U.S. v. E & C Coal Co., Inc., s. 86-1731

• Decision Date: 05 May 1988
• Docket Number: Nos. 86-1731,86-1732,s. 86-1731
• Citation: 846 F.2d 247
• Parties: , 18 Envtl. L. Rep. 21,079 UNITED STATES of America, Plaintiff-Appellant, v. E & C COAL CO., INC., Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellee, v. E & C COAL CO., INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 247

846 F.2d 247

27 ERC 2031, 18 Envtl. L. Rep. 21,079

UNITED STATES of America, Plaintiff-Appellant, v. E & C COAL CO., INC., Defendant-Appellee.

UNITED STATES of America, Plaintiff-Appellee, v. E & C COAL CO., INC., Defendant-Appellant.

Nos. 86-1731, 86-1732.

United States Court of Appeals, Fourth Circuit.

Argued March 9, 1988.

Decided May 5, 1988.

Walton D. Morris, Jr., U.S. Dept. of the Interior (Roger J. Marzulla, Acting Asst. Atty. Gen., Washington, D.C., John P. Alderman, U.S. Atty., Thomas R. King, Asst. U.S. Atty., Roanoke, Va., Jacques B. Gelin Maria A. Iizuka, Dept. of Justice, Land and Natural Resources Div., Washington, D.C., on brief), for plaintiff-appellant.

G. Michael Williams, for defendant-appellee.

Before RUSSELL and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PER CURIAM:

The United States appeals from that portion of the district court's judgment concluding that E & C Coal Company, Inc. (E & C) was not liable for reclamation fees for coal mined prior to August, 1982. E & C cross-appeals from that portion of the district court's judgment concluding that E & C was liable for reclamation fees for coal mined subsequent to July, 1982. This action was brought pursuant to the Surface Mining Control and Reclamation Act, 30 U.S.C. Secs. 1201-1328 (1977). We reverse in part and affirm in part.

The Surface Mining Control and Reclamation Act (SMCRA) was designed to protect the environment from the adverse effects of surface coal mining operations. Pursuant to SMCRA, Congress created the Abandoned Mine Reclamation Fund, 30 U.S.C. Sec. 1231 (1977), into which coal mine operators pay "35 cents per ton of coal produced by surface coal mining and 15 cents per ton of coal produced by underground mining." Exempted from this requirement were those activities "where the surface mining operation affects two acres or less." 30 U.S.C. Sec. 1278(2)(1977).

To clear up confusion as to who was entitled to this two-acre exemption, the following definition of "affected area" was released in March, 1979:

Affected area means, with respect to surface mining activities, any land or water upon or in which those activities are conducted or located. With respect to underground mining activities, affected area means: (i) any water or surface land upon or in which those activities are conducted or located; and (ii) land or water which is located above underground mine workings.

44 Fed. Reg. 15317 (March 13, 1979); 30 C.F.R. 701.5.

A further "clarifying regulation" published in January, 1981, noted that

The definition of "affects" states that the area affected shall include the land or water above underground mine workings. This language reaffirms the current policy as reflected by the definition of "affected area" at 30 C.F.R. 701.5 and makes clear that OSM [Office of Surface Mining] intends that the definition of "affects" in no way changes the definition of "affected area" in the existing regulations.

46 Fed. Reg. 7903 (1981),

However, before this new regulation could go into effect, it was withddrawn by 46 Fed. Reg. 40650 (1981) which stated

Withdrawal of the January 23, 1981, rule will not affect enforcement of the two-acre exemption. The rule implementing the exemption that was published March 13, 1979 at [30 C.F.R. 701.5] ... has continued in effect during the rulemaking resulting in the January 23, 1981, exemption and will continue in effect pending adoption of a final revised two-acre exemption.

On December 15, 1981, Virginia's state program under SMCRA was conditionally approved with the caveat that "As a condition of approval, Virginia must change its definition of 'affected area' to include all land and water overlying underground mine workings." 46 Fed. Reg. 61085, 61101 (1981).

Both parties have agreed that E & C is entitled to the two-acre exemption only if "affected area" does not include the area above underground mine workings (the "shadow area"). The district court concluded that E & C was not liable for reclamation fees prior to August, 1982 because "A thorough search of the Surface Mining Act reveals that prior to ...