Pleasant City v. Ohio Dept. of Natl. Resources, Div. of Reclamation

SUPREME COURT CASES

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State: Ohio

Court: Supreme Court

Docket No: 1992-1102

Case Date: 09/15/1993

Plaintiff: Pleasant City

Defendant: Ohio Dept. of Natl. Resources, Div. of Reclamation

Preview:2 OPINIONS OF THE SUPREME COURT OF OHIO The full texts of the opinions of the Supreme Court of Ohio are being transmitted electronically beginning May 27, 1992, Thomas

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volumes of the Ohio Official Reports. 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. Reclamation (1993), ___ Ohio St.3d ___.] Mining -- Requirements of R.C. 1513.073(A)(2)(c) in determining of

unsuitability of lands for coal mining. In determining the unsuitability of lands for coal mining, R.C. that

1513.073(A)(2)(c) requires consideration of the impact mining and reclamation of could have on the

long-range areas, not

productivity

aquifers and aquifer recharge

solely the impact on their current use as a water supply. (No. 15, 1993.) No. 92-1102 -- Submitted June 1, 1993 -- Decided Appeal 91-CA-09. from the Court of Appeals On September 21, 1988, for September Guernsey to

County, Revised City the

pursuant

Code Section 1513.073, appellee, the village of Pleasant

("Pleasant City"), filed a "Lands Unsuitable Petition" with Division of Reclamation ("Division"), Ohio Department of

Natural Resources. approximately surrounding mining. The

In its petition, Pleasant City requested that hundred City thirty-three acres of for land coal

eight Pleasant

be designated

unsuitable

underlying

science involved

in

this of

case only

is a

very few this how it

complicated. terms appeal.

However, a general understanding

and principles is necessary for the court to resolve On the whole, these terms and principles relate to

water gets into the ground and what happens to the water when is pumped out of the ground.

Groundwater does not occur as underground rivers and lakes. Instead, percolates material hydraulic groundwater materials wells. water down, beneath gradient from rain and snow infiltrates the soil and on and other the the

filling pores and cracks in the surface of the earth. and the rock material's

rocks

Depending

permeability,

moves more or less slowly through these toward points of discharge, such as lakes

underground or pumping

The permeable rock materials that the groundwater travels

through are known as aquifers. Generally, an "aquifer" is defined as an underground in

section of material capable of storing and transmitting water

useable

quantities.

Typically, an aquifer is composed of

sand or

and gravel deposits (unconsolidated), or a layer of sandstone fractured acquifers aquifers. limestone provide (consolidated). much greater Usually, than

unconsolidated consolidated

yields

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 These deposits act as an aquifer. The aquifer is a

located. of

mixture

sand and gravel located below clay and above bedrock. consists material shaped of a series of intertwining channels of

Because it permeable oddly system

that weave throughout the valley, the aquifer is and its precise outline is unknown. This aquifer

is unique, being the only groundwater system in Noble or Guernsey Counties capable of producing any significant quantity of

groundwater. In Protection which September 1987, the United States Environmental acres,

Agency designated approximately one most of the petition area, as

thousand a

includes

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 of

utilizes public at

two wells, CW-1 and CW-2, which are the sole source water for the village.

The wells are alternately pumped, minute, for a total of nine hundred

approximately ninety-five gallons per to ten hours per day.

eight ninety

The system serves

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. as the The distance that the level is lowered is referred "drawdown." but The drawdown does not occur as Creating a phenomenon a to

straight resembling

line,

rather as a curve.

an inverted cone, with the peak pointing down toward and the base expanding around the wellhead, this

the aquifer underground

surface

of the groundwater level is called a cone of depression. of

Whenever groundwater deposits are depleted by pumping, a cone depression is created.

The outer boundary of the cone defines the area of influence of the well that creates the cone. within for The cone of depression forms area is

the aquifer, and both are dependent on the recharge Consequently, a recharge area, which

replenishment.

simply is

an area that contributes water to the groundwater system, than the cone of depression. In the present case,

larger

although the exact boundaries of the village aquifer and recharge area below Buffalo are not known, it appears that the the entire floodplain (land Buffalo recharge Fork, area.

eight hundred twenty foot contour) of and Wills Creek is part of the

Creek

Certain activities, such as mining, can adversely affect the longrange area. productivity of the well, the aquifer and the recharge

For example, excavated mine pits are dewatered, creating a of

cone of depression which may intersect the cone of depression an adjacent at well. This dewatering may also reduce

groundwater original with

levels,

least temporarily.

