ELR Citation: ELR 20125
No(s). s. 88-2416 et al (D.D.C. Aug 30, 1990)

The court rules on challenges to Surface Mining Control and Reclamation Act (SMCRA) regulations governing termination of jurisdiction, inspection of abandoned sites, coal preparation plants, prime farmland, water impoundments, probable hydrologic consequences, and post-mining roads. The court first holds that the rule that allows the state agency charged with implementing SMCRA to terminate its regulatory jurisdiction when an operator has performed all his duties to reclaim a site is contrary to SMCRA. SMCRA §521(a) imposes an ongoing duty on the Secretary of the Interior to correct violations of the Act. Congress recognized that dangerous conditions may arise years after mining and reclamation have ended and thus gave the Secretary and the states the power to inspect and enforce any apparent violation, no matter how long after mining has ceased. The court next holds that the rules on how often an abandoned site must be inspected also violate SMCRA. SMCRA §517(c) requires at least one partial inspection per month and one full inspection per quarter for all surface mining sites. The regulations create a class of mines called "abandoned sites" that must be inspected only as often as necessary to monitor changes of environmental conditions or operational status. The court holds that this rule, while it makes good sense, conflicts with the plain language of §517(c), which does not include an exception for abandoned sites.

The court holds that the Secretary improperly relied on the proximity of an off-site coal processing plant to a mine to decide whether SMCRA covers the plant. The court's prior rulings established that the Secretary must regulate off-site processing plants, including dry handling facilities such as crushing, sizing, and screening plants. The regulation making proximity to a mine the decisive factor in determining whether to regulate off-site processing plants conflicts with these rulings. The court rejects an industry claim that all rules dealing with off-site processing plants should be reproposed because the regulated parties never got true notice of the integrated regulatory process. Although the issue has been the subject of a number of rulemakings and judicial interpretations, petitioner had notice of the rule and a chance to comment on it. The court also holds that off-site facilities that only perform crushing and sizing incidentally to coal loading are subject to regulation under the Act.

The court rejects challenges to the prime farmland regulations. The rule allows mine operators to build water impoundments on former prime farmland if it creates a matching amount of new prime farmland on land that was not prime farmland before mining. The rule complies with the Act's purpose of preserving prime farmland by preventing an operator from decreasing the amount of prime farmland in the permit area. The court holds that the Secretary properly prohibited impoundments that aid farming or improve yields but reduce the amount of prime farmland. Nothing in SMCRA requires the Secretary to allow operators to build impoundments on prime farmland in these circumstances. The court holds that the Secretary acted within his authority in dropping the exemption for surface mining support facilities from the requirements for restoring prime farmlands. An earlier decision ordered the Secretary to more thoroughly explain his rationale for adopting an exemption for support facilities or to suspend the exemption. The Secretary decided to suspend the exemption. The court cannot now order the Secretary to explain the rule rather than suspend it.

The court rejects challenges to the water impoundment rules. The rule governing stability of impoundments imposes stricter performance standards on impoundments that would be regulated under the Mine Safety and Health Administration Act and where failures would be expected to cause loss of life or serious property damage. SMCRA §515(b)(8) requires impoundments to meet standards established by the Soil Conservation Service (SCS). The court holds that the Secretary's rule clearly meets SCS standards. The court holds that a challenge to rules governing storage-based temporary impoundments and spillways of permanent impoundment structures is moot, since the Secretary is planning a rulemaking on this issue.

The court rejects challenges to the post-mining road regulations. The court holds that the rule designating all post-mining roads as primary roads, which must meet higher design standards than ancillary roads, is rational and consistent with SMCRA. SMCRA's language on the performance standards for roads is written in broad terms and clearly authorizes a rule imposing higher design standards on roads that will be retained after mining. The court holds that the Secretary rationally required that roads be built to mitigate adverse effects on lands that the Act declares unsuitable for mining. The Secretary logically reasoned that land needing extra care should be specifically protected from the harm that roads may cause. Finally, the court holds that a rule requiring operators to discuss the probable hydrologic consequences (PHC) of their mining operations in their permit application is not arbitrary and capricious. The Secretary adequately explained his decision to limit the required discussion of PHC to the life of the permit, rather than the life of the mine.

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

Counsel for Defendants
John S. Gregory
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2794