OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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COALEX STATE INQUIRY REPORT - 308

December 1994

Olga Brunning, Esquire

Department of Natural Resources

Tawes Building 

580 Taylor Avenue, Room C-4

Annapolis, Maryland 21401

TOPIC: "IN CONNECTION WITH" (Continuation of COALEX Report Nos. 293)

INQUIRY: Please locate any additional information that discusses some aspect of the 

phrase "in connection with". 

SEARCH RESULTS: The enclosed OHA decisions complete the cases sent as part of 

Report - 293: "Moving equipment off the permit area". That Report included Report 136 

and provided the main "in connection with" OHA cases plus Federal Register 

preambles. While these cases are not as persuasive as the ones in Report 136, they 

contain a wider range of fact situations. Copies of the materials listed below are 

attached. 

COALEX STATE INQUIRY REPORT - 136, "Definition of 'in connection with' under 

'surface mining operations'" (1990).

The inquiry included a request for information on the phrase "in connection with" and 

"incident to [underground coal mining]" in an attempt to answer the question: "Is the 

physical processing of coal at the site of final use regulated under SMCRA?" The 

Report includes legislative and regulatory history material as well as administrative, 

state and federal decisions.

COALEX STATE INQUIRY REPORT - 293, "Moving equipment off permit area" 

(1994).

The fact situation here involved an operator driving a bulldozer and loader off the permit 

area. The inquirer asked if the moving of the equipment could be considered an activity 

"in connection with" surface mining operations and if the permitted area had to be 

revised to include the area affected by the equipment. The retrieved material included a 

COALEX Report the construction of walkways to move draglines and the need to have 

the walkway permitted, COALEX Report - 136, as well as some additional decisions.
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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BETHLEHEM MINES CORP., 2 IBSMA 215, IBSMA 80-46 (1980).

"Although [the tipple operated by Sell] was neither owned nor operated by 

Bethlehem,...Bethlehem controlled the facility through its lease from the railroad and 

contract with Sell....Such control, combined with Bethlehem's use of the tipple to load 

coal from Mine 91 and public advertising of a relationship between the mine and tipple 

through the sign bearing its MSHA number at the entrance is sufficient to establish that 

the facility is operated in connection with the mine within the meaning of 30 CFR 700.5."

Also see, FALCON COAL CO., INC., 2 IBSMA 406, IBSMA 80-70 (1980).

BRANHAM & BAKER COAL CO. v OSM, Docket No. NX 9-79-R (1980).

"There is sufficient indicia of common ownership and use, control and economic and 

functional integration to find that the coal loading facility/tipple/preparation plant in 

question was being operated 'in connection with' a surface coal mine. Of the eight 

mines which supplied the facility in question two were owned and operated by the 

applicant firm and two others were being mined by subcontractors on the applicant 

firm's mineral leases. These four mines were located within 14 miles of the Beverly Ann 

Tipple. Thus, that facility has been shown to be operated in connection with those four 

mines." 

ROSS TIPPLE CO. v OSM, Docket Nos. NX 9-17-R & NX 9-49-R (1980).

Ross Coal Co. and Ross Tipple Co. were found to be commonly owned. All of the coal 

processed at the Tipple came from the Ross mine, located 22 miles away. The ALJ 

found this to be a "sufficient basis for satisfying the connection test" when determining 

that the Ross Tipple was operated in connection with Ross Coal's surface coal mine.

WOLFERINE COAL CORP., 2 IBSMA 325, IBSMA 80-74 (1980).

SYLLABUS: "'Surface coal mining operations.' When a tipple is owned and operated by 

the same company that owns and operates the two mines supplying most of the coal 

processed through the tipple, that tipple is operated 'in connection with' a surface coal 

mine within the meaning of 'surface coal mining operations' in 30 CFR 700.5."

WELLMORE COAL CORP. v OSM, Docket No. CH 1-38-R (1980).

The ALJ concluded that OSM failed to "establish any functional or economic integration 

between the preparation plant and commonly controlled mines so as to bring this facility 

under the jurisdiction of the Office of Surface Mining."

THOROUGHFARE COAL CO., 3 IBSMA 72, IBSMA 80-77 (1981).
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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"At the time of OSM's inspections the tipple facility was operated by Thoroughfare in 

connection with and near a surface coal mine."

SOUTH MISSISSIPPI ELECTRIC POWER ASSOC. v OSM, Docket No. NX 9-35-P 

(1981).

"[T]he instant facts present a unique factual situation inasmuch as the coal preparation 

facility herein was under construction and was not in actual operation at the time of the 

alleged violation, thus presenting the question as to whether the two-part test in this 

area should be extended to cover facilities under construction as well as those 

completed and in operation at the time of the issuance of the notice of violation. That 

question must be answered in the affirmative when the evidence discloses, as here, that 

the facility being constructed is to process coal received from the same mines currently 

supplying petitioner's [existing] facility."

SOUTH ATLANTIC COAL CO. v OSM, Docket No. CH 1-166-P (1981).

"This is the first case where OSM has attempted to subject a tipple or preparation to the 

Act based upon the association it enjoys with its contract operators."

SOUTHWESTERN VIRGINIA COAL CORP. v OSM, Docket Nos. CH 0-323-R & CH 

1-193-P (1981).

Southwestern Virginia Coal's tipple was ruled to be "an operation done in connection 

with surface mining operations as defined in the Act": 

"[I]t is evident here that the tipple owes its existence to the production output of the 

various mines in the vicinity which are the contract miners for Southwestern Virginia. 

Southwestern Virginia is therefore an integral part of the coal mining venture it has 

designed regardless of whether they actually mined coal or not."

