Opinion letter to Mr. Robert Neuenschwander

April 9, 1973 OPIIHOil LETTER NO. 29 Answer by letter- Nowotny Mr . Robert ~{euenschwnnder Director, Missouri Land Reclamat ion Connission Room D-36, Capitol lui lcti n~ Jeff erson Cit y , Missouri 65101 Dear Mr. Neuenschvm.nder: F l L E 0 c:?9 This is in renly to your re~ucst for an official opinion of this office askinr; five questionR relating to the Lnnd Reclamation Act found in Sections l.J44 .7GO throueh 441L78G, R!>f1o Supp . 1971, concerning permits , acrea~e fees and bonds . The policy of the law i s declared in Section 4l.J4 .762, readin~ i n part as follows: "It is hereby declared to be the policy of this state to provide, after surface Mining opera- tions are completed, for the reclamation and conservation of land subjected to surface dis- turbance by surface mininp: .. . " Thus, the purpose of the la\'T is to recla11"1 land where the sur- face has been disturbed as a result of surface Minin~ . "Surface rnininr" is defined as: '' ... the mining of clay, limestone, sand nnd ~ravel by reMovine the overbur den lyin~ above natural deposits thereof, anct mininr directly from the natural denosits thereby exposed, and shal l include rninin~ of exposed natural depos- its of such minerals over which no overburden lies." Section 444 .765(11) Mr. Robert Neuenschwander Sect ion 4 411.7 70 requires a per mit before engaging in surface mining, readinp; in part as follows : "1. It shall be unla\orful bep:inning January 1, 1972, for any operator to enga~e in surface mining without first obtaining from the com- mission a permit to do so, in such form as 1s hereinafter provided. "2. Sections 444.760 to 444 .786 shall apply only to those surface mining and pit areas which are opened on or after January 1, 1972, or to the extended portion of pits extended after that date . " "Pit" is definell as: " .. . the place where clay, limestone, sand and ~ravel are bein~ or have been mined by surface mining;" Section 444.765(8) "Affected land," \'lhich term is used in Section 444.772 provid- ing for the permit application, is defined as f ollows: ''. . . the pit area or area from which over- burden shall have been removed, or upon which overburden has been deposited after September 28, 1971; " Section 444.765(1) "Overburden" is defined as: '' .. . all of the earth and other materials which lie above natural deposits of clay, limestone, sand and gravel; and also means such earth and other materials disturbed from their natural state in the process of surface mining;" Section 444 . 765(6) I Your first question reads: "1. Under HB 519, if overburden is removed but the actual r emoval of clay or limestone is done several years or more after the re- moval of the overburden, when is it necessary to obtain a permit, pay acreage fees and file a bond?" -2- Mr. Robert Neuenschwander We assume for purposes of this question that all activity oc- curred after January 1, 1972, and that the removal of overburden is for the purpose of mining clay or limestone. The answer depends on the purpose for which the overburden was removed or disturbed. If a person removed what would be considered overburden for the purpose of then removing natural deposits of clay, limestone, sand or gravel, that person must obtain a permit before the removal of the overburden, for such person would be en- gaged in surface mining, even if the actual removal of the sought- after materials did not occur for several years after the operation began. II Your second and third questions read: "2. Under HB 519, if overburden is removed prior to January 1, 1972 but the actual re- moval of clay or limestone is done after Jan- uary 1, 1972 is a permit, acreage fee and bond required? "3. Under HB 519 if overburden and removal of clay or limestone is done prior to January 1, 1972 and after January 1 , 1972 the only activ- ity is further vertical extension of the pit downward, by removal of clay or limestone, is a permit, acreage fee and bond required?" Under subsection 1 of Section ~~~ . 770 a person must obtain a permit to engage in surface mining after January 1, 1972. Surface mining means the mining (or taking) of materials by removing the overburden lying above such materials and then taking the materials out, or if there is no overburden over the materials, the direct re- moval of such materials. Section ~~~.765(11). Overburden, as you recall, means earth and materials which lie above deposits of clay, limestone, sand and gravel, but also such earth and other materials disturbed from their natural state in the process of surface mining . Section 444.765(6). This second part of the definition of overburden would have no meaning unless it meant something other than earth and other materials which lie above the natural deposits of clay, limestone , sand and gravel. The only meaning is thus earth and other materials which may l ie in l ayers between or within the natural deposits of clay, limestone, sand and gravel. This interpretation follows subsection 2 of Section ~44 . 