Opinion for the Court filed by Circuit Judge ROBB.
ROBB, Circuit Judge:
In this case we are presented with challenges to interim regulations promulgated by the Secretary of the Interior pursuant to the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. § 1201 et seq. (Supp. II 1978) (Surface Mining Act or Act). Following publication of the interim regulations in final form on December 13 and 16, 1977, twenty-two complaints attacking the regulations were filed in the United States District Court for the District of Columbia
The Surface Mining Act was passed in the 95th Congress and signed into law by President Carter on August 3, 1977. The statute resulted from prolonged deliberation that began with hearings and the introduction of legislation in the 90th Congress.
The Act is a comprehensive statute designed to "establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations." Section 102(a), 30 U.S.C. § 1202(a). Title II of the Act creates the Office of Surface Mining Reclamation and Enforcement (OSM) within the Department of the Interior, and the Secretary of the Interior, acting through OSM, is charged with the primary responsibility for administering and implementing the Act. Section 201, 30 U.S.C. § 1211.
The Surface Mining Act's principal regulatory and enforcement provisions are contained in Title V, which establishes a two-tiered regulatory program to achieve the purposes of the statute. The two tiers consist of an interim, or initial, regulatory program and a permanent regulatory program. Section 501(a) of the Act, 30 U.S.C. § 1251(a), requires the Secretary to promulgate interim regulations for surface coal mining and reclamation operations within ninety days of the statute's enactment. The Secretary initially proposed interim regulations on September 7, 1977, and interested persons were allowed thirty days to submit comments. 42 Fed.Reg. 44,920. Over three hundred comments were submitted, and four public hearings on the proposed interim regulations were held during the comment period. The Secretary promulgated and published final interim regulations on December 13 and 16, 1977, and the interim regulations were made effective as of those dates. Id. at 62,639 and 63,394.
Section 502(c) of the Act, 30 U.S.C. § 1252(c), delineates the performance standards that the interim regulatory program must contain. Those performance standards include, among other things, requirements for restoration of land to its prior condition after mining, restoration of land to its approximate original contour, segregation and preservation of topsoil, minimization of hydrologic disturbances from mining, construction of coal mine waste piles used as dams or embankments, utilization of explosives, revegetation of mined areas, reclamation of mountaintop mines, and spoil disposal for steep-slope mines.
The second tier of regulation contemplated by the Surface Mining Act, the permanent phase, is provided for in section 501(b), 30 U.S.C. § 1251(b), which commands the Secretary to promulgate, within one year of the statute's enactment, a permanent regulatory program establishing procedures and requirements for preparation, submission, and approval of "State programs" and for development and implementation of "Federal programs". In addition, the permanent regulations must require adherence to all provisions of Title V of the Surface Mining Act, including all the performance standards set forth in section 515, 30 U.S.C. § 1265, and not just those applicable to the interim regulatory program pursuant to section 502(c), 30 U.S.C. § 1252(c). Section 501(b), 30 U.S.C. § 1251(b).
During the permanent phase, a state may seek to assume primary jurisdiction over the regulation of surface coal mining on "non-Federal lands" within its borders by submitting a proposed "State program" of regulation to the Secretary. Section 503(a), 30 U.S.C. § 1253(a). The Secretary must approve or disapprove a proposed "State program", in whole or in part, within six months after the program is submitted to him. Section 503(b), 30 U.S.C. § 1253(b). If a "State program" is approved by the Secretary, that state assumes the responsibility for issuing mining permits and for enforcing the provisions of its regulatory program. However, if a state fails to submit a proposed program, fails to resubmit an acceptable program within sixty days after disapproval of its proposed program, or at any time fails to implement, enforce, or maintain an approved program in accordance with the Act, the Secretary is directed to prepare and implement a "Federal program" of regulation within that state no later than June 3, 1980. Section 504(a), 30 U.S.C. § 1254(a). When a "Federal program" is promulgated for a state, the Secretary constitutes the regulatory authority administering the Act within that state and continues as such unless and until a "State program" is approved. No later than eight months after approval of a "State program" or implementation of a "Federal program", all surface coal mining and reclamation operations on "non-Federal lands" within the state must obtain a new permit issued in accordance with the applicable regulatory program. Section 506(a), 30 U.S.C. § 1256(a).
The Secretary issued proposed permanent regulations on September 18, 1978, and public comments were received by OSM from September 18 to November 27, 1978. 43 Fed.Reg. 41,662. Nearly six hundred comments were submitted to the agency, and twenty-five days of public hearings were conducted during the comment period. 44 Fed.Reg. 14,908 (1979). The Secretary promulgated and published final permanent regulations under the Surface Mining Act on March 13, 1979, and the permanent regulations were made effective as of April 12, 1979. Id. at 14,902. Even though the permanent regulations have been published in final form, the interim regulatory program remains in effect in a given state until that state has a "State program" approved or a "Federal program" implemented by the Secretary.
