(영문) 서울고등법원 2015.2.16. 선고 2014누50738 판결

2. The registration for the extension of the term of a mining right granted to the Defendant on November 7, 2011 as indicated in the separate sheet No. 1 shall be revoked.

3. The supplementary participation costs are borne by the Intervenor, and the remainder is borne by the Defendant.

Purport of claim and appeal

The same shall apply to the order.

Reasons

1. Details of the disposition;

The reason why the court's explanation concerning this part is as follows: "The registration of this case" (hereinafter referred to as "registration of this case") shall be "(hereinafter referred to as "registration of this case"; the term of mining rights shall be "registration of this case"; the term of mining rights shall not take effect even if there is an extension of the term of mining rights unless it is registered as one of the registered matters in the mining ledger (Articles 38 (1) 3 and 39 of the new Act); and further, the permission of the first instance court shall lose its effect (Article 28 of the new Act) unless it is applied for within a specified period after obtaining the permission." Thus, it shall be cited as it is in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The Plaintiffs asserts that the instant disposition is unlawful for the following reasons, and thus, the registration of the instant case should be revoked.

1) The disposition of approving mining plans issued on June 12, 200 on the mining right of this case, and the disposition of approving mining plans issued on March 26, 1963 and the disposition of approving mining plans issued on July 21, 1976 and the disposition of approving mining plans issued on June 12, 2000 became invalid, and thereafter the disposition of approving mining plans issued on June 12, 200 became final and conclusive.

As a result, the mining right in this case cannot be seen as a mining right authorized by the mining plan under Article 42 of the former Act. Thus, Article 4(1)2 of the Addenda of the amended Act, Article 12(2) of the former Act, and Article 4 of the former Enforcement Decree of the Mining Industry Act (amended by Presidential Decree No. 22556, Dec. 28, 2010; hereinafter referred to as the "former Enforcement Decree") should be applied to the permission for the extension of the term of mining right in this case. However, the defendant applied Article 3 of the amended Act, Article 12(3) of the new Enforcement Decree of the Mining Industry Act, on the premise that the permission for the mining plan in this case was still valid, and Article 4 of the former Enforcement Decree of the Mining Industry Act, and Article 4 of the former Enforcement Decree of the former Enforcement Decree of the Mining Industry Act.

2) Article 4(1)2 of the Addenda to the Amendment Act, Article 12(2) of the former Act, and Article 4 of the former Enforcement Decree provide that the investment records for three years retroactive from the date of application for the extension of the term of mining rights shall be excluded from those subject to the prohibition of the extension of the term of mining rights if the investment records for three years retroactive from the date of application for the extension of the term of mining rights amount to 100 million won or more. Thus, the defendant's intervenor's participation does not fall under the equipment for prospecting, but does not fall under 'mining or light' equipment, and the defendant's participation does not fall under the target of investment listed in attached Table 1 of the former Enforcement Decree, and the defendant's participation has stored the purchased mining cuts, etc. in the AB mining right mining area. Thus, it cannot be deemed that the representative director of the defendant's participation has invested in the development of the mining right of this case, without economic feasibility, and thus, it is difficult to believe that the submitted investment records have been made due to fraudulent investment investments.

3) The mining right of this case is not economically feasible, and as long as the permission for the extraction or alteration of the mining meters of this case was already revoked by the final and conclusive judgment of the Supreme Court, it is impossible to obtain authorization for the mining plan of this case. As such, the Defendant’s Intervenor’s economic damage resulting from the cancellation of the disposition of this case is minor, while the Defendant’s Intervenor’s Intervenor’s Intervenor’s failure to secure groundwater due to the continuous outflow of mine water in order to maintain the pits installed in the mining right of this case. As groundwater is contaminated by minerals, it is likely to cause loss of income sources due to the pollution of groundwater by nearby residents, including the Plaintiffs. However, the disposition of this case, without considering such circumstances, is erroneous in the misapprehension of discretionary power and abuse of discretionary power.

B. Relevant statutes

Attached Form 2 shall be as listed in attached Table 2.

C. Determination by issue

(1) Validity and applicable provisions of existing mining plan authorization disposition

A) In order to determine the legitimacy of the instant disposition that extends the duration of the mining right of the instant case, the issue is first whether the disposition to approve the mining plan of March 26, 1963 and the disposition to approve the mining plan of July 21, 1976, which existed prior to the determination of revocation of the disposition to approve the mining plan of June 12, 200 as alleged by the Plaintiffs.

