OHIO REGULATORY PROGRAM OHIO ADMINISTRATIVE CODE [OAC] 1501:13 DIVISION OF MINES AND RECLAMATION - COAL [Current as of January 2002] CHAPTER 1501:13-3 PROHIBITED OR LIMITED AREAS FOR MINING OAC 1501:13-3-03 Areas where mining is prohibited or limited OAC 1501:13-3-04 Procedures for identifying areas where mining is prohibited or limited OAC 1501:13-3-06 Exploration on land designated as unsuitable for coal mining operations OAC 1501:13-3-07 Procedures for designating areas unsuitable for coal mining operations OAC 1501:13-3-08 Lateral support NOTE: Cross references to OSM's federal statute and regulation sections appear in double braces to the right of the Ohio statute or regulation section numbers, e.g., "OAC 1501:13-7-04 SELF-BONDING. {{ 30 CFR 800.23 }}". The cross references were compiled using the preambles to OSM's approval of amendments to the Ohio regulatory program published in the Federal Register and from the COALEX Library in LexisNexis. OAC 1501:13-3-03 AREAS WHERE MINING IS PROHIBITED OR LIMITED. {{ 30 CFR 761.11 }} Subject to valid existing rights, no coal mining operations shall be conducted after August 3, 1977, unless those operations existed on August 3, 1977: (A) On any lands within the boundaries of the national park system, the national wildlife refuge system, the national system of trails, the national wilderness preservation system, the wild and scenic rivers system, including study rivers designated under section 5(a) of the Wild and Scenic Rivers Act (16 U.S.C. 1276 (a)) or study rivers or study river corridors as established in any guidelines pursuant to that act, national recreation areas designated by act of congress, or any nature preserve dedicated pursuant to Chapter 1517. of the Revised Code; (B) On any federal lands within the boundaries of any national forest unless approval is granted by the United States secretary of interior; (C) On any lands on which mining will adversely affect any publicly owned park or any places included on the "National Register of Historic Places," unless approved jointly by the chief and the federal, state, or local agency with jurisdiction over the park or places; (D) Within one hundred feet measured horizontally of the outside right-of-way line of any public road, except: (1) Where mine access roads or haulage roads join such right-of-way line; or (2) Where a permit has been issued by the director of transportation, or the board of county commissioners, or the board of township trustees, or such other public authority that is charged by law with the maintenance of the public road subject to the requirements of paragraph (C) of rule 1501:13-3-04 of the Administrative Code and the approval of the chief; (E) Within three hundred feet measured horizontally of any occupied dwelling unless the owner thereof has provided a written waiver consenting to coal mining operations closer than three hundred feet; (F) Within three hundred feet measured horizontally of any public building, school, church, community or institutional building or public park; (G) Within one hundred feet measured horizontally of a cemetery. Cemeteries may be relocated if authorized by applicable state law or regulations; or (H) Within one thousand feet of the normal waterlines of any river dedicated as a component of the scenic rivers program pursuant to sections 1501.16 and 1501.161 of the Revised Code. HISTORY: Eff 9-1-77; 5-15-78 (Emer.); 8-28-78; 8-16-82 (Emer.); 10-27-82; 10-1-88; 8-19-89 Rule promulgated under: RC Chapter 119. Rule amplifies: RC 1513.073 119.032 Review Date: 11-01-02 OAC 1501:13-3-04 PROCEDURES FOR IDENTIFYING AREAS WHERE MINING IS PROHIBITED OR LIMITED. {{ 30 CFR 761.12, 761.13, 761.14, 761.15, 761.16, 761.17, 764.14, 779.12 }} (A) Upon receipt of a complete application for a coal mining and reclamation operation permit, the chief shall review the application to determine whether coal mining operations are limited or prohibited under rule 1501:13-3- 03 of the Administrative Code on the lands which would be disturbed by the proposed operation. (1) Where the proposed operation would be located on any lands listed in paragraph (A), (F), (G) or (H) of rule 1501:13-3-03 of the Administrative Code, the chief shall disapprove the application if the applicant had no valid existing rights for the area on August 3, 1977, or if the operation did not exist on that date. (2) If the chief is unable to determine whether the proposed operation is located within the boundaries of any of the lands in paragraph (A) of rule 1501:13-3-03 of the Administrative Code or closer than the limits provided in paragraphs (F), (G) and (H) of rule 1501:13-3-03 of the Administrative Code, the chief shall transmit a copy of the relevant portions of the permit application to the appropriate federal, state, or local government agency for a determination or clarification of the relevant boundaries or distances, with a notice to the appropriate agency that it must respond within thirty days of receipt of the request. (3) The national park service or the U.S. fish and wildlife service shall be notified of any request for a determination of valid existing rights pertaining to areas within the boundaries of areas under their jurisdiction and shall have thirty days from receipt of the notification in which to respond. (4) The chief, upon request by the appropriate agency, shall grant an extension to the thirty-day period of an additional thirty days. If no response is received within the thirty-day period or within the extended period granted, the chief may make the necessary determination based on the information he has available. (B) Where the proposed operation would include federal lands within the boundaries of any national