Certain of the plaintiffs below immediately appealed from the District Court's rulings and moved this court for summary reversal or for an injunction pending appeal. On May 25, 1978 this court denied the plaintiffs' motions and, sua sponte, summarily affirmed the District Court's denial of preliminary injunctive relief. Atlantic Richfield Co. v. United States Dep't of Interior, No. 78-1406.
On August 24, 1978 the District Court issued a second memorandum opinion and order disposing of the plaintiffs' motions for summary judgment made after the decision of May 3, 1978. In re Surface Mining Regulation Litigation, 456 F.Supp. 1301 (D.D.C.1978). So far as pertinent to this appeal, the District Court held: (1) as determined in its previous opinion, the procedures employed by the Secretary and the basis and purpose statement accompanying the final interim regulations were reasonable and adequate, id. at 1307-08; (2) the interim effluent regulations do not, in fact, impermissibly "supersede, amend, modify, or repeal" the Federal Water Pollution Control Act insofar as they fail to include variances and exemptions similar to those afforded in the Environmental Protection Agency's regulatory scheme because the absence of such provisions in the interim regulations constitutes the proper "plugging of a regulatory gap with a more stringent program" by the Secretary, id. at 1314-15; (3) the interim regulations' maximum limit on particle velocity for blasting operations of one inch per second is valid, id. at 1317; and (4) the Secretary was authorized to promulgate enforcement regulations with respect to surface mining on Indian lands, id. at 1324-26.
These appeals followed.
II. THE GENERAL CHALLENGES
The Surface Miners contend that the interim regulatory program suffers from three "pervasive defects" that "infect" the interim regulations as a whole and constitute grounds for invalidating them. The Surface Miners argue: (1) the Secretary failed to explain adequately the basis and purpose of the interim regulations or to identify the technical literature on which he relied; (2) the interim regulations fail to provide adequate variance procedures; and (3) the Secretary failed to make required economic and inflationary impact analyses. See Joint Br. for Appellants at 11-12, 14-24; Joint Rep.Br. for Appellants at 1-7.
A. The Adequacy of the Basis and Purpose Statement
Section 4(c) of the Administrative Procedure Act, 5 U.S.C. § 553(c) (1976), provides that after notice of proposed rulemaking, opportunity for comment, and consideration of relevant material presented, "the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose." The legislative history of the Administrative Procedure Act further clarifies the requirement for a basis and purpose statement.
S.Rep.No.752, 79th Cong., 1st Sess. 39 (1945). This court has stated in Automotive Parts & Accessories Ass'n v. Boyd, 132 U.S. App.D.C. 200, 208, 407 F.2d 330, 338 (1968), that an agency is not expected "to discuss every item of fact or opinion included in the submissions made to it in informal rule making", but that a basis and purpose statement should enable a reviewing court "to see what major issues of policy were ventilated by the informal proceedings and why the agency reacted to them as it did." See also National Nutritional Foods Ass'n v. Weinberger, 512 F.2d 688, 701 (2d Cir.), cert. denied, 423 U.S. 827, 96 S.Ct. 44, 46 L.Ed.2d 445 (1975) (the requirement that an agency "`incorporate in the rules a concise general statement of their basis and purpose' certainly does not require the agency to supply specific and detailed findings and conclusions of the kind customarily associated with formal proceedings"); Amoco Oil Co. v. EPA, 163 U.S.App.D.C. 162, 179, 501 F.2d 722, 739 (1974) (a basis and purpose statement "must be sufficiently detailed and informative to allow a searching judicial scrutiny of how and why the regulations were actually adopted"). The rationale underlying the basis and purpose statement requirement was expressed by this court in Rodway v. United Dep't of Agriculture, 168 U.S.App.D.C. 387, 395, 514 F.2d 809, 817 (1975):
The Secretary was required to promulgate the interim regulations within ninety days of the statute's enactment, section 501(a), 30 U.S.C. § 1251(a); but despite such a statutory time constraint, the final interim regulations were accompanied by a thirty-six-page preamble explaining the basis and purpose of the interim regulatory program with considerable particularity. 42
The Surface Miners assert that "[i]n a great many instances the Secretary completely failed to explain the rationale for, or the benefits that were expected to be achieved by, his new regulatory scheme" and that "[t]his fundamental shortcoming disabled interested members of the public from making informed comments on the basis for the purposed rules." (Joint Br. for Appellants at 15) The District Court, however, concluded that:
452 F.Supp. at 333. Accord, 456 F.Supp. at 1308 ("[a]s this court indicated previously, given the statutory time constraints which required expedited rulemaking in this case, the procedures employed by the Secretary and the basis and purpose statement accompanying the regulations were reasonable and adequate").
