the notice as applying to only two of twelve regulations. Finally, Industry's complaint is that the Secretary does not have the legal authority to require prevention of material damage outside the permit area; the only difference between the rule as proposed and the final rule is that rather than leave it up to the regulatory authorities, the Secretary took it upon himself to promulgate regulations relating to the prevention of material harm outside the permit area. The court finds that this rule grew logically out of the proposed rule, and that the parties were sufficiently on notice that the Secretary read the Act as supporting such prevention.

 2. Substantive Supportability of the Regulations

 Industry next complains that the requirement that mining and reclamation activities be conducted to prevent material damage to the hydrologic balance outside the permit area is also substantively inconsistent with SMCRA. It argues that the Act requires a mine operator to minimize disturbances to the hydrologic balance, whether inside or outside the permit area, but requires the regulatory authority to prevent material damage outside the permit area. Industry argues that to the extent that the Secretary relies on § 510(b)(3), 30 U.S.C. § 1260(b)(3), for the rule, that reliance is misplaced. That section sets forth the requirements for permit approval by the regulatory authority, and declares that no permit will be approved unless the regulatory authority finds that

 
(3) the assessment of the probable cumulative impact of all anticipated mining in the area on the hydrologic balance . . . has been made by the regulatory authority and the proposed operation thereof has been designed to prevent material damage to hydrologic balance outside permit area.

 Industry also argues that because § 510(b)(3) does not establish a performance standard that it would be inconsistent with the Act to turn this provision into a substantive requirement to be carried out by the mine operators. Industry points out that sections 515(b)(10) and 516(b)(9), 30 U.S.C. §§ 1265(b)(10) and 1266(b)(9), establish the hydrology performance standards in the Act and that they merely require the operator to "minimize the disturbances [to] the prevailing hydrologic balance at the mine site and in associated offsite areas." They further claim that limiting any performance requirement to those found in these sections makes sense because the operator "would not necessarily have any knowledge of the effects of other mining operations in that area, much less control over them." Industry Mem. at 23.

 The Secretary responds that it makes little practical sense to read § 510(b)(3) as merely applicable to the issuance of permits and not forming the basis for operators' actual performance. He argues that sections 515(b)(10) and 510(b)(3) are interdependent, and that in any event although the general requirements of § 515(b)(10) merely refer to minimizing harm, the specific requirements effectively require that no material damage be done. To support this proposition the Secretary cites § 515(b)(10)(A) avoiding acid mine drainage; § 515(b)(10)(D) restoring recharge capacity; § 515(b)(10)(E) avoiding channel deepening; § 515(b)(10)(F) preserving hydrologic functions of alluvial valley floors.

 The Secretary reads § 510(b)(3) as requiring a finding by the regulatory authority that the specific operation is designed to prevent material damage outside the permit area, whereas industry reads the provision as requiring a finding that the sum total of all operations is designed to prevent material damage. The court is persuaded that the Secretary has the authority to be certain that the applicant has designed the operation in such a way as to prevent material damage outside the permit area. First, the words of § 510(b)(3) support such a view in that they require a finding that the "proposed operation thereof has been designed to prevent material damage to hydrologic balance outside permit area." The reference to the permit area suggests not that it is the sum total of all mining which has been designed to prevent material damage, because in that context the phrase "outside permit area" has no meaning. Rather, the provision makes sense only if read to require the regulatory authority to determine that the particular operation has been designed to prevent damage outside the permit area. This reading renders the word "thereof" surplusage, but reference to the permit area along with use of the word "operation" which is used within the rest of § 510 to refer to the particular operation seeking permit approval, see § 510(b)(5), (c), lead the court to conclude that the regulatory authority can only approve a permit if it is convinced that the permittee's operation is designed to prevent material damage outside the permit area.

 Industry, however, necessarily takes the view that although this is what the regulatory authority must do, the section can impose no obligation on it because it is not embodied in a performance standard. Thus, although the Secretary cannot grant a permit unless he is convinced that the operation is designed to prevent material damage, he cannot prescribe regulations aimed at preventing such damage. The court will not read so narrowly the Secretary's rulemaking authority. This is not a controversy similar to that surrounding the relationship between § 508(a)(13), 30 U.S.C. § 1258(a)(13), and § 717(b), 30 U.S.C. § 1307(b), discussed infra, where citizen plaintiffs are arguing that the Secretary is required to read the statute in such a way that two provisions contradict one another, and that the Act requires the promulgation of regulations under that contradictory reading. Here, the regulatory authority has been specifically granted authority to be certain that surface coal mining operations are designed in such a way as to prevent material damage outside the permit area, and the Secretary has promulgated rational regulations to that end. The Act grants the Secretary authority to promulgate "such rules and regulations as may be necessary to carry out the purposes and provisions of this chapter." § 201(c), 30 U.S.C. § 1211(c). The Industry objections are rejected.

 D. Information on Hydrologic Impacts for the Permit Period Alone

 This court in its February 1980 opinion struck down the Secretary's definition of "mine plan area" which effectively required coal companies to "supply information for areas outside the permit boundary. It also require[d] information covering the entire life of the mining operation." In Re: Permanent Surface Mining Regulation Litigation I, No. 79-1144, slip op. at 35 (D.D.C. Feb. 26, 1980) [hereinafter cited as Feb. 1980 Opinion]. The basis of the court's decision was that while §§ 507(b)(11) and 508(a)(13) of the Act, 30 U.S.C. §§ 1257(b)(11), 1258(a)(13), require hydrologic information both on and off the mine site, and § 508(a)(1), 30 U.S.C. § 1258(a)(1), requires the identification of the lands to be mined over the life of the mining operation, the other subsections of §§ 507 and 508 do not require information beyond the "specific land mined or the immediate permit area. The court [drew] the conclusion that Congress articulated, with specificity, those instances in which information outside the permit area was necessary." Feb. 1980 Opinion, supra, at 35. The court found it arbitrary and capricious for the Secretary to take the three most expansive informational requests, embodied in §§ 507(b)(11), 508(a)(13) and 508(a)(1), and apply them to less extensive informational needs. Feb. 1980 Opinion, supra, at 35-36.

