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September 30, 1985

UGI Corporation and Ken Pollock, Inc. and Heavy Media, Inc. Plaintiffs
James G. Watt, Secretary U.S. Department of the Interior and James R. Harris, Director, Office of Surface Mining Defendants

The opinion of the court was delivered by: CONABOY



 This Court issued a "Memorandum and Order" in this case on June 29, 1984 which, we thought at the time, rendered a final decision in this case. U.G.I. Corporation, Ken Pollock, Inc., and Heavy Media, Inc. (hereinafter collectively referred to as Plaintiffs) apparently thought so too and framed an appeal to the Third Circuit. The Third Circuit determined, however, that because our Order had not included an assessment as to how much Plaintiffs actually owe the Department of the Interior, there was not a final order in this case from which to appeal. The Third Circuit (per Judge Gibbons) stated:

Federal Rule of Civil Procedure 54(b) provides that "[w]hen more than one claim for relief is presented in an action . . . the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reasons for delay and upon an express direction for the entry judgment." . . . The rule provides, 'further' order that in the absence of such a determination any or other form of decision, however designated, which adjudicates fewer than all the claims. . . shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims. . . . (emphasis ours). See 747 F.2d 893, 894 (1984).

 Taking their cue from the emphasized portion of the citation above, Plaintiffs have filed a motion for summary judgment to the effect that the combustible material with which they generate electricity is not produced via strip mining, but is better characterized as the product of underground mining conducted decades ago. If we find that Plaintiffs' position is correct, we would then direct that the material taken by Plaintiffs from four different Luzerne County refuse banks between the fourth quarter of 1977 and the present would be taxable at the rate of $.15 per ton instead of $.35 per ton. *fn1" We do not so find.

. . . Title VII of the Act defines, "surface coal mining operations to include excavations, workings, impoundments, dams, ventilation shafts, entryways, refuse banks, dumps, stockpile's" overburden piles, spoil banks, culm banks,. . . 30 U.S.C.§ 1291 (28)(B). There is no doubt that appellant 's activities fall within this definition. See 747 F.2d 895, 898 (1984).

 Similarly, in this case there is no doubt that Plaintiffs' activities can only be described as "surface coal mining operations" since the materials have been removed from the aforementioned Luzerne County sites which Plaintiffs themselves characterize as "silt and culm banks". *fn3"

 The Plaintiffs base their contention on the very recent Third Circuit decision in U.S.A. v. Brook Contracting Corp., No. 84-5607, April 18, 1985, F.2d . Brook Contracting, supra, does stand, as Plaintiffs allege, for the proposition that § 1232 of the SMRCA should not be given an expansive interpretation. We do not see, however, from our reading of Brook Contracting that the Third Circuit has elected to alter the edict announced in Devil's Hole a scant seven months earlier. Brook Contracting states, in essence, that when calculations are made as to the number of tons that are taxable by the Department of the Interior pursuant to 30 U.S.C. § 1232(a) the Department may tax only the tonnage of combustible material produced. This Court fails to see how this determination affects the utility of Devil's Hole, which clearly affirmed the right of the Department to tax combustible material removed from refuse banks as a product of a surface mining operation. Since there is no allegation in the case sub judice that the Department is attempting to tax tonnages of non-combustible material, we find that Brook Contracting is inapposite and that the instant case is nearly identical factually to Devil's Hole and, hence, controlled by its rationale. We find, as we did in our earlier opinion, that Plaintiffs are conducting surface mining operations at the Luzerne County sites and, therefore, must pay the $.35 per ton duty prescribed by the SMCRA. *fn4"


 The Plaintiffs also seek judgment that they should not be assessed interest on any unpaid taxes this Court finds them to owe to the Department of the Interior. They cite Thomas v. Duralite Co., Inc., 524 F.2d 577, 589 (3d Cir. 1975), for the proposition that "[I]nterest is not to be recovered merely as compensation for money withheld but, rather, in response to considerations of fairness. It should not be imposed when its exaction would be inequitable . . . ." *fn5" Plaintiffs then note that another Third Circuit decision, Feather v. United Mine Workers of America, 711 F.2d 530 (1983), delineates a four part test to determine whether an award of pre-judgment interest is appropriate. That test inquires:

(1) Whether the claimant has been less than diligent in ...

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