Petition for Writ of Certiorari — Southern Ohio Coal Co. v. Office of Surface Mining, Reclamation & Enforcement

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In The

Supreme Court of the United States

October Term, 1994

-- *

SOUTHERN OHIO COAL COMPANY,

Petitioner,

OFFICE OF SURFACE MINING,

RECLAMATION AND ENFORCEMENT,

DEPARTMENT OF THE INTERIOR, et al.,

Respondents.

- s

Petition For A Writ Of Certiorari

To The United States Court Of Appeais

For The Sixth Circuit

—- ¢

PETITION FOR A WRIT OF CERTIORARI

D. MicHAsEL MILLER

(Counsel of Record)

ALVIN J. MCKENNA

Mark S. STEMM

JANET J. HENRY

ALAINE Y. MILLER

Porter, WriGHt, Morris & ARTHUR

41 South High Street

Columbus, Ohio 43215-6194

(614) 227-2000

Counsel For Petitioner, Southern

Ohio Coal Company

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Under the Federal Water Pollution Control Act

Amendments of 1972 (the “Clean Water Act” or “CWA”)

and the Surface Mining Control and Reclamation Act of

1977 (“SMCRA”), the United States Environmental Pro-

tection Agency (“U.S. EPA”) and the Office of Surface

Mining of the Department of Interior (“OSM”) respec-

tively have delegated to Ohio regulatory agencies respon-

sibility and authority for administering and enforcing

within the State the National Pollutant Discharge Elim-

ination System (“NPDES”) permitting program of the

CWA and SMCRA-consistent State standards. Pursuant to

its duly delegated authority, the Ohio Environmental Pro-

tection Agency (“Ohio EPA”) authorized Southern Ohio

Coal Company (“SOCCO”) to bypass its treatment facili-

ties and discharge, with alternative treatment, water

which unexpectedly had entered and threatened one of

the nation’s largest active underground coal mining com-

plexes. Pursuant to its delegated authority, Ohio’s Divi-

sion of Reclamation (“Ohio DOR”) issued a cessation

order, which was appealed and temporarily stayed by the

federally-approved appeals board, the Ohio Reclamation

Board of Review (“Ohio RBR”). OSM, and later U.S. EPA,

each issued subsequent orders attempting to veto the

bypass authorization and the temporary stay. The District

Court enjoined U.S. EPA and OSM from ordering cessa-

tion of such State-authorized discharge.

The questions presented are:

1. Whether the actions of U.S. EPA and OSM, which

directly interdicted the federally-approved processes and

QUESTIONS PRESENTED - Continued

decisions of their State counterparts, exceeded the federal

agencies’ statutory authority, thereby giving rise to fed-

eral court jurisdiction?

2. Whether denial of federal district court jurisdic-

tion over the actions and threatened actions of U.S. EPA

and OSM deprived SOCCO of due process of law in

contravention of the Fifth Amendment to the United

States Constitution?

iil

LIST OF PARTIES

The parties before this Court are identical to the

parties to the proceedings below. Such parties are the

Petitioner Southern Ohio Coal Company and the Respon-

dents Office of Surface Mining, Reclamation and Enforce-

ment, Department of the Interior; Richard Seibel, Field

Office Director for the Office of Surface Mining; Robert

Urum, Director of the Office of Surface Mining; the

United States Environmental Protection Agency; Carol

Browner, Administrator of the United States Environmen-

tal Protection Agency; and Valdas Adamkus, Administra-

tor of Region V of the United States Environmental

Protection Agency. (Mr. Urum has been automaticalty

substituted for W. Hord Tipton who served as Acting

Director of the Office of Surface Mining during the pro-

ceedings below.)

RULE 29.1 LIST

Petitioner Southern Ohio Coal Company is a wholly

owned subsidiary of Ohio Power Company which, in

turn, is wholly owned by American Electric Power Com-

pany, Inc., a publicly-held company.

TABLE OF CONTENTS

Page

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pe tg et fy |) ee ae eer 2

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REASONS FOR GRANTING THE WRIT .......... 8

A. The Sixth Circuit’s Decision Conflicts With The

Decisions Of This Court And Other Courts of

Appeals By Failing To Recognize And Preserve

An Opportunity For Judicial Review Of The

United States Environmental Protection

Agency’s Action In Excess Of Its Delegated

Authority Under The Clean Water Act.......

B. By Denying Federal Court Review Of The

United States Environmental Protection

Agency’s Action, The Sixth Circuit Has Pre-

cluded Southern Ohio Coal Company From

Obtaining Due Process Of Law As Guaranteed

By The Constitution Of The United States....

C. The Decision Of The Sixth Circuit Conflicts

With This Court’s Decision In Leedom v. Kyne

By Denying Judicial Review Of An Action By

The Office Of Surface Mining To Override The

Proper Operation Of Ohio’s Federally-

Approved Permanent State Regulatory Pro-

gram In Contravention Of The Surface Mining

Control And Reclamation Act................

TABLE OF CONTENTS -—- Continued

Page

D. In Denying Judicial Review Of Southern Ohio

Coal Company’s Constitutional Claim Against

The Office Of Surface Mining, The Sixth Cir-

cuit Misapplied The Decision Of This Court In

Hodel v. Virginia Surface Mining and Reclamation

Ass’n By Failing To Distinguish The Issue In

Hodel From The Significantly Different Ques-

tion Of Constitutional Due Process Which Has

Not Been, But Should Be, Decided By This

Cf, rrr es err yr ees rer eee. 23

ee. & 8) 6S ree rrvor rere er et 29

PTI oon kc chan cccueeeeu stn s end eeesenteeueuens la

TABLE OF AUTHORITIES

Page

CASES

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967)

POP eee eT TOT EEE C Te Pee eee ET pee 6,9, 14

Allsteel, Inc. v. U.S. EPA, Case No. 94-3179, 1994

U.S. App. LEXIS 12385, 38 Env’t Rep. Cas.

(BNA) 1697 (6th Cir. May 26, 1994)............ 18, 19

Ashland Oil, Inc. v. McDonald, Case No. 79-338,

unreported (N.D. Ohio 1980). ................ eens 16

Central Hudson Gas & Elec. Corp. v. U.S. EPA, 587

“>. > eae, enna nr: 9, 16

Champion Int’l Corp. v. U.S. EPA, 850 F.2d 182 (4th

i OEE nk oc sci vn vos euvuduus lanes ee eee, 9, 16

Conoco, Inc. v. Gardebring, 503 F.Supp. 49 (N.D. Il.

i ELT TET Ee eT eT ey ee eee 16

Friends of the Crystal River v. U.S. EPA, 794 F.Supp.

See EPCs Ms ROU ic 0 ckckacnceseeubdasecubeces 16

Hodel v. Virginia Surface i: and Reclamation

Ass'n, 452 U.S. 264 (1981)....10, 23, 24, 25, 27, 28, 29

Hoffman Group, Inc. v. EPA, 902 F.2d 567 (7th Cir.

WA occ vckcsvankacdede ee eee 14, 15

Leedom v. Kyne, 358 U.S. 184 (1958)... 9, 19, 14, 20, 21, 23

Permanent Surface Mining Regulation Litigation, 653

F.2d 514 (D.C. Cir., en banc), cert. denied sub nom

Peabody Coal Co. v. Watt, 454 U.S. 822 (1981)...... 21

Presault v. Interstate Commerce Commission, 494 U.S. 1

CEPUD Ns chncens cas sa490 ons 0aeenes cease Gea ny wane 29

TABLE OF AUTHORITIES Continued

Reuth v. U.S. EPA, 13 F.3d 227 (Fin Cie. 1993) .....5.8

Southern Pines Assoc. v. Inited Stat 412 F.2d 713

(4th Cir. 1990)... .....- cece cere eee eeeeeeeees ..14, 15

Swanson v. United States, 6! 0 F.Supp. 802 (N.D.

Calif. 1985), aff'd, 789 F.2d 1368 (9th Cir. 1986) . .9, 16

Thunder Basin Coal Co. v. Reich, __ US. , 114

Te Myst... |) Se 15

STATUTES

SUB, GIOE .. o.oo cncccvssecssesencacesnesscwsssoes 3

26 USC. GITSU1) « .. 200 cnc cccccsctsseneesserss clawenn

OE UE BATTIIA) qo ae ss cane cscs ces specetenensnesss 7

MOU GL BUSSE. . o.oo ccc cccsccccccesvesecannsonsans 3

28 U.S.C. §1337......---- ere peer rs er er ts 3

2B U.S.C. GIEDal(]). ...--- cence ccc ceeccerecssscees 29

OEE NG 6 cin cuca caus cous scenes ecesssansar seen. 3

pit tom > See EEE ee, 5

MO UG.C. GIBDUE. .. . 2-22 scenes ccs eseesoccses 2, a

30 U.S.C. §1202(g) Perry. errr

30 USC. GIZSMa) . ....- sec cee eessscccsoeess 2, 21, 22

30 U.S.C. §1271 SNe 8 an es

30 U.S.C. §§1271(a)(1) (2). ---- eee 2: 22 Zo ae

Vill

TABLE OF AUTHORITIES - Continued

Page

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ee Se, Es i va oe hen aed ss Se cade ae teteenneeves 14

oe AS ee eT errr r rr er ere. .. 15

ee a a ee eenae eee 15

42 U.S.C. §9613(h) ...... Palds <ieanw ene aaee lee ea eae i

Ohio Revised Code §1513.02(D)(1j ................2, 25

COD TOWIRO GO Brae Be 0 nok che ccc cinssannasenes 26

Ohio Revised Code §1513.13(A),(B),(C) ............ a a

30 C.F.R. §842.11(b)(1)(ii)(B)(4)(iv) .. 2... ee ee eee. 28

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TABLE OF AUTHORITIES Continued

Page

MISCELLANEOUS

Fifth Amendment to the United States Constitu

Senate Report No. 92-414, 92nd Congress, 2nd

Session (1972) ..... See a as ara ie a al Sy rarer

43 Fed. Reg. 37080 (August 21, 1978)..........--++-. 12

53 Fed. Reg. 26729 (July 14, 1988) ..... ee .22, 28

No.

In The

Supreme Court of the United States

October Term, 1994

SOUTHERN OHIO COAL COMPANY,

Petitioner

OFFICE OF SURFACE MINING,

RECLAMATION AND ENFORCEMENT,

DEPARTMENT OF THE INTERIOR, et al.,

Respondents

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

——— -@— sadness

Petitioner, Southern Ohio Coal Company, respectfully

prays that a Writ of Certiorari issue to review the Judg-

ment and Opinion of the United States Court of Appeals

tor the Sixth Circuit entered in the above-entitled pro-

ceeding on April 8, 1994.

OPINIONS BELOW

The Opinion of the Court of Appeals for the Sixth

Circuit is reported at 20 F.3d 1418, and is reprinted in the

Appendix hereto, p. la, infra.

The Order of the United States District Court for the

Southern District of Ohio granting preliminary injunctive

relief was entered on August 19, 1993, and is reported at

831 FSupp. 1324. That Order is reprinted in the Appendix

hereto at p. 25a.

JURISDICTION

On April 8, 1994, the Court of Appeals for the Sixth

Circuit entered Judgment reversing the Order of the Dis-

trict Court of the Southern District of Ohio and remand-

ing the case with instructions to dismiss for lack of

jurisdiction. By Order filed May 31, 1994 (a copy of which

is reprinted in the Appendix hereto at p. 60a), the Court

of Appeals denied a timely Petition for Rehearing. The

jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1).

STATUTES INVOLVED

rhe constitutional provisions, statutes, and regula-

tions involved in the case are: the Fifth Amendment to

the United States Constitution; 30 U.S.C. §1201(f); 30

U.S.C. §1202(g); 30 U.S.C. §1253(a); 30 U.S.C. §§1271(a)(1)

and (2); 30 U.S.C. §1275(c); 30 U.S.C. §1276; 33 U.S.C.

§1251(b); 33 U.S.C. §1319(a); 33 U.S.C. §1342(b); Ohio

Revised Code §1513.02(D)(1); Ohio Revised Code

§1513.13(A),(B),(C); and 40 C.F.R. §122.41(m). The text of

these relevant constitutional provisions, statutes, and reg-

ulations are reprinted in the Appendix.

STATEMENT OF THE CASE

This case came before the United States Court of

Appeals for the Sixth Circuit on an interlocutory appeal

by Respondents from an Order by the United States Dis-

trict Court for the Southern District of Ohio preliminarily

enjoining Respondents from acting to stop, interfere with,

or delay the implementation of a plan approved by the

Director of the Ohio EPA, and authorized under an order

)

for temporary relief issued by the Ohio RBR, to bypass

SOCCO’s water treatment facilities and utilize alternative

treatment and discharge locations in order to remove

water from SOCCO’s underground coal mine unless the

“approved state agencies fail to act vigorously, expe-

ditiously, and in accordance with law.” (District Court

Order, Appendix at p. 59a.)

SOCCO filed a Complaint and an Amended Com-

plaint for declaratory judgment and injunctive -elief

against Respondents on July 29, 1993, and August 4, 1993,

respectively. Those pleadings indicated that through their

actions and proposed actions, Respondents exceeded

their statutory authority and violated SOCCO’s due pro-

cess rights. SOCCO invoked the jurisdiction of the Dis-

trict Court pursuant to 28 U.S.C. §1331, 28 U.S.C. §1337,

28 U.S.C. §2201, 30 U.S.C. §1276, 5 U.S.C. §702, and the

Fifth Amendment to the United States Constitution.

SOCCO’s Complaint against Respondents resulted

from actions taken, or threatened to be taken, by Respon-

dents regarding SOCCO’s Meigs Mine No. 31, after

approximately one billion gallons of water from an aban-

doned adjacent portion of the mine suddenly entered the

active workings of Mine No. 31 on July 11, 1993. SOCCO

promptly responded to this catastrophic occurrence by

meeting with representatives from various Ohio and fed-

eral agencies and retaining expert consultants from var-

ious disciplines to assist SOCCO in developing and

implementing a plan to dewater and recover the mine.

The volume of water in the mine, and the need to remove

the water quickly to avoid irreparable damage to the

mine structure and equipment, made the use of SOCCO’s

existing water treatment works infeasible. (District Court

Order, App. at pp. 27a-28a.) The complexity of the chal-

lenge to recover the mine and the equipment trapped

there was compounded by the fact that with each passing

hour the mine further deteriorated. The water threatened

the structural integrity of the mine by causing the roof

and ribs (wall supports) to deteriorate. (Jd. at p. 28a.)

Experts concluded that unless the water could be evacu-

ated quickly, Mine No. 31 no longer could be mined

safely. (/d.)

SOCCO settled upon an evacuation plan that

included the driiling of bore holes at various locations

and the release of water, with limited treatment, into

streams that feed eventually into the Ohio River. (Id.)

SOCCO’s expert consultants determined that the pro-

posed evacuation plan would have no permanent effects

on the environment, because the only affected aquatic life

would renew itself completely within one to two years.

(Id. at p. 29a.) In their July 23, 1993 Report, OSM’s own

technical personnel concurred that the pumping was nec-

essary to save the mine and that “once the pumping

stopped, the water would quickly return to normal and

fish and mobile aquatic species would repopulate the

effected [sic] reaches of stream from upstream, the Ohio

River and the tributaries to Leading Creek.” (Richard

Seibel at Tr. III, pp. 3-5, 14.)

SOCCO sought approval of its plan from Ohio EPA,

the State agency to which U.S. EPA has delegated author-

ity to administer and enforce in Ohio the NPDES permit-

ting program of the Clean Water Act, 33 U.S.C. §§1251 et

seq., which regulates the discharge of industrial wastewa-

ter, including water from coal mines, into U.S. waters. As

required by federal law, SOCCO’s existing NPDES permit

provided for emergency bypass of its water treatment

facilities if no feasible alternatives exist and the bypass is

necessary to protect SOCCO’s property from severe dam-

age. The Ohio EPA approved SOCCO’s plan as an emer-

gency bypass under SOCCO’s permit and added

requirements designed to minimize environmental

effects. (District Court Order, App. at pp. 31a, 33a.)

Before SOCCO could implement its Ohio EPA-

approved mine recovery plan, the Ohio DOR, the State

agency possessing “primacy” jurisdiction to enforce State

law enacted consistent with SMCRA, 30 U.S.C. §§1201 ef

seq., issued a cessation order to stop recovery operations.

(Id. at p. 31a.) SOCCO promptly appealed the cessation

order to the SMCRA-approved Ohio RBR using the tem-

porary relief procedure established by Congress and

incorporated in Ohio’s regulatory program. Finding that

SOCCO satisfied the criteria for temporary relief under

Ohio’s federally-approved regulatory program, the Ohio

RBR, following an expedited hearing, granted SOCCO a

temporary stay of the Ohio DOR cessation order. (Id.)

Upon issuance of the stay, SOCCO prepared to imple-

ment its Ohio EPA-approved mine recovery plan. How-

ever, before SOCCO could begin pumping water out of

the mine, OSM stepped in and issued another cessation

order, duplicative of the Ohio DOR’s order. (Jd. at pp.

31a-32a.) As a result of OSM’s refusal to respect the

validity of the temporary relief from Ohio DOR’s cessa-

tion order which SOCCO had obtained, SOCCO sought

protection from the United States District Court for the

Southern District of Ohio by filing a Complaint and

Motions for temporary and preliminary injunctive relief,

alleging that OSM’s actions and threatened actions were

beyond its statutory authority and in violation of

SOCCO’s right to due process of law. On July 30, 1993,

the District Court conducted a hearing and issued an

Order nullifying the federal cessation order and prohibit-

ing OSM and its officials from interfering with the ongo-

ing State administrative proceedings conducted pursuant

to the federal standards incorporated in Ohio’s federally-

approved program. (Id. at pp. 32a-33a.)

