June 4, 1975
Mr. Albert Griffiths
Division of Conservation
Department of Agriculture
Office Building No.2
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-99
Permits for multiple mining sites, and the time for commencement of reclamation
Dear Mr. Griffiths:
You have requested an official opinion concerning different aspects of the Surface Mining and Land Reclamation Act (SDCL 45-6A-l et seq.).
The first question is related to the following factual situation:
There are surface mining firms which operate from a number of pits, which mayor may not be contiguous in area, during the course of a year. The firm may mine from one of these pits for as little as one week during the year, since such operations are dependent upon market demand for the product in the area. Sometimes, a firm may receive an order for material which requires the reopening of a pit within a matter of days, and delay caused by the surface mining permit application process would result in loss of the order.
Your first question is:
May a single permit be used to include several surface mining sites belonging to a single mining firm?
This question is not directly answered by SDCL 45-6A-1 et seq. and therefore, it must be answered by interpretation of the legislative intent found within the Act. SDCL 45-6A-7 through 45-6A-9, inclusive, set forth the procedures concerning the application and issuance of surface mining permits. These sections address the issuance of a permit for a single surface mining site. SDCL 45-6A-7 requires that a permit application for a site contain information of a specific nature, such as, "The mineral to be extracted and type of operation to be conducted; . . . the volume of earth to be removed . . . the location of the operation." . . . and "the date when the operation shall commence." SDCL 45-6A-8 refers to the inspection of the proposed surface mining site. A general rule of legislative interpretation is that the use of a word in the singular also includes the plural, unless contrary intention plainly appears. See SDCL 2-14-6. However, a reading of SDCL 45-6A makes it apparent that each mine is unique and merits individual scrutiny. Obviously, the minerals to be extracted from different mines could vary, as well as the mode of operation for each mining site. The requirement that an application contain information as to the date for the commencement of an operation also indicates that the Legislature had a particular site in mind.
The Legislature directed the Conservation Commission to follow certain guidelines in performing its functions under the Act. SDCL 45-6A-27 requires the commission in promulgating rules to consider, "topography, terrain, and vegetation of the general surrounding area, its rainfall and soil type and recognize that these factors together with the manner and means of surface mining will require reclamation plans to vary widely, throughout the state and within geographical areas of the state." Clearly, the Legislature intended that each mining site receive individual scrutiny under the Act.
SDCL 45-6A-19 further supports the position that a permit is required for each mining site. That statute states in part: "An operator desiring to have his permit amended or renewed to cover additional contiguous land may file an amended application or plan with the commission" (emphasis added). Clearly, there would have been no need for the word "contiguous" to modify the word "land" if the Legislature had intended to allow the commission to grant an operator a permit covering separate and distinct mining sites. Therefore, the answer to your first question is NO.
Your second question deals with the following problem:
The life of a surface mining site may often be uncertain. The minerals at a site may today be devoid of commercial value to the operator, but the market conditions may change in a matter of months and make mining profitable at the site. Various other situations may exist to explain why a site is not presently being mined, but where the operator intends to resume operations.
Your question is:
When must a surface mining operator be required to commence reclamation of a site?
SDCL 45-6A-l et seq. contains no explicit requirements establishing a time frame for initiation of reclamation. The commission has been delegated the responsibility of determining when reclamation should be commenced. SDCL 45-6A-25(5) states, "The commission and department shall have and exercise the following powers, duties, and functions:
(5) To promulgate rules for the method of and the commencement and completion of reclamation to be conducted by operations; . . ."
Thus, it is the commission's responsibility to promulgate rules setting forth criteria which will control when reclamation should begin.
These rules should reflect the criteria for their promulgation as set forth in the Act. SDCL 45-6A-l (which is a statement of the legislative intent behind the Act) and SDCL 45-6A-27 (which sets forth guidelines for the commission in promulgating rules) are of particular importance.
Thus, the answer to your second question is: Reclamation shall be done in accordance with criteria adopted in commission rules which are reflective of the Act's policy guidelines.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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