Surface Min. Regulation Litigation, In re

Decision Date10 July 1980
Docket NumberNos. 78-2190,s. 78-2190
Citation201 U.S.App.D.C. 360,627 F.2d 1346
Parties, 201 U.S.App.D.C. 360, 10 Envtl. L. Rep. 20,465 In re SURFACE MINING REGULATION LITIGATION (three cases). Appeal of AMERICAN MINING CONGRESS et al. Appeal of AMHERST COAL COMPANY et al. Appeal of SUNOCO ENERGY DEVELOPMENT COMPANY. to 78-2192.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeals from the United States District Court for the District of Columbia (D.C. Civil Action No. 78-0162).

Robert N. Sayler, Washington, D. C., with whom Theodore Voorhees, Jr. and Robert J. Gage, Washington, D. C., were on brief for appellants American Mining Congress and National Coal Association.

Warner W. Gardner, Washington, D. C., for appellant Peabody Coal Company.

Thomas G. Johnson, Houston, Tex., was on brief for appellant R & F Coal Company.

John L. Kilcullen, Washington, D. C., was on brief for appellant Utah International, Inc.

John A. MacLeod and Richard McMillan, Jr., Washington, D. C., were on brief for appellants Consolidation Coal Company and North American Coal Corporation.

Peter J. Nickles and Eugene D. Gulland, Washington, D. C., were on brief for appellant Sunoco Energy Development Company.

Michael A. McCord, Atty., Dept. of Justice, Washington, D. C., with whom Sanford Sagalkin, Deputy Asst. Atty. Gen., and Carl Strass, Atty., Dept. of Justice, Washington, D. C., were on brief for appellees.

Terence L. Thatcher, L. Thomas Galloway and Jonathan Lash, Washington, D. C., were on brief for appellees National Wildlife Federation, et al.

Also I. Michael Greenberger, Washington, D. C., entered an appearance for appellant in No. 78-2190.

Also James W. Moorman and Lois J. Scheffer, Attys., Dept. of Justice, Washington, D. C., entered an appearance for appellees.

Before McGOWAN, TAMM and ROBB, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROBB.

ROBB, Circuit Judge:

In this case we are presented with challenges to interim regulations promulgated by the Secretary of the Interior pursuant to the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. § 1201 et seq. (Supp. II 1978) (Surface Mining Act or Act). Following publication of the interim regulations in final form on December 13 and 16, 1977, twenty-two complaints attacking the regulations were filed in the United States District Court for the District of Columbia 1 by coal mine operators, mining trade associations, environmental groups, and three states. The District Court rejected the attacks, and these appeals followed. 2


The Surface Mining Act was passed in the 95th Congress and signed into law by President Carter on August 3, 1977. The statute resulted from prolonged deliberation that began with hearings and the introduction of legislation in the 90th Congress.

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." Section 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. Section 201, 30 U.S.C. § 1211.

The Surface Mining 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, or initial, regulatory program and a permanent regulatory program. Section 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. The Secretary initially proposed interim regulations on September 7, 1977, and interested persons were allowed thirty days to submit comments. 42 Fed.Reg. 44,920. Over three hundred comments were submitted, and four public hearings on the proposed interim regulations were held during the 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. Id. at 62,639 and 63,394.

Section 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 contour, 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 spoil disposal for steep-slope mines. 3 Surface coal mining operations, excluding those on "Federal lands" or "Indian lands", commencing on or after February 3, 1978 (i. e., new mines) must comply with the provisions of the interim regulatory program when operations start; and surface coal mining operations begun prior to February 3, 1978 are required to adhere to the interim regulations by May 3, 1978. Sections 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. Section 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. 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. Section 502(b), 30 U.S.C. § 1252(b).

The second tier of regulation contemplated by the Surface Mining Act, the permanent phase, is provided for in section 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 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 section 515, 30 U.S.C. § 1265, and not just those applicable to the interim regulatory program pursuant to section 502(c), 30 U.S.C. § 1252(c). Section 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. Section 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. Section 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" of regulation within that state no later than June 3, 1980. Section 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 unless and 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. Section 506(a), 30 U.S.C. § 1256(a).

The Secretary issued proposed permanent regulations on September 18, 1978, and public comments were received by OSM from September 18 to November 27, 1978. 43 Fed.Reg. 41,662. Nearly six hundred comments were submitted to the agency, and twenty-five days of public hearings were conducted during the comment period. 44 Fed.Reg. 14,908 (1979). The Secretary promulgated and published final permanent regulations under the Surface Mining Act on March 13, 1979, and the permanent regulations were made effective as of April 12, 1979. Id. at 14,902. Even though the permanent regulations have been published in final form, the interim regulatory program remains in effect in a given state until that state has a "State program" approved or a "Federal program" implemented by the Secretary. 4

As noted above, after the final interim regulations were published, numerous complaints attacking them were filed in the District Court. The court consolidated all the cases under the caption "Surface Mining Regulation Litigation", and entertained eleven motions for preliminary injunctive relief and partial summary judgment. (J.A. at 14-19) Following a hearing on these motions, the District Court issued a memorandum opinion and order on May 3, 1978. In re Surface Mining Regulation Litigation, 452 F.Supp. 327 (D.D.C.1978). For purposes of this appeal, the opinion contained the following relevant rulings: 5 (1) the basis and purpose statement accompanying the final interim regulations was adequate, id. at 333; (2) the Secretary gave due...

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