Upon issuance of this Order, SOCCO began pumping

water from Mine No. 31. However, on August 3, 1993,

SOCCO was advised by U.S. EPA that unless SOCCO

voluntarily ceased pumping, U.S. EPA intended to issue

an administrative order requiring the immediate cessa-

tion of mine recovery activities while U.S. EPA indepen-

dently investigated alternatives to the mine recovery plan

which had been approved by Ohio EPA. (Id. at p. 33a.) On

August 4, 1993, SOCCO amended its Complaint and

moved for temporary and preliminary injunctive relief

against U.S. EPA, its Administrator, and the Administra-

tor for U.S. EPA’s Region V. The District Court granted

SOCCO a Temporary Restraining Order on August 4,

1993. On August 11, 12, and 13, 1993, the District Court

conducted an extensive preliminary injunction hearing

during which the court received trial briefs, evidence

from 22 witnesses, and nearly 100 exhibits from all par-

ties.

The District Court, on August 19, 1993, issued an

Order granting SOCCO’s motion for a preliminary injunc-

tion against both OSM and U.S. EPA. In its Order, the

District Court found that SOCCO’s Amended Complaint

sought relief from the actual and threatened exercise of

authority by federal agencies beyond their statutory

authority. (District Court Order, App. at p. 36a.) The court

concluded that federal courts have jurisdiction to inter-

vene when federal agencies are acting manifestly beyond

the authority granted to them by statute and to enjoin

such actions where irreparable harm would otherwise

result. (Id. at pp. 37a, 54a-58a.) The court rejected U.S.

EPA’s characterization of the jurisdictional issue as one of

whether a federal court may review an administrative

order of U.S. EPA. (Id. at pp. 36a, 40a.) Citing this Court’s

decision in Abbott Laboratories v. Gardner, 387 U.S. 136, 141

(1967), the District Court noted that judicial review of

federal agency orders is permissible and appropriate

“unless Congress has by explicit language precluded such

review.” (Id. at p. 39a.)

Having determined that it had jurisdiction to con-

sider SOCCO’s request for relief, the District Court went

on to hold that U.S. EPA lacked authority to “act in the

face of a state approved agency’s prior action.” (Id. at p.

51a.) In reaching this conclusion, the District Court noted

that 33 U.S.C. §1251(b) sets forth the policy of Congress to

“recognize, preserve, and protect the primary respon-

sibilities of States to prevent, reduce, and eliminate pollu-

tion.” (Id. at p. 46a.) The District Court stated that the

legislative history of the CWA makes clear that where a

State agency to which U.S. EPA has delegated authority

to administer and enforce the CWA already has taken

action, Congress intended U.S. EPA to act only when the

State agency is “ ‘not acting expeditiously and vigorously

to enforce control requirements.’ ” (Id. at p. 48a) [quoting

Senate Report No. 92-414, 92nd Congress, 2nd Session

(1972)]. The court determined that Ohio EPA had acted

expeditiously and vigorously with regard to Mine No. 31,

and that in the absence of any statutory override author-

ity, U.S. EPA lacked authority to exercise jurisdiction. (Id.)

The court also reaffirmed the reasoning of its july 30,

1993 Order against OSM and held that OSM was without

jurisdiction to interfere with the State administrative pro-

cesses which were proceeding in accordance with the

applicable federally-approved statutory procedures. (Id.

at p. 58a.)

The District Court further found that SOCCO had

met the criteria for issuance of a preliminary injunction.

Accordingly, the District Court issued a preliminary

injunction enjoining U.S. EPA and OSM from acting “to

effect the cessation of pumping at Meigs 31 unless their

respective parallel approved state agencies fail to act

vigorously, expeditiously, and in accordance with law.”

(Id. at p. 59a.)

Respondents appealed the District Court's prelimi-

nary injunction Order to the United States Court of

Appeals for the Sixth Circuit on an interlocutory basis

pursuant to 28 U.S.C. §1292(a). Respondents challenged

the Order, alleging that the District Court lacked subject

matter jurisdiction. In an Opinion issued on April 8, 1994,

the Sixth Circuit held that the District Court had erred in

exercising jurisdiction over both OSM and U.S. EPA.

(Sixth Circuit Opinion, App. at p. 2a.) The court based its

decision with regard to OSM on its conclusion that

SOCCO was required to exhaust the federal administra-

tive remedy, notwithstanding SOCCO’s undertaking of

the identical procedure on the State level. Although

SOCCO challenged OSM’s jurisdiction and the lack of

due process, the court found that no exception to the

exhaustion doctrine applied. (Id. at pp. 12a-17a.)

With regard to U.S. EPA, the court found that

SOCCO, in essence, was requesting the District Court to

review a pre-enforcement compliance investigation by

U.S. EPA and that the District Court lacked jurisdiction

over such pre-enforcement compliance efforts. (Id. at p.

21a.) The Sixth Circuit also held that U.S. EPA’s threat-

ened action was supported by statutory authority under

the Clean Water Act. (Id. at pp. 23a-24a.)

Based on its findings, the Sixth Circuit reversed the

judgment of the District Court and remanded the case

with instructions to dismiss for lack of jurisdiction.

On April 22, 1994, SOCCO petitioned for rehearing

with the Sixth Circuit. By Order issued May 31, 1994, the

Sixth Circuit denied SOCCO’s Petition for Rehearing.

(Sixth Circuit Order, App. at p. 60a.) On June 15, 1994, the

Court of Appeals granted SOCCO’s Motion for a Stay of

Mandate pending this Court’s consideration of this Peii-

tion.

REASONS FOR GRANTING

THE WRIT OF CERTIORARI

This case exemplifies, as the District Court found, the

“extraordinarily serious” harm that may befall workers, a

company, and a community when they become pawns in

a jurisdictional turf battle between State and federal

agencies. (District Court Order, App. at p. 56a.) Private

businesses are subject to increasing regulatory scrutiny

and deserve a clear delineation of standards as to when

federal or State regulatory power applies. The District

AE A

Court undertook a reasoned analysis of the federal-state

partnerships created by the CWA and SMCRA and,

unlike the Sixth Circuit, delineated the statutory respon-

sibilities and constitutional limitations of the regulatory

schemes envisioned by Congress. Left undisturbed, the

Sixth Circuit’s decision will provide a shield for agency

action in excess of its statutory authority, eviscerate the

authority granted to federally-approved State programs

under SMCRA and the CWA, and destroy the underlying

premises of “cooperative federalism” — a respect for the

technical expertise of sister State-level agencies and the

regulated community’s ability to place substantial

reliance on the considered decisions of the State agencies

approved under federal law to administer these programs

— upon which nearly all modern federal environmental,

safety, and health regulation is based. The Sixth Circuit’s

decision reduces the role of federally-approved State

agencies to that of mere “monitors,” whose actions have

no legal or practical effect.

Therefore, the decision of the United States Court of

Appeals for the Sixth Circuit should be reviewed and

reversed because:

(A) ithe decision of the Sixth Circuit conflicts with

decisions of this Court such as Leedom v. Kyne, 358 U.S.

184 (1958), and Abbott Laboratories v. Gardner, 387 U.S. 136

(1967), by failing to recognize and preserve the oppor-

tunity for judicial review of agency action where: a mani-

fest infringement of substantial rights is irremediable by

statutorily prescribed methods of review; there is no clear

administrative remedy prescribed by statute, or such a

remedy, even if available, would be rendered meaningless

by delay; the Sixth Circuit’s decision further conflicts

with decisions of other federal Courts of Appeals, includ-

ing Central Hudson Gas & Elec. Corp. v. U.S. EPA, 587 F.2d

549 (2d Cir. 1978), Champion Int’l Corp. v. U.S. EPA, 850

F.2d 182 (4th Cir. 1988), and Swanson v. United States, 789

F.2d 1368 (9th Cir. 1986), and several decisions by federal

district courts, which have confirmed that those district

courts have jurisdiction to determine the scope of agency

authority, and, in appropriate circumstances, to restrain

the exercise of agency authority withheld under the

Clean Water Act;

(B) the Sixth Circuit’s denial of federal court juris-

diction over U.S. EPA’s actions violates SOCCO’s due

process rights by forcing SOCCO either to comply with a

disputed agency order or to face accrual of serious civil

and criminal sanctions without recourse to timely judicial

review;

OSM’s disregard for the results of the SMCRA-designated

appellate process incorporated in the federally-approved

Ohio regulatory program applicable to all coal mining

operations in Ohio and, thus, conflicts with decisions of

this Court, such as Leedom v. Kyne, 358 U.S. 184 (1958), by

its failure to recognize and preserve the opportunity for

judicial review of agency action where a mine operator

would otherwise suffer a manifest infringement of its

statutory right to expeditious, post-deprivation tempor-

ary relief from an immediate cessation order; the Sixth

Circuit’s decision thereby only exacerbates the depriva-

tion by forcing the operator to duplicate its exhaustion of

the identical appellate relief procedure on the federal

administrative level; and further, by sanctioning OSM’s

infringement on the State regulatory pregram, the Sixth

Circuit’s decision substantially erodes the “primacy”

jurisdiction Congress committed to States pursuant to

SMCRA; and

(D) the Sixth Circuit misapplies this Court’s deci-

sion in Hodel v. Virginia Surface Mining and Reciamation

Ass'n, 452 U.S. 264 (1981), in using it as its principal

reason for rejecting the federal jurisdictional basis to

consider SOCCO’s due process challenge to OSM’s inter-

ference with the operation of Ohio’s federally-approved

regulatory program and, in doing so, effectively, but

wrongly, decides an important issue of constitutional law

which has not been, but should be, decided by this Court.

A. The Sixth Circuit’s Decision Conflicts With The

Decisions Of This Court And Other Courts Of

Appeals By Failing To Recognize And Preserve

An Opportunity For Judicial Review Of The

United States Environmental Protection

Agency’s Action In Excess Of Its Delegated

Authority Under The Clean Water Act.

The Sixth Circuit’s decision completely disregards

SOCCO’s challenge to U.S. EPA’s exercise of claimed

authority to second-guess the determination by the Direc-

tor of Ohio EPA to approve SOCCO’s request for an

emergency bypass. (Sixth Circuit Opinion, App. at p.

18a.) Instead, without examining the basis for the action

threatened and ultimately taken by U.S. EPA, the Sixth

Circuit adopted a sweeping declaration that federal dis-

trict courts have no jurisdiction to review “pre-enforce-

ment compliance orders” issued by U.S. EPA under

Section 309(a)(3) of the CWA, 33 U.S.C. §1319(a)(3). This

broad declaration directly conflicts with the prior deci-

sions of this Court and other Courts of Appeals, which

have maintained that federal courts have an obligation to

investigate the basis for the exercise of delegated author-

ity by a federal agency when such action threatens the

regulated community with an infringement of substantial

rights, and there is no statutorily prescribed avenue for

direct review.

In obtaining Ohio EPA’s approval of its request for a

temporary emergency bypass to facilitate the evacuation

of water from Mine No. 31, SOCCO acted in accordance

with its NPDES permit, and the federal regulation upon

which the bypass provision in its permit is based, 40

C.F.R. §122.41(m)(4). Both the regulation and the permit

provision direct a permittee, like SOCCO, to request

approval for an emergency bypass from the State Director.’

Unlike the issuance of an NPDES permit, 33 U.S.C.

§1342(d), certain modifications of those permits, 40 C.F.R.

§122.62, or the issuance of variances, 40 C.F.R. §124.62, no

independent role to review or approve the bypass deci-

sion was reserved for U.S. EPA.

Nevertheless, shortly after commencement of the

evacuation of water from the mine pursuant to the emer-

gency bypass, U.S. EPA informed SOCCO that if the

bypass was not terminated voluntarily, the agency would

issue an order requiring immediate cessation of the

bypass so that U.S. EPA independently could investigate

available alternatives.2 SOCCO, having satisfied the State

regulatory agency, and in the absence of any retained

authority in U.S. EPA to oversee that approval, sought the

protection of the District Court from this unauthorized

action by U.S. EPA.

U.S. EPA’s actions directly threatened to impair

SOCCO’s right to proceed with the emergency bypass

| The preamble to the original bypass regulation adopted

by U.S. EPA states unequivocally that the State Director is

“solely responsible for a determination concerning the accep-

tability of a bypass.” 43 Fed. Reg. 37080 (August 21, 1978)

(emphasis added).

2 The bypass regulation and permit provision require Ohio

EPA to evaluate whether feasible alternatives to the bypass

exist, and to balance the availability of alternatives and the

threat of severe property damage against the anticipated

adverse effects of the bypass, prior to approving the bypass. 40

C.F.R. §122.41(m)(4)(i),(ii). Thus, the responsible regulatory offi-

cial — the Ohio EPA Director - already had undertaken the

appropriate analysis, and there was no basis for duplicative

review by U.S. EPA. The District Court recognized that U.S. EPA

could commence an independent investigation at any time, and

merely restrained U.S. EPA from requiring SOCCO to terminate

the State-approved bypass while U.S. EPA conducted its investi-

gation. (District Court Order, App. at p. 48a.)

authorized by its permit, and approved by Ohio EPA, to

secure relief from the situation which placed the entire

Meigs Mine complex at risk. Ultimately, after the Sixth

Circuit’s issuance of a limited stay of the District Court's

Order, U.S. EPA chose to compel SOCCO to terminate

utilization of the emergency bypass by issuing a compli-

ance order under Section 309(a)(3) of the CWA, 33 U.S.C.

§1319(a)(3).3 However, only if such an order includes an

assessment of a civil penalty is there an express provision

for administrative or judicial review of a compliance

order. 33 U.S.C. §1319(g). And, contrary to the Sixth

Circuit’s statement, (Sixth Circuit Opinion, App. at p.

20a), violations of a compliance order are enforceable by

the agency separate and apart from the alleged underly-

ing violation of the requirements of the CWA. 33 U.S.C.

§1319(d). Yet, there is no express statutory provision for

review of a compliance order issued without civil penal-

ties.4 Thus, for permittees like SOCCO, the issuance of a

> U.S. EPA’s compliance order was issued September 3,

1993, but the time for compliance was extended by agreement of

the parties until September 7, 1993. SOCCO was required to

terminate use of the emergency bypass within 24 hours, and

SOCCO ceased pumping water from the mine on September 8,

1993. The District Court issued a second Order on September 8

that allowed SOCCO to resume pumping. Utilization of the

alternate discharge locations was terminated on September 16,

1993, when the volume of water being evacuated from the mine

was able to be fully treated through SOCCO’s then-expanded

treatment system. SOCCO continues to otherwise comply with

the requirements of Ohio EPA’s bypass order, including the

monitoring, reporting, and restoration obligations under the

order.

4 Indeed, there is no statutory requirement for the agency

even to consult informally with a permittee before or after the

issuance of a compliance order, unless the order alleges a viola-

tion under 33 U.S.C. §1318, which contains recordkeeping and

information gathering requirements.

compliance order without civil penalties merely “doubles

the stakes” by escalating the potential accrual of penalties

if the agency chooses to bide its time prior to initiating

enforcement. A determination by this Court on the issue

of federal court jurisdiction is therefore of great import to

the regulated community which, under the Sixth Circuit’s

decision, can be subject to the accrual of massive civil

penalties without an opportunity for timely judicial

review of the agency action.

This Court’s prior cases demonstrate that there is a

presumption in favor of judicial review for one “suffering

legal wrong because of agency action,” so long as no

statute precludes review. Abbott Laboratories v. Gardner,

387 U.S. 136, 140 (1967). A statute which contains explicit

provisions for review of certain actions does not neces-

sarily indicate Congressional intent to preclude other

forms of review. Moreover, where the absence of jurisdic-

tion in the federal courts under their general jurisdiction

would lead to sacrifice or obliteration of a right which

Congress has given, and there is no other means within

the control of the injured party to enforce that right, this

Court steadfastly has defended the entitlement to judicial

protection of those rights from agency action taken in

excess of delegated powers. Leedom v. Kyne, 358 U.S. 184,

190 (1958).

“Clear and convincing” evidence of Congressional

intent to preclude review of agency actions has been

required by this Court. Abbott Laboratories, 387 U.S. at 141.

The Sixth Circuit’s decision, and the cases relied on by

that panel, provide no such “clear and convincing” evi-

dence of preclusive Congressional intent. Indeed, th. pri-

mary cases relied on as supporting the implied preclusi

of federal district court jurisdiction, Southern Pines Assoc.

v. United States, 912 F.2d 713, 715-16 (4th Cir. 1990), and

Hoffman Group, Inc. v. EPA, 902 F.2d. 567, 569 (7th Cir.

1990), contain only the most cursory examination of the

structure of the CWA, and instead are founded on seem-

ingly analogous provisions in the Clean Air Act, 42 U.S.C

§§7401 et seq., and the Comprehensive Environmental

Response, Compensation, and Liability Act (“CERCLA”),

42 U.S.C. §§9601 et seq. However, both of those statutes,

unlike the CWA, contain express prohibitions on judicial

review except in accordance with the limited avenues

prescribed in those statutes. 42 U.S.C. §7407(e); 42 ee oe

§9613(h). Moreover, both Southern Pines and Hoffman

Group, as well as their progeny, concern compliance

orders which required the submission of permit applica-

tions and commencement of the administrative process

which is designed specifically for resolution of disputed

issues over the geographic extent of the agency’s jurisdic-

tion over wetlands. In this case, no administrative process

was ever contemplated or pursued by the agency. Rather,

U.S. EPA was content to issue an administrative compli-

ance order requiring SOCCO to terminate the emergency

bypass, and to rely on the coercive effect of the threat of

civil and criminal sanctions to forestall any further utili-

zation of the bypass, while at the same time maintaining

that SOCCO had no right to any type of due process in

the absence of an agency-initiated enforcement action.°

Compare, Thunder Basin Coal Co. v. Reich, __ U.S. __, 114

S.Ct. 771 (1994) [pre-enforcement review pr cluded

where legislative history of Mine Safety and Health Act

demonstrated intent of Congress to foreclose federal

court review and Act provided opportunity for operator

5 To date, no enforcement action has been initiated by the

agency. Thus, in the absence of the District Court’s protection,

SOCCO would have been forced to risk the total loss of its mine,

or the imposition of exorbitant penalties if it continued to evac-

uate water pursuant to the State-approved bypass, contrary to

the compliance order.

nore Phe BR LTA

to request that administrative agency expedite proceed-

ings and to request temporary relief from orders pending

review].