B) Basic legal principles

In the event that the relevant administrative disposition is repeated and continued as in the instant case, if the subsequent administrative disposition is merely a minor modification of only a part of the contents of the prior administrative disposition, such subsequent administrative disposition shall not be deemed extinguished due to the subsequent administrative disposition, but it shall not be deemed that the main contents of the prior

Where a subsequent disposition is rendered, barring any special circumstance, the prior disposition becomes void (see Supreme Court Decision 2010Du20782, 20799, Dec. 13, 2012). In such cases, the time when the prior disposition becomes null and void shall be deemed to be when the period for filing a lawsuit, etc. against the subsequent disposition occurs and its formal existence, such as the lapse of the period for filing a lawsuit (see Supreme Court Decision 2001Du9653, May 28, 2002).

C) Effect of authorization of mining plans of March 26, 1963

The contents of the mining plan revised on July 21, 1976, except for the alteration from W to X, there is no dispute between the parties as to the contents of the mining plan approved on March 26, 1963, and the mining plan revised on July 21, 1976 is merely a small-scale alteration of only part of the contents of the preceding disposition. Even after the revised mining plan approved on March 26, 1963, the approval of the mining plan approved on March 26, 1963 still maintained its effect and there was a situation where the above two dispositions were in existence.

Furthermore, under the following circumstances, Gap evidence 4, Gap evidence 20-1 through 10, Eul evidence 32, Eul evidence 2, Eul evidence 2,6 and 7 obtained by adding the whole purport of pleadings, i.e., the approval of mining plan dated March 26, 1963 and the approval of new mining plan on June 12, 200, 200, 200, 200, 3B and AD mining plan were not yet included in the revised mining plan for 60-1, 200-6, 30-6, 200-6, 30-6, 60-6, 60-6, 60-6, 60-6, 20-6, 30-6, 60-6, 60-6, 30-6, 60-6, 30-6, 60-6, 60-6, 30-6, 1976.

D) Validity of the revised mining plan of July 21, 1976

For the same reasons as examined in the above sub-paragraph (c), the mining plan modification as of July 21, 1976 was in the state of being in the state of loss of its validity due to the substantial change of the main parts by the mining plan modification as of June 12, 200. However, the mining plan modification as of June 12, 200 is filed a lawsuit seeking cancellation before the formal existence of the mining plan modification as of June 12, 200, and the cancellation judgment became final and conclusive. Therefore, the mining plan modification as of June 21, 200, notwithstanding the mining plan modification as of March 26, 1963, still remains valid by jointly with the mining plan authorization as of March 26, 1963.

E) The grounds for the instant disposition

As seen above, the mining right of this case constitutes a mining right for which approval of the mining plan of March 26, 1963 and authorization of the mining plan of July 21, 1976 has been obtained under Article 42 of the former Act as the mining plan of July 21, 1976 maintained the validity of the approval of the mining plan of March 26, 1963. Thus, the extraction right of this case is deemed to have been registered on the date when the mining right of this case is registered under Article 3 of the Addenda of the amended Act, and Article 12(3) of the new Act and Article 4 of the new Enforcement Decree

Therefore, this part of the plaintiffs' assertion is without merit on different premises.

2) Whether the requirements for extension of the term of mining rights are met

(a)the requirements for the extension;

A extracting right holder may extend the term of extracting rights with the permission of the Minister of Knowledge Economy before the expiration of the term of extracting rights, as prescribed by Presidential Decree (Article 12(3) of the New Act). In such cases, where the production of minerals for three years retroactive from the date of application for the extension of the term of extracting rights falls short of the production of minerals under attached Table 3 of the Enforcement Decree, the extracting right holder shall not grant the extension of the term of extracting rights to the extracting right holder (Article 4(1)1 of the previous Enforcement Decree). However, where the production of minerals for three years retroactive from the date of application for the extension of the term of extracting rights falls short of the production of minerals under attached Table 3 of the Enforcement Decree, the extension of the term of extracting rights may be permitted if the investment records for three years retroactive from the date of application for the extension of the term of extracting rights are equal to or greater than those of mining under attached Table 2 of the Enforcement Decree (the proviso to Article 4(1)1 of the previous Enforcement Decree). In such cases, the performance records of mining business as prescribed in attached Table 2 of the Enforcement Decree refers to investments more than KRW 100 million.

