In re Permanent Surface Min. Regulation Litigation

• Decision Date: 15 July 1985
• Docket Number: Civ. A. No. 79-1144.
• Citation: 620 F. Supp. 1519
• Parties: In re PERMANENT SURFACE MINING REGULATION LITIGATION (Consolidated Action).
• Court: U.S. District Court — District of Columbia

620 F. Supp. 1519

In re PERMANENT SURFACE MINING REGULATION LITIGATION (Consolidated Action).

Civ. A. No. 79-1144.

United States District Court, District of Columbia.

July 15, 1985.

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Terence L. Thatcher, Jonathan Lash, L. Thomas Galloway, Warner W. Gardner, I. Michael Greenberger, Nancy J. Bregstein, Andrew H. Marks, Washington, D.C., Harvey M. Sheldon, Chicago, Ill., Michael J. Henke, Washington, D.C., Roger L. Chaffe, Richmond, Va., Roger H. Trangsrud, Steve Friedman, John A. Macleod, Richard McMillan, Jr., David R. Case, Thomas C. Means, Fred S. Souk, Norman L. Dean, Jr., Hope Babcock, Mark Squillace, Thomas H. Altmeyer, James T. Hemphill, Richard Flye, Christian Volz, Washington, D.C., for plaintiffs.

Alfred T. Ghiorzi, Milo Mason, Francis J. McShelley, Richard Flye, Craig W. Hulvey, Washington, D.C., Guy Neville, Houston, Tex., Thomas Fitzgerald, Lexington, Ky., for defendants.

Barbara H. Brandon, Alan S. Miller, Pittsburgh, Pa., for Commonwealth of Pennsylvania Dept. of Environmental Resources.

MEMORANDUM OPINION

FLANNERY, District Judge.

This opinion addresses issues in the Round III briefing of challenges to regulations promulgated by the Secretary of the Interior under the Surface Mining Control and Reclamation Act of 1977 ("SMCRA" or "the Act"), 30 U.S.C.A. § 1201 et seq. (West Supp.1985). The history of this litigation is set out in this court's Round I opinion filed July 6, 1984. In Re: Permanent Surface Mining Regulation Litigation II, No. 79-1144, slip op., Round I, (D.D.C. July 6, 1984) ("Round I Opinion"). The court decided Round II issues in an opinion filed in this action on October 1, 1984 ("Round II Opinion"). The court agreed to hear and decide in advance of other Round III issues, issues raised by the promulgation of a final rule defining the term "valid existing rights" ("VER") as used in § 522(e), 30 U.S.C. § 1272(e), of SMCRA. The VER issue was decided on March 22, 1985 ("VER Opinion"). Oral argument was heard by the court on the remaining Round III issues on April 4, 1985, and the matter was taken under advisement. Bearing in mind the standard of review set out in this court's Round I Opinion at pp. 2-3, the court now turns to the issues before it.

I. Hydrology and Geology Permitting

A. The Secretary's Rule on Water Supply Replacement

Industry has challenged 30 C.F.R. § 816.41(h) (1984), 48 Fed.Reg. 43991 (1983), which mirrors § 717, 30 U.S.C. § 1307 of SMCRA, and requires replacement of water supplies that have been adversely affected by surface mining operations, claiming that to the extent it would require mining operators with senior water rights to replace the water supplies of users with junior water rights, the regulation violates § 717(a) of the Act which declares that:

Nothing in this chapter shall be construed as affecting in any way the right of any person to enforce or protect, under applicable law, his interest in water resources affected by a surface coal mining operation.

In his response to Industry's motion the Secretary stated:

The Secretary agrees that § 717(a) requires deference to State water law on questions of water use, and thus interprets § 717(b) and the rule at issue as not requiring the replacement of water supplies to the extent a surface coal mine operator consumes or legitimately uses the water supply under a senior water right determined under applicable State law.

Sec.Res. at 6 (emphasis added). Industry then responds that "with the embodiment of this interpretation in the Court's opinion, the regulation no longer may be read to violate SMCRA and we withdraw our challenge to it." Indus. Reply at 11. In their response citizen intervenors challenge the Industry's interpretation of §§ 717(a) and (b) of the Act and argue that the statute cannot be read to allow mining operations the water rights to which they are entitled under state law. The thrust of their argument is that § 717(a) is a savings clause "aimed at preserving rights and remedies for interests injured by mining activities; it is not an exculpatory clause for avoiding statutorily imposed responsibilities under section 717(b)." Intervenors Citizen Plaintiffs' Mem. at 31. They further argue that there is no indication that Congress saw the water replacement provisions of § 717(b) as being subservient to state law. They suggest that this provision is here to retain for those possibly affected whatever rights they have outside SMCRA.

