HOPPING BOYD GREEN & SAMS
ATTORNEYS AND COUNSELLORS
SUITE 420, LEWIS STATE BANK BUILDING
POST OFFICE BOX 6526
WILLIAM L. BOYD, IV BRIAN H. BISEAU
WILLIAM H.GREEN TALLAHASSEE, FLORIDA 32301 DAVID S. DEE
WADE L. HOPPING (904) 222-7500 WILLIAM D. PRESTON
RICHARD D. MELSON
GARY P. SAMS
JOHN C.WHITE Or COUNSEL,
March 11, 1980 W. ROBERT FOES
ANALYSIS OF DNR SURFACE MINING
AND RECLAMATION ACT (5th Draft)
Our clients in the mining industry support the concept
of legislation which calls for sound, environmentally sensi-
tive planning for mining operations and for beneficial
reclamation of mined areas.
However, the regulatory framework should recognize the
industry's need for predictable, consistent regulation
throughout the life of a project, since any major mining
operation involves long-term planning and requires a substan-
tial initial and continuing capital investment in plant and
equipment having a relatively long useful life. Such legis-
lation should also seek to minimize overlapping and duplica-
tive regulation, so that companies are not subjected to
conflicting requirements imposed by different regulatory
The following is a section-by-section summary of the
fifth draft of the "Surface Mining and Reclamation Act," to-
gether with comments on problem provisions.
1. 378.201 Short Title
2. 378.202 Legislative Purpose and Intent
a. Subsection l(d) declares that the process of
surface mining must "avoid.or minimize" its undesirable
effects and must "protect and preserve the land and waters
and related natural resources."
Comment: Since it is impossible to completely avoid
undesirable effects of surface mining or to preserve the
natural resource being mined, this statement of intent may
be unduly broad.
b. Subsection (1)(f) provides that differences
in size, types and locations of surface mining shall be
recognized in carrying out the provisions of the act.
Comment: There is no guidance on what regulatory sig-
nificance these differences should have. Could this lan-
guage be used to prohibit certain types of surface mining?
Surface mining in certain locations?
c. Subsection (2)(c) discourages reclamation by
means of above-ground slime disposal areas.
Comment: Below-grade settling areas would not only be
expensive to construct, but would also be extremely slow to
dry, and would result in permanently swampy areas.
3. S 378.203 Definitions
a. Subsection (7) defines "permit area" to in-
clude all land to be involved in or affected by the mining
Comment: Land "affected by" the operations is very
broad, and would include, for example, adjacent land where
the water table was temporarily affected by pit dewatering
b. Subsection (9) defines "spoil pile" as the
overburden as it is piled or deposited in the process of
mining, and all other wastes derived from the mining and
milling process, or incident thereto, which are piled or
deposited on the land.
Comment: This definition is unworkable because all
other wastes could include tailings, slimes, and process
water. By mining definition, spoil pile refers only to
c. Subsection (10) defines "mining" very broadly
to include any extraction of minerals.
Comment: When read together with the exclusions from
the act, it is clear that this definition would include
operations such as sand pits, or borrow pits. Is that re-
d. Subsection (15) defines "agency" as an of-
ficial, department, commission, officer, division, author-
ity, bureau, board, section, or other unit of government,
including state, county, municipal or other local or region-
Comment: This definition is unacceptable since it is
overly broad and is used in 378.206(7) to define those
agencies which may have a right of entry and inspection on
4. S 378.204 Exclusions
a. Subsections (1) and (2) exempt certain limited
Comment: Presumably,.all other dredging activity not
specifically listed would be subject to regulation under the
b. Subsections (4) and (5) exempt excavation for
farming or on-site construction, and excavation of 1,000
cubic yards per year or less where no more than one acre of
land is affected.
Comment: Again, by implication this picks up all ex-
cavation of fill material for off-site use. That may be un-
c. Subsection (6) excludes extraction of materi-
al for roads only if provision is made for reclamation of
the mine area in the manner provided by the act.
