OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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COALEX STATE INQUIRY REPORT – 136

September 28, 1990*

William Gerlach, Esquire

Pennsylvania Department of Natural Resources

301 Chestnut Street

Harrisburg, Pennsylvania 17120-2702

TOPIC: DEFINITION OF "IN CONNECTION WITH" UNDER "SURFACE MINING 

OPERATIONS"

INQUIRY: Please locate any federal or state cases interpreting portions of the definition of 

"surface coal mine operations"; in particular, the phrases "in connection with" and "incident to 

[underground coal mining]". Is the physical processing of coal at the site of final use regulated 

under SMCRA?

SEARCH RESULTS: The COALEX Library and the publicly available materials in LEXIS 

were used to identify relevant materials. The retrieved materials are organized in chronological 

order, according to the date a particular set of rules were promulgated. Federal Register notices 

include proposed, interim and final rules and their accompanying preambles. Administrative, 

federal and state decisions are listed following the set of rules to which they relate. Copies of the 

items discussed below are attached.

*Research on this inquiry was conducted in September, 1989. This Report has been updated to 

include the 1990 Flannery decisions. 

A. LEGISLATIVE HISTORY: 

S Rep No 128, 95th Cong, 1st Sess 98 (1977).

 "'Surface mining operations' is so defined to include not only traditionally regarded coal 

surface mining activities but also surface operations incident to underground coal mining, and

exploration activities." 

B. 1979 DEFINITION OF "SURFACE MINING OPERATIONS"

30 CFR 700.5, 44 FR 14902 (March 13, 1979)

"(a) Activities conducted on the surface of lands in connection with a surface coal mine....Such 

activities include...loading of coal for interstate commerce at or near the mine-site...."

TWO-PART TEST

 In its earlier decisions, the Interior Board of Surface Mining Appeals (IBSMA) developed a 

two-part test to determine whether an off-site coal processing or loading facility fit the definition 

of a "surface coal mining operation". IBSMA held that an off-site facility must be operated "in 

connection with" a surface coal mine and must be located "at or near" the mine site. As stated in 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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the preamble to the permanent program regulations published in the Federal Register on March 

13, 1979 (44 FR 14902), the phrase "at or near the mine site" modified only "the loading of coal 

for interstate commerce." [Excerpts of the preamble to the final rule are attached.]

WESTERN ENGINEERING, INC., 1 IBSMA 202, 86 I.D.336, IBSMA 79-14 (June, 1979).

 The IBSMA held that Western, owner of a river terminal which prepared and loaded coal for 

river barge shipments and acted as a contract handler of coal, did not own, operate, or lease any 

coal mines and was not a surface mining operation.

IN RE: PERMANENT SURFACE MINING REGULATION LITIGATION (PSMRL I, 

ROUND II), 19 Env't Rep Cas 1477 (D DC May, 1980). [Note: Excerpts from this case are 

attached.]

 The Court upheld the Secretary's rules, finding that SMCRA Section 701(28)(A) "clearly 

extends the regulatory directives...to include off-site processing and support facilities." Using a 

grammatical analysis of the structure of the subsection, the Court found that the phrase "at or 

near the mine site", "refers to activity following the preceding comma; namely, the loading of 

coal."

 The language in Section 701(28)(B) "provides an independent basis for regulating off-site 

facilities and processing plants....The language expressly includes 'adjacent land...incidental to 

such activities,' 'processing areas,' and 'other areas' that contain sited structures and facilities 

'resulting from or incident to such activities.'" 

DRUMMOND COAL CO., 2 IBSMA 96, 87 I.D. 196, IBSMA 80-8 (June, 1980), rev'd, 

DRUMMOND COAL CO. v ANDRUS, CV 80-M-0829 (ND Ala 1981). [Note: The text of 

this latter case is not available through LEXIS.]

 The IBSMA ruled that a coal processing facility that was owned by the same company that 

owned all the mines that supplied coal to it "may conduct activities 'in connection with' a surface 

coal mine within the meaning of 'surface mining operations'." In addition, a coal processing 

facility which was "functionally and economically integrated with several neighboring surface 

coal mines" but was "9 miles distant from the closest of those mines" was to be considered 

"near" a minesite.

