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IBLA 94-366 <br />• In 1983, the L~partrnent defined what constitutes facilities resulting <br />fran or incident to surface coal mining activities, ternied "support <br />facilities," requiring that they be operated "in accordance with a permit <br />issued for the mine or coal preparation [plant] to which [they are] <br />incident or from which [their] operation results." 30 C.F.R. ~~ 701.5 and <br />816.181 (1983). It said that such facilities "may" include "railroads, <br />surface conveyor systems, chutes, aerial tramways, or other transportation <br />facilities." Id. However, the Department also stated, at the end of the <br />regulation, that "'[r]esulting from or incident to' a[] [surface coal <br />mining] activity connotes an element of proximity to that activity." Id. <br />Further, in the preamble to the final rulemaking, the Department indicated <br />that whether the enumerated transportation facilities could be considered <br />support facilities hinged on whether they did, in fact, result fran or were <br />incident to such activities. See 48 Fed. Reg. 20396 (May 5, 1983) ("[T]o <br />be regulated under Section 701(28)(B) a facility must result fran or be <br />incident to an activity regulated under Section 701(28)(A)"); National <br />Wildlife Federation (NWF) v. Hodel, 839 F.2d 694, 746 n.80 (D.C. Cir. <br />1988). <br />Moreover, the Department particularly stated that it would interpret <br />the regulation "to include all facilities located up to the point of <br />loadout of coal for interstate transport." 48 Fed. Reg. 20397 (May 5, <br />1983) (e~hasis added). Thus, where coal was transported by rail, the <br />regulation "would extend to the loadout facility located at or near the <br />mine site frart which run of mine coal is conveyed or trucked to the rail <br />line and loaded," and this same principle would also apply in the case of <br />other modes of transportation, such as trucks, barges, and pipelines. Id. <br />• This regulation would have clearly excluded that portion of the railroad <br />and pipeline at issue here, which are located beyond the loadout point. <br />In 1988, the Department dropped that regulatory definition, leaving <br />the requirement in 30 C.F.R. ~ 816.181 that "support facilities" be <br />operated under the permit for the individual mine or coal preparation plant <br />to which they were incident or fran which their operation resulted. It <br />rejected any categorical exclusion or inclusion in favor of a case-by-case <br />determination of what facilities can properly be recsalated under SMCRA, and <br />declined to define what facilities result fra[t or are incident to mining <br />activities. See 53 Fed. Reg. 47380, 47382 (Nov. 22, 1988). <br />However, in the preamble which acccx~anied its 1988 rulemaking, the <br />Department provided that OSM would address three factors when deciding <br />whether a facility is properly considered to result from or be incident to <br />surface coal mining activities: (1) whether the facility is geographically <br />proximate to the producing mine; (2) whether the facility is functionally <br />tied to the particular mine in question; and (3) whether the facility is <br />economically dependent upon that particular mine. 53 Fed. Reg. 47379, <br />47381 (Nov. 22, 1988). The Department noted that the factors of geographic <br />proximity and function had been endorsed by the circuit court in NWF, when <br />it reviewed the propriety of the prior "support facilities" definition in <br />30 C.F.R. ~ 701.5 (1983). See 839 F.2d at 765-66. <br />192 IBLA 37 <br />WWW Version <br />