We agree. The preamble to the final interim regulations satisfies the mandate of the Administrative Procedure Act, 5 U.S.C. § 553(c), that rules adopted incorporate "a concise general statement of their basis and purpose." The preamble thoroughly discusses the public comments received by OSM and the agency's reaction to them, and thus fulfills the requirement that a basis and purpose statement be "inextricably intertwined with the receipt of comments", Rodway v. United States Dep't of Agriculture, supra, 168 U.S.App.D.C. at 395, 514 F.2d at 817. The Surface Miners' contentions as to the adequacy of the basis and purpose statement accompanying the final interim regulations under the Surface Mining Act were properly rejected by the District Court.
B. The Failure to Provide General Variance Procedures
The second general challenge raised by the Surface Miners is that the performance standards of the interim regulations are invalid because the Secretary has failed to provide adequate variance and exemption procedures as required by "principles of administrative law and of due process." (Joint Br. for Appellants at 17-20) The District Court held, however, that the interim regulations were not required to contain a general variance mechanism. The court reasoned that "Congress made it clear that the only alternative that the [mine] operators had was to comply or not conduct operations." 452 F.Supp. at 338-39.
In E. I. duPont de Nemours & Co. v. Train, 430 U.S. 112, 97 S.Ct. 965, 51 L.Ed.2d 204 (1976), the Supreme Court reversed a decision of the United States Court of Appeals for the Fourth Circuit remanding regulations promulgated under the Federal Water Pollution Control Act Amendments of 1972 back to the Environmental Protection Agency for inclusion of a general variance procedure for new plants. The Court of Appeals had determined that "[p]rovisions for variances, modifications, and exceptions are appropriate to the regulatory process." Id. at 138, 97 S.Ct. at 980. The Supreme Court stated, "The question, however, is not what a court thinks is generally appropriate to the regulatory process; it is what Congress intended for these regulations. It is clear that Congress intended these regulations to be absolute prohibitions." [emphasis in original] Id.
Congressional intent with regard to general variances and exemptions was summarized as follows in the Senate Report on the bill that evolved into the Surface Mining Act:
S.Rep.No.128, 95th Cong., 1st Sess. 55 (1977). See also H.R.Rep.No.218, 95th Cong., 1st Sess. 115 (1977), U.S.Code Cong. & Admin.News 1977, pp. 593, 648 ("the committee rejected the notion that the [environmental] standards should be adjusted to what individual mine operators state they can or cannot afford"). Throughout the statute, Congress indicated an intent that there be no general variances or exemptions from the Act's performance standards.
We conclude that Congress did not intend that the interim regulatory program contain general variances or exemptions, and that the Secretary has reasonably implemented the Surface Mining Act by providing only for certain limited variance mechanisms in the final interim regulations. We therefore affirm the District Court's determination that the Surface Miners' "claim that procedures for the granting of exemptions and variances from all of the regulations are necessary is without merit." 452 F.Supp. at 339.
C. The Failure to Make Economic and Inflationary Impact Analyses
The Surface Miners' final attack on the interim regulatory program as a whole is that the Secretary's failure to prepare formal economic and inflationary impact analyses violated (1) section 102(f) of the Act, 30 U.S.C. § 1202(f); (2) Executive Order No. 11821; (3) Office of Management and Budget (OMB) Circular No. A-107; and (4) the Department of Interior's own rules, and thus invalidates the interim regulations. (Joint Br. for Appellants at 20-24) The District Court, however, was "of the opinion that the Secretary gave due consideration to the effects the interim regulations would have on the economy, inflation, and the nation's energy supply as is evidenced by the basis and purpose statement and the administrative record." 452 F.Supp. at 334.