B) Whether the performance records are met

살피건대, 갑 제6호증, 갑 제12호증의 1, 2, 갑 제13호증의 1, 2, 갑 제14호증의 1, 2, 갑 제33호증의 2, 을가 제9호증, 을나 제1호증의 1, 2, 3, 을나 제2호증의 1, 2, 3, 을나 제3호증의 1 내지 4, 을나 제4호증의 1, 2, 을나 제28호증의 1, 2, 을나 제30호증의 1, 2, 3의 각 기재 또는 영상에 변론 전체의 취지를 종합하면, 피고보조참가인은 이 사건 광업권과 관련하여, 2011. 5.경 AM로부터 AN 덤프트럭을 27,000,000원에 매수하고 그 매매대금을 모두 지급한 사실, 2011. 3.경 AO로부터 AP 굴삭기를 10,700,000원에 매수하고 그 매매대금을 모두 지급한 사실, 2011. 10.경 AQ로부터 AR 굴삭기를 75,000,000원(부가가치세 포함 82,500,000원)에 매수하고, 그 매매대금을 모두 지급한 사실, 현지조사 당시 위 덤프트럭 1대 및 굴삭기 2기의 매매대금인 120,200,000원이 투자실적으로 인정된 사실(을 제4호증의 1, 2의 각 기재에 의하면 피고보조참가인이 2010. 3.경 주식회사 윈윈모터스로부터 AS 1톤 봉고트럭을 12,000,000원에 매수하고 그 매매대금 및 이전비용 등의 명목으로 13,960,000원을 지급한 사실이 인정되나, 피고가 현지조사할 당시 위 봉고트럭의 매수에 투입된 자금은 투자실적으로 인정되지 아니하였으므로, 이 부분은 총 투자금액에서 제외되어야 할 것이다), 피고보조참가인은 위와 같이 매수한 덤프트럭, 굴삭기를 인근의 현장사무소에 보관하고 있는 사실, 피고보조참가인이 매수한 덤프트럭이나 굴삭기 등은 상시로 사용할 수 있는 상태인 사실 등을 각 인정할 수 있고, 이에 의하면 광산 인근 지역에 보관되어 있는 채광시설 및 장비로써 이에 투자된 금액이 1억 원이 넘는다고 할 것이므로, 이 사건 광업권은 일응 존속기간 연장허가의 대상이 된다고 할 것이다(갑 제6호증, 갑 제12호증의 1, 2, 갑 제13호증의 1, 2, 갑 제14호증의 1, 2, 을가 제1, 9호증, 을나 제1호증의 1, 2, 3, 을나 제2호증의 1, 2, 3, 을나 제3호증의 1부터 4, 을나 제4호증의 1, 2, 을나 제5, 6, 7호증의 각 기재에 변론 전체의 취지를 종합하면, 1994년식 15t 화물차인 위 AN 덤프트럭과 유사한 1996년 내지 1997년식 15t 화물차의 시세는 21,000,000원에서 28,000,000원 사이인 사실, 2000년식 5,25t 굴삭기인 위 AP 굴삭기와 유사한 2000년 내지 2003년식 5.25t 굴삭기의 시세가 12,000,000원에서 13,000,000원 사이인 사실, 2007년식 29.6t 굴삭기인 위 AR 굴삭기와 유사한 2007년 내지 2009년식 29.6t 굴삭기의 시세가 70,000,000원에서 75,000,000원 사이인 사실 등이 인정되고, 건설기계 등에 대한 시가 표준액은 위 각 트럭과 장비의 실제 거래가격을 적절히 반영한 것이라고 보기 어려워, 피고보조참가인의 투자실적이 과장된 것이라고 할 수 없다).

Therefore, the first-party plaintiff's assertion on a different premise is without merit.

C) whether the investment is the most valuable

Meanwhile, the Plaintiff asserted that the Intervenor’s Intervenor purchased dump trucks and dump trucks only to obtain permission for extension of the term of existence at the time when the term of the instant mining right expires, from March to October, 2011, and the representative director of the Intervenor’s Intervenor only made the appearance of the investment performance with the investment funds attracting good investors, and that it is not a substantial investment for mine development.

