Title: Analysis of DNR Surface Mining and Reclamation Act (5th Draft)
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Title: Analysis of DNR Surface Mining and Reclamation Act (5th Draft)
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Language: English
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Jake Varn Collection - Analysis of DNR Surface Mining and Reclamation Act (5th Draft) (JDV Box 43)
General Note: Box 18, Folder 2 ( Water Management - 1977-1983 ), Item 2
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004160
Volume ID: VID00001
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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,
CARLOS ALVAREZ
March 11, 1980 W. ROBERT FOES


Preliminary Draft



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

agencies.

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

operations.

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

operations.

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

overburden.

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-

sult intended?

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-

al entity.

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

mining property.








4. S 378.204 Exclusions

a. Subsections (1) and (2) exempt certain limited

dredging activities.

Comment: Presumably,.all other dredging activity not

specifically listed would be subject to regulation under the

act.

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-

duly broad.

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
present extraction.

Comment: This exemption has several problems:


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(i) the language about continuous extraction

with no more than six months cessation

is unclear.

(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

restoration.

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

following:

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-

tion.

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

thereunder.


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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

agents.

d. Subsection (9) permits DNR to enter into

contracts with federal, state and local governments, boards

and agencies.

Comment: This section does not specify what kind of

contracts may be involved, or how such contracts will be

funded.

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

danger.

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?


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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

Key Waterways.

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


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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

regulatory schemes.

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


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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

specified.

d. Subsection (6) permits waiver of any of these

requirements if they would impose "an extreme hardship" on

the applicant.

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

industry.

b. In addition to the general grant of authority,

every permit must require that the operator:


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a. Utilize and conserve the resource.

Comment: Utilization and conservation are inconsistent

requirements.

b. Conduct operations in a manner which will

avoid and minimize undesirable effects.

Comment: Again, it is impossible to avoid undesirable

effects.

c. Restore the natural functions of the mine

area so that it may be used for a variety of useful and

beneficial purposes.

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-

lized.

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.


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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

weighed?

i. Perform reclamation work concurrently with

the conduct of mining operation, unless exempted by the

department.

Comment: Concurrent reclamation is not always possible.

What standards must the department apply in exercising its

exemption authority?

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

conditions.

9. 378.209 Bond

Any private operator must furnish a performance

bond sufficient to cover the cost of reclamation, secured by


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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

established?

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

mining.

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.


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12. 378.212 Issuance, Denial and Revocation of
Permit

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
Reclamation Plan

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.


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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.

Askew.

15. 378.215 Mining and Reclamation Commission

This section creates an 11-member mining and

reclamation commission to assist in development of the

statewide plan.

Comment: Subsection (1) provides that "environmental

interests" will be represented on the commission, but makes

no provision for industry representation. Why?


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16. 378.216 Supervision of Operating Records and
Reports

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

redundant.

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-

pension.

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.


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Comment: The definition of confidential information is

confusing.

21. 378.221 Severability


Respectfully submitted,



Wade L. Hopping
Brian Bibeau
Richard D. Melson


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