APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before GIBBONS, HUNTER and GARTH, Circuit Judges
Devil's Hole, Inc. and Hecla Mining and Machinery Co. appeal from judgments against them in a suit by the United States for reclamation fees claimed to be due under section 402 of the Surface Mining Act.*fn1 P.L. 95-87, Title IV § 402, 91 Stat. 457, 30 U.S.C. § 1232. They claim that the court erred, both factually and legally, in holding that they owe such fees. We affirm.
Title IV of the Surface Mining Act, dealing with abandoned mine reclamation, creates a trust fund in the Treasury of the United States for the restoration of land and water resources and the environment previously degraded by adverse effects of coal mining practices. 30 U.S.C. § 1233(3). The trust fund consists of sums collected pursuant to section 402(a) of the Act which provides:
All operators of coal mining operations subject to the provisions of this chapter shall pay to the Secretary of the Interior, for deposit in the fund, a reclamation fee of 35 cents per ton of coal produced by surface coal mining and 15 cents per ton of coal produced by underground mining or 10 per centum of the value of the coal at the mine, as determined by the Secretary, whichever is less, except that the reclamation fee for lignite coal shall be at a rate of 2 per centum of the value of the coal at the mine, or 10 cents per ton, whichever is less.
30 U.S.C. § 1232(a). Reclamation fees not promptly paid are recoverable from coal mine operators "in any court of competent jurisdiction in any action at law to compel payment of debts." 30 U.S.C. § 1232(e).
The Act authorizes the Secretary of the Interior to promulgate rules and regulations necessary to carry out the provisions of the Act.30 U.S.C. §§ 1211(c)(2), 1224(a). The Secretary has by regulation defined "anthracite, bituminous and subbituminous coal [as] all coals other than lignite coal." 30 C.F.R. § 870.5 (1983). He has also defined "reclaimed coal [as] coal recovered from a deposit that is not in its original geological location, such as refuse piles or culm banks or retaining dams and ponds that are or have been used during the mining or preparation process, and stream coal deposits." Id. Moreover "reclaimed coal operations are considered to be surface coal mining operations for fee liability and calculation purposes." Id. Thus, under the regulations the Secretary claims a reclamation fee of 35 cents a ton or 10 per centum of the value of the coal, which is less, on reclaimed coal.
Devil's Hole and Hecla supply Pennsylvania Power and Light Company*fn2 with anthracite silt, some of which is recovered from lands owned by that electric power generator. Anthracite silt is a finely divided waste material that formerly was produced when anthracite coal from underground mines was processed by washing with water. When anthracite mining was common in eastern Pennsylvania, the mixture of water and waste resulting from processing was directed into retaining areas called silt dams or slush dams. Over the years the water evaporated, leaving a mixture of rock and fine coal particles. Devil's Hole and Hecla use bulldozers and front end loaders to recover the silt from silt dams. The product is then transported to one of Pennsylvania Power and Light Company's electric generators, where, mixed with other coal, it is used as a boiler fuel. Neither Devil's Hole nor Hecla paid any reclamation fees.
Claiming that the operations of Devil's Hole and Hecla fails squarely within the definition of surface coal mining in 30 C.F.R. § 870.5 (1983), the United States commenced this action to recover unpaid reclamation fees. Devil's Hole and Hecla defended on two grounds: that as a matter of fact anthracite silt is ...