2008-04-08_ENFORCEMENT - C1981013

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02/06/2008 18:26 3032315360 REG SDLICITDR DENVER PAGE 07/09 FEB. 6.2008 4:19PM U5U1 IOTA ~ Nu. D4L0 r, o/n IBLP, 2008-24 change.in the ownership of the permS~ holding subsidiary corpvradox~. Jest as SRI held the permit when it was owned by Entech, BRI continues to hold the permit whale it is owned vY WetiorYOreland. zt is only the transfer, assignment, or sale of the rights granted trta~der the permit, which requires, in accordance with Colorado Rule 2.08.6(1),1Prior wvrittcn approval by DBMS. The Tatums argue that "OSM freely admits that wpatmoreland is the s'tcccessar in irnerest" and point to 30 C.1~.R. § 701.5 that defines successor in interest as "any person who succeeds to rights granted under a permit, by transfer, assignment, or sale of those rights.. They conclude that "OSM, therefore, has declared that a transfer, assignment, or sale of permit tights has occurred" and that Westmarelaad must be considered the pennittee. 't'hey contend that BRI violated Colorado Rule 2.08.Ei by failing to get prior approval of that transfer. The Tatums' argument is based on the Regional Dlxector's sta~tenaent that "you are correct tb;at westu~vrelducl Coal Ccmipaziy is the successor io, interest." Decision at 5, The Regional Director made that stateszlent iz1 the context of holding that Colorado pule 2.08.6(5), which requires that "[a]ny successar in interest" who seeks to change the conditions of zmiz~ixlg or reclamation operations, or any ~of the terms or conditions bf the c~ri.giu.al. pPrmic must. apply for a new or revised permit, was not applicable because'Westanoreland had not made any of the changes triggering the necessity for a new permit or revised permit. While we understand how the Tawms may have been misled by .the Regional Director's statement, that statement is clearly incorrect, rmd rive modify his decision accorclingly, We:ttnorelaad is not a successor in interest as that term is defined in the regtil.atlonl; because in this case, as pointed oue above, there was no transfer, . assignmen~, or sale of rights granted under the permit. 'This is consistent with OSM's positlQn ox~ appeal that Westmoreland is AUC d successor in interest- `ry1-estmoreland did not stir;coed to rights granted by transfer, assignment, or sale of the State DRMS pernut for the Golden Eagle Mine:' Answar at 19. The regulations in 30 C.F.R. Part 778 set forth the minisnutn requirements for permit applications under a Federal or State progz~aan, and those regulations demonstrate the exror in the Tatums' argument that ~Nesunoreland must lie the permittee because they explicitly recognise that am applicant for a permit maybe owned or controlled by another person, Under 30 C.F.R. § 778.11 (c) (5), art applicant is required to pro~ride, inter aiia, information concerning any "[p]erson who owns ox ec~ntrols the applicant," This requirement would make no sense if the ' Tattams wexe correct in arguing that the permit must be transferracl w the person who owns or controls the applicant. This Board has previously recognized that a surface ruini~tg permit is properly issued to an exxtity that is owned or controlled lay 6