|Notice of Appeal of the Ohio Division
of Mineral Resources permit #D-0360-9 by Ohio Valley Coal Company
December 21, 2001
Appellants: Dysart Defenders and environmentalist Chad Kister
P.O. Box 31, Athens, Ohio 45701; (740)-594-7287
Appellee: Chief, Ohio Division of Mines and Reclamations
Prepared by Chad Kister, Coordinator, Dysart Defenders
Expert witness: Ohio University Forest Ecology Professor Brian McCarthy
Dysart Defenders Council, John Sproat
The Ohio Division of Mineral Resources permit D-0360-9 is arbitrary, capricious and in violation of Ohio and federal law. As per 1513.13 of the Ohio Revised Code, this is an official notice of appeal for the Ohio Division of Mines and Reclamations Decision 11-30-01 on Ohio Valley Coal Company permit D-0360-9. As required in ORC section 1513.13 (A)(1), this notice contains a copy of the decision, and the grounds upon which this appeal is based.
Table of Contents
22 ODNR called for watershed buffer zone in 1988
28 ODMR review team support full watershed buffer zone
32 Twenty-three grounds for this appeal
Plus Appendix as follows:
Appendix A: Watershed buffer zone and supporting reasoning by Dr.
Appendix H: Map and chart of Old Growth Trees in South portion of Dysart Woods
Appendix I: ODMR Notices of Violation against OVCC
Appendix J: OVCC documents showing brittle strata above mining area
Appendix K: Letter by U.S. Rep. Dennis Kucinich requesting watershed buffer
Standing for Appeal
Dysart Defenders and Chad Kister have both been granted standing to appeal issues related to Dysart Woods by the Ohio Reclamation Commission, the authority for this appeal. Therefore, this has already been shown through past recent ORC decision. Nonetheless, the following give conclusive and irrefutable proof of Kister’s longstanding interest in Dysart Woods.
Statement by Chad Kister, appellant: "I grew up camping and hiking in the unglaciated forest of Ohio. I am at home in the land of my ancestors who settled two centuries earlier in southeast Ohio. Dysart Woods is the last remnant of the great old-growth forest that once covered the hills of unglaciated Ohio. The Book The Trees by Conrad Richter has always been dear to my grandparents, aunts and uncles. The book reads,
"Down in Pennsylvania, you could tell by the light. When a faint white drifted through the dark forest wall ahead, you knew you were getting to the top of a hill, or an open place ... but away back here across the Ohio, it had no fields. You tramped day long and when you looked ahead, the woods were dark as an hour or a day ago," wrote Conrad Richter in his historical fiction story, The Trees about a pioneering family as they ventured into Ohio a little more than two centuries ago.
...The family rounded a high ridge "For a moment, Sayward reckoned that her father had fetched them unbeknownst to the western ocean and what lay beneath was the late sun glittering on green-black water. Then she saw that what they looked down on was a dark, illimitable expanse of wilderness. It was a sea of solid tree tops broken only by some gash where deep beneath the foliage an unknown stream made its way. As far as the eye could reach, this lonely forest sea rolled on and on till its faint blue billows broke against an incredible distant horizon."
Ohio was once 95 percent forested with ancient Oaks, Hickory, Sugar Maple, Beech, Sycamore, Elm, Tulip and Buckeye up to a millennia old, 12 feet in diameter and more than 150 feet high. The canopy was entirely connected to form a forest ecosystem hundreds of miles across. Ohio was the heart of the eastern heartwood forest. It is among the most diverse of forests in the United States.
What is left has been cut over many times, criss-crossed with toxic-spewing utility lines, roads, suburban sprawl, parking lots, malls, chemical golf courses, toxic dumps, leaking oil and gas wells and monoculture chemical farms. Public forests represent only 4 percent of Ohio.
The giant trees of Dysart Woods are magical and wise, uplifting those who choose to visit them with wisdom and understanding like no other place I have been in Ohio. Many are more than four feet in diameter and 150 feet tall. The majestic White Oaks, Sugar Maple, Hickory and Beech stand as living weathervanes to the health of the environment upon which we all depend. They are the last place where one can come and see the ancient forest that once covered all of Ohio.
