The plaintiffs acknowledge that this procedure can be followed but contend they should have the right to earlier judicial review, i.e. at the time a determination of unsuitability is made by the Environmental Quality Board. They assert that the process involved in later applying for a permit to mine is expensive, and not a practical way to test the determination of unsuitability. This, however, is not the measure by which we are required to judge plaintiffs' case.
The federal act requires that states provide, "a process for the designation of areas unsuitable for surface mining . . . ." [ 30 U.S.C. 1253(a)(5)] and the act is comprehensive concerning the procedure to be used, which includes liberal provisions for participation of the public or interested persons [ 30 U.S.C. 1272]. It is significant that the federal act does not specify any particular point at which judicial review of such designations must be provided. Thus, we think the Secretary acted within his authority in concluding that the judicial review afforded under the Pennsylvania plan was 'in accordance' with the general federal requirement that 'unsuitable' designations be judicially reviewable. The PRP [30 C.F.R. 764.19(c)] requires only that the, "decision of the State regulatory authority . . . shall be subject to judicial review in accordance with State law. . . ." (emphasis supplied).
We do not decide whether the available judicial recourse in Pennsylvania is the ideal means of review, and hold only that this review is 'no less stringent' than the federal act and 'no less effective' than the PRP. In a similar setting the Commonwealth Court of Pennsylvania has determined that regulations enacted by the Environmental Quality Board concerning water quality standards are reviewable only in the context of an appeal from a specific DER action involving an application of such regulations. See United States Steel Co. v. DER, 65 Pa. Comm. Ct. 103, 442 A.2d 7 (1982). It is at least consistent with judicial principles that EQB regulations should not be reviewed abstractly, or when there is no outstanding proposal to mine land that has been determined to be unsuitable in a general ruling adopted for environmental reasons. But regardless of the wisdom involved in this procedure we find no conflict with federal law and regulation and we believe the defendants are entitled to judgment on this objection.
The second area in which it is alleged that the Pennsylvania program does not conform to federal standards concerns the release of liability on performance bonds posted by coal operators.
The requirements of the federal act and regulations are quite specific, and appear to be aimed at protecting the economic interests of operators as well as the environmental concerns of the public. Under the federal law when an application for bond release is filed and properly advertised, etc., the regulatory authority is required to conclude an investigation within thirty days and, if no public hearing is held, a decision on the bond release application must be rendered to the applicant within thirty days thereafter. [ 30 U.S.C. 1269(b)]. Thus, when there is no public hearing an applicant must be given a decision within sixty (60) days of completing and filing an application for release.
When objections to a bond release are filed and a hearing is requested, the federal provisions require the regulatory authority to hold a hearing within thirty days of the request for such hearing. [ 30 U.S.C. 1269(f)]. A decision must then be rendered within thirty (30) days of the conclusion of the hearing. [ 30 U.S.C. 1269(b)]. This same plan is provided for in the government's permanent regulatory plan. [30 CFR 807.11(f)].
The Pennsylvania program is similar to the federal plan where no hearing is held, and a decision is required within sixty days of a properly filed and advertised application for release. [52 P.S.A. 1396.4(a)(2)(L)(b)].
However, where a hearing is held (sometimes referred to as an informal conference) Pennsylvania does not require a decision to be announced until sixty (60) days after said hearing. Furthermore, where a hearing is requested the state plan is completely silent on when or how soon the required hearing must be held. [52 P.S.A. 1396.4(a)(2)(L)(b)]. Under these circumstances an applicant for bond release can do nothing except hope that the hearing is scheduled promptly. If it is not he has no recourse. While these instances afford state officials certain leeway which might be desirable, they are certainly not in accordance with the federal act nor consistent with the regulations.
In our view we must honor the protection accorded the coal operators by the federal act, as well as enforcing the environmental rights given the public. This, obviously, is not a situation where the state has adopted a regulation that is "more stringent" or "as effective" as the federal standard. In not providing the assurance to operators who have posted bonds, that their interests will be protected in accordance with the federal timetable for resolution of requests for release, the state has failed to act in accordance with, or consistent with, the federal act and regulations.
We will remand the matter to the Secretary of the Interior with directions to rectify the situation herein discussed.