WESTBURY COAL MINING PARTNERSHIP v OSM, 3 IBSMA 402, IBSMA 81-55 

(1981).

In affirming the ruling of the ALJ, the Board cited to the ALJ's decision:

"In the instant case, the preparation plant must be found to be subject to the Act, 

because, while there is no evidence as to its nearness to a mine site, the partnership 

relationship between Tazewell and Westbury is sufficient to establish the type of interest 

envisioned by the Board....I must therefore find that the preparation plant was operated 

in connection with a surface coal mining operation that not only had joint ownership by 

virtue of the partnership relations, but joint control and management by virtue of the 

stipulation that the manager of both partnerships was the same individual."

SUNBEAM COAL CORP. v OSM, Docket No. CH 0-229-P (1983).
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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Analyzing the connection between the tipple and the mines as well as the distance 

separating the tipple and the mines, the ALJ determined that the coal preparation 

plant/tipple was covered under the Act and interim regulations and subject to OSM's 

inspection: both Sunbeam Coal's mining operations and tipple were in active operation; 

the tipple processed 55-60 percent of the coal mined by Sunbeam and accounted for 

most of the coal processed at the tipple.

CAMBRIA COAL CO. v OSM, Docket No. CH 0-216-P (1983).

Fallentimper Tipple, the ALJ ruled, fell within "the Act's ambit": Cambria Coal owned the 

tipple and all of the supplying mines, located between 4 and 16 miles away; the tipple's 

operations operated continuously; and the tipple processed coal provided exclusively by 

its wholly-owned minesites.

SOUTH EAST COAL CO. v OSM, Docket No. NX 2-18-R (1984).

As a result of the activities conducted at the Irvine processing facility (crushing coal, 

washing it, blending it and loading it into railroad cars), the facility was determined to be 

a "coal processing" facility and as such was a "surface coal mining operation" subject to 

the requirements of the Act and its associated regulations.

TOMMY CARPENTER ET AL., 88 IBLA 286, IBLA 83-632 (1985).

HEADNOTES: "'Surface coal mining operations.' A crushing and loading facility 

operated in connection with a coal mine need not be located at or near such mine in 

order to be a surface coal mining operation within the meaning of sec. 701(28)(A) of [the 

Act]."

VALLEY CAMP COAL CO. v OSM, 112 IBLA 19, IBLA 84-632 (1989).

The Board concluded that the stockpiling of coal from an underground mining operation 

was subject to the Act "where the evidence establishes that such stockpiling was 

incident to the surface operations of the mine."

"Given Valley Camp's own description of the surface activities it conducts in connection 

with its underground mine [from its Brief], we fail to comprehend the assertion that it 

was not engaged in any of the activities mentioned in subsection 701(28)(A)."

NATIONAL WILDLIFE FEDERATION v LUJAN, 928 F 2d 453 (DC DC March 22, 

1991).

"This case involves NWF's challenge to the Secretary's 1987 regulations that declined 

to regulate off-site processing facilities that were not included in the 1983 coal 

processing definition and that ceased operating before the PSMRL decision in July 

1984. Agreeing with NWF, the district court in this case held that the Secretary violated 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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the Act by failing to apply the coal preparation performance standards to all coal 

preparation facilities that have operated subsequent to the enactment of the SMCRA. 

733 F. Supp. at 435."

The circuit court reversed the district court's ruling, holding "that the Secretary 

reasonable exercised his discretion in regulating off-site physical processing facilities 

from the date of the PSMRL decision, instead of the effective date of the Act."

ATTACHMENTS

A. COALEX STATE INQUIRY REPORT - 136, "Definition of 'in connection with' 

under 'surface mining operations'" (1990). 

B. COALEX STATE INQUIRY REPORT - 293, "Moving equipment off permit area" 

(1994). 

C. BETHLEHEM MINES CORP., 2 IBSMA 215, IBSMA 80-46 (1980). 

D. FALCON COAL CO., INC., 2 IBSMA 406, IBSMA 80-70 (1980). 

E. BRANHAM & BAKER COAL CO. v OSM, Docket No. NX 9-79-R (1980). 

F. ROSS TIPPLE CO. v OSM, Docket Nos. NX 9-17-R & NX 9-49-R (1980). 

G. WOLFERINE COAL CORP., 2 IBSMA 325, IBSMA 80-74 (1980). 

H. WELLMORE COAL CORP. v OSM, Docket No. CH 1-38-R (1980). 

I. THOROUGHFARE COAL CO., 3 IBSMA 72, IBSMA 80-77 (1981). 

J. SOUTH MISSISSIPPI ELECTRIC POWER ASSOC. v OSM, Docket No. NX 9-

35-P (1981). 

K. SOUTH ATLANTIC COAL CO. v OSM, Docket No. CH 1-166-P (1981). 

L. SOUTHWESTERN VIRGINIA COAL CORP. v OSM, Docket Nos. CH 0-323-R & 

CH 1-193-P (1981). 

M. WESTBURY COAL MINING PARTNERSHIP v OSM, 3 IBSMA 402, IBSMA 81-

55 (1981). 

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

O. CAMBRIA COAL CO. v OSM, Docket No. CH 0-216-P (1983). 

P. SOUTH EAST COAL CO. v OSM, Docket No. NX 2-18-R (1984). 

Q. TOMMY CARPENTER ET AL., 88 IBLA 286, IBLA 83-632 (1985). 

R. VALLEY CAMP COAL CO. v OSM, 112 IBLA 19, IBLA 84-632 (1989). 

S. NATIONAL WILDLIFE FEDERATION v LUJAN, 928 F 2d 453 (DC DC March 22, 

1991).