I have been to Dysart Woods more than a hundred times. As a Graduate Student in Environmental Studies, it is critical to my thesis which is about the need to protect Dysart Woods, the last benchmark of our southeast Ohio forest. Dysart is a critical resource because it is the last. We have destroyed 99.996 percent of the original ancient forest in Ohio. Nowhere has a 400 year old tree grown back since Ohio was founded, and in very few places are forests allowed to regrow to old-growth.
Further, as I have studied in Forest Ecology, it takes far longer than the 400-500 year old life spans of these trees to recreate an old-growth forest. The structure of second-growth forests is impoverished so as to withstand wind and lightning. The old-growth trees at Dysart Woods are often 80 feet to the first branch, showing the extended structure of an old-growth forest that we do not find in second-growth forests. It is the conclusion of my vast research for my Masters Thesis that Dysart Woods must be saved in perpetuity by protecting the full watershed buffer zone from all types of coal mining.
My goal is to protect Dysart Woods from harm. Endangered species such as the Indiana Bat and the Cerulean Warbler are experiencing a decline because of the loss of old forests like Dysart Woods. These species need mature forest, such as the finest left in unglaciated Ohio, Dysart Woods. Dysart Woods is a critical and irreplaceable benchmark of the great forests that once covered Ohio. It can no longer be a benchmark if mining takes place. It could no longer be the study of undisturbed old-growth forests, which is what makes Dysart Woods so unique.
Dysart Woods has by far more research data over a longer period than any other old growth forest in Ohio. And it is the only significant ancient forest in the unglaciated portion of Ohio. To alter Dysart Woods in any way will destroy all future data and the irreplaceable scientific loss that the 40 year background of research has on the value of research to come.
I plan to continue to go back to Dysart Woods regularly as a critical reserve to maintain my spiritual, intellectual, educational and ecological well being. It is of the utmost importance for me to save Dysart Woods, and I have helped to organize dozens of rallies, events and conferences in the effort to save this magnificent forest from coal mining. I helped to organize and participated in the full 75-mile walk from Ohio University to the Statehouse in Columbus. We stopped at Dysart Woods as the last benchmark to show what Ohio was like in the 850 mile Walk for a Green Ohio in 1994 that I coordinated and participated in. I walked with many others from Cincinnati to Toledo, Cleveland, Youngstown, Dysart Woods, Marietta, Coolville, Athens and then to the Statehouse in Columbus, where Native American drumers greeted us in support.
I have seen the state of Ohio first hand in the fullest of ways, and I know how unique and how valuable Dysart Woods is. I argue it is the most valuable resource Ohio owns, worth far more than all the coal reserves in the state, let along the relatively small amount under the watershed buffer zone of Dysart Woods
I would personally be adversely affected if mining is permitted in the buffer zone of Dysart Woods as given in Appendix A, meeting the requirement of ORC section 1513.13 (A) (1). I regularly spend much time in Dysart Woods to experience and study an old-growth forest that has been unaffected by humans to the maximum extent possible. To allow coal mining within the buffer zone that scientists say could affect the forest would eliminate this value for this priceless forest. This is the value that makes Dysart Woods so unique and so important to preserve. This is the value that makes Dysart Woods a spiritual Mecca for me and many others.
To further show my standing, the following is my testimony to the
ODMR at their public hearing October 9 for this Lands Unsuitable
Petition. Board members can also hear the statement from the ODMR's tape
of the proceedings which the ODMR has in its possession.
I am going to speak now for Dysart Woods and for the Buckeye Forest Council's Lands Unsuitable for mining Petition for the watershed buffer zone of Dysart Woods. The Buckeye Forest Council's Lands Unsuitable Petition should be passed. Ohio University's cutting of this buffer zone by seven times is unscientific and wrong. I will also dispute some of the coal industry's claims and show that democracy and truth are on the side of the Lands Unsuitable Petition submitted by the Buckeye Forest Council.
