OPINIONS OF THE SUPREME COURT OF OHIO
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Village of Pleasant City, Appellee, v. Division of Reclamation,
Ohio Department of Natural Resources et al., Appellants.
[Cite as Pleasant City v. Ohio Dept. of Natl. Resources, Div. of
Reclamation (1993), ___ Ohio St.3d ___.]
Mining — Requirements of R.C. 1513.073(A)(2)(c) in determining
unsuitability of lands for coal mining.
In determining the unsuitability of lands for coal mining, R.C.
1513.073(A)(2)(c) requires consideration of the impact that
mining and reclamation could have on the long-range
productivity of aquifers and aquifer recharge areas, not solely the impact on their current use as a water supply.
(No. 92-1102 — Submitted June 1, 1993 — Decided September
15, 1993.) Appeal from the Court of Appeals for Guernsey
County, No. 91-CA-09. On September 21, 1988, pursuant to
Revised Code Section 1513.073, appellee, the village of Pleasant
City (“Pleasant City”), filed a “Lands Unsuitable Petition” with
the Division of Reclamation (“Division”), Ohio Department of
Natural Resources. In its petition, Pleasant City requested that
approximately eight hundred thirty-three acres of land
surrounding Pleasant City be designated unsuitable for coal
mining.
The underlying science involved in this case is very
complicated. However, a general understanding of only a few
terms and principles is necessary for the court to resolve this
appeal. On the whole, these terms and principles relate to how
water gets into the ground and what happens to the water when it
is pumped out of the ground.
Groundwater does not occur as underground rivers and lakes.
Instead, water from rain and snow infiltrates the soil and
percolates down, filling pores and cracks in rocks and other
material beneath the surface of the earth. Depending on the
hydraulic gradient and the rock material’s permeability, the
groundwater moves more or less slowly through these underground
materials toward points of discharge, such as lakes or pumping
wells. The permeable rock materials that the groundwater travels
through are known as aquifers.
Generally, an “aquifer” is defined as an underground
section of material capable of storing and transmitting water in useable quantities. Typically, an aquifer is composed of sand
and gravel deposits (unconsolidated), or a layer of sandstone or
fractured limestone (consolidated). Usually, unconsolidated
acquifers provide much greater yields than consolidated
aquifers.
In the present case, unconsolidated alluvial deposits filled
an ancient preglacial stream bed underlying a portion of the
floodplain in which Pleasant City’s water well field is located.
These deposits act as an aquifer. The aquifer is a mixture of
sand and gravel located below clay and above bedrock. Because it
consists of a series of intertwining channels of permeable
material that weave throughout the valley, the aquifer is oddly
shaped and its precise outline is unknown. This aquifer system
is unique, being the only groundwater system in Noble or Guernsey
Counties capable of producing any significant quantity of
groundwater.
In September 1987, the United States Environmental
Protection Agency designated approximately one thousand acres,
which includes most of the petition area, as a sole-source
aquifer. 52 F.R. 32342 et seq. This is a protective designation
which restricts federal funding for projects that might adversely
affect the aquifer.
Since 1914, Pleasant City has been obtaining its water from
the aquifer that is the subject of the petition. Currently, it
utilizes two wells, CW-1 and CW-2, which are the sole source of
public water for the village. The wells are alternately pumped,
at approximately ninety-five gallons per minute, for a total of
eight to ten hours per day. The system serves nine hundred
ninety residents and has operated in essentially the same manner at the same pumping rates, for the past decade.
As water is pumped from an aquifer, the groundwater level is
lowered. The distance that the level is lowered is referred to
as the “drawdown.” The drawdown does not occur as a straight
line, but rather as a curve. Creating a phenomenon resembling
an inverted cone, with the peak pointing down toward the aquifer
and the base expanding around the wellhead, this underground
surface of the groundwater level is called a cone of depression.
Whenever groundwater deposits are depleted by pumping, a cone of
depression is created.
The outer boundary of the cone defines the area of influence
of the well that creates the cone. The cone of depression forms
within the aquifer, and both are dependent on the recharge area
for replenishment. Consequently, a recharge area, which is
simply an area that contributes water to the groundwater system,
is larger than the cone of depression. In the present case,
although the exact boundaries of the village aquifer and recharge
area are not known, it appears that the entire floodplain (land
below the eight hundred twenty foot contour) of Buffalo Fork,
Buffalo Creek and Wills Creek is part of the recharge area.
