West Virginia Mining v. Babbitt

• Decision Date: 11 July 1997
• Docket Number: Civ. A. No. 2:96-0371.
• Citation: 970 F.Supp. 506
• Parties: The WEST VIRGINIA MINING AND RECLAMATION ASSOCIATION, et al., Plaintiffs, v. Bruce BABBITT, Secretary of the Interior, et al., Defendants.
• Court: U.S. District Court — Southern District of West Virginia

970 F.Supp. 506

The WEST VIRGINIA MINING AND RECLAMATION ASSOCIATION, et al., Plaintiffs, v. Bruce BABBITT, Secretary of the Interior, et al., Defendants.

Civ. A. No. 2:96-0371.

United States District Court, S.D. West Virginia, Charleston Division.

July 11, 1997.

COPYRIGHT MATERIAL OMITTED

Charles Q. Gage, Jackson & Kelly, Charleston, WV, Dean K. Hunt, Buchanan Ingersoll, Lexington, Ky, for Plaintiffs.

Rebecca A. Betts, U.S., Attorney, Charleston, WV, Richard M. Hall and Martin J. LaLonde, U.S. Department of Justice, Washington, DC, Steven C. Barcley, Special Assistant U.S. Attorney, Pittsburgh, PA, for Defendants.

MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

Pending are (1) the parties' cross motions for summary judgment; (2) Defendants' motion to dismiss Count VII of the Complaint; and (3) Defendants' motion for leave to exceed the page limitation contained in Local Rule 4.01, Local Rules of Civil Procedure. The Court (1) GRANTS Defendants' motion for summary judgment; (2) DENIES Plaintiffs' motion for summary judgment; (3) DENIES as moot Defendants' motion to dismiss Count VII; and (4) GRANTS Defendants' motion for leave to exceed the page limitation.¹

The resolution of the instant motions boils down to two considerations: (1) the straightforward application of the principles laid down in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); and (2) the enforcement of the weighty policy of cost internalization present in the federal Surface Mining Control and Reclamation Act (SMCRA), 30 U.S.C. §§ 1201 et seq.:

The imposition of all reclamation costs on operators is consistent with and supported by the legislative history of the SMCRA. Congress characterized Senate Bill 425, the "Surface Mining Act of 1973," as follows:

"The purpose of this bill is to effect the internalization of mining and reclamation costs, which are now being borne by society in the form of ravaged land, polluted water, and other adverse effects, of coal service [sic] mining.

The cost of the environmental controls and reclamation requirements provided for under the Act are properly borne by the mine operators ..."

Cat Run Coal Co. v. Babbitt, 932 F.Supp. 772, 780 (S.D.W.Va.1996)(quoting 119 Cong. Rec. 33181 (Oct. 8, 1973)).

I. INTRODUCTION

The Plaintiffs are trade associations whose members include coal producers and businesses engaged in coal mining and related activities throughout West Virginia. They are subject to the federally approved regulatory program contained in the West Virginia Surface Coal Mining Reclamation Act (WVSMCRA), West Virginia Code sections 22-3-1 to 22-3-32 and its accompanying regulations, West Virginia Code of State Regulations (WVCSR) §§ 38-2-1 et seq. (the West Virginia Program).

The Office of Surface Mining Reclamation and Enforcement (OSM), a division of the Department of the Interior, is responsible for administering SMCRA,² including the review and approval or disapproval of amendments to state regulatory programs adopted pursuant to SMCRA. See 30 C.F.R. § 732.1 to .17; Arch Mineral Corp. v. Babbitt, 104 F.3d 660, 663 (4th Cir.1997). Defendant Bruce Babbitt is the Secretary of the Interior (Secretary) who is charged under SMCRA with reviewing and passing on changes to state regulatory programs adopted pursuant to SMCRA, including the West Virginia Program. Defendant Robert Uram was the Director of the OSM and was responsible for the review and approval or disapproval of amendments to state regulatory programs adopted pursuant to SMCRA. The regulatory authority responsible for implementing the West Virginia Program is the West Virginia Division of Environmental Protection (WVDEP).

On February 21, 1996 OSM published a final rule approving many proposed amendments to the West Virginia Program. One of the disapproved amendments, which would have modified WVCSR § 38-2-2.20, is the subject of the parties' dispute.

II. BACKGROUND

A. Statutory and Regulatory Framework

1. State Primacy Under SMCRA

Pursuant to 30 U.S.C. § 1253, a state may assume primary jurisdiction for regulating surface mining within its borders by submitting a program proposal to the Secretary. West Virginia applied for primacy. The Secretary granted the State's request effective January 21, 1981. See 30 C.F.R. § 948.10.

States with approved programs may submit proposed program amendments for approval by the Director of OSM. 30 C.F.R. § 732.17. Program amendments may consist of, inter alia, changes to state statutes or regulations. See 30 C.F.R. § 732.17(b)(3). The amendments are then approved or disapproved by the Director, following a period of notice and an opportunity for public comment. 30 C.F.R. § 732.17(h).

