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<br />~.. <br />ISiA 93-458 <br />:,1~L]iA was rejected b7f the court in VirCinia S~sfaoe htinina 6 Realamatien <br />Assn. v. Andnis. 504 F.2d 312 (4th C.ir. 1479). Petitioner argues that the <br />9~x'd's deC1S1'17 hag l~e°ed the 8tET1d8Ttj far C'J'.3171iS1Q tem~SaL'V ti~~of e~ <br />as to make +•+Tt++A»y every llOV subject to te*zrT+TA*'y t»liPf. Finally, QSM <br />a~itends that the Board should reverse its decision affirmisig the ~+;~;__ <br />trative I,~.+ Judge's grant of tempozary relief. ;J <br />After reviewislg the 034 petition, we find that tine v;+-~ n;a surface <br />Mining 6 Reclamation ABa'R. cage dOe9 nOt support a different holding in <br />this decision. in that case on appeal from a district oau-t injunction <br />against nepartmaital enf~eit of g4~, the deci8irli noted that the <br />loaE~r court had ~*~*+++~*+a'~ that "it waa not necaa4ary to determine whether <br />the plaintiffs are ]ikoly to auooe+~d an the merits• in issuing an injunc- <br />tioii barring enforoan°s-t. 604 F.2d at 315. Ttie circzrtt ccxirt held that <br />the statutory Qiteri.a found at section 525 (c) of SML4iA J are applicable <br />to injunetica~s precluding enforeeuemt of SPl'SiA and that the lower cairt <br />erred in failing to ~nsi.des whether there was a substantial likelihood <br />plaintiffs would suoceeri on the merits based an the finding that the plain- <br />tiffs wand suffer irLepaLable injury and there was scant e'V1deS1Ce of harm <br />to other parties or the public interest (balance of harm). 604 F.2d at <br />315. The circuit court also cited the failure of the enjoining court to <br />consider whether relief will adversely affect public health or safety or <br />cause ;*m+~a^t enviramastal harm. ~. <br />[1] The decision of the Hoard in ,, on the other hand, <br />exprYSSly applied the statutory criteria fez t®porary relief found in <br />section 525(c) of Shl~iA. Specifically, in finding that a substantial <br />1 ~ka_] ~ht~ni Of 8UC~288 Cd1 th8 1lpSitS had be01 61Y7USl, W9 held Vlat <br />it is not necessary that the applicant's ric~it to prevail on the <br />merits of the curtrover'sy be free from doubt where he "has raised <br />questions going to the merits 6o serious, substantial, difficult <br />and doubtful, as to make Diem a fair grand for litigation and <br />No basis in the record is asserted foz this oontenticn that the evi- <br />dence does not support a finding that the applicant deaciistrated a sub- <br />stantial l;kolii,rrr; of 6u00eSa o11 the merits 88 the Board faa~d. Rather, <br />0.41 asserts that the Board should zeexamine "the record and the previous <br />arguments of the parties" (Petitiat at 15). <br />3D U.S.C. § 1276(c) (1988). Although section 526(c) of 332tA <br />applies to the grant of ts~ary relief by a court on judicial revieur <br />of an enforc~rsit proceeding, the a*a^.d~T~a for relief are stated in sim- <br />ilar terms regt,;Ting a sha~irig of "substantial likelihood" that petitioner <br />will prevail on the merits es well ae a finding that such relief "will not <br />adversely affect the tz hl~i , health Or safety or cause significant imminent <br />environmental harm to land, air, ar water resom.~oes." <br />132 IRIA 39 <br />