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OAR Box 1859 

Prepped by Charmelle Mathews 

Document Number: 

22) IV-L-71 

Docket Number: 

A-84-33 

Printed 11/24/2008 9:13:57 AM Sheet 22 of 75 
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BRIEF FOR'THE SECRETARY OF'THE^INTERIOR'A S APPELLEE 

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3! ON APPEAL FROM THE UNITED* STATES^! STRICT? 

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-•••'. ,i?^^ v ^r%%C^ ^ F. HENRY HABICHT. I I-l *.»***•••*-

Assistan t Attorney^GeneVal^ffi 

" OF COUNSEL: " ALFRED 'TV'GHIORZI '^-f o'o" : .. ••SSfer : 

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cr~-.v ARTHUR E. GOWRAN £*•;• ^.-:• '^^@^B^Psgkr.'

..-.,. ;, _\;^-ru*\ .,*. , Attorneys, Depannent-Q'f Just ice !«Bffi

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- STUART A. SANDERSON 

MARY M. CROUTER 

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"ANGELA F. O'CONNELL 

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United States Department if: 

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.-s discussed Above, 30 C.F.R. 800.15(a) provides tiiat the regulatory authority shall adjust the amount of the bond, as necessary, 

-;.-- acccnno.iac-i an increase in reclamation costs. The district 

court correctly held that the Secretary's regulatory regime for 

the adjustment of bonds as the need arises implements the statutory 

recuirements of Section 516(d) of the Act. 

In summary, neither the Act nor the regulations require 

the regulatory authority to sec the amount of the bond based 

upon speculation as to whether, where, and to what extent 

material damage caused by subsidence may occur. However, if 

subsidence damage does occur, inside or outside the permit area, 

bond proceeds may be used to accomplish reclamation. In 

recognition of the distinct difference between surface and underground mining, liability insurance stands as an appropriate 

alternative to performance bonding. 

Ill 

THE DISTRICT COURT CORRECTLY HELD THAT THE 

SECRETARY DOES NOT HAVE AUTHORITY TO REGULATE 

THE NON-EROSIONAL ASPECTS Or AIR QUALITY 

0007 contends (Br. 36-37) that the district court erred 

in interpreting Section 515(b)(4), 30 U.S.C. 1265(b)(4), to require 

only the regulation of air pollution associated with, or 

"attendant to," erosion. NWF maintains (Br. 36) that such regulation is a "relatively minor aspect of the air pollution" caused 
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bv .surface coal mining operations. It asserts (Br. 37) that 

both the statutory language and the legislative history require 

the regulation o: all air pollution caused by surface mining 

operations, v.oz merely that generated by erosion. Accordingly, 

NWF asserts (_i_d. ) that the court erred in upholding the Secretary's 

regulations at 30 C.F.R. 816.95 and 317.95, which only require 

the regulation of the erosional aspects of air pollution. 

Section 515(b)(4) provides that an operator must: 

stabilize and protect all surface areas 

including spoil piles affected by the surface coal mining and reclamation operation 

to effectively control erosion and attendant 

air and water pollution. 

Specifically, NWF argues (_id.)' that the most logical reading of 

the statutory provision is that "erosion" and "pollution" are the 

objects of the infinitive "to effectively control." Ic asserts 

(Br. 37-33) that the adjective "attendant" modifies the phrase 

"air and water pollution", thereby requiring the operator to 

control erosion and "the air and water pollution attendant to the 

NWF's interpretation of the express sun-ice :."*.: ,t ion, 

language of Section 515(b)(4) is incorrect. 

Section 515(b)(4) requires operators to control erosion 

by stabilising and protecting all surface areas exposed as a 

result of surface coal mining and reclamation operations. The 

principal thrust of Section 515(b)(4) is to "stabilize" and 
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"•:-:.?z-?cz" surface areas. The words "stabilise" and "protect" 

are specific, physical maintenance standards required of operators 

"to effectivelv control erosion and attendant air and water 

pollution." Section 515(b)(4) does not confer upon the 

Secretary a general grant of authority to regulate air pollution. 

It covers only air and water pollution specifically related to 

erosion. When all of the operative words of Section 515(b)(4) 

are read together, the Secretary's regulatory authority is 

clearly limited to air pollution caused by erosion. 

The phrase "attendant air and water pollution" applies 

to the word "erosion" which immediately precedes it, not, as NWF 

claims (Br. 37-38), to the entire "surface mining operation." 

Thus, the plain language of Section 515(b)(4) supports this 

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statutory construction. 

II; 

8/ In Section 515(b)(4), water pollution is treated in the same 

manner as air pollution, and NWF does not contend that this 

provision confers a broad grant of authority upon the Secretary 

to resulate water pollution. Section 51 5(b) (10), 30 U.S.C. 

1265 (b) \ 10) , sets forth a performance standard for the regulation 

of water pollution. If Section 515(b)(4) were interpreted to 

grant such broad authority, Section 515(b)(10) would be superfluous. 

9/ Moreover, while the district court did not rely upon the rule 

of the last antecedent, that rule, nevertheless, likewise supports the Secretary's interpretation. The rule requires that 

qualifying phrases like "attendant air and water pollution" 

modify the words immediately preceding them, not other remote 

words'or phrases. United States v. Pritchett, 470 F.2d 455, 459 

(D.C. Cir. 1972). 
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Assuming, arguendo, that Section 515(b)(4) is ambiguous, 

the legislative history of that statutory provision confirms the 

Secretary's interpetation as reflected in the implementing regula-

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tions at 30 C.F.R. 816.95 and 817.95. Congress, in the House 

Committee Report, explained the purpose of Section 515(b)(4) as 

follows: 

Standards to assure the stability of spoil mass 

as well as to control surface erosion are pre- i 

scribed for surplus soil from all types of mining [ 

operations * * *. i 

H.R. Rep. 95-213, 95th Cong., 1st Sess. 174 (1977). The House 

Committee Report, therefore, specifically addresses erosion, but 

is noticeably silent regarding standards for air pollution. 