VIRGINIA IRON, COAL AND COKE CO., 2 IBSMA 165, IBSMA 80-36 (July, 1980).

 "A preparation plant which is located 1 mile from a deep mine that processes its coal through 

the plant and which is permitted to the same person as is the mine is both at or near the mine and 

operated in connection with the mine."

DRUMMOND COAL CO., 2 IBSMA 189-195, IBSMA Nos. 80-56 (August, 1980). 

DRUMMOND COAL CO. v OSM, Docket No. NX 0-21-P, NX 0-22-P (April, 1980). [See 

DRUMMOND COAL below.]

 In reversing the ALJ, the Board ruled: "Where a coal processing facility is owned and 

operated by the same company that owns and operates the mine supplying most of the coal to the 

facility, that facility is operated 'in connection with' a surface coal mine...."
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 "Where a coal processing facility is found to be operated in connection with a surface coal 

mine and is located less than 15 miles from three active surface mining pits, that facility is 'near' 

the minesite...." 

ROBERTS BROTHERS COAL CO. INC., 2 IBSMA 284, IBSMA 80-14 (September, 1980).

 "A tipple located 200-300 feet from a minesite is a 'surface coal mining operation' within the 

meaning of 30 CFR 700.5 when the tipple processes and stores all of the coal extracted from that 

mine, the mine is owned by the owners of the corporation owning the tipple, and the mine was 

leased in order to supply coal to the tipple." 

SHAWNEE COAL CO. v ANDRUS, 661 F2d 1083, 11 ELR 21040 (6th Cir June, 1981).

 Shawnee owned and operated the surface mine and the tipple, located at the same site, which 

processed its coal. The tipple continued in operation after coal removal at the Shawnee mine 

ceased, processing coal removed from non-adjacent mines. The Court ruled that Shawnee's 

tippling operation was connected to its coal mine, that it remained an "operator" as "that term is 

defined in Section 701(13)", and that "the Secretary retains jurisdiction over an operator who has 

ceased removing coal until the reclamation activities are completed." 

REITZ COAL CO., 3 IBSMA 260, IBSMA 81-20 (August, 1981).

 "Mere evidence that a coal processing facility receives some undisclosed percentage of the 

coal production of two mines operated in connection with the facility, and located distances of 8 

and 11 miles from the facility, is not sufficient to establish that the facility is 'at or near' either of 

the mines...."

 "[T]he lack of a prescribed distance or even a general definition of the term 'near,' in both the 

Act and regulations...supports a functional consideration of the term."

SUMBEAM COAL CORP. v OSM, Docket No. CH 0-229-P (October, 1983).

 The ALJ ruled that Sunbeam's tipple was a "surface mining operation" subject to the 

regulations of SMCRA: Most of the coal processed at the tipple came from Sunbeam mines 

located 2 to 30 miles from the tipple; 55 to 60 percent of the output of these Sunbeam mines was 

process at that tipple. [Cites to SHAWNEE, above.] 

MARY DEBORD et al. v DINCO COAL SALES, INC., Nos. 82-5617, 82-5725, slip op (6th 

Cir 1984). MARY DEBORD et al. v WATT, Civil Action No. 82-99, slip op (E D KY 1982). 

DINCO COAL SALES, INC., 4 IBSMA 35, IBSMA 82-3-1, 82-11 (1982). DINCO COAL 

SALES, INC. v OSM, Docket No. NX 1-120-R (1981). 

 The tipple owned by Dinco processed coal from a Dinco-owned mine, located 25 miles from 

the tipple, as well as coal from mines not owned by Dinco. The Court stated: "We agree with the 

District Court's construction of 30 USC Section 1291(28) [SMCRA Section 701(28)], and with 

the plain language and the legislative history of that provision, that 'processing' tipples, as 

distinguished from 'loading' facilities, need not be located 'at or near the mine site' in order to be 

subject to the jurisdiction of the Secretary."
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C. 1983 FINAL RULE

48 FR 20392 (May 5, 1983). Support facilities and coal preparation plants.

 The definition of "surface coal mining operations" was revised to remove the ambiguity in 

the interpretation of the phrase "at or near the mine site": "(a) Activities conducted....Such 

activities also include the loading of coal for interstate commerce at or near the mine site."