In a study by Reed Noss of the United States Department of the Interior, "An important contextual consideration for conservation on a state scale is the entire geographical range of a community or species. If the outcrop community occurs only in Pennsylvania but the old growth forest was widespread across the eastern United States, the order of priority for conservation would be the old growth forest first. The Nature Conservancy recognizes the problem of scale by giving higher priority to global than state rankings. However, not all state governments recignize trends beyond their boundaries and may be extremely provincial in their decisions. In many states, characteristic regional vegetation types have suffered massive declines, yet, agencies do not consider them of high priority for protection. Instead, agencies often focus on the curiosities, such as relict or peripheral community types that were never common. For example, the natural areas program of the Ohio Department of Natural Resources devotes more attention to bogs, fens and other Pleistocene relics that can be managed conveniently in small reserves as living museums than to the forest ecosystems that once dominated the state.... only some small patches of old growth forest remain in Ohio."
Ohio was dominated by old growth forest that we have a little bit left of at Dysart. We have destroyed 99.996 percent of the original ancient forest that once covered Ohio. We have but .004 percent left and Dysart Woods is the only significant tract of its type of mixed mesophytic forest. It is all we've got. This is the only place where we can go to and see what forests once were like in Ohio. This is one of the only places left in Ohio with 100 percent native species -- species that were always here. It is a place in balance. It is a forest that must be preserved.
Dysart Woods was protected by the long and tireless campaigning of a St. Clairsville native here, who fought long and hard hours. John Kinder raised money for the Nature Conservancy in the early 1960s to buy Dysart Woods in 1962, and save it from loging. In 1966 Ohio University acquired Dysart Woods. The first coal mining threat came in 1970. And the watershed buffer zone that we have here today in the Buckeye Forest Council's petition was first presented back in 1970. So the claims that this coal company is losing billions of dollars in takings is hogwash. It is wrong. It is ridiculous. They have known about this buffer zone for almost 30 years. And the coal company just acquired the coal rights in 1988. And yet now their attorney here is claiming and lying that Ohio Valley Coal Company had money invested before 1977. That again is hogwash and that is wrong.
In 1977, the Surface Mine Reclamation Act was instituted because of the widespread concerns nationwide over the destruction and ravages of the coal industry. And they have a provision for the protection of lands from coal mining and that is the lands unsuitable petition process. Dysart Woods meets the letter of the law of this process better than any petition the state has received yet, and two have been granted successful. And I argue better than any other place in the state.
And I quote right from the law, that states, Ohio Revised Code Section 1513.02 (B) authorizes Lisa Morris, Chief of the Ohio Division of Mines and Reclamations to "designate as unsuitable for coal mining natural areas maintained on the registry of natural areas of the department of natural resources...publicly owned or dedicated parks and other areas of unique and irreplaceable natural beauty or condition, or areas within specified distances of a ... public park. Such a designation may include land adjacent to the perimeters of such areas that may be necessary to protect their integrity." Clearly, the watershed is critical to protecting the integrity of Dysart Woods. The Buckeye Forest Council's legally delineated watershed buffer zone as has been known since 1970 by the coal company and the Division of Mines and Reclamations must be passed in full.
And in fact the Ohio Division of Mines and Reclamation in 1988 called
for the preservation of this very buffer zone. And I quote right from
the chief of the Ohio Division of Natural Resources from a press release
issue on March 2 of 1988, "as director of the Department of Natural
Resources I want to make sure that nothing is done to harm Dysart Woods,
Then-Chief of the Ohio Division of Mines and Reclamations Tim Dieringer called for the protection of the entire watershed buffer zone in 1988. This watershed buffer zone is effectively what the Buckeye Forest Council has submitted and that the ODMR is considering today. So the ODMR has already asked for this and must uphold this decision that was made in 1988 when there was massive concern for this save buffer zone, and this same forest and protect the full watershed.