 In its May 1980 Opinion, the court responded to the Secretary's request for a clarification and the court noted that some of the regulations that employed the term "mine plan area" may be acceptable because they derive authority from these broader statutory sections. In Re: Permanent Surface Mining Regulation Litigation I, No. 79-1144, slip op. at 57 (D.D.C. May 16, 1980) [hereinafter cited as May 1980 Opinion]. The court declined, however, to rule on the merits of this possibility, preferring to submit the question to further rulemaking. Thus, this court's opinion did not focus on any particular regulations using the phrase "mine plan area" as then defined.

 Plaintiff citizen and environmental groups challenge the failure of the Secretary to include information on, and analysis of, the hydrologic impacts over the entire life of the mine in 30 C.F.R. § 780.21(f) (1984), 48 Fed. Reg. 43986 (1983), and § 784.14(e) (1984), 48 Fed. Reg. 43988 (1983). Plaintiffs contend that the rules being challenged wrongfully require that operators submit information only with respect to those activities conducted during the life of the permit rather than activities to be conducted during the life of the mine. Section 507(b)(11), 30 U.S.C. § 1257(b)(11), of the Act requires that the permit application contain:

 
a determination of the probable hydrologic consequences of the mining and reclamation operations, both on and off the mine site, with respect to the hydrologic regime, quantity and quality of water in surface and ground water systems including the dissolved and suspended solids under seasonal flow conditions and the collection of sufficient data for the mine site and surrounding areas so that an assessment can be made by the regulatory authority of the probable cumulative impacts of all anticipated mining in the area upon the hydrology of the area and particularly upon water availability: Provided, however, That this determination shall not be required until such time as hydrologic information on the general area prior to mining is made available from an appropriate Federal or State agency: Provided further, That the permit shall not be approved until such information is available and is incorporated into the application.

 Plaintiffs make four arguments. Their first two arguments the court finds unpersuasive; they are based on this court's earlier opinion and the legislative history. This court's earlier opinion is outlined above and has ultimately little bearing on the subject of whether the operator is to submit information for activities beyond the life of the permit. The legislative history does not support the citizen plaintiffs' argument either. It at best demonstrates that Congress wanted life of the mine analysis being done, and that the reclamation plan must cover all the lands to be mined as indicated in § 508(a)(1), but it does not help the court decide whether the life of the mine analysis was to be done by the operator in the determination of probable hydrologic consequences ("PHC"), as opposed to the regulatory authority doing the life of the mine analysis in the cumulative hydrologic impact analysis ("CHIA").

 The plaintiffs' final arguments address the reasonableness of the final rule. The thrust of their argument is that if the operators are not required in the PHC to evaluate the impact of activities over the life of the mine, then the regulatory authority will be unable to perform its CHIA because it will lack either the information or the resources necessary to gather the information. They contend that it is impractical and against public policy not to require hydrologic information over the life of the mine because the operator's submission under § 507(b)(11) in the PHC is the building block for the CHIA to be done by the regulatory authority. This, they argue, is so because under the final rules, the Secretary has made clear that the CHIA "required under sections 507(b)(11) and 510(b)(3) of the Act should cover the life of the mine and should include offsite areas." 48 Fed. Reg. 43965. Failure to require a life-of-the-mine determination from the operator, they argue, results in a gap in the hydrologic determinations required by the Act. Further, they contend that the permit applicant "is unquestionably in the best position both to collect the hydrologic data for his proposed site and to conduct the initial analysis of the impacts his mining will have on the hydrologic system." Citizen Plaintiffs' Reply at 47. Industry and the Secretary argue that the concerns expressed in the legislative history that the hydrologic balance be maintained on and off the mine site during and after the mining operation are met by the CHIA. "At the time of the initial permit application, the regulatory authority considers detailed information submitted by the operator in his application, as well as general information on the hydrology of the area, to determine the probable cumulative impact of the proposed operation and anticipated mining on the hydrologic balance." Indus. Intervenors' Mem. at 44. The Secretary adds:

 
It is of little consequence that the applicant is not initially required to submit life-of-the-mine information in the permit application. If the regulatory authority is not provided with this information, then the regulatory authority cannot prepare the CHIA, and therefore cannot issue the permit. As a result, if the necessary information for the CHIA is not ultimately provided by the applicant, and is not otherwise available, the applicant cannot obtain permit approval under the Surface Mining Act or under the Secretary's rules.

 Sec. Res. at 19.

 The court will uphold the regulation if it is consistent with the Act or the record demonstrates that the rule is a rational one. First, the court does not conclude that the regulation is inconsistent with the plain language of the Act. Plaintiffs' arguments about the meaning of surface coal mining operation in §§ 701(27) and (28), and the meaning of "mining and reclamation" operation as used by the Department of the Interior are not persuasive. Nor, however, does the court find that the language of the Act requires that the operator's analysis be limited to the activities to be conducted during the permit period. The requirement that the operator perform an analysis " so that an assessment can be made . . . by the regulatory authority" in the CHIA could support a requirement broader than that imposed by the Secretary. This is especially so in light of the Secretary's admission that a life of the mine analysis is required by the CHIA to be performed by the regulatory authority which is called for in the very same section that calls for the PHC.

 The court now turns to an analysis of whether the Secretary has articulated a rational basis for the rule as finally promulgated. Only if the court determines that the Secretary adequately considered the plaintiffs' objections when made during the comment period, and offered reasonable explanations for rejecting their view will the court uphold the Secretary. Absent an adequate explanation by the Secretary the court has no way of reviewing the determination, as the court is not in a position to weigh the competing technical arguments presented by the parties. In its memorandum the Secretary advances only one rather confusing argument to support his decision to include the life-of-the-mine analysis in the CHIA rather than in the PHC determination:

 
The PHC determination, which forms the basis for the specific hydrologic reclamation plan included in the particular permit application, must analyze the detailed plans included in the permit application, such as the location and design of siltation structures. Such a level of detail is unnecessary for determining the probable cumulative impacts of the mine over its entire life and of other anticipated mining. The CHIA is a more general description of the overall impacts mining has on the hydrology of the area and the likelihood that material damage will occur. Therefore, the Secretary included the life-of-the-mine evaluation as part of the cumulative assessment of all anticipated mining.