forest and the applicant seeks a determination that mining is permissible under paragraph (B) of rule 1501:13-3-03 of the Administrative Code, the applicant shall submit a permit application to the director of the office of surface mining of the U.S. department of the interior for processing under 30 CFR subchapter D. (C) Where the proposed permit area includes area within one hundred feet measured horizontally of the outside right-of-way line or includes a portion or all of the right-of-way of a public road, the applicant shall submit a road permit for the road or portion thereof. The issuance of a road permit shall require: (1) The applicant to provide notice, in a newspaper of general circulation in the county of the proposed operation at least two weeks prior to the hearing required under paragraph (C)(1)(c) of this rule, that the proposed operation includes area within one hundred feet of the outside right-of-way line of the public road. The notice shall include: (a) A description of the road, to include road number, location and length of road for which the road permit is being requested; (b) A description of how the proposed mining operation will affect the road; and (c) The date, time, and location at which the public agency with jurisdiction over the road will hold a public meeting to consider issuing the road permit; (2) The public authority with jurisdiction over the road to provide an opportunity for a public hearing prior to issuing the road permit and, in issuing the road permit, to make a written finding within thirty days of the completion of the public hearing, based on information gathered at the hearing, that the interests of the public and the affected landowners will be protected; and (3) The chief's approval of the procedures followed and the decision issued by the public authority. (D) (1) Where the proposed permit area includes area within three hundred feet measured horizontally of any occupied dwelling, the applicant shall submit with the application, a written waiver from the owner of the dwelling consenting to such operations within a closer distance of the dwelling. The waiver must state that the owner had the legal right to deny mining and knowingly waived that right. The waiver shall be separate from a lease or deed if the lease or deed does not contain language that authorizes mining within three hundred feet of the occupied dwelling either by an explicit waiver or by a legal description of the area to be mined that contains the area within three hundred feet. The waiver shall specifically state the distance for which the waiver is being granted. Such written waivers shall remain valid against subsequent purchasers who had actual or constructive knowledge of the waiver. (2) Where the applicant for a permit after August 3, 1977, had obtained a valid waiver prior to August 3, 1977, from the owner of an occupied dwelling to mine within three hundred feet of such dwelling, a new waiver shall not be required. (3) (a) Where the applicant for a permit after August 3, 1977, had obtained a valid waiver from the owner of an occupied dwelling, that waiver shall remain effective against subsequent purchasers who had actual or constructive knowledge of the existing waiver at the time of purchase. (b) A subsequent purchaser shall be deemed to have constructive knowledge if the waiver has been properly filed in public property records pursuant to Ohio laws or if the mining has proceeded to within the three-hundred-foot limit prior to the date of purchase. (E) Historic places. (1) Where the chief determines that the proposed coal mining operation will adversely affect any publicly owned park or any place included on the "National Register of Historic Places," the chief shall notify the federal, state, or local agency with jurisdiction over the park or place. The notification shall include: (a) A copy of the applicable parts of the permit application, together with a request for that agency's approval or disapproval of the operation; and (b) A notice to that agency that it has thirty days from receipt of the request within which to respond and that failure to interpose a timely objection will constitute approval. (2) The chief, upon request by the appropriate agency, may grant an extension to the thirty-day period of an additional thirty days. Failure to interpose an objection within thirty days or the extended period granted shall constitute an approval of the proposed permit. (3) A permit for the operation shall not be issued unless jointly approved by all affected agencies. (F) If the chief determines that the proposed coal mining operation is not prohibited under section 1513.073 of the Revised Code and rules adopted thereunder, he may nevertheless, pursuant to appropriate petitions, designate such lands as unsuitable for all or certain types of coal mining operations. HISTORY: Eff 9-1-77; 8-16-82 (Emer.); 10-27-82; 10-1-88; 8-19-89 Rule promulgated under: RC Chapter 119. Rule amplifies: RC 1513.073 119.032 Review Date: 11-01-02 OAC 1501:13-3-05 CRITERIA FOR DESIGNATING AREAS UNSUITABLE FOR COAL MINING OPERATIONS. {{ 30 CFR Part 762, Secs. 761.12, 761.16 }} (A) Criteria for designating lands as unsuitable. (1) Upon petition, an area shall be designated as unsuitable for all or certain types of coal mining operations, if the chief determines that reclamation is not technologically and economically feasible. (2) Upon petition, an area may be designated as unsuitable for certain types of coal mining operations, if the operations will: (a) Be incompatible with existing state or local land use plans or programs; (b) Affect fragile or historic lands in which the operations could result in significant damage to important