The comments made by the anti-environmental contingent that has been paid by Ohio Valley Coal Company, who have claimed that in 200 years there aren't going to be any old trees left because these trees are dying are part of their misinterpretation of fact; the lies that Ohio Valley Coal Company is using to destroy Dysart Woods. Because in fact there are 200 and 300 year old trees that will replace the 400 and 500 year old trees as they die of old age. This is a continual forest. Old growth forest perpetuates itself. The 200 year old trees will replace the 400 year old trees in 200 years. But the lies that you hear from the coal company -- the misinterpretation of fact -- that is what is blinding the process and skewing the truth.
Lastly, the truth. We have irrefutable scientific evidence that coal mining can affect the hydrology that can affect forest. We have all kinds of documentation as has been submitted in both the Buckeye Forest Council and Ohio University's Lands Unsuitable Petitions showing scientific facts that longwall mining within the buffer zone could destroy Dysart Woods.
And, for democracy. There have been more than 8,000 people in the state who have submitted petitions and letters to the Ohio Division of Mines and Reclamations calling for the preservation of this watershed buffer zone. The people know the truth, and the people have spoken in large numbers. And I am going to submit almost 800 more signatures today on top of the more than 8,000 letters and petitions that have already been submitted to the Ohio Division of Mines and Reclamations, calling for the passage of the Buckeye Forest Council's Lands Unsuitable Petition to protect Dysart Woods, a critical resource in perpetuity.
Dysart Woods is the among the most endangered ecosystem in Ohio
Reed Noss conducted an impressive study of our nation's ecosystems for the United States Department of Interior 1995 Biological Survey. Noss concluded that Ohio's state management was skewed toward preserving a few Pleistocene relics while ignoring the old-growth forest that once covered our state. Because Dysart Woods is a National Natural Landmark, it is particularly important that it be protected, which means protecting the watershed buffer zone as outlined by Moyd Ahmed and "well known" by the Ohio Division of Mines and Reclamations. A copy of Ahmed's study and the watershed buffer zone map is enclosed (appendix A).
The Department of Interior report reads, "An important contextual consideration for conservation on a state scale is the entire geographic range of a community or species. The Nature Conservancy (Master 1991a) recognizes the problem of scale by giving higher priority to global than state rankings. However, not all state governments recognize trends beyond their boundaries and may be extremely provincial in their decisions, yet, agencies do not consider them of higher priority for protection. Instead, agencies often focus on the curiosities, such as relict or peripheral community types that were never common.
For example, the natural-areas program of the Ohio Department of Natural Resources devotes more attention to bogs, fens, and other Pleistocene relics that can be managed conveniently in small reserves as living museums than to the forest ecosystems that once dominated the state (R. Noss and personal observance). Forest area in Ohio is now only 27 percent of the state, whereas it was more than 95 percent before European settlement (Good 1979; King 1990). The secondary forests, mostly in the Appalachian Pleateau of Ohio, are heavily fragmented by roads, gas pipelines, unreclaimed strip mines, clear-cuts, and other intrusions. Like most second-growth forests, they are structurally impoverished compared to old-growth forests. Only some small patches of old-growth forest remain in Ohio (Good 1979)."
And because Dysart Woods is the only significant mixed mesophytic old-growth forest in Ohio, it is of even greater importance to save.
The Ohio Division of Natural Resources decision of March 2, 1988 should not be violated
After more than 200 people attended a public hearing about North American Coal Company's proposal to longwall mine near Dysart Woods, the ODMR and the ODNR requested that the company not mine within the 4,170 acre watershed buffer zone of the ancient forest, and issued a press release stating the same (see Appendix B). Note the strong language stating that Dysart Woods must not be harmed. The ODNR should not backtrack on its past decisions.
All forms of underground coal mining should have been declared unsuitable for mining
On page two of the ODMR's LUP decision, the DMR decided under the third bullet, "Based upon current data and review the DMR finds that such mining can be controlled within a 1500 foot buffer zone ... so as to prevent subsidence tot he overlying strata. There is clear and irrefutable evidence that standard 50 percent extraction room and pillar mining does subside the overlying strata, particularly since the ODMR did not specify surface subsidence, but specified the overlying strata.
