Ohio has one of the largest gravel mining economies in the nation. Because these operations are often located in or along waterways and can desecrate riparian corridor, they poise a threat to the health and integrity of the state's rivers and streams.
As a citizen, you are not without tools in protecting your waterway from unlawful mining. Operations are subject to permitting and regulation, and Rivers Unlimited will work with you to make sure that you have the knowledge and resources to prevent unlawful mining from degrading the river in your community. Mining can also be effectively controlled by local zoning ordininances that require operations to stay an allotted distance from a stream, which ensures that the stream's corridor is adequately protected to prevent siltation, erosion and run-off pollution. However, these ordinances are currently under threat by state legislation (SB 191 and HB 400), written by the mining lobby, that take away a community's right pass such ordinances, undermining that communty's ability to protects its waterways. Visit our "New and Events" section to find out how you can act now!
The mining laws of Ohio can be somewhat complicated, as the regulation, permitting and enforcement involve three different agencies- the Ohio Department of Natural Resources, the Ohio Environmental Protection Agency and the Army Corps of Engineers. However, we hope that the following series of articles, which were originally published in our journal, Rivers Quarterly, will help citizens and watershed groups obtain a clearer understanding of the permitting and regulatory process, in order that mining operations are held accountable.
REGULATION OF MINING ACTIVITIES IN & AROUND OHIO’S RIVERS
PART I: BUREAUCRACY 101
By Stephanie Ross
Rivers Unlimited has started a fly-over initiative of Ohio's rivers and streams to identify sources of degradation. We've begun our flights in southwestern Ohio, where one of the largest threats to river corridors we have documented is the many gravel mining operations in and along our waterways.
In an effort to ensure these operations are overseen and not overlooked, RU recently met in Columbus with representatives from the Ohio EPA and Ohio Department of Natural Resources to learn more about their permitting and regulatory authority with respect to surface mining. We also asked how RU can best utilize our aerial surveys and GIS mapping technology to ensure that mining operations are taking place within the parameters set for them.
We are pleased to report that the agency representatives with whom we met were eager to share information and to receive our offer of assistance in their efforts to protect Ohio’s waterways. Several more agency representatives attended the meeting than we had anticipated, and we felt well-received.
The meeting began with a crash course in state and federal agency bureaucracy; i.e., who has authority over what, when and where? As you might imagine, it’s a bit complicated.
Generally speaking, any surface mining activity near a waterway and any in-stream mining activity in a waterway requires a permit from ODNR and a “401 permit” from the Ohio EPA. If the waterway and the activity are within the jurisdiction of the US Army Corps of Engineers, then a “404 permit” from the Corps is also required. If the project falls within the parameters of a nationwide permit issued by the US EPA and certified by the Ohio EPA, then the Corps may issue a 404 permit without the operator first securing a 401 permit. The Corps interprets the Ohio EPA’s regulations in such cases.
With all of that state and federal regulatory authority in place, you might be surprised to learn that the greatest obstacle to a mining project often arises at the local level, through zoning resolutions or ordinances. ODNR’s surface mining permit application requires the applicant to identify any applicable zoning laws and to explain how the applicant intends to comply with them. The agency representatives at this meeting agreed that local zoning laws can be a powerful tool to influence surface mining operations.
In terms of enforcement authority, ODNR may impose fines for non-compliance and may refer a matter to the attorney general to institute a civil action to compel compliance through an injunction or restraining order. Ohio R.C. §1514.99 also provides for criminal penalties, both fines and imprisonment, for non-compliance with the surface mining statutory provisions. In addition to administrative enforcement authority, the US EPA can sue a violator for actual damages caused by surface mining operations, whereas the Ohio EPA can sue for punitive damages, as well. The Corps can take administrative action, like issuing a “cease and desist” or other administrative order, and can also refer a matter to the US Justice Department for investigation and penal action.
