The Honorable Ben Ramsey              Opinion No. H- 880
Chairman
Railroad Commission of Texas          Re: Application of Texas
P. 0. Drawer 12967                    Surface Mining and Reclama-
Austin, Texas 78711                   tion Act to clay mining
                                      which incidentally produces
                                      lignite.
Dear Mr. Ramsey:
     You ask whether operations which extract lignite coal
incidental to surface mining of clay used in the production
of brick, are within the provisions of the Texas Surface
Mining and Reclamation'Act and, therefore, subject to
regulation by the Texas Railroad Commission.
     In connection with the Legislature's directive to the
Railroad Commission in the Texas Surface Mining and Reclama-
tion Act, article 5920-10, V.T.C.S., to regulate   the production
of coal and uranium by surface mining and the reclamation of
lands dieturbed by such activities, you advise that there
presently ex1c.t at leaat two operations in this rrtate engaged
in the surface mining of clay to be ured in the production
of brick which incidentally produce lignite coal. Such coal
is segregated and stockpiled for the expressed purpose of
either providing a future energy e.ourcefor use in brick
production or for sale to the public. You alao advise that,
by comparison to the amount of clay surface mined at these
operations, the amount of lignite coal removed and stockpiled
is nominal and seldom, if ever, exceeds ten percent of the
volume of material  extracted and not regarded as spoil.




                            p. 3705
The Honorable Ben Ramsey - page two (H-880)


     Section 3 of article 5920-10, V.T.C.S., states that the
purpose of the Surface Mining and Reclamation Act is

          to prevent the adverse effects to society
          and the environment resulting from unregulated
          surface mining operations, as defined herein . . . .
"Surface mining" is defined in section 4(2) as:

          [Tlhe mining of minerals by removing the
          overburden lying above the natural deposit
          thereof and mining directly from the natural
          deposits thereby exposed . . . .(Emphasis added).
Section 4(l) includes in its definition of "minerals" only
"coal, lignite, uranium and uranium ore." Therefore, on its
face, article 5920-10 does not apply to surface mining
operations involved solely in the production of clay.
     The legislative history of the Act supports this con-
clusion. In the original version of the Act, "minerals"
were defined as "soil, clay, coal, lignite,
gravel, talc, limestone, rock, metallic ore,
        substances   of commercial value." (Emphasis added).
%%%!e      Committee G Natural Resources adopted a substitute
bill which deleted clay and other minerals underlined above.
Such substitute was passed by both Houses in substantially
its present form. The omission of significant words from
an amendment indicates that the Legislature desired to change
the effect of the statute or intended to exclude the object
theretofore accomplished by the words omitted. See 53 Tex.
Jur.Zd, Statutes 9 178 and authorities cited therei-n. While
a statute conferring administrative authority will generally
be liberally construed, the agency must not go beyond the
clear intent of the Legislature. Stauffer v; City of San
Antonio, 344 S.W.2d 158 (Tex. Sup. 1961); l??ex. JuxZd,
Administrative Law S 6. Since the Leaislature clearlv
intended to exclude clay mining operations from the effect
of article 5920-10, we are of the opinion that the Railroad
Commission is precluded from regulating those clay mining
operations which only incidentally involve the mining of
lignite.




                              p. 3706
I   -




        The Honorable Ben Ramsey - page three       (H-880)


             In making its determination as to whether the extrac-
        tion of lignite is more than a mere incident to a clay mining
        operation, the Railroad Commission should keep in mind the
        purposes of the Texas Surface Mining and Reclamation Act and
        should be vigilant to insure that an operator does not use
        clay mining as a subterfuge to escape application of the
        Act.
                             SUMMARY
                  The Texas Surface Mining and Reclamation Act,
                  article 5920-10, V.T.C.S., does not authorize
                  regulation by the Texas Railroad Commission
                  of surface mining operations solely involving
                  the production of clay. Whether an operation
                  is a clay mining operation which only inci-
                  dentally involves the production of lignite
                  requires a factual determination by the
                  Commission, based on the particular
                  facts and circumstances involved in each
                  case.
                                           Very truly yours,
                                     A



                                         _' Attorney General of Texas
                                 i   :




        DAVID M. KENDALL, First Asssitant



        C. ROBERT HEATH, Chairman
        Opinion Committee
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