2008-04-08_ENFORCEMENT - C1981013

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02/06/2008 18:26 3032315360. REG SOLICITOR DENVER PAGE 06/09 FEB. 6.2408 4:18F'M USDI IBLA ~ iuu. D4LD r. ~/ u Y IBLA, 2008.24 related m 'the permit eligY`billry criteria contained in proposed rule 3o C ~.R. § 779.16(c~, which were 5nalized in SO C.F.R. § 773.72. The coulmenter suggested that a parent corporation does not necessarily own yr c:r~ntrol the operations of its subsidiary, and azgued that the parent should be ineligible for a permit ozily if it actually controlled the operations of a subsidiary with outstandir-g '"iolat{ons. OSM rejected rYris argiimetlt, stating: If tihe parent company owns or controls the subsidiary tu~.der the de43nitions we adapt today, the patent company, de facto, also owns or controls the subsidiary's operations. In upholding our previous eo:istrvet:-on of section 510(c) [of SMCRA, 30 U.S.C. § 1260(c) (2()00)], which on this point we import into this final rule, rbe D.c:. Circuit explained that our view is "consistent'nntth, if mot mandated by _ the: stat~tttory language, w~~ as noted, applied to aay violating operations `controlled by tl~e applicant,' aot only those diYect~d by hun. Accordingly the agenr~s construction mast be upheld "[~] 'Thus, in § 773.1.2 of this final .mile, we retained the ability to deny permit based on. both direct and indirect ovvuership or control ... of operations with curxent violations ... . 65 Fed. F~eg. 79582, 79621 (Dec. 19, 2000). ]:n considering appellants' azgumenc, it is important to understand the scope axrd purpose of the rule that was the subject of the comment to whr~0~ a was responding. That rule, ~tialized at 30 C.F.R. § 773-12Ce)(3),1mP requirerr~ent of section 510(c} of SMCRA, 30 U.S.C. § 1260(c) (2000), under which an applicant for a permit would aot be eligible if the ccppllcartt or its ope:xator awned or controlled a surface mining operation that her an unabated or corrected violation,. See Ruch v. OSM,156 IBLA 309, 316 Cz0Q3) • Alth°ugl~ the State program covnte~,art to 30 C.F.R. § 773.12(a) (3) would make Westmoreland ineligible foz a permit h`BRI or another subsidiary had outstanding viol~atiotts,6 Westrnore]and did not apply for a permit in this case. The TatuIDS' reliance on OSM's comment response is mf5placed. CISIV! points vut that no provision of OS1VI's regulations oz Colorado's State prograuL requires that a mining permit held by a subsidiary coxpvratioa be transferred m the parent corporation T17PTely upon acquisition of tihe subsidiary. Othexwlise, DBMS would have to approve a traas~er of the permit r~vhenever the is a s N orcai Milung Assn v, U.S. Dept: of Intenor,177 F• 3d 1, 5 (A.C. Cir. 1999). c As noted by llR1VJ.S in iTS ~"'~ ~ QSM's AVS ~ we~~relancl ks listed as a 100% owner of BRI in 'the permit an 5