 Sec. Res. at 19. As noted above, in minimizing the consequence of the distinction, the Secretary in his memorandum points out that if the applicant does not provide the information and it is not otherwise available, then the permit cannot issue. While this latter point may suffice to explain why it is in the applicant's interest to provide the information if the regulatory authority cannot find it elsewhere, it does not serve to explain the failure to require that the applicant provide it in the first place.

 The Secretary in the preamble to the final rule pointed out that the rule requires an analysis of those impacts which will last longer than the mining permit period to be analyzed in the PHC. 48 Fed. Reg. 43971 (1983). But this requirement does not address the possible need to analyze those impacts which result from activities beyond the permit period over the life of the mine. Rather, the Secretary apparently read the statute as precluding a life of mine analysis in the PHC in part due to this court's earlier holdings discussed above. See 48 Fed. Reg. 43964, 43971 (1983). The court has just stated that § 507(b)(11) does not preclude life of the mine analysis in the PHC. In light of this holding, the court will remand §§ 780.21(f) and 784.14(e) so that the Secretary will have an opportunity to explain why, in light of the court's ruling, the life of the mine analysis should be in the CHIA as opposed to the PHC.

 E. Scope of Cumulative Hydrologic Assessments and the Definition of "All Anticipated Mining"

 Section 510(b)(3), 30 U.S.C. § 1260(b)(3), requires that before any permit is issued, the regulatory authority must determine "the probable cumulative impact of all anticipated mining in the area" (emphasis added) and based on that analysis determine whether the proposed mine will materially damage the hydrologic balance. Section 507(b)(11), 30 U.S.C. § 1257(b)(11), specifies (1) that this determination is not required until such time as hydrologic information on the general area prior to mining is made available from an appropriate federal or state agency, and (2) that no permit shall be approved until this general hydrologic information is available.

 
at a minimum, the entire projected lives through bond releases of: (a) The proposed operation, (b) all existing operations, (c) any operation for which a permit application has been submitted to the regulatory authority, and (d) all operations required to meet diligent development requirements for leased Federal coal for which there is actual mine development information available.

 Citizen plaintiffs challenge the underlined portions of this definition as inconsistent with the plain meaning of the Act and congressional intent and as arbitrary and capricious. The Secretary and Industry respond that a proper reading of the statute reveals that the term "anticipated mining" only includes operations for which hydrologic information is available -- that is, operations which are in existence or which have submitted permit applications -- or in the case of federal leases mines where data is available. The court rejects the citizen plaintiffs' challenge of this rule.

 First, citizen plaintiffs rely on the plain meaning of the term "anticipate" to preclude the definition promulgated by the Secretary. The court does not find that the Secretary's interpretation of terms in such a technical statute is to be dictated by resort to the everyday meaning of words, where the definition chosen by the Secretary comports with congressional intent. Further, the court agrees that the position taken by the citizen plaintiffs here relies on an erroneous interpretation of the Act. Plaintiffs contend that § 507(b)(11) expressly requires that no permit issue until information on anticipated mining becomes available. Reading the statute this way lends support to their view that it is in violation of the Act to define anticipated mining to mean only those mines where there is some data available. The court agrees with Industry that the provisos in § 507(b)(11) relate to the availability of baseline information. The statute specifically requires the CHIA and the PHC and then adds:

 
That this determination shall not be required until such time as hydrologic information on the general area prior to mining is made available from an appropriate Federal or State agency: Provided further, That the permit shall not be approved until such information is available and is incorporated into the application.

 30 U.S.C. § 1257(b)(11) (emphasis added). The court does not read this section of the statute to require that where information on hypothetical operations is not yet available, the regulatory authority must find that data before approving a permit. Such a requirement would be odd in the face of the fact that § 507 merely explains what the permit seeker must put in his application, whereas § 510(b)(3) places restrictions on the regulatory authority in that it precludes the approval of a permit absent the assessment by the regulatory authority of the probable cumulative impact of all anticipated mining in the area of hydrologic balance. Further, the Industry members point to legislative history that suggests that the regulatory authority was to rely on information available to make the cumulative impact assessment. H.R. Rep. No. 1445, 94th Cong., 2d Sess. 59 (1976); see also H.R. Rep. No. 218, 95th Cong., 1st Sess. 113 (1977), U.S. Code Cong. & Admin. News 1977, p. 593. Finally, the Secretary points out that since any subsequent mining operation that seeks a permit would have to have a CHIA done, and the regulatory authority once again would have to make a determination that the operation would not materially damage the hydrologic balance, there is little danger that the method chosen by the Secretary would lead to mining that damages the hydrologic balance. At oral argument plaintiffs took issue with this contention and claimed that:

 
The inevitable effect, Your Honor, of that approach is that either they'll reach a point where there can be no more permitting in that area even though there's economical coal seams, and coal development will be irrationally stopped -- plus in many cases the earlier mines could have been planned to take into account a particular hydrologic problem -- or, and we think this is most likely, the environmental controls will be lessened to allow the mining to go forward.

 Tr. Oral Arg. at 54. Whether the Secretary chose the best method for conducting long-range planning is not for this court to decide. Rather, for present purposes, the court decides that nothing in the Secretary's approach violates the Act.

 Nor does the court find that the rule is arbitrary and capricious. The court has been critical of the Secretary in other areas of this litigation for failing to explain rationally his decisions. The administrative record on this rule contains an analysis of the objections in the record raised to the proposed rule which was one more to the liking of plaintiffs here. The Secretary responded to those comments by changing the ultimate rule and explaining that he was seeking to avoid the difficulty of requiring data about hypothetical mines and delaying permits interminably in the process. These concerns are expressed in the record and the Secretary responded to them in a reasonable way by tailoring the definition of anticipated mining. This is precisely the kind of technical area where the court will not substitute its judgment for that of the Secretary even if the court would conclude that a slightly broader definition might be desirable.

