456 F.Supp. 1301 (D.D.C. 1978), 78-162, In re Surface Mining Regulation Litigation

Docket Nº:78-162.
Citation:456 F.Supp. 1301
Party Name:In re SURFACE MINING REGULATION LITIGATION.
Case Date:August 24, 1978
Court:United States District Courts, District of Columbia
 
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456 F.Supp. 1301 (D.D.C. 1978)

In re SURFACE MINING REGULATION LITIGATION.

No. 78-162.

United States District Court, District of Columbia.

Aug. 24, 1978

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

Frank B. Friedman, Washington, D.C., 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 Co., 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 Tex., P. M. Schenkkan, Sp. Asst. Atty. Gen., Austin, Tex., for plaintiff State of Texas.

Edward H. Forgotson, Dallas, Tex., 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.

Roberts B. Owen, Robert N. Sayler, Theodore Voorhees, Jr., Robert J. Gage, Covington & Burling, Washington, D.C., for plaintiffs National Coal Association, et al.

Thomas L. Wylie, Senior Counsel, William L. Hynan, Senior Vice President, National Coal Association, Washington, D.C., for plaintiff National Coal Association.

Stuart T. Saunders, Jr., Washington, D.C., Rose, Schmidt, Dixon, Hasley & Whyte, Pittsburgh, Pa., 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, 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.

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

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

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

Robert J. Golten, National Wildlife Federation, Charles E. Hill, Terence Thatcher, Institute for Public Interest, Georgetown University Law Center, Washington, D.C., L. 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.

This matter comes before the court on plaintiffs' motions for summary judgment. This action involves twenty-four consolidated cases attacking interim regulations promulgated pursuant to the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. s 1201 Et seq. The facts underlying these actions and the regulations are fully set forth in this court's Memorandum Opinion and Order of May 3, 1978 which considered plaintiffs' motions for a preliminary injunction and their initial motions for summary judgment. 452 F.Supp. 327 (D.D.C.1978).

I. Preliminary and Procedural Issues.

A number of issues need to be resolved before plaintiffs' substantive challenges may be considered. 1 Review of agency rulemaking is limited by statute to this court and review must be sought within 60 days of agency action. 30 U.S.C. s 1276(a)(1). Certain plaintiffs are concerned about the possibility of "unpredictable applications" of the regulations in the future after this action has ended, which would be beyond 60 days after the promulgation of the rules. Review of application of the regulations is limited by statute to the district courts for the district "in which the surface coal mining operation is located." See 30 U.S.C. s 1276(a)(1). Thus, it would not be appropriate for this court to comment on any possible unpredictable applications.

National Coal Association (NCA) and others again raise procedural issues already addressed by this court in its previous opinion. 452 F.Supp. at 332-333. 2 These plaintiffs have not presented any arguments that would persuade the court to reconsider its earlier decision. NCA also asserts that its previous contentions are supported by a memorandum prepared by an attorney for the Interior Department

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that was made available to it by an unidentified employee of the Department of Interior. Putting aside questions of relevance, privilege, and propriety, the memo adds nothing to the plaintiffs' position. The memorandum discusses procedures and requirements for normal agency rulemaking. As this court indicated previously, given the statutory time constraints which required expedited rulemaking in this case, the procedures employed by the Secretary and the basis and purpose statement accompanying the regulations were reasonable and adequate. See 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. 2628, 41 L.Ed.2d 226 (1974); Kennecott Copper Corp. v. EPA, 149 U.S.App.D.C. 231, 234-35, 462 F.2d 846, 849-50 (1972); Cf. EDF, Inc. v. Costle, 578 F.2d 337 (D.C. Cir. 1978).

Plaintiff Peabody Coal Co. generally challenges the interim program's use of design criteria rather than performance standards. See, e. g., ss 715.14(b) (2), 715.14(c), 715.15(b)(5)-(9), (11), 42 Fed.Reg. 62681-84 (Dec. 13, 1977). Peabody contends that the Act only authorizes the use of design criteria in the regulation of waste dams. 30 U.S.C. ss 1265(b)(13), 1265(f). Section 201(c) (2) of the Act, however, gives the Secretary broad discretion to promulgate "such rules and regulations as may be necessary to carry out the purposes and provisions of this chapter." 30 U.S.C. s 1211(c)(2). 3 Furthermore, the legislative history of the Act reveals that Congress clearly intended detailed regulations, such as design criteria. See H.R.Rep.No.95-218, 95th Cong., 1st Sess. 85, Reprinted in (1977) U.S.Code Cong. & Admin.News pp. 593, 622. Many of the environmental problems created by surface mining are better regulated through design criteria rather than performance standards and Congress left the decision as to the manner of regulation to the Secretary. To the extent that Peabody challenges the use of uniform nationwide standards, this argument has already been rejected when the plaintiffs' claim that adequate variance procedures were lacking was denied. 452 F.Supp. at 338-339; See 123 Cong.Rec. H3732 (daily ed. April 28, 1977) (remarks of Rep. Udall); 123 Cong.Rec. S7890 (daily ed. May 18, 1977) (remarks of Sen. Metcalf). Peabody also claims that the regulations create an impermissible irrebuttable presumption that the "failure to meet the design criteria automatically amounts to a failure to meet the performance objectives of the Act." This contention is totally without merit. The regulations properly implement the Act and enforcement of the provisions of the regulations will not create any impermissible irrebuttable presumptions.

The final preliminary issue concerns a disagreement over the standard of review to be applied by this court. Section 526(a)(1) of the Act provides that "Any action subject to judicial review under this subsection shall be affirmed unless the court concludes that such action is arbitrary, capricious, or otherwise inconsistent with law." 30 U.S.C. s 1276(a)(1). The disagreement stems from the language in

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s 526(b) which provides "Except as provided in subsection (a) of this section, the findings of the Secretary if supported by substantial evidence on the record as a whole, shall be conclusive." 30 U.S.C. s 1276(b). By its terms, the "substantial evidence" test of s 526(b) does not apply to this review of the regulations under s 526(a) and it evidently refers to judicial review of administrative adjudicatory proceedings under s 526(a)(2), which expressly incorporates the standards of s 526(b). 30 U.S.C. s 1276(a)(2); See H.R.Rep.No.95-493, 95th Cong., 1st Sess. 111 (1977); U.S.Code Cong. & Admin.News 1977 p. 593. The fact that the statutory substantial evidence test does not apply to the regulations in this case does not relieve the defendant of all responsibility to establish support for the regulations in the administrative record. Under the arbitrary and capricious standard, the Secretary still must show support for the regulations in the basis and purpose statement or the administrative record. National Nutritional Foods Association v. Weinberger, 512 F.2d 688, 700-701 (2 Cir. 1975); See Camp v. Pitts, 411 U.S. 138, 142-43, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973); W. Rodgers, Environmental Law s 15, at 19 (1977). This support, however, need not show to a certainty that the regulations adopted by the Secretary are necessarily the best or the only possible method of regulation. See Ethyl Corp. v. EPA, 176 U.S.App.D.C. 373, 401 & n. 58, 541 F.2d 1, 28 & n. 58 Cert. denied, 426 U.S. 941, 96 S.Ct. 2663, 49 L.Ed.2d 394 (1976); Amoco Oil Co. v. EPA, 163 U.S.App.D.C. 162, 175,...

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