During reclamation the

stratified "mine

deposits removed during excavation are replaced

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 permits petition affected RTG issued area. by R.T.G., Inc. ("RTG") has mined, acres acres pursuant within would to the not

by the division, one hundred Mining of this one hundred

designation of the lands as unsuitable for

mining. located the

also owns the coal-mining rights to additional land

in the petition area.

RTG's mining permits were issued over After issuance of the mining

opposition of the village. four

permit,

monitoring wells were installed to determine

whether RTG's These opposed wells the the

mining operations were affecting the village wells. are referred to as MW-1, MW-2, MW-3 and MW-4. RTG

village's petition for a lands-unsuitable designation before division and the board. On October 6, 1989, the chief of the division issued

his

decision on the village's petition. the

He designated the area below

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 from which the the area the

approximate

limits

of the cone of depression

village draws its water, the chief precluded mining in that approximately two hundred seventy-five acres, to protect

village's current water supply. On of appeal, by Pleasant City and RTG, the Reclamation Board The of the areas

Review ("board") held an eleven-day evidentiary hearing. subsequently issued findings of fact and conclusions

board law, area

essentially affirming the chief's order, but enlarging designated unsuitable. Noting that mining in the

immediately adjacent to Pleasant City's cone of depression negatively extended three surface area affect the aquifier within the cone, the

could board to

the western portion of the two thousand foot radius

thousand two hundred feet.

The board reasoned that future occur within the petition and pits

mining operations that might

would likely require dewatering of mine excavated pits of create the ground material. a cone of The dewatering of that could mine

altering would

depression

temporarily its

intersect water

with Pleasant City's cone of depression, reducing Moreover, the board found that replacing mine spoil, which is less permeable,

supply. with

ground could

material

interrupt or alter the recharge to the Pleasant Appeals. The City court appealed

village aquifer. District the Court of

to the Fifth

reversed and remanded to

Reclamation

Board of Review.

Although adopting the board's findings of fact, to

the court of appeals held that the board's order was contrary law because it "merely protected the area of perceived areas." the

present The court aquifer

usage of the aquifer and the aquifer recharge interpreted and of

R.C. 1513.073 to require protection of

recharge area for future uses. R.C.

Following its interpretation City's order

1513.073, the court of appeals granted Pleasant in full and instructed the board to enter an

request 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 Law Center, Ohio Environmental Council and Ohio

Environmental Citizen Action.

__________________ Wright, J. R.C. This case presents two issues: requires the Chief of First, the to whether of the and of the the

1513.073(A)(2) and

Division consider

Reclamation effect the that

Reclamation Board of

Review

mining could have on the water supply, aquifer recharge area not based solely on the level

aquifer

current usage and, second, whether the court of appeals used proper standard Board of review in reversing the finding Pleasant mining. of

Reclamation entire the

of Review and ordering that

City's For of

petition area be designated unsuitable for

reasons stated below, we hold that the Reclamation Board was required to consider the effect that mining

Review have and

could usage

on the water resource not measured solely by current 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 requirements development that Note, of of the Act; and (3) to provide economically viable coal conforms with for research the and

extracting

techniques

are less environmentally destructive than present methods." 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 the and goals of SMCRA. To adverse required law also meet the goal of mining as of coal is a

protecting mining,

environment from the

impacts when

reclamation of mined land is Both federal and state

permitted.

provide,

preventive measure, that certain lands be designated "unsuitable" for mining because of their significant environmental and social R.C. 1513.073(A)(2) provides as follows: "(2) Upon petition pursuant to division (B) of all this or

value.

section, a surface area may be designated unsuitable for

certain types of coal mining operations if the operations will: "* * * "(c) operations long-range products, added.) The standard of review of an appeal from an order R.C. 1513.14 provides: of the Affect renewable resource lands or of in which reduction food or the of

could result in a substantial loss productivity of water supply or

fiber

or aquifers and aquifer recharge areas[.]"

(Emphasis

board is a limited one.

