ELR Citation: ELR 20121
No(s). 81-2134-AER (D.D.C. Sep 5, 1990)

The court approves a settlement agreement concerning the Office of Surface Mining's (OSM's) enforcement of the Surface Mining Control and Reclamation Act (SMCRA). The agreement requires OSM to revoke permits issued to entities with outstanding violations and to deny new permits to these entities. The agreement also requires OSM to implement a computer system capable of determining whether a permit applicant or holder is affiliated with a company or individual with an outstanding violation. The court first holds that the agreement does not violate SMCRA's principle of state primacy. The court next holds that the agreement does not constitute rulemaking subject to the Administrative Procedure Act's (APA's) notice-and-comment requirements. The agreement primarily contains two types of provisions: those implementing existing standards and those contemplating the creation of new standards. The former type requires no rulemaking. The latter type obligates the Secretary of the Interior to engage in future rulemaking, and the APA will therefore be satisfied in future proceedings. Finally, the court holds that the agreement does not unlawfully delegate power to a private party. OSM retains responsibility for the manner in which the computer system is developed. Furthermore, the Secretary of the Interior retains full discretion under the settlement agreement by reserving the right to render a final decision following dispute resolution procedures set forth in the agreement.

[The decisions on the merits are published at 13 ELR 20284, 20531, and 14 ELR 20205. A decision on attorney fees is published at 17 ELR 20594.]

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

Counsel for Defendants
Alfred T. Ghiorzi, R. Anthony Rogers
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000