Facilities located "at the site of ultimate use" were excluded from regulation. OSM stated its 

interpretation of the meaning of "in connection with": "A facility will not be deemed to be 

operated in connection with a mine if it is located at the point of ultimate coal use unless it is also 

located at the site of the mine. OSM will treat all facilities which handle coal as either 'in 

connection with' a mine or 'in connection with' an end user."

New definitions were provided for "'coal preparation' or 'coal processing'": coal processing 

included only those activities where coal was separated from its impurities. "Indeed, by its 

omission, OSM believes that Congress specifically excluded mere crushing and sizing."

The meaning of "incident to" was discussed in connection with the new definition of "support 

facilities". This definition clarified the types of facilities regulated and incorporated a proximity 

element: "When not at or near a mine, a coal loading facility will only be regulated if it is part of 

or results from or is incident to a regulated coal preparation plant or other regulated activity...."

ANN LORENTZ COAL CO., INC. v OSM, 79 IBLA 34, IBLA 83-613 (February, 1984).

 The Board used the following analysis to determine that the tipple was not at or near the 

surface mine nor integrated with it: "[C]ourt decisions and revised Departmental regulations 

have made it clear that in order to be conducting surface coal mining operations, an offsite 

facility which is involved in certain listed activities need only be operated in connection with a 

surface coal mine, while a facility involved only in the loading of coal for interstate commerce 

must be operated in connection with a surface coal mine, and that facility must be located at or 

near the minesite." 

A "series of words of limitation" are used to "identify the narrow category of loading operations 

which would be included in the definition of 'surface coal mining operation'....[T]hese limitations 

reveal a concern for geographic proximity between the surface coal mine and the loading 

facility....'At or near the mine site,' then, should be construed to include a loading facility which 

operates on the same permit area as the minesite or a loading facility which is physically 

integrated with the minesite to the extent that any potential or actual environmental damage 

associated with the mining operation cannot be effectively addressed by OSM without regard to 

the loading operation."

BLACKFOX MINING & DEVELOPMENT CORP. v OSM, Docket No. CH 1-103-R 

(June, 1984).

 ALJ applied the four part test from ANN LORENTZ COAL CO. to the facts of this case and 

determined that the mine and tipple were not part of the same operation: "First, the loading has to 

be of surface mined coal. Second, the loading facility has to be operated 'in connection with' a 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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surface coal mine. Third, the loading must be for the purpose of shipment in interstate 

commerce. Fourth, the loading facility must be 'at or near' the site of the mine with which it is 

connected." 

IN RE: PERMANENT SURFACE MINING REGULATION LITIGATION (PSMRL II, 

ROUND I), 14 ELR 20617; 21 ERC 1193 (D DC July 6, 1984). [Note: Only excerpts from 

this case are attached.]

 The Court, "once again" affirmed the Secretary's jurisdiction to regulate off-site facilities and 

processing plants under SMCRA Subsections 701(28)(A) or (B); however, it ruled that coal 

preparation or processing had to be defined to cover activities where coal was handled without 

being washed, cleaned or otherwise separated from its impurities.

Regarding support facilities, the Court ruled that the element of proximity was contrary to the 

Act; instead of using a geographic test, the Secretary should use a functional one.

REITZ COAL CO. v OSM, 83 IBLA 198, IBLA 84-184 (October, 1984). REITZ COAL 

CO. v OSM, Docket Nos. CH 0-292-P, CH 2-48-P (October, 1983).

 "In order to be conducting surface coal mining operations, within the meaning of [SMCRA], a 

coal preparation and processing plant need only be operated in connection with a surface coal 

mine. A coal preparation and processing plant which is operated in connection with a number of 

surface coal mines, therefore, conducts surface coal mining operations within the meaning of 

[SMCRA], 30 USC Sec. 1291(28)(A) (1982).

DRUMMOND COAL CO. v OSM, Docket No. NX 0-21-P (January, 1985). [See 

DRUMMOND COAL, above.]

 After examining "recent IBLA opinions, as well as [recent] regulatory changes," the ALJ 

reaffirmed the Board's earlier ruling that found that OSM "had jurisdiction over the preparation 

plant because it was operated 'in connection with a surface coal mine' and was 'near' the mine site 

within the meaning of 30 CFR Sec. 700.5 (1979)."