Citizen-intervenors have not convinced the court—at least with respect to senior water rights legitimately exercised — why the miners should not be able to benefit from a plain reading of § 717(a).

B. Requiring Underground Mine Operators to Restore Premining Recharge Capacity

Industry plaintiffs next challenge 30 C.F.R. § 817.41(b)(2), 48 Fed.Reg. 43992 (1983), which states:

Ground-water quantity shall be protected by handling earth materials and runoff in a manner that will restore approximate premining recharge capacity of the reclaimed area as a whole, excluding coal mine waste disposal areas and fills, so as to allow the movement of water to the groundwater system.

This challenge is another in the dispute over the extent to which the Act requires underground mines to replace water supplies. The Secretary in his response noted that it was voluntarily suspending this rule: "The Secretary will suspend 30 C.F.R. § 817.41(b)(2) pending a new rulemaking that will develop a more complete administrative record concerning the complex legal and policy issues associated with the requirement for underground miners to restore hydrologic recharge capacity." Sec.Res. at 5 n. 3. Given the Secretary's decision to perform a new rulemaking on this issue, the court concludes that this issue is not now properly before the court and any challenge will be better framed upon completion of the new rulemaking.

C. Lawful Promulgation of Hydrology Regulations

Industry plaintiffs challenge the requirement throughout the hydrology performance standard regulations that mining and reclamation activities "be conducted to minimize disturbance of the hydrologic balance within the permit and adjacent areas, and to prevent material damage to the hyrdologic balance outside the permit area." Indus. Motion at 19 (citing 30 C.F.R. §§ 816.41(a), 817.41(a); 816.41(c)(3)(i), 817.41(c)(3)(i); 816.41(e)(3)(i), 817.41(e)(3)(i); 816.41(i)(1)(i), 817.41(h)(1)(i); 816.43(a)(1), 817.43(a)(1)). Industry complains that "to the extent that these regulations require operators to prevent material damage to the hydrologic balance outside the permit area, they were adopted in violation of the APA and SMCRA, and are inconsistent with SMCRA's substantive mandate." Industry Motion at 19.

1. The Requirements of the APA

Industry claims that the final rules as promulgated which require that material damage be prevented outside the permit area were promulgated without adequate notice and comment because nowhere in the proposed rules was such a requirement even hinted at. The Secretary responds by pointing to the fact that with regard to two of the proposed regulations, 30 C.F.R. §§ 816.41(a) and 817.41(a), the Secretary made clear that:

The regulatory authority may require additional preventive, remedial, or monitoring measures to assure that material damage to the hydrologic balance is prevented.

47 Fed.Reg. 27730, 27732 (1982).

The court notes that this notice made clear that it was the Secretary's position that the regulatory authority would have the legal authority to require that steps be taken to prevent material damage to the hydrologic balance. The court also notes that the above language was used in the portion of the proposed regulations labeled "General." Thus, it is misleading to characterize the notice as applying to only two of twelve regulations. Finally, Industry's complaint is that the Secretary does not have the legal authority to require prevention of material damage outside the permit area; the only difference between the rule as proposed and the final rule is that rather than leave it up to the regulatory authorities, the Secretary took it upon himself to promulgate regulations relating to the prevention of material harm outside the permit area. The court finds that this rule grew logically out of the proposed rule, and that the parties were sufficiently on notice that the Secretary read the Act as supporting such prevention.

2. Substantive Supportability of the Regulations

Industry next complains that the requirement that mining and reclamation activities be conducted to prevent material damage to the hydrologic balance outside the permit area is also substantively inconsistent with SMCRA. It argues that the Act requires a mine operator to minimize disturbances to the hydrologic balance, whether inside or outside the permit area, but requires the regulatory authority to prevent material damage outside the permit area. Industry argues that to the extent that the Secretary relies on § 510(b)(3), 30 U.S.C. § 1260(b)(3), for the rule, that reliance is misplaced. That section sets forth the requirements for permit approval by the regulatory authority, and declares that no permit will be approved unless the regulatory authority finds that

(3) the assessment of the probable cumulative impact of all anticipated mining in the area on the hydrologic balance ... has been made by the regulatory authority and the proposed operation thereof has been designed to prevent material damage to hydrologic balance outside permit area.

Industry claims that the plain import of this provision is that the regulatory authority makes a determination whether the individual permit sought will, when added to the other approved mining operations, damage the hydrologic balance outside the permit area, and if it will, then it cannot grant the permit. Read this way, the provision leaves the issue of...