 F. Water Source Information for Underground Mines

 Citizen plaintiffs next complain that the Secretary's new hydrology regulations do not require the identification and replacement of water supplies that may be impacted by underground mines. 48 Fed. Reg. 43956 (1983). In their reply brief they recharacterize their complaint as a failure under § 508(a)(13), 30 U.S.C. § 1258(a)(13), to require information on, and provision of, alternative water sources where protection of the water supply of an area from underground mining activities could not be assured. The Secretary's answer is, in short, that he does not require the information because the Act does not require replacement of water for underground mines.

 Some background to this issue is necessary. In its 1980 opinion the court had to decide whether to uphold a regulation of the Secretary that required the replacement of damaged water supplies by underground miners. The court then rejected the Secretary's arguments that other provisions of the Act relating to hydrology gave the Secretary authority to require water replacement by underground operators. The court also said then that § 717(b), 30 U.S.C. § 1307(b), required replacement only by surface operators. May 1980 Opinion, supra, at 37.

 In the instant case, the Secretary has abandoned his attempt to have underground operators replace water supplies, due in part to this court's holding relative to the meaning of § 717(b). Thus, citizen plaintiffs are asking the court to declare that under § 508(a)(13), 30 U.S.C. § 1258(a)(13), the Secretary must require underground operators to replace damaged water supplies. Thus, what the court said in 1980 the Secretary could not do under his broad rulemaking authority, the environmentalists now argue the Secretary must do under § 508(a)(13).

 The court stands by its determination that § 717(b) does not require water replacement by underground operators. First, the court notes that the plain language of the section refers to surface mine operators, and that this term is nowhere defined to include underground mine operators. Thus, the definition in § 701(28), 30 U.S.C. § 1291(28), of "surface coal mining operations" does not speak to the question now before the court, both because a different term is used in § 717(b), and because it is difficult to see how even applying the definition embodied in § 701(28) would lead to the outcome that all underground mine operators must replace water supplies. Further, the court is also partially persuaded by the fact that the Secretary in his 1979 memorandum, when he wanted to require replacement by underground operators, did not ever squarely state that he was relying on § 717(b) as authority for so doing. See Sec. Mem. (Dec. 21, 1979).

 The court's holding leaves citizen plaintiffs relying on § 508(a)(13), 30 U.S.C. § 1258(a)(13). They argue that the requirements of § 717(b) are not duplicative of the requirements of § 508(a)(13):

 
Section 508(a)(13) focuses on the hydrologic balance of an area; not the individual supply rights of any person from qualitative or quantitative pollution, even though a person with water quantity loss might indirectly benefit. The requirement stands apart from § 717 and is not modified by its provisions. Rather, the two provisions, Section 508(a)(13) and Section 717, are independent parts of a comprehensive scheme intended to "assure the maintenance of the [hydrologic] balance on and off the mining site during and after the mining operation."

 Citizen Plaintiffs' Reply at 68 (emphasis in original) (quoting H.R. Rep. No. 218, 95th Cong., 1st Sess. 113 (1977)), U.S. Code Cong. & Admin. News 1977, at 646. *fn1" The court does not read 508(a)(13) as affirmatively requiring water replacement by underground operators, but instead is persuaded by Industry's argument that:

 
§ 508(a)(13) is a permitting and planning requirement, which requires information to be submitted concerning water quantity and quality protection only to the extent that the regulatory authority, pursuant to the Act's substantive mandates, requires such measures to be taken. This section provides no independent mandate for environmental performance.

 Indus. Motion at 5 n. 4 (emphasis in original). Such a reading does not reduce § 508(a)(13) to a nullity, but merely means that the requirements of that section are applied differently to surface miners and underground miners. In his 1979 memorandum the Secretary admitted that § 508(a)(13) might apply differently to surface and underground operators. See Sec. Mem. at 40 n. 7 (Dec. 21, 1979). The court is further concerned that to require information and replacement under § 508(a)(13) circumvents Congress' express wishes with regard to water replacement in § 717(b), 30 U.S.C. § 1307(b). Finally, the court notes that Congress included express hydrology standards for surface operators, § 515(b)(10), 30 U.S.C. § 1265(b)(10), and underground operators, § 516(b)(9), 30 U.S.C. § 1266(b)(9), elsewhere in the Act.

 There is no question that § 508(a)(13) presents a puzzling potential contradiction with § 717(b). The court concludes, however, that the contradiction is avoided by reading § 508, in this context, to require a description of steps to be taken to implement actual performance standards in the Act. *fn2"

 G. Variance from the Groundwater Monitoring Requirement

 Plaintiff citizen and environmental groups next claim that the Secretary's new hydrology regulations create a broad waiver of the requirement that a coal operator monitor the impacts of his mining operations on the groundwater quality and quantity of the area.

 The new 30 C.F.R. § 780.21(i)(2) (1984), 48 Fed. Reg. 43989 (1983), states:

 
(2) If an applicant can demonstrate by the use of the PHC determination and other available information that a particular water-bearing stratum in the proposed permit and adjacent areas is not one which serves as an aquifer which significantly ensures the hydrologic balance within the cumulative impact area, then monitoring of the stratum may be waived by the regulatory authority.

 Plaintiffs claim that the regulation is illegal because it allows waivers where an aquifer serves an important local water use, and it allows a waiver where an aquifer is important to the hydrologic balance on or off the minesite, but might not be important for the entire "cumulative impact area."

