ELR Citation: ELR 20848
No(s). 93-3878 (6th Cir. Apr 8, 1994)

The court holds that a district court lacked jurisdiction to nullify a cessation order the U.S. Office of Surface Mining, Reclamation, and Enforcement (OSM) issued under §521(a) of the Surface Mining Control and Reclamation Act (SMCRA), and to enjoin the U.S. Environmental Protection Agency (EPA) from issuing an administrative order under the Federal Water Pollution Control Act (FWPCA) to prevent a company from pumping untreated floodwater from its mine into tributaries of the Ohio River. The company planned to evacuate its flooded mine, located in Ohio, in a way that was predicted not to have a permanent effect on the environment, and it sought approval for the plan from the Ohio Environmental Protection Agency, which administers a federally approved national pollutant discharge elimination system (NPDES) permit program. The Ohio Division of Reclamation, the primary enforcer of SMCRA in Ohio, prohibited commencement of the plan, but the state Reclamation Board of Review granted temporary relief. OSM then stepped in, issuing a cessation order, which the district court subsequently declared a nullity. The district court also restrained OSM from acting to stop or interfere with implementation of the plan. Under threat of action by EPA, the company sought and obtained from the district court an order restraining EPA's proposed actions.

The Sixth Circuit first holds that the district court had no basis for jurisdiction because the company did not exhaust the administrative remedies available to it under SMCRA §525(c), as required by SMCRA §526(c). Although relevant case law indicates only that §§525 and 526 apply to compliance with state SMCRA programs that are in the interim phase, the court holds that these SMCRA provisions also apply to permanent state programs. The court next rejects arguments that exceptions to the exhaustion requirements apply. Addressing the exception set forth in Leedom v. Kyne, 358 U.S. 184 (1958), which may only be invoked when an agency acts manifestly outside of its delineated authority, the court holds that OSM not only acted within the realm of its authority, but was required to act as it did. SMCRA §503 provides for state primacy in implementing SMCRA subject to §§521 and 523, and OSM was required to issue the cessation order under §521(a)(2). The company also failed to satisfy other exceptions to the exhaustion requirement by not making a satisfactory showing of inadequacy, futility, or irreparable injury, and failing to make a colorable constitutional claim.

Addressing the district court's enjoining of EPA, the court holds that district courts are without jurisdiction to review preenforcement compliance orders issued under the FWPCA, and that this holding applies both to orders issued after a violation is discovered and to the investigatory work necessary to determine whether a violation exists. The court also holds that EPA was authorized to act in the circumstances presented, because EPA retains independent enforcement authority and oversight power to ensure compliance with federal standards in states with federally approved NPDES programs.

Counsel for Plaintiff
D. Michael Miller
Porter, Wright, Morris & Arthur
41 S. High St., 29th Fl., Columbus OH 43215
(614) 227-2000

Counsel for Defendants
Edward L. Boling
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before: KENNEDY and GUY, Circuit Judges; and CONTIE, Senior Circuit Judge.