Clinchfield Coal Co. v. Hodel, Civ. A. No. 85-0113-A.

• Decision Date: 25 September 1985
• Docket Number: Civ. A. No. 85-0113-A.
• Citation: 640 F. Supp. 334
• Parties: CLINCHFIELD COAL COMPANY, Plaintiff, v. Donald HODEL, Secretary of the United States Department of Interior and United States Department of Interior, Defendants.
• Court: U.S. District Court — Western District of Virginia

640 F. Supp. 334

CLINCHFIELD COAL COMPANY, Plaintiff, v. Donald HODEL, Secretary of the United States Department of Interior and United States Department of Interior, Defendants.

Civ. A. No. 85-0113-A.

United States District Court, W.D. Virginia, Abbington Division.

June 20, 1985.

On Motion for Reconsideration September 25, 1985.

Elsey A. Harris, III, Norton, Va., for plaintiff.

Elizabeth S. Tonkin, Judith A. Williams, Office of the Field Solicitor, U.S. Dept. of the Interior, Knoxville, Tenn., Morgan Scott, Asst. U.S. Atty., Abingdon, Va., Donald Hodel, Secretary Dept. of the Interior, Washington, D.C., for defendants.

MEMORANDUM OPINION

KISER, District Judge.

Plaintiff Clinchfield Coal Company seeks review of an adverse determination of Administrative Law Judge McGuire which denied Clinchfield Coal's Motion for Temporary Relief. The jurisdiction of this Court is based on 30 U.S.C. § 1276(c) and 43 C.F.R. § 4.1267(b).

I. Statement of Facts

Clinchfield Coal Company is the permitee of a surface coal mining operation located in Dickenson County, Virginia. Permit No. 1100406 was issued to the Big Spruce Pine Mine on December 20, 1983, by the Virginia Division of Mined Land Reclamation. The permit for this mining operation provided for the creation of a durable rock fill for the disposal of spoil material. Such fills are also known as "head of hollow" or "valley" fills, depending upon the configuration of the fill. The durable rock fill in question is commonly known as Sycamore No. 5. It consists of a series of terrace lifts that range between twenty and seventy feet in width. Drainage for the fill is provided by the construction of diversion channels which divert rain and water runoff from the fill and into sediment ponds at the base of the fill. These diversion channels are the focus of this case.

All surface mining in the United States is regulated under the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. § 1201, et seq. ("Surface Mining Act" or "the Act"). The Act is a comprehensive statute designed to establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations. 30 U.S.C. § 1202(a). The Office of Surface Mining and Reclamation and Enforcement (OSM) within the Department of Interior is charged with the primary responsibility for administering and implementing the Act by promulgating regulations and enforcing its provisions. The Act sets out a two-stage program for the regulation of surface coal mining: an interim regulatory phase and a subsequent permanent phase. Under Section 503 of the Act, any state wishing to assume permanent regulatory authority over surface coal mining operations on nonfederal lands within its borders must submit a proposed permanent program to the Secretary of the Interior for his approval. The proposed program must demonstrate that the state legislature has enacted laws implementing the environmental protection standards established by the Act and accompanying regulations and that the state has the administrative and technical ability to enforce these standards. 30 U.S.C. § 1253.

The State of Virginia filed such a regulatory program, which was approved effective December 15, 1981. With this approval, Virginia achieved "primacy" under the Act. The Division of Mined Land and Reclamation ("DMLR") is deemed the regulatory authority in Virginia for all surface coal mining and reclamation operations. 30 C.F.R. § 946.10. However, the Secretary of the Interior retains certain oversight authority in states which have attained primacy. This authority is set out at 30 U.S.C. § 1253 and § 1271.

Clinchfield Coal's original permit provided that the diversion channels for the Sycamore No. 5 fill would be constructed in natural ground at each side of the fill. This was done to comply with what Clinchfield Coal perceived to be appropriate interpretations of the Interim Program regulations governing surface mining. On February 18, 1984, Clinchfield submitted Amendment No. 1 to its permit. The amendment proposed relocating the diversion ditches to the interface between the fill and the natural ground next to the fill. It was felt that this approach would be a more economical and environmentally sound construction procedure. This amendment was sought based upon an interpretation of the Virginia version of the Permanent Program regulations, specifically V816.71(d).¹ The amendment was reviewed by DMLR, and approved on April 4, 1984.

