No. 92-1102 | Ohio | Sep 15, 1993
Lead Opinion
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) 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*316 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:
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“(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.
*317 “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 chiefs 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
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.
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“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
“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 aquifer 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.
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“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.
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.
. Sections 1201-1328, Title 30, U.S.Code.
. Ohio Adm.Code 1501:13-1-02(1) 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(1) does not require such an absurd conclusion.
. 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 — 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.”
Concurrence in Part
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.