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Shawnee Coal Co. v. Andrus

Citation: 11 ELR 20041
No. No. C-2-79-1170, 15 ERC 1266/(S.D. Ohio, 10/02/1980)

The court issues a preliminary injunction to enjoin enforcement of orders issued pursuant to the Surface Mining Control and Reclamation Act (SMCRA) against a coal tipple that operates independently of a surface coal mine. Plaintiff operated both a surface coal mine and a coal tipple at the same location until the mine was closed in December 1978; the tipple, however, remained in operation. In December 1979 defendants issued notices of violation against the coal tipple, directed cessation of the operation and abatement of the violations, and assessed penalties of $750 per day. In addition to arguing that the SMCRA does not apply to an independent tippling operation, plaintiff argued that abatement of its violations or accumulation of the penalty would cause termination of the business. In determining plaintiff's likelihood of success on the merits, the court first declines to require plaintiff to exhaust its administrative remedies because the SMCRA does not mandate exhaustion in this instance, and the harm to plaintiff in exhausting its remedies would be substantial and irreparable. Second, the court finds that, based upon the statutory definitions of "surface coal mining operations" and "operator" and the fact that the Secretary of the Interior admitted that the Act does not apply to a tippling operation conducted independently of a surface coal mine, the tipple is not covered by the SMCRA. Finally, the court finds that plaintiff will suffer irreparable harm if the orders are not enjoined, the injunction will not cause substantial injury to other parties, and issuance of the injunction is in the public interest.

The full text of this opinion is available from ELR (4 pp. $1.00, ELR Order No. C-1230).

Counsel for Plaintiff
C. William O'Neill, Thomas B. Ridgley
Vorys, Sater, Seymour & Pease
52 E. Gay St., Columbus OH 43215
(614) 464-6400

Counsel for Defendants
James Rattan, U.S. Attorney
200 U.S. Cthse., Columbus OH 43215
(614) 469-5715

Nancy B. Firestone, Michael A. McCord; James W. Moorman, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2757

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]