Part 1 of this series has introduced you to the primary players involved in the regulation of surface mining activities in and around Ohio. In Part 2, we will look at the substantive provisions of R.C. §1514, et.seq., the statute establishing the guidelines for surface and in-stream mining in Ohio.
The enabling statute is Ohio Revised Code, R.C. §1514, et.seq.
So-named because the permitting requirements are set out in § 401 of the federal Clean Water Act.
There are some locations and situations in which mining activity is not permitted at all. Those will be addressed in Part 2 of this series.
So-named because the permitting requirements are set out in § 404 of the federal Clean Water Act.
Part 2: What’s Allowed on Your River?
Part 1 (Rivers Quarterly, Autumn 2006) of this series introduced you to the primary players involved in the regulation of surface mining activities in and around Ohio. In Part 2, we will review the background and scope of Ohio Revised Code Section 1514, the “Ohio Surface Mining and Reclamation Act,” which establishes the guidelines for surface and in-stream mining in Ohio .
Section 1514 grants regulatory authority over surface and in-stream mining to the chief of the Division of Mineral Resources Management, a subdivision of the Ohio Department of Natural Resources. Affirming the constitutionality of the statute, the Ohio court of appeals summarized the purpose of the Act as follows:
R.C. 1514.01 was enacted to moderate the adverse impacts of uncontrolled surface mining on the public health and safety, the natural beauty of the state of Ohio, the environment of the state, and the future use of the land being mined.
The Act underwent a major overhaul on March 15, 2002, providing greater regulation of surface mining and adding in-stream mining to the regulatory scheme.
Prohibitions under the Act- Surface Excavation
Section 1514.10 is the real meat of the Act. Generally speaking, it prohibits any person or business from engaging in surface mining or in-stream mining without a permit issued by the chief. It also establishes “setbacks” for surface excavations of minerals and mining activities. The size of the buffer zone created by these setbacks is dependent on the protection level afforded the particular watercourse. “Surface excavation” of materials is prohibited within the following distances:
State Wild, Scenic or Recreational Rivers- within 120 feet of the highwater mark on each bank
National Wild and Scenic Rivers- within 120 feet of the highwater mark on each bank
Watercourse that drains over 100 square miles- within 75 feet of the highwater mark on each bank
Watercourse that drains between 25 and 100 square miles- within 50 feet of the highwater mark on each bank.
Prohibitions Under the Act- Surface Mining
For “surface mining” activities, the setback distances are as follows:
State Wild, Scenic or Recreational Rivers-75 feet of the highwater mark on each bank
National Wild and Scenic Rivers- 75 feet of the highwater mark on each bank
Watercourse that drains over 100 square miles- 75 feet of the highwater mark on each bank
Watercourse that drains between 25 and 100 square miles -50 feet of the highwater mark on each bank
In other words, the buffer zone along designated wild, scenic or recreational rivers is smaller with respect to surface mining activities than surface excavation of minerals.
Surface Excavation vs. Surface Mining
What’s the difference between surface excavation of minerals and surface mining? Good question. Surface mining is defined as “all or any part of a process followed in the production of minerals from the earth or from the surface of the land by surface excavation methods.” The statute does not provide a definition for “surface excavation of minerals.” A representative of ODNR informs us, however, that the department interprets “surface mining” to mean the activities incidental to “surface excavation.” In other words, a person may engage in mining-related activities (e.g., sorting or storage of materials) within 75’ of a wild, scenic or recreational river, but any actual excavation (e.g., dredging or quarrying) must be set back at least 120’ from the highwater mark.
In-Stream Mining and Dredging
“In-stream mining” - the production of minerals from the bottom of the channel of a watercourse that drains a surface area of more than 100 square miles - is prohibited altogether in the following locations or circumstances: (1) in a state wild, scenic or recreational river or in a portion of a river designated as a component of the national wild and scenic river system; (2) during periods other than periods of low flow; (3) during critical fish or mussel spawning seasons; and (4) in an area known to possess critical spawning habitat for a species of fish or mussel that is on the federal endangered species list.