Ohio Valley Coal Co. admitted their room and pillar mining of #8 seam caused near-surface dewatering and pollution. In a letter written to the ODMR and signed by David L. Bartsch, Project Engineer for The Ohio Valley Coal Company, Bartsch states,
"As a result of a squeeze that occurred within the room and pillar portion of this permit, in a small area several wells were dewatered. The wells are being monitored at the present time to determine how long before the water returns and at what level. No pre-subsidence samples were recorded from the wells. One well has collapsed and will have to be re-drilled, in order to make it useable, Two wells have been covered with dirt and are not available for sampling. One well has water within 25 ft of the surface. Another well that was discolored during the incident now has clear water again. Two years is generally thought to be the amount of time required for the ground water sources to become viable after being dewatered. The incident (squeeze) occurred about two years ago.
OU Professor Moid Ahmed found that room and pillar mining caused dewatering of surface wells. "Room-and-pillar mining in Section 18 of Washington Township, four miles south of Centerville, dewatered five wells in March, 1987 which have not yet recovered. Similar situations may be repeated ... if room and pillar mining is allowed. This may cause serious dewatering at the Dysart Wood. Because of the dip of the Pitsburgh #8 seam, Ahmed showed how room and pillar mining could cause serious surface dewatering because it would increase the subsurface flow of water toward lower levels, harming all areas above it.
"Geological and hydrological evidence indicates that the room-and-pillar or longwall mining in the buffer zone around Dysart Woods may lower the water levels and affect the 400-year-old trees. The model studies reinforce the geological and hydrological analysis. The model further indicates that the existing buffer zone may not be adequate to protect the dewatering of the Dysart Woods... (Ahmed, 1988) (Appendix A)
Ray Southwood of 43933 Gelncoe-Whitney Road, about three miles from Dysart Woods, was undermined in 1924 with room and pillar mining of the Pittsburgh number 8 coal seam. Over the past few years, longwall mining has come within a mile and a half of the area. Southwood's well – his only water supply – was suddenly dewatered in September, 1998. The water had not returned as of December 29, 1998.
Room and pillar mining clearly can severely affect the surface hydrology of the Dysart Woods area, refuting the Ohio Division of Mines and Reclamations claim in the LUP decision that room and pillar mining would not affect Dysart Woods.
Southwood filed a complaint with the ODMR on September 11, 1998 (Appendix C). A map of the Delura room and pillar mine in the section 5 under Southwood's home is provided in Appendix D). ODMR investigator Mary Ann Borch is studying the case. The close proximity of this situation to Dysart Woods and the fact that it was undermined with room and pillar mining of the #8 coal seam indicates that Dysart Woods could be affected by this type of mining. The ODMR's decision to allow this mining would only delay the affects so Ohio Valley Coal Company's political henchmen will be out of office by the time Ohio's last ancient forest falls.
Another well about 2,000 feet farther from the longwall mining panel, that was undermined with room and pillar mining was dewatered near Southwood's house. That well was owned by Ron Williams.
USGS Water-Resources Ingestigation Report 95-4025, 1995 found that underground coal mining caused subsidence of the Right Fork of Miller Creek, Utah. "Fractures stemming from subsidence-related deformation drained perched aquifers and reduce discharge from three springs above the mined area."
Closer to Dysart Woods, in West Virginia, studies published in USGS Water-Supply Paper 2384 (1993) show that underground mining causes wells to fluctuate 100 feet, drained streams, and caused surface subsidence. The report reads, "Data are presented on undermined basins, flow duration, streams draining mined areas, specific conductance, groundwater levels, mine collapses, and surface subsidence. The study reveals that at mines above major drainage, water levels in some wells can fluctuate as much as 100 feet causing higher base flows or increased leakage into mines."
