452 F.Supp. 327 (D.D.C. 1978), Civ. A. 78-162, In re Surface Min. Regulation Litigation

Docket Nº:Civ. A. 78-162
Citation:452 F.Supp. 327
Party Name:In re Surface Min. Regulation Litigation
Case Date:May 03, 1978
Court:United States District Courts, District of Columbia
 
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452 F.Supp. 327 (D.D.C. 1978)

In re SURFACE MINING REGULATION LITIGATION.

Civ. A. No. 78-162.

United States District Court, District of Columbia.

May 3, 1978

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        Lois J. Schiffer, Alfred T. Ghiorzi, David C. Cannon, Jr., Carol Green, Michael A. Mc Cord, Land & Natural Resources Div., Gen. Litigation Section, U. S. Dept. of Justice, Washington, D. C., for defendants.

        Frank B. Friedman, Edgar H. Twine, Washington, D. C., for plaintiff Atlantic Richfield Co.

        Warner W. Gardner, I. Michael Greenberger, Shea & Gardner, Washington, D. C., for plaintiff Peabody Coal Co.

        Richard McMillian, Jr., John A. Macleod, Washington, D. C., for plaintiffs Amherst Coal Company, et al. and Consolidation Coal Co.

        Francis J. McShalley, McGee & Ketcham, Washington, D. C., Thomas G. Johnson, S. S. Dur, Houston, Tex., for plaintiff R & F Coal Co.

        John L. Hill, Atty. Gen. of Texas, P. M. Schenkkan, Sp. Asst. Atty., Austin, Tex., for plaintiff State of Texas.

        Edward H. Forgotson, Nicholas S. Reynolds, Washington, D. C., Spencer C. Relyea, Dallas, Tex., for plaintiff Texas Utilities Generating Co.

        Peter J. Nickles, Eugene D. Gulland, Washington, D. C., for plaintiff Sunoco Energy Development Co., et al.

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        Roberts B. Owen, Robert N. Sayler, Theodore Voorhees, Jr., Robert J. Gage, Washington, D. C., Thomas L. Wylie, Senior Counsel, William L. Hynan, Senior Vice President, National Coal Association, Washington, D. C., for plaintiff National Coal Association.

        Guy Nevill, Houston, Tex., Michael Henke, Vinson & Elkins, Washington, D. C., for plaintiff Dow Chemical Co.

        Stuart T. Saunders, Jr., Rose, Schmidt, Dixon, Hasley & Whyte, Washington, D. C., for plaintiff Western Pennsylvania Surface Coal Mine Operators Association, et al.

        W. Stanfield Johnson, Washington, D. C., for plaintiff Consolidation Coal Co., et al.

        Charles F. Cook, Vice President, Edward M. Green, Senior Counsel, American Mining Congress, Washington, D. C., Anthony J. Thompson, Edward A. McCabe, Charles E. Sliter, Hamel, Park, McCabe & Saunders, Washington, D. C., for plaintiff American Mining Congress, et al.

        John L. Kilcullen, Michael T. Heenan, Washington, D. C., for plaintiff Utah International Inc.

        J. Thomas Steger, Asst. Atty. Gen., Marshall Coleman, Atty. Gen., Richmond, Va., for plaintiff State of Virginia.

        Steven L. Friedman, John M. Elliott, Dilworth, Paxson, Kalish, Levy & Kauffman, Philadelphia, Pa., Stuart P. Ross, Roger Trangsrud, Patrick M. Raher, Hogan & Hartson, Washington, D. C., for plaintiff Pennsylvania Coal Mining Association, et al.

        Robert J. Golten, National Wildlife Federation, Washington, D. C., Charles Hill, Terence Thatcher, Institute for Public Interest, Washington, D. C., Thomas Galloway, Center for Law and Social Policy, Washington, D. C., for plaintiff, defendant-intervenor National Wildlife Federation, et al.

        Chauncey H. Browning, Jr., Atty. Gen., Dennis Abrams, Asst. Atty. Gen., Charleston, W. Va., for plaintiff State of West Virginia.

        William I. Althen, Robert J. Coyne, Washington, D. C., for plaintiff Virginia Surface Mining & Reclamation Association, Inc., et al.

        MEMORANDUM OPINION AND ORDER

        FLANNERY, District Judge.

        I. INTRODUCTION

        This matter comes before the court on plaintiffs' motions for summary judgment and for a preliminary injunction. This action involves twenty-two consolidated cases attacking regulations promulgated by the Secretary of Interior pursuant to the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. s 1201 et seq., which was enacted on August 3, 1977.