RACE FORK COAL CORP. v OSM, 84 IBLA 383, IBLA 83-618 [IBSMA 82-16] (January, 

1985).

 "Offsite processing facilities are operated 'in connection with' surface mines where the owner 

and operator of the facility is also the permittee and/or operator of a group of supplying mines."

IRONTON COAL CO. v DIVISION OF RECLAMATION, No. 1839, slip op (Ohio Ct App 

1987).

 Ironton Coal's facility, located 20 miles to 80 miles from the mines it serviced, was found not 

to be operated "in connection with" Addington mines: Although the officers of the two 

companies were the same, they were operated as "separated entities in all respects." The court 

held that the "activities conducted at the facility", the crushing of coal of coal at the river's edge 

for loading onto barges, did not constitute "physical processing"; therefore, the Ironton Coal 

facility was not a "coal mining operation" under the Revised Code of Ohio.
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D. INTERIM AND FINAL RULES.

50 FR 28180 (JULY 10, 1985) Interim final rule and Proposed rule.

 OSM redefined "coal preparation" and "coal preparation plant" to include "chemical or 

physical processing" and "cleaning, concentrating, or other processing or preparation." Deleted 

from the definition was the condition that coal preparation must include the separation of coal 

from its impurities.

In response to the July 6, 1984 District Court decision, the definition of "support facilities" was 

suspended: "OSM determined that no definition of support facilities is needed...that there is not 

need to amplify the language in the Act with respect to the meaning of the activities that are 

'resulting from or incident to' a regulated activity.Furthermore...support facilities are subject to 

the same performance standards as the mines they support...." 

52 FR 17724 (May 11, 1987). Final rule. Coal preparation plants.

 Under these rules, facilities which "engage in physical or chemical processing (i.e., crushing, 

screening and sizing facilities)" will be regulated as coal preparation plants" when they are 

operated "in connection with " a coal mine. "Facilities which do not separate coal from its 

impurities will be included in this definition."

Reference was made to the May 5, 1983 Federal Register notice for discussion of the definition 

of "in connection with" a coal mine and "in connection with" an end user.

The definition of "support facility", suspended in the interim final rule, continued until a new 

definition was adopted.

OSM set out a timetable for coal preparation plants covered by SMCRA as a result of the July, 

1984 District Court decision to obtain their required permits; however, OSM determined that the 

performance standards would be applied only to those preparation plants that operated after July 

6, 1984 even though it had "jurisdiction to cover facilities operating prior to July 6, 1984." 

NATIONAL WILDLIFE FEDERATION v HODEL, 839 F2d 694, 18 ELR 20646 (DC Cir 

January, 1988).

 The Court affirmed the District Court's ruling on the Secretary's jurisdiction over off-site coal 

preparation plants but reversed the lower court's finding on the use of proximity to define a 

support facility: "The phrase 'resulting from or incident to' clearly suggests a causal connection, 

which, while not indicating an element of geographic proximity, certainly does require some 

type of limiting principle of proximate causation that is familiar to the courts in tort 

law....Proximity is used as a guiding principle in a flexible implementation of the statute...." 

E. PROPOSED AND FINAL RULES.

53 FR 23522 (JUNE 22, 1988). Proposed Rule. Support facilities.

 OSM proposed to make final the removal of the definition of "support facilities". After 

various "outreach consultations", OSM concluded: "[H]aving a definition could be harmful in 
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that it would limit the ability of regulatory authorities to make case-by-case determinations of 

what is 'resulting from or incident to'....[I]t appears that regulatory authorities are capable of 

identifying off-site facilities that should be subject to the provisions of SMCRA without having a 

definition of support facilities in Federal regulations....Having considered the court's decision, 

OSMRE will again recognize that the consideration of proximity, as well as function, is valid in 

determining whether facilities are 'resulting from or incident to' regulated activities."

53 FR 23526 (JUNE 22, 1988). Proposed rule. Coal preparation plants not located within 

the permit area of a mine.

 OSM proposed to revise the language in the permitting requirements for off-site preparation 

plants in order to "clarify that the rule applies only to coal preparation plants operated in 

connection with a coal mine, and OSMRE believes that this limitation necessarily excludes 

facilities at the site of ultimate use...."

The corresponding language in the performance standards was proposed to be similarly revised.

