Executive Director's Report - January/February 1999

Sand and Gravel Procurement is Hot Topic on ACCA Phone Lines
The ACCA staff receives dozens of calls each week from county officials and employees. The majority of the calls are to obtain advice or opinions on how to handle certain situations, or interpretations and explanations of laws, regulations and opinions. The staff enjoys and appreciates these calls very much. We like interacting with county officials and employees and we are gratified when we help someone get through a tough situation or better understand the law. The calls are just as much a benefit to the staff as they are to the caller. The many calls we receive cause us to remain up-to-date on issues and laws affecting county government. Every call we receive increases our knowledge of the subject matter and, therefore, enables us to better answer the next call on the same subject.

The bottom line is, do not hesitate to call an ACCA staff member if you have a question or concern. Everyone benefits. You, the staff and the next caller.

The space below is devoted to a subject about which the staff has received several calls during recent months.

Procurement of Dirt, Sand, Gravel And Similar Raw Materials
All county governments in Alabama periodically obtain dirt, sand, gravel and other similar raw materials for all sorts of purposes. Counties usually purchase such materials from companies in the business of selling such material or from individual property owners who allow the county to come on their land and extract the materials. There are a few counties that actually own land that contains certain needed raw material.

A frequently asked question is, “Do purchases by counties of dirt, sand, gravel and other similar raw materials always have to be made on a competitive bid basis?” The answer is “no”, but it depends on the circumstances. The Alabama competitive bid statute contains numerous exemptions for certain types of purchasing situations. One of those is found at Section 41-16-51, subsection (a)(14). This subsection provides as follows:

Purchases of dirt, sand, gravel by a county governing body from in-county property owners in order to supply a county road or bridge project in which the materials will be used. The material shall be delivered to the project site by county employees and equipment used only on projects conducted exclusively by county employees.

Simply stated, this exemption means that if a county buys such material from an in-county property owner, the material is needed for a project to be performed by county employees, and if the material is to be transported from the owner’s property to the project site on county equipment driven by county employees, the material can be purchased at a price negotiated between the property owner and the county.

If, on the other hand, the material is purchased from an in-county property owner but is delivered to the project in equipment not owned by the county and operated by county employees, the purchase is subject to the competitive bid law. Likewise, if the property from which the raw material is to be taken is located in another county, the purchase is subject to the competitive bid law. The competitive bid law would probably also apply to purchases made from the inventories of individuals or business who are in the business of selling such raw materials to the general public.

The competitive bid law would obviously not apply to the extraction of raw materials from land owned by a county government.

Purchasing raw materials from individual land owners or extracting the materials from land owned by a county involve other issues that must be considered. Those issues involve the regulation of the extraction or mining of the raw materials.

The Alabama Surface Mining Act of 1969, which is found in Chapter 16, Article 9 of the Code of Alabama, 1975 provides for the regulation of surface mining activities. The act is administered by the State Department of Industrial Relations. The Act and regulations adopted thereunder provide, among other things, for the reclamation of lands upon which surface mining has occurred. The extraction of dirt, sand and gravel can and often does fall under the definition of a surface mining activity. Section 9-16-4 of the Alabama Code requires permits to be obtained for certain surface mining activities. The section exempts from regulation and permit requirements surface mining activities performed by governmental entities when the materials extracted are for governmental purposes and not for resale. The section also exempts from regulation and permit requirements surface mining activities established for the extraction of non-fuel minerals to be sold exclusively to county or municipal governments.

While this section pretty well exempts some surface mining activities involving county and municipal governments from reclamation requirements under the Alabama Surface Mining Act, such extraction or mining activities are not exempt from regulation by the Alabama Department of Environmental Management (ADEM) under authority granted to it by the Federal Clean Water Act.

ADEM requires most such surface mining activities to obtain a National Pollutant Discharge Elimination System (NPDES) permit. These permits, which are based on the number of acres being mined, are aimed at preventing runoff pollution. If a county owns the land from which the materials are being extracted, it must obtain the permit. If the county is extracting raw material from land owned by someone else, the owner or the county must obtain a permit and comply with the requisite regulations.

Any county official or employee interested in obtaining information about reclamation requirements should contact Mr. Walter Cartwright with the Department of Industrial Relations (334-242-8265) or Mr. Richard Hulcher with ADEM (334-213-4312) for information about requirements of the Clean Water Act.