On September 17, 1984, an OSM inspector visited the Sycamore No. 5 site along with a representative of DMLR as part of a statistical sampling inspection. OSM Inspector Blevins observed the location of the diversion ditches, and informed the DMLR representative that it was OSM's position and Blevins' interpretation of the current regulations that diversion ditches of this nature should be located off the fill on natural ground. On September 25, 1984, OSM issued a ten-day notice (No. 84-13-290-10) concerning the alleged violation at Sycamore No. 5. That notice stated that if the state regulatory authority failed within ten days after receipt of the notice to take appropriate action to cause the violation to be corrected, or to show cause for such failure, then a federal inspection of the coal mining operation would be conducted and appropriate enforcement action would be taken.

DMLR declined to take any action, and notified OSM that the diversion ditches were being constructed under revised plans which were approved by DMLR pursuant to Section V816.71(d). OSM then conducted an additional inspection on November 9, 1984, to determine if the alleged violation was still occurring, i.e. whether the diversion ditches were still located on the fill. On November 15, 1984, Notice of Violation ("N.O.V.") No. 84-13-290-12 was issued to the Clinchfield Coal Company. The violation cited was a failure to divert surface water run-off from the fill into properly designed channels located off the fill in natural ground as required by Virginia regulations V816.74(d), (e) and (f) and 30 C.F.R. § 816.73(f).² In response to the position taken by DMLR, OSM noted that the federal regulations state that surface water run-off from areas adjacent to and above the fill is not allowed to flow onto the fill and is supposed to be diverted into stabilized channels located off the fill.

... It should be noted that Section V816.71(d) of VCSMR is located under the general fill requirements and should not be construed to govern the construction of durable rock fills since they are governed by a separate specific set of criteria. Specific design and construction criteria contained in Section V816.74, Disposal of Excess Spoil: Durable Rock Fills, would take precedent over any criteria contained in Section V816.71, Disposal of Excess Spoil: General Requirements. Therefore, N.O.V. No. 84-13-290-12 will be issued requiring the operator to relocate the diversion channel serving this fill in such a manner to conform with the requirement set forth in VCSMR § V816.74(d)(f)(e) and 30 C.F.R. § 816.73(f) due to the inadequate response received from the regulatory authority on TDN No. 84-13-290-10.

OSM Comments of Disposition on Notice XX-XX-XXX-XX, (November 15, 1984).

Clinchfield Coal filed an application for review of and temporary relief from this N.O.V. A hearing was held before Administrative Law Judge McGuire on February 4, 1985. That hearing was limited to Clinchfield Coal's application for temporary relief.³ On March 7, 1985, ALJ McGuire issued an opinion denying temporary relief. Clinchfield Coal appealed to this Court, and the matter was remanded to ALJ McGuire for additional findings of fact and conclusions of law as required by 43 C.F.R. § 4.1127. Those supplemental findings of fact and conclusions of law were filed on April 9, 1985. Clinchfield Coal now appeals to this Court for judicial review of the ALJ's decision denying temporary relief. Such immediate direct appeal is authorized by 43 C.F.R. § 4.1267, which provides that any party desiring to appeal the decision of an ALJ denying temporary relief may appeal to the Board or, in the alternative, may seek judicial review pursuant to Section 526(a) of the Act, 30 U.S.C. § 1276(a).

II. Standards for Judicial Review

The Surface Mining Act provides specific statutory procedures for the judicial review of administrative decisions. It also sets out venue provisions for various challenges, the standard of review, and the prerequisites for temporary relief.

30 U.S.C. § 1276(b) states that all complaints and petitions must be heard solely on the record before the Secretary and that the findings of the Secretary, if supported by substantial evidence on the record as a whole, shall be conclusive. Any action subject to judicial review under Subsection (a) shall be affirmed unless the Court concludes that such action is arbitrary, capricious, or otherwise inconsistent with law. 30 U.S.C. § 1276(a)(1).

As a preliminary matter, this Court must determine whether venue is proper in the Western District of Virginia. The statute provides that:

Any action of the Secretary to approve or disapprove a state program or to prepare or promulgate a federal program pursuant to this chapter shall be subject to judicial review by the United States District Court for the District which includes the capital of the state whose program is at issue. Any action by the Secretary promulgating national rules or regulations including standards pursuant to Sections 1251, 1265, 1266 and 1273 of this Title shall be subject to judicial review in the United States District Court for the District of Columbia Circuit. Any other action constituting rule-making by the Secretary shall be subject to judicial review only by the United States District Court for the District in which the surface coal mining operation is located.

30 U.S.C. § 1276(a)(1).

The parties have assumed venue to be proper in the ...