The opinion of the court was delivered by: CALDWELL
WILLIAM W. CALDWELL, United States District Judge
Each of the parties to this proceeding has filed a motion for summary judgment. We are required to determine whether certain state regulations on the subject of surface mining and reclamation operations are "in accordance with" the federal Surface Mining Control and Reclamation Act, 91 Stat. 445, Public Law 95-87, 30 U.S.C. 1201-1328 (hereinafter the federal act), and "consistent with" federal regulations adopted pursuant to the Act.
The federal act was passed in 1977, and established a nationwide program for dealing with the various problems arising from surface mining in the United States. The Act provides that because of differing problems and conditions from state to state the "primary governmental responsibility for developing, authorizing, issuing and enforcing regulations for surface mining and reclamation operations . . . should rest with the states . . . ." 30 U.S.C. § 1201(f). However, before states are permitted to administer their own exclusive regulatory programs, the federal act requires each state to establish to the satisfaction of the Office of Surface Mining (OSM)
that it has statutes that are "in accordance with" the requirements of the federal act and that state regulations are "consistent with" the regulations issued by the Secretary of the Interior pursuant to the federal act [ 30 U.S.C. 1253(a)(1) and (7)].
In order to meet the federal standards
certain Pennsylvania laws were amended in 1980, and on January 25, 1982, the Pennsylvania Department of Environmental Resources applied to the Office of Surface Mining for exclusive jurisdiction, or primacy, in the regulation and control of surface coal mining in Pennsylvania. The regulations submitted with Pennsylvania's application to OSM had been adopted by the Pennsylvania Environmental Quality Board (EQB) on November 19, 1980, to be effective when primacy was granted by the OSM. During the pendency of Pennsylvania's application the EQB, on April 20, 1982, adopted a substantial number of revisions to the aforesaid regulations and the application to OSM was amended to include them. On July 30, 1982, the OSM gave conditional approval to the application, which permitted Pennsylvania to assume authority over surface mining of coal, and gave immediate effect to the regulations written by EQB. Plaintiffs in this lawsuit allege that three of the state regulations approved by the Secretary of the Interior should not have been approved and that the Secretary disapproved a proposed state regulation that should have been approved.
As already noted, for a state to administer its own surface mining regulatory program it must demonstrate in its application to OSM that the state statutes are "in accordance with" the requirements of the federal law and that state regulations are "consistent with" the regulations issued by the Secretary of the Interior. The OSM regulations give these terms similar meanings:
"Consistent with" and "in accordance with" mean:
(a) With regard to the Act, the State laws and regulations are no less stringent than, meet the minimum requirements of and include all applicable provisions of the Act, and
(b) With regard to the regulations, the State laws and regulations are no less effective than the Secretary's regulations in meeting the requirements of the Act.
30 C.F.R. § 730.5, as amended by 46 Fed. Reg. 53376 (Oct. 28, 1981).
The Complaints of the Plaintiffs
We will now address the four separate complaints voiced by plaintiffs.
The first matter complained of concerns the matter of judicial review of decisions which designate areas of the state as unsuitable for surface mining.
Plaintiffs assert that the provisions for judicial review under the Pennsylvania program are not 'consistent with' or 'in accordance with' the federal law and regulations, and that the Secretary therefore acted arbitrarily, capriciously or unlawfully in approving the Pennsylvania scheme for judicial review of such decisions.
The provisions of the federal Permanent Regulatory Program (PRP) establish standards for the states in designating areas that are determined to be unsuitable for mining operations, and are published in 30 CFR 764. The federal requirement for state judicial review of 'unsuitable' designations is set forth in 764.19(c) and provides:
The decision of the State regulatory authority with respect to a petition . . . shall be subject to judicial review by a court of competent jurisdiction in accordance with State law under section 526(e) of the Act and 30 CFR 787.12.
Plaintiffs assert that notwithstanding this language, the state regulations fail to provide for any judicial review of 'designation' decisions, which in Pennsylvania are made by the state Environmental Quality Board.
The Environmental Quality Board is a quasi-legislative board. By statute it is the rule and regulation making body for the Department of Environmental Resources (71 P.S.A. 510-20). Under the state scheme no judicial review of this board's actions is provided for. The Secretary of the Interior determined that the federal requirement for judicial review was adequately met, however, because a party aggrieved by land being classified as 'unsuitable' can apply to the Environmental Hearing Board (EHB) for permission to mine land previously designated as unsuitable for mining. Any adverse decision by ...