"The court shall

affirm the decision of the board unless the court determines that it is arbitrary, capricious, or otherwise in which case the court shall vacate the inconsistent with law, 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 in could have on the aquifer and aquifer recharge area

making its determination concerning the area to be designated The court reasoned:

as unsuitable for mining.

"The Board's expansion of the western half of the 2,000 foot radius designated by the Chief merely protected the area of

perceived areas. the

present usage of the aquifer and the aquifer

recharge that the

This is not according to law.

The statute mandates could have on

Board

consider the effect that mining

aquifer, the aquifer recharge areas and its availability not only now but also in the future as a source of that so the Board did not water. the Our review

indicates faithfully enactment. contrary

construe

legislation behind order of not its is R.C. protect

as to give full effect to the spirit we find the that specific the Board's language does

Accordingly, to law and

1513.073(A)(2)(c), future uses. "In we

in that the Board's order

so deciding, we adopt Board's fact findings.

However,

conclude that the order of the Board upon those fact findings (Emphasis sic.) of

is contrary to law."

It is apparent from the board's findings that the court appeals is correct that the board limited its analysis of range productivity" to the maintenance of the village's

"longwater

supply

at current rates of usage.

The board adopted the chief's current

cone-of-depression analysis, which "was projected under 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 of

argument known

is premised on a definition of an aquifer as and area defined by its proven a specific use. aquifer Given such a

being

location for the in

water-production definition, area should in of the be a an

capability effects evaluated substantial on

and aquifer recharge

terms

of whether the mining

could

result

loss or reduction of long-range productivity

established water supply. Pleasant the effect City and its amici argue that focusing solely on

on an established water supply ignores the

specific in into them. be a

inclusion R.C. the They

of the words "aquifers and aquifer recharge areas" The court of appeals read these terms back

1513.073.

statute, whereas the board had effectively eliminated also argue measure that to R.C. 1513.073 is intended use of to a

preventive resource. that the

protect the

future

natural means by the its

Adoption of the division's and RTG's value of a natural resource is measured level of its use.

position only

current amici

As an example, Pleasant City and because R.C. 1513.073 also

point

out

that

permits such being

protection lands could

of historic lands, under the division's not

theory

be protected unless they were currently

"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 It included is a for protection by a designation of unsuitability. that "words in any

basic rule of statutory construction

statutes should not be construed to be redundant, nor should words be ignored." E. Ohio Gas Co. v. Pub. Util. Comm.

(1988),

39 Ohio St.3d 295, 299, 530 N.E.2d 875, 879. 1513.073 supply, be to require protection only of

If we construe R.C. the village's water would can we

the words "aquifers" and "aquifer recharge areas" superfluous. This we cannot do. Nor

completely

accept the division's and RTG's definition of an aquifer as being measured with solely by its current productivity. Instead we agree

the board's definition that "[a]n aquifer is an underground of saturated material which is capable of water in usable quantities."2 storing and

section

transmitting

Webster's Third New International Dictionary (1986) defines "long-range" as "involving or taking into account a of time" and "productivity" as "the the board must ability consider or the long period to of

capacity effect

produce." mining recharge effect mining relates usage.

Therefore,

on the ability or capacity of the aquifer and the aquifer area to store and transmit water in the future. This of it

would not be measured simply by assessing the effects on to the aquifer and aquifer recharge area producing water to supply Pleasant solely City's as

current

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. "During stratified the mining

These findings include: [within the the coal petition seam area], were the

materials

overlying

removed,

stockpiled and later returned to the pits as mine spoil. "* * * "14. an affected Such or Surface coal mining changes the bedding scheme within area, via replacing stratified deposits a change could alter the aquifer's While the altered, with capacity mine to and be

spoil. transmit

store of the

groundwater.

transmissivity it will The not

storativity eliminated. is

aquifer may be

The mine spoil will not be impermeable.

effect

not permanent, but could have a substantial long-range impact (Emphasis added.) strata,

upon the aquifer or its recharge zone." Thus, which through result the

replacement of the naturally occurring

allow water to infiltrate, be stored in and be transmitted the in a of aquifer, with the less permeable mine spoil substantial * loss or reduction of "could

long-range areas." that area cause the well the has and

productivity Indeed, mining already duration decision from noted:

* * aquifers and aquifer

recharge

it is also apparent from the board's findings which has already occurred within the petition affected are to the aquifer, although the This was the basis precise for

unknown.

board's field

enlarge the radius west of the village

two thousand to three thousand two hundred feet.