The appropriate analysis of the CWA under the cir-

cumstances of this case is contained in Central Hudson Gas

& Elec. Co. v. U.S. EPA, 587 F.2d 549 (2d Cir. 1978), and

Champion Int'l Corp. v. U.S. EPA, 850 F.2d 182 (4th Cir.

1988).° In each of these cases, regulated entities sought

federal district court review of federal agency action

exceeding the statutory authority of the agency, and in

direct contravention of a prior action issued by an

approved State program director. And, in each case, the

appellate court confirmed that federal district courts

maintain a residuum of general jurisdiction that supple-

ments the statutorily-prescribed avenues for judicial

review, and provides a remedy where nore would other-

wise exist to forestall the impairment of substantial

rights. The district courts have jurisdiction to entertain a

suit alleging that agency action is unauthorized by stat-

ute, and to determine whether the agency has exceeded

its delegated authority. Champion Int'l Corp., 850 F.2d at

185-86. Absent review by this Court, permittees in the

Sixth Circuit (unlike their counterparts in the Fourth,

Second, and Ninth Circuits) will be subject to federal

compliance orders which second-guess determinations of

issues which have been delegated to approved State

agencies pursuant to federal statutes and regulations, and

6 See also Conoco, Inc. v. Gardebring, 503 F.Supp. 49 (N.D. Ill.

1980) [pre-enforcement review of compliance orcer issued

under CAA available in federal district court]; Ashland Oil, Inc.

v. McDonald, Case No. 79-338, unreported (N.D. Ohio 1980);

Swanson v. United States, 600 F.Supp. 802 (N.D. Calif. 1985), aff'd

789 F.2d 1368 (9th Cir. 1986) [review of compliance order avail-

able under CWA]; and Friends of the Crystal River v. U.S. EPA, 794

F.Supp. 674 (W.D. Mich. 1992).

to the threat of civil and criminal sanctions without

timely recourse to federal judicial review.

The Sixth Circuit has created a dangerous and

broadly-crafted haven for unauthorized agency action by

precluding any review of any compliance order, regard-

less of the basis (or lack of basis) therefor. Such a rule has

never been endorsed by this Court, conflicts with the

above-cited authorities from this Court and other Cir-

cuits, and presents compelling issues deserving of review

by this Court.

B. By Denying Federal Court Review Of The

United States Environmental Protection

Agency’s Action The Sixth Circuit Has Pre-

cluded Southern Ohio Coal Company From

Obtaining Due Process Of Law As Guaranteed

By The Constitution Of The United States.

The circumstances of this case also demonstrate in a

dramatic way the deprivation of due process which

occurs if general federal jurisdiction does not provide an

opportunity for timely review of compliance orders

under the CWA. With no statutory requirement to con-

duct further formal or informal administrative pro-

cedures, and absent jurisdiction in the District Court, U.S.

EPA can blithely ignore the substantial challenge pre-

sented by SOCCO to U.S. EPA’s decision to override the

State-approved bypass. And SOCCO would be con-

fronted with a classic “Hobson's choice”: either “volun-

tarily” adhere to the disputed compliance order issued by

U.S. EPA, and risk the very real probability of the loss of

its mine, trapped equipment, and entire business; or try

to preserve its mine, trapped equipment, and business -

as well as the jobs of its employees and its contribution to

the already debilitated economy of southeastern Ohio -

by utilizing the emergency bypass, at the risk of incurring

serious and daily escalating civil and criminal sanctions.

Federal courts have not hesitated to examine agency

action immediately where no effective administrative

remedy is provided to eliminate such competing risks.

The Sixth Circuit failed to address the constitutional

issues raised by SOCCO in its analysis of U.S. EPA’s

actions. However, just six weeks later, in Allsteel, Inc. v.

U.S. EPA, Case No. 94-3179, 1994 U.S. App. LEXIS 12385,

38 Env’t Rep. Cas. (BNA) 1697 (6th Cir. May 26, 1994),

that same court recognized that a compliance order

issued under the Clean Air Act is “final agency action”

and subject to immediate judicial review because the

order required Allsteel either to stop construction of a

new facility immediately or to violate the order and risk

the imposition of harsh criminal or civil penalties. 38

Env’t Rep. at 1698. The court further recognized that

Allsteel faced a potential enforcement action for willful

violation of the order itself, regardless of the validity of

the underlying alleged violations, and that the mere exis-

tence of the order therefore exposed Allsteel to greater

penalties than it would otherwise face in the absence of

such an order.

Although the Sixth Circuit in Allsteel summarily cited

the Opinion in this case and stated that “the panel con-

cluded from the structure of the Clean Water Act that

Congress intended to prohibit pre-enforcement judicial

review of compliance orders issued under that Act,” id. at

1697, there is a total absence of any supporting analysis

for that conclusion. Clearly, the factors supporting federal

court jurisdiction discussed in the Allsteel opinion are

equally applicable to the issues raised in this case under

the CWA. The primary issue in Allsteel, directly analo-

gous to the issue in this case, was the purely legal issue of

whether U.S. EPA had authority to issue a stop-work

order when the federally-approved State agency already

had authorized the work to proceed. Id. at 1699. The

concurring view of Judge Wellford further highlights the

constitutional infirmities of denying judicial review in the

similar circumstances of this proceeding:

I cannot believe that Congress intended that

EPA have the unreviewable authority to close

down indefinitely construction of a major plant

which had not yet initiated any emissions with-

out the opportunity for a full-scale hearing to

determine whether the emission system, already

approved by the state environmental agency,

was in violation of applicabie law and regula-

tions.

| note that over a period of months EPA has

made no effort to institute an enforcement

action against Allsteel. . .. Rather, EPA, content

that it has effectively precluded manufacturing

operations, has apparently sat back with its

asserted position that Allsteel has no remedy in

court.

Even if Congress were deemed to have intended

in such a situation to preclude judicial review, |

would be inclined to hold that unless EPA

brought an enforcement action . . . within a

reasonable time, the Clean Air Act may be unen-

forceable as violative of constitutional due pro-

CESS:

Id. at 1699-1700.

The immediate effect of the compliance order issued

in this case was precisely the same as the stop-work order

in Allsteel. Having obtained the necessary approval for its

emergency bypass from the federally-approved State

agency, SOCCO then was ordered by federal agencies to

stop the evacuation of water from its mine, with no

feasible alternatives to avoid substantial — and irreparable

~ damage to its mine, equipment, and business itself. No

enforcement action, in which the issues related to the

validity of the bypass might have been addressed, was

ever commenced by the federal agencies involved.7 The

Sixth Circuit’s conflicting decisions therefore raise a sub-

stantial issue regarding the constitutionality and validity

of its interpretation of the enforcement provisions of the

CWA in this case which requires review by this Court.

C. The Decision Of The Sixth Circuit Conflicts

With This Court’s Decision In Leedom v. Kyne

By Denying Judicial Review Of An Action By

The Office Of Surface Mining To Override The

Proper Operation Of Ohio’s Federally-

Approved Permanent State Regulatory Program

In Contravention Of The Surface Mining Con-

trol And Reclamation Act.

The Sixth Circuit’s decision, if left undisturbed, will

authorize OSM to duplicate enforcement actions taken by

any approved State regulatory authority whenever OSM

simply disagrees with the results of the SMCRA-

mandated appeal incorporated in each State regulatory

program. By its decision, the Sixth Circuit has obliterated

the “primacy” jurisdiction committed by Congress to

States which enact and adhere to State regulatory pro-

grams approved by the Secretary of the Interior.

As this Court held in Leedom, supra, federal court

jurisdiction is available to a party aggrieved by agency

action manifestly beyond the realm of its delegated

authority if irremediable by the statutorily-prescribed

method of review. Here, SOCCO proceeded to exhaust

the mandatory administrative procedures available under

’ The Seventh Circuit similarly has confirmed that under

the CWA, in appropriate circumstances, judicial review of pre-

enforcement orders may be obtained. Reuth v. U.S. EPA, 13 F.3d

227, 231 (7th Cir. 1993) [“it is not inconceivable that the EPA or

the Corps of Engineers might completely overextend their

authority. In such a case, we suggest to those agencies that we

will not hesitate to intervene in pre-enforcement activity.... ”]

Ohio’s federally-approved regulatory program, while

also seeking declaratory and injunctive relief in the Dis-

trict Court on the basis that SMCRA did not authorize

OSM, by means of any type of action, to override a

temporary relief decision by a SMCRA-authorized appel-

late review board. Consistent with this Court’s decision

in Leedom, SOCCO was entitled to judicial review in this

case because the “absence of jurisdiction of the federal

courts” would mean “a sacrifice or obliteration of a right

which Congress had created,” namely, the right to expe-

dited, effective temporary relief, absent which SOCCO’s

ability to recover and preserve its mine, equipment, and

business was severely threatened. 358 U.S. at 190. OSM’s

infringement of SOCCO’s statutory and constitutional

rights to expeditious temporary relief from an immediate

cessation order only would be exacerbated, rather than

remedied, by forcing SOCCO to duplicate its exhaustion

effort — creating a distinct possibility of obtaining irrecon-

cilable results, and incurring further delays.

The Sixth Circuit’s support for OSM’s duplicate and

attempted overriding enforcement action runs afoul of

the Congressional commitment under SMCRA to transfer

primary enforcement authority to the States. See 30 U.S.C.

§§1201(f), 1202(g), 1253(a). Pursuant to that statutory

scheme, once the Secretary of Interior approves a perma-

nent State regulatory program, the Secretary is “no longer

directly involved in local decision-making . . . [and] the

state regulatory agency plays the major role with its

greater manpower and its familiarity with local condi-

tions.” In Re: Permanent Surface Mining Regulation Litiga-

tion, 653 F.2d 514, 518, 523 (D.C. Cir., en banc) cert. denied

sub nom Peabody Coal Co. v. Watt, 454 U.S. 822 (1981). In

this case, by issuing an immediate cessation order, Ohio’s

regulatory authority acted just as OSM would have - if

OSM had been the proper enforcement authority in Ohio.

With its action, the Ohio DOR acted to the fullest extent

authorized by Congress for an enforcing authority,

whether operating under a federal or State permanent

program. From that point forward, there was nothing left

for OSM to enforce — the maximum enforcement action

had taken place.

The Sixth Circuit rested its decision in support of

OSM’s claimed authority on SMCRA §521, 30 U.S.C.

§1271, which describes the limited circumstances in which

OSM maintains a restricted residue of enforcement author-

ity within the context of a State’s exclusive jurisdiction

granted under SMCRA §503(a), 30 U.S.C. §1253(a). How-

ever, §1271(a) reflects only that Congress did not expect

OSM to sit idly by, waiting for a State regulatory author-

ity to take action in response to a threat of significant and

imminent environmental harm. For this reason, the stat-

ute expressly waives the 10-day notification period in a

case of imminent environmental harm or danger to the

public when a State has not acted. In such a case of immi-

nent harm, §1271(a)(2) supplements §1271(a)(1) by

authorizing the immediate issuance of a cessation order

after OSM conducts its own inspection.’ As OSM has

conceded in past rulemaking, §§1271(a)(1) and (a)(2) com-

bine to provide this authority upon “proof that an immi-.

nent danger of significant environmental harm or danger

to the public health or safety exists and the state has

failed to take appropriate action.” 53 Fed. Reg. 26729 (July

14, 1988). Consequently, contrary to the Sixth Circuit's

view — but wholly consistent with the District Court's

decision — §1271 allows OSM to take enforcement action

in a primacy State such as Ohio only if the state has failed

to take action even in those cases where OSM possesses

8 Although the Sixth Circuit stated that OSM conducted an

inspection (Sixth Circuit Opinion, App. at p. 6a), the Record

contradicts this finding. (Tr. II, p. 391; Tr. III, p. 115.) The plain

language of 30 U.S.C. §1271(a)(2) requires, as a pre-condition to

any OSM action, that there be a “Federal inspection.”

earner aera renee ee

“proof that an imminent danger of significant environ-

mental harm exists.”

If the Sixth Circuit’s decision is left to stand, the

primacy doctrine under SMCRA will be turned on its

head. Acceptance of the Sixth Circuit’s “stand-alone”

interpretation of §1271(a)(2) would require an operator to

prevail twice in duplicative proceedings of an appellate

process specifically designed by Congress to provide

expeditious relief. Such an absurd result is inconsistent

with the plain language of SMCRA. Moreover, whether

characterized as a readily observable usurpation of

power not granted by Congress or a patent violation of

the authority it was granted under SMCRA, OSM’s dis-

dain for both the primacy doctrine generally and the

Ohio RBR’s grant of temporary relief pursuant to the

federal standards incorporated in Ohio’s federally-

approved regulatory program, plainly satisfies this

Court’s Leedom jurisdictional test. Thus, the Sixth Circuit

clearly erred in denying federal court jurisdiction on this

ground. r

D. In Denying Judicial Review Of Southern Ohio

Coal Company’s Constitutional Claim Against

The Office Of Surface Mining, The Sixth Cir-

cuit Misapplied The Decision Of This Court In

Hodel v. Virginia Surface Mining and Reclama-

tion Ass'n By Failing To Distinguish The Issue

In Hodel From The Significantly Different

Question Of Constitutional Due Process Which

Has Not Been, But Should Be, Decided By This

Court.

The Sixth Circuit’s misapplication of this Court's

decision in Hodel v. Virginia Surface Mining and Reclama-

tion Ass'n, 452 U.S. 264 (1981), to the significantly differ-

ent circumstances of State primacy, erroneously rejected

another important constitutional basis for district court

jurisdiction in this case. Although the Sixth Circuit cor-

rectly recognized that federal court jurisdiction may lie

“in cases of constitutional challenges to an agency’s pro-

cedures,” the court relied principally on Hodel to con-

clude that SOCCO failed to raise “a colorable

constitutional claim.” (Sixth Circuit Opinion, App. at pp.

15a-16a.) In so deciding, the Sixth Circuit established a

standard for post-deprivation due process claims never

envisioned by this Court in Hodel, which makes review of

the appellate decision below imperative.

In Hodel, this Court examined the constitutionality of

SMCRA’s post-deprivation appellate procedure estab-

lished for mine operators to seek relief from administra-

tive orders that require the immediate cessation of coal

mining operations. This Court balanced the governmental

and private interests and concluded that SMCRA’s post-

deprivation hearing procedure constituted a lawful

exception to the “normal rule that due process requires a

hearing prior to deprivation of a property right.” 452 U.S.

at 300. Because “emergency situations” could justify an

immediate cessation order prior to a hearing, this Court

concluded that due process requirements could be satis-

fied by a post-deprivation hearing process that promised

prompt and effective relief. 452 U.S. at 300-303.

SOCCO undertook precisely this appeal procedure

after receiving an immediate cessation order from the

Ohio DOR by proceeding before the Ohio RBR in accor-

dance with the federally-approved process. Ohio, like

many other States in the years since Hodel, was delegated

permanent regulatory jurisdiction over coal mining oper-

ations within its borders through enactment of a program

of State laws determined by the Secretary of the Interior

to be no less effective than the federal permanent pro-

gram of regulation applicable to States without an

yr,

approved State program.’ As part of Ohio’s federally-

approved State program, the Ohio Legislature enacted

counterparts identical to the federal standards tor imme-

diate cessation orders and expedited appellate review

therefrom. Compare, 30 U.S.C. §1271(a)(2) with Ohio

Revised Code §1513.02(D)(1); and 30 U.S.C. §1275(c) with

Ohio Revised Code §1513.13(C). It is this federally-

approved State program with which SOCCO is obligated

to — and did - comply. And, it is this situation which

presents the issue of whether this Court’s decision in

Hodel supports the Sixth Circuit’s view that due process

requirements are met even when a mine operator subject

to a federally-approved State permanent regulatory pro-

gram is forced to exhaust and prevail twice in the post-

order appellate process established by Congress — at both

the State and federal review levels — anytime OSM dis-

agrees with a State appellate decision and attempts to

nullify ongoing State review processes by issuing a dupli-

cate cessation order.

SOCCO submits that the critical requirements of

prompt and effective post-deprivation relief mandated by

this Court in Hodel are ignored by the Sixth Circuit's

decision. By disregarding the SMCRA-required tempor-

ary relief procedure incorporated in the federally-

approved Ohio regulatory program and by requiring

duplicative exhaustion of the identical procedure on the

federal level, the Sixth Circuit impermissibly doubled the

post-order hurdles for a mine operator seeking to exercise

its right to expedited relief, and virtually insured that

meaningful and effective review could not be obtained

expeditiously.

° As this Court observed in Hedel, any State which fails to

develop and implement a federally-approved State regulatory

program is subject to a federal permanent regulatory program

enforced by OSM. 452 U.S. at 271-72.

Apparently unappreciated by the Sixth Circuit,

Ohio’s permanent regulatory program operated precisely

as envisioned by Congress when enacting SMCRA. Ohio

) DOR carried out its enforcement responsibility under the

State program to the maximum extent permitted by law

when it issued an immediate cessation order against

SOCCO’s planned water release. With this action, the

State regulatory authority acted_to the fullest extent

authorized by Congress for any enforcing authority,

whether operating under a federal or State permanent

program. And, following receipt of the cessation order

from the State, SOCCO immediately applied for tempor-

ary relief under the federally-approved State procedure

found at Ohio Revised Code §1513.13, which was the only

federally-sanctioned review procedure available to

SOCCO. SOCCO obtained the prompt post-deprivation

relief hearing approved by Congress and this Court in

Hodel as satisfying due process requirements. OSM then,

instead of participating in the SMCRA-approved State

appellate process, chose by administrative fiat to attempt

to nullify the effect of the temporary relief order obtained

by SOCCO from the Ohio RBR by forcing SOCCO into an

identical temporary relief procedure, but before a differ-

ent decisionmaker on the federal level.

