Chapter 1501:13-3 Prohibited or Limited Areas for Mining

1501:13-3-01 Standards for demonstration of valid existing rights.

(A) Except as provided in paragraph (B) of this rule, a person claiming valid existing rights must demonstrate both of the following:

(1) A property rights demonstration showing that, at the time the land came under the protection of division (D) of section 1513.073 of the Revised Code or rule 1501:13-3-03 of the Administrative Code, a legally binding conveyance, lease, deed, contract, or other document vests that person, or a predecessor in interest, with the right to conduct the type of coal mining operations intended; and

(2) Compliance with one of the following standards:

(a) Good faith/all permits standard. All permits and other authorizations required to conduct coal mining operations had been obtained, or a good faith effort to obtain all necessary permits and authorizations had been made, before the land came under the protection of division (D) of section 1513.073 of the Revised Code or rule 1501:13-3-03 of the Administrative Code. At a minimum, an application must have been submitted for any permit required under Chapter 1513. of the Revised Code; or

(b) Needed for and adjacent standard. The land is needed for and immediately adjacent to a coal mining operation for which all permits and other authorizations required to conduct coal mining operations had been obtained, or a good faith attempt to obtain all permits and authorizations had been made, before the land came under the protection of division (D) of section 1513.073 of the Revised Code or rule 1501:13-3-03 of the Administrative Code. To meet this standard, the person claiming valid existing rights shall demonstrate that prohibiting expansion of the operation onto that land would unfairly impact the viability of the operation as originally planned before the land came under the protection of division (D) of section 1513.073 of the Revised Code or rule 1501:13-3-03 of the Administrative Code. Except for operations in existence before August 3, 1977, or for which a good faith effort to obtain all necessary permits had been made before August 3, 1977, this standard does not apply to lands already under the protection of division (D) of section 1513.073 of the Revised Code or rule 1501:13-3-03 of the Administrative Code when the chief approved the permit for the original operation or when the good faith effort to obtain all necessary permits for the original operation was made. In evaluating whether a person meets this standard, the chief may consider factors such as:

(i) The extent to which coal supply contracts or other legal and business commitments that predate the time the land came under the protection of division (D) of section 1513.073 of the Revised Code or rule 1501:13-3-03 of the Administrative Code depend upon use of that land for coal mining operations;

(ii) The extent to which plans used to obtain financing for the operation before the land came under the protection of division (D) of section 1513.073 of the Revised Code or rule 1501:13-3-03 of the Administrative Code rely upon use of that land for coal mining operations;

(iii) The extent to which investments in the operation before the land came under the protection of division (D) of section 1513.073 of the Revised Code or rule 1501:13-3-03 of the Administrative Code rely upon use of that land for coal mining operations; and

(iv) Whether the land lies within the area identified on the life-of-mine map submitted under paragraph (J)(29) of rule 1501:13-4-04 or paragraph (J)(29) of rule 1501:13-4-13 of the Administrative Code before the land came under the protection of division (D) of section 1513.073 of the Revised Code or rule 1501:13-3-03 of the Administrative Code.

(B) A person who claims valid existing rights to use or construct a road across the surface of lands protected by division (D) of section 1513.073 of the Revised Code or rule 1501:13-3-03 of the Administrative Code shall demonstrate that one or more of the following circumstances exist if the road is included within the definition of coal mining operation of rule 1501:13-1-02 of the Administrative Code:

(1) The road existed when the land upon which it is located came under the protection of division (D) of section 1513.073 of the Revised Code or rule 1501:13-3-03 of the Administrative Code, and the person has a legal right to use the road for coal mining operations;

(2) A properly recorded right of way or easement for a road in that location existed when the land came under the protection of division (D) of section 1513.073 of the Revised Code or rule 1501:13-3-03 of the Administrative Code, and, under the document creating the right of way or easement, and under subsequent conveyances, the person has legal right to use or construct a road across the right of way or easement for coal mining operations;

(3) A valid permit for use or construction of a road in that location for coal mining operations existed when the land came under the protection of division (D) of section 1513.073 of the Revised Code or rule 1501:13-3-03 of the Administrative Code; or

(4) Valid existing rights exist under paragraph (A) of this rule.