 The Secretary contends that the regulation is entirely consistent with the Act which requires monitoring of "strata that serve as aquifers which significantly insure the hydrologic balance of water use either on or off the mining site. . . ." § 517(b)(2), 30 U.S.C. § 1267(b)(2) (emphasis added). The Secretary in his response declares that:

 
Contrary to NWF's assertions, the rule does not allow a waiver where an aquifer serves an important local water use. The preamble to the final rule specifically noted and the Secretary interprets these rules to provide that the waiver of groundwater monitoring under 30 C.F.R. §§ 780.21(i) and 784.14(h) could only apply to water supplies of marginal use and only when other groundwater resources are available for current and future use. 48 Fed. Reg. 43974 (1983).
 
NWF also incorrectly asserts that the rule allows a waiver where an aquifer is important to the hydrologic balance on or off the minesite but may not be important for the entire cumulative impact area. The rule does not allow a waiver in such situations. The preamble indicates, and the Secretary interprets these rules to provide that a waiver will not be granted unless the aquifer does not significantly ensure the hydrologic balance anywhere within the cumulative impact area.

 Sec. Res. at 27-28 (emphasis added at "anywhere").

 In their reply, the citizen plaintiffs welcome this interpretation by the Secretary but argue that it is not supported by the language of the rule and therefore absent notice that this is the interpretation or a new, more clearly written rule, needless confusion will result. The court agrees. Nothing in the Secretary's preamble specifically relates to local use; further, the Secretary's claim in his memorandum that a waiver will not be granted if the aquifer does not significantly ensure the hydrologic balance anywhere within the cumulative impact area is not supported by a cite to the preamble and the court finds no such statement in the preamble. See 48 Fed. Reg. 43974-76. Being that the parties are in substantive agreement, there would appear to be little harm and much good that would result from a clearer repromulgation of the regulations at 30 C.F.R. § 780.21(i) and 784.14(h).

 II. Coal Mine Waste

 A. Controlled Transport of Coal Waste

 Section 515(b)(11), 30 U.S.C. § 1265(b)(11), of SMCRA requires that coal mine and processing wastes be stabilized "through construction in compacted layers." Plaintiff citizen and environmental groups challenge 30 C.F.R. §§ 816.81(a), 817.81(a) (1984), 48 Fed. Reg. 44028, 44030 (1983), which require that coal mine waste be "placed in a controlled manner. . . ." They argue that this provision allows for the practice of end or side dumping, which is a practice in hilly mining areas of placing material by means of gravity in a disposal site. Citizen plaintiffs claim that because of its documented dangerousness, the practice was illegal under the old regulations, and that the current regulation is unsupported by any showing in the record of its safety. Citizen plaintiffs complain that "there is no support for end dumping in the Act, the legislative history, the technical literature or the practical experience of the State [Kentucky] with more mining operations than any other in the country." Citizen Plaintiffs' Mem. at 143.

 Given the Secretary's admission that there was a requirement that the placement be controlled, however, the court concludes that the Secretary was under an obligation to justify in the record his departure from the previous conclusion that end or side dumping were inherently dangerous activities, even where the operator is then required to take some additional step, like spreading the piles in layers so as to minimize the flow of air through the piles. Plaintiffs point out that the old regulation not only prohibited end dumping but also required the operator to layer and compact the waste. See 44 Fed. Reg. 15209-10 (1979). Although the Secretary was by no means required to keep the previous standard, he was required to explain his departure from it as reasonable, and the mere use of the word "controlled" -- without any standards or definition -- in no way demonstrates that the Secretary has assured that the dangers being protected against under the old rule are protected against here. The rule is rejected as arbitrary and capricious. *fn3"

 B. Demonstration of Compaction

 Section 515(f), 30 U.S.C. § 1265(f), requires that the Secretary "establish . . . standards and criteria regulating the design, location, construction, operation, maintenance, enlargement, modification, removal, and abandonment of new and existing coal mine waste piles . . . ." (emphasis added). Plaintiff citizen and environmental groups challenge the removal of design standards relative to the degree of compaction under the old rules. The previous rules contained a 90% dry density requirement. Citizen plaintiffs argue that the Act expressly requires design standards, and thus, even if the Secretary justified removing the 90% standard, which they contend he has not, he had to at least replace it with some other design standard.

 The Secretary counters that "rather than include a specific compaction test, the rules impose a performance standard that all coal waste structures must be designed to achieve a minimum 1.5 long-term safety factor. 30 C.F.R. § 816.81(c)(2) (1983)." Sec. Res. at 34. The Secretary's argument essentially is that the phrase "standards and criteria regulating the design. . . ." permits use of performance standards as long as they regulate the design. The court disagrees. If Congress was satisfied that the proper construction of waste piles could be guaranteed by resort simply to performance standards, it could have made that clear. The controversy here does not concern the general grant of rulemaking authority in a statute which then affords the Secretary the discretion to choose the type of regulation which best fits a particular situation; instead this is one of the very few provisions in the Act where Congress expressly called for design standards. In fact, when Peabody Coal challenged the use of broad design criteria under the interim program regulations, its argument was based in part on its contention 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)." In Re: Surface Mining Regulation Litigation, 456 F. Supp. 1301, 1308 (D.D.C.1978), modified, 201 U.S. App. D.C. 360, 627 F.2d 1346 (D.C.Cir.1980). The court, then, must reject the new regulations at 30 C.F.R. §§ 816.81, 817.81 insofar as they do not carry out the Secretary's express responsibility under § 515(f) to establish design standards. *fn4" Although the court cannot conclude that each and every design criteria from the old rules must be kept as promulgated, the rejection of those criteria must have support in the record and be consistent with section 515(f)'s mandate. The former regulations contained a specific design criteria relative to compaction; the new regulations have rejected that in favor of a performance standard. This is in direct contravention of section 515(f) and, even if the Act leaves discretion with the Secretary for the selection of which design criteria are necessary, the failure to explain the rejection of the previous compaction standard renders the current regulations arbitrary and capricious. *fn5"

 C. Disposal of Coal in Greater than Two-Foot Lifts

 The Secretary's final rule allows an operator to construct lifts exceeding two feet in thickness if such lifts are approved by the Mine Safety and Health Administration (MSHA) district manager. 30 C.F.R. §§ 816.83, 817.83 (1984), 48 Fed. Reg. 44028, 44030 (1983). The Secretary in his response memorandum explains that:

 
The coal waste rules at 30 C.F.R. § 816.83 (1983) require refuse piles to comply with 30 C.F.R. § 77.214 and 77.215 (1983), the MSHA standards for refuse pile construction. Section 77.215(h) of the MSHA regulations allows refuse piles to be constructed in lifts thicker than two feet and with a slope in excess of two horizontal to one vertical if a minimum safety factor of 1.5 will be met.