Ohio University Professor Emeritus of Botany Warren Wistendahl, who has studied Dysart Woods for many decades, found that the ancient forest likely depends upon percehed aquifers which he warned could be affected by room-and-pillar or longwall coal mining. The U.S. Geological Service reports confirm his fears, and show why this appeal must be granted for the relief of protecting of the entire watershed buffer zone from all types of mining.
OU Forest Ecology Professor Brian McCarthy
Professor Brian McCarthy testified to the ODMR at the hearing Oct. 9, "These forests have become central to many of the academic theories of the science of ecology. To both the scientist studying basic ecology and the applied forest manager, these stands represent the only control that we have in a massive landscape scale experiment with the land and its forests. Any simple experiment requires an experimental treatment and a control, or benchmark against which to compare it. Old-growth forests are the benchmark for forest management in the region, and they provide long-term data on forest composition, stand dynamics and disturbance histories.
"For the conservation biologist, these forests contain certain species, genetic material and habitat found nowhere else in the landscape of Ohio. As such, these stands are critically important to the preservation of biological diversity. There are also a variety of nonscientific values. Dysart Woods, and all old-growth, is a legacy of our past and a part of our natural heritage. These are the forests that our forefathers came to and where we can bring our children and our grandchildren to teach them about our history. They should be sources of pride for our future, as well as a link to our past.
"Ultimately, there is no group of scientists, miners, agency personnel, or lawyers, that can unequivocally guarantee that subsurface mining will not affect this forest. No professional in a clear conscience can make such a statement. view any type of subsurface mining under or immediately near Dysart Woods as unacceptable. Long-wall mining often has immediate surface repercussions; room and pillar mining just delays the problem to a future generation, when manmade support structures will ultimately fail. Unfortunately, whether now or in the future, there is no way to remediate any damage that occurs. One cannot replant a 400-year-old tree or recreate a forest that took thousands of years to develop.
"Given the rarity of old-growth in the landscape, the uniqueness of this particular woods to the State of Ohio, the delicate balance of its ecology, and the virtual absence of human disturbance for hundreds of years, the prudent environmentally conscious person would not even consider mining under these woods.
"The role of the reasonable person is the underpinnings of our
jurisprudence system in this court. I submit that there is no better
time to apply this notion at this time to this case. The potential for
damage is too great the ability to remediate is nonexistent. Mining of
any type should not be permitted under or near the old-growth sections
of Dysart Woods. It is only logical that a reasonable person would
arrive at this conclusion. This forest is the environmental crown jewel
of Ohio's natural areas and should be preserved in perpetuity."
Scientist Dr. Richard Parsek finds seeps, high risk of mining damage to Dysart Woods
In a letter dated August 8, 1998, Richard R. Parizek wrote OU attorney David Northrop, "Our field visit to Dysart Woods on Thursday, August 6, 1998 was most informative. Although our walking tour was largely confined to the Red and Blue Trails, at least six groundwater seeps and head of gully wet weather springs were noted on the Blue Trail and seven or eight on the Red Trail.
"These are significant because they appear at various locations along the hill slopes not just near the main valley bottoms. Some were associated with topographic slope changes, steep V more gentle1 indicating that changes in rock sequences hence contrasts in the permeabilities of bedrock units were impart responsible for the springs observed.
"Further, landslide-scars were especially well developed on the Red Trail. Other small crescent shaped topographic benches noted on the Blue Trail were very likely landslide scars as well. These were rather subtle, but because they often had a shallow bowl shaped feature above, and minor seeps below, these justify examination as potential landslides. None appeared to be active and some benches had old growth trees rooted on them indicating that they predated these trees (>200 to 400 years ago). They may well have formed as early as the time of glaciation to the north in Ohio, Indiana, etc. under periglacial climatic conditions.
"These are all important observations because many of the old growth forest trees were located in close proximity to seeps, above, below and adjacent to seeps indicating that they wore in equilibrium with available soil and groundwater. Seeps high on the hill slopes but with nonseep areas below support the stair step model for shallow groundwater flow. Water not noted as surface runoff below seeps must travel downslope within residual and colluvial soils at or near the bedrock contact.
