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B&M Coal Corp. v. Office of Surface Mining Reclamation & Enforcement

ELR Citation: 12 ELR 20584
Nos. No. IP 79-973 C, 531 F. Supp. 677/(S.D. Ind., 02/04/1982)

The court rules that a Surface Mining Control and Reclamation Act (SMCRA) provision requiring payment of penalties into escrow prior to seeking administrative review is constitutional. Plaintiff petitioned for review of civil penalties proposed by the Ofice of Surface Mining (OSM) for three operations violations, but refused to pay the penalty into escrow prior to a hearing, as required by §518(c) of SMCRA. After finding that it has jurisdiction under §526(a)(1) of SMCRA, the court rules that the Act's procedures for assessing and challenging civil penalties satisfy due process requirements. First, plaintiff's private interest is not greatly affected by the procedures since it continues to possess the coal to be mined while it challenges the penalty. Second, plaintiff is unlikely to be erroneously deprived of its interest because it has several opportunities to challenge the penalty, and if successful, the penalty plus interest will be returned. Finally, the court rules that an important governmental interest, compliance with the Act, justifies the payment of proposed penalties into escrow prior to an appeal to the Hearings Office. Thus, §518(c) of SMCRA and accompanying regulations do not violate the Fifth Amendment.

Counsel for Plaintiff
Halbert W. Kunz
Kunz & Kunz
528 Chamber of Commerce Bldg., 320 N. Meridian St., Indianapolis IN 46204
(317) 632-6367

Counsel for Defendant
Alfred T. Ghiorzi
Land and Natural Resources Division
Department of Justice, Wahington DC 20530
(202) 633-2738

Harold R. Bickham, Ass't U.S. Attorney
274 Federal Bldg. & U.S. Cthse., 46 E. Ohio St., Indianapolis IN 46204
(317) 331-6333