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Coal Industry, Environmental Group At Odds
Over Impact Of Permitting Changes

Monday, July 27, 2015

The recently passed budget bill includes provisions designed to streamline the issuance of coal mining permits, but environmentalists say it could allow operators to effectively mine on unwilling landowners’ property.

Included in the final budget measure (HB 64) is House-added language that would allow coal companies to submit to the state a notarized statement describing their right to enter and commence mining operations, according to the Legislative Service Commission. Currently, operators must show documents detailing their right to mine the proposed area.

The provision also prohibits the Department of Natural Resources from denying a coal mining permit if the applicant documents they have rights to at least 67% of the proposed area, LSC says.

Ohio Coal Association President Christian Palich said the measure was designed to speed up the permitting process and prevent wasted effort in having to submit a second application in cases where a company negotiates mining rights with landowners within a proposed area.

“Typically for underground mines, there can be lease holdouts. Well this cuts it out so that a permit can be conditionally issued and then they don’t have to go back and redo it once that person signs off in the end,” he said in an interview.

“It would allow the ability to permit currently unleased or uncontrolled properties to get the permit conditionally issued from ODNR. But the permit condition prohibits mining on any uncontrolled property,” he said.

Trent Dougherty, managing director of legal affairs for the Ohio Environmental Council, said he believes the provision was drafted in a way that could allow coal mining companies to get a permit without having to prove they own the rights to mine a certain parcel of land.

“It says that really you only need to show that you have 67% of the total area in which coal mining operations were proposed. So not only do you not need to show the legal documents, but you don’t need to own all of it either,” he said.

That means a coal company could essentially override landowners with 33% of property included in a permit who might contest the operators’ claim to own the mineral rights, he said. “If you’re looking at 1,000 acres, you only need to show you have 670 acres of it. You may or may not have that other 330.”

Sometimes mineral leases date back to the early 1900s and apply to property that has long since been subdivided into numerous parcels, Mr. Dougherty said. Disputes over mining rights often wind up in court.

“What I’d like to see is more emphasis on demonstrating that you have the legal right, not this result, which is to take us even further back,” he said. “Making coal mine applicants do their due diligence is the least you can do, especially when you have landowners that don’t have the resources to monitor these permits.”

Mr. Dougherty said he didn’t think the measure was intended to allow coal operators to mine unwilling landowners’ property. “But that’s an unfortunate result of this,” he said, criticizing the lack of deliberation on the issue. “It went through the House and Senate and was signed into law without really any discussion.”

Mr. Palich disagrees and points to a provision stipulating that permits will prohibit mining on any land for which the applicant has not provided documents proving the legal right to enter.

“Nothing’s changed – we can’t mine coal on land we don’t control” the mineral rights, he said. “We can’t mine it until we actually get the signoff from the landowners with proper notification. So it’s essentially getting rid of the duplication of getting another permit when there’s signoff.”

Other coalmining states, like Pennsylvania, have a similar process in place, he said, predicting the amendment will save the state money by not requiring ODNR to conduct a second permitting process.

“It’s going to save time, money and onerous conditions in the permitting process,” Mr. Palich said.

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