"These shallow groundwater sources are particularly prone to mining influences that cause the redistribution of rock stresses even if this water is never intercepted by underlying mine voids. ...
"Clearly, near vertical zones of fracture concentrations delineated by fracture traces (linear surface features less than about a mile in length v lineaments more than a mile in length) are present and abundant within the Dysart Woods region: 3 to 5 zones within a 40 acre parcel are common. These structures enhance fracture permeability of bedrock strata, will account for some of the gullies and seeps noted and facilitate vertical migration of water with or without the presence of underlying mines. These structures are particularly prone to stress readjusiments related to mining hence, are more likely to cause changes in groundwater flow rates, paths, etc."
"Changes in groundwater flow paths, the redirection of groundwater to form more concentrated seeps downslope for example, could trigger new landslides and reactivate former slides that appear to be inactive at present.
"Deep leakage into mine openings along fracture zones can cause me dying up of seeps and springs, hence a reduction in or loss of available soil moisture. Development of vertical tension fractures associated with mining also can intercept important sources of shallow groundwater, perched groundwater and stormwater runoff."
Ohio Valley Coal Company's scientists say Dysart geology is fragile
Further, Ohio Valley Coal Company's own scientists admitted the fragility of the geological integrity of Dysart Woods. P Squared Technologies President Paul Craig said that water underneath Dysart Woods travels through fractures. He also said that "Dysart Woods' underlying rocks are rich in the sandstones, shales and silkstones," at the ODMR public hearing Oct. 9 (ODMR public hearing Oct. 9, 1998, transcript, page 91).
Jeff Holt, an employee at P Squared Technologies (the firm hired by Ohio Valley Coal Company to provide suedo-science to support its mining permits) found that the underlying strata was "brittle," (ODMR public hearing Oct. 9, 1998, transcript, page 97). Further, he found that the subsurface water was more than twice as shallow as had been reported in the Buckeye Forest Council's Lands Unsuitable Petition. This would indicate that it is used by trees and the replenish surface water used by the ancient forest. Holt said that "groundwater is not lost but merely deeper below the surface than before mining."
The water usually falls to the depth of the mine, Holt said, in this case about 400 feet down, rendering it totally useless to trees that would be stressed by this loss.
The Division of Geological Survey found that "brittle strata (well-cemented limestone and sandstone) have substantially greater fracturing potential then ductile strata...In the caving zone, strata break into different-sized blocks and fall into the space created by the mined seam." This subsidence should not be allowed anywhere within the watershed buffer zone of Dysart Woods. Given the brittle strata, the ODMR cannot conclude with any scientific certainly that room and pillar mining would not affect Dysart Woods.
Geological faults exists near Dysart Woods
Faults in the substrata can carry water easier to mined-out areas, greatly increasing the affects of underground mining on surface water. The Ohio Division of Geological Survey found that "Dysart Woods lies between two sets of linear features shown on Landsat fracture-analysis maps. These minor linear features follow the general course of Joy Fork (west of Dysart Woods) and Millers Run (east of Dsyart Woods). If these linear features are indeed fracture traces, then longwall mining within the Dysart Petition area could potentially intersect these fractures and increase permeability along them (ODNR, 6-24-98). These findings should mandate the protection of the full watershed buffer zone from all types of mining.
Ohio Valley Coal Company reports that they hit a fault in previous mining just south of Dysart Woods, adding further credence to this concern.
The Department of Geological Survey found that "water can be transmitted through this zone in the presence of faults or joints." With the known faults in the Dysart Woods area, the ODMR LUP decision was arbitrary and capricious in reducing the buffer zone submitted by the Buckeye Forest Council to a sheer linear distance without taking into account the watershed geography and geology.
ODNR called for watershed buffer zone in 1988
The ODNR recognized the watershed buffer zone for Dysart Woods in their Press Release in 1988 (Appendix B). This should be respected now. The importance of this full watershed buffer zone is explained by ecologist Marilyn Ort.