(C) Possession of valid existing rights under this rule only confers an exception from the prohibitions of division (D) of section 1513.073 of the Revised Code or rule 1501:13-3-03 of the Administrative Code. A person seeking to exercise valid existing rights shall comply with all other pertinent requirements of Chapter 1513. of the Revised Code and these rules.

Effective: 10/28/2010
R.C. 119.032 review dates: 10/15/2015
Promulgated Under: 119.03
Statutory Authority: 1513.02
Rule Amplifies: 1513.07 , 1513.073

1501:13-3-02 Submission and processing of requests for valid existing rights determinations.

(A) Except for federal lands subject to 30 C.F.R. Part 761, any person who intends to conduct coal mining operations on the basis of valid existing rights under division (D) of section 1513.073 of the Revised Code and rules adopted thereunder shall file with the chief a request for a valid existing rights determination. This request shall be submitted before preparing and submitting an application for a permit or boundary revision for the land for which the determination is sought.

(B) Requirements for property rights demonstration. If the request relies upon one of the standards of paragraph (A)(2) of rule 1501:13-3-01 of the Administrative Code, the person claiming valid existing rights shall provide a property rights demonstration under paragraph (A)(1) of rule 1501:13-3-01 of the Administrative Code which shall include the following items:

(1) A legal description of the land to which the request pertains;

(2) Complete documentation of the character and extent of the requestor's current interests in the surface and mineral estates of the land to which the request pertains;

(3) A complete chain of title for the surface and mineral estates of the land to which the request pertains;

(4) A description of the nature and effect of each title instrument that forms the basis for the request, including any provision pertaining to the type or method of mining or mining-related surface disturbances and facilities;

(5) A description of the type and extent of coal mining operations that the requestor claims to have the right to conduct, including the method of mining, any mining-related surface activities and facilities, and an explanation of how those operations would be consistent with Ohio property law;

(6) Complete documentation of the nature and ownership, as of the date the land came under the protection of division (D) of section 1513.073 of the Revised Code or rule 1501:13-3-03 of the Administrative Code, of all property rights for the surface and mineral estates of the land to which the request pertains;

(7) Names and addresses of the current owners of the surface and mineral estates of the land to which the request pertains;

(8) If the coal interests have been severed from other property interests, documentation that the requestor has notified and provided reasonable opportunity for the owners of other property interests in the land to which the request pertains to comment on the validity of requestor's property rights claims; and

(9) Any comments the requestor receives in response to the notification required under paragraph (B)(8) of this rule.

(C) Additional requirements for the good faith/all permits standard. If the request relies upon the good faith/all permits standard under paragraph (A)(2)(a) of rule 1501:13-3-01 of the Administrative Code, the request shall also include the following information about coal mining operations on the land to which the request pertains:

(1) Approval and issuance dates and identification numbers for any permits, licenses, and authorizations that the person requesting the determination or a predecessor in interest obtained before the land came under the protection of division (D) of section 1513.073 of the Revised Code or rule 1501:13-3-03 of the Administrative Code;

(2) Application dates and identification numbers for any permits, licenses, and authorizations for which the person requesting the determination or a predecessor in interest submitted an application before the land came under the protection of division (D) of section 1513.073 of the Revised Code or rule 1501:13-3-03 of the Administrative Code; and

(3) An explanation of any other good faith effort that the person requesting the determination or a predecessor in interest made to obtain the necessary permits, licenses, and authorizations as of the date that the land came under the protection of division (D) of section 1513.073 of the Revised Code or rule 1501:13-3-03 of the Administrative Code.

