PERMFILE47269

• Permit No: C1981018
• IBM Index Class Name: Permit File
• Doc Date: 10/10/2003
• Doc Name: Interior Board of Land Appeals Decision IBLA 94-366
• Section_Exhibit Name: Illustration 48
• Media Type: D
• Archive: No

IBIA 94-366
• concluded that the applicable statutory standard is whether they can be
considered facilities "resulting fran or incident to" PWCC's surface coal
mining activities at the Black Mesa/Kayenta Mines, under section 701(28)(B)
of SMCRA, 30 U.S.C. ~ 1291(28)(B) (1994), as that standard is explicated in
the preamble to 1988 final nzlemaking, 53 Fed. Reg. 47377 (Nov. 22, 1988).
(Decision at 1-2, 3.) Applying this standard, the Acting Director held
that neither the railroad nor the pipeline can be considered to result from
or be incident to PWCC's m;n;ng activities since a substantial portion of
each facility is located well beyond the minesite, the primary function of
the facility is to supply coal to a power plant, and, because the facility
is not owned or operated by ACC, it is more economically dependent on the
generating station than on the mine. (Decision at 3; see id. at 4, 5.)
The Acting Director also noted that weighing against SMCRA regulation is
the fact that neither the statute nor the regulations explicitly cover
either facility and that regulating them at this point would "reverse
longstanding decisions by [OSM] which have been relied upon" by the
operator of the facility. Id. at 3, 5.
r 1
~J
In their SOR, Appellants contend that the railroad and pipeline should
be considered "surface coal mining operations," within the meaning of
section 701(28)(B) of SMCRA, 30 U.S.C. ~ 1291(28)(B) (1994), because they
are "facilities 'resulting fran or incident to' surface coal mines that
[FWCC] operates on Navajo lands." (SOR at 2 (quoting from 30 U.S.C. ~
1291i28)(B) (1994)).) They argue that this is so because each facility is
"functionally integrated with the mine it serves because it provides the
sole means of transporting coal from the mine site directly to the mine's
only castanet" and serves no other mine, and each is "economically
dependent upon the mine they serve because the mine is their sole source of
cargo, and thus presumably their sole source of revenue." (SOR at 29, 30.)
Appellants distinguish this situation from that of a c..omceion carrier,
noting that each transportation facility and its respective mine and power
plant are a "closed, unified industrial operation." Id. at 14, 16. They
argue that to find that the facilities at issue here do not result from or
are not incident to the mines, would exclude all such facilities from SMCRA
jurisdiction. Since the railroad and pipeline are section 701(28)(B)
facilities, Appellants assert that OSM must require PWCC to either amend
its existing or proposed mine permits to enca~ass them or obtain separate
permits for them. Failing such amendment or pernit, OSM must preclude any
further operation of these facilities.
[1] Section 701(28)(A) of SMCRA provides that "surface mining
operations" are "activities conducted on the surface of lands in connection
with a surface coal mine," including "excavation * * *, and * * * chemical
or physical processing, and the cleaning, concentrating, or other
processing or preparation, [and] loading of coal for interstate cacmerce at
or near the mine site." 30 U.S.C. ~ 1291(28)(A) (1999). Subsection B
further provides that such operations include the "areas upon which such
activities occur or where such activities disturb the natural land
surface." It also states that
142 IBIA 35
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