ELR Citation: ELR 20684
No(s). 87-01814 (D.C. Cir. Mar 22, 1991)

The court holds that the Department of the Interior's (DOI's) regulations governing subsidence under the Surface Mining Control and Reclamation Act (SMCRA) are reasonable and not arbitrary or capricious. The court holds that SMCRA §516(b)(1) requires the operator of a surface mine to: adopt measures consistent with known technology to prevent subsidence causing material damage to the extent technologically and economically feasible; maximize mine stability; and maintain the value and reasonably foreseeable use of surface lands. The court holds that §516(b)(1) does not compel the Secretary to require underground mine operators to correct material damage to structures. Congress left this to the Secretary's discretion. DOI instead may direct the operator to abate violations of permit provisions to prevent subsidence, order a cessation of mining, revoke the permit, or assess civil penalties for permit violations. The district court's holding conflicts with a previous appellate decision holding that the Secretary has discretion to impose a duty to restore surface lands. The court further holds that §516(b)(1) does not prohibit the Secretary from requiring underground mine operators to correct material damage to structures and that the Secretary is authorized to do so. The court holds that the Secretary's regulations on whether coal operators must repair structures damaged by subsidence are reasonable. The Secretary adequately explained his policy reasons for retaining the rule's initial protection for land while modifying the protection for structures.

The court holds that the Secretary has discretion to regulate off-site coal preparation facilities and upholds the regulations governing such facilities. SMCRA permits but does not require regulation of off-site facilities that crush, screen, and size coal. Even though the Secretary admits that he has jurisdiction to regulate these facilities, SMCRA does not require him to do so. The Secretary's decision not to regulate off-site physical processing facilities was based on reasonable factors.

A concurring judge adds that SMCRA §520(f) provides a remedy for those injured by an operator's permit violations. The judge contends that Congress ensured that operators will bear the costs of subsidence damage to structures in enacting §520(f).

Counsel for Appellants
John A. Macleod
Crowell & Moring
1001 Pennsylvania Ave. NW, Washington DC 20004-2505
(202) 624-2500

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

Before: WALD, BUCKLEY, and SENTELLE, Circuit Judges.