ELR Citation: ELR 20296
No(s). 79-1144 (D.D.C. Jul 15, 1985)

In Round III of the ongoing review of the Secretary of the Interior's Surface Mining Control and Reclamation Act (SMCRA) regulations, the court sustains in part and remands in part regulations concerning hydrology and geology permitting, coal mine waste, unsuitable lands, revegetation, siltation structures, impoundments, remining, variances, permitting grace periods, coal exploration, and the definition of affected areas. Beginning with challenges to the Secretary's hydrology and geology permitting regulations, the court accepts the Secretary's interpretation of SMCRA §717(b) not to require surface mine operators to replace water supplies tapped under a senior water right. The court dismisses a challenge to the Secretary's underground mine groundwater recharge rule because the Secretary has suspended the rule and reopened that part of the rulemaking. The court next rules that the Secretary's requirement that various activities not be allowed to upset the hydrologic balance outside the permit areas is valid. The announcement of proposed regulations gave adequate notice that such a requirement might appear in the final regulations and that SMCRA §510(b)(3) gives the Secretary authority to make outside hydrologic balance an enforceable permit condition. The court holds that the Secretary failed to adequately explain his decision not to require the operator to prepare a life-of-the-mine analysis of hydrologic impacts in its permit application. The argument offered by the Secretary is confusing and does not rationally explain the failure to require that the applicant provide the information. The court sustains the Secretary's interpretation of SMCRA §510(b)(3)'s cumulative hydrologic impact assessment requirement to include assessment only of that mining for which hydrologic data are available. The court rules that neither SMCRA §717(b) nor §508(a)(13) requires the government to compel underground mine operators to replace water supplies affected by their activities. The plain language of the section refers to surface mine operations, moreover, even when the Secretary wanted to require replacement by underground operations he did not expressly state he was relying on §717(b). Although §508(a)(13) presents a potential contradiction, the court reads this section to be consistent with §717(b). The court then rules that the Secretary must embody more clearly in the groundwater monitoring variance rule the position he espoused before the court: that variances are not available when the mine might affect an aquifer serving an important local water use.

Turning to issues raised about the coal mine waste rules, the court first holds that the Secretary has failed to adequately explain why he reworded the regulations to allow end dumping of wastes. The court further holds that the Secretary, without explanation, unlawfully subsituted performance standards in lieu of two categories of design standards for waste piles mandated by SMCRA §515(f). The Secretary also erred in adopting the Mine Safety and Health Administration's (MSHA's) size classifications for waste impoundments without explaining why MSHA's distinctions were relevant to SMCRA regulatory concerns. The court concludes that the Secretary satisfied the SMCRA §515(f) requirement to obtain the written concurrence of the Army Corps of Engineers on the waste impoundment rules, and the plain language of the statute requires nothing more than the Corps' acquiesence despite some legislative history calling on the Corps to develop these rules itself. The court remands a rule adopting the Environmental Protection Agency's Resource Conservation and Recovery Act standards for noncoal mine wastes, holding it was promulgated without adequate notice and comment. The court reserves ruling on an industry challenge to a rule governing impoundment spillways, since the Secretary has proposed to amend the rule.

Addressing challenges to the unsuitable lands regulations, the court first holds that the Secretary properly instituted and, in fact, was required to institute, a petition process under SMCRA §522 for designating or undesignating federal lands as unsuitable for certain types of mining. Legislative history clearly indicates that Congress intended there to be a federal petition process. Although this by itself would authorize, but not require, the Secretary to initiate a federal petition, uses of the term "regulatory authority" throughout SMCRA convince the court that §522(e) does require such a process. Also, SMCRA §523(a) makes all the requirements of the Act applicable to federal management of federal lands. The court holds that the federal petition program was promulgated with adequate if less than ideal notice, but notes that the Secretary has conceded that he must justify and procedural differences between the state and federal petition processes. The court holds that provisions allowing the Secretary to suspend consideration of petitions concerning areas not likely to be actively mined are contrary to the time limits for consideration in §522(c), and also were promulgated without proper notice and comment. The court sustains the hearing procedures established for petitions, ruling that SMCRA §522(c) neither requires full adjudicatory procedures nor forbids their partial use. The court also largely sustains the Secretary's interpretation of what "substantial legal and financial commitments" justify a variance from unsuitability designations, finding that the interpretation comports with Congress' intent, that takings considerations do not compel a less stringent variance standard, and that the standard need not protect all "valid existing rights." However, the court remands the rule to allow the Secretary to clarify that variances are not limited to existing mines.

