Appeal from the United States District Court for the Western District of Pennsylvania (Pittsburgh), D.C. Civil No. 86-00203.
Gibbons, Chief Judge, Mansmann, Circuit Judge, and Katz, District Judge.*fn*
This matter comes before us on appeal from an order of the district court, which granted motions by the defendants -- the Pennsylvania Department of Environmental Resources, et al. ("the DER") -- to dismiss the complaint and amended complaint of the plaintiff, John J. Budinsky. We possess jurisdiction pursuant to 28 U.S.C. § 1291 (1982).
Budinsky claims that the Surface Mining Control and Reclamation Act of 1977 ("SMCRA"), 30 U.S.C. § 1201-1328, preempts certain sections of Pennsylvania's Clean Streams Law, 35 Pa. Stat. Ann. §§ 691.1-691.1001 (Purdon 1977 & Supp. 1986), sections of the Pennsylvania Surface Mining Conservation and Reclamation Act, 52 Pa. Stat. Ann. §§ 1396.1-1396.31 (Purdon Supp. 1986), and sections of the regulations at 25 Pa. Code § 86.1-86.242 (1985). Because the SMCRA exempts from its provisions "the extraction of coal for commercial purposes where the surface mining operation affects two acres or less," 30 U.S.C. § 1278(2), Budinsky contends that the DER cannot require him to obtain a state permit for his less-than-two-acre mine.
However, the SMCRA also states that "any provision of any State law or regulation . . . which provides for more stringent land use and environmental controls and regulations of surface coal mining and reclamation operation than do the provisions of this chapter or any regulation issued pursuant thereto shall not be construed to be inconsistent with this chapter." 30 U.S.C. § 1255(b). Because the district court properly concluded in light of § 1255(b) that "the federal statute does not supersede the Pennsylvania state laws and regulations and [that] defendants have not violated federal law by enforcing the provisions of the Pennsylvania laws against Budinsky[,]" Budinsky v. Pennsylvania Dept. of Environmental Resources, No. 86-203, slip op. at 6 (W.D. Pa. Oct. 22, 1986) (hereinafter "slip op."), we will affirm the district court's judgment.
Budinsky owns a small bituminous coal mine in Perry Township, Green County, Pennsylvania known as the Colpat mine. On November 28, 1977, the DER issued Budinsky a mine drainage permit which allowed him to mine 40,000 tons of coal per year. According to the plaintiff, he thereupon constructed water treatment systems, haul roads, and electrical systems to exploit the Colpat mine's reserves for commercial purposes. Over the next seven years, Budinsky spent $40,000 and exerted substantial personal effort to develop and to maintain his mine. The combined surface and underground mining activities disturbed less than two acres of surface area.
Meanwhile, Congress in 1977 enacted the SMCRA which proposed, inter alia, to establish national minimum standards "to protect society and the environment from the adverse effects of surface coal mining operations[.]" 30 U.S.C. § 1202(a). Under the SMCRA, the several states may "assume exclusive jurisdiction over the regulation of surface coal mining and reclamation operations . . .," 30 U.S.C. § 1253(a), by developing and submitting for the approval of the Secretary of the Interior "a program which demonstrates that such State has the capability of carrying out the provisions of this chapter and meeting its purposes . . . ." Id. Title 30 U.S.C. § 1255(a) states accordingly that "no State law or regulation . . . shall be superseded by any provision of this chapter or any regulation issued pursuant thereto, except insofar as such State law or regulation is inconsistent with the provisions of this chapter."
Notably, the SMCRA provides:
The provisions of this chapter shall not apply to any of the following activities:
(2) the extraction of coal for commercial purposes where the surface mining operation ...