(D) Additional requirements for the needed for and adjacent standard. If the request relies upon the needed for and adjacent standard under paragraph (A)(2)(b) of rule 1501:13-3-01 of the Administrative Code, the request shall also include:

(1) An explanation of how and why the land is needed for and immediately adjacent to the operation upon which the request is based; and

(2) A demonstration that prohibiting expansion of the operation onto that land would unfairly impact the viability of the operation as originally planned before the land came under the protection of division (D) of section 1513.073 of the Revised Code or rule 1501:13-3-03 of the Administrative Code.

(E) Requirements for roads. If the request relies upon one of the standards for roads under paragraphs (B)(1) to (B)(3) of rule 1501:13-3-01 of the Administrative Code, the request shall include satisfactory documentation that:

(1) The road existed when the land upon which it is located came under the protection of division (D) of section 1513.073 of the Revised Code or rule 1501:13-3-03 of the Administrative Code, and the requestor has a legal right to use the road for coal mining operations;

(2) A properly recorded right of way or easement for a road in that location existed when the land came under the protection of division (D) of section 1513.073 of the Revised Code or rule 1501:13-3-03 of the Administrative Code, and, under the document creating the right of way or easement, and under any subsequent conveyances, the requestor has a legal right to use or construct a road across that right of way or easement to conduct coal mining operations; or

(3) A valid permit for use or construction of a road in that location for coal mining operations existed when the land came under the protection of division (D) of section 1513.073 of the Revised Code or rule 1501:13-3-03 of the Administrative Code.

(F) Initial review of request.

(1) The chief shall conduct an initial review to determine whether the request includes all applicable components of the submission requirements of paragraphs (B) to (E) of this rule. This review pertains only to the completeness of the request, not the legal or technical adequacy of the materials submitted.

(2) If the request does not include all applicable components of the submission requirements of paragraphs (B) to (E) of this rule, the chief shall notify the requestor and establish a reasonable time for submission of the missing information.

(3) When the request includes all applicable components of the submission requirements of paragraphs (B) to (E) of this rule, the chief shall notify the requestor that the public notice required under paragraph (G) of this rule can be published.

(4) If the information requested under paragraph (F)(2) of this rule is not provided within the time specified or as subsequently extended, the chief shall issue a determination that valid existing rights have not been demonstrated on the land upon which the request is based, as provided in paragraph (H)(4) of this rule.

(G) Public notice and opportunity to comment.

(1) After the chief determines that a request for a valid existing rights determination is complete, the requestor shall publish a notice inviting comment on the merits of the request in a newspaper of general circulation in the locality of the land to which the request pertains, and shall provide the chief with a copy of the published public notice. The notice shall include:

(a) The location of the land to which the request pertains;

(b) A description of the type of coal mining operations planned;

(c) A reference to and brief description of the applicable standard or standards for demonstrating valid existing rights under rule 1501:13-3-01 of the Administrative Code, and the following:

(i) If the request relies upon one of the standards of paragraph (A)(2) of rule 1501:13-3-01 of the Administrative Code, a description of the property rights that the requestor claims and the basis for this claim;

(ii) If the request is for a road and relies upon the standard in paragraph (B)(1) of rule 1501:13-3-01 of the Administrative Code, a description of the basis for the claim that the road existed when the land came under the protection of division (D) of section 1513.073 of the Revised Code or rule 1501:13-3-03 of the Administrative Code, and a description of the basis for the claim that the requestor has a legal right to use that road for coal mining operations; or

(iii) If the request is for a road and relies upon the standard in paragraph (B)(2) of rule 1501:13-3-01 of the Administrative Code, a description of the basis for the claim that a properly recorded right of way or easement for a road in that location existed when the land came under the protection of division (D) of section 1513.073 of the Revised Code or rule 1501:13-3-03 of the Administrative Code, and a description of the basis for the claim that, under the document creating the right of way or easement, and under any subsequent conveyances, the requestor has a legal right to use or construct a road across the right of way or easement to conduct coal mining operations;

(d) If the request relies upon one or more of the standards in paragraph (A), (B)(1) or (B)(2) of rule 1501:13-3-01 of the Administrative Code, a statement that the chief will not make a decision on the merits of the request if, by the close of the comment period under this notice or the notice required under paragraph (G)(3) of this rule, a person with a legal interest in the land initiates appropriate legal action in the proper venue to resolve any differences concerning the validity or interpretation of the deed, lease, easement, or other documents that form the basis of the claim;

(e) A description of the procedures the chief will follow in processing the request;

(f) The closing date of the comment period, which must be a minimum of thirty days after the publication date of the notice;

(g) A statement that interested persons may obtain a thirty-day extension of the comment period upon request to the chief; and

(h) The name and address of the district office where a copy of the request is available for public inspection and to which comments and requests for extension of the comment period should be sent.