In affirming what amounted to a veto by OSM of the

entire State appellate procedure, the Sixth Circuit never

considered the significance of SOCCO’s exhaustion of the

temporary relief procedure which Congress required for

all federally-approved State permanent programs. The

Sixth Circuit, contrary to all the provisions of SMCRA’s

statutory scheme, effectively has made OSM itself the

appellate body for adjudicating temporary relief applica-

tions. Pursuant to the Secretary’s approval of Ohio’s pro-

gram and consistent with SMCRA, the Ohio RBR is

charged with this responsibility for Ohio’s coal mining

operations. See Ohio Revised Code §1513.13. Moreover,

no provision of SMCRA authorizes OSM itself to override

the administrative appellate review power, even on the

federal level when there is no federally-approved State

permanent program.

In addition, to find federal! jurisdiction based on a

constitutional question, this Court need not decide

whether OSM’s or SOCCO’s interpretation of SMCRA is

correct. If SOCCO’s interpretation is correct, OSM acted

manifestly beyond its authority, and judicial review is

proper. See Petition Section C, supra. On the other hand,

even if this Court were to assume that SMCRA colorably

authorizes the double exhaustion requirement advocated

by OSM and condoned by the Sixth Circuit, then a sub-

stantial due process issue very different from that

addressed by this Court in Hodel arises. This Court's

analysis of due process and the temporary relief pro-

cedure in Hodel logically took for granted that a coal mine

operator would have to successfully exhaust the tempor-

ary relief process only once — not twice — to obtain that

vital remedy following an immediate cessation order in a

particular case.

Moreover, while this Court concluded in Hode! that

summary administrative action without a hearing may be

justified “in emergency situations,” no such “emergency”

supported OSM’s enforcement action here. Ohio's feder-

ally-approved regulatory authority already had issued a

cessation order with which SOCCO had to comply.

Rather, the only situation facing OSM was the fact that it

disagreed with SOCCO prevailing in the federally-

designated procedure for temporary relief incorporated

in Ohio’s federally-approved program. If it disagreed

with that situation, OSM’s remedy was to participate in

the Ohio procedure which Congress had designated and

the Secretary previously had approved. The constitu-

tionally proper remedy certainly was not for OSM to

usurp authority it had been denied by Congress and issue

its own cessation order.

The efficacy of the relief procedure established by

Congress and approved by this Court in Hodel as satisfy-

ing due process clearly contemplated a single temporary

relief proceeding. Neither Congress nor this Court envi-

sioned a duplicative system in which a mine operator

must navigate and prevail twice on identical facts and

under identical legal standards but before two different

decisionmakers. If the Sixth Circuit’s decision is left

undisturbed, mine operators in States with permanent

regulatory programs will be subject to the time and

expense of exhausting dual mandatory temporary relief

procedures leading to potentially conflicting —- and thus,

effectively meaningless — results absent successful dupli-

cation on the State and federal administrative review

levels. This Court’s decision in Hodel clearly does not

support the constitutionality of such administrative dou-

ble jeopardy.!° The substantial question of constitutional

10 Tronically, OSM itself previously has recognized that a

coal mine operator cannot properly be subjected to this type of

double jeopardy. In ruiemaking proceedings conducted in 1988,

commentors had “argued that for OSM to override the relief

granted the operator at the state level would completely under-

mine the relief provisions set forth in §525 of the Act and would

subject an operator to double jeopardy by having to prevail at

both the state and federal level.” In response, OSM agreed that

“a state regulatory authority has good cause for not taking

action when it is enjoined from doing so by a state administra-

tive or judicial body acting within the scope of its authority

under the state program.” 53 Fed. Reg. at 26739 (July 14, 1988)

Consistent with this comment response, the rule which resulted

from these rulemaking proceedings —- and which remains in

effect today - expressly recognizes that a State regulatory

authority is not expected to correct a perceived violation where

“(t]he state rerulatory authority is precluded by an adminis-

trative ... order . from acting on the possible viola-

tion, where the temporary relief standards of §525(c) of the

Act have been met ' 30 C.F.R. §842.11(b)(1)(11)(B)(4)(iv)

due process implicated by OSM’s effort to impose this

unprecedented duplicative procedural obligation plainly

gives rise to a constitutional claim sufficient to confer

federal court jurisdiction.'!

CONCLUSION

The Sixth Circuit’s decision in this case is contrary to

longstanding precedent in this Court, and decisions of

other Courts of Appeals, and strands regulated entities in

the midst of warring regulators. Denial of federal court

iurisdiction under such circumstances allows federal

agencies impermissibly to interrupt the State administra-

tion of federally-approved programs, deprives regulated

entities of any meaningful due process, and imposes obli-

gations on those regulated entities which have no statu-

tory basis. The issues presented by this Petition are

critical ones, not only to this litigation, but to similar

cases pending in other courts and situations throughout

‘

In addition to its misplaced reliance on Hodeil, the only

other reason the Sixth Circuit declined to find a “colorable

nstitutional claim” vesting the District Court with jurisdiction

vas its conclusion that any “taking” of SOCCO’s property

used by the immediate cessation order could be remedied

compensation paid pursuant to the Tucker Act, 28 U.S.

191(a)(1), citing Preseault Interstate ( merce Commission

194 U.S. 1, 4-5 (199 Sixth Circuit Opinion, App. at p. 16a.) In

1] tne app te ) t failed ldress le preliminary

t | “ é tne SMCRA ( ides Tucker Act

i 11 194 S. at 12 ) e significantly, tha

ed efall not

( ) ~ t yIc< SOC € ©)

et i! t { ) > it

\ ext 1 parable harm t eal

} ta tar

the United States, and to the preservation of the substan-

tial roles reserved by Congress under the CWA and

SMCRA to the sovereign States. For all of these reasons,

Southern Ohio Coal Company submits that its Petition for

Writ Certiorari should be granted.

Respectfully submitted,

D. MicHAEL MILLER

(Counsel of Record)

AtviIN J. MCKENNA

Mark S. STEMM

JANET J. HENRY

ALAINE Y. MILLER

PorTER, WriGHT, Morris & ARTHUR

41 South High Street

Columbus, Ohio 43215-6194

(614) 227-2000

Counsel for Petitioner, Southern

Ohio Coal Company

Filed July 15, 1994

r r rr? rw nirmmry? ‘rm

PECOMMENDED FOR FIIII-TEX ITR yn

IN LN LiVal vi I i Ll | a oy i bi

Pursuant to Sixth Circuit Rule 24

\ | KA. th

p. 0113! (

ELECTRONIC CITATION: 1994 FED Ay

File Name: 94a0113p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUII

y , a

‘

) from

the | ted States

{ ) +» |

istrict Court tor

I ) E> ,

tr< OUT ETT

T) -

I |

AGENCY; RICHA SeipeL, Field Offi

Director, OSM; W. Horp I

Acting Director, OSM; (¢

Browner, EPA Administrator

V. Apamkus, EPA

\dministrator, Region \

Before KENNEDY and GUY, Circuit Judges; an

CONTIE, Senior Circuit Judge

KENNEDY, Circuit Judge. In this appeal, we address

two similar issues involving the jurisdiction of the Dis-

trict Court over the United States Environmental Protec-

tion Agency (“USEPA”) and the Office of Surface Mining,

Reclamation and Enforcement of the Department of the

Interior (“OSM”).' Both agencies took or threatened to

take enforcement actions related to the flooding of an

Ohio coal mine that were at odds with decisions of their

respective state counterpart agencies, the Ohio Environ-

mental Protection Agency (“OEPA”) and the Ohio Divi-

sion of Reclamation (“ODR”). The court enjoined the

federal agencies from acting “to effect the cessation of

pumping at [the mine] unless their respective parallel

approved state agencies fail to act vigorously, expe-

ditiously, and in accordance with law.” Because we find

that the court lacked jurisdiction to enjoin USEPA and

OSM in this manner, we reverse the judgment of the

District Court.

A. Factual Background?

Plaintiff Southern Ohio Coal Company (“SOCCO”)

operates one of the country’s largest underground coal

' Richard Seibel, Field Office Director, OSM; W. Hord Tip-

ton, Acting Director, OSM; Carol Browner, USEPA Administra-

tor; and Valdas V. Adamkus, USEPA Administrator, Region V

are also defendants in this action.

2 We draw heavily from the facts as set forth by the District

Court in its published opinion. Southern Ohio Coal Co. v. Office of

Surface Mining Reclamation & Enforcement, et al., 831 F. Supp.

1324, 1326-30 (S.D. Ohio 1993).

mines in Meigs County, Ohio. On July 11, 1993, SOCCO’s

Meigs Mine Number 31 (“Meigs 31”) was inundated with

water from an adjacent partially abandoned mine known

as Raccoon Mine Number 3 (“Raccoon 3”). In 1989, what

was formerly Meigs Mine Number 1 and a portion of

Raccoon 3 were merged into what is now known as Meigs

31. When Meigs 31 was formed, part ef Raccoon 3 was

abandoned. A bulkhead was installed between the aban-

doned portion of Raccoon 3 and Meigs 31 to prevent

naturally occurring water in Raccoon 3 from flooding into

Meigs 31 and to permit pumping of naturally occurring

water from Meigs 31 into Raccoon 3. At the time of the

preliminary injunction, the cause of the flood had not

been conclusively established and may or may not have

been the failure of the bulkhead.

Under normal operations, the naturally occurring

minewater, which is highly acidic, is neutralized with an

alkaline agent before it is discharged into receiving

waters. When wastewater is discharged into the waters of

the United States, it must meet effluent limitations and

other conditions established under the Federal Water Pol-

lution Control Act Amendments of 1972, 33 U.S.C. § 1251

et seq., commonly referred to as the Clean Water Act (the

“CWA”). The CWA prohibits “the discharge of any pollu-

tant by any person,” except as permitted by the CWA. Id.

§ 1311(a). The primary regulatory mechanism employed

to control discharges is a permitting system known as the

National Pollutant and Discharge Elimination System

(“NPDES”). A NPDES permit is required before a person

may discharge pollutants into the navigable waters of the

United States. The discharge must be in accordance with

the permit’s conditions, which include effluent limita-

tions. Under 33 U.S.C. § 1342(b), a state may administer

the NPDES permit program within its borders if USEPA

determines that the state program meets federal criteria

set forth in the CWA and implementing regulations.

USEPA approved and authorized the State of Ohio's

NPDES program on March 11, 1974.

Meigs 31 naturally takes in and has the capacity to

treat two to two and one-half million gallons of water per

day. After the flood, an estimated one billion gallons of

water filled Meigs 31. The floodwater contained levels of

iron over 100 times the legal limit as well as excessive

levels of zinc, manganese and copper. Ordinarily, the

water would have to be treated before it could be dis-

charged. The mine’s existing treatment facilities, how-

ever, could not handle such a vast quantity of water

within an acceptable time frame. SOCCO estimated that

the floodwater would have to be evacuated within a

period of two to four months because the water threat-

ened the structural integrity of the mine; otherwise,

Meigs 31 could no longer be mined safely. SOCCO oper-

ates only two mines, Meigs 31 and Meigs Mine Number 2

(“Meigs 2”). The viability of Meigs 2 depends to a great

extent upon the continued operation of Meigs 31.

After reviewing and rejecting various proposals for

the evacuation of the floodwater, SOCCO decided upon a

plan that called for drilling new boreholes and installing

new pumps and pumping untreated and minimally

treated water into surrounding creeks and streams, which

are tributaries of the Ohio River. SOCCO acknowledged

that the discharge would kill all aquatic life, reduce pH

levels and increase sedimentation of iron, zinc, man-

ganese and copper in the receiving waters. The proposed

evacuation was not predicted to have a permanent effect

on the environment; according to SOCCO’s experts, the

aquatic life that would be killed by the discharge would

renew itself within two years. SOCCO also concluded

that because the receiving waters were not used for

human consumption prior to the proposed evacuation,

the pian would not adversely affect human life

SOCCO needed OEPA’s approval to proceed with its

plan, as it included discharges from unpermitted sources

that exceeded the effluent limitations of SOCCO’s NPDES

permit. SOCCO’s NPDES permit provides for emergency

bypasses of permit conditions under certain situations

OEPA found that the situation at Meigs 31 warranted the

requested bypass. On July 26, 1993, the Director of OEPA

issued a written order, the “Directcr’s Final Findings and

Orders” (“DFFO”), authorizing the evacuation plan

Before SOCCO could begin pumping, the ODR

stepped in and prohibited SOCCO from commencing the

plan. The ODR is the Ohio agency responsible for enforc-

ing mining laws and regulations in the state and is the

primary enforcer of the Surface Mining Control and Rec-

lamation Act of 1977 (“SMCRA”), 30 U.S.C. § 1201 et seq

The SMCRA was designed to “establish a nationwide

program to protect society and the environment from the

adverse effects of surface coal mining operations. . Id

§ 1202(a). OSM, which was created by the SMCRA, has

the responsibility of administering, approving, and over-

seeing the implementation of the SMCRA’s programs. Id

§ 1211. Any state that wishes to assume exclusive juris-

diction over implementing and enforcing the SMCRA

may do so subject to federal approval and oversight. Id.

§ 1253(a). Ohio’s regulatory program under the SMCRA

was approved by the Secretary of the Interior on August

16, 1982.

ODR found that significant, imminent environmental

harm or danger to public health or safety would result if

SOCCO’s discharge plan was implemented. On July 27,

1993, the Ohio Reclamation Board of Review (the

“Board”) granted temporary relief from ODR’s order

upon its finding that the plan posed no threat of immi-

nent harm to the environment or the public. SOCCO

again prepared to begin pumping. After its own inspec-

tion, OSM® entered the picture and issued a cessation

order against SOCCO pursuant to 30 U.S.C. § 1271(a)(2).

In contrast to the Board’s conclusions, OSM found that a

threat of significant imminent harm existed and that

pumping should not commence.

B. Procedural Background

On July 29, 1993, SOCCO urgently sought a tempor-

ary restraining order (“TRO”) against OSM:

Immediate relief is requested because, while

the ravaging effects of the mine flood continue,

Defendants have blatantly and irrationally acted

outside their jurisdictional authority by, without

cause, ordering immediate cessation of water

removal. This unlawful action comes at a time

* OSM has the authority to conduct “such inspections of

any surface coal mining and reclamation operations as are nec-

essary to evaluate the administration of approved State pro-

grams....” 30 U.S.C. § 1267(a).

when each passing hour of lost pumping time

could mean the difference between saving and

losing the mine, and ultimately, the entire com-

plex. Shutdown of this Mine in SOCCO's two-

mine complex seriously jeopardizes the eco-

nomic viability of the entire complex. At stake

are the jobs of 820 employees, over 4,900 mine-

support and spin-off jobs and over One Hun-

dred Million Dollars ($100,000,000.00) contrib-

uted annually by SOCCO and its employees to

the local economies of the area.

SOCCO alleged that OSM was acting without authority

because the state had primary enforcement authority

under the SMCRA. The court granted the TRO the nexi

day, finding that since OSM had approved the state pro-

gram, including the procedure of Board review of ODR

decisions, OSM was required to defer to the state's

actions so long as the actions were in accordance with

approved procedures. The order declared OSM’s cessa-

tion order a nullity and restrained OSM from acting in

any manner to stop or interfere with implementation of

the water-removal plan as long as the state program was

being administered in accordance with law.

SOCCO began pumping pursuant to the plan on July

30, 1993. On August 3, USEPA informed SOCCO that

unless it voluntarily ceased pumping so that USEPA

could investigate alleged violations of the CWA, USEPA

was prepared to issue an order under 33 U.S.C. § 1319 to

prevent further pumping. On Auguest 4, SOCCO made a

motion to join USEPA and two of the agency's officials as

defendants in this matter. SOCCO sought and obtained a

TRO restraining USEPA from:

(1) issuing an administrative order against

Southern Ohio Coal Company’s water

removal plan for Meigs Mine No. 31; and

(2) taking any other action aimed to stop,

interfere with or delay Southern Ohio Coal

company’s implementation of its water

removal plan for Meigs Mine No. 31.

SOCCO also filed a motion for preliminary and perma-

nent injunctive relief against OSM and USEPA.

On August 6, 1993, USEPA moved to vacate the TRO

on the grounds that (1) the District Court lacks jurisdic-

tion under the CWA to review administrative orders and

thus plainly lacks jurisdiction to enjoin the issuance of

orders or the taking of other actions associated with

enforcement of the CWA, and (2) SOCCO failed to dem-

onstrate a likelihood of success or a likelihood of irrepar-

able harm in absence of the TRO. On August 19, the court

denied USEPA’s motion to vacate and granted SOCCO'’s

motion for preliminary injunctive relief. Southern Ohio

Coal Co. v. Office of Surface Mining Reclamation & Enforce-

ment, et al., 831 F. Supp. 1324 (S.D. Ohio 1993) (“SOCCO

II”).4 Defendants timely appealed.

4 Defendants moved for a stay of the preliminary injunc-

tion, which this Court granted in part on August 30, 1993. We

ordered the injunction stayed to permit “the USEPA to investi-

gate and make findings with respect to any alleged violation of

the Clean Water Act, and thereafter to act in accordance with its

statutory authority pursuant to 33 U.S.C. § 1319 if it finds that a

violation has occurred.” On September 3, 1993, USEPA, Region

V, formally found a violation at Meigs 31 and issued a cessation

order. Negotiations between the parties failed and SOCCO filed

a motion for “an order requiring defendants U.S. EPA, Carol

Il. OSM

A. Exhaustion Requirement

The District Court addressed the issue of whether it

had jurisdiction to issue the temporary restraining order

and preliminary injunction against OSM in its order

granting the first TRO against OSM. Southern Ohio Coal

Co. v. Office of Surface Mining Reclamation & Enforcement, et

al., 831 F. Supp. 1322, 1324 (S.D. Ohio 1993) (“SOCCO I”).

It found that because “there is a substantial likelihood

that [SOCCO] will prevail on the merits and that the

relief will not adversely affect the public health or safety

or cause significant imminent environmental harm to

land, air, or water resources” it had jurisdiction under 30

U.S.C. § 1276. Section 1276 provides for judicial review of

the Secretary’s decisions by United States District Courts.