Comment: This limited exclusion could significantly
increase road construction costs in the state.
d. Subsection (7) is a limited grandfather pro-
vision which exempts:
The area from which minerals are being
extracted on or have been extracted con-
tinuously with no more than a six-months
cessation of such extraction operations
before July 1, 1981; provided, however,
that this exclusion shall not apply to
any land and waters which have not been
physically altered as a result of said
Comment: This exemption has several problems:
(i) the language about continuous extraction
with no more than six months cessation
(ii) this exemption applies only to lands
physically altered prior to July 1,
1981. Thus, a new permit would be re-
quired for any part of a company's
present mining operation, even though it
was part of an overall long-term mining
plan which already held all required
permits and represented a substantial
long-term capital investment.
5. 378.205 Adoption of Rules and Regulations
This section requires DNR to adopt certain rules
by January 1, 1981. The standards throughout this section
are vague. Particular problem areas include the following:
a. Subsection (2) requires rules to "protect
biologically or hydrologically important uplands, wetlands
and water bodies; geological formations; and historical and
archeological sites through mitigation, preservation or
Comment: What uplands and wetlands are biologically or
hydrologically important? How is that determination made?
If all "geological formations" must be protected, what is
left to be mined?
b. Rule-making authority under subsections (2),
(3), and (6), is not specifically limited to mined land.
Comment: This section would apparently give DNR general
authority to adopt rules to protect uplands, wetlands and
water bodies, to promote soil stabilization, and to protect
public health and safety throughout the state.
6. 378.206 Administrative Powers and Duties
This section gives DNR broad authority to develop
statewide comprehensive plans for the regulation of surface
mining and reclamation; to issue, amend and revoke permits;
to issue orders to operators; to shut down operations; and
to institute court actions to enforce compliance.
Particular question or problem areas include the
a. Subsection (3) requires that copies of a per-
mit application must be furnished by DNR to a number of
state agencies (including DER, DCA, water management districts,
and regional planning councils) and local governments and
that DNR must consider all comments received from such agen-
cies within 40 days.
Comment: This appears to involve needless duplication
of effort. The act should either supersede other permitting
processes or eliminate the requirement for comments from
agencies which already have DRI or other permit jurisdic-
b. Subsection (6) provides broad powers to issue
and modify orders requiring an operator to take actions
necessary to comply with the act and with regulations adopted
Comment: Without some limitation, this section is ob-
jectionable since it appears to enable the department to
dictate and direct the entire mining operation.
c. Subsection (7) permits DNR to enter on and
inspect any operation, either directly or through agents of
any other agency.
Comment: This subsection does not impose any limita-
tion on the number or reasonableness of such inspections,
and could provide access by a large number of designated
d. Subsection (9) permits DNR to enter into
contracts with federal, state and local governments, boards
Comment: This section does not specify what kind of
contracts may be involved, or how such contracts will be
e. Subsection (10) permits DNR to issue written
warnings and cease and desist orders for any operation which
violates its permit, endangers the health and safety of the
public, or creates imminent and significant environmental
Comment: What is the effect of a written warning?
What procedural safeguards are there in connection with
cease and desist orders? Who determines what operations
endanger the public or create imminent and significant
environmental danger, and what standards are applied?
f. Subsection (12) directs DNR to recognize the
differences in the mining of various minerals, taking into
consideration the commercial value of such minerals and the
nature and size of operation necessary to extract the same.
Comment: By not specifying how these differences are
important, or how they should recognized, this section may
be an unconstitutional delegation of authority under the
recent Florida Supreme Court decision in Askew v. Cross
g. Subsection (13) authorizes the department to
delegate its authority to the department's executive direc-
tor or to any local government. Any local government must
either enforce the rules adopted under the act or must adopt
more stringent local standards.
Comment: This broad authority to subdelegate duties
may be unconstitutional.
Requiring more stringent local standards is
unduly burdensome if the local standards are generally suf-
ficient to protect public safety and welfare. Couldn't the
same goal be accomplished by leaving regulation to a local
government if it had adopted a mining ordinance which had
been approved by DNR as accomplishing the same overall goals
established by the act?
