Canestraro v. Faerber
| Decision Date | 26 October 1988 |
| Docket Number | No. 18541,18541 |
| Citation | 374 S.E.2d 319,179 W.Va. 793 |
| Parties | Charlotte CANESTRARO, Phyllis Yankovich, Edward M. Kuca, Jr., Geraldine Kuca, Richard A. Dinger, and Cecil A. Bowman v. Kenneth FAERBER, Commissioner of the West Virginia Department of Energy. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. When a provision of the West Virginia Surface Coal Mining and Reclamation Act, W.Va.Code, 22A-3-1 et seq., is inconsistent with federal requirements in the Surface Mining Control and Reclamation Act, 30 U.S.C. § 1201 et seq., the state act must be read in a way consistent with the federal act.
2. The Commissioner of the Department of Energy must make applications for permits under the West Virginia Surface Coal Mining and Reclamation Act available for public inspection in the courthouse of the county in which the proposed mining activity is to occur, or in the local Department of Energy office in the county, if one exists.
Milton Zelermyer, Morgantown, Jushua I. Barrett, DiTrapano & Jackson, Charleston, Patrick C. McGinley, Morgantown, for petitioners.
Jackson & Kelly, Charleston, for Consolidation Coal.
This is a petition for a Writ of Mandamus and Prohibition by six residents of Marshall County who live downstream from a coal waste dam operated by Consolidation Coal Company ("Consolidation"). Consolidation applied to the West Virginia Department of Energy ("DOE") as required by the West Virginia Surface Coal Mining and Reclamation Act (WVSCMRA), W.Va.Code 22A-3-1 et seq. for a permit to expand the dam. At issue is where the Commissioner of DOE must make applications for permits available for public inspection.
DOE regulates surface mining operations in West Virginia under provisions of WVSCMRA and pursuant to a cooperative agreement with the Secretary of the U.S. Department of Interior under the federal Surface Mining Control and Reclamation Act of 1977 ("SMCRA"). 30 U.S.C. § 1201 et seq. The federal act establishes minimum standards governing surface coal mining and allows states either to be directly regulated by the federal government, or to enact and administer their own regulatory program, subject to approval of the state program by the Federal Office of Surface Mining ("OSM"). The state program need not be identical to the federal program, as long as its provisions are at least as stringent as those provided for in the federal act.
When an operator seeks a permit to enlarge a coal waste dam, WVSCMRA requires that a copy of the permit application be filed for public inspection "... in the nearest office of the department of energy ..." W.Va.Code, 22A-3-9(c) [1985]. However, the comparable provision in the federal act requires the application be filed "... with the recorder at the courthouse of the county or an appropriate public office approved by the regulatory authority where the mining is proposed to occur...." 30 U.S.C. § 1257(e). The regulations that implement the federal act require the application be filed "... with the recorder at the courthouse of the county where the mining is proposed to occur, or an accessible public office approved by the regulatory authority...." 30 C.F.R. § 773.13(a)(2).
The DOE has six regional offices throughout the state. Respondent, Commissioner of DOE, has made Consolidation's application available for public inspection in Fairmont, the DOE office closest to Marshall County. The petitioning local residents point out that Fairmont requires a 190 mile round trip for them and, therefore, they must take a day off from work to review the application. The residents argue that the Commissioner's failure to make the application available locally subverts the Congressional intent to provide for full and effective public participation.
The Commissioner argues that because the state regulatory program was approved by the Federal Office of Surface Mining ("OSM"), the only question is whether he is in compliance with the state law. He further argues that the language in the state law ( W.Va.Code, 22A-3-9(c)) is clear and requires filing the application only at the nearest DOE office. The local residents assert that approval of a state program by the OSM does not release the state regulatory body (DOE) from complying with a federal provision that is more stringent than its state counterpart. The residents insist that Respondent Commissioner has a mandatory, non-discretionary duty to require filing of applications at the courthouse or other accessible public office within the county where the proposed mining activity will occur. Therefore, petitioners ask for a Writ of Mandamus requiring Respondent to have Consolidation's application made available for public inspection in the Marshall County Courthouse and commanding Respondent not to issue a permit to Consolidation until the public review process is repeated with the application filed in Marshall County. For the reasons set forth below, we award the writ.
The problem in this case arises from the fact that the West Virginia notice provision was approved by the OSM in spite of the fact that the public access requirement at issue is not as stringent as that provided in the federal notice provision. It would appear that the OSM should not have approved the program with this provision as written, but that is not our concern. The question we must answer is whether the requirements of the federal act continue to have force and effect after the state program has been approved.
It is the clear intention of Congress that the provisions of state programs be at least as stringent as those in SMCRA itself. Section 503 of SMCRA, 30 U.S.C. § 1253, titled "State Programs" provides, in part:
(a) Each State in which there are or may be conducted surface coal mining operations on non-Federal lands, and which...
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