The court did not believe that the exhaustion of adminis-

trative remedies was required before jurisdiction under

this section becomes available. We disagree as the District

Court’s interpretation of the statute is directly contrary to

Browner and Valdas Adamkus to show cause why they are

acting contrary to [the District Court’s] order and for an order

nullifying U.S. EPA’s cessation order.” On September 22, 1993,

the District Court granted SOCCO’s show cause motion, nulli-

fied USEPA’s cessation order and enjoined the United States

from filing an enforcement action. USEPA then filed a “motion

for clarification of partial stay pending appeal, for vacation of

inconsistent court orders and for stay of contempt proceedings

pending appeal” with this Court. We granted USEPA’s motion

on September 23, 1993, finding that the District Court is without

jurisdiction to review USEPA’s compliance order prior to the

initiation of a civil enforcement action. See Southern Pines Assocs.

United States, 912 F.2d 713, 716-17 (4th Cir. 1990); Hoffman

Group, Inc. v. EPA, 902 F.2d 567, 569 (7th Cir. 1990).

10a

this Court’s decision in Shawnee Coal Co. v. Andrus, 661

F.2d 1083 (6th Cir. 1981).

In Shawnee Coal, the lower court enjoined the Secre-

tary of the Interior from enforcing cessation orders

against the Shawnee Coal company, which had been

issued pursuant to 30 U.S.C. §§ 1271(a)(3) and 1272(e)(4),

basing its jurisdiction on section 1276. We reversed, hold-

ing that the lower court lacked jurisdiction because the

coal company had failed to exhaust the administrative

remedies provided in 30 U.S.C. § 1275 before seeking

judicial review under section 1276. Id. at 1092. The Shaw-

nee Coal case is controlling here.

Quoting from the Supreme Court in Hodel v. Virginia

Surface Mining and Reclamation Association, 452 U.S. 264,

298-99 (1981), we set forth the relationship between

administrative action and judicial review under the

SMCRA:

A mine operator aggrieved by an immediate

cessation order issued under § 521(a)(2)[, 30

U.S.C. §- 1271(a)(2),] or by a cessation order

issued after a notice of violation and expiration

of an abatement period under § 521(a)(3)[, 30

U.S.C. § 1271(a)(3),] may immediately request

temporary relief from the Secretary, and the Sec-

retary must respond to the request within 5 days

of its receipt. § 525(c), 30 U.S.C. § 12[75]. Section

526(c) of the Act, 30 U.S.C. § 1276(c), authorizes

judicial review of a decision by the Secretary

denying temporary relief. In addition, cessation

orders are subject to informal administrative

review under § 521(a)(5), [30 U.S.C.

§ 1271(a)(5),] and formal administrative review,

including an adjudicatory hearing, under

lla

§ 525(b), 30 U.S.C. § 1275(b). The Secretary's

decision in the formal review proceeding is sub-

ject to judicial review pursuant to § 526{a)(2), 30

U.S.C. § 1276(a).

Shawnee Coal, 661 F.2d at 1091.

Further,

[section] 526(c) authorizes judicial review when

the Secretary fas issued an order or decision

denying temporary relief frorn a cessation order

issued under § 521(a)(2), (3) or (4), 30 U.S.C.

§ 1271(a)(2), (3), or (4). It is not, as Shawnee

contends, an independent jurisdictional grant per-

mitting intervention by a federal court prior to a

party's resort to the administrative process. Rather,

the statute's authorization of judicial review is inex

tricably intertwined with the administrative review

procedures of §& 525(c), 30 U.S.C. § 1275(c).

The ready availability of adequate adminis-

trative relief also dictates that an aggrieved

party exhaust its administrative remedies before

procuring judicial review. Seepe v. Department of

the Navy, 518 F.2d 760, 762 (6th Cir. 1975).

Id. at 1091-92 (emphasis added). SOCCO did not avail

itself of the administrative relief provided by section

1275(c). We must therefore find that there is no basis for

jurisdiction under section 1276(c).

SOCCO attempts to distinguish Shawnee Coal on the

grounds that the case was decided before a permanent

regulatory program had been approved in the State of

Ohio. Under the SMCRA, Congress delineated a two-

tiered regulatory program consisting of an interim phase

‘ > i t , Lt {

1¢ ] { lT the Interim p ‘ VL '

; ware i] i] a yn here VA he re ( )} } ‘ ty; ,

1 1

DNase The re 1S howe oT r T ?

] 7 Bw y ‘

tatute that sections ] » and 1276 apy

nteriy pt 1SeE Mi re ) eT 1c Con rece ;

ntemplated eventual permanent pro

1? 11 ’

hether state or tederally Ontrolied, we | 1 ff

sa) Fe) : tr) erm ‘ + [

; : :

B. Exceptions To The Exhaustion Requirement

Y)C CO) next conte na tf ‘irs { r } t t

' 11 > -4 W—~naA r +; y ] 77 ) ’ ‘ +} +

ue a cessation order under se ion iZ/i(a)(.z ind

the w—Wr here » | 1197) dit r

the court theretore had jurISC] Im tO ¢ ]

T j y ry t t 117 ; r | | } + } 5 be | ~ } 4

ru wWENCY actlon unde! | d / \ | t

1958). In Leedom, the Supreme Court established ¢]

Vnere an agency acts n excess roits ce ited Ay ¢

na contr ry ta } Spe Cit ist mutory pron 1+ r

: 2 j

—

edom, 358 U.S. at 188. Before a federal court n t :

, } “7 oO i + ] sctahlich +1 + +}

In, the aggrievec party must also estabDlis! na

} f { : f tho federal sore ;, 1

absence OF JUrISs¢ iction of the reQe@rai COurs WOUIC

mean ~ ‘a sacrifice or obliteration of a right which Cor

gress had created Id. at 190 (quoting Switchimen

, ' r } 7 mJ , T a A

if North American v. National Mediation Bd., 320 U.S. 29

300) (1943))

We have observed that the Leedom exception to the

exhaustion of administrative remedies doctrine “is a nar

row anomaly reserved for extreme situations. Thus. even

when the issue of agency jurisdiction is raised, the

exhaustion doctrine generally requires that an agency be

ete ¢ I ii] whether it

1 5 1 ( »]

KA I } | at ()\YQ4 / it nan r)

' mt \ ' . | 7

exception can be invoked,

‘ ‘ , rites tly heyvond the realn cyt

ry 1 } 1

tread ti rit ie: use we onclude that OSM

‘ 9 } +} y +} y ly + t rath rity | , +

) e realm OF 1tS autnor;rl !

T t f } 17 lid AJ ¢ do not rear a) tne Ott @T

| , ed to lotorming urhether the v | ,

romleont t | r A ved

] “

Nstrict Court held that OSM had no authority t

] 4A P°7 5 .

ler section 1271(a)(2), where “the approved stat

] | ] . 1, rn "07

Nas uiready assumed jurisdiction ()

{ tate wency 1S acting appropriately yC ) oe f

, + ee ge ye OP The rire F 1d +} + ro tatoo nrin

[ i fe i] COUT roun la (nis tate ea!

1] an | ry 1 '

lirement Whnicn alleye 11 arises fron SeCCTLIOI

to ' ta te wNere the re ’ r¢ 1 rally Ipprove } rate

baci C

+ + ‘ + ¥ + ‘ y ri + 1f an | rrye } be +

‘ x or; t 1 t re ( I yr Treé if } T ) ; t | }

} t yT r {7 T trat ¢ reT f lé TES t rrer ) é

try ths 1imant 110 , Hf F2d if }

¥ } .

ne ourt also held that OSM mMnot t under ect

f the same rea r

[he Congress finds and dé ires tnat

[ because of the diversity in terra mate ( ‘

hemical, and other physical conditior n area ib}

to mining operat the primary governmental respi

4 } . ] a | . y , y wna mmétor

sibility for developin , authorizing, issuing, and enio

y > | . > r ; ry +, '

Ing reguiations for surface mining and ft matio

yperations subject to this chapter should rest with the

tact |

mtates| . }

=_¢ & 1201 (

l4a

[here is nothing in the SMCRA placing such a limita-

tion upon OSM’s authority. Indeed, under section

1271(a)(2), OSM is obligated to issue a cessation order, and

take further action if necessary, where a mine poses “an

imminent danger to the health or safety of the public, or

Is Causing, or can reasonably be expected to cause signifi-

cant, imminent environmental harm to land, air, or water

resources. ... ” States that desire exclusive jurisdiction

over the regulation of coal mining and reclamation opera-

tions may acquire it as provided in section 1253(a), subject

however to sections 1271 and 1273. The fact that a mine is

located in a primacy state is irre:evant to OSM’s duties

under section 1271. As OSM’s actions were not only

within its delegated statutory authority, but were manda-

ted by section 1271(a)(2), the standards of the Leedom

exception have not been met.

We have recognized several other exceptions to the

exhaustion of administrative remedies doctrine:

Where pursuit of administrative remedies does

not serve the purposes behind the exhaustion

doctrine, the courts have allowed a number of

exceptions. Thus, exhaustion is not required if

administrative remedies are inadequate or not

efficacious; where pursuit of administrative

remedies would be a futile gesture; where irrep-

arable injury will result unless immediate judi-

cial review is permitted; or where the

administrative proceeding would be void.

Shawnee Coal, 661 F.2d at 1093 (citations omitted).

SOCCO alleges that the pursuit of administrative

remedies would have been inadequate, futile and would

have resulted in irreparable injury, and that, therefore,

the exhaustion requirement was properly waived. First,

SOCCO asserts that the promise of expedited relief under

section 1275(c) has “proven wholly illusory” because

“significant delays in adjudicating temporary relief appli-

cations on the federal level have proven to be the rule

rather than the exception... . ” SOCCO cites four Interior

Board of Land Appeals (“IBLA”) decisions® as authority

for its allegations. Defendants assert that these decisions

do not support SOCCO’s position because one decision

did not involve the five-day decision requirement and the

complainants waived their right to a five-day decision in

the other three decisions. SOCCO next summarily alleges

that had it engaged the administrative appeal process the

delay involved would have resulted in irreparable harm

to the mine. It was projected that the emptying of the

mine would require from thirty to sixty days of pumping,

SOCCO has pointed to no evidence that an additional

five days of delay would have meant the ruin of the mine.

We find that SOCCO has failed to make a satisfactory

showing of inadequacy, futility or irreparable injury. &

Davis v. Keohane, 835 F.2d 1147, 1148-49 (6th Cir. 1987).

SOCCO also asserts that the District Court had juris-

diction over the dispute because of the constitutional

issues it raised. We have stated that exhaustion of admin-

istrative remedies may not be required in cases of consti-

tutional challenges to an agency’s procedures. Southern

8 Mary Herald v. OSM, 123 IBLA 334 (1992) (5-'/2 months);

Coal Energy, Inc. v. OSM, 119 [BLA 111 (1991) (3-!/2 months);

Muskingum Mining Co. v. OSM, 113 IBLA 352 (1990) (over 5

months); and Valley Camp Coal Co. v. OS M.112 IBLA 19 (1989) (4

vears).

l6a

Ohio Coal Co. v. Donovan, 774 F.2d 693, 702 (6th Cir. 1985),

amended by, 781 F.2d 57 (6th Cir. 1986). In the Fifth Circuit,

“an ‘assertion of [a] constitutional right . . . not transpar-

ently frivolous . . . [gives] the District Court jurisdiction’

to hear an attack on an interlocutory agency order.” Coca-

Cola Co. v. Federal Trade Comm'n, 475 F.2d 299, 303 (5th

Cir.) (quoting Fay v. Douds, 172 F.2d 720 (2d Cir. 1949)),

cert. denied, 414 U.S. 877 (1973).

In the present case, SOCCO has not alleged a color-

able constitutional claim. In its complaint, it asserted that

OSM's actions “deprived [SOCCO] of its property with-

out due process of law in violation of the Fifth Amend-

ment of the United States Constitution.” First, the

Supreme Court has already upheld the Act’s administra-

tive review procedures in a facial due process challenge.

Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452

U.S. 264, 298-303 (1981). As in the present case, Hodel

involved an immediate cessation order issued under sec-

tion 1271(a)(2). The requirement that the Secretary

respond to a request for temporary relief from the order

within five days, 30 U.S.C. § 1275(c), and the provision

for subsequent judicial review, Id. § 1276(c), satisfied the

Court that “the Act’s immediate cessation order provi-

sions comport with the requirements of due process.” Id.

at 303. Second, if SOCCO made a claim under the Takings

Clause of the Fifth Amendment and if the immediate

cessation order “gives rise to a taking, compensation is

available to [SOCCO] under the Tucker Act, 28 U.S.C.

§ 1491(a)(1), and the requirements of the Fifth Amend-

ment are satisfied.” Preseault v. Interstate Commerce

Comm'n, 494 U.S. 1, 4-5 (1990).

17a

SOCCO lastly argues that the court had jurisdiction

under Darby v. Cisneros, 113 S. Ct. 2539 (1993), which held

that where neither the relevant statute nor regulations

require exhaustion of administrative remedies prior to

seeking judicial review, federal courts cannot impose an

exhaustion requirement as a prerequisite to review under

the Administrative Procedures Act (“APA”), 5 U.S.C.

§ 701 et seq. Darby is inapposite to this case because the

SMCRA unambiguously requires resort to the prescribed

administrative review process before seeking judicial

review. The Court noted that in cases such as this that are

not governed by the APA,

appropriate deference to Congress’ power to

prescribe the basic procedural scheme under

which a claim may be heard in a federal court

requires fashioning of exhaustion principles in a

manner consistent with congressional intent and

any applicable statutory scheme.

Darby, 113 S. Ct. at 2548 (quoting McCarthy v. Madigan,

112 S. Ct. 1081, 1086 (1992)).

Given that SOCCO has failed to exhaust its adminis-

trative remedies and that no exception to the exhaustion

doctrine applies, we hold that the District Court erred in

exercising jurisdiction over OSM under section 1276(c).

We further hold that the court did not otherwise have

jurisdiction to enjoin enforcement of the OSM cessation

order.

If. USEPA

[It is important to bear in mind what issue is before

this Court respecting the District Court’s act of enjoining

l8a

USEPA. We must answer whether the District Court had

jurisdiction to enjoin USEPA from issuing an administra-

tive order or taking any other action towards stopping

the pumping at Meigs 31. The issue is not whether

USEPA has “override” authority over OEPA’s decision to

grant SOCCO a bypass pursuant to the bypass provisions

in SOCCO’s NPDES permit. Neither is the propriety of

the bypass decision before us. SOCCO remains free to

raise the OEPA-approved bypass as an affirmative

defense to any future enforcement action USEPA may

bring. The issue before us centers on the power of a

district court to review pre-enforcement action of USEPA.

Both the Fourth and Seventh Circuits have held that

district courts lack jurisdiction to review compliance

orders prior to the commencement of enforcement pro-

ceedings. Southern Pines Assocs. v. United States, 912 F.2d

713, 715-16 (4th Cir. 1990); Hoffman Group Inc. v. EPA, 902

F.2d 567, 569 (7th Cir. 1990). USEPA must either issue a

compliance order or institute a civil action upon notice of

a violation’. 33 U.S.C. § 1319(a)(1), (3). In both Southern

Pines and Hoffman Group, the courts concluded that Con-

gress intended to preclude judicial review of compliance

orders prior to the initiation of a civil action. This conclu-

sion was based on their interpretation of the legislative

history and the structure of the CWA.

* USEPA may also choose to first notify the state of the

violation. If the state fails to take enforcement action within

thirty days of the notification, “the Administrator shall issue [a

compliance order] or shall bring a civil action... . ” 33 U.S.C

§ 1319(a)(1).

LYa

The enforcement provisions of the CWA were mod-

eled after the enforcement provisions of the Clean Air Act

(“CAA”), 42 U.S.C. § 7401 et seq. Southern Pines, 912 F.2d

at 716 (citing S.Rep. No. 92-414, 92d Cong., Ist Sess. 63

(1971), reprinted in, 1972 U S.Code Cong. & Admin.

News pp. 3668, 3730). A review of the caselaw under the

CAA reveals the uniform holding that judicial review of

pre-enforcement orders, similar to those issued under the

CWA, is not available. Id. (citing Union Elec. Co. v. EPA

593 F2d 299, 304 (8th Cir.), cert. denied, 444 U.S. 839

(1979); Lloyd A. Fry Roofing Co. v. EPA, 554 F.2d 885 (8th

Cir. 1977)). The same is true of pre-enforcement action

under CERCLA, the Comprehensive Environmental

Response, Compensation, and Liability Act, 42 U.S.C.

§ 9601 et seq. Id. (citing Wagner Seed Co. v. Daggett, 800

F.2d 310, 315 (2d Cir. 1986); Wheaton Indus. v. EPA, 781

F.2d 354, 356-57 (3d Cir. 1986); United States v. Outboard

Marine Corp. 789 F.2d 497, 505-06 (7th Cir.), cert. denied

479 U.S. 961 (1986); Barnes v. United States District Court,

800 F.2d 822 (9th Cir. 1986); J.V. Peters & Co. v. EPA, 767

F.2d 263, 264-65 (6th Cir. 1985)).!° After reviewing these

statutes, the Fourth Circuit concluded: “The structure of

these environmental statutes indicates that Congress

intended to allow EPA to act to address environmental

problems quickly and without becoming immediately

entangled in litigation.” Southern Pines, 912 F.2d at 716.

In contrast to the preclusion of review of compliance

orders, the CWA explicitly provides for judicial review of

10 Since 1986, CERCLA has included a provision specifi

cally precluding judicial review of pre-enforcement action. 42

U.S.C. § 9613(h).

20a

the assessment of administrative penalties by USEPA. 33

U.S.C. § 1319(g)(8). The Seventh Circuit believed that this

express provision for judicial review, in combination with

the absence of a parallel provision for review of compli-

ance orders, was further support for its holding.

In drafting the Clean Water Act, Congress

chose to make assessed administrative penalties

subject to review while at the same time it chose

not to make a compliance order judicially

reviewable unless the EPA decides to bring a

civil suit to enforce it... . Having provided a

detailed mechanism for judicial consideration of

a compliance order via an enforcement proceed-

ing, Congress has impliedly precluded judicial

review of a compliance order except in an

enforcement proceeding.

Hoffman Group, 902 F.2d at 569.