Section 102(f) of the Surface Mining Act, 30 U.S.C. § 1202(f), states that one of the purposes of the statute is to "assure that the coal supply essential to the Nation's energy requirements, and to its economic and social well-being is provided and strike a balance between protection of the environment and agricultural productivity and the Nation's need for coal as an essential source of energy." Section 102(f), however, is merely a specification of congressional purpose and imposes no requirement on the Secretary to draft economic and inflationary impact statements. Moreover, the strict timetable and methods established by the Act for the promulgation of interim regulations, see section 501, 30 U.S.C. § 1251, indicate that Congress did not intend that additional procedural burdens be imposed on the Secretary. See section 501(a), 30 U.S.C. § 1251(a) expressly waiving the environmental impact statement requirement of the National Environmental Policy Act of 1969 with regard to the interim regulations; and Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 546, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) holding that "Congress intended that the discretion of the agencies and not that of the courts be exercised in determining when extra procedural devices should be employed." [emphasis in original]
The Surface Miners allege that the duty of the Secretary to make economic and inflationary impact analyses also arose from the Department of Interior's "own rules expressly incorporating OMB Circular No. A-107 and setting forth additional standards for determining whether regulations are `major' and thus require an economic impact statement." (Joint Br. for Appellants at 21) The Secretary responds that "[t]his internal document, which sets out criteria for determining when an inflationary impact statement is appropriate, has never been formally issued." (Br. for Appellee (Secretary of Interior) at 44 n.42). Nevertheless, the preamble to the final interim regulations explains that the Secretary has determined that a formal economic impact analysis is not necessary for the initial regulatory program and that the Secretary has relied on a study compiled by the Congressional Budget Office, which was attached to the April 22, 1977 House Report of the Committee on Interior and Insular Affairs. This report analyzed the impact of the federal expenditures authorized under the Surface Mining Act on the economy and on inflation.
Therefore, as the District Court correctly concluded, the Surface Miners' general challenge to the interim regulatory program for failure of the Secretary to make required economic and inflationary impact analyses must be rejected.
III. THE SPECIFIC CHALLENGES
The Surface Miners make five specific challenges to the interim regulatory program:
A. The 1,000-Foot Limitation on Blasting
Section 515(b)(15)(C) of the Surface Mining Act, 30 U.S.C. § 1265(b)(15)(C), directs that the regulations promulgated by the Secretary "limit the type of explosives and detonating equipment, the size, the timing and frequency of blasts based upon the physical conditions of the site . . . ." Section 522(e)(5) of the Act, 30 U.S.C. § 1272(e)(5), provides that surface coal mining operations will not be permitted "within three hundred feet from any occupied dwelling, unless waived by the owner thereof, nor within three hundred feet of any public building, school, church, community, or institutional building, public park, or within one hundred feet of a cemetery"; and section 701(28)(A) of the Act, 30 U.S.C. § 1291(28)(A), defines "surface coal mining operations" as including "the use of explosives and blasting." Section 715.19(e) (1)(vii)(A) of the interim regulations, 30 C.F.R. § 715.19(e)(1)(vii)(A) (1978), states, however, that "[e]xcept where lesser distances are approved by the regulatory authority (based upon a preblasting survey or other appropriate investigations) blasting shall not be conducted within—1,000 feet of any building used as a dwelling, school, church, hospital, or nursing facility".
Section 515(b)(15) of the Surface Mining Act contains no provision authorizing the Secretary to prescribe distance limitations on blasting, while section 522(e)(5) explicitly fixes such a limitation at three hundred feet from a dwelling, etc. The statutory language is unambiguous, and yet the Secretary chose to regulate distances for blasting in contradiction of the Act. The legislative history of section 522(e) offers no support for the Secretary's position that the limitation of three hundred feet could be increased in the regulations to whatever distance he deemed appropriate, for the House Committee on Interior and Insular Affairs stated that "the decision to bar surface mining in certain circumstances is better made by Congress itself." H.R. Rep.No.45, 94th Cong., 1st Sess. 91 (1975). Moreover, the 1,000-foot limitation on blasting in the interim regulations is not saved because it is not an absolute prohibition and lesser distances may be approved by the regulatory authority. The law does not permit an agency to exercise powers expressly denied it by Congress if it includes a
The Surface Mining Act simply does not contemplate, either by its terms or by implication, that the Secretary can expand the distance limitations on blasting as he has done in the interim regulatory program. Therefore, section 715.19(e)(1)(vii) (A) of the interim regulations is invalid because it is "inconsistent with law."
B. The One Inch Per Second Limitation on Particle Velocity Produced by Blasting
Section 515(b)(15)(C) of the Surface Mining Act, 30 U.S.C. § 1265(b)(15)(C), instructs the Secretary to promulgate regulations that limit "the size, the timing and frequency of blasts based upon the physical conditions of the site." Section 715.19(e)(2)(ii) of the interim regulations, 30 C.F.R. § 715.19(e)(2)(ii) (1978), provides:
A two inch per second standard for peak particle velocity, which is supported by the industry as safe practice, was announced in the proposed interim regulations, 42 Fed. Reg. 44,937 (1977), but the final interim regulations cut this standard by half to an absolute maximum of one inch per second. The Surface Miners contend that the one inch per second standard lacks adequate support and that:
(Joint Br. for Appellants at 56) The District Court, however, upheld the maximum peak particle velocity regulation, reasoning that "[a]lthough a more lenient standard also might be reasonable, the court cannot conclude that the Secretary's action in promulgating the regulation was arbitrary, capricious, or inconsistent with law." 456 F.Supp. at 1317. We disagree with the District Court's conclusion.