7. 378.207 Permit Required
This section provides that a permit for mining is
good for up to five years, is renewable only if the operator
agrees to comply with the rules in effect at the time of
renewal, prescribes the minimum contents of a permit appli-
cation, and provides that a bond and application fee must be
furnished before permit can be issued.
a. Comment: The provision of subsection (1)
which contains a five-year maximum permit life and allows
renewal only if the operation complies with requirements in
effect at the date of renewal imposes a harsh burden on a
company involved in a twenty-year mining plan, which might
have to change its mining procedures and reclamation plan
three times during the course of a single mining operation.
Could a company be required to replace unamortized equipment
to comply with changed regulations in the tenth or fifteenth
year of its project?
b. Subsection (2) requires sworn annual certifi-
cate of compliance with both the act and with regulations of
all other agencies having any regulatory responsibilities
over the operation.
Comment: The requirement of certifying compliance with
other agency regulations unnecessarily duplicates the other
c. Subsection (5) specifies the information to
be included in a permit application.
Comment: This provision duplicates much of the infor-
mation already required in connection with a DRI application.
Other specific problems include:
(i) Subsection (d) which requires a map
depicting names and locations of all
wetlands and water bodies, but provides
no definition of wetlands. If a broad
meaning were given this term, it could
include land containing a high percen-
tage of the state's mining reserves.
(ii) Subsection (c) requires proof of publi-
cation of a notice including a detailed
description of the land to be affected
by mining operations. However, the con-
tent and timing of the notice are not
d. Subsection (6) permits waiver of any of these
requirements if they would impose "an extreme hardship" on
Comment: This term is unnecessarily vague.
8. 378.208 Permit Standards
a. This section permits DNR to adopt "reasonable
standards" governing all phases of mining operations, includ-
ing reclamation, and gives it the authority to include such
standards as permit conditions.
Comment: This general provision is troublesome because
of the lack of a definition of "reasonable standards." A
definition ought to be provided which requires balancing of
costs and benefits, and recognizes potential impact on the
b. In addition to the general grant of authority,
every permit must require that the operator:
a. Utilize and conserve the resource.
Comment: Utilization and conservation are inconsistent
b. Conduct operations in a manner which will
avoid and minimize undesirable effects.
Comment: Again, it is impossible to avoid undesirable
c. Restore the natural functions of the mine
area so that it may be used for a variety of useful and
Comment: If prior to mining the land was of limited
use, does this section impose a requirement that the land be
returned to better than its original state?
d. Incorporate fish and wildlife mitigation
measures into other land uses where compatible.
Comment: This provision is confusing. For example,
what is a wildlife mitigation measure?
e. Provide silt traps for all drainways before,
during and for a reasonable period after mining, and remove
the same after disturbed areas are revegetated and stabi-
Comment: There should be a better definition of the
time frame for continuing responsibility by the operator.
f. Segregate the top soil portion of the over-
burden and maintain it separately for reclamation use.
Comment: This would be extremely costly to the indus-
try, if in fact it can be done at all.
g. Minimize disturbances to the prevailing
hydrologic balance and to the quality and quantity of water
in both surface and ground water systems.
Comment: This appears to carve away or duplicate some
of the exclusive jurisdiction over water issues granted to
the water management districts.
h. Incorporate best practical technology for
design and construction of water retention facilities.
Comment: Who makes the determination of what is best
practical technology? How are costs to the industry to be
i. Perform reclamation work concurrently with
the conduct of mining operation, unless exempted by the
Comment: Concurrent reclamation is not always possible.
What standards must the department apply in exercising its
j. Conduct such other actions as the department
may prescribe pursuant to rules and regulations adopted in
accordance with this act.
Comment: Read in conjunction with the department's
broad rule-making authority, this vague provision could give
the department carte blanche to impose unreasonable permit
9. 378.209 Bond
Any private operator must furnish a performance
bond sufficient to cover the cost of reclamation, secured by
a corporate surety, by a bank deposit, or by real property.
Comment: There is no apparent need for bonding based
on past results of reclamation under the existing provisions
of Chapter 378 since there.,have been no apparent violations
of any state laws nor attempts by any companies to circum-
vent their reclamation responsibilities.