Congress provided one forum in which to address all

issues, including constitutional challenges, raised by the

issuance of a compliance order: an enforcement proceed-

ing. “And, since the enforcement proceeding is the only

forum for enjoining violations of the Act, [an alleged

violator] cannot be compelled to comply with the Com-

pliance Order without an opportunity to challenge the

Order’s validity in court.” Id. The potential liability of an

alleged violator is not affected by the holding that no pre-

enforcement judicial review of compliance orders is avail-

able. USEPA may bring an enforcement action without

first issuing a compliance order. In an enforcement action,

a court may issue an injunction or impose civil penalties

of up to $25,000 per day for each violation of the Act, a

permit or a compliance order. 33 U.S.C. §§ 1319(b),

1319(d). A violator is subject to the same injunctive

orders and penalties whether or not USEPA issues a

compliance order.

Today we join the Fourth and Seventh Circuits in

holding that district courts are without jurisdiction to

review pre-enforcement compliance orders issued under

the CWA. This holding applies not only to orders issued

once a violation is discovered, but also to the investiga-

tory work necessary to determine whether a violation

exists. Here, therefore, the District Court lacked jurisdic-

tion to enjoin USEPA from investigating the situation at

Meigs 31. As the court itself acknowledged, “{ujndoub-

tedly, the CWA vests in USEPA the authority to perform

an investigation.” SOCCO II, 831 F. Supp. at 1335. The

court was likewise without jurisdiction to enjoin the issu

ance of an order given that it is without jurisdiction to

review a compliance order.

SOCCO argues that they are not challenging pre-

enforcement action, but instead are challenging the

authority of USEPA to act at all under the circumstances

of this case. This argument was made and rejected in

Southern Pines and in a recent Seventh Circuit decision 1n

the Hoffman Group line, Rueth v. EPA, 13 F.3d 227 (7th Cir.

1993). Both courts were unpersuaded, as are we, that a

jurisdictional challenge to the agency’s issuance of an

order is distinguishable from challenges to the order

itself, which, as we have just held, can only be had in an

enforcement proceeding. Both challenges interfere with

USEPA’s ability to quickly respond to the environmental!

problems and both may be dealt with in an enforcement

action. The Rueth court acknowledged that “it is not

inconceivable that the EPA .. . might completely overex-

tend [its] authority. In such a case, [the court would] not

oie)

4ia

hesitate to intervene in pre-enforcement activity, but this

is not the case. ...” Rueth, 13 F.3d at __. The District

Court believed that the instant actions of USEPA pre-

sented such a case. We disagree

First, in light of our holding that the CWA clearly

precluded judicial review of pre-enforcement action, the

District Court’s reliance upon Abbott Laboratories v. Gard-

ner, 387 U.S. 136 (1967) and Darby v. Cisneros, 113 S. Ct

2539 (1993), for its exercise of jurisdiction is misplaced.

The court also discussed the recognized jurisdiction of

federal courts to enjoin unauthorized agency action

under the Leedom doctrine and then faulted USEPA for

failing to direct the court “to a single case holding that

this Court does not have jurisdiction to consider whether

a federal agency’s action or threatened action is beyond

its jurisdiction.” SOCCO II, 831 F.Supp. at 1332. What the

court fails to appreciate is that the Leedom doctrine may

only be invoked under severely limited circumstances. As

defendants state, the court seemed to be operating under

the assumption that “the mere assertion of a challenge to

agency jurisdiction suf. ¢d to invoke the court's jurisdic-

tion under Leedom.” This assumption is wrong. As dis-

cussed above, Leedom is implicated only when an

agency’s action (or threatened action) is manifestly out-

side of its delineated authority.

Here, USEPA’s threatened action comes nowhere

close to the unauthorized action contemplated by Leedom

and its progeny. The CWA’s structure bears striking sim-

ilarities to that of the SMCRA. Like the SMCRA, the CWA

sets up a system of “cooperative federalism,” in which

states may choose to be primarily responsible for running

federally-approved programs. 33 U.S.C. § 1342. USEPA

™m

ay)

approved Ohio’s NPDES permitting system including its

bypass provision; Ohio is thus a primacy state. Because a

state may adopt permit conditions more stringent than

federally required, 33 U.S.C. § 1370(1), it may choose to

not include a bypass provision in a permit. Where it does

include a bypass provision, such provision must meet the

standards set forth in 40 C.F.R. § 122.41(m). Contrary to

the District Court’s interpretation of the CWA’s regula-

tory scheme, USEPA retains independent enforcement

authority in primacy states, 33 U.S.C. § 1342(1), as does

OSM under the SMCRA. Nothing in regulation 122.41(m)

changes this residual authority in the area of bypass

decisions made by state regulators in primacy states

Under both the CWA and the SMCRA, the responsible

federal agency retains OV ersight power to ensure compli-

ance with federal standards. As we discussed above

whenever USEPA learns that a person is in violation of

the CWA or a NPDES permit, it must either issue a

compliance order or bring a civil enforcement action

seeking appropriate relief. 33 U.S.C § 1319(a). The Dis-

trict Court reasoned that because USEPA had not found a

violation of the CWA, it was not required to act under

section 1319. It then analyzed whether USEPA had any

authority to act outside of section 1319. The court seems

to be saying that while USEPA has jurisdiction to enjoin

or sanction violations of the CWA, it has no investigatory

authority to determine whether a violation has occurred

in the first instance. We find that the grant of enforcement

authority in section 1319 presupposes the authority to

investigate alleged violations of the CWA. USEPA’'s

threatened action was supported by statutory authority.

24a

We therefore hold that the District Court erred in finding

it had jurisdiction under t!.e Leedom doctrine.

IV.

Accordingly, the judgment of the District Court

enjoined the actions and threatened actions of OSM and

USEPA is REVERSED and the case is REMANDED with

instructions to dismiss for lack of jurisdiction.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Southern Ohio Coal Company,

Case No.

C2-93-751

Plaintiff,

VS.

Office of Surface Mining

— — — ~~ ~ —

Reclamation and Enforcement,

Department of the Interior, et al.,

Defendants. )

PRELIMINARY INJUNCTION ORDER

(Filed Aug. 19, 1993)

[his matter is currently before the Court for consid-

eration of the motion of the United States Environmental

Protection Agency (hereinafter referred to as “USEPA”) to

vacate this Court’s August 4, 1993 Order temporarily

restraining USEPA from acting in any manner with

regard to the flooding at Plaintiff’s Meigs Mine Number

31 (hereinafter referred to as “Meigs 31”) in Meigs

County, Ohio. In this Order, the Court also addresses

Plaintiff’s motion for an order preliminarily enjoining

USEPA and the Office of Surface Mining Reclamation and

Enforcement, Department of the Interior (hereinafter

referred to as “OSM”) from acting to cause a cessation or

delay of the evacuation of water from Meigs 31, unless

the Ohio agencies approved to enforce the applicable

federal and state statutes fail to act as charged by these

Statutes.

26a

BACKGROUND

Prior to July 11, 1993, Plaintiff ceased mining opera-

tions in its Raccoon Mine Number 3 (hereinafter referred

to as “Raccoon 3”). Raccoon 3 is adjacent to Meigs 31 and

is at a higher underground elevation than Meigs 31. In

order to prevent naturally occurring water in Raccoon 3

from flooding into Meigs 31 through the opening that

connects the two mines and in order to permit pumping

of such naturally occurring water from Meigs 31 into

Raccoon 3, Plaintiff constructed a bulkhead between the

two mines. That bulkhead was designed to completely

seal the opening between the two mines, except to permit

pumping water from Meigs 31 to Raccoon 3. Plaintiff

caused the bulkhead to be designed to a strength of ten

times the maximum pyessure created by the water in

Raccoon 3 at the opening between the two mines.

On July 11, 1993, Meigs 31 was inundated with an

estimated one billion gallons of water from Raccoon 3. As

of August 12, 1993, the cause of the inundation had not

been conclusively established and may or may not have

been a failure of the bulkhead. Because the water from

Raccoon 3 occupied approximately thirty to fifty percent

of Meigs 31, Plaintiff immediately began investigating

alternatives for evacuating Meigs 31.

Plaintiff’s alternatives for evacuating Meigs 31 were

limited by three primary factors. The first factor compli-

cating evacuation was that the normal method of evacuat-

ing water from Meigs 31 was through the bulkhead into

Raccoon 3. Because the structural integrity of the bulk-

head could not be ascertained, Plaintiff could not rely

pe)

upon the bulkhead or Raccoon 3 as a repository for water

evacuation. The second complicating factor was the vol-

ume of water occupying Meigs 31. As of July 11, 1993,

Plaintiff did not have a method for evacuating more than

a few million gallons of water per day from Meigs 31.

Accordingly, new methods were required for the evacua-

tion. Finally, the chemical constitution of the water raised

environmental concerns related to the evacuation.

The water occupying Meigs 31 contained higher

levels of iron, manganese, copper, and zinc as well as a

lower PH than normally occurs in the natural waterways

in the area around Meigs 31. The level of those elements

and the lower PH would, in normal conditions and pur-

suant to applicable state and federal laws and regula-

tions, make treatment of the water necessary before it

could be released into local streams. Because of the vol-

ume of the water, however, treatment of all of the water

by Plaintiff’s existing treatment facilities was not practi-

cable.

Of course, treatment by the existing facilities was

possible; however, due to the volume, such a process

would have consumed a great deal of time. The mine

naturally makes two to two and one-half million gallons

of water per day. Therefore, the rate at which the mine

naturally makes water would have prevented any genu-

ine progress against the unanticipated volume of the

flood. Essentially, the volume of water which plaintiff

was equipped to treat was equal to the normally gener-

ated amount of mine seepage. Time became an enemy of

Plaintiff, because Plaintiff’s analysis indicated that unless

the water could be evacuated within, at most, a period of

two to four months, Meigs 31 could no longer be mined

safely. The basis for that conclusion was that the water

threatened the structural integrity of the mine. In time,

the roof and wall supports within the mine would deteri-

orate to a point where safety within the mine could not be

ensured. Furthermore, methane naturally develops

within the mine, and Plaintiff's ability to evacuate meth-

ane from Meigs 31 was eliminated by the inundation on

July 11, 1993. Until the water could be evacuated, Plaintiff

would be unable to evacuate methane from Meigs 31 and

it would build to levels that are incompatible with human

occupation of the mine. After a certain amount of time,

Plaintiff had good cause to believe that it would no

longer be able to make the mine safe for workers who

would enter the mine.

Plaintiff operates only two mines, Meigs 31 and the

adjacent Meigs Mine Number 2 (hereinafter referred to as

“Meigs 2”). The viability of Meigs 2 depends to a great

extent upon the continued operation of Meigs 31. Accord-

ingly, Plaintiff’s entire operation in Meigs County, one of

the largest in the United States, was threatened by the

water occupying Meigs 31.

After investigating several alternatives with private

consultants, plaintiff settled upon an evacuation method

that included the drilling of bore holes at various loca-

tions and the evacuation of water, without normal treat-

ment precautions, into streams that feed into the Ohio

River. Plaintiff determined that the effects of such an

evacuation would include a total or nearly total kill of

aquatic life in the relevant streams, a reduction in PH and

some increase in sedimentation of iron, zinc, copper, and

manganese in these streams and perhaps the Ohio River.

29a

Plaintiff concluded that the proposed evacuation

plan would have no permanent effects on the environ-

ment, because the only affected life would renew itself

within one to two years. Further, Plaintiff concluded,

based upon the fact that the water in the relevant water-

ways prior to the proposed evacuation was not potable

and upon Plaintiff’s investigation into existing uses of the

water in the streams, that human life would not be

affected. Plaintiff recognized that some livestock might

drink water from the relevant streams and offered to take

any necessary precautions, at Plaintiff's expense, to pre-

vent damage to such livestock. Further, Plaintiff offered

to provide water to any other person who claimed to use

water from the relevant streams for other purposes.

Plaintiff proposed numerous safeguards against per-

manent ecological damage. Plaintiff proposed to pump

water from its treatment facility, after the evacuation of

Meigs 31, at a higher than normal rate, in an attempt to

force sediment downstream to and through the Ohio

River. Plaintiff caused chemical analysis to be performed

of the natural rate of sedimentation, comparison of the

rate of natural sedimentation versus that resulting from

the proposed evacuation, and the possible effects of such

sedimentation. Plaintiff concluded that the long-term

effects of the evacuation would be minimal.

Plaintiff had rejected other alternatives for evacua-

tion prior to settling on the method for evacuation that it

proposed. Plaintiff rejected all methods that depended

upon expanding existing treatment facilities for three rea-

sons. The first such reason was that Plaintiff had already

sought approval for expansion from the appropriate gov-

erning bodies and, after waiting for as much as three

30a

years, had not received such approval. Second, Plaintiff's

investigation resulted in the conclusion that existing facil-

ities could not be expanded to treat more than approx-

imately 23 percent of the water in Meigs 31. Finally,

Plaintiff concluded that the necessary expansions would

require at least several months, a delay that would almost

certainly render the mine unworkable.

Plaintiff also rejected in situ treatment of the water. In

situ treatment would have involved the addition of caus-

tic substances to the water in Meigs 31 in order to cause a

fallout of the offending elements in the water. In situ

treatment would, of course, create a sediment that would

be left in Meigs 31 after evacuation of the water thus

treated. Plaintiff estimated that the amount of sediment

(also referred to as “residue” or “sludge”) left behind to

be 75 to one hundred million gallons. The primary disad-

vantage to in situ treatment was the evacuation and

placement of that sediment. Plaintiff’s existing facilities

would not have accommodated that volume of residue.

Further, Plaintiff could not practicably create additional

storage facilities for the sludge in compliance with exis-

ting approval from governing bodies. Accordingly, Plain-

tiff rejected the in situ treatment alternative.

After rejecting, for various reasons, all alternatives,

Plaintiff settled upon the evacuation plan that was even-

tually proposed. Plaintiff’s primary consideration in that

choice was time. Plaintiff recognized that other alterna-

tives might eventually lead to the complete evacuation of

the mine. However, because Plaintiff’s goal was to make

the mine workable again, none of the rejected alternatives

was-deemed viaole.

31a

Consistent with the provisions of its NPDES permit,

issued by the Ohio Environmental Protection Agency

(hereinafter referred to as “OEPA”), Plaintiff sought

approval of its emergency bypass plan from OEPA. The

proposed plan was an emergency bypass plan in that,

pursuant to the plan, Plaintiff sought to bypass its nor-

mally used treatment facilities. Plaintiff's NPDES permit

provided for emergency bypass in certain situations, and

OEPA found that the existing situation warranted emer-

gency bypass. OEPA approved the proposed plan. Speci-

fically, the Director of OEPA concluded that Plaintiff's

plan to pump Meigs 31 was permissible under Plaintiff’s

NPDES permit. On July 26, 1993, the Director of OEPA

issued Findings and an Order authorizing the plan.

Before Plaintiff began pumping, however, the Ohio

“Division of Reclamation issued an order prohibiting

Plaintiff from commencing pumping. The Ohio Division

of Reclamation is the state agency charged with enforcing

mining laws and regulations in Ohio and is approved by

OSM as the primary enforcement body for federal mining

and reclamation laws. On July 27, 1993, upon reviewing

the Ohio Division of Reclamation’s order, the Ohio Recla-

mation Board of Review granted temporary relief from

that order. The Board of Review found that Plaintiff had

demonstrated a substantial likelihood of success on the

merits and that no significant imminent environmental

harm or danger to public health or safety would result

from the discharge. As a result of the temporary relief

granted by the Ohio Reclamation Board of Review, Plain-

tiff again prepared to commence pumping.

Before pumping began, OSM issued a cessation

order, which had the effect of setting aside the findings of

32a

the Ohio Reclamation Board of Review concerning likeli-

hood of harm. Based upon the same evidence that was

before the Ohio Reclamation Board of Review, OSM con-

cluded that a threat of significant imminent harm existed

and that pumping should not commence.

On July 29, 1993, Plaintiff commenced this action,

seeking an order temporarily restraining OSM from

duplicating the administrative process previously com-

menced in the approved Ohio agencies. On July 30, 1993,

this Court conducted a hearing on that motion. At the

conclusion of the arguments of the parties on that date,

this Court issued the requested order. The Court found

that OSM had acted without jurisdiction. The basis of this

Court’s issuance of the July 30, 1993 Order was that OSM

was required by the applicable federal law and regula-

tions to consider for approval state agencies to be pri-

mary enforcers of federal mining laws and regulations

and, where appropriate, to approve those agencies. OSM

had considered and approved the Ohio Division of Recla-

mation as the primary enforcement body in Ohio. Having

approved the state agency, OSM was required by iaw to

defer to that agency in any situation where that agency

was acting in accordance with prescribed procedure.

At the July 30, 1993 hearing, OSM had argued against

the issuance of a temporary restraining order. OSM based

its arguments solely on 30 U.S.C. §1271(a)(1), which

allows OSM to act in an emergency situation, even when

a parallel agency has been approved, when OSM is in a

position to act first. OSM failed to identify any provision

of federal laws that would permit OSM to act in an

emergency, or any other situation where the parallel state

agency is already active and is acting in accordance with

33a

the statutorily prescribed procedure. OSM failed to estab-

lish that the approved state agency was acting outside the

prescribed procedures. The Court found, specifically, that

the state agency had made the appropriate analysis. That

agency had, of course, reached a different conclusion

from that reached by OSM. Having determined that OSM

had acted without jurisdiction, the Court held that OSM’s

cessation order was a nullity and restrained OSM from

acting further as long as the approved state agency was

acting in accordance with law.

Plaintiff began pumping from Meigs 31, pursuant to

the plan approved by OEPA, on July 30, 1993. On August

3, 1993, however, a second federal agency, USEPA,

informed Plaintiff that it would issue an administrative

order to prevent further pumping until USEPA could

further investigate the proposed plan and possible alter-

natives. USEPA indicated to Plaintiff that it would issue

the administrative order on August 4, 1993.

On August 4, 1993, Plaintiff moved this Court for an

order joining USEPA and certain of its officials as parties

defendant in this matter and temporarily restraining

USEPA from acting to prevent evacuation of Meigs 31.

