COALEX STATE INQUIRY REPORT - 19
October 15, 1984
Sue A. Shadley, Legal Analyst
Division of Reclamation
309 W. Washington Street
Indianapolis, Indiana 46204
TOPIC: INTERPRETATION OF "IN ACCORDANCE WITH" AND "CONSISTENT WITH"
INQUIRY: Under SMCRA Sec. 503(a), in order for a state to obtain primacy under the Act, it must
enact state law which provides regulation of surface coal mining and reclamation operations "in
accordance with the requirements of [the] Act". Moreover, the state regulatory program must be
"consistent with" the federal regulations promulgated under SMCRA. Has there been any
interpretation of what constitutes "in accordance with" and "consistent with"?
SEARCH RESULT: See below.
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A COALEX search was conducted of the legislative history of the Act to identify Congressional
interpretation of these phrases prior to the Act's passage. No specific definition of the phrases
was identified. In July, 1977, the House and Senate Conference Report stated that "an approved
state program requires (1) a State law consistent with the Federal law and (2) State rules and
regulations consistent with the Secretary's regulations. The Conference Report retains the basic
principle that the Federal law and regulations are minimum standards which may be exceeded by
the States." (H. Rep. No. 95-493, 95th Cong., 1st Sess. 102 (1977))
The May, 1977 Senate Report No. 95-128 stated that because of the variety of regional
conditions, the administration of surface coal mining regulation and reclamation "is more properly
done by the States". Concurrently, "uniform minimum Federal standards [were] needed to
establish minimum criteria for regulating surface mining and reclamation activities throughout the
country." The design and enforcement of the state programs were to be "in conformance with
Federal criteria". (S. Rep. 95-128, 95th Cong., 1st Sess. 51-52 (1977))
A COALEX search was also conducted of Office of Surface Mining (OSM) Federal Register
notices to identify any further interpretation of the phrases. Under the 1979 federal regulations
promulgated by the Secretary, "in accordance with" and "consistent with" were defined in 30 CFR
Sec. 730.5 as meaning:
"(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.
(b) With regard to the Secretary's regulations, the State laws and regulations are no less stringent
than and meet the applicable provisions of the regulations of this chapter." (44 FR 15324 (1979))
In 1981, 30 CFR Sec. 730.5(b) was amended as follows:
"With regard to the Secretary's regulations, [consistent with and in accordance with mean that]
the State laws and regulations are no less effective than the Secretary's regulations in meeting
the requirements of the Act." (46 FR 53376 (1981))
The 1981 revision of the definition of these terms was intended, according to the Federal
Register preamble, "to give States more flexibility in the development of regulations for surface
coal mining and reclamation operations within their borders." (46 FR 53376 (1981))
At the same time, 30 CFR Sec. 731.13, which delineated the conditions under which a state
could request an alternative to the federal regulation, was deleted from the regulations.
Generally known as the "State window", Sec. 731.13 required that the state demonstrate that a
proposed alternative was "necessary because of local requirements or local environmental or
agricultural conditions."
OSM stated in the preamble to the 1981 amendments that the regulatory change was intended
to address the state criticism that the "State window" unnecessarily restricted state alternatives to
the federal regulation. Further, that the amendments made it clear that:
"States are not required to adopt the Secretary's regulations; that within limits described herein,
they are free to develop and adopt regulations which meet their special needs. States are no
longer required to demonstrate that each alternative is necessary because of local requirements
of local environmental or agricultural conditions. In addition, States are not required to mirror all
applicable provisions of the Secretary's regulations. A State program, including its laws and
regulations will, however, have to be as effective as the Secretary's regulations in meeting the
requirements of the Act in order to be approved. This implements Congress' intent that the
Secretary's regulations serve as the benchmark for evaluating State proposals." (46 FR 53377
(1981))
The meaning of the phrase "no less effective than" was further elaborated in the preamble as
follows:
"To be no less effective in meeting the requirements of the Act' the State program must provide
assurance that the State provisions will be as effective in meeting the requirements of the Act as
the Federal regulations. The standards for judging the effectiveness of the State proposals are
the appropriate Federal regulations, however, the State approach no longer need duplicate the
approach in the Federal regulations.