historic, cultural, scientific, or esthetic values or natural systems; (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 of aquifers and aquifer recharge areas; (d) Affect natural hazard lands in which the operations could substantially endanger life and property. Such lands include areas subject to frequent flooding and areas of unstable geology; and (e) Conflict with or otherwise violate additional criteria the chief may adopt. (B) Land exempt from designation as unsuitable for coal mining operations. The requirements of this rule do not apply to: (1) Lands on which coal mining operations were being conducted on August 3, 1977; (2) Lands covered by a permit issued under Chapter 1513. of the Revised Code; or (3) Lands where substantial legal and financial commitments in coal mining operations were in existence prior to January 4, 1977. (C) A determination by the chief that a person holds or does not hold a valid existing right or that coal mining operations did or did not exist as of August 3, 1977 may be appealed pursuant to the procedures set forth in section 1513.13 of the Revised Code. HISTORY: Eff 10-27-82; 1-20-86; 10-1-88 Rule promulgated under: RC Chapter 119. Rule amplifies: RC 1513.073 119.032 Review Date: 11-01-02 OAC 1501:13-3-06 EXPLORATION ON LAND DESIGNATED AS UNSUITABLE FOR COAL MINING OPERATIONS. {{ 30 CFR Part 772, Sec. 762.15 }} Designation of any area as unsuitable for all or certain types of coal mining operations does not prohibit coal exploration operations in the area, provided that exploration is conducted in accordance with the requirements of Chapter 1513. of the Revised Code and rules 1501:13-4-02 and 1501:13-8-01 of the Administrative Code, and that the exploration does not interfere with any value for which the area has been designated unsuitable for coal mining. HISTORY: Eff 10-27-82; 10-1-88 Rule promulgated under: RC Chapter 119. Rule amplifies: RC 1513.072, 1513.073 119.032 Review Date: 11-01-02 OAC 1501:13-3-07 PROCEDURES FOR DESIGNATING AREAS UNSUITABLE FOR COAL MINING OPERATIONS. {{ 30 CFR Part 764, Sec. 762.15 }} (A) Petitions. (1) Right to petition. Any person having an interest which is or may be adversely affected has the right to petition the chief to have an area designated as unsuitable for coal mining operations, or to have an existing designation terminated. A person having an interest which is or may be adversely affected must demonstrate how he or she meets the "injury in fact" test by describing the injury to the specific affected interests and demonstrating how he or she is among the injured. (2) Designation. Information that a petitioner must provide is: (a) The location and approximate size of the area covered by the petition and a U.S. geological survey topographical map outlining the perimeter of the petitioned areas; (b) Allegations of facts and supporting evidence, covering all lands in the petition area, which tend to establish that the area is unsuitable for all or certain types of coal mining operations, assuming that contemporary mining practices required by these rules would be followed if the area were to be mined. Each of the allegations of fact should be specific as to the mining operation, if known, and the portion(s) of the petitioned area and petitioner's interests to which the allegation applies and be supported by evidence that tends to establish the validity of the allegations for the mining operation or portion of the petitioned areas; (c) A description of how mining of the area has affected or may adversely affect people, land, air, water or other resources; (d) The petitioner's name, address, telephone number and notarized signature; and (e) Identification of the petitioner's interest which is or may be adversely affected, including a statement demonstrating how the petitioner satisfies the requirements of paragraph (A)(1) of this rule. (3) Termination. A petitioner must provide the following information to terminate a designation: (a) The location and approximate size of the area covered by the petition and a U.S. geological survey topographical map outlining the perimeter of the petitioned areas to which the termination petition applies; (b) Allegations of facts covering all lands for which termination is proposed. Each of the allegations of fact shall be specific as to the mining operation, if any, and to the portions of the petitioned area and the petitioner's interests to which the allegation applies. The allegation shall be supported by evidence, not contained in the record of the proceeding in which the area was designated unsuitable, that tends to establish the validity of the allegations for the mining operation or portion of the petitioned area, assuming that contemporary mining practices required by these rules would be followed were the area to be mined. Allegations and supporting evidence should also be specific to the basis for which the designation was made and tend to establish that the designation should be terminated based on: (i) The nature or abundance of the protected resource or condition or other basis of the designation if the designation was based on criteria found in paragraph (A)(2) of rule 1501:13-3-05 of the Administrative Code; or (ii) Reclamation now being technologically and economically feasible, if the designation was based on the criteria found in paragraph (A)(1) of rule 1501:13-3-05 of the Administrative Code; or (iii) The resources or condition not being affected by coal mining operations, or in the case of land use plans, not being incompatible with coal mining operations during and after mining, if the designation was based on the criteria found in paragraph (A)(2) of rule 1501:13-3-05 of the Administrative Code. (c) The