(2) Upon receipt of a complete request for a valid existing rights determination and a copy of the published public notice, the chief shall provide a copy of the published public notice to:

(a) All reasonably locatable owners of surface and mineral estates in the land included in the request.

(b) The owner of the feature causing the land to come under the protection of division (D) of section 1513.073 of the Revised Code or rule 1501:13-3-03 of the Administrative Code, and, when applicable, the agency with primary jurisdiction over the feature with respect to the values causing the land to come under the protection of division (D) of section 1513.073 of the Revised Code or rule 1501:13-3-03 of the Administrative Code.

(3) The letter transmitting the notice required under paragraph (G)(2) of this rule shall provide a thirty-day comment period, starting from the date of service of the letter, and specify that another thirty days is available upon request. The chief may grant additional time for good cause upon request. The chief need not necessarily consider comments received after the closing date of the comment period.

(H) Determination of the chief.

(1) The chief shall review the materials submitted under paragraphs (B) to (E) of this rule, comments received under paragraph (G) of this rule, and any other relevant, reasonably available information to determine whether the record is sufficiently complete and adequate to support a decision on the merits of the request. If not, the chief shall notify the requestor in writing, explaining the inadequacy of the record and requesting submittal, within a specified reasonable time, of any additional information the chief deems necessary to remedy the inadequacy.

(2) Once the record is complete and adequate, the chief shall determine whether the requestor has demonstrated valid existing rights. The chief's decision shall explain how the requestor has or has not satisfied all applicable elements of the standards set forth in rule 1501:13-3-01 of the Administrative Code, contain findings of fact and conclusions, and specify the reasons for the conclusions.

(3) Impact of property rights disagreements. This paragraph applies only when a request relies upon one or more of the standards in paragraphs (A), (B)(1), and (B)(2) of rule 1501:13-3-01 of the Administrative Code.

(a) The chief shall issue a determination that the requestor has not demonstrated valid existing rights if the requestor's property rights claims are the subject of pending litigation in a court or administrative body with jurisdiction over the property rights in question. The chief shall make this determination without prejudice, meaning that the requestor may re-file the request once the property rights dispute is finally adjudicated. This paragraph applies only to situations in which legal action has been initiated as of the closing date of the comment period under paragraph (G) (1) or (G) (3) of this rule.

(b) If the record indicates disagreement as to the accuracy of the requestor's property rights claims, but this disagreement is not the subject of pending litigation in a court or administrative agency of competent jurisdiction, the chief shall evaluate the merits of the information in the record and determine whether the requestor has demonstrated that the requisite property rights exist under paragraph (A)(1), (B)(1), or (B)(2) of rule 1501:13-3-01 of the Administrative Code, as appropriate. The chief shall then proceed with the decision process under paragraph (H)(2) of this rule.

(4) The chief shall issue a determination that the requestor has not demonstrated valid existing rights if the requestor does not submit information that the chief requests under paragraph (F)(2) or (H)(1) of this rule within the time specified or as subsequently extended. The chief shall make this determination without prejudice, meaning that the requestor may re-file a revised request at any time.

(5) After making a determination, the chief shall:

(a) Provide a copy of the determination, together with an explanation of appeal rights and procedures, to the requestor, to the owner or owners of the land to which the determination applies, to the owner of the feature causing the land to come under the protection of division (D) of section 1513.073 of the Revised Code or rule 1501:13-3-03 of the Administrative Code, and, when applicable, to the agency with primary jurisdiction over the feature with respect to the values that caused the land to come under the protection of division (D) of section 1513.073 of the Revised Code or rule 1501:13-3-03 of the Administrative Code.