Similarly, the Senate Committee Report lists a plethora 

of environmental protection performance standards under the 

10/ 30 C.F.R. 816.95, which covers the stabilization of surface 

areas, provides: 

(a) All exposed surface areas shall be protected 

and stabilized to effectively control erosion and 

air pollution attendant to erosion. 

(b) Rills and gullies, which form in areas that 

have been regraded and topsoiled and which either 

(1) disrupt the approved postraining land use or 

the reestablishment of the vegetative cover, or 

(2) cause or contribute to a violation of water 

quality standards for receiving streams shall be 

filled, regraded, or otherwise stabilized; topsoil 

shall be replaced; and the areas shall be reseeded 

or replanted. 

30 C.F.R. 817.95 mirrors the exact language of 30 C.F.R. 816.95. 

It, however, regulates the stabilization of surface areas 

affected by underground [.lining activities. 
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4-

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tg., 1st Sees. 82 (1977). Clearly then, 

the legislative historj confirm* that Section 515(h)(4$ requires 

che Secretary to protect against erosion and air and water pollu-

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ut fails even to mention air quality. 

ffeffrijptf"' 

tion caused by erosion* 

HWF incorrectly relie s (Br. 38-39) 

cive history ef the 

fciatory 

S.v-«* 

att 

history ot proposed ^eexlon^l 1fl>) (6> earolaii 

required to •stabilis e and protect al l surface 

spoil pile s to control air and vater pollution. 

• 

93-1072, 93d Cong., 2d Sees. 134 (1974). A* enacted, Ikwever. J ^ 

>••*" " **r. 

Section 515(b)(4) is substantially different from the proposed 

Section 211(b)(6). Section 515(b)(4) requires an operator "to 

effectively control erosion and attendant air and water pollution." 

The legislative history of Section 515(b)(4) explains that performan-ajgf sKtfrfi "to assure the stability of spoil mass as 

well a 

:*v* 

face erosion are prescribed for surplus 

soil frosi all types of mining operations." H.R. Rep. 95-218, 95 

Cong., 1st Sess. 174 (1977). NVF ignores the critical differences 

between the legislative history of the proposed Section 211(b)(6) 

• 

and Section 515(b)(4) which was ultimately enacted. 

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vo. 

ke the 
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legislative history of the proposed Section 211(b)(6), the legislative history of Section 515(b)(4) prescribes only an erosion 

oerformance standard. Consequently, NWF's assertion that the 

proposed Section 211(b)(6) and Section 515(b)(4) are identical 

is erroneous. 

NWF also wrongly asserts (Br. 40) that the district court 

erred in concluding that Section 702(a) of the SMCRA, 3.0 U.S.C. 

1292(a), prevents OSM's regulation of air quality. NWF cites 

(^d.) In Re: Surface Mining Regulation Litigation, 627 F.2d 1346 

(D.C. Cir. 1980), to support its contention that Section 702(a) 

does not prohibit the Secretary from regulating air quality as 

long as he takes no action which is inconsistent with EPA's 

regulatory authority. NWF's argument is seriously undermined by 

its own concession (_ici.) that Section 702(a) only authorizes the 

Secretary to fill regulatory gaps. Most significantly, NWF's 

argument is contrary to the holding of this Court in In Re: 

Surface Mining Regulation Litigation, supra. In that case, this 

Court held that the Secretary of the Interior had no authority to 

promulgate water quality regulations, where such authority rested 

with the EPA even in the face of that agency's decision not to 

promulgate such regulations. This Court held that the Secretary 

could properly issue water quality regulations only if the 

Federal Water Pollution Control Act, 33 U.S.C. 1251 e_t seq. , 

and its underlying regulatory scheme, created a regulatory gap 

"so as to constitute an 'absence of regulation.'" 627 F.2d at 

1367. Even where such a gap exists, this Court concluded 
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(id.) that the Secretary may issue regulations to fill the gap 

"without regard to EPA practice so long as he is authorized to do 

so.". We have already demonstrated that Section 515(b)(4) confers 

no authority on the Secretary to regulate air pollution generally, 

but instead authorizes him to regulate only air pollution generated 

by erosion. 

Furthermore, no gap exists with regard to the regulation 

of fugitive dust from coal mines. The Clean Air Act at 42 U.S.C. 

7411(b)(1)(A) and (f) expressly authorizes the EPA to establish 

Federal performance standards for major stationary sources of 

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air pollution, including fugitive dust. 

This Court, in Sierra Club v. Gorsuch, 715 F.2d 653 

(D.C. Cir. 1983), implicitly recognized EPA's authority to 

regulate fugitive dust. The district court here (July 6, 1984, 

mem. op., 34-35) explicitly acknowledged EPA's authority to 

regulate fugitive dust. Pursuant to its authority to regulate 

fugitive dust, EPA, on February 28, 1986, reopened the comment 

period on proposed rules to regulate fugitive emissions from 

Ul 

mines. 51 Fed. Reg. 7090. 

]J_/ Under Section 302(j), 42 U.S.C. 7602(j), a major stationary 

source includes, by definition, "any major emitting facility 

or source of fugitive emissions of any such pollutant." 

12/ Contrary to NWF's assertion (Br. 40), the proposed rule 

considers four alternatives and is, therefore, not limited 

merely to new surface coal mines. 51 Fed. Reg. at 7091.