petitioner's name, address, telephone number and a notarized signature; and (d) Identification of the petitioner's interest which is or may be adversely affected by the continuation of the designation, including a statement demonstrating how the petitioner satisfies the requirements of paragraph (A)(1) of this rule. (e) For areas previously and unsuccessfully proposed for termination, significant new allegations of facts and supporting evidence must be presented in the petition. (B) Initial processing, recordkeeping, and notification requirements. (1) Promptly after a petition is received, the chief shall notify the general public of the receipt of the petition by a newspaper advertisement placed in the locale of the area covered by the petition, in the newspaper providing broadest circulation in the region of the petitioned area. (2) Within thirty days of receipt of a petition, the chief shall notify the petitioner by certified mail whether or not the petition is complete under paragraph (A)(2) or (A)(3) of this rule. (3) The chief shall determine whether any identified coal resources exist in the area covered by the petition without requiring any showing from the petitioner. If the chief finds there are not any identified coal resources in that area, he shall return the petition to the petitioner with a statement of the findings. (4) The chief may reject petitions for designations and terminations of designations which are frivolous. A "frivolous petition" is one in which the allegations of harm lack serious merit. Once the requirements of paragraph (A) of this rule are met, no party shall bear any burden of proof, but each accepted petition shall be considered and acted upon by the chief pursuant to the procedures of this rule. (5) When considering a petition for an area which was previously and unsuccessfully proposed for designation, the chief shall determine if the new petition presents new allegations of facts. If the petition does not contain new allegations of facts, the chief shall not consider the petition and shall return the petition to the petitioner, with a statement of his findings and a reference to the record of the previous designation proceedings where the facts were considered. (6) If the chief determines that the petition is incomplete or frivolous, he shall return the petition to the petitioner, with a written statement of the reasons for the determination and the categories of information needed to make the petition complete. (7) The chief shall notify the person who submits a complete petition of any application for a permit received which proposes to include any area covered by the petition. (8) The chief may determine not to process any petition received insofar as it pertains to lands for which a complete permit application has been filed and the first newspaper notice has been published. Based on such a determination, the chief may issue a decision on a complete and accurate permit application and shall inform the petitioner why the chief cannot consider the part of the petition pertaining to the proposed permit area. (9) Within three weeks after the determination that a petition is complete, the chief shall make copies of the petition available to the public. He shall also circulate copies of the petition to, and request submissions of relevant information from, other interested governmental agencies, the petitioner, intervenors, persons with an ownership interest of record in the property, and other persons known to the chief to have an interest in the property. (10) Within three weeks after the determination that a petition is complete, the chief shall notify the general public of the receipt of the petition and request submissions of relevant information by a newspaper advertisement placed in the newspaper providing broadest circulation in the region of the petitioned area once a week for two consecutive weeks in the locale of the area covered by the petition. (11) Beginning immediately after a complete petition is filed, the chief shall compile and maintain a record consisting of all documents relating to the petition filed with or prepared by the chief. The chief shall make the record available for public inspection, free of charge, and copying, at reasonable cost, during all normal business hours at the division's district office for the multi-county area in which the land petitioned is located, and at the main office of the chief. (12) Until three days before the chief holds a hearing under paragraph (C) of this rule, any person may intervene in the proceeding by filing allegations of facts describing how the designation determination directly affects the intervenor, supporting evidence, a short statement identifying the petition to which the allegations pertain, and the intervenors name, address and telephone number. (C) Hearing requirements. (1) (a) Within ninety days after receipt of a complete petition, the chief shall hold a public hearing in the locality of the area covered by the petition. If all petitioners and intervenors agree, the hearing need not be held. (b) The hearing may be conducted with cross-examination of expert witnesses only. (c) The chief may delay the hearing for up to an additional two hundred ten days when necessary for adequate review. (d) A record of the hearing shall be made and preserved according to state law. No person shall bear the burden of proof or persuasion. The record shall include all relevant parts of the data base and inventory system and all public comments received during the public comment period. The record shall be considered by the chief in his decision on the petition. (e) The provisions of paragraph (B)(5) of this rule shall also apply to this hearing. (2) The