ELR Citation: ELR 20419
No(s). 3-81-520 (E.D. Tenn. Jul 21, 1982)

The court holds constitutional §518(c) of the Surface Mining Control and Reclamation Act (SMCRA), which requires the payment of civil penalties into escrow prior to seeking administrative review. The court rules that the escrow requirement is not a taking of property without due process, as the loss to the coal operator is de minimus and administrative procedures and judicial appeal rights adequately guard against unreasonable assessments. The court rules that the escrow requirement creates no classification that violates equal protection.

The court holds that the notice and opportunity for review given were adequate and defendant's failure to seek administrative review constituted a waiver of his rights. Finally, the court rules that the penalties are not void even though the agency failed to inform the operator of the amount of the penalty within the period set by §518(c) since SMCRA sets no consequence for such failure, and the operator claimed no prejudice.

Counsel for Plaintiff
Robert S. More
Office of the Field Solicitor
Department of Interior, P.O. Box 15006, Knoxville TN 37901
(615) 971-5254

Counsel for Defendant
David A. Burkhalter II
Burkhalter & Johnson
P.O. Box 11841, Knoxville TN 37919
(615) 584-0241