(b) Publish notice of the determination in a newspaper of general circulation in the locality in which the land is located.

(I) Administrative and judicial review. A determination by the chief that the requestor has or does not have valid existing rights is subject to administrative and judicial review under sections 1513.13 and 1513.14 of the Revised Code.

(J) Availability of records. The chief shall make a copy of a request for a determination of valid existing rights, as well as any records associated with that request and any subsequent determination under paragraph (H) of this rule, available to the public in accordance with rule 1501:13-1-10 of the Administrative Code.

(K) For dates of federal rules and federal laws referenced in this rule, see rule 1501:13-1-14 of the Administrative Code.

Effective: 10/28/2010
R.C. 119.032 review dates: 10/15/2015
Promulgated Under: 119.03
Statutory Authority: 1513.02
Rule Amplifies: 1513.07 , 1513.073

1501:13-3-03 Areas where mining is prohibited or limited.

(A) Subject to valid existing rights and qualification for the exception for existing operations under paragraph (B) of this rule, no coal mining operations shall be conducted :

(1) 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;

(2) On any federal lands within the boundaries of any national forest unless approval is granted by the United States secretary of interior;

(3) 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. The "National Register of Historic Places" is administered by the national parks service, U.S. department of the interior; its website for Ohio sites ishttp://www.nationalregisterofhistoricplaces.com/oh/state.html;

(4) Within one hundred feet measured horizontally of the outside right-of-way line of any public road, except:

(a) Where mine access roads or haulage roads join such right-of-way line; or

(b) 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;

(5) Within three hundred feet measured horizontally of any occupied dwelling unless the owner of the dwelling has provided a written waiver consenting to coal mining operations closer than three hundred feet as provided in paragraph (D) of rule 1501:13-3-04 of the Administrative Code;

(6) Within three hundred feet measured horizontally of any public building, school, church, community or institutional building or public park;

(7) Within one hundred feet measured horizontally of a cemetery. Cemeteries may be relocated if authorized by applicable state law or regulations; or

(8) Within one thousand feet of the normal waterlines of any river dedicated as a component of the scenic rivers program pursuant to sections 1547.81 to 1547.87 of the Revised Code.

(B) Exception for existing operations. The prohibitions and limitations of paragraph (A) of this rule do not apply to coal mining operations for which a valid permit, issued under Chapter 1513. of the Revised Code and these rules, exists when the land comes under the protection of division (D) of section 1513.073 of the Revised Code or this rule. This exception applies only to lands within the permit area as it exists when the land comes under the protection of division (D) of section 1513.073 of the Revised Code or this rule.

(C) For dates of federal rules and federal laws referenced in this rule, see rule 1501:13-1-14 of the Administrative Code.

Effective: 10/28/2010
R.C. 119.032 review dates: 06/11/2010 and 10/15/2015
Promulgated Under: 119.03
Statutory Authority: 1513.02
Rule Amplifies: 1513.07 , 1513.073
Prior Effective Dates: 9/1/77, 5/15/78 (Emer.), 8/28/78, 8/16/82 (Emer.), 10/27/82, 10/1/88, 8/19/89

1501:13-3-04 Procedures for identifying areas where mining is prohibited or limited.

(A) Upon receipt of a complete application for a coal mining and reclamation operation permit, or a complete application for revision of the boundaries of 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)(1), (A)(6), (A)(7) or (A)(8) of rule 1501:13-3-03 of the Administrative Code, the chief shall disapprove the application if the applicant cannot establish valid existing rights for the area .

(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)(1) of rule 1501:13-3-03 of the Administrative Code or closer than the limits provided in paragraphs (A)(6), (A)(7), and (A)(8) 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 or she 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 (A)(2) 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 C.F.R. subchapter D or a request to the director of the office of surface mining of the U.S. department of the interior for processing under 30 C.F.R. subchapter F.

