Laserfiche WebLink
IBLA 99-366 <br />• At the present time, the railroad and pipeline are functionally tied <br />to and econanically dependent on the surface coal mining activities at <br />issue here in the limited sense that they currently serve only to transport <br />all of the coal fran the Black Mesa/Kayenta Mines to the final point of use <br />and derive all of their revenues fran that service. However, there is no <br />evidence that the two facilities are otherwise functionally tied, in any <br />way, to the actual operation of or the conducting of any particular surface <br />coal mining activity regulated by SMCRA. <br />• <br />As the circuit court instructed in NWF, 839 F.2d at 745, the phrase <br />"resulting framm or incident to" requires some type of proximate causation, <br />"[o]therwise, every support facility that could be considered a 'but for' <br />result of a surface coal mining operation would tx: subject to SMCRA <br />regulation." We conclude that the railroad and pipeline are not <br />functionally tied to any regulated surface coal mining activity, other than <br />by the mere fact that they transport the final product derived fran such <br />activity to market. That fact alone does not render the facilities subject <br />to SMCRA regulation, since it would enccanpass any and all transportation <br />facilities. There is simply no evidence that Congress and the Department <br />intended to apply the "incidental facilities" definition of "surface coal <br />mining operations" in such a broad fashion. <br />Therefore, we conclude that the Acting Director, OSM, properly held <br />that the BM&LP Railroad and BMP's coal slurry pipeline are not "surface <br />coal mining operations," within the meaning of section 701(28)(B) of SMCRA, <br />and are not subject to the permitting and other requirements of the Act. <br />To the extent Appellants have raised other argiunents not specifically <br />addressed herein, they have been considered and rejected. <br />Accordingly, pursuant <br />Appeals by the Secretary of <br />appealed from are affine~d. <br />to the authority delegated to the Board of Land <br />the Interior, 43 C.F.R. ~ 4.1, the Decisions <br />John H. Kelly <br />Administrative Judge <br />I concur: <br />R.W. Mullen <br />Administrative Judge <br />192 IBLA 39 <br />C J <br />WWW Version <br />