After a telephone hearing conducted by the Court on that

date, the Court issued the requested order.

In that Order, issued on August 4, the Court found

that OEPA had concluded that the proposed plan met the

prerequisites under Plaintiff's NPDES permit for emer-

gency bypass discharge. The Court further found that

Plaintiff had agreed to comply with the conditions pre-

scribed by OEPA for approval of the plan. The Court also

34 a

found that irreparable injury to Plaintiff would result

from the failure of the Court to issue the requested order.

On August 4, 1993, Plaintiff also sought preliminary

injunctive relief from any further attempts by OSM or

USEPA to interfere in the ongoing proceedings in their

respective parallel state agencies, as long as those agen-

cies are acting in accordance with applicable law. In its

August 4 Order, the Court scheduled the hearing on the

motion for a preliminary injunction for August 11, 1993.

The Court also issued an Order on August 4, 1993 joining

USEPA and certain of its officials as parties defendant in

this matter.

On August 6, 1993, USEPA moved this Court for an

order vacating its August 4 Order temporarily restraining

USEPA’s exercise of authority at Meigs 31. The primary

basis for USEPA’s motion was that this Court had acted

without jurisdiction in issuing its August 4 Order,

because administrative orders of USEPA are not review-

able, under any circumstances, by the federal courts.

USEPA contends that the courts may only review admin-

istratively imposed civil penalties. These penalties may

be imposed or not imposed in the sole discretion of the

USEPA. In the alternative, if SOCCO would choose to

violate an administrative order to cease evacuation of the

mine, USEPA could seek injunctive enforcement through

the courts and, thereby, trigger judicial review. Again, the

decision to enforce an administrative order through the

courts is wholly discretionary with USEPA. In both sce-

narios, the USEPA can choose to exercise its unfettered

discretion to act, at any time within four years of the

events giving rise to administrative action.

35a

This Court heard arguments on USEPA’s motion at

the hearing commencing on August 11, 1993.

ANALYSIS

The two motions presently before the Court raise two

issues. Those issues are as follows:

1.) Whether this Court has jurisdiction to con-

sider Plaintiff’s requests for temporary and

preliminary relief against USEPA; and

2.) Whether preliminary injunctive relief is

warranted against OSM and USEPA.

1. The Jurisdiction of this Court.

USEPA has alleged that this Court did not have juris-

diction to issue the August 4 Order temporarily restrain-

ing USEPA from interfering with OEPA’s exercise of

authority at Meigs 31. Further, in response to Plaintift’s

motion for a preliminary injunction, USEPA argues that

the federal courts never have jurisdiction to review

administrative orders of USEPA. The Court, therefore,

must address the question of its own jurisdiction before

considering the merits of Plaintiff's request for injunctive

relief. Should the Court determine that it is without juris-

diction to issue restraining orders or to grant injunctive

relief against USEPA, the Court will vacate its August 4

Order and deny the instant motion for preliminary

injunction as it pertains to USEPA.

Although OSM had not formally sought reconsidera-

tion of this Court’s July 30 Order restraining it from

exercising authority at Meigs 31 unless the approved

36a

state agency fails to act in accordance with law, neverthe-

less, by agreement of the parties and with the consent of

the Court during the course of this hearing, OSM has

been permitted to adduce evidence upon the issue of

whether a preliminary injunction should issue as to it.

The Court has considered the arguments put forth by

USEPA in its memoranda opposing the relief requested

by Plaintiff and in the hearing where the Court consid-

ered the motion for preliminary injunction. Based upon

the evidence adduced and the arguments of counsel, the

Court can only conclude that USEPA misunderstands the

basis for this Court’s exercise of jurisdiction in this mat-

ter. USEPA consistently argues that this Court has no

jurisdiction to review administrative orders of USEPA.

While that premise is itself questionable and clearly an

overly broad statement of the law, it also assumes that the

proceeding in which this Court has been involved since

August 4, 1993 is a review of a USEPA administrative

order. Of course, that has not been the nature of the

proceeding.

On August 4, Plaintiff came to this Court seeking

relief from threatened exercise of authority by USEPA

that Plaintiff contended was outside the jurisdiction of

USEPA. This Court is not, then, reviewing the merits of

any orders by USEPA. Rather, the Court is considering

whether USEPA has authority to act in any fashion in the

ongoing situation at Meigs 31.

The courts have long recognized that the federal

courts may properly consider the authority of a federal

agency and restrain and enjoin the exercise of that

authority when it is outside the jurisdiction of the agency.

37a

See, Leedom v. Kyne, 358 U.S. 184, 189 (1958); Central

Hudson Gas & Electric Corp. v. U.S. EPA, 587 F.2d 549, 555

(2d Cir. 1978); Coca-Cola Co. v. Federal Trade Commission,

475 F.2d 299, 303 (5th Cir. 1973), cert. denied 414 U.S. 877

(1973). The Supreme Court recognized that the federal

courts must act to restrain federal agency action that is

beyond the jurisdiction of the agency when the agency

action purports to mandate immediate action in compli-

ance to avoid serious criminal and civil sanctions. Abbott

Laboratories v. Gardner, 387 U.S. 136, 152-54 (1967). Obvi-

ously, the basis for federal court jurisdiction in such a

situation is that the harm resulting from the agency's

unlawful exercise of jurisdiction may be irreparable if its

actions or proposed actions are not subject to review.

This Court has previously acted to enjoin an action of

a federal agency when that agency acted or threatened to

act beyond its authority. In Claridge House, Inc. v. U.S.

Department of Health and Human Services, 795 F.Supp. 1393,

1401 (S.D. Ohio 1991) (Holschuh, Chief J.), this Court

found that the federal courts have jurisdiction to enjoin

the Secretary of Health and Human Services from acting

outside the scope of authority granted to him by federal

laws and regulations. This Court determined, in Claridge

House, that prompt action by the federal courts to enjoin

agency action outside the agency’s jurisdiction is an

appropriate and legal exercise of jurisdiction by the fed-

eral courts.

In another recent case, this Court determined that an

exercise of federal court jurisdiction similar to that

sought by Plaintiff in this case is consistent with the

federal question jurisdiction of the federal courts. City of

Reynoldsburg v. Carol M. Browner, Administrator, U.S. EPA,

38a

et al., Case No. C-2-92-882, slip op. (S.D. Ohio June 24,

1993) (Smith, J.). This Court exercises federal question

jurisdiction pursuant to 28 U.S.C. §1331 whenever the

question presented depends for resolution upon construc-

tion or application of federal law. Id. at 8 (citing Smith v.

Kansas City Title & Trust Co., 255 U.S. 180, 199 (1921)).

USEPA has not addressed the issue of this Court's

jurisdiction to review an exercise of authority by a federal

agency, as opposed to the order resulting from that exer-

cise of authority. None of the cases that USEPA relies

upon address that issue. USEPA relies primarily upon

two recent appellate court cases. Southern Pines Associates

v. United States, 912 F.2d 713, 716-17 (4th Cir. 1990); Hoff-

man Group, Inc.v. EPA, 902 F.2d 567, 569 (7th Cir. 1990).

These cases address the question of whether the federal

courts may review federal agency orders prohibiting

unlicensed or unapproved development of protected wet-

lands areas. In those cases, no question was before the

deciding courts regarding the jurisdiction of the acting

federal agency. Inasmuch as they do not address the issue

that is before this Court, the cases cited by USEPA are

unpersuasive. USEPA has not identified a single case that

stands for the proposition that this Court may not review

an exercise of agency authority that is allegedly beyond

the jurisdiction of the agency.

The overwhelming weight of authority supports this

Court’s exercise of jurisdiction in this case. The federal

courts are granted jurisdiction, pursuant to 28 U.S.C.

§1331, to consider federal questions. Federal question

jurisdiction exists where a question before the Court

involves a substantial federal element. See, Gully v. First

National Bank, 299 U.S. 109, 112 (1929). The question of

39a

whether a federal agency is acting outside its statutory

authority ig a federal question. See, ¢.g., Leedom v. Kyne,

supra.

This Court recognizes the wisdom of courts that have

declined to interfere during the pendency of agency pro-

ceedings where the purpose of that intervention would be

to second-guess the decisions of those agencies. Contrary

to USEPA’s assertions, however, the federal courts have

not uniformly found that approach to be mandated. In

fact, the weight of authority holds that federal courts do

have jurisdiction to review agency orders, including

administrative orders. The courts have been particularly

willing to exercise jurisdiction where administrative

remedies are inadequate or will be rendered meaningless

by delay. See, e.g., Walker v. Southern Railway, 385 U.S. 196

(1966).

In Abbott Laboratories, supra, and Darby v. Cisneros, 61

U.S.L.W. 4679 (June 21, 1993), the Supreme Court has

clarified the jurisdiction of the federal courts to review

agency orders. The Court has reasoned that judicial

review is permissible and appropriate unless Congress

has by explicit language precluded such review. Abbott

Laboratories, 387 U.S. at 141

The Court notes that USEPA has argued that this

Court does not have jurisdiction over final decisions from

USEPA. USEPA has argued that this Court’s jurisdiction

is limited to enforcement proceedings upon a violation of

an administrative order. The thrust of USEPA’s argument

is that Plaintiff could only obtain judicial review of

40a

USEPA’s cessation order by violating that order. Author-

ity, logic, and the statutes providing the basis for this

Court’s urisdiction contradict USEPA’s contentions.

The Court concludes that it has properly exercised

jurisdiction in this case. Plaintiff has supported its argu

ment in favor of jurisdiction with ample citations to rele-

vant authority. USEPA, on the other hand, has failed to

address the real issue before the Court. The Court has not

been directed to a single case holding that this Court does

not have jurisdiction to consider whether a federal

agency’s action or threatened action ts beyond its juris-

diction. On the contrary, courts, including the United

States Supreme Court and this Court, have unanimously

recognized that the federal courts do have such jurisdic-

tion

USEPA has attempted to construe the issue at hand

as whether this Court may review an administrative

order of USEPA. That is clearly not the issue in this

proceeding. Nevertheless, the Court finds that USEPA has

failed to support its contention that this Court may never

review an order of USEPA unless the party whose actions

are affected by that order violates the order and USEPA

comes to the Court for enforcement or the USEPA issues

an administrative civil penalty which is judicially review

able. For that reason and those set forth above, this Court

finds that it acted within its jurisdiction in issuing its

\ugust 4 Order temporarily restraining USEPA’s actions

lhe USEPA and OSM have cited additional cases as

supplemental authorities in support of their Memoran-

dum in Opposition to Plaintiff's Motion for Preliminary

Injunction. First cited is Board of Governors of Federal

4la

Reserve System v. MCorp Financial, Inc., 112 S.Ct. 459

(1991). This case turned upon the question of whether the

Bankruptcy Code’s automatic stay may authorize a dis-

trict court to enjoin administrative proceedings against a

debtor for violations of regulations occurring after the

debtor had filed its bankruptcy petition. Secondarily, the

case addresses the particular provisions of the Financial

Institutions Supervisory Act which specifically preclude

judicial review of pending Board administrative actions.

MCorp does not address the question of judicial review of

an alleged infringement by a federal agency on a Plain-

tiff’s rights as posited by Defendants. Moreover, MCorp

does not involve a situation of irreparable harm to the

debtor nor a total deprivation of meaningful and ade-

quate means of vindicating its constitutional and statu-

tory rights. Justice Stevens distinguished this case from

Leedom, supra by noting that the debtor has a means

within its control to protect and enforce its statutory

rights and a clear indication in the statute as to the

Congressional intent to preclude judicial review. In our

case, Plaintiff has no means within tts contro! to protect

and enforce its constitutional and statutory rights without

recourse to this Court nor is there a clear expression of

Congressional intent to preclude judicial review of ultra

vires administrative action in either the CWA or the

Congressional record.

The second cited case is Ewing v. Mytinger & Cassel

berry, 339 U.S. 594 (1950). Its holding, by its own terms ts

limited to situations where “only property rights are con-

cerned.” Id at 599. This Court has addressed the fallacy ot

this characterization of the SOCCO’s position at length

elsewhere in this Order and will not restate its findings

42a

here Unquestionably far more 1S implicated in our case

than mere property rights. Ewing is wholly inapposite.

The third cited case is Greater Detroit Resource Recov

ery Authority v. U.S.E.P.A., 916 F.2d 317 (6th Cir. 1990), a

decision authored by a colleague of this Court. It, too, 1s

inapposite because it deals with a specific statutory pro-

vision vesting exclusive jurisdiction in the Court of!

Appeals to review final administrative action under the

Clean Air Act. The Court did, however, note that to the

extent a portion of the agency's action was not final, it

might be subject to district court review pursuant to the

Leedom exception, if there had been a manifest infringe-

ment of substantial rights irremediable by the statutorily

prescribed method of review. Id at 323. Without belabor

ing the point, this Court finds the reiteration of the facts

and the analysis of the dissent in Greater Detroit to be

more persuasive and apposite to the present case.

The fourth case cited is United States v. Town of Lowell

Indiana, 637 F.Supp. 254 (N.D Ind. 1985). Lowell deals

with undisputed violations of an NPDES permit and

although the state agency had entered into a consent

decree with the permit holder regarding some violations

the record shows that violations continued thereafter. In

Lowell, the state agency had failed to take action in regard

to violations subsequent to the consent decree. Add

tionally, the Court found that none of the exigencies

contemplated under the NPDES emergency bypass provi

sions existed in that case. Since the facts of Lowell difter

significantly from our case, it too 1s inapposite

The final case cited by Defendants is Southern O

Coal Co. v. Marshall, 464 F.Supp 450 (S.D. Ohio 1978)

43a

aff’d. 774 F.2d 694 (6th Cir. 1985). Amazingly, Marshall

stands for precisely the opposite of the Defendants’

stated contentions. It holds that the Southern Ohio Coal

Co. (the same Plaintiff as in the case at bar) was entitled

to an injunction to prevent the enforcement of an order of

temporary reinstatement until the coal company had been

afforded notice and an opportunity to be heard with

respect thereto. Although the federal Mine Safety and

Health Administration argued that the Court lacked juris-

diction “because the statutory framework establishes

administrative proceedings ultimately terminating in

judicial review in the Court of Appeals,” id at 454, the

Court found that it did have jurisdiction stating that the

very administrative procedures by which Plaintiff would

have been forced to act and which Defendants contended

must be exhausted caused a present and continuing con-

stitutional deprivation. The Court concluded that Plain-

tiff’s procedural due process claim properly invoke¢ the

jurisdiction of the Court

judge Kinneary astutely observed in Marshall that the

‘issue before him centered upon Plaintiff’s rights prior to

the issuance of the order and the fundamental require-

ment of due process to be heard at a meaningful time and

in a meaningful manner (cite omitted) He wrote that

“It]he Supreme Court. has set out three specific facters to

be considered in determining whether the procedures

followed in this action are constitutionally sufficient:

First, the private interest that will be affected by

the official action; second, the risk of an erro

neous deprivation of such interest through the

procedures used and the probable value, if any

44a

of additional or substitute procedural safe-

guards; and finally, the Government’s interest

including the function involved and the fiscal

and administrative burdens that the additional

or substitute procedural requirement would

entail. Mathews v. Elridge, 424 U.S. 319 at 335, 96

S.Ct. 893 at 903, 47 L. Ed. 2d 18 (1976). Id at

455-456.

In reviewing the particular facts and posture of the case

before him, Judge Kinneary concluded that the private

interest in the case was compelling; the existing pro-

cedures unreliable; additional procedural safeguards

would be of great value in minimizing the risks of erro-

neous deprivations of Plaintiff’s interest; and the public

interest or burden associated with this judicial relief was

far outweighed by the first two considerations.

In Marshall, the government argued that Plaintiff had

not shown irreparable harm. However, the Court found

that the employee who was to have been temporarily

reinstated was in a sensitive safety related position and

his inability to perform his duties and unreliable atten-

dance would put others at risk. Moreover, the temporary

reinstatement would have been a source of lowered

employee morale. Added to the inherent harm suffered

by Plaintiff as a result of a deprivation of its constitu-

tional right to due process, the totality of the circum-

stances supported a finding of irreparable harm. The facts

of the case at bar support a finding of irreparable harm

far in excess of the facts in Marshall.

The cases cited by Defendants are, at best, inapposite

and unpersuasive and, at worst, entirely opposite from

Defendant's purported position.

45a

Accordingly, USEPA’s motion to vacate this Court’s

August 4 Order is DENIED.

2. USEPA’s Authority

USEPA contends that it retains authority to review

every decision and order of the approved parallel state

agency charged with enforcing the Clean Water Act (here-

inafter referred to as the “Act” or the “CWA”). USEPA

argues that the Act confers upon it virtually unlimited

enforcement aut ority. The basis for USEPA’s argument is

apparently that the CWA does not explicitly say when

USEPA may review decisions or orders of OEPA.

Plaintiff argues that, while Congress created USEPA

as the federal enforcement agency for the CWA, Congress

also recognized that primary responsibility for enforce-

ment of the Act at the state level should, if possible, be

left with the states. Accordingly, Plaintiff argues, Con-

gress developed a procedure whereby state agencies

would be approved to act as the enforcement bodies for

the CWA in the states. OEPA is the approved body in

Ohio. Plaintiff does not argue that USEPA’s act of approv-

ing OEPA as a parallel divests USEPA of authority in

Ohio. Plaintiff argues that USEPA’s authority to act is

limited, however, in most circumstances when the

approved state agency has already acted or is already

acting to enforce the CWA in the same situation.

USEPA obtains its enforcement authority from the

Act itself. The Act also provides that when USEPA finds

that a person is in violation of provisions of the Act,

46a

USEPA through its Administrator must issue a compli-

ance order or must notify the approved state agency and

permit that agency thirty days within which to commence

appropriate enforcement action. 33 U.S.C. §1319(a)(1) and

(a)(3). USEPA argues that it must issue an order directing

Plaintiff to cease pumping, because the CWA requires

that USEPA act in certain situations. The only possible

basis for USEPA’s argument is the mandatory language of

33 U.S.C. §1319, which does not apply to the situation at

Meigs 31.