"With respect to judging the effectiveness of State provisions which are alternatives to the
Secretary's regulations, the type or purpose of the provision will affect the Secretary's review. In
judging the effectiveness of an alternative to the Secretary's regulations dealing with mining and
reclamation operations performance standards, OSM will analyze whether the Secretary's
regulatory objective is as likely to be achieved by the State alternative as by the comparable
Federal regulations. Alternatives to procedural provisions in the Secretary's regulations will be
evaluated from the point of view of their similarity to the Secretary's rules in affording rights and
remedies to persons. Where Sections 518(i) and 521(d) do not apply, the effectiveness of
alternatives to the enforcement and penalty provisions will be evaluated from the standpoint of
whether operators will be as likely to maintain compliance under the State program as under a
program containing the Federal rules. Monetary and other penal provisions of a State program
must be similar in severity to those in the Act and as effective as the Federal regulations in
meeting the requirements of the Act." (46 FR 53377 (1981))
A further search of LEXIS was conducted to identify legal cases involving the interpretation of
the phrases "in accordance with" and "consistent with". In the cases identified, the courts have
applied the regulatory definition of 30 CFR Sec. 730.5 in conjunction with SMCRA Sec. 526(a)
which specifies standards for the judicial review of the Secretary's approval or disapproval of state
regulatory programs. The Statute requires that the Secretary's action "be affirmed unless the
court concludes that such action is arbitrary, capricious, or otherwise inconsistent with law".
In VIRGINIA CITIZENS FOR BETTER RECLAMATION, INC. v JAMES G. WATT, No. 83-1828 (4th
Cir 1984), the court based its decision on the following:
"A court reviewing the Secretary's approval of a state program must decide whether the Secretary
acted arbitrarily, capriciously, or otherwise inconsistently with law in concluding (a) that the
proposed program comprises state regulations no less effective than the Secretary's, and (b) that
state laws are not less stringent than, meet the minimum requirements of, and include all
applicable provisions of the Act.
"As a general rule of law, agency action is arbitrary, capricious, or otherwise inconsistent with law
unless the record demonstrates that it is rational, based on relevant consideration, and within the
scope of the agency's delegated authority. MOTOR VEHICLE MFR. ASSN. v STATE FARM
MUTUAL, __ US __ (1983); CITIZENS TO PRESERVE OVERTON PARK, INC. v VOLPE, 401 US 402
(1971). Furthermore, insofar as an agency decision marks a dramatic change in agency policy, it
must be supported by a reasoned analysis explaining the change. MOTOR VEHICLE MFR. ASSN.,
__ US __."
In a disagreement centered on a question of statutory construction, the Court held that the
Secretary's interpretation was "entitled to deference" (Id. at pt. 2)
In PENNSYLVANIA COAL MINING ASSOC. v JAMES G. WATT, 562 F Supp 741 (D Pa 1983), the
court bases its review on the definition promulgated under Sec.730.5, and SMCRA Sec. 526(a)(1),
making the observation that "[t]his standard for judicial review, obviously, places the burden of
proof on one attacking the action of the Secretary in approving a state program or requiring
amendment thereto."
The standard of review applied in CITIZENS FOR RESPONSIBLE RESOURCE DEVELOPMENT v
JAMES G. WATT, 579 F Supp 431 (D Ala 1983) was based on a Supreme Court decision
addressing similar statutory language used in the Administrative Procedure Act, 5 USC Sec.
706(2)(A):
"Scrutiny of the facts does not end, however, with the determination that the Secretary has acted
within the scope of his statutory authority. Section 706(2)(A) requires a finding that the actual
choice made was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law....' To make this finding, the court must consider whether the decision was based on
the relevant factors and whether there has been a clear error of judgment.... Although this
inquiry into the facts is to be searching and careful, the ultimate standards of review is a narrow
one. The court is not empowered to substitute its judgment for that of the agency." (CITIZENS
TO PRESERVE OVERTON PARK, INC. v VOLPE, 401 US 402, 416, 91 S Ct 814, 28 L Ed 2d 136
(1971))
The District Court rejected the plaintiff's argument that a section of the state regulatory
program "was less effective' than the applicable provision in the SMCRA because it does not
exactly mirror' all provisions of the SMCRA and the corresponding regulations" and at another
point, reminded the plaintiff "that Congress did not intended that the state laws and regulations
exactly mirror their federal counterparts; rather, the state laws and regulations must be in
accordance with the federal law."
ATTACHMENTS
A Excerpt from H. Rep. No. 95-493, 95th Cong., 1st Sess. 102 (1977).
B Excerpt from S. Rep. 95-128, 95th Cong., 1st Sess. 51-52 (1977).
C 46 FR 53376 (1981).
D Excerpt from PENNSYLVANIA COAL MINING ASSOC. v JAMES G. WATT, 562 F Supp 741
(D Pa 1983).
E Excerpt from VIRGINIA CITIZENS FOR BETTER RECLAMATION, INC. v JAMES G. WATT,
No. 83-1828 (4th Cir 1984).
F Excerpt from CITIZENS FOR RESPONSIBLE RESOURCE DEVELOPMENT v JAMES G. WATT,
579 F Supp 431 (D Ala 1983).
Search conducted by: Terri H. Petruska