"Dysart Woods in Belmont County is one of the few truly old-growth remnants left in the state of Ohio - some of the white oaks are probably over 400 years old. When it was originally protected by The Nature Conservancy, longwall mining was unknown. Today, the technique and its effects are all too well known. This forest perched on the ridge yet having so many characteristics of a forest growing in more moist soil is obviously dependent on a steady source of ground water.
"Ask any farmer who has had long-wall mining pass under his farm and you learn the first effect is severance of long-time water movement in the soil. I do not know of a single spring that has re-established itself. This disruption of processes under the surface of the ground is very long-lasting if not infinite
"No one with knowledge of forest ecology would make the claim that a forest that has developed with certain groundwater characteristics for thousands of years (to have 400 year old oaks requires many years of succession of forest types and tree species) could possibly remain in good health if that water source were removed.
"This is the real issue in this case. The effort at protection has been made although it is now realized what seemed ironclad at the time is not much protection at. all given new mining methods. Dysart Woods is totally dependent on the state permitting system for protection. Please, do not fail to do what you can to make sure our grandchildren will be able to walk with the same awe and conviction under these giant trees as we can."
The full 4,170 acre watershed buffer zone should be protected from all mining (Appendix A) Given the removal of 500 acres because of the completion of permit D-0360-7 prior to the BFC's LUP, the full 3,756 acre buffer zone as applied for in the BFC petition should be protected from mining. But this shows how it is politics, the legal restrictions of who applied first, and not science that is guiding decisions about the fate of our last significant ancient forest in unglaciated Ohio.
The Lands Unsuitable Petition decision should be based on the science of where coal mining could significantly impact Dysart Woods. The ODMR needs to consider the larger matrix in which Dysart Woods is located, and the complex geology that the ODMR admits it does not have enough scientific data to understand. Scientific data does show that dewatering upstream in a watershed can affect areas downstream.
Moyd Ahmed showed in his study of the geology of Dysart Woods how it is critical to protect the watershed to maintain the hydrologic balance of the old-growth forest (Appendix A). Further, Ohio University Vice President for Administration Gary North and OU's attorney David Northrop both called for the protection of this buffer zone at the ODMR public hearing August 4, 1997. Their statements follow:
A law form representing Ohio University submitted pages of
"The unique value of the woods caused the area to be declared as
"The old growth trees in Dysart Woods, because of their great
Ohio University Vice President for Administration spoke against
We are greatly concerned about this continued encroachment.
Northrop said, "In our view this is a superficial analysis and
"The Southwest portion of area #7 goes through and is located
Northrop continued, "We need site-specific information to
The Division of Soil and Water Conservation found that "The soils on the older growth areas are mapped Lowell and Westmoreland. ...The soil layers at these sites appear to be shallower that (sic) the usual amount listed in the soil series. This may result in soils having the ability to hold less available water than the series in general." Without holding as much water, Dysart Woods is likely more dependent upon water flowing into the forest from above. Allowing any mining under or near Dysart Woods, or allowing longwall mining of the watershed would likely decrease the overall water supply, harming Dysart Woods. The Division of Water found, "Wells drilled in the uplands are completed above 1150 feet MSL, which is above the elevation of the local drainage." This indicates that groundwater upstream of Dysart Woods is likely forming the surface water needed by the ancient trees. The heavy growth of nettles in Dysart Woods also indicates above normal moisture. Because the soils cannot hold much moisture, Dysart Woods is likely exceptionally dependent upon such moisture that would be likely be lost if mining occurs.
The Division of Soil and Water Conservation found that "There was evidence of seepage (spring flow) coming from an approximate elevation of 1,260 that may supply some additional water to several large trees on a bench below the WkD map unit on sheet 52 in the Belmont Soil Survey (ODMR 6-24-98)" This shows that it is the ground water that mining would disrupt if it is allowed in any form in the watershed buffer zone (as delineated by Moid Ahmed).
The Division of Water found, "These studies indicate that water that might be available for the trees to use would be from infiltration of precipitation at the immediate area or from higher elevations. All the springs ... are gravity type springs (ground water moving downward