According to the evidence No. 56, AT, the representative director of the Intervenor joining the Defendant, was convicted of three years of imprisonment with prison labor in the Cheongju District Court, on December 12, 2014, and it was found that AT filed an appeal with Cheongju District Court 201526, but the investment funds for dump trucks or dump trucks were prepared by fraud, but the progress of mining construction based on the mining right of the instant case was de facto impossible, without notifying the investors of the fact that it was impossible to do so. However, it is difficult to accept this part of the Plaintiffs’ assertion that, even if dump trucks or dump trucks were not recovered by fraud, it is difficult to view this part of the Plaintiffs’ assertion that there was no other evidence to support this.

3) Whether the discretion is deviates or abused or not

A) The discretionary mining right to extend the term of extracting rights is established when an applicant filed an application with the Minister of Knowledge Economy and obtained permission, and completed registration in accordance with the permission (Articles 15 and 28 of the new Act). The Minister of Knowledge Economy, when determining whether to grant permission for the establishment of mining rights, may grant conditional permission if it is deemed necessary to consider the rational development of mining or other public interests (Articles 24 and 25 of the new Act) as well as that the establishment of mining rights may not be permitted if the applicant’s exploration or extraction of minerals in the application area for the establishment of mining rights is deemed to damage the public interest (Articles 24 and 25 of the new Act). Even if the permission for the establishment of mining rights is granted, the above mining rights may be cancelled or reduced in mining areas within the area concerned (Article 34 of the new Act). As such, the administrative agency may determine whether to establish mining rights, whether to maintain the established mining rights, whether the term of mining rights should be extended, and the permission for the extension of the term that is imminent.

(See Supreme Court Decision 2006Du7577 Decided September 11, 2008).

B) the facts of recognition

(1) On July 21, 1976, the owner of the mining right of the instant case started the development project on October 28, 1976 after obtaining authorization for the alteration of the mining plan on the mining right of the instant case, and suspended the project from August 4, 1987 to August 3, 1995 with the authorization of the competent administrative agency. Since then, the Intervenor’s Intervenor acquired the mining right of the instant case and resumed the project from August 30, 1997, and applied for support from the Korea Mining Promotion Corporation from August 30, 1998 to 200, and continued prospecting construction with the total amount of KRW 176,000,000.

(2) Size, dignity, etc. of the mining area of this case

A) From 1996 to 2001, Japan Smicocon Ltd and Korea Mining Promotion Corporation had conducted a drilling survey on the mining connection in the instant mining right and the instant mining areas AB and AD mining areas (hereinafter “the mine of this case”). The results of the survey on gold content, etc. for samples collected at the time are as listed below by optical connection (ND if no gold or silver is found from samples, and Tr if found to be less than 0.1g, tr if it is found to be less than 0.1g from samples).

A person shall be appointed.

2 Malass : 0.6m wide and 20m long from oarss

A person shall be appointed.

3 Maer: 0.6-2.1m in width, extension of 450m in oars.

A person shall be appointed.

4 Malass : 0.1m wide and 20m long from oarss

A person shall be appointed.

5 Macl: 0.3 0-0.8 m powder, lengthed 200 m

A person shall be appointed.

6 Maer: 0.4 0-0.5 m powder, lengthed 100 m

A person shall be appointed.

7 Malass : 1.5m wide and 40m long from oarss

A person shall be appointed.

(2) As a result of the above drilling survey, in the case of 1, 3, and 7, no gold or silver was found at all, or the remainder was found, and even in the case of some samples, it is weak to view as a whole, but as a whole, the mine of this case as a whole is deemed to be a low-quality and low-quality, and its production itself was discarded in light of economic feasibility since the beer is narrow and rare.