 Sec. Res. at 36. Citizen plaintiffs and environmental groups complain that this is an unlawful delegation to MSHA of the Secretary's duty to establish design standards for coal mine waste piles under § 515(f), 30 U.S.C. § 1265(f). The issue here is similar to the previous issue. Once again the Secretary relies on the fact that the ultimate design must be approved by the regulatory authority, and technically justifies the greater than two-foot lift possibility by suggesting that the Secretary has adopted a performance standard: "Although lift thickness is important, it may safely exceed 24 inches if the structure can otherwise be designed to achieve a 1.5 static safety factor." Sec. Res. at 37. This reliance on a performance standard is in violation of § 515(f) of the Act.

 D. MSHA Criteria for Impounding Structures

 Plaintiff citizen and environmental groups object to the incorporation into §§ 816.84(b), 817.84(b) (1984), 48 Fed. Reg. 44029, 44031 (1983), of the distinctions made by MSHA between sizes of coal mine waste impoundments. They complain that the Secretary has not technically justified the distinction in terms of SMCRA, which they contend is intended to serve a different purpose from the Mine Safety and Health Act. Further, they contend that the distinction, which has the effect of resulting in less scrutiny of smaller impoundments, is contrary to the requirements of the Act. The court agrees that if the Secretary is to adopt the MSHA distinctions for purposes of SMCRA he must independently consider and justify the adoption of a distinction based on impoundment size. Failure to do this results in an arbitrary classification. Such a holding is once again required by section 515(f), expressing the Secretary's duty, and by the fact that SMCRA was intended by Congress to serve a broader and different purpose than the MSHA. H.R. Rep. No. 218, 95th Cong., 1st Sess. 141 (1977), U.S. Code Cong. & Admin. News 1977, 673.

 
Certain aspects of coal mining operations are now subject to regulation under two major Federal programs -- the Coal Mine Health and Safety Act of 1969 and the Federal Water Pollution Control Act.
  
Under the Coal Mine Health and Safety Act of 1969, as amended, the Secretary of Interior regulates certain health and safety aspects of both surface mines and surface activities of underground mines.
  
The implementation of this act, though, has been directed at the protection of the miner while on the site of the mining operation.
  
In several instances, H.R. 2 specifies that certain activities are to be conducted in such a way as to provide for the protection of the health or safety of the public -- both on and off the minesite. For example, standards are set forth controlling the design, construction, and use of impoundments for the disposal of mine wastes. Such provisions are not duplicative of the Coal Mine Health and Safety Act but are supplementary to the authority granted to the Secretary of Interior by that act.

  H.R. Rep. No. 218, 95th Cong., 1st Sess. 141 (1977) (emphasis added), U.S. Code Cong. & Admin. News 1977, 673.

  The Secretary does not respond by pointing to a technical or legal justification for distinguishing between the two types of impoundments but rather explains that both have to meet various requirements and points to other requirements that maintain such a distinction. The response misses the point. It is the initial distinction based on size embodied in the MSHA regulations that plaintiffs complain has not been justified; because the Secretary has not justified the distinction, the rule must fall. 30 C.F.R. §§ 816.84(b), 817.84(b) and §§ 816.49, 817.49 are thus remanded to the extent those rules require a distinction between large and small impoundments that has not been justified by the Secretary.

  E. Failure to Coordinate with the Army Corps of Engineers

  Citizen plaintiffs further complain that the Secretary's regulations promulgated under § 515(f) failed to sufficiently involve the Corps of Engineers to the extent required by Congress. The Act at § 515(f) requires that the Secretary establish regulations "with the written concurrence of the Chief of Engineers." The Secretary claims he has complied with this requirement by pointing to a June 2, 1983 letter to the Chief of Engineers from OSM, on which the Corps of Engineers indicated its concurrence with the rules by signing a concurrence block on the letter and returning it to OSM. The court agrees. Citizen plaintiffs rely on the following House Report language:

  
In order to assure that mine waste impoundments . . . are constructed . . . so as to safeguard the health and welfare of downstream populations, H.R.2 gives the Army Corps of Engineers a role in determining the standards for construction, modification, and abandonment of these impoundments.
  
Authority for the issuance of regulations and inspections of impoundments rests with the Secretary of Interior; however, such regulations should be developed by the Chief of Engineers. It is the intent of the conferees that the safety, engineering and design standards of the Corps of Engineers will apply, through the rules and regulations of the Secretary, to such structures and waste disposal banks which may serve as temporary or permanent impoundments

  H.R. Rep. No. 218, 95th Cong., 1st Sess. 125 (1977) (emphasis added), U.S. Code Cong. & Admin. News, 657. Yet, the statute plainly and simply requires written concurrence, and that the standards adopted by the Secretary conform to those of the Chief of Engineers. The Secretary has followed the mandate of the statute, and the court will not resort to the legislative history in the face of the clear wording of the statute.

  Industry has challenged §§ 816.89(d), 817.89(d) (1984), 48 Fed. Reg. 44030, 44032 (1983), which provide:

  
Notwithstanding any other provision in this chapter, any noncoal mine waste defined as "hazardous" under section 3001 of the Resource Conservation and Recovery Act (RCRA) (Pub.L. 94-580, as amended) and 40 C.F.R. Part 261 shall be handled in accordance with the requirements of Subtitle C of RCRA and any implementing regulations.