Certain activities, such as mining, can adversely affect the long-
range productivity of the well, the aquifer and the recharge
area. For example, excavated mine pits are dewatered, creating a
cone of depression which may intersect the cone of depression of
an adjacent well. This dewatering may also reduce groundwater
levels, at least temporarily. During reclamation the original
stratified deposits removed during excavation are replaced with
“mine spoil.” Mine spoil is a mixture of the excavated material and is less permeable than the original stratified material.
This can affect the water storage capacity and water transmission
ability of the aquifer and recharge area.
Appellant R.T.G., Inc. (“RTG”) has mined, pursuant to
permits issued by the division, one hundred acres within the
petition area. Mining of this one hundred acres would not
affected by designation of the lands as unsuitable for mining.
RTG also owns the coal-mining rights to additional land located
in the petition area. RTG’s mining permits were issued over the
opposition of the village. After issuance of the mining permit,
four monitoring wells were installed to determine whether RTG’s
mining operations were affecting the village wells. These wells
are referred to as MW-1, MW-2, MW-3 and MW-4. RTG opposed the
village’s petition for a lands-unsuitable designation before the
division and the board.
On October 6, 1989, the chief of the division issued his
decision on the village’s petition. He designated the area below
the eight hundred twenty foot contour within a two thousand foot
radius around Pleasant City’s wells not suitable for coal mining.
Finding that the two thousand foot radius described the
approximate limits of the cone of depression from which the
village draws its water, the chief precluded mining in that area
approximately two hundred seventy-five acres, to protect the
village’s current water supply.
On appeal, by Pleasant City and RTG, the Reclamation Board
of Review (“board”) held an eleven-day evidentiary hearing. The
board subsequently issued findings of fact and conclusions of
law, essentially affirming the chief’s order, but enlarging the
area designated unsuitable. Noting that mining in the areas immediately adjacent to Pleasant City’s cone of depression could
negatively affect the aquifier within the cone, the board
extended the western portion of the two thousand foot radius to
three thousand two hundred feet. The board reasoned that future
surface mining operations that might occur within the petition
area would likely require dewatering of mine excavated pits and
altering of the ground material. The dewatering of mine pits
would create a cone of depression that could temporarily
intersect with Pleasant City’s cone of depression, reducing its
water supply. Moreover, the board found that replacing ground
material with mine spoil, which is less permeable, could
interrupt or alter the recharge to the village aquifer.
Pleasant City appealed to the Fifth District Court of
Appeals. The court reversed and remanded to the Reclamation
Board of Review. Although adopting the board’s findings of fact,
the court of appeals held that the board’s order was contrary to
law because it “merely protected the area of perceived present
usage of the aquifer and the aquifer recharge areas.” The court
interpreted R.C. 1513.073 to require protection of the aquifer
and recharge area for future uses. Following its interpretation
of R.C. 1513.073, the court of appeals granted Pleasant City’s
request in full and instructed the board to enter an order
directing that all eight hundred thirty-three acres surrounding
the well field be designated unsuitable for mining.
This cause is now before this court pursuant to the
allowance of a motion to certify the record.
__________________
Samuels & Northrop Co., L.P.A., Stephen P. Samuels; Warhola, Heine & Ferguson and Andrew J. Warhola, for appellee.
Porter, Wright, Morris & Arthur and Mark S. Stemm, for
appellant R.T.G., Inc.
Lee Fisher, Attorney General, Mark G. Bonaventura and Robert
J. Karl, Assistant Attorneys General, for appellant Division of
Reclamation.
Thomas P. Michael, urging reversal for amicus curiae, the
Ohio Mining and Reclamation Association.
Richard C. Sahli, urging affirmance for amici curiae, Sierra
Club, Friends of the Earth, Environmental Defense Fund, National
Environmental Law Center, Ohio Environmental Council and Ohio
Citizen Action.