The third point raised by the plaintiffs deals with the admitted fact that the state program dealing with 'catastrophic storm exemption' from effluent limitations imposes a more restrictive exemption, or more stringent limitation, than the federal requirements under the Surface Mining Act and the Clean Water Act.
By way of explanation it is significant to note that both the Office of Surface Mining, and the U.S. Environmental Protection Agency have established effluent limits which govern the discharge of pollutants into the navigable waters of the United States, and both parties provide a 'storm exemption', which excuses certain excessive discharges of effluent that occur because of unusually high amounts of precipitation or snow melt. When the Surface Mine Act was passed it was provided that it could not supersede the provisions of the Clean Water Act (formerly the Federal Water Pollution Control Act) or other laws relating to the preservation of water quality. As a result the Secretary of the Interior has been prohibited from enforcing regulations that are stricter than, or inconsistent with, those promulgated earlier by the EPA under the Clean Water Act. In re Surface Mining Regulation Litigation, 201 U.S. App. D.C. 360, 627 F.2d 1346, 1367 (D.C. Cir. 1980).
It is the plaintiffs' argument that the inconsistency between the Pennsylvania requirements and the federal regulations is not justified, is improper, and will result in continual noncompliance by Pennsylvania coal operators. It is alleged that the Secretary's refusal to condition continued approval of the Pennsylvania program upon the state's adopting an exemption consistent with the federal programs of OSM and EPA is arbitrary, capricious and inconsistent with law. The argument is made that under the federal act the Secretary was not permitted to exceed the EPA standards for the catastrophic exemption. By permitting Pennsylvania to exceed the limitation the Secretary is, in effect, modifying the EPA regulation and thereby violating the restriction imposed upon him in the federal law [ 30 U.S.C. 1292(a)(3)]. In essence plaintiffs are saying that the Secretary may not do indirectly, what he cannot do directly, i.e., exceed EPA criteria to qualify for the catastrophic storm exemption by allowing a state to employ a more restrictive standard.
Although appealing on the surface, this argument overlooks provisions in both the Clean Water Act and the Surface Mining Act that expressly allow states to set environmental and effluent standards that are more stringent than the federal criteria. Section 510 of the Clean Water Act, 33 U.S.C. 1370, grants this authority to the states and courts have upheld it. See U.S. Steel v. Train, 556 F.2d 822, 838-39 (7th Cir. 1977) and Homestake Mining Co. v. EPA, 477 F. Supp. 1279, 1283-84 (S.D. 1979). Thus, the Secretary's approval of the more stringent state regulation is not inconsistent with the federal act, and indeed is in keeping with the general intent of Congress, as expressed in Section 505 of the act [ 30 U.S.C. 1255(a) and (b)], to permit states to develop laws and regulations providing for more stringent or different state controls.
Plaintiffs' argument on this point is addressed to concerns which are technical or administrative in nature, but not to issues that are before the writer at this time. Plaintiffs' brief states:
Pennsylvania, without any technical justification or support in the administrative record, implemented a storm exemption which, according to OSM's above-quoted statement
will result in continual noncompliance by Pennsylvania's coal operators.
Plaintiffs also argue that the catastrophic storm exemption in 25 Pa. Code 87.103 is neither a "standard or limitation respecting discharges of pollutants" or a "requirement respecting control or abatement of pollution," as those terms are used in Section 510 of the Clean Water Act [ 33 U.S.C. 1370], which permits states to exceed federal standards. Plaintiffs do not satisfactorily explain why these phrases do not include discharges resulting from high precipitation or storms, and we note that the words "effluent limitations" refer to the discharge of pollutants at the source. Wisconsin Electric Power Co. v. State National Resources Board, et al., 90 Wis. 2d 656, 280 N.W.2d 218 (1979). This would seem to include any discharges whereby pollutants are introduced into the water.
In U.S. Steel v. Train, supra, the court recognized that impossibility of compliance is not a basis for striking down state imposed restrictions which exceed the Clean Water Act standards, and by extension the mining standards adopted by the Secretary:
It is clear from . . . the Act, and the legislative history, that the states are free to force technology. Although the Indiana Board considered technology in setting some of these limitations, it was not required to do so . . . . If the states wish to achieve better water quality, they may, even at the cost of economic and social dislocations caused by plant closings.