        The Act establishes a two-tier regulatory program to protect the environment from the damaging effects of surface coal mining. The two-tiers include an interim program, that is presently before the court, and a permanent program which will be implemented over the next two years. Section 501(a) of the Act requires the Secretary to promulgate within 90 days of enactment regulations establishing the interim regulatory program. The interim regulations were promulgated on December 13, 1977 1 and they include standards for, inter alia, spoil and waste disposal, reclamation operations, the use of explosives and impoundments, topsoil protection, hydrology system protection, and revegetation. See 42 Fed.Reg. 62639 (Dec. 13, 1977). New surface coal mining operations commencing on or after February 3, 1978 must comply with the performance standards of the interim regulations when the operations begin. All surface mining operations which commenced prior to February 3, 1978, with certain exceptions, must comply with the performance standards of the interim program by May 3, 1978.

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        Certain plaintiffs seek a preliminary injunction to enjoin the implementation and enforcement of certain regulations that they contend will cause irreparable injury to them if the regulations become operative on May 3, 1978. These plaintiffs assert that the provisions should not be allowed to become effective until the court has the opportunity to perform a full substantive review pursuant to the standards of section 526(a)(1). Other plaintiffs have asked the court to grant summary judgment to them on attacks to regulations that they claim the court can determine to be arbitrary, capricious or inconsistent with law under s 525(a)(1) at this stage of the proceedings. Generally, the industry plaintiffs 2 have joined in each others' motions. The environmental groups that are plaintiffs have moved for summary judgment on their challenge to two subsections of the regulations. The federal defendants 3 contend that all of the issues can be resolved as motions for summary judgment because the judicial review involved is a review of the merits of the administrative record which is before the court. 4 The federal defendants believe that the need for a preliminary injunction will arise only if the court is unable to decide the merits prior to May 4, 1978. The federal defendants have not made any motions for summary adjudication and they only ask that this court deny plaintiffs' motions for summary judgment and a preliminary injunction.

        II. Industry Plaintiffs' Motions

        The industry plaintiffs' motions will be dealt with first. Their attack involves both procedural challenges concerning the manner of promulgation of the regulations and substantive challenges to the regulations themselves. The substantive challenges include: (1) that five matters to be regulated in the permanent program are improperly regulated in the interim program; (2) that adequate exemption and variance procedures are lacking throughout the interim regulations; (3) that the regulations improperly extend to pre-existing structures and facilities; (4) that prime farmlands standards have been improperly extended to non-prime farmland areas; (5) that the prime farmlands statutory grandfather exemption has been improperly narrowed; (6) that waste impoundment has been improperly regulated; (7) that the regulations improperly limit blasting; (8) that the regulations improperly limit the discharge of manganese into alkaline surface water; and (9) that the regulations improperly implement the small operators exemption. 5 The procedural challenges allege: (1) that the Secretary failed to consider the effects of the regulations on the economy, inflation, and the nation's coal supply; and (2) that the

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basis and purpose statement accompanying the regulations is inadequate. 6 Plaintiffs' procedural challenges will be considered first.

        A. Plaintiffs' Procedural Challenges

         One of plaintiffs' assertions is that the basis and purpose statement accompanying the interim regulations is inadequate. The basis and purpose statement precedes the regulations in the Federal Register. 42 Fed.Reg. 62639-62675 (Dec. 13, 1977). The federal defendants also note that two sections of the regulations, s 700.2 and s 710.2, outline the objectives of the regulations. Furthermore, the defendants assert that the certified index to the administrative record filed in this action on March 20, 1978 serves to remedy any inadequacies of the statement in identifying the bases of the regulations.

        The basis and purpose statement published with the regulations (1) is an adequate statement of "and why the regulations were actually adopted", Amoco Oil v. EPA, 163 U.S.App.D.C. 162, 179, 501 F.2d 722, 739 (1974); (2) sets forth "a thorough and comprehensible statement of the reasons" for the agency's decisions, National Nutritional Foods Ass'n v. Weinberger, 512 F.2d 688, 701 (2d Cir. 1974); (3) explains the agency's policy choices and standards, Environmental Defense Fund v. EPA, 150 U.S.App.D.C. 348, 359, 465 F.2d 528, 539 (1972) and (4) explains the agency's resolution of "significant problems raised by the comments," Rodway v. United States Department of Agriculture, 168 U.S.App.D.C. 387, 395, 514 F.2d 809, 817 (1975). Given the statutory time constraints, the basis and purpose statement sufficiently details the Secretary's actions and how the comments were considered and the problems resolved. See Kennecott Copper Corp. v. EPA, 149 U.S.App.D.C. 231, 234-35, 462 F.2d 846, 849-50 (1972). To the extent that the statement lacks citations to the technical data supporting the regulations, this deficiency was properly remedied by the certified index to the administrative record filed on March 20, 1978. Portland Cement Association v. Ruckelshaus, 158 U.S.App.D.C. 308, 327, 486 F.2d 375, 394 (1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2682, 41 L.Ed.2d 226 (1974). The certified index adequately identifies the technical literature relied upon by the Secretary in support of the regulations. In their Joint Reply...

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