Wright, J. This case presents two issues: First, whether
R.C. 1513.073(A)(2) requires the Chief of the Division of
Reclamation and Reclamation Board of Review to consider the
effect that mining could have on the water supply, aquifer and
the aquifer recharge area not based solely on the level of
current usage and, second, whether the court of appeals used the
proper standard of review in reversing the finding of the
Reclamation Board of Review and ordering that Pleasant City’s
entire petition area be designated unsuitable for mining. For
the reasons stated below, we hold that the Reclamation Board of
Review was required to consider the effect that mining could
have on the water resource not measured solely by current usage
and that the court of appeals improperly ordered that Pleasant
City’s entire petition area be designated unsuitable for mining.
In 1977 Congress enacted the Surface Mining Control and
Reclamation Act (“SMCRA”),1 which had three primary goals: “(1) to protect the environment from the adverse impacts of
past, present, and future surface coal mining; (2) to encourage
those states where there is or may be surface coal mning [sic] to
establish their own regulatory authority that conforms with the
requirements of the Act; and (3) to provide for research and
development of economically viable coal extracting techniques
that are less environmentally destructive than present methods.”
Note, Designating Areas Unsuitable for Surface Coal Mining
(1978), 22 Utah L.Rev. 321. In response to the passage of SMCRA,
the General Assembly enacted parallel legislation consistent with
the requirements and goals of SMCRA. To meet the goal of
protecting the environment from the adverse impacts of coal
mining, reclamation of mined land is required when mining is
permitted. Both federal and state law also provide, as a
preventive measure, that certain lands be designated “unsuitable”
for mining because of their significant environmental and social
value. R.C. 1513.073(A)(2) provides as follows:
“(2) Upon petition pursuant to division (B) of this
section, a surface area may be designated unsuitable for all or
certain types of coal mining operations if the operations will:
“* * *
“(c) Affect renewable resource lands in which the
operations could result in a substantial loss or reduction of
long-range productivity of water supply or of food or fiber
products, or aquifers and aquifer recharge areas[.]” (Emphasis
added.)
The standard of review of an appeal from an order of the
board is a limited one. R.C. 1513.14 provides: “The court shall affirm the decision of the board unless the court determines that
it is arbitrary, capricious, or otherwise inconsistent with law,
in which case the court shall vacate the decision and remand to
the board for such further proceedings as it may direct.”
The court of appeals concluded that the board’s decision was
not in accordance with law because it failed to consider the
future impact, not based solely on current usage, that mining and
reclamation could have on the aquifer and aquifer recharge area
in making its determination concerning the area to be designated
as unsuitable for mining. The court reasoned:
“The Board’s expansion of the western half of the 2,000 foot
radius designated by the Chief merely protected the area of
perceived present usage of the aquifer and the aquifer recharge
areas. This is not according to law. The statute mandates that
the Board consider the effect that mining could have on the
aquifer, the aquifer recharge areas and its availability not only
now but also in the future as a source of water. Our review
indicates that the Board did not construe the legislation
faithfully so as to give full effect to the spirit behind its
enactment. Accordingly, we find that the Board’s order is
contrary to law and the specific language of R.C.
1513.073(A)(2)(c), in that the Board’s order does not protect
future uses.
“In so deciding, we adopt Board’s fact findings. However,
we conclude that the order of the Board upon those fact findings
is contrary to law.” (Emphasis sic.)
It is apparent from the board’s findings that the court of
appeals is correct that the board limited its analysis of “long-
range productivity” to the maintenance of the village’s water supply at current rates of usage. The board adopted the chief’s
cone-of-depression analysis, which “was projected under current
pumping conditions.”
The division and RTG claim that the board was correct in
limiting its analysis to the long-range effect on Pleasant City’s
water supply based on the level of current usage. Their
argument is premised on a definition of an aquifer as being of
known location and area defined by its proven water-production
capability for a specific use. Given such a definition, the
effects on the aquifer and aquifer recharge area should be
evaluated in terms of whether the mining could result in a
substantial loss or reduction of long-range productivity of an
established water supply.
Pleasant City and its amici argue that focusing solely on
the effect on an established water supply ignores the specific
inclusion of the words “aquifers and aquifer recharge areas” in
R.C. 1513.073. The court of appeals read these terms back into
the statute, whereas the board had effectively eliminated them.
