Shawnee Coal Co. v. Andrus

• Decision Date: 05 October 1981
• Docket Number: No. 80-3220,80-3220
• Citation: 661 F.2d 1083
• Parties: , 11 Envtl. L. Rep. 21,040 SHAWNEE COAL COMPANY, Plaintiff-Appellee, v. Cecil D. ANDRUS, Secretary of the Interior, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1083

661 F.2d 1083

16 ERC 1921, 11 Envtl. L. Rep. 21,040

SHAWNEE COAL COMPANY, Plaintiff-Appellee, v. Cecil D. ANDRUS, Secretary of the Interior, et al Defendants-Appellants.

No. 80-3220.

United States Court of Appeals Sixth Circuit.

Argued June 8, 1981.

Decided Oct. 5, 1981.

James E. Rattan, Asst. U. S. Atty., Columbus, Ohio, Nancy B. Firestone, Michael A. McCord, James W. Moorman, Dept. of Justice, Land Division, Washington, D. C., for defendants-appellants.

C. William O'Neill, Thomas B. Ridgley, Vorys, Sater, Seymour & Pease, Columbus, Ohio, for plaintiff-appellee.

Before ENGEL and JONES, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

CELEBREZZE, Senior Circuit Judge.

The issue in this case is whether the district court erred in asserting jurisdiction over an action to enjoin the Secretary of the Interior from enforcing certain provisions of the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. §§ 1201, et seq. In response to the Secretary's issuance of cessation orders against its tippling operations and without exhausting administrative remedies, Shawnee Coal Co. sought an injunction and declaratory relief in the district court to prohibit the Secretary from taking any action to enforce the administrative orders. After concluding that Sections 525 and 526 of the Act, 30 U.S.C. §§ 1275 and 1276, provide a parallel structure for review by the Secretary or in a district court, the court assumed jurisdiction and concluded that Shawnee had satisfied the traditional standards for the issuance of injunctive relief. Accordingly, the court enjoined enforcement of the cessation orders. We now reverse.

I. BACKGROUND

The Surface Mining 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." § 102(a), 30 U.S.C. § 1202(a). Title II of the Act creates the Office of Surface Mining Reclamation and Enforcement (OSM) within the Department of the Interior, and the Secretary of the Interior, acting through OSM, is charged with the primary responsibility for administering and implementing the Act. § 201, 30 U.S.C. § 1211.

The Act's principal regulatory and enforcement provisions are contained in Title V, which establishes a two-tiered regulatory program to achieve the purposes of the statute. The two tiers consist of an interim regulatory program and a permanent regulatory program. § 501(a) of the Act, 30 U.S.C. § 1251(a), requires the Secretary to promulgate interim regulations for surface coal mining and reclamation operations within ninety days of the statute's enactment. After a notice and comment period, the Secretary promulgated and published final interim regulations on December 13 and 16, 1977, and the interim regulations were made effective as of those dates.

§ 502(c) of the Act, 30 U.S.C. § 1252(c), delineates the performance standards that the interim regulatory program must contain. Those performance standards include, among other things, requirements for restoration of land to its prior condition after mining, restoration of land to its approximate original contours, segregation and preservation of topsoil, minimization of hydrologic disturbances from mining, construction of coal mine waste piles used as dams or embankments, utilization of explosives, revegetation of mined areas, reclamation of mountaintop mines, and soil disposal for steep-sloped mines. See §§ 515(b)(2), (3), (5), (10), (13), (15), (19), 515(c), and 515(d), 30 U.S.C. §§ 1265(b)(2), (3), (5), (10), (13), (15), (19), 1265(c), and 1265(d). Surface coal mining operations, excluding those on "Federal lands" or "Indian lands," commencing on or after February 3, 1978 must comply with the provisions of the interim regulatory program when operations start; and surface coal mining operations begun before that date are required to adhere to the interim regulations by May 3, 1978. §§ 502(b), (c) and 701(11), 30 U.S.C. §§ 1252(b), (c) and 1291(11). By February 3, 1978, the Secretary is required to implement a federal enforcement and inspection program in each state, including the examination of surface coal mines by a federal inspector once every six months. § 502(e), 30 U.S.C. § 1252(e). During the interim phase, the Secretary and the states share responsibility for enforcement of the regulatory program with the primary responsibility resting with the Secretary. The statute contemplates that the Secretary will not issue mining permits during the interim phase, but the states may continue to issue mining permits so long as the permits mandate compliance with the requisite performance standards. § 502(b), 30 U.S.C. § 1252(b). The Secretary has the authority, however, to inspect mine sites and order the correction of any violation by action "to be implemented pursuant to the federal enforcement provisions of this title." § 502(e)(1), 30 U.S.C. § 1252(e)(1). The "federal enforcement provisions" are the notice of violation provisions and cessation order provisions of § 521, 30 U.S.C. § 1271, and the civil penalty provisions of § 518, 30 U.S.C. § 1268.