770 which provides that the law only applies to those surface mining -3- Mr. Robert Neuenschvo~ander and pit areas which are opened on or after January 1, 1972, or to the extended portion of Eits extended after that date. And a pit is defined as the place where clay , limestone, sand or gravel are being or have been removed. Therefore, it is our opinion, in answer t o your second ques- tion, that if all earth and other material s have been removed above natural deposits of clay, limestone, sand or gr avel prior to Jan- uary 1, 1972, and only pure deposits of clay, liMestone , sand or gravel are thereafter being removed, with no further removal or disturbance of earth and other materials, then a permit is not re- quired. However, if the reverse is true then a permit is required, and, in answer to your third question, this i s so even though there is only vertical extension of t he pit. Obviously, if there is l ateral extention to new, undisturbed ground a permit is reauired . III Your fourth question reads as follows: "4 . Under HB 519, when a bond is required for the mining of clay or limestone, and the mining operation, after remov~l o~ overburden, may ex- tend over many years with a plan of reclamation for a future lake in the oren pit, is the bond required until such time as mining ceases and a lake is formed, or may the bond be released prior to that time?" A bond is required by Section 444.772 . 1(1), reading in part as follows: " •.. The operator shall file with the commis- sion a bond payable to the state of Missouri with surety satisfactory to the division in the penal sum of five hundred dollars for each acre or fraction thereof of the area of land affected, conditioned upon the faithful per- formance of the requirements set forth in sec- tions 444 . 760 to 444.786 and of the rules and regulations of the commiss ion. In a particu- lar instance where t he circumstances are such as to warrant an exception, the commission, in its discretion, may reduce the amount of the bond for a particular operation to less than the required amount . " - 4- Mr. Robert Neuenschwander The purpose of the bond is to assure that reclamation prac- tices imposed by Section 444.774 will be performed. See Section 444.778.1 which provides in oart: ·' . .. The penalty of such bond shall be five hundred dollars for each area or portion tnereof of land nronosed thereafter by the operator to be subjected to surface mining for the ensuing permit year. • . . " Section 444 .778 then provides, in part: ''2 . 'i'he bond or security shall remain in ef- fect until the mined acrea~es have been re- claimed, approved and released by the commission . " Accordingly, it is our opinion that anytime a permit is re- quired, a bond is also required for any acreage covered by the per- mit and that bond must remain in effect and cannot be released un- t il such time as all reclaiming has been completed, inspected , and finally rel eased by the Commission. '.o/e do note that in any appro- priate situation the bond can be reduced , Section 444.772( 1), but this does not mean it could be reduced to zero, since this would in effect amount to releasin~ the bond prior to completion of rec- lamation, which cannot be done. The bond must at all times be of a sufficient amount which will, in the judgment of the Commission , insure complete compliance with the Land Reclamation Act and the rules and re_p;ulations of the Commission . IV Your fifth question reads as follows: "5. Under HB 519 , when a permit is obtained and the acreage fee is paid for the mining of clay or limestone on one acre, is a fee re- quired on the same acre in subsequent years on application for a permit renewal if: a. There is only vertical extension downward in the one-acre pit with no further removal of overburden; or b . The first year of operation only part of the one-acre surface is dis- turbed and in the permit renewal year surface disturbance will only affect the remainder of the same acre? " -5- Mr . Robert Neuenschwander An acreage fee is required as follows: "(1) A basic permit fee of fifty dollars plus seventeen dollars and fifty cents for each acre or fraction thereof of the area of land to be affected by the operation shall be paid before the permit reauired herein shall be issued .... " Section 444 . 772 . 1(1) Section 444.772.4 provides in part as follows: "4 . Where acreap;e for which a permit has been issued is being mined, and mining operations have not been completed thereon durin~ the per- mit year, the permit as to such acreage may be r enewed by applying on a permit renewal form furnished by the commission for an additional permit year and payment of a fee of fifty dol- lars. . . . " The only acreage fee required to be paid is $17.50 per acre when a permit is originally applied for. Yours very truly, JOHN C. DANFORTH Attorney General -6-