  Industry challenges this rule because it contends that Congress gave the Secretary exclusive responsibility to regulate every kind of waste at coal mines in SMCRA permits, and expressly provided that EPA's regulations for hazardous wastes under RCRA shall not be applied to coal mines.

  The court need not spend much time detailing the statutory analysis because it concludes that the rule was promulgated without adequate notice and comment under the APA. As Industry points out, and the Secretary does not refute, the first notice of these rules came in the preamble to the final rule. See 48 Fed. Reg. 44027 (1983). Further, in the proposed rule the Secretary stated only that the disposal rules "would be slightly modified." 47 Fed. Reg. 26605 (1982).

  The Secretary in his response did not respond to the Industry's APA challenge, but instead attempted to explain that the rule neither broadens nor diminishes the Secretary's rules on the disposal of noncoal waste. Industry takes a vastly different view of the effect of the regulation, and makes a lengthy argument that has nowhere been considered by the Secretary prior to this litigation. Second, Industry is able to point to legal and practical complications that result from the rules. Sections 816.89(d) and 817.89(d) are remanded to the Secretary for adequate notice and comment.

  G. Coal Waste Impounding Structures

  Industry in its initial memorandum challenged 30 C.F.R. §§ 816.84(b)(1) and 817.84(b)(1) governing coal waste impounding structures. In response to the Industry argument, the Secretary noted in his response that the "Secretary intends to propose a rule specifying that one spillway capable of safely passing the design precipitation event may be used instead of separate principal and emergency spillways." Sec. Res. at 41 n. 26. The issue is thus conceded and the Secretary should proceed to propose the above described rule.

  III. Lands Unsuitable Regulations

  A. Petition Procedures

  1. Federal Unsuitability Procedure

  Industry challenges the Secretary's retention in 30 C.F.R. § 769 of a petition process for designation of federal lands as unsuitable for all or certain types of surface coal mining operations and for termination of previous designations. Industry argues that because Congress explicitly adopted an unsuitability petition process for state lands and did not require such a process for federal lands, the Secretary is without authority to provide for such a mechanism. The court disagrees and concludes that the Act requires a federal petition process.

  First, Industry can point to no support in the legislative history that Congress did not desire a federal petition process. It places much weight on the point that the Secretary conceded in the preamble to the proposed rule that the Act does not require a federal petition process. To decide, however, that Congress did not expressly provide for such a process, or to decide that the Act does not require such a process, is not to decide that the Secretary has no independent authority to prescribe such a process.

  
A decision to permit surface mining of coal is a land use decision, and as such may at times conflict with other demands on scarce or valued land resources. For this reason, the bill provides for a mechanism -- on both State and Federal lands -- for citizens to petition that certain areas be designated unsuitable for surface coal mining.

  48 Fed. Reg. 41340 (1983) (quoting S. Rep. No. 128, 95th Cong., 1st Sess. 54 (1977)) (emphasis supplied by commenter). The Secretary also relied on House Report language:

  
The Secretary of the Interior is to review Federal lands and make some determinations based on the standards set forth above. Any person having an interest which may be adversely affected may petition either the State or Federal Government to have an area so designated or to have a designation terminated.

  48 Fed. Reg. 41340 (1983) (quoting H.R. Rep. No. 45, 94th Cong., 1st Sess. 206 (1975)) (emphasis supplied by commenter). It is impossible to conclude, in the face of the above report language, that the absence of such a requirement, if found to exist, demonstrates that Congress affirmatively decided not to permit a federal petition process. The court believes that given the legislative history cited, and the Secretary's broad rulemaking authority under the Act, on which the Secretary also relied, see 48 Fed. Reg. 41354 (1983), it would be permissible for the Secretary to adopt such a procedure even if the Act did not require it.

  The court also concludes, however, that the Secretary is required under the Act to promulgate a federal petition process. Industry's argument that the Act does not require a federal petition process relies solely on the definition of the term "regulatory authority" found at § 701(22), 30 U.S.C. § 1291(22), of SMCRA. An understanding of the Industry argument is important. Section 522(c) provides for petitions to the "regulatory authority." Section 701(22), 30 U.S.C. § 1291(22), defines the term "regulatory authority" to mean:

  
the State regulatory authority where the State is administering this chapter under an approved State program or the Secretary where the Secretary is administering this chapter under a Federal program.

  The term "Federal program" is, in turn, defined at § 701(6), 30 U.S.C. § 1291(6):

  
"Federal program" means a program established by the Secretary pursuant to section 1254 [§ 504] of this title to regulate surface coal mining and reclamation operations on lands within a State in accordance with the requirements of this chapter.

  Section 504, 30 U.S.C. § 1254, authorizes the Secretary to promulgate a federal program for states that have failed to come up with an approved program of their own. The effect of reading these provisions together is that the term "regulatory authority" does not include the Secretary when he is regulating mining on federal lands.

  In a complex statute of this kind, the court is reluctant to depart from the plain language and definitions of the Act. On the other hand, the court's duty is to give effect to Congress' intent, and not to read the words of the statute in such a way as to contradict the plain intent of Congress. The court finds that there are two persuasive arguments which justify applying § 522(c) to the Secretary, and thus requiring a petition process on federal lands. First, citizen plaintiffs point out that the term "regulatory authority" is used in other places in the Act to refer to the Secretary when he is acting with respect to federal lands. For example, under § 509(a), 30 U.S.C. § 1259(a), of SMCRA, the applicant for a mining permit is required to file a performance bond with the "regulatory authority." As citizen plaintiffs point out, if the term "regulatory authority" does not encompass the Secretary as the administrator of federal lands, then bonding would not be required on federal property. This is a result plainly inconsistent with the meaning of the Act, and one no court would uphold. Further, § 510(a), 30 U.S.C. § 1260(a), concerns the requirement for the regulatory authority to review and approve mining permit applications and reclamation plans. Once again, this use of "regulatory authority" must include the Secretary as manager of federal lands, or else no such approval is necessary for mining on federally-owned areas: a result flatly inconsistent with the scheme set up by Congress.