Subsection (a)(3) of §1319 requires USEPA to issue a

compliance order upon a finding that a violation has

occurred. Subsection (a)(1) permits USEPA to issue such

an order upon a finding of a violation. USEPA has not

found a violation of the Act by Plaintiff in the pumping at

Meigs 31. In fact, USEPA vigorously argues that it needs

additional time to investigate the situation and determine

whether a violation has occurred and a compliance order

should issue. Accordingly, the Act does not require USEPA

to act, as USEPA has argued. The Court must now con-

sider whether the USEPA has the authority to act.

At the time of the enactment of the Act, Congress

clearly expressed its intention that the states retain pri-

mary authority to enforce the Act. In the statutory policy

statement that Congress incorporated in the Act, the pol-

icy of state primacy Is codified. Subsection (b) of 3

U.S.C. §1251 provides as follows:

it is the policy of Congress to recognize, pre-

serve, and protect the primary responsibilities of

States to prevent, reduce, and eliminate pollu-

tion. . .

47a

Under the NPDES program established by 33 U.S.C.

§1342, dischargers of pollutants are required to obtain

permits authorizing discharges. A permit issued pursuant

to 33 U.S.C. §1342 must require compliance with applica-

ble standards and requirements of the Act. Pursuant to

§1342, the responsibility for issuing NPDES permits rests

with USEPA. States may establish programs in compli-

ance with §1342(b) and the requirements of 40 C.F.R. Part

122. USEPA must relinquish primary responsibility for

issuing NPDES permits to such a state agency. USEPA has

delegated authority to administer the NPDES program in

Ohio to OEPA.

OEPA has issued a permit to Plaintiff that establishes

requirements for treatment and release of water by Plain-

tiff at Meigs 31. That NPDES permit provides for an

emergency bypass in limited situations and in accordance

with the requirements of the permit and applicable state

and federal law. The plan proposed by Plaintiff for the

evacuation of water from Meigs 31 was developed by

Plaintiff to comply with the emergency bypass provisions

of its NPDES permit. Plaintiff sought and obtained

approval from OEPA for its proposed evacuation plan.

The Director of OEPA found that the proposed plan com-

plied with the permit and applicable regulations.

USEPA does not dispute that the Director of OEPA

has made the appropriate analysis, nor does USEPA

argue that the Director’s findings were incorrect. Rather,

without citing statutory authority for doing so, USEPA

asserts that it may issue an order directing Plaintiff to

cease its pumping operations that have been found to

comply with the emergency bypass provisions of its

48a

NPDES permit by the Director of OEPA in order to dupli-

cate OEPA’s investigation.

USEPA does not cite and the Court does not find

authority for the action that it proposes to take. Undoubt-

edly, the CWA vests in USEPA the authority to perform

an investigation. The Act does not, however, permit

USEPA to order cessation of procedures approved by the

parallel state agency in order to gain time to perform

such an investigation.

The legislative history of the Act makes clear that ina

case, such as this, where the approved state agency has

already taken action, Congress intended for USEPA to act

only “in cases where states and other appropriate

enforcement agencies are not acting expeditiously and

vigorously to enforce control requirements.” Senate

Report No. 92-414, 92nd Congress, 2nd Session (1972).

USEPA has not argued and the evidence does not show

that OEPA has failed to act expeditiously and vigorously

at Meigs 31. On the contrary, the Court finds that OEPA

has acted- more expeditiously, by far, than USEPA, consis-

tent with the reasons for authorizing state agencies as the

primary enforcement bodies for the Act. The inescapable

conclusion is that USEPA does not take issue with the

haste and vigor with which OEPA has acted at Meigs 31

but with the ultimate conclusion of OEPA’s investigation.

The Act simply does not provide for review by USEPA of

OEPA orders, where OEPA has acted vigorously, dili

gently, and in accordance with statutory and regulatory

procedures.

The logic of the legislative policy discussed above is

plain. Two agencies with concurrent jurisdiction may not

49a

act simultaneously. In the case of the federal and state

courts, one will abstain in favor of the other. Well-

established principles govern when the federal courts

abstain in deference to the state courts. In the case of

USEPA and OEPA, the legislative intent is clearly that the

state agency generally be given the first opportunity to

act within its jurisdiction. When the state agency has

acted, due process requires that the federal agency not

simultaneously exercise jurisdiction, absent a statutory

scheme providing for override authority on the part of

the federal agency. The CWA does not generally provide

such override authority to USEPA.

One exception to the general rule that USEPA does

not have override authority over decisions of OEPA is the

authority of USEPA to set aside an NPDES permit issued

by one state that affects the waters of another state. In

such a case, the second state may challenge the allegedly

offending permit to USEPA, which has authority to vacate

the permit if it concludes that a discharge under the

permit will have an undue impact on interstate waters

See Arkansas v. Oklahoma, 112 S.Ct. 1046 (1992). USEPA

has suggested that its jurisdiction is invoked in this case

because the waters of West Virginia may be affected by

the pumping of Meigs 31.

For three reasons, the Court does not accept that

argument as a basis for USEPA’s exercise of jurisdiction in

this case. Foremost, USEPA has failed to produce suffi-

cient evidence to support its contention that West Vir-

ginia waters may be unduly affected. The Court also

notes that the State of West Virginia has not challenged

the evacuation to USEPA. Finally, USEPA’s override

authority in an interstate impact situation extends only to

50a

the disapproval of state-issue permits. The challenge in

this case, if one had been made, would be to the proposed

evacuation plan and not to Plaintiff's NPDES permit.

Because USEPA has been unable to establish that it

has authority to act to prevent pumping at Meigs 31, and

because the Court finds no basis in law or policy for such

action, the Court finds that USEPA is without jurisdiction

to issue an administrative cessation order and that any

administrative cessation order issued by USEPA would

be a nuility, absent a failure by OEPA to act vigorously

and expeditiously.

Plaintiff has submitted as additional authority, the

unreported decision of Judge John M. Manos of the

Northern District of Ohio in Ashland Oil, Inc., et al v. James

O. McDonald, et al, (June 11, 1980), Case No. C79-338. This

Court finds the logic of that decision to be largely on

point in the within matter. That case involved USEPA

notices of violation (NOV) to the Plaintiffs. The question

was whether Plaintiffs “may maintain ia [sic] pre-enforce-

ment action to test the validity of notices of violation

issued by the Administrator of the U.S.E.P.A.” Id at 5. The

Court concluded that they may.

In Ashland, the Court determined that “the Notices of

Violation issued to the plaintiffs are final agency actions

and that the legislative history of the Clean Air Act is not

sufficiently clear and convincing to overcome the pre-

sumption of reviewability.” Id at 5. “The fact that pre-

enforcement review is not expressly stated in the Act and

that the Act provides a defense to an enforcement action

does not constitute clear and convincing evidence of

intent to preclude pre-enforcement review.” United States

5la

Steel Corporation v. Fri, 364 F.Supp. 1913, 1018 [sic] (N.D.

Ind. 1973).

Indeed Abbott, supra, 387 U.S. at 148-49, defined the

“ripeness of the agency action for judicial review in terms

of finality . . . as well as the nature of the issues to be

resolved and the extent of immediate harm to the parties.

Ashland at 7.

In Ashland, the Plaintiffs were attempting to determine if

they were subject to enforcement. The issues raised were

legal ones concerning the scope of USEPA’s authority. The

Court concluded that without pre-enforcement review the

Plaintiffs faced substantial and immediate harm. The pros-

pect of criminal penalties and a $25,000 per day fine for

violation of the NOV were enough for the Court to find

immediate and substantial harm.

We do not need to address the issue of finality here,

nor the Administrative Procedures Act. We conclude that

this matter may be resolved at a stage earlier than that.

The predicate for all else is the USEPA’s authority to act

in the face of a state approved agency’s prior action. We

conclude that USEPA lacks such authority.

3. The Preliminary Injunction Standard

Before it will issue a preliminary injunction, the

Court must consider four criteria:

a. whether Plaintiff has shown a strong likeli-

hood of success on the merits;

b. whether Plaintiff has shown irreparable

injury;

c. whether issuing a preliminary injunction

would cause substantial harm to others; and

d. whether the public interest would be served

by issuing a preliminary injunction.

a. Likelihood of success on the merits

The Court’s analysis of USEPA’s authority to act

under the CWA addresses the issue of likelihood of suc-

ess on the merits as well. To the extent that USEPA is

without authority to override OEPA’s approval of Plain-

tiff’s evacuation plan, USEPA cannot succeed on the

merits. See Claridge House, 795 F. Supp. at 1405. Neverthe

less, the Court will make some additional findings on the

issue of likelihood of success on the merits

Section 123.44(m)(4) of 40 C.F.R. is the regulation that

determines when emergency bypasses are permissible

That regulation provides as follows

& }

(1) Bypass is prohibited, and the Director may

take entorcement against a permittee for

hy DAaSS, unless

(A) Bypass was unavoik able to prevent

loss of life, personal injury, or severe

(B) l here were no feasible alternatives to

the bypass, such as the use of auxiliary

treatment facilities, retention of untre-

ated wastes, or maintenance during

normal periods of equipment down

time. This condition is not satisfied if

adequate back-up equipment should

have been installed in the exercise of

reasonable engineering judgment to

53a

prevent a bypass which occurred dur-

ing normal periods of equipment

downtime or preventive maintenance;

and

required under paragraph (m)(3) of

this section.

(ii) The Director may approve an anticipated

bypass, after considering its adverse effects,

if the Director determines that it will meet

the three conditions listed above in para-

graph (m)(4)(i) of this section.

The Director of OEPA found that the three prerequi-

sites of 40 C.ER. 123.44(m)(4)(i) were met and approved

Plaintiff's proposed emergency bypass plan. This Court

concurs with the Director of OEPA in his finding that the

three prerequisites are established.

The bypass in question was clearly unavoidable to pre-

vent severe property damage. 40 C.F.R. 123.44(m)(4)(i)(A). A

significant amount of costly equipment is threatened by the

water occupving Meigs 31. Additionally, the Court finds that

all of the relevant evidence concerning the structural integ-

rity of Meigs 31 suggests that the mine itself is threatened by

the water. Accordingly, the loss of the majority of Plaintiff's

property is the likely result of Plaintiff's being prevented

from bypassing normal treatment measures.

—

The Court further finds that virtually all of the reie-

vant evidence supports a finding that no alternative to

the bypass was feasible. 40 C.F.R. 123.44(m)(4)(1)(B).

-laintiff explored many possible alternatives and, tor

legitimate reasons, rejected them. In the end, Plaintiff's

choice proved to be bypass or loss of nearly all of ‘ts

54a

property. fhe Court also finds that the bypass has not

heen made necessary by the absence of back-up equip-

ment that should have been available in the exercise of

reasonable engineering judgment. Id.

The Court finds no indication in the record that Plaintiff

failed to submit notices as required under paragraph (m)(3)

of 40 C.F.R. 123.44. 40 C.ER. 123.44(m)(4)(i)(C). Because the

Court finds that all prerequisites to the approval of the

bypass have been met, the Court concludes, based upon the

evidence that is before it, that the Director of OEPA correctly

approved the bypass in this case. Accordingly, the Court

finds that USEPA is unlikely to be successful in showing that

Plaintiff’s evacuation is in violation of federal law and Plain-

tiff is likely to succeed on the merits.

b. Irreparable injury

USEPA argues, inexplicably, that Plaintiff has not

shown that irreparable injury will result from the Court’s

refusal to issue the requested preliminary injunction. The

Court finds that the evidence supports no conclusion

more strongly than that such harm will result.

Whenever USEPA has addressed the question, it has

argued that no harm will result from the Court’s refusal

to issue the requested injunction. The basis for that argu-

ment is, apparently, that Plaintiff could refuse to comply

with any order issued by USEPA and continue pumping,

thereby avoiding injury to Meigs 31. The Court is trou-

bled by USEPA’s suggestion that Plaintiff violate an order

of a federal agency. The Court finds that the proper

55a

irreparable injury analysis would assume Plaintiff’s com-

pliance with any order issued by USEPA. On that basis,

the Court will consider whether irreparable injury will

result from the Court’s refusal to issue the requested

preliminary injunction.

The future viability of Meigs 31 is clearly threatened

by the water that currently occupies the mine. Based

upon the evidence in the record, the Court can only

conclude that the harm resulting from the inundation is

likely to become irreparable unless this Court enjoins

USEPA from issuing an order designed to stop evacuation

of Meigs 31 while USEPA investigates.

USEPA makes numerous arguments against a finding

of irreparable harm. It first argues that Plaintiff’s only

loss would be economic loss, which does not, in and of

itself, constitute irreparable harm. See Ohio v. Nuclear

Regulatory Commission, 812 F.2d 288, 290-91 (6th Cir.

1987). The Court notes two deficiencies in USEPA’s argu-

ments. The evidence in the record does not show that

Plaintiff’s only harm will be economic. In fact, the pre-

ponderance of the evidence in the record suggests that

Plaintiff is likeiy to suffer the loss of its entire business if

Meigs 31 is not evacuated with great haste. The loss of a

plaintiff’s entire business is not mere economic loss and

may serve as the basis for a finding of irreparable harm.

Moreover, if this Court permits USEPA to act outside its

authority to Plaintiff’s detriment, Plaintiff will suffer the

loss of its constitutional right to due process. Action by a

federal agency beyond its authority is per se an irrepar-

able injury. See, e.g., Claridge House, 795 F. Supp. at 1405.

56a

USEPA also argues that Plaintiff is not entitled to

injunctive relief, because Plaintiff has allegedly set in

motion the chain of events leading to its injury. USEPA

alleges that the failure of the bulkhead between Raccoon

3 and Meigs 31 was the cause of the inundation of water

in Meigs 31 and that because Plaintiff’s injury is self-

inflicted no injunctive relief may issue. See San Francisco

Real Estate v. Real Estate Investment Trust of America, 692

F.2d 814, 818 (1st Cir. 1982). USEPA has offered no evi-

dence to support that suggestion, and the Court is unwill-

ing to draw such a conclusion without evidence to

support it. In fact, OSM’s own draft report (Exhibit 58)

indicates that the cause of the inundation was “a roof

fall.”

c. Substantial harm to others

USEPA has argued that the harm to others that

would result from the evacuation of Meigs 31 is substan-

tial and outweighs any potential harm to Plaintiff. The

Court has found that the harm to Plaintiff that will result

from the Court's failure to issue the requested prelimi-

nary injunction is extraordinarily serious. In order to

convince the Court that it should not issue the injunction,

USEPA would be required to show the Court that the

harm to others would be equally or more significant.

USEPA has urged the Court to consider harm to the

environment when it considers the likelihood that harm

will result to others from the issuance of the injunction.

The Court recognizes that such a consideration is appro-

priate. Nevertheless, the Court finds that USEPA has not

shown that any damage to the environment resulting

57a

from the evacuation of Meigs 31 would be either substan-

tial or irreparable. The Court does not suggest that the

harm to the environment is not a cause for concern. The

preponderance of the evidence shows, however, that any

such injury is remediable and that Plaintiff will take

appropriate actions to speed the repair of the environ-

ment that would otherwise occur naturally over a period

of, at most, two years. Furthermore, USEPA has offered

no evidence showing that an endangered or threatened

species is currently in danger as a result of the pumping.

In considering potential harm to others, the Court

must also consider any potential harm to persons living

near the waterways into which Plaintiff is evacuating the

water from Meigs 31. USEPA produced witnesses who

testified that they anticipated being affected by the evac-

uation. None of those witnesses testified that she or he

was presently being harmed in any significant manner.

Further, Plaintiff has offered to take every precaution

against significant harm to others. Plaintiff has offered to

provide alternate drinking water for livestock, for exam-

ple. The Court concludes that the injury to others, inciud-

ing the environment, that might result from the

evacuation of Meigs 31 according to Plaintiff’s plan is

insignificant when compared to the harm that will result

to Plaintiff if the mine is not evacuated quickly.

d. Public policy

The public policy concerns implicated by the evacua-

tion of Meigs 31 are addressed in the preceding sections

of this Order. The Court will not restate its findings. The

Court concludes that the public policy of preserving

58a

Plaintiff’s business and the jobs of Plaintiff’s employees

outweighs the opposing public policy, notwithstanding

the Court’s recognition of the importance of safeguarding

the environment against irreparable harm. Because the

Court finds that, on balance, the criteria for issuance of a

preliminary injunction are satisfied, the Court will issue

the requested preliminary injunction with respect to

USEPA.

4. Applicability of the Preliminary Injunction to

OSM

The Court ruled in its July 30 Order that OSM did not

have jurisdiction to issue a cessation order when the

approved state agency was already acting. Based upon

that ruling, the Court issued the Order temporarily

restraining OSM from acting, as iong as the appropriate

state agency was acting in accordance with the applicable

statutory procedures.

In determining whether to preliminarily enjoin OSM

from attempting to exercise jurisdiction while its parallel

state agency is acting, this Court considers the four crite-

ria set forth above. The Court’s findings and conclusions,

as they apply to USEPA, apply equally to OSM.

The Court finds that Plaintiff’s success on the merits

is virtually insured, because the appropriate state agency

has acted in accordance with law prior to any action by

OSM. Applicable law does not vest jurisdiction in OSM to

override the factual conclusions of the parallel state

agency if those conclusions are the result of the stat-

utorily-required analysis. Accordingly, as regards OSM,

59a

the first criteria for issuance of a preliminary injunction

favors the issuance of such relief.

The Court’s analyses with regard to the other three

criteria are identical to that set forth above, and the Court

will not restate its findings and conclusions. The Court

concludes that the criteria for issuance of a preliminary

injunction, on balance, favor of the issuance of such relief

with respect to OSM.

CONCLUSION

For the reasons and based upon the findings set forth

above, the Court hereby DENIES USEPA’s motion to

vacate this Court’s August 4 Order, and GRANTS Pilain-

tiff’s motion for a preliminary injunction. Neither USEPA

nor OSM shall act to effect the cessation of pumping at

Meigs 31 unless their respective parallel approved state

agencies fail to act vigorously, expeditiously, and in

accordance with law.

The bond previously set in this action shall continue

in full force and effect.

This order shall continue in effect until the

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