The Honorable Ben Ramsey

Chairman Railroad Commission of Texas P. 0. Drawer 12967 Austin, Texas 78711 Opinion No. H-880
Re: Application of Texas Surface Mining and Reclamation Act to clay mining which incidentallyproduces lignite.
Dear Mr. Ramsey:
You ask whether operationswhich extract lignite coal incidental to surfacemining 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'sdirective to the Railroad Commission in the Texas Surface Mining and Reclamation Act, article 5920-10,V.T.C.S., **to regulate**  the production of coal and uranium by surfacemining 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 surfacemining of clay to be ured in the production of brick which incidentallyproduce lignite coal. Such coal is segregated and stockpiledfor the expressedpurpose of either providing a future energy e.ource for use in brick production or **for** sale to the public. You alao advise that, by comparison to the amount of clay surfacemined 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. 3705The Honorable Ben Ramsey - page two (H-880)

Section 3 of article 5920-10,V.T.C.S., states that the purpose of the SurfaceMining and ReclamationAct is

to prevent the adverse effects to society and the environment resulting from unregulated surfacemining operations, as defined herein

. . . . "Surfacemining" is defined in section 4(2) as:

[Tlhemining of minerals by removing the overburden lying above the **natural** deposit thereof and mining directly from the natural deposits thereby exposed

. . . .(Emphasisadded). 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 surfacemining operations involved solely in the productionof clay. The legislativehistory of the Act supports this conclusion. In the original version of theAct, "minerals" were defined as "soil,clay, coal, lignite, gravel, talc, limestone,rock, metallic ore,

substances of commercial value." %%%!e CommitteeG Natural (Emphasisadded). Resourcesadopted a substitute bill which deleted clay and other minerals underlined above. Such substitutewas passed by both Houses in substantially its present form. The omission of significantwords from an amendment indicates that the Legislaturedesired to change the effect of the statute or intended to exclude the object theretofore accomplishedby the words omitted. See 53 Tex. Jur.Zd, Statutes 9 178 and authorities cited therei-n.While a statute conferringadministrative authoritywill generally be liberallyconstrued, the agency must not go beyond the clear intentof the Legislature. Staufferv; City of San Antonio, 344 S.W.2d 158 (Tex.Sup. 1961); l??ex.JuxZd, AdministrativeLaw S 6. Since the Leaislatureclearlv intended to exclude clay mining operations from the effect of article 5920-10,we are of the opinion that the Railroad Commission isprecluded from regulating those clay mining operationswhich only incidentally involve themining of lignite.

p. 3706I -

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

In making its determination as to whether the extraction of lignite is more than a mere incident to a clay mining operation, the Railroad Commission should keep inmind the purposes of the Texas Surface Mining and ReclamationAct 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 ReclamationAct, article 5920-10,V.T.C.S., does not authorize regulationby the Texas Railroad Commission of surfacemining operations solely involving the production of clay. Whether an operation is a clay mining operationwhich only incidentally involves the production of lignite requires a factual determinationby the Commission,based on the particular facts and circumstances involved in each case.

A Very truly yours,

i :_'Attorney General

DAVID M. KENDALL, First Asssitant

C. ROBERT HEATH, Chairman Opinion Committee jwb of Texas