(C) Meanwhile, on July 19, 2000, the Defendant filed an application for a large-scale mine exploration (4m x4m) for a mine area on the whole seven mines (4m m) in the absence of mine excavation operations by the mine itself. However, the Korea Mining Promotion Corporation, as a result of on-site investigation and the review of the data on field investigation, found that a large-scale mine drilling was weak, such as beer and dignity, and determined that the Defendant’s application for prospecting operations for prospecting operations on a large scale is unreasonable on the ground that the prospecting operations on a prospecting for a prospecting for a prospecting for a prospecting for a prospecting for a prospecting for a prospecting

(3) Current status of surrounding areas

A) A nearby residents, including the plaintiffs, reside in the area where there is AI on the 21st national road between the Y and the Kacheon-gun AU of Jincheon-gun, as in the old hill area. Around 2,500 residents living together with approximately 20,000 residents in the voice-gun P, AE and Q, and approximately 6,000 residents living in Jincheon-gun AU.

B) In the voice group where the plaintiffs mainly reside, the total of 14,280 public groundwater was developed as of 201, and 34,244.963t household water was used as residential water, industrial water, and agricultural water, and a total of 22 pipes were developed and used as drinking water in the surrounding area of the 21st national highway and AI, and their depth is about 200 meters average. There are about 1,300 pipes used as agricultural water and drinking water in the AV and AW area, and their depth is within 20-30 meters. Some of the plaintiffs residing in P, as a collective housing complex where groundwater was used, sales of 10 billion won per annum are raised in the environment-friendly 200 square meters, and 1,0000 local-friendly stuffed 2,000 local-friendly stuffed 2,000 square meters, and 2,000 eco-friendly stuffed 36,000 square meters in the special zone.

(iv) The possibility of the exhaustion and ground subsidence due to the development of the mine;

(A) In the vicinity of the instant mine, the inter-Korean floor structure has been rapidly developed, and accordingly, rock bed, which affects the flow route of groundwater in this region in the event an underground scopher has been artificially formed in the relevant scopic region. In particular, the topographical development of a scopic layer leads to the development of crushing prices due to a scopic layer, and the high scopic scopic scopic 3) plays a role in the water level where groundwater can be well scoped, thereby groundwater is accumulated. Based on these characteristics, the Plaintiffs have installed and live in a groundwater pipe where drinking water and agricultural water can be obtained according to the scopic scopic.

B) Since the outflow of groundwater, which flows into the pits and discharges into the pits, is the same as an artificial acquisition of groundwater, it is highly likely that groundwater level might be lowered due to the impact of the outflow of groundwater in the surrounding area, if groundwater flows into the pits due to the digging through the digging of the mine in this case. The Defendant’s Intervenor already excavated the drilling is the drilling of a single-story, and in fact, at around 2000, a considerable amount of groundwater has already been leaked at the time of digging 310 meters for prospecting, there was a large amount of water drained by drinking water in some neighboring residents’ houses owned by neighboring residents, and agricultural water supplied to a vinyl owned by neighboring residents was drained, and there was a phenomenon of ruptureing into some houses located in the area near the entrance of the pits.

C) According to the work logs and security logs of the Intervenor joining the Defendant, from August 5, 2000, the Intervenor expanded the pits every day while blasting them, and a considerable amount of groundwater was melted in the process, and accordingly, a water pumping machine was operated, and the water pumping machine was operated, but the water pumping machine was so excessive that the water pumping machine could cause the malfunction.

(D) In fact, the Korea Groundwater and Soil Association confirmed that groundwater level was lowered from 27m to 167m per day through the drilling and test hole in the above single-story area from 27m to 0.27m to 22.6m from the surrounding observation hole. In the end, the Environmental Association carried out a flexibleing of groundwater in order to calculate the inflow of groundwater into the lower river of the groundwater level where groundwater flows into the pits and the amount of groundwater flow into the pits when the pits are completely expanded, the groundwater level in the surrounding area of the pits was predicted to be lowered to approximately KRW 1,870m per day, and the groundwater level in the surrounding area of the pits was predicted to be lowered to be lowered to approximately approximately approximately KRW 25m per day, and about about about 5m in the area located far from the pits.

(5) The possibility of contamination of water, soil, and crops (According to the New York New York article of October 24, 2005, according to the New York article of October 24, 2005, when the sulfur contained in underground minerals is exposed to the air, resulting in a phenomenon of acid, which is caused by the combination of groundwater, and this is an industrial wastewater in the mine. According to the publication data of the Ministry of Environment, there are many heavy metals in the soil or base of the Republic of Korea. According to the soil or base of the Republic of Korea, heavy metals in the form of molecular metal in response to the industrial wastewater of the mine, which is likely to cause secondary pollution of soil and water. The above environmental academic association did not take place at the time of the investigation, water, soil, and crops pollution did not appear, but at the time of the investigation, it is anticipated that considerable pollution is likely to occur due to various compounds generated in accordance with the mining development procedure, and that facilities and investment are essential to prevent this.