Turning to four issues raised about requirements for contents of unsuitability petitions, the court first upholds a requirement that a petition contain evidence covering all lands in the petition, accepting the Secretary's interpretation of this rule to allow use of sampling and analysis of areas shown to represent the entire area. The court also sustains a part of the rule requiring petitioners to prove that mines otherwise observing the requirements of SMCRA in the area would nonetheless have sufficient impact on the environment to justify an unsuitability designation, a rule allowing dismissal of frivolous petitions without a hearing, and a rule allowing the Secretary to ask petitioners for additional information. The court then holds that the regulatory definitions of "historic lands," "natural hazard lands," and "fragile lands" do not impermissably broaden the unsuitability criteria. The court, holds that plaintiffs' challenge to a recent, undocumented agency interpretation of the regulations prohibiting mining operations in buffer areas around roads, dwellings, public buildings, parks, and cemeteries is not properly before the court. The court upholds a rule requiring protection of only those historic places actually listed on the National Register, but rejects that part of the rule limiting protection to publicly owned places. The court upholds a consent-through-silence provision in the rule for obtaining outside agency approval for mining that affects parks and historic sites. The court strikes down an amended rule allowing surface mining in national forests if all significant damage to recreation, timber, economic, or other values was repairable, ruling that Congress intended to avoid significant damage whether reversible or not. The court also strikes down as inconsistent with SMCRA a revised definition of cemetery, which excluded private family burial grounds. The court remands the rule governing protection of Wild and Scenic River study areas so that the Secretary may make it consistent with the Wild and Scenic River Act administrative guidelines.

Turning to various objections to the revegetation regulations, the court upholds the Secretary's relaxation of restrictions on the use of introduced species. The court rejects allegations that the amended rules unlawfully drop minimum and overall cropland productivity standards from the revegetation requirements, holding that the new rules impose the same productivity requirements as the old rules. The court remands for further support rules allowing the Secretary to permit operators to repair rills and gullies on a reclamation site and to plant additional trees and shrubs without extending the time the operator is held responsible for successful revegetation. The court upholds revised regulations that do not require test grazing to demonstrate reclamation of rangelands. The court remands as inadequately supported by the record an amendment allowing regeneration success to be judged by a single growing season's performance in areas receiving more than 26 inches of rain per year, but upholds as substantially unchanged the two-season test period for areas with less rainfall. Finally, the court rejects challenges to the methods for measuring revegetation success, upholding a provision approving revegetation coming with 90 percent of the standards and a provision allowing case-by-case approval of state standards.

The court holds that the Secretary inadequately explained the reasons for always requiring siltation structures and for presuming that they always represent the best technology currently available to minimize hydrologic disturbance. The court also holds that the Secretary abolished the distinction between large and small sedimentation ponds without giving adequate notice of the change. Although the parties' arguments on this point and the proposed rule itself are technical in nature, to defer to the Secretary more because a technical issue is involved would be to abdicate the court's responsibility under the Administrative Procedure Act.

Reviewing the rules on impoundments, the court first rules that SMCRA does not implicitly exempt impoundments from its general directive to eliminate all highwalls in reclamation. Regarding a second challenge, the court notes that the Secretary has agreed to propose a rule allowing a single impoundment spillway to serve as both principal and emergency spillway.

Concerning the remining rules, the court remands as contrary to SMCRA's highwall elimination provisions a definition of "previously mined area" that includes areas mined subsequent to the passage of SMCRA and so may excuse a remining operator from elininating highwalls left there by the original miner.

On variances, the court rules that SMCRA §515(e) was meant to provide a variance only for steep slope mining requirements. The Secretary wrongly extended the general variance provision to all mining. A separate challenge to the mountain top removal regulations is moot, since the Secretary has agreed to reconsider those rules.

The court holds that the Secretary's rule granting a grace period to certain operators during the initial implementation of a state or federal regulatory scheme runs counter to SMCRA §506(a), which calls for a grace period only for those with interim SMCRA permits.

The court remands an amendments to the coal exploration rules that would excuse those who will not substantially disturb the land surface from giving notice of their activities, holding that the Secretary did not adequately address the concerns raised by those commenting on the amendment. The court also remands rules allowing the notice to include either a narrative description or a map of the area to be explored. Although a map alone may be sufficient, the rule should be made more specific to ensure that the map will convey an accurate description of the precise location of the proposed exploration.

The court strikes down the Secretary's definition of which roads are covered by the Act as "affected areas," holding that it excludes roads clearly included under the SMCRA §701(28) definition of surface coal mining operations. Also, the definition is far more exclusive than any arguments the Secretary has put forward would require.

Finally, the court declines to reconsider its earlier ruling on whether SMCRA §201(c)(2) authorizes the Secretary to promulgate both design criteria and performance standards for mining operations. However, it offers to consider making that ruling and any other rulings the parties wish final so that they may be appealed.

[Previous rulings in the case appear at 9 ELR 20720; 10 ELR 20113, 20208, 20526; 11 ELR 20941; 14 ELR 20617; 15 ELR 20481, 20494.]

Counsel for Plaintiffs
L. Thomas Galloway
Center for Law & Social Policy
1751 N St NW, Washington DC 20036
(202) 872-0670

Warner W. Gardner
Shea & Gould
1627 K St NW, Washington DC 20006
(202) 833-9850

Harvey M. Sheldon
Coffield, Ungaretti, Harris & Slavin
3500 Three First National Plaza, Chicago IL 60602
(312) 977-4400

Counsel for Defendants
Alfred T. Ghiorzi
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2306

Craig W. Hulvey
Grove, Jaskiewicz, Gilliam & Cobert
Suite 501, 1730 M. St NW, Washington DC 20036
(202) 296-2900