(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, including where the applicant proposes to relocate or close 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 or includes a portion or all of the right-of-way of a public road, or that the applicant proposes to relocate or close a 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) Occupied dwellings.

(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.

(2) Where the applicant for a permit 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) Where

the applicant for a permit 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.

(4) 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 "National Register of Historic Places" is administered by the national parks service, U.S. department of the interior; its website for Ohio sites is http://www.nationalregisterofhistoricplaces.com/oh/state.html. 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 that the agency 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 or she may nevertheless, pursuant to appropriate petitions, designate such lands as unsuitable for all or certain types of coal mining operations.

(G) For dates of federal rules and federal laws referenced in this rule, see rule 1501:13-1-14 of the Administrative Code.

Effective: 10/28/2010
R.C. 119.032 review dates: 06/11/2010 and 10/15/2015
Promulgated Under: 119.03
Statutory Authority: 1513.02
Rule Amplifies: 1513.073
Prior Effective Dates: 9/1/77, 8/16/82 (Emer.), 10/27/82, 10/1/88, 8/19/89, 2/12/09

1501:13-3-05 Criteria for designating areas unsuitable for coal mining operations.

(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; or

(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.

Effective: 02/12/2009
R.C. 119.032 review dates: 11/28/2008 and 02/01/2014
Promulgated Under: 119.03
Statutory Authority: 1513.02
Rule Amplifies: 1513.073
Prior Effective Dates: 10/27/82, 1/20/86, 10/1/88

1501:13-3-06 Exploration on land designated as unsuitable for coal mining operations.

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.

R.C. 119.032 review dates: 11/28/2008 and 11/21/2013

Promulgated Under: 119.03

Statutory Authority: 1513.02

Rule Amplifies: 1513.073

Prior Effective Dates: 10/27/82; 1/20/86; 10/1/88

1501:13-3-07 Procedures for designating areas unsuitable for coal mining operations.

(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 fact 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 allegation of fact shall be specific as to the mining operation, if known, the portion(s) of the petitioned area, and the petitioner's interests to which the allegation applies, and shall be supported by evidence that tends to establish the validity of each allegation 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 fact and supporting evidence covering all lands for which termination is proposed. Each allegation of fact shall be specific as to the mining operation, if any, the portions of the petitioned area, and the petitioner's interests to which each allegation applies. Each 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 each allegation 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 with regard 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;

(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; and

(e) For areas previously and unsuccessfully proposed for termination, significant new allegations of fact 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 or she 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 fact. If the petition does not contain new allegations of fact, the chief shall not consider the petition and shall return the petition to the petitioner, with a statement of his or her 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 or she 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 or she 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 fact, with supporting evidence, describing how the designation determination directly affects the intervenor, a short statement identifying the petition to which the allegations pertain, and the intervenor's 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 or her 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 intervenors; 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 or her 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)(6) 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 administrative and judicial review as provided by sections 1513.13 and 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," administered by the national parks service, U.S. department of the interior, 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. The website for the "National Register of Historic Places" for Ohio sites is http://www.nationalregisterofhistoricplaces.com/oh/state.html; 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 Chapter 1501:13-3 of the Administrative Code.

(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 or her control regarding designations, including mineral or elemental content that is potentially toxic in the environment, but not including proprietary information that pertains only to the analysis of the chemical and physical properties of the coal.

(H) For dates of federal rules and federal laws referenced in this rule, see rule 1501:13-1-14 of the Administrative Code.

Effective: 10/28/2010
R.C. 119.032 review dates: 06/11/2010 and 10/15/2015
Promulgated Under: 119.03
Statutory Authority: 1513.02
Rule Amplifies: 1513.073
Prior Effective Dates: 8/16/82 (Emer.), 10/27/82, 10/1/88, 2/12/09

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.

R.C. 119.032 review dates: 11/28/2008 and 11/21/2013

Promulgated Under: 119.03

Statutory Authority: 1513.02

Rule Amplifies: 1513.02 , 1513.073

Prior Effective Dates: 10/27/82