(6) AY Mining under the actual state of damage caused by the development of neighboring mines is adjacent to AL mine, and the mining right is extended to BA, BB, BC, BD, BE, etc. due to the development of mines, AY Mining was caused by the high-quality damage of groundwater in BA and B B. In 1984, AY Mining was installed with water supply facilities in the first place, and there is concern that ground subsidence of BF surrounding BA in 200, and construction was conducted by bringing KRW 320,000 into national expenses and costs of AY industry.

[Ground of Recognition] Facts without dispute, Gap evidence Nos. 18, 19, 20, 48, 58 through 61, Eul evidence Nos. 33 (including the number of pages) and images

C) Determination

However, since the first mining plan was approved on March 26, 1963, the mining right of this case has not been reported to the production records. The gold and silver quantity deposited in the mining area of this case is extremely small, and the dignity of the mineral is low, and even if the mining development continues to continue by extending the duration of the mining right of this case, the social and economic benefits derived therefrom shall be deemed to be insignificant.

On the other hand, the Korea Soil and Soil Association, composed of soil environmental experts, may completely excavate the mine of this case, approximately 25 meters in an area near the mine of this case, and approximately 5 meters in a separated area, and may cause secondary pollution of soil and water in combination with heavy metals. As seen earlier, the surrounding area of the mine of this case has large-scale crops growing area and residents' residence using groundwater, and the development of the mine of this case may cause pollution to the crops cultivated by some plaintiffs due to water and soil pollution as well as agricultural damage caused by the exhaustion of groundwater of this case, and this is likely to affect the health of the majority of neighboring residents and purchasers of agricultural products. In fact, groundwater in neighboring areas has 8 high-quality damages due to the development of the AK mine adjacent to the mining area of this case, and the ground is likely to be polluted by the new mining right of this case, which is located within the boundary of the Defendant 2, which is located within the boundary of the mining area of this case, and the period of the Defendant 1 appears to have been suspended for more than 9 years before the beginning of the new mining right of this case.

As seen above, even if the duration of the mining right of this case has been extended and the development of a mine is carried out based on it, the economic benefits that the defendant joining the defendant could enjoy are anticipated to be fine, but this is likely to infringe or be infringed on the environmental benefits that the residents including the plaintiffs living in the vicinity of the mining right of this case, including the plaintiffs living in the vicinity of the mining area of this case, compared to the expiration of the term of the mining right of this case, it seems that the amount of the mining right of this case goes beyond the tolerance level under social norms. The plaintiffs' environmental benefits are much larger than the economic benefits that

Therefore, the instant disposition is in violation of the law of deviation from and abuse of discretionary power, which does not separately consider the occurrence of environmental risks caused by extension of the term of mining rights of this case, and thus, the registration of this case must be revoked.

4. Conclusion

Therefore, the plaintiffs' claim of this case is justified, and the judgment of the court of first instance is unfair, so the judgment of the court of first instance is revoked, and it is so decided as per Disposition (the defendant does not have standing to sue against the plaintiffs after the closing of argument of this case). While the lawsuit of this case is unlawful as it does not have standing to sue against the plaintiffs, the plaintiffs are recognized as environmental benefits which are individually, directly, and specifically protected under the Mining Industry Act in relation to the disposition and registration of this case as neighboring residents or organizations of the mine of this case, and therefore, the plaintiff has standing to sue to seek revocation of the claim of this case. Thus, the main claim of this case is without merit).

Judges

Judgment of the presiding judge;

Judgment's normal rules

Judges Go Il-il

Note tin

(i) Prospect drilling: Basic exploration activity that ascertains the existing status of the underground parts of the mineral, not the procedure of determining the sanctability when mining;

dong.

2) Ogrvating: Posinging-out means water-proof. Mosing-out farming methods means the volume of water and water to the extent that agricultural crops require by drawing water into pipes or hosing pipes.

B It means the method of growing agricultural crops by spreading them into the roots of crops.

3) The public gap rate: the rate indicated the gap in rocks or soil.