Routine dredging for purely navigational or flood control purposes during which materials are removed for noncommercial purposes is not prohibited under the Act. Also, a landowner is allowed to extract material (other than coal) when it is used in an unprocessed form on the same tract of land. Thus, a landowner is allowed to pick rocks out of a stream for his or her personal landscaping project.
A person who was issued a surface mining permit prior to the amendment date may continue to operate under that permit and is not subject to the foregoing surface mining and surface excavation prohibitions until the permit is renewed. Also, any person who, on the amendment date, held a valid permit to conduct in-stream mining under the federal “Rivers and Harbors Appropriation Act of 1899” is not required to obtain an in-stream mining permit until the existing permit expires.
Correction: In Part 1 of this series, I wrote that, generally speaking, any surface mining activity near a waterway and any in-stream mining activity requires a permit from ODNR and a “401” certification from the Ohio EPA. In fact, the Ohio EPA’s jurisdiction with respect to 401 certification extends to the discharge of dredged or fill material into waters of the state.
R.C. § 1514 does not apply to coal mining, which is covered by R.C. § 1513.
Call v. G.M. Sader Excavating & Paving, Inc. (1980), 68 Ohio App.2d 41, 22 O.O.3d 36, 426 N.E.2d 798, 799-800.
Part III: Permits, Reclamation and Penalties
By Stephanie Ross
Editors Note: This is the third and last in a series of articles that explains the regulation of sand and gravel mining in the state of Ohio. This part of the series explains why many operations will come under more stringent regulations in the upcoming months, giving citizens more power to make sure riparian buffers are being honored. It also deals with the process of reclamation that is required by state law.
Parts 1 and 2 of this series introduced you to the primary players involved in the regulation of surface and in-stream mining activities in and around Ohio and discussed the background and scope of R.C. § 1514, the “Ohio Surface Mining and Reclamation Act” (“the Act”). Part 3 will cover the details of the permit process, reclamation of affected land and penalties for non-compliance with the law.
The Permit Process
Applications for a surface or in-stream mining permit must be made on a form prescribed by the chief of the Division of Mineral Resources Management, a subdivision of the Ohio Department of Natural Resources. The 13-page application may be downloaded from ODNR’s web site by following links to the forms page for the Division of Mineral Resources Management. The application itself provides a useful snapshot of the permitting process.
In addition to the form prescribed by the chief, the applicant must submit a number of attachments, including a map of the area to be affected, a geological data report (which is kept confidential), a copy of the advertisement by which public notice of the permit application will be given , and consent forms signed by landowners if mining is to take place within 50’ of adjacent property. A complete checklist of required attachments may be found with the application form.
The applicant must also file a surety bond or its equivalent, which is held in trust by the state treasurer for the purpose of ensuring the operator’s compliance with the Act and, in particular, the operator’s faithful performance of reclamation in accordance with the plan submitted to and approved by the chief in conjunction with the issuance of the permit. With the 2002 amendments, the amount of the bond was increased to $10,000 plus $1,000 per acre of land to be affected. The bond is returned to the operator upon reclamation.
A permit for in-stream mining is good for two years and a permit for surface mining is good for 15 years, though such permits may be renewed indefinitely (in the same two-year and 15-year increments). So long as the applicant provides all updated information required and is otherwise in compliance with the Act, the chief is required to approve the application for renewal, unless “significant changes” to the plan of mining and reclamation are proposed, in which case renewal is discretionary.
When the Act originally went into effect in 1975, it provided for permits to expire after ten years, subject to renewal in ten-year increments, as well. It also established a schedule by which applications were received across the state in a graduated fashion, according to region, so as to avoid a single, overwhelming influx of applications. So, for example, the first permit applications in southwest Ohio were filed in the summer of 1976, while the bulk of applications in the region were filed in the early part of 1977. Consequently, the bulk of surface mining permits in southwest Ohio are coming up for renewal for the first time since the 2002 amendments to the Act in the coming months. All of those renewal permits will be subject to the more stringent standards imposed by the 2002 amendments.