The Secretary relied almost exclusively on a study entitled Nicholls, et al., "Blasting Vibrations & Their Effects on Structures" (United States Bureau of Mines
(J.A. at 167) Thus, BOM 656 expressly identifies the two inch per second measure as a safe limit, as opposed to the one inch standard adopted by the Secretary, and admits that the four instances of "minor damage" below the two inch per second level derive from Bureau of Mines data with the highest probability of error. BOM 656 consequently treats those instances as de minimis and statistically inconclusive. In fact, such damage may have been "induced by mechanical means" and not even caused by blasting. (J.A. at 157) The Secretary has failed to demonstrate that the four "minor damage" points on which he relies constitute an adequate basis for a regulation of national scope that contradicts the explicit conclusions of those who conducted the Bureau of Mines study. Far from supporting section 715.19(e)(2)(ii) of the interim regulations, BOM 656 looks in the other direction and argues convincingly for a two inch per second maximum limit on particle velocity produced by blasting.
Consequently, we hold that the interim regulatory program's peak particle velocity standard of one inch per second in section 715.19(e)(2)(ii) lacks necessary substantiation and is invalid because it is "arbitrary and capricious".
C. The Grandfather Exemption for Surface Mining on Prime Farmlands
With regard to permit requirements for surface coal mining on prime farmlands, section 510(d)(2) of the Act, 30 U.S.C. § 1260(d)(2), provides that, "Nothing in this subsection shall apply  to any permit issued prior to August 3, 1977, or  to any revisions or renewals thereof, or  to any existing surface mining operations for which a permit was issued prior to August 3, 1977." Section 716.7(a)(2) of the interim regulations, 30 C.F.R. § 716.7(a)(2) (1978), states, however, that:
The Surface Miners assert that "[t]he regulation simply cuts off the statutory exemption with the first and second categories, and gives no recognition to the statutory exemption of `existing surface mining operations' based upon a pre-enactment permit but which were neither in the original permit area nor any revision or renewal thereof." (Joint Br. for Appellants at 38) The District Court rejected the Surface Miners' argument, holding that:
452 F.Supp. at 340. We cannot accept the District Court's resolution of the issue.
The legislative history of the Act generally supports the Surface Miners' position. The provisions of the statute concerning surface mining on prime farmlands appeared as floor amendments after both the Senate and House committees had reported the bill that was finally enacted. The grandfather clause originally included in the Senate amendment was confined to existing permits and revisions or renewals thereof, 123 Cong.Rec. S7870 (daily ed. May 18, 1977), but the grandfather exemption eventually presented to, and adopted by, the Senate was identical to the one enacted by Congress. Id. at S8103-13 (daily ed. May 20, 1977). Senator Bayh later clarified the change in the prime farmland grandfather rights, as follows:
Id. at S8802 (daily ed. May 26, 1977). In contrast to the Senate, the House rejected an amendment containing a grandfather exemption limited to mining operations covered by existing permits and "any revisions or renewals thereof including those authorizing contiguous expansion of such permitted areas." Id. at H3772-76 (daily ed. April 28, 1977). The Conference Committee accepted the language of the grandfather clause in the Senate amendment, and its report expressed a desire "to assure continued operation of ongoing mines." H.R.Rep. No.493, 95th Cong., 1st Sess. 105 (1977). During the Senate debate on the Conference Committee Report, Senator Metcalf agreed with Senator McClure's statement that "the exclusion will apply to continued operation of an on-going mine beyond the acreage and time covered in the existing permit at the time of the enactment of the act, just so long as the continuance does, in fact, constitute a continued operation of an ongoing mine." 123 Cong.Rec. S12,442 (daily ed. July 20, 1977). During the House debate, however, inconsistent explanations of the grandfather exemption were offered. Congressman Ruppe elucidated the grandfather clause in the same terms used by Senator McClure, id. at H7591 (daily ed. July 21, 1977), but Congressman Tsongas, with the approval of Congressman Udall, had previously stated that "the conferees never contemplated that such grandfathered operations would be given the right
The statement of Congressman Tsongas directly conflicts with other indications in the legislative history of the development of the grandfather exemption and also contradicts the express words of the statute insofar as he omits reference to permit "revisions or renewals". We believe that the interpretations of the grandfather clause expressed in the Senate are better evidence of its true meaning than the inconsistent pronouncements in the House because the prime farmland grandfather rights included in the Surface Mining Act originated in the Senate, where the explanations of the exemption were coherent and compatible.
