State ex rel. Brown v. Home Pro Enterprises, Inc.

Holmes, J. The question presented by this appeal is whether the appellees’ activities are subject to the provisions of R.C. Chapter 1513.4 R.C. 1513.07(A) prohibits any “licensed operator” from conducting a “strip mining operation” unless a permit has been issued by the chief of the division of reclamation.5 6Thus, appellees will be subject to the permit requirements if they are deemed to be “operators” and their activity is a “strip mining operation.” An “operator” is defined by R.C. 1513.01(G) as: “* * * any person engaged in strip mining who removes or intends to remove more than two hundred fifty tons of coal from the earth by strip mining within twelve successive calendar months or who removes overburden to determine the location, quality, or quantity of a natural coal deposit, but does not include persons whose coal extraction is incidental to the removal of other minerals as defined in division (P) of this section.” Since appellees removed more than 250 tons of coal within a 12-month [257] period, the key question is whether they were “engaged in strip mining.”6 The courts below held that the appellees were not engaged in strip mining. In reaching this conclusion, the courts.determined that one is not engaged in strip mining if done on only an occasional basis. This would be much like the “occasional sale of goods” under the Uniform Commercial Code. We disagree with that conclusion. The decisions7 relied upon by the trial court below involve regulatory schemes which control activities of those engaged in the business of that activity. The General Assembly chose to regulate those engaged in strip mining — not just those engaged in the business of strip mining. That appellees may be classed as “occasional strip miners” is of no import. Further, the definition of operator, quoted above, contains one exemption from the regulatory scheme for those who could be considered occasional strip miners. To be an operator, one must remove, or intend to remove, more than 250 tons of coal in a 12-month period. Under the rule of statutory construction, expressio unius est exclusio alterius, we decline to create another exemption for those who are not in the business of strip mining. The General Assembly has directed regulation of all who engage in an activity which is strip mining. This is what the appellees were doing; therefore, we conclude that appellees were “operators” as that term is defined by R.C. 1513.01(G). Next, we must decide whether the activity that appellees were conducting was a “strip mining operation.”8 The Court of Appeals reasoned that since the removal of coal was incidental to commercial development, it was not a strip mining operation. To reach this conclusion, the Court of Appeals relied upon the fact that R.C. Chapter 1513 is directed toward “reclamation,” and reasoned that in as much as the appellees were commercially developing the site, “reclamation” would make little sense. Because we feel that this reasoning interprets both the goals of the statutory scheme and the concept of reclamation too narrowly, we disagree and hold that appellees were conducting a strip mining operation. [258] First, it must be pointed out that nowhere in R.C. Chapters 1513 and 1514 is there an exemption from regulation for those who remove coal as an incident to commercial development. Indeed, the General Assembly contemplated that this might be done, since R.C. 1513.07(A)(8) directs an operator to include in an application for a permit his future plans for the land to be mined. Among those future uses anticipated is commercial development. However, our analysis does not stop there. First we examine the goals or purpose of the statutory scheme; then we turn to the concept of reclamation as used in this scheme. Broadly stated, the purpose of R.C. Chapters 1513 and 1514 is the alleviation of environmental harm caused by strip mining.9 This harm is caused not just by abandoned strip mines, but also by the mining process itself. Strip mining itself can result in the discharge of acid water into our streams and is a major contributor to sedimentation of rivers and streams through soil erosion. R.C. 1513.07(A)(8) addresses this concern and requires permit applications to state how these problems are to be avoided. To exempt appellees, and others similarly situated, from regulation would likewise exempt them from this requirement. It would undermine the purposes of the statutory scheme by allowing a class of people to remove coal in a manner that could be environmentally harmful. The concept of reclamation,10 as used in R.C. Chapters 1513 and 1514, does not contemplate that all projects must be backfilled and contoured to their original grade. R.C. 1513.07(A)(8) exempts, from this requirement, land whose highest and best use does not require it. Thus, where the ultimate use of the land is commercial development, it may be assumed that the reclamation requirements will differ' from those where it contemplated that the land will return to a natural state. Based on the foregoing, we conclude that appellees were conducting a “strip mining operation.” In light of this conclusion, and the determination that appellees are “operators,” we hold that they are subject to the permit requirements of R.C. 1513.07(A). Accordingly, the judgment is reversed and the cause remanded with instructions to grant appellant a permanent injunction. Judgment reversed and cause remanded. Celebrezze, C.J., W. Brown, Sweeney and Locher, JJ., concur. C. Brown and Krupansky, JJ., dissent. Footnotes [4] R.C. Chapter 1513 was amended by Am. Sub. H. B. No. 1051, effective September 1,1981. Appellant urges us to apply the amended version to this case. However, section 4 of Am. Sub. H. B. No. 1051 states that it shall not apply to pending actions. Therefore, we decline to apply the amended version. Consequently, all quotations in this opinion of R.C. Chapter 1513 are from the code as it existed prior to amendment by Am. Sub. H. B. No. 1051. [5] R.C. 1513.06 requires all operators to obtain licenses. Failure to get a license does not exempt one from the permit requirement on the basis that R.C. 1513.07(A) applies only to “licensed operators.” [6] “Strip mining” is defined by R.C. 1513.01(P) as: “* * * all or any part of the process followed in the production of coal from a natural deposit, whereby the coal may be extracted after removing overburden, including mining by the auger method or any similar method which penetrates a mineral seam and removes coal directly through a series of openings made by a machine which enters the seam from a surface excavation, or the removing of overburden for the purpose of determining the location, quality, or quantity of a natural coal deposit, or activities conducted on the surface of lands in connection with; but does not include all or any part of a process whereby the extraction of coal is incidental to the extraction of other minerals, and the weight of coal extracted during the year is less than one-sixth the total weight of minerals removed during the year, including coal.” Clearly, appellees’ activity was strip mining. [7] See, e.g., United States v. Tarr (C.A.1, 1978), 589 F.2d 55; Dane v. Brown (C.A.1, 1934), 70 F.2d 164; Fillippo v. S. Bonaccurso & Sons, Inc. (E.D.Pa. 1978), 466 F. Supp. 1008. [8] “Strip mining operation” is defined by R.C. 1513.01(F). [9] The literature is replete with studies on the environmental harm caused by strip mining. See, e.g., Reitze, Old King Coal and the Merry Rapists of Appalachia, 22 Case West. L. Rev. 650. [10] R.C. 1513.01(M) reads: “ ‘Reclamation’ means backfilling, grading, resoiling, planting, and other work which has the effect of restoring an area of land affected by strip mining so that it may be used for forest growth, grazing, agricultural, recreational, or wildlife purpose, or some other useful purpose of equal or greater value.”