They also argue that R.C. 1513.073 is intended to be a
preventive measure to protect the future use of a natural
resource. Adoption of the division’s and RTG’s position means
that the value of a natural resource is measured only by the
current level of its use. As an example, Pleasant City and its
amici point out that because R.C. 1513.073 also permits
protection of historic lands, under the division’s theory such
lands could not be protected unless they were currently being
“used” by visitors or through archaeological excavation.
We find Pleasant City’s argument more persuasive. R.C. 1513.073 clearly states that the long-range productivity of both
the aquifer and aquifer recharge area, not just the water supply,
are included for protection by a designation of unsuitability.
It is a basic rule of statutory construction that “words in
statutes should not be construed to be redundant, nor should any
words be ignored.” E. Ohio Gas Co. v. Pub. Util. Comm. (1988),
39 Ohio St.3d 295, 299, 530 N.E.2d 875, 879. If we construe R.C.
1513.073 to require protection only of the village’s water
supply, the words “aquifers” and “aquifer recharge areas” would
be completely superfluous. This we cannot do. Nor can we
accept the division’s and RTG’s definition of an aquifer as being
measured solely by its current productivity. Instead we agree
with the board’s definition that “[a]n aquifer is an underground
section of saturated material which is capable of storing and
transmitting water in usable quantities.”2
Webster’s Third New International Dictionary (1986) defines
“long-range” as “involving or taking into account a long period
of time” and “productivity” as “the ability or capacity to
produce.” Therefore, the board must consider the effect of
mining on the ability or capacity of the aquifer and the aquifer
recharge area to store and transmit water in the future. This
effect would not be measured simply by assessing the effects of
mining on the aquifer and aquifer recharge area solely as it
relates to producing water to supply Pleasant City’s current
usage. If the long-range productivity of the aquifer and aquifer
recharge area as a natural resource will be substantially reduced
by mining, additional acres should be designated as unsuitable
for mining.
The board already has made several findings which indicate that mining and reclamation could affect the long-range
productivity of the aquifer. These findings include:
“During the mining [within the petition area], the
stratified materials overlying the coal seam were removed,
stockpiled and later returned to the pits as mine spoil.
“14. Surface coal mining changes the bedding scheme within
an affected area, via replacing stratified deposits with mine
spoil. Such a change could alter the aquifer’s capacity to
transmit or store groundwater. While the transmissivity and
storativity of the aquifer may be altered, it will not be
eliminated. The mine spoil will not be impermeable. The effect
is not permanent, but could have a substantial long-range impact
upon the aquifer or its recharge zone.” (Emphasis added.)
Thus, the replacement of the naturally occurring strata,
which allow water to infiltrate, be stored in and be transmitted
through the aquifer, with the less permeable mine spoil “could
result in a substantial loss or reduction of long-range
productivity of * * * aquifers and aquifer recharge areas.”
Indeed, it is also apparent from the board’s findings that the
mining which has already occurred within the petition area has
already affected the aquifer, although the precise cause and
duration are unknown. This was the basis for the board’s
decision to enlarge the radius west of the village well field
from two thousand to three thousand two hundred feet. The board
noted:
“What is disturbing to this Board is the fact that the water
level in MW-4 (located about 2000 feet from both the Village well field and the mine site) has experienced a declining trend during
mining on permits D-578-1 and D-578-2. The Division did not deny
this trend. Nor was the Division able to attribute the decline
to either the Village’s pumping at the well field, RTG’s pumping
at the mine site, the removal of acquifer material, or the
interruption of one or more sources of recharge to the aquifer.
“The Board believes that the declining water level in MW-4
is significant. If an impact to this well occurs when mining is
taking place approximately 1600-2000 feet from MW-4, a similar
impact on the Village wells could result if mining is allowed as
close as 2000 feet from the Village well field.
“It is unclear at this time whether the impacts recorded at
MW-4 resulted from the temporary dewatering at RTG’s mine site or
from the more long-term effects of alterations in lithology. In
expanding the protected areas to the west of the well field, this
Board intends to ensure the utmost protection to the Village
water supply. If the impacts of the mining evidenced in the
monitoring well network prove to be temporary, the law allows for
petition to terminate the unsuitability designation.”