chief shall give notice of the date, time, and location of the hearing to: (a) Local, state, and federal agencies which may have an interest in the decision on the petition; (b) The petitioner; and (c) Any person with an ownership or other interest known to the chief in the area covered by the petition. (3) Notice of the hearing shall be sent by certified mail and postmarked not less than thirty days before the scheduled date of the hearing. (4) The chief shall notify the general public of the date, time, and location of the hearing by placing a newspaper advertisement once a week for two consecutive weeks and once during the week prior to the hearing in the locale of the area covered by the petition. The advertisement shall begin between four to five weeks before the scheduled date of the public hearing. (5) The chief may consolidate in a single hearing the hearings required for each of several petitions which relate to areas in the same locale. (6) Prior to designating any land areas as unsuitable for coal mining operations, the chief shall prepare a detailed statement, using existing and available information on the potential coal resources of the area, the demand for coal resources, and the impact of such designation on the environment, the economy, and the supply of coal. (7) In the event that all petitioners and intervenors stipulate agreement prior to the hearing, the petition may be withdrawn from consideration. (D) Decision. (1) In reaching his decision the chief shall use: (a) The information contained in the data base and inventory system; (b) Information provided by other governmental agencies; (c) The detailed statement prepared under paragraph (C) of this rule; and (d) Any other relevant information submitted during the comment period. (2) A final written decision shall be issued by the chief, including a statement of reasons, within sixty days of completion of the public hearing, or if no public hearing is held, within twelve months after receipt of the complete petition. The chief shall simultaneously send the decision by certified mail to the petitioner, every other party of the proceeding, and to the state office of the United States office of surface mining. (3) The decision of the chief with respect to a petition, or the failure of the chief to act within the time limits set forth in this rule, shall be subject to judicial review as provided by section 1513.14 of the Revised Code. The record made at the hearing pursuant to paragraph (C)(1) of this rule shall be considered and included in the record of this review. (E) Data base and inventory system requirements. (1) The chief shall develop a data base and inventory system which will permit proper evaluation of the capacity of different land areas of the state to support and permit reclamation of coal mining operations. (2) The chief shall add to the data base and inventory system information: (a) On potential coal resources of Ohio, demand for those resources, the environment, the economy and the supply of coal, sufficient to enable the chief to prepare the statements required by paragraph (C)(6) of this rule; and (b) That becomes available from petitions, publications, experiments, permit applications, mining and reclamation operations, and other sources. (3) The chief shall include in the system information relevant to the criteria in paragraph (A) of rule 1501:13-3-05 of the Administrative Code, including, but not limited to, information from the United States fish and wildlife service, the Ohio historical preservation officer, and the agency administering section 127 of the Clean Air Act as amended (42 U.S.C. 7470 et seq.). (F) Public information. The chief shall: (1) Make the information and data base system developed under paragraph (E) of this rule available to the public for inspection free of charge and for copying at reasonable cost. However, specific information relating to location of properties proposed to be nominated to, or listed in, the "National Register of Historic Places" need not be disclosed if the chief determines that the disclosure of such information would create a risk of destruction or harm to such properties; and (2) Provide information to the public on the petition procedures necessary to have an area designated as unsuitable for all or certain types of coal mining operations or to have designations terminated and describe how the inventory and data base system can be used. (G) Implementation. (1) The chief shall not issue permits which are inconsistent with designations made pursuant to this rule. (2) The chief shall maintain a map of areas designated as unsuitable for all or certain types of coal mining operations. (3) The chief shall make available to any person any information within his control regarding designations, except that information that pertains only to the analysis of the chemical and physical properties of the coal, excluding information regarding mineral or elemental content that is potentially toxic in the environment. HISTORY: Eff 10-27-82; 10-1-88 Rule promulgated under: RC Chapter 119. Rule amplifies: RC 1513.073 119.032 Review Date: 11-01-02 OAC 1501:13-3-08 LATERAL SUPPORT. To provide for lateral support, no permit application shall be approved to extend any part of a pit within fifty feet of horizontal distance to an adjacent land or water unless the permittee owns either the surface or the mineral rights in and under the adjoining land or water, or the permittee has written consent from the adjoining surface and mineral owners which consent shall be filed with the permit application. HISTORY: Eff 10-27-82 Rule promulgated under: RC Chapter 119. Rule amplifies: RC 1513.02, 1513.073 119.032 Review Date: 11-01-02