The Director may approve a program amendment upon finding that the amendment is in accordance with SMCRA and consistent with SMCRA's implementing regulations. 30 C.F.R. §§ 732.15(a), 732.17(h)(10); see Cat Run Coal Co. v. Babbitt, 932 F.Supp. 772, 778 (S.D.W.Va.1996) (stating "In approving newly proposed state regulations, OSM must determine whether the proposed regulations are `consistent with' the SMCRA, see 30 U.S.C. § 1253(a)(7), and `no less effective than' OSM's own regulations, see 30 C.F.R. § 730.5."). Further, the proposed amendments may not supersede, amend, modify or repeal the enforcement mechanisms contained in other federal environmental laws, including the Clean Water Act, 33 U.S.C. §§ 1251-1387(CWA). See 30 U.S.C. § 1292(a)(3).³

Title 30 U.S.C. § 1255 of SMCRA, among other provisions, controls the Director's discretion of whether to approve state program amendments:

(a) No State law or regulation in effect on [the date of enactment of this Act], or which may become effective thereafter, shall be superseded by any provision of this chapter or any regulation issued pursuant thereto, except insofar as such State law or regulation is inconsistent with the provisions of this chapter.

(b) Any provision of any State law or regulation in effect upon [the date of enactment of this Act], or which may become effective thereafter, which provides for more stringent land use and environmental controls and regulations of surface coal mining and reclamation operation than do the provisions of this chapter or any regulation issued pursuant thereto shall not be construed to be inconsistent with this chapter. The Secretary shall set forth any State law or regulation which is construed to be inconsistent with this chapter. Any provision of any State law or regulation in effect on [the date of enactment of this Act], or which may become effective thereafter, which provides for the control and regulation of surface mining and reclamation operations for which no provision is contained in this chapter shall not be construed to be inconsistent with this chapter.

30 U.S.C. § 1255 (emphasis added).

2. The SMCRA Bonding Requirement

SMCRA's bonding program is designed to assure "complete reclamation of mine sites." See Cat Run Coal Co., 932 F.Supp. at 774-75, 778. Every operator must post a reclamation bond before mining begins. 30 U.S.C. § 1259(a). The bond is calculated to ensure the commitments set forth in the permit and SMCRA are carried out. The financial responsibility imposed by the bond guarantees funds are available to reclaim mined lands if an operator defaults and to give the operator an incentive to comply with reclamation requirements. See, e.g., 30 C.F.R. § 800.11(e)(1) & (2) (requiring alternative bonding systems to meet the objectives and purposes of the bonding program, by providing "a substantial economic incentive for the permittee to comply with all reclamation provisions."); Cat Run Coal Co., 932 F.Supp. at 778.

West Virginia employs an alternative, two-tiered bonding system. Cat Run Coal Co., 932 F.Supp. at 775 n. 7. Permittees must post site-specific bonds, at rates ranging from $1,000.00 to $5,000.00 per acre for each permit, to conduct surface coal mining operations. W. Va.Code § 22-3-12(c)(1). In addition, persons who conduct surface coal mining operations contribute a fee of three cents per ton of coal mined to West Virginia's Special Reclamation Fund (Fund). W. Va. Code § 22-3-11(g). The West Virginia Division of Environmental Protection (WVDEP) expends monies from the Fund to reclaim sites for which the posted and then forfeited site-specific bond is insufficient to cover the costs of reclamation. Id.

To be released from bond liability under SMCRA, an operator must apply to the appropriate state or federal regulatory authority and demonstrate performance of the reclamation work required under SMCRA and the bond. 30 U.S.C. § 1269(a). After receiving a completed application for release, the regulatory authority inspects the reclamation work to determine if it has been satisfactorily accomplished. 30 U.S.C. § 1269(b). In evaluating compliance, the authority considers, "among other things, the degree of difficulty to complete any remaining reclamation, whether pollution of surface and subsurface water is occurring, the probability of continuance of future occurrence of such pollution, and the estimated cost of abating such pollution." Id.

There are three phases to reclamation. First, the operator must complete backfilling, grading, and drainage control in accordance with the reclamation plan. 30 U.S.C. § 1269(c)(1). In the second phase, the operator must revegetate the regraded mined lands. 30 U.S.C. § 1269(c)(2). Both SMCRA and the OSM regulations prohibit releasing any part of the bond under this phase if the site is contributing suspended solids to runoff or streamflow outside of the permit area exceeding discharge standards. 30 U.S.C. § 1269(c)(2); 30 C.F.R. § 800.40(c)(2). Finally, the "catch-all" phase of reclamation provides that "no bond shall be fully released until all reclamation requirements of this chapter are fully met." 30 U.S.C. § 1269(c)(3).

Once bond is released, WVDEP's and OSM's jurisdiction pursuant to...