Further, the cost of a bond secured by a corporate
surety would be very high, yet companies may not have suf-
ficient free assets to secure the bond by bank deposits or
pledges of real property.
Shouldn't some maximum dollar limit on bonds be
10. 378.210 Forfeiture of Bonds
Failure to commence corrective action within 30
days after written notice that reclamation of the mine area
is not proceeding in accordance with the reclamation plan
provides grounds to commence the forfeiture of the bond.
Both the cost of reclamation and a reasonable attorneys' fee
is recoverable. The act further provides that damages will
not be limited to the value of the land prior to the surface
11. S 378.211 Release of Bonds
Up to 70 percent of the bond may be released when
backfilling, regrading and drainage control of a mine area
in accordance with the reclamation plan is completed. The
balance may be released when the operation has been com-
pleted, but not less than two years after the date of.the
70 percent release.
12. 378.212 Issuance, Denial and Revocation of
a. Subsection (2) provides that no permit appli-
cation shall be approved if the applicant cannot comply with
the provisions of the act as shown by information in its ap-
plication, by inspection, or by evidence submitted at a
local government public hearing, if required.
Comment: Under what circumstances is a local govern-
ment public hearing required?
b. Subsection (4) provides for permit revocation
in the event of intentional misstatement in the permit
application, if it becomes impossible to complete the opera-
tion pursuant to the plan, or if the operation poses an
imminent threat to public health or safety.
Comment: This latter ground overlaps the situations in
which a cease and desist order may be issued. When is
revocation appropriate instead of a cease and desist order?
13. 378.213 Amendments and Renewal of Permits
This section provides for amendment and assignment
of permits, and provides for notice of intention to renew
between four and six months of its expiration date.
14. 378.214 Statewide Comprehensive Mining and
This section provides for the development of a
statewide, comprehensive mineral mining and reclamation plan
to be developed by the department and submitted to the
legislature for approval in 1982.
Among other things, the plan must identify areas
or categories of area as having particular environmental,
biological, economic, or social qualities which, if subject
to mining, would result in significant impacts or risks to
the public health, safety or welfare. Upon adoption by the
department, a presumption will be created against the issu-
ance of permits for mining activities in those areas.
Comment: The requirement that the plan be submitted to
the legislature may save this provision from unconstitution-
ality on the grounds of undue delegation to DNR to determine
what environmental, biological, economic or social qualities
represent state interests which should be protected. How-
ever, if a development permit is denied in such an area on
the grounds that the state is generally protecting the
public interest, this may constitute a taking for which
compensation must be paid under the recent First District
Court of Appeal decision in Estuary Properties, Inc. v.
15. 378.215 Mining and Reclamation Commission
This section creates an 11-member mining and
reclamation commission to assist in development of the
Comment: Subsection (1) provides that "environmental
interests" will be represented on the commission, but makes
no provision for industry representation. Why?
16. 378.216 Supervision of Operating Records and
This section authorizes the department to require
record keeping and reports, and grants department representa-
tives access to any mining operation or any records required
to be kept.
17. 378.217 Violations, Damages and Penalties
This section provides both for injunctive relief
and for the department to impose and collect civil penalties
of up to $10,000 per day.
Comment: Subsections (1) and (3) both permit the
imposition of $10,000 per day in penalties and appear to be
18. S 378.218 Land and Water Recovery Trust Fund
Fees, damages recovered, and penalties collected
will be deposited in a land and water recovery trust fund
for the purpose of recovering lands and waters of the state
to their natural functions and performing related research.
19. 378.219 Cessation of Operations
Any operator who temporarily ceases operations
must immediately notify the department. In order to be
permitted to resume operations, it must agree to reasonable
conditions for maintenance of the project during the sus-
20. 378.220 Confidentiality
This section enables an applicant to identify cer-
tain material as confidential, and provides that it shall
not be disclosed by the department.
Comment: The definition of confidential information is
21. 378.221 Severability
Wade L. Hopping
Richard D. Melson
I I -