  Viewed this way, then, these other uses of the term "regulatory authority" render the use of that term in § 522(c) ambiguous, and permit the court to consider the legislative history set out above which makes it abundantly clear that Congress believed that there would be a federal lands petition process. Given the remaining ambiguity in the Act, despite the definition of "regulatory authority" in the Act, the court is permitted to resort to this legislative history and find that § 522(c) requires such a federal petition process.

  An answer to the above analysis is that the term "regulatory authority" in the above discussed sections does not at all require a reading different from that contained in the definition embodied in § 701(22), 30 U.S.C. § 1291(22), because §§ 509 and 510 are made applicable to federal lands -- and the Secretary when he acts in relation to those lands -- only through the operation of § 523(a), 30 U.S.C. § 1273(a). Following this analysis, however, provides an alternative method for holding that the federal petition process is required under the Act. Section 523(a) dictates that

  
No later than one year after August 3, 1977, the Secretary shall promulgate and implement a Federal lands program which shall be applicable to all surface coal mining and reclamation operations taking place pursuant to any Federal law on any Federal lands. . . . The Federal lands program shall, at a minimum, incorporate all of the requirements of this chapter, and shall take into consideration the diverse physical, climatological, and other unique characteristics of the Federal lands in question. Where Federal lands in a State with an approved State program are involved, the Federal lands program shall, at a minimum, include the requirements of the approved State program . . . (emphasis added). *fn6"

  Because one of the requirements of "this chapter" is the petition process, the Secretary is required to implement one under the Act. The court prefers this latter analysis, and notes that either one finds support in the direct statements in the legislative history that there would be a petition process for federal lands. *fn7"

  While ordinarily the court would not reach this issue, having decided that the Secretary has independent authority to promulgate such a program, the court does reach the issue because the statutory base of the Secretary's rule is important in deciding whether, for example, he can then suspend unsuitability petitions required by the Act. See infra, III.A.2. (discussing suspension of petitions).

  The Secretary made clear that he desired to retain the petition process because he was persuaded of the importance of public participation in the petition process and Congress' approval of the process in general. Further, the Secretary made clear his belief that the congressional reports quoted above could form the legal basis of such a process. It is true that the Secretary did not specifically state whether he believed the process is required or is simply permitted; the final rule published in the Federal Register expressly cites to the Secretary's broad rulemaking authority embodied in § 201, 30 U.S.C. § 1211. 48 Fed. Reg. 41354 (1983). The Secretary's regulations relating to the federal petition process are upheld.

  Finally, Industry itself invokes § 523(a) to suggest that the procedural safeguards embodied in the state unsuitability process must also be incorporated in the federal unsuitability process. Specifically, it objects to the absence of the possibility for a hearing or other public participation embodied in 30 C.F.R. § 764.15(b)(2) (1984), 48 Fed. Reg. 41353, with respect to state programs. Further, it objects to § 769.14(a)(1) (1984), 48 Fed. Reg. 41355 (1983), to the extent that it differs from § 764.15(a)(1) (1984), 48 Fed. Reg. 41352 (1983). Section 764.15(a)(1) provides a sixty-day period for completeness review in state proceedings, whereas § 769.14(a)(1) permits only thirty days for completeness review in federal proceedings. The court is hampered in its review of these regulations by the absence of any discussion of them by the Secretary in his response memorandum; the court then, while noting that nothing in the preamble justifies these distinctions between the state and federal petition processes, will treat the issue as conceded insofar as the Secretary must justify any procedural differences between the state and federal petition processes, in order to satisfy the demands of § 523(a).

  2. Suspension of Unsuitability Petitions

  Plaintiff citizen and environmental groups along with PADER next challenge 30 C.F.R. §§ 764.15(a)(3) (1984), 48 Fed. Reg. 41352-53 (1983), and 769.14(b)(2) (1984), 48 Fed. Reg. 41355 (1983). These rules allow the consideration of unsuitability petitions to be suspended in certain circumstances by the state regulatory authority, § 764.15(a)(3), or the federal regulatory authority, § 769.14(b)(2), depending on which has jurisdiction over the land in question. Citizen plaintiffs complain that this "suspension" ignores the mandatory decision and hearing schedule set by § 522(c), 30 U.S.C. § 1272(c), of the Act. Section 522(c) of the Act requires that "within ten months after receipt of the petition the regulatory authority shall hold a public hearing in the locality of the affected area. . . . Within sixty days after such hearing, the regulatory authority shall issue and furnish to the petitioner and any other party to the hearing, a written decision regarding the petition, and the reasons therefore."

  Section 764.15(a)(3) permits a state to suspend a petition where the regulatory authority finds that "there is no real or forseeable [sic] potential for surface mining operations to occur." Real and foreseeable potential is defined in the rule to mean "the petitioned lands are likely to be subject to leasing or mining activity within 5 years." Section 769.14(b)(2) allows the federal authority to suspend a petition where it is deemed not ripe. Ripe is defined to include petitions relative to lands that are:

  30 C.F.R. § 769.14(a)(3) (1984), 48 Fed. Reg. 41355 (1983). In the preamble to the final rule the Secretary explained the purpose of the above rules:

  
This concept will allow regulatory authorities to set a time frame for evaluating petitions in relation to the likelihood of mining activity. Unless regulatory authorities can limit their evaluation of petitions to areas where mining is likely to occur within a reasonable period of time, they could be obligated to process unsuitability petitions immediately for which a clear need could not be shown.

  48 Fed. Reg. 41330-31 (1983).

  The citizen plaintiffs complain that the suspension rules are nowhere suggested in the Act or the legislative history and should not be added for the sake of bureaucratic convenience. They argue that "the time periods for agency action on citizen petitions contained in Section 522(c) demonstrate a Congressional concern for timely decisions on citizen petitions without regard to whether there is a 'clear need' for processing the petition." Citizen Plaintiffs' Mem. at 72 (citing Utah International v. Department of the Interior, 553 F. Supp. ...


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