The second tier of regulation contemplated by the Surface Mining Act, the permanent phase, is provided for in § 501(b), 30 U.S.C. § 1251(b), which commands the Secretary to promulgate, within one year of the statute's enactment, a permanent regulatory program establishing procedures and requirements for preparation, submission, and approval of "State programs" and for development and implementation of "Federal programs." In the event a State program is not approved, the Secretary must then implement a "Federal program" within that state. § 504(a), 30 U.S.C. § 1254(a). ¹ In addition, the permanent regulations must require adherence to all provisions of Title V of the Surface Mining Act, including all the performance standards set forth in § 515, 30 U.S.C. § 1265, and not just those applicable to the interim regulatory program pursuant to § 502(c), 30 U.S.C. § 1252(c). § 501(b), 30 U.S.C. § 1251(b).

During the permanent phase, a state may seek to assume primary jurisdiction over the regulation of surface coal mining on "non-Federal lands" within its borders by submitting a proposed "State program" of regulation to the Secretary. § 503(a), 30 U.S.C. § 1253(a). The Secretary must approve or disapprove a proposed "State program," in whole or in part, within six months after the program is submitted to him. § 503(b), 30 U.S.C. § 1253(b). If a "State program" is approved by the Secretary, that state assumes the responsibility for issuing mining permits and for enforcing the provisions of its regulatory program. However, if a state fails to submit a proposed program, fails to resubmit an acceptable program within sixty days after disapproval of its proposed program, or at any time fails to implement, enforce, or maintain an approved program in accordance with the Act, the Secretary is directed to prepare and implement a "Federal program" or regulation within that state no later than June 3, 1980. § 504(a), 30 U.S.C. § 1254(a). When a "Federal program" is promulgated for a state, the Secretary constitutes the regulatory authority administering the Act within that state and continues as such until a "State program" is approved. No later than eight months after approval of a "State program" or implementation of a "Federal program," all surface coal mining and reclamation operations on "non-Federal lands" within the state must obtain a new permit issued in accordance with the applicable regulatory program. § 506(a), 30 U.S.C. § 1256(a).

Under § 521(a)(2), 30 U.S.C. § 1271(a)(2), if an inspector determines that a violation of the Act or any permit condition creates an imminent danger to the public health or safety or can reasonably be expected to cause significant imminent environmental harm to land, air or water resources, the inspector must order an immediate halt to the mining operation or the portion thereof contributing to the danger. Under § 521(a)(3), if the inspector determines that there is a violation of the Act or the permit, but that there is no imminent danger to health, safety or the environment, the inspector must issue a notice of violation, allowing the operator up to 90 days to correct the condition. In the event the violation is not corrected within that time, the inspector must immediately order a cessation of the mining operation or the portion thereof relevant to the violation. The cessation order must outline the steps necessary to correct the violation. Finally, under § 521(a)(4), if the inspector determines that a permittee has committed a pattern of violations, the inspector must issue an order to show cause why the permit should not be suspended or revoked.

Under § 518, 30 U.S.C. § 1268, once the operator has been charged with a violation, the Secretary has 30 days in which to determine whether to assess a civil penalty and to inform the operator of the amount of the proposed penalty. If a cessation order is issued, however, a civil penalty must be assessed. § 518(a), 30 U.S.C. § 1268(a). Where an operator is issued a notice of violation and fails to correct the condition within the period prescribed for its correction, a civil penalty of not less than $750.00 per day must be assessed for each day the violation continues unabated. § 518(h), 30 U.S.C. § 1268(h).

Section 525 of the Act, 30 U.S.C. § 1275, provides that a person adversely affected by a notice or order may apply for administrative review by the Secretary of the Interior. Where the application for review involves a cessation order under § 521(a)(2) or (3), the Secretary must issue his written decision within 30 days of receipt of the application. In addition to this formal review procedure, an operator may also simultaneously seek informal review of any notice or order requiring cessation of mining activities pursuant to § 521(a)(5). That subsection provides that any such...