The general rule is that legislative debates "are not a safe guide . . . in ascertaining the meaning and purpose of the law-making body" because they are merely "expressive of the views and motives of the individual members." Duplex Printing Press Co. v. Deering, 254 U.S. 443, 474, 41 S.Ct. 172, 179, 65 L.Ed. 349 (1921); see generally 2A Sutherland, Statutory Construction § 48.13 (4th ed. 1973). It is, however, a fundamental principal of statutory construction that "`effect must be given, if possible, to every word, clause and sentence of a statute' . . . so that no part will be inoperative or superfluous, void or insignificant." 2A Sutherland, supra at § 46.06. Section 510(d)(2) of the Act grandfathers pre-enactment permits, revisions or renewals of such permits, and "existing surface mining operations" for which a pre-enactment permit was issued; yet section 716.7(a)(2)(ii) of the interim regulations extends the grandfather exemption only to areas included in pre-enactment permits or mining plans and areas that "would have normally been considered as a renewal or revision of a previously approved plan." In addition, in those states that do not issue permit renewals or revisions, the regulation apparently provides grandfather protection only to areas covered by pre-existing permits, see Joint Reply Br. for Appellants at 14 n.20. This is so because it is apparently impossible to determine what "would have normally been considered as a renewal or revision" in states that do not renew or revise mining permits. The third category under the Act's grandfather clause, however, was added to the Senate amendment for the very purpose of insuring the exemption and continuous operation of surface coal mines on prime farmlands in states, like Indiana, that issue permits for one or more years but do not issue renewed or revised permits. See 123 Cong.Rec.S8802 (daily ed. May 26, 1977). This third category can only have meaning apart from the first two if it is interpreted, as the Surface Miners contend, as grandfathering existing surface mining operations which are based on a pre-enactment permit but which were neither explicitly covered by the permit nor any renewal or revision thereof. Thus, the Secretary has impermissibly curtailed the Surface Mining Act's grandfather clause in section 716.7(a)(2) of the interim regulations, the operation of which is ambiguous at best, because he has rendered the third phrase of the exemption "inoperative" and "superfluous".
The Secretary, and the District Court as well, express concern that "[w]ithout some meaningful limitation on what constitutes a continuance of an ongoing mine, it is quite possible that a large loophole in the prime farmlands requirements could be created" so that an operator could "claim that mining on all adjacent and nearby areas constituted continuances of the existing mine to such an extent that an entire portion of a state might be grandfathered" even though "it was not originally contemplated that the area[s] would be part of the same mine." (Br. for Appellee (Secretary of the Interior) at 77 & n.79); see also 452 F.Supp. at 340. The Surface Miners respond that "[t]his is an absurdity" because they are claiming "grandfather exemption only for the continued and contiguous operation of the same ongoing mine along its seam." (Joint Reply Br. for Appellants at 15) We believe that the anxiety of the Secretary and the District Court is unfounded and that the Surface Miners' interpretation of the grandfather clause is reasonable and in keeping with the intent of Congress.
D. The Enforcement Provisions Regarding Surface Mining on Indian Lands
Section 710 of the Surface Mining Act, 30 U.S.C. § 1300, provides, in pertinent part:
Moreover, Section 523(a) of the Act, 30 U.S.C. § 1273(a), states that "except as provided in section 1300 of this title the provisions of this chapter shall not be applicable to Indian lands." As of the date this case was argued, the Secretary had not yet made his report to Congress as required by section 710(a). The Secretary, however, has incorporated the requirements of the interim regulations into the leases permitting surface coal mining on five Indian reservations, and he has promulgated regulations, 25 C.F.R. §§ 177.112-.114 (1977),
456 F.Supp. at 1325.
The legislative history of the Surface Mining Act sheds some light on this issue. The statutory provisions with respect to Indian lands were fashioned in the 93d Congress and were carried forward, with continual reexamination but without significant change, into the Act. The Senate Committee on Interior and Insular Affairs reported S. 425 on September 21, 1973, and explained, concerning section 403's requirement that the Secretary conduct a study, that:
S.Rep.No.402, 93d Cong., 1st Sess. 40, 74 (1973). On May 30, 1974, the House Committee on Interior and Insular Affairs reported H.R. 11500, Title III of which made elaborate provision for tribal enforcement on Indian lands. The Conference Committee adopted the Senate approach with certain revisions, such as the inclusion of substantive requirements for surface mining on Indian lands, and its report stated:
Section 710(c) of the Act does not expressly deny direct enforcement authority to the Secretary, but merely states that surface miners operating on Indian lands must comply with the requirements of the interim regulatory program and directs the Secretary to incorporate those requirements into all existing and new coal mining leases. The legislative history of section 710(c), while not dispositive, strongly indicates that the Secretary has the direct enforcement powers he claims.
