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IBLA 94-366
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<br />[s]uch areas shall also include any adjacent land the use of
<br />which is incidental to any such activities, all lands affected by
<br />the construction of new roads or the ir~rovement or use of
<br />existing roads to gain access to the site of such activities and
<br />for haulage, and excavations, workings, impoundments, dams,
<br />ventilation shafts, entryways, refuse banks, dw[q~s, stockpiles,
<br />overburden piles, spoil banks, calm banks, tailings, holes or
<br />depressions, repair areas, storage areas, processing areas,
<br />shipping areas and other areas upon which are sited structures,
<br />facilities, or other orooerty or materials on the surface,
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<br />30 U.S.C. ~ 1291(28}(B) (1994) (emphasis added). In enacting SMCRA,
<br />Congress stated that "surface coal mining operations" thus include "all
<br />roads, facilities[,] structures, property, and materials on the surface
<br />resulting from or incident to [surface coal mining] activities, such as
<br />refuse banks, duag>s, calm banks, impouncknents and processing wastes." S.
<br />Rep. No. 128, 95th Cong., 1st Sess. 98 (1977) (e~hasis added).
<br />We find nothing in section 701(28)(B) of SMCRA, or its legislative
<br />history, which expressly provides that transportation facilities,
<br />especially ones that carry processed coal to a remote point of sale/use,
<br />should generally be considered "surface coal mining operations," subject to
<br />regulation under SMCRA. Rather, the statute indicates that the point at
<br />which the coal is loaded for shipment, following all processing/preparation
<br />necessary for marketing and associated transportation, constitutes the last
<br />stage of mining and related operations subject to SMCRA, either under
<br />section 701(28)(A) or (B). See Ann Lorentz Coal Co. v. OSM, 79 IBLA 39,
<br />43, 91 Interior Dec. 108, 113 (1984). Congress made no specific provision
<br />for regulating the transportation of processed coal, even though that
<br />activity is itself a "major industrial sector," which enccx~g~asses
<br />railroads, barges, trucks, and pipelines "that collectively stretch over
<br />thousands of miles throughout the nation." (PWCC Answer at 2, 9.) The
<br />fact that it did not, strongly indicates that Congress did not intend to
<br />regulate the transportation of processed coal under SMCRA, presumably
<br />leaving it to regulation pursuant to other Federal and state laws.
<br />We turn to SMCRA's implementing regulations. When the Department
<br />first promulgated regulations in 1979 designed to permanently govern
<br />surface coal mining activities, it established general standards for
<br />constructing and maintaining transportation facilities other than roads,
<br />which were said to include "[r]ailroad loops, spurs, sidings, surface
<br />conveyor systems, chutes, aerial tramways, or other transportation
<br />facilities." 30 C.F.R. ~ 816.180 (1979). The Department explained >n the
<br />preamble to the final rulemaking that the regulation was intended to cover
<br />transportation facilities "incident to coal mining operations," which are
<br />required for the "[m]ovement of coal, equipment and personnel within the
<br />mine plan area." 94 Fed. Reg. 15260, 15261 (Mar. 13, 1979) (emphasis
<br />added).
<br />142 IBLA 36
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