Public Notice and Other Input
Unless one of the exemptions from the public notice requirement applies, the permit application must be made available for public inspection at a location identified by the chief. The applicant must place an advertisement, identifying said location for inspection, in a newspaper of general circulation in the locality of the operation at least once a week for four consecutive weeks. Any person having an interest that may be adversely affected by the proposed operation may file written comments about or objections to an application with the chief, no later than 30 days after the last publication of the notice.
Additionally, the chief is required to provide written notice of the application to governmental agencies. An agency may request that the chief hold an informal conference “to aid in the public understanding of the permitting process.” An agency may also file written comments or objections with the chief.
To ensure adequate lateral support, no permit application or amendment may be approved to engage in surface or in-stream mining on land closer than 50’ to any adjacent land or waters in which the operator does not own the surface or mineral rights, unless the owners of the surface and mineral rights in and under the adjacent land or waters consent in writing to mining within 50’ of their land.
Reclamation of Affected Acreage
One of the most important components of the regulatory scheme is reclamation of the area to be affected. Every application for a surface or in-stream mining permit must contain a reclamation plan that includes a statement of the intended future uses of the area, which must comply with any applicable zoning laws. The Act sets out a list of “general performance standards for mining and reclamation.” The particular standards applicable to a given operation will depend on the future uses specified in the reclamation plan, but may include some or all of the following:
Reclamation must be performed “in a timely manner” and no later than three years following the mining of an area, absent a showing that the future use requires a longer period for completion of reclamation. The operator is required to file a request for inspection of a reclaimed area in order to secure the release of the performance bond associated therewith. For purposes of inspection and bond release, reclamation occurs in two phases. Grading, contouring, terracing, resoiling, and initial planting of the affected area comprise the first phase. The establishment of vegetative cover and all other steps necessary to complete reclamation comprise the second phase. Seventy-five percent of the performance bond is released on approval of the first phase and the remainder is released on completion of reclamation.
If the operator fails to reclaim the land to the satisfaction of the inspector, the chief issues an order by which the performance bond (or equivalent security held by the state treasurer) is retained, either in whole or in part, to be applied to reclamation by the state. If the bond is a surety bond, the surety is given notice and an opportunity to perform the necessary reclamation in order to avoid liability under the bond.
Penalties
Any person who engages in surface or in-stream mining without a permit may be fined up to $5,000 plus up to $1,000 per acre of land affected, and is also responsible for reclamation of the land. Any person who exceeds the limits of a permit by mining land contiguous to an area of land affected under a permit or amendment may be fined up to $1,000 per acre. Any person who purposely misrepresents or omits any material fact in an application for a permit or amendment to a permit, or an annual or final report, may be fined not less than $100 nor more than $1,000, or imprisoned not more than six months, or both.
Any person who fails to perform any measure set forth in the approved plan of mining and reclamation that is necessary to prevent damage to adjoining property or to achieve one of the performance standards, or who violates any other provision of the Act or order of the chief, may be fined between $100 and $1,000 for a first offense and between $200 and $5,000 for each subsequent offense. Each subsequent offense also carries the possibility of imprisonment up to six months. The operator’s permit may be revoked upon conviction of a third offense.
The Act also provides certain civil penalties to be assessed for violation of an order issued by the chief. The chief may also request the attorney general of the state to institute a civil action against a violator to compel compliance with the order, by way of temporary or permanent injunction, restraining order, or the like.
Public notice is not required if a zoning plan is in place that allows for mining at the location in question or if the applicant has already received, within the previous year, a zoning variance or conditional use certificate for the mining operation, for which public notice and an opportunity for comment were provided. In the latter case, the applicant must provide the chief with a copy of the notice previously published.