The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL



ENVIRONMENTAL PROTECTION:


The removal of clay, gravel, peat, sand and topsoil under Part 91 of the Natural Resources and Environmental Protection Act

The extent of the exceptions for logging and mining in section 9115 of Part 91 of the Natural Resources and Environmental Protection Act


The exception for mining contained in section 9115 of Part 91 of the Natural Resources and Environmental Protection Act does not apply to the removal of clay, gravel, peat, sand and topsoil. Thus, the removal of these items is subject to environmental regulation under Part 91 of the Natural Resources and Environmental Protection Act dealing with soil erosion and sedimentation control.

The exceptions for logging and mining in section 9115 of Part 91 of the Natural Resources and Environmental Protection Act do not extend to ancillary and support facilities for those industries. Thus, the ancillary and support facilities for logging and mining are subject to environmental regulation under Part 91 of the Natural Resources and Environmental Protection Act dealing with soil erosion and sedimentation control.


Opinion No. 6937

April 7, 1997


Mr. Gary L. Walker
Marquette County Prosecuting Attorney
County Building
Marquette, MI 49855


You have asked two questions concerning Part 91 of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, MCL 324.9101 et seq ; MSA 13A.9101 et seq , which deals with soil erosion and sedimentation control.

Section 9115 of Part 91 of the NREPA provides that Part 91 does not apply to logging and mining.

This part does not apply to land on which a person is engaged in the industry generally referred to as logging, the industry generally referred to as mining, or the plowing or tilling of land for the purpose of crop production or the harvesting of crops.

(Emphasis added.)

You first ask whether the exception for mining contained in section 9115 of Part 91 of the Natural Resources and Environmental Protection Act applies to the removal of clay, gravel, peat, sand and topsoil. Neither Part 91 of the NREPA nor the administrative rules implementing Part 91, 1979 AC, R 323.1701 et seq, define mining. Research has not disclosed any Michigan appellate court decisions concerning the meaning of the term mining as used by the Legislature in section 9115 of Part 91 of the NREPA.

In addressing your first question, certain principles of statutory construction must be recognized. Statutory exceptions are given a limited rather than a broad construction. Rzepka v Farm Estates, Inc, 83 Mich App 702, 706-707; 269 NW2d 270 (1978). Also, a statute is construed to effectuate its purpose. Zawacki v Detroit Harvester Co, 310 Mich 415, 419-420; 17 NW2d 234 (1945); In re Barnhart Estate, 127 Mich App 381, 387-388; 339 NW2d 28 (1983), app den 419 Mich 852 (1984). The purpose of the Natural Resources and Environmental Protection Act, as stated in its name, is to implement the Legislature's charge under Const 1963, art 4, 52, to "provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction." Kimberly Hills Neighborhood Ass'n v Dion, 114 Mich App 495, 503; 320 NW2d 668 (1982). Finally, provisions of a statute are not construed in isolation, but, rather, in the context of other provisions of the same statute to give effect to the purpose of the whole enactment. Guitar v Bieniek, 402 Mich 152, 158; 262 NW2d 9 (1978).

The reference to mining in section 9115 of Part 91 of the NREPA is to "the industry generally referred to as mining." Thus, it is certainly fitting here to follow the teaching of Nelson v Grays, 209 Mich App 661, 664; 531 NW2d 826 (1995), that "[r]esort to dictionary definitions is appropriate to construe the common and approved usage of undefined statutory terms."

Mining is defined in the American Heritage Dictionary, Second College Edition, 1982, as "the process or business of extracting ore or minerals from a mine." (Emphasis added.) The same dictionary defines mineral as "[a] naturally occurring, homogeneous inorganic substance having a definite chemical composition and characteristic crystalline structure, color, and hardness." It defines ore as "[a] mineral or aggregate of minerals from which a valuable constituent, esp. a metal, can be profitably mined or extracted." These definitions do not appear to cover the five items about which you have inquired.

Part 631 of the NREPA, MCL 324.63101 et seq; MSA 13A.63101 et seq, deals with the reclamation of mining lands. In section 63101(a) of Part 631, the Legislature has defined mineral as follows:

"Mineral" means coal, gypsum, stone, metallic ore, or material mined for its metallic content and other similar solid material or substance to be excavated from natural deposits on or in the earth for commercial, industrial, or construction uses. Mineral does not include clay, gravel, marl, peat, or sand.

(emphasis added).

Thus, the removal of clay, gravel, marl, peat and sand is not mining subject to environmental regulation under Part 631 of the NREPA. If the removal of these items is included within the definition of mining under Part 91 of the NREPA, then the permit requirements of section 9112(1) of Part 91 that are designed to protect the environment would not apply to the removal of these items. The result would be that there is no environmental legislation covering the removal of these items.