Thus, we agree with the District Court that "[a]lthough the [Surface Miners'] view of the statutory scheme appears to have some merit in light of the ambiguities of the Act, the court is unable to find the Secretary's actions in interpreting and implementing the Act arbitrary, capricious, or inconsistent with law." 456 F.Supp. at 1324-25. The enforcement regulations, 25 C.F.R. §§ 177.112-.114 (1979), are valid because they comport with the intent of Congress and fulfill the mandate of section 710(c) of the Act that surface coal mining operations on Indian lands be in full compliance with the performance standards of the interim regulatory program.
E. The Interim Effluent Regulations
Section 702(a)(3) of the Surface Mining Act, 30 U.S.C. § 1292(a)(3), provides that, "Nothing in this chapter shall be construed as superseding, amending, modifying, or repealing . . . - . . . The Federal Water Pollution Control Act (79 Stat. 903), as amended (33 U.S.C. § 1151-1175), the State laws enacted pursuant thereto, or other Federal laws relating to preservation of water quality." Section 515(b)(10) of the Act, 30 U.S.C. § 1265(b)(10), states:
Pursuant to section 515(b)(10), the Secretary promulgated sections 715.17(a) and 717.17(a) of the interim regulations, 30 C.F.R. §§ 715.17(a) and 717.17(a) (1979), which established effluent limitations and water quality standards for surface and underground mining. The Surface Miners allege that these interim effluent regulations substantially conform to Environmental Protection Agency (EPA) practice under the Federal Water Pollution Control Act but omit three "vital" elements of the EPA's regulatory framework: (1) a variance mechanism under which effluent limits may be modified for particular mining operations upon a showing of good cause; (2) an exemption from effluent limits for discharges attributable to abnormal natural runoff, especially snowmelt; and (3) an exemption or "credit" in measuring discharges of suspended solids for the quantum of suspended solids discharged from the mine area attributable to natural or other causes unconnected with mining operations. The Surface Miners view this omission of the three substantive elements of EPA regulation as an unlawful "modification" or "repeal" of the Federal Water Pollution Control Act in violation of section 702(a)(3) of the Surface Mining Act. (Joint Br. for Appellants at 25-35) The District Court initially enjoined the interim effluent regulations "to the extent that they supersede, amend, repeal or modify the provisions of the [Federal Water Pollution Control Act] and its regulations." 452 F.Supp. at 344. In its second memorandum opinion, however, the District Court ruled that the variances and exemptions contained in the EPA regulatory program under the Federal Water Pollution Control Act constitute "the absence of regulation" or "a regulatory gap" which the Secretary can fill with more stringent provisions without breaching section 702(a)(3) of the Surface Mining Act. 456 F.Supp. at 1313-15.
The legislative history of the Surface Mining Act illustrates to what extent Congress authorized the Office of Surface Mining to regulate the hydrologic impact of mining operations. The House Committee on Interior and Insular Affairs explained that:
H.R.Rep.No.45, 94th Cong., 1st Sess. 134 (1975). Thus, Congress meant exactly what it said in section 702(a)(3) of the Act, that where there is an overlap of regulation the Surface Mining Act is not to be interpreted as altering in any fashion the Federal Water Pollution Control Act. The Secretary argues that section 702(a)(3) is merely a "savings clause" to prevent the Federal Water Pollution Control Act from being weakened or nullified by passage of the Surface Mining Act and, consequently, that
It follows that we agree with the District Court that the interim effluent regulations cannot stand "to the extent that they supersede, amend, repeal, or modify the provisions of the [Federal Water Pollution Control Act] and its regulations," 452 F.Supp. at 344; and we also agree that where the Federal Water Pollution Control Act and its underlying regulatory scheme are silent so as to constitute an "absence of regulation" or a "regulatory gap", the Secretary may issue effluent regulations without regard to EPA practice so long as he is authorized to do so under the Surface Mining Act. However, we cannot accept the District Court's conclusion that the omitted elements of EPA regulation at issue here constitute such a "regulatory gap" as to allow the Secretary to promulgate more stringent requirements.
First, in its "Coal Mining Point Source Category" regulations EPA permits a variance from numerical effluent limitations where special need is demonstrated because "[i]t is . . . possible that data which would affect these limitations have not been available and, as a result, these limitations should be adjusted for certain plants in this industry." 40 C.F.R. §§ 434.22, .32, and .42 (1978). For example, where safety considerations conflict with effluent limits, EPA has indicated that the numerical effluent standards should give way:
42 Fed.Reg. 21,381 (1977). Such a variance mechanism is not present in the interim regulatory program under the Surface Mining Act.
