November 2, 1976
Mr. Albert L. Griffiths, Director
Division of Conservation
Department of Agriculture
Anderson Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 76-107
Exemptions from Surface Mining Land Reclamation Act
Dear Mr. Griffiths:
You have requested an opinion in regard to the following factual situation.
FACTS:
SDCL 45-6A contains the Surface Mining Land Reclamation Act. The 1976 Legislature amended SDCL 45-6A-1O to increase the maximum amount removable annually without a permit from 1,000 to 10,000 tons.
As several operators in South Dakota have production rates which vary from year to year, you ask the following questions.
QUESTIONS:
l. If an operator removes more than 10,000 tons in one or each of several years and subsequently removes less than 10,000 tons in one or each of several years, can the Commission require the operator to post a bond and maintain a permit to assure reclamation of that portion of the site mined during the year or years when 10,000 tons or more were removed?
2. Does the 10,000 ton limitation apply to all materials including overburden and waste materials removed or disturbed at the site, or does the 10,000 ton limitation apply only to that material used or sold?
3. Are permit and bond requirements separate processes?
SDCL 45-6A-1O provides:
Sections 45-6A-7 to 45-6A-9, inclusive, shall not apply to the occasional or limited removal of minerals where no more than ten thousand tons of material is removed for purposes of sale or use, in twelve successive calendar months, except that these operations shall comply with this chapter as to regulations adopted hereunder in replacing the overburden and reclamation of the site.
IN RE QUESTION 1:
SDCL 45-6A-7 to 45-6A-9, inclusive, require a prospective operator to apply for a surface mining permit, submit a filing fee and file a bond or other security. The requirement that a reclamation plan also be submitted prior to beginning any surface mining, although internally referenced in SDCL 45-6A-8, is found in SDCL 45-6A-17. In addition, subdivision (6) of SDCL 45-6A-25 authorizes the commission to adopt rules "to carry out reclamation of affected land." In this regard, SDCL 45-6A-12, 13 and 22 provide that the bond filed for a previous year in which the 10,000 ton limit was exceeded may be continued, increased, decreased or released at the discretion of the commission based on the progress of the reclamation plan. In some instances, that plan may not be completed prior to the expiration of the period for which the permit is issued. Therefore, in my opinion, any operator who removes less than 10,000 tons of mineral in any twelve month period is exempt from the bonding and permit requirements of SDCL 45-6A for that period of time. However, said operator is not exempt from SDCL 45-6A-17 and the other above-cited provisions relating to reclamation of a mining site. The legislative intent as expressed in SDCL 45-6A-l and 45-6A-27, is to prevent waste and spoilage of land which may impede its productivity and the commission has the authority to supervise reclamation projects to their completion.
IN RE QUESTION 2:
The answer to your question number 2 is found in the definitions in SDCL 45-6A-2.
"Minerals" are defined in subdivisions (3) and (9) as "coal, clay, stone, sand, gravel and other minerals and mineral deposits . . . ," whereas "Overburden" is separately defined in subdivision (6) as "all of the earth and other materials" removed or disturbed in the process of surface mining. Thus, in my opinion, the term "minerals" as used in SDCL 45-6A-IO, should be literally interpreted to comply with the definition of subdivision (9) as not including "overburden."
IN RE QUESTION 3:
Your final question asks if the permit and bond requirements are separate processes. SDCL 45-6A-8 provides:
The application shall be accompanied by an initial fee of fifty dollars. Prior to issuance of the permit the commission shall cause an inspection to be made of the proposed surface mining site, and based upon such inspection and the report required to be filed by §45-6A-17, the commission shall set the level of the bond or security to meet the requirements of this chapter, which bond or security shall be filed or deposited with the division before issuance of the surface mining permit. The permit shall be renewed annually in connection with the report required to be filed by §45-6A-17 and payment of the renewal fee of twenty-five dollars.
The filing or depositing of a bond is clearly a condition precedent to the issuance of an initial permit. However, as is discussed hereinbefore, the bond may be continued after expiration of the permit if reclamation has not been completed.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:LLV:dh