"No definition of the term 'in connection with' is proposed. Regulatory authorities will find 

ample guidance for making determinations as to whether a coal preparation plant is being 

operated in connection with a mine in the language in the definitions of 'surface coal mining 

operations' in section 701(28) of SMCRA and 30 CFR 700.5, in case histories interpreting those 

definitions, and in preamble discussions in OSMRE's related 1979 and 1983 rules. Any attempt

to further define this phrase in a regulation would unduly restrict the discretion that regulatory 

authorities must have in order to make valid decisions about the applicability of the performance 

standards of SMCRA in individual cases. Categorical exclusions or inclusions would almost 

certainly result in inappropriate applications of the rule in some instances."

53 FR (NOVEMBER 22, 1988). Final rule. Support facilities.

 OSM removed the definition of support facilities from its regulations because: "[A] definition 

is not needed in order to ensure that such facilities are regulated under [SMCRA]. OSMRE has 

determined that the identification of facilities that support surface coal mining operations has 

been conducted in a manner consistent with the intent of "SMCRA during those periods when 

there has been no definition in Federal regulations (prior to the 1983 introduction of a definition 

and since the 1985 suspension of the definition)."

53 FR 47384 (NOVEMBER 22 1988). Final rule. Coal preparation plants not located within 

the permit area of a mine.

 The first sentence of 30 CFR 785.21 (a) of the final permitting regulations for off-site 

preparation plants now reads: "This section applies to any person who operates or intends to 

operate a coal preparation plant in connection with a coal mine but outside the permit area for a 

specific mine." The phrase "for a specific mine" was added to the proposed rule; the "redundant" 

phrase "other than such plants which are located at the site of ultimate coal use", which appeared 

in the earlier version of the rule was deleted. 

Corresponding changes were made to the performance standards.
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NATIONAL WILDLIFE FEDERATION v LUJAN, Civil Action Nos. 87-1051, 87-1814, 

88-1788 (Consolidated) (D DC February 12, 1990). 

 The court agreed with NWF that the effective date of the definition of off-site processing was 

the "date SMCRA was enacted into law", not the date the "court struck down the definitions's 

predecessor [July 6, 1984]." The court found that its earlier decision dealt with the Secretary's j 

jurisdiction as set by Congress and thus the Secretary had no authority to limit it. The court held 

as "wholly unpersuasive" the Secretary's arguments that exercising jurisdiction over these 

facilities was retroactive regulation and would be inequitable for some operators. The court 

stated:

"Given the statute's language and the Secretary's original permanent rules, reasonable operators 

should have been on notice that such off-site physical processing facilities might be regulated. 

Indeed, the reasonable operator should have been aware that such facilities likely would be 

regulated....Last, the court cannot agree that requiring regulatory authorities to take difficult steps 

to compel operators to reclaim is unwarranted when the operators had settled expectations 

otherwise."

NATIONAL WILDLIFE FEDERATION v LUJAN, Civil Action Nos. 88-2416, 88-3345, 

88-3586, 88-3635, 89-0039, 89-0136, 89-0141 (Consolidated) (D DC August 30, 1990).

 The court set aside regulations allowing the use of proximity as a factor in determining 

whether a plant is covered by SMCRA "insofar as it makes proximity to a mine site the limiting 

factor in deciding whether to regulate an off-site coal processing facility." The court ruled: 

"[It] will remand this regulation to the Secretary for him to clarify that proximity may be the 

decisive factor in deciding to regulate an off-site processing plant. The Secretary may wish to 

find another limiting factor to define 'in connection with' a mine that is not based on proximity, 

or he may wish to use his former criteria and state that an off-site processing plant operated in 

connection with a mine but off the mine site will be regulated without regard to its proximity to 

the mine."

ATTACHMENTS

A. S REP NO. 128, 95th Cong, 1st Sess 98 (1977). 

B. Excerpts from 44 FR 14902 (MARCH 13, 1979). Permanent Program Final Preamble -

Final rule. 

C. WESTERN ENGINEERING, INC., 1 IBSMA 202, 86 I.D.336, IBSMA 79-14 (June, 

1979). 

D. Excerpts from IN RE: PERMANENT SERFACE MINING REGULATION 

LITIGATION (PSMRL I, ROUND II), 19 Env't Rep Cas 1477 (D DC May, 1980). 