Second, at the time the interim regulations were promulgated EPA provided an exemption from its effluent requirements for overflows from control facilities constructed, in conformance with EPA standards, to contain a 10-year, 24-hour precipitation event (i. e., the heaviest precipitation expected to occur over a 24-hour period during a decade based on National Weather Service data). 40 C.F.R. §§ 434.22(c), .32(b), and .42(b) (1978). The Surface Miners allege that in sections 715.17(a) and 717.17(a) of the interim regulations "OSM exempts only those overflows which the operator can prove actually result from a single precipitation event that is greater than a 10-year, 24-hour event" whereas "EPA exempts all overflows from a design facility,"
Third, the EPA, in assessing compliance with its effluent limits, measures suspended solids in streamflow or runoff on a "net-gross" basis by offering an exemption or "credit" for pollutants already present in intake water. 40 C.F.R. § 125.28 (1978). The Secretary's interim effluent regulations measure suspended solids on a "gross" basis, however, and give no such exemption for discharged pollutants attributable to causes other than mining.
We hold that the EPA variances and exemptions at issue here are substantive elements of regulation under the Federal Water Pollution Control Act, and not "gaps" in EPA's statutory authority or administration, and that the Secretary, pursuant to section 702(a)(3), may not alter these variances and exemptions by promulgating more stringent provisions insofar as the variances and exemptions apply to surface coal mining operations. Thus, sections 715.17(a) and 717.17(a) of the interim regulations are "inconsistent with law"
For the foregoing reasons, we affirm the District Court's rejection of the Surface Miners' three general challenges to the interim regulations as a whole and specific challenge to the enforcement regulations concerning surface mining on Indian lands. We reverse the District Court, however, as to the 1,000-foot distance limitation on blasting, the one inch per second maximum limitation on peak particle velocity produced by blasting, and the grandfather exemption for surface mining on prime farmlands; and we hold invalid those provisions of the interim regulatory program. Finally, we remand the issue of the interim effluent regulations to the District Court for proceedings, as detailed above, not inconsistent with this opinion.
Affirmed in part, reversed in part, and remanded.
We will not disturb the District Court's conclusion. The Surface Miners make no showing of specific prejudice from the Secretary's rule-making procedures. See B. F. Goodrich Co. v. Department of Transp., 541 F.2d 1178, 1184 (6th Cir. 1976), cert. denied, 430 U.S. 930, 97 S.Ct. 1549, 51 L.Ed.2d 773 (1977) ("[t]he Administrative Procedure Act does not require that every bit of background information used by an administrative agency be published for public comment"); Braniff Airways, Inc. v. CAB, 126 U.S.App.D.C. 399, 412, 379 F.2d 453, 466 (1967) ("[t]he Supreme Court's opinions reflect the concern that agencies not be reversed for error that is not prejudicial"). Further, the record is replete with evidence of extensive industry participation in the entire rulemaking proceeding, see Memorandum for Appellee (Secretary of Interior), supra at 21-22, and the directive of the Administrative Procedure Act, 5 U.S.C. § 553(c) (1976), that interested persons be provided a meaningful opportunity to comment has been accomplished. Given the time limitations imposed by the Surface Mining Act, the methods employed by the Secretary in promulgating the interim regulatory program were reasonable and acceptable.
We conclude, in accordance with the function of a second reviewing court as suggested by Universal Camera Corp. v. NLRB, 340 U.S. 474, 491, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951), that the District Court "misapprehended or misapplied" the arbitrary and capricious standard of review that section 526(a) of the Act, 30 U.S.C. § 1276(a), directs it to employ; and that, given the significant effect of the maximum peak particle velocity regulation on the surface mining industry and the total absence of support for the one inch per second limit embraced by the Secretary, we must reverse the District Court and invalidate section 715.19 (e)(2)(ii) of the interim regulations.
The Surface Miners also allege that "the Secretary failed to give the public an effective opportunity to comment on BOM 656 as required by law." (Joint Br. for Appellants at 59) We need not address this procedural challenge because of our determination that the disputed interim regulation itself is without support in the record and therefore arbitrary and capricious.
The preamble to the Secretary's final permanent regulations states that, "Surface coal mining operations on Indian lands are not regulated under the permanent regulatory program. Regulations which currently apply to surface coal mining operations on Indian lands . . . are found at 25 C.F.R. Part 177." 44 Fed.Reg. 14,907 (1979).