It is apparent that the board’s findings support the
conclusion that the aquifer and aquifer recharge area could be
affected. Indeed, they already may have been affected.3 However
the board focused solely on protecting the aquifer and aquifer
recharge area only to the extent necessary to maintain the
village’s water supply at current levels. We must repeat that
R.C. 1513.073 also requires consideration of the potential effect
on the aquifer and aquifer recharge area themselves, not just
maintenance of the village’s current water supply. Therefore we hold that in determining the unsuitability of
lands for coal mining, R.C. 1513.073(A)(2)(c) requires that
consideration be given to the impact that mining and reclamation
could have on the long-range productivity of an aquifer and
aquifer recharge area, not solely the impact on their current use
as a water supply.
The court of appeals, having correctly determined that the
board’s decision was not in accordance with law, also decided
that all of the petition area should be designated as unsuitable
for mining and reclamation. We disagree. Deference must be
given to the expertise of the board in determining what
additional area may be designated as unsuitable for mining. The
court of appeals may in fact be correct that all of the petition
area needs to be designated unsuitable to protect the future
productivity of the aquifer and aquifer recharge area. There is
some evidence in the record to support such a view. For example,
the board found that “the floodplain of Buffalo Fork, Buffalo
Creek and Wills Creek is part of the recharge area for the
aquifer.” This includes the petition area. Also, the United
States Environmental Protection Agency designated the entire
petition area as a sole-source aquifer, a protective designation.
On the other hand, there is other evidence found in the record
and noted by the board which indicates that “[t]he groundwater
in this area has been shown to flow from west to east.
Therefore, it is likely that most of the recharge to the aquifer
is generated west of the Village.” The board has available to
it stratigraphic maps, boring logs, monitoring well data, mining
records and expert testimony from which to decide the appropriate designated area. Therefore we remand this matter to the board
for reconsideration in accordance with this opinion.
Judgment affirmed in part,
reversed in part
and cause remanded.
Moyer, C.J., A.W. Sweeney, F.E. Sweeney and Pfeifer, JJ.,
concur.
Douglas, J., concurs in judgment only.
Resnick, J., concurs in part and dissents in part.
FOOTNOTES:
1. Sections 1201-1328, Title 30, U.S.Code.
2. Ohio Adm.Code 1501:13-1-02(I) defines an “aquifer” as a
“zone, stratum, or group of strata that can store and transmit
water in sufficient quantities for a specific use.” Clearly the
board interprets “sufficient quantities for a specific use” to
mean “usable quantities.” On appeal, the division argues that
“specific use” means a known use, therefore a current use. The
board implicitly rejected the division’s argument. We reject it
also. To accept the division’s interpretation means that an
aquifer does not exist, despite hydrogeologic proof of its
existence, unless the aquifer is actually being used as a water
supply. The definition of “aquifer” in Ohio Adm.Code 1501:13-1-
02(I) does not require such an absurd conclusion.
3. The board’s findings are corroborated by the expert
testimony of Rebecca Petty, a hydrogeologist employed by the
Division of Water of the Ohio Department of Natural Resources as
the Administrator of the Groundwater Resources Section. The
Division of Water monitored the water level of the four
monitoring wells in the petition area. Petty testified: “* * * at that point in time the water levels were declining
significantly, and this was during a period of time where we had
12-plus inches of precipitation. And so we knew that this
abnormal decline couldn’t be due to precipitation, because
precipitation was very high. We also knew that pumping from the
W dewatering from the mine site is relatively constant, you know,
it fluctuates seasonably, but they hadn’t had any dramatic
increases in pumping, so we were very concerned that the mining
activities were having a significant impact on the availability
of groundwater. Not only water levels, but having an impact on
the volume of aquifer material or the volume of unconsolidated
materials in the valley, that were serving to recharge the
aquifer, that this could be having an impact on the long-term
sustainable yield of the aquifer.”
Alice Robie Resnick, J., concurring in part and dissenting
in part. I would affirm the judgment of the court of appeals in
its entirety, allowing the entire petition area to be designated
as unsuitable for mining.