However, the exception from regulation for mining should be narrowly construed. Rzepka v Farm Estates, Inc, supra. In addition, the various provisions of the NREPA should be construed with reference to each other to effectuate the overall statutory purpose of environmental protection. Guitar v Bieniek, supra. Clay, gravel, marl, peat and sand have been excluded from the definition of mineral under section 63101(a) of Part 631 of the NREPA dealing with the reclamation of mining lands. Topsoil is certainly more akin to these excluded items than it is to an inorganic substance. Construing the term mining, as used in section 9115 of Part 91 of the NREPA, as excluding these five items will result in their removal being subject to the environmental permit requirements of Part 91 dealing with soil erosion and sedimentation control. This construction will effectuate the overriding statutory purpose of protecting the environment.

It is my opinion, therefore, in answer to your first question, that the exception for mining contained in section 9115 of Part 91 of the Natural Resources and Environmental Protection Act does not apply to the removal of clay, gravel, peat, sand and topsoil. Thus, the removal of these items is subject to environmental regulation under Part 91 of the Natural Resources and Environmental Protection Act dealing with soil erosion and sedimentation control.

Your second question is whether the exceptions for logging and mining in section 9115 of Part 91 of the Natural Resources and Environmental Protection Act extend to ancillary and support facilities for those industries. Your letter lists, as potential ancillary facilities for mining, access roads, waste rock piles, tailings basins, ore stock piles, beneficiation plants, ore transportation routes and water impoundments. For logging, your letter lists as potential ancillary facilities access roads, saw mills and log landings.

OAG, 1993-1994, No 6818, p 192, 193 (September 15, 1994), concluded that the legislative exception of mining from the provisions of the Soil Erosion and Sedimentation Control Act of 19721 "does not include an access road leading to and from the area of mineral extraction and related activities." In reaching that conclusion, the opinion stated, at pp 192-193:

In section l(b) of the statute dealing with the reclamation of open pit mining lands, 1970 PA 92, MCL 425.181 et seq; MSA 18.594(l) et seq, the Legislature defined "[m]ining area" or "area subjected to mining" as:

[A]n area of land from which material is hereafter removed in connection with the production or extraction of minerals by open pit mining methods, the lands on which material from such mining is hereafter deposited, the lands on which beneficiating or treatment plants and auxiliary facilities are hereafter located, the lands on which the water reservoirs used in the mining process are hereafter located, and auxiliary lands which are hereafter used.

Also, the administrative rules implementing 1970 PA 92 require reclamation activities on abandoned roads. 1979 AC, R 425.47. This broad definition of the mining area is consistent with the purpose of minimizing environmental damage in reclaiming as much land as possible once the mining operation is terminated.

On the other hand, SESCA [Soil Erosion and Sedimentation Control Act of 1972] is designed to control soil erosion and to protect our waters from sedimentation by requiring permits before manmade earth changes may be undertaken. Thus, in this context, a broad definition of mining limits protection of the environment. That may explain why the Legislature did not adopt the broad definition of mining area found in 1970 PA 92 when it passed SESCA.

In section 16 of SESCA, the statutory exception is for "land on which a person . . . is engaged in . . . mining." While this statutory language may very well cover mining related activities in close proximity to the area of mineral extraction, it does not encompass an access road to and from the mining area.

That reasoning is equally applicable here. Construing the logging and mining exceptions in section 9115 of Part 91 of the NREPA narrowly, as not extending to ancillary and support facilities for those industries, furthers the statutory purpose of protecting the environment. Under this construction of section 9115 the ancillary and support facilities for logging and mining would be subject to the permit requirements of Part 91 of the NREPA that are designed to protect the soil from erosion and our waters from sedimentation.

Whether a particular aspect of the overall logging or mining operation is an integral part of cutting timber or extracting minerals or, instead, an ancillary or support facility for logging or mining, may be a mixed question of law and fact. The role of the Attorney General is to issue opinions on questions of law, not fact. MCL 14.32; MSA 3.185; Michigan Beer & Wine Wholesalers Ass'n v Attorney General, 142 Mich App 294, 300-302; 370 NW2d 328 (1985), cert den 479 US 939; 107 S Ct 420; 93 L Ed 2d 371 (1986). It should be emphasized that, in making these determinations, the logging and mining exceptions should be narrowly construed to further the statutory purpose of environmental protection.

It is my opinion, therefore, in answer to your second question, that the exceptions for logging and mining in section 9115 of Part 91 of the Natural Resources and Environmental Protection Act do not extend to ancillary and support facilities for those industries. Thus, the ancillary and support facilities for logging and mining are subject to environmental regulation under Part 91 of the Natural Resources and Environmental Protection Act dealing with soil erosion and sedimentation control.


FRANK J. KELLEY
Attorney General

1 This act is now codified as Part 91 of the NREPA.