E. DRUMMOND COAL CO., 2 IBSMA 96, 87 I.D. 196, IBSMA 80-8 (June, 1980), rev'd, 

DRUMMOND COAL CO. v ANDRUS, CV 80-M-0829 (ND Ala 1981). [Note: The text 

of this later case is not available through LEXIS.] 

F. VIRGINIA IRON, COAL AND COKE CO., 2 IBSMA 165, IBSMA 80-36 (July, 1980). 

G. DRUMMOND COAL CO., 2 IBSMA 189-195, IBSMA Nos. 80-56 (August, 1980). 

H. DRUMMOND COAL CO. v OSM, Docket No. NX 0-21-P, NX 0-22-P (April, 1980). 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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I. ROBERTS BROTHERS COAL CO. INC., 2 IBSMA 284, IBSMA 80-14 (September, 

1980). 

J. SHAWNEE COAL CO. v Andrus, 661 F2d 1083, 11 ELR 21040 (6th Cir June, 1981). 

K. REITZ COAL CO., 3 IBSMA 260, IBSMA 81-20 (August, 1981). 

L. SUNBEAM COAL CORP. v OSM, Docket No. CH 0-229-P (October, 1983). 

M. MARY DEBORD et al. v DINCO COAL SALES, INC., Nos. 82-5617, 82-5725, slip op 

(6th Cir 1984). 

N. MARY DEBORD et al. v WATT, Civil Action No. 82-99, slip op (E D KY 1982). 

O. DINCO COAL SALES, INC., 4 IBSMA 35, IBSMA 82-3-1, 82-11 (1982). 

P. DINCO COAL SALES, INC. v OSM, Docket No. NX 1-120-R (1981). 

Q. 48 FR 20392 (MAY 5, 1983). 

R. ANN LORENTZ COAL CO., INC. v OSM, 79 IBLA 34, IBLA 83-613 (1984). 

S. BLACKFOX MINING & DEVELOPMENT CORP. v OSM, Docket No. CH 1-103-R 

(June, 1984). 

T. Excerpts from IN RE: PERMANENT SURFACE MINING REGULATION 

LITIGATION (PSMRL II, ROUND I), 14 ELR 20617; 21 ERC 1193 (D DC July 6, 

1984). 

U. REITZ COAL CO. v OSM, 83 IBLA 198, IBLA 84-184 (October, 1984). 

V. REITZ COAL CO. v OSM, Docket Nos. CH 0-292-P, CH 2-48-P (October, 1983). 

W. DRUMMOND COAL CO. v OSM, Docket No. NX 0-21-P (January, 1985). 

X. RACE FORK COAL CORP. v. OSM, 84 IBLA 383, IBLA 83-618 [IBSMA 82-16] 

(January, 1985). 

Y. IRONTON COAL CO v DIVISION OF RECLAMATION, No. 1839, slip op (Ohio Ct 

App 1987). 

Z. 50 FR 28180 (JULY 10, 1985). Interim final rule and Proposed rule. 

AA. 52 FR 17724 (MAY 11, 1987). Final rule. Coal preparation plants. 

BB. Excerpts from NATIONAL WILDLIFE FEDERATION v HODEL, 839 F2d 694, 

18 ELR 20646 (DC Cir January, 1988). 

CC. 53 FR 23522 (JUNE 22, 1988). Proposed rule. Support facilities. 

DD. 53 FR 23526 (JUNE 22, 1988). Proposed rule. Coal preparation plants not located 

within the permit area of a mine. 

EE.53 FR (NOVEMBER 22, 1988). Final rule. Support facilities. 

FF. 53 FR 47384 (NOVEMBER 22 1988). Final rule. Coal preparation plants not located 

within the permit area of a mine. 

GG. NATIONAL WILDLIFE FEDERATION v LUJAN, Civil Action Nos. 87-1051, 

87-1814, 88-1788 (Consolidated) (D DC February 12, 1990). 

HH. NATIONAL WILDLIFE FEDERATION v LUJAN, Civil Action Nos. 88-2416, 

88-3345, 88-3586, 88-3635, 89-0039, 89-0136, 89-0141 (Consolidated) (D DC August 

30, 1990).