ELR Citation: ELR 20819
No(s). s. 87-1051 et al (D.D.C. Feb 12, 1990)

The court holds that portions of Interior Department regulations implementing the Surface Mining Control and Reclamation Act (SMCRA) are invalid. The court first strikes down regulations requiring coal mine operators to correct subsidence damage to buildings from underground mines only to the extent state requires. SMCRA does not distinguish based on state law between damage to buildings and surface land, and SMCRA's requirement that coal mine operators maintain the value and uses of surface land requires the restoration of buildings. The court next upholds the Interior Department's deletion of required surveys in subsidence control plans. SMCRA is silent on this issue and the Interior Department has latitude to omit this requirement from its revised regulations. The revised regulations still require operators to measure and prevent subsidence, and the previously required surveys are merely one means of doing so. The court next dismisses as not properly before it a challenge to an Interior Department interpretation of its regulation on planned subsidence. The interpretation was contained in a footnote to a legal brief submitted earlier in the litigation, and as such this interpretation is not a formal interpretation adopted in a proposed rule or notice by the Interior Department. The court next strikes down an Interior Department regulation that would have made definitions of "coal preparation or coal processing" and "coal preparation plant" effective on the date the court struck down earlier definitions of these terms, rather than on the effective date of SMCRA itself. Finally, the court holds that the Interior Department improperly interpreted "previously mined area" as an area mined before SMCRA's substantive requirements began to apply to a specific operation or site. Rather, "previously mined area" means an area mined before SMCRA's enactment.

Counsel for Plaintiffs
L. Thomas Galloway
Galloway & Greenberg
1835 K St. NW, Ste. 801, Washington DC 20006
(202) 833-9084

Counsel for Defendants
Lisa K. Hemmer, Alfred T. Ghiorzi, Daria J. Zane
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 272-6492, -6959, -4056