The board

"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 this to at trend. Nor was the Division able to attribute the deny

decline

either the Village's pumping at the well field, RTG's pumping 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 is significant. MW-4

If an impact to this well occurs when mining is a similar as

taking

place approximately 1600-2000 feet from MW-4,

impact on the Village wells could result if mining is allowed 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 water intends supply. to ensure the utmost protection If to the Village in the

the impacts of the mining evidenced

monitoring well network prove to be temporary, the law allows for petition to terminate the unsuitability designation." It conclusion affected. the board is apparent that the board's findings support could the be

that the aquifer and aquifer recharge area Indeed, they already may have been affected.3 focused solely on protecting the aquifer and area only to the extent necessary to

However aquifer the that

recharge village's

maintain repeat

water supply at current levels.

We must

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 lands for coal mining, R.C. 1513.073(A)(2)(c) requires

of that

consideration be given to the impact that mining and could have on the long-range productivity of an

reclamation 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 board's that for given decision was not in accordance with law, also the

decided

all of the petition area should be designated as unsuitable mining to and reclamation. the expertise of We disagree. the board in Deference must be what The

determining

additional area may be designated as unsuitable for mining. court area

of appeals may in fact be correct that all of the petition needs to be designated unsuitable to protect the future is

productivity of the aquifer and aquifer recharge area. some evidence in the record to support such a view. the Creek board and found that "the floodplain of Buffalo Wills Creek is part of the recharge Also,

There

For example, Fork, area the the Buffalo for the

aquifer." States

This includes the petition area.

United entire

Environmental

Protection Agency designated

petition area as a sole-source aquifer, a protective designation. On and in the other hand, there is other evidence found in the by the board which indicates that area has been shown to flow record

noted this

"[t]he groundwater west to east. aquifer to

from

Therefore, it is likely that most of the recharge to the is it generated west of the Village." The

board has available

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 accordance with this opinion.

the

board

for reconsideration in

Judgment affirmed in part, reversed in part and cause remanded. Moyer, concur. Douglas, J., concurs in judgment only. Resnick, J., concurs in part and dissents in part. FOOTNOTES: 1. 2. "zone, Sections 1201-1328, Title 30, U.S.Code. Ohio Adm.Code 1501:13-1-02(I) defines an "aquifer" and as a C.J., A.W. Sweeney, F.E. Sweeney and Pfeifer, JJ.,

stratum, or group of strata that can store

transmit the to that The it an its water

water in sufficient quantities for a specific use." board mean

Clearly

interprets "sufficient quantities for a specific use" "usable quantities." On appeal, the division argues use.

"specific use" means a known use, therefore a current board implicitly rejected the division's argument. also. aquifer To accept the division's interpretation not exist, despite hydrogeologic

We reject means proof a that of

does

existence, unless the aquifer is actually being used as supply.

The definition of "aquifer" in Ohio Adm.Code 1501:13-1conclusion. by the expert by the as The four

02(I) does not require such an absurd 3. The board's of findings are

corroborated

testimony

Rebecca Petty, a hydrogeologist

employed

Division of Water of the Ohio Department of Natural Resources the Administrator of Water of the Groundwater Resources the water level Section. of the

Division

monitored

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 12-plus abnormal inches decline of precipitation. couldn't be due And so to we knew that had this

precipitation,

because the

precipitation was very high.

We also knew that pumping from

W dewatering from the mine site is relatively constant, you know, it fluctuates seasonably, but they hadn't had any dramatic mining

increases activities of the

in pumping, so we were very concerned that the were having a significant impact on the

availability on

groundwater. volume in that of

Not only water levels, but having an impact

aquifer material or the volume of unconsolidated the valley, that were serving to recharge the the

materials aquifer,

this could be having an impact on

long-term

sustainable yield of the aquifer."

Alice in its part.

Robie Resnick, J., concurring in part and dissenting I would affirm the judgment of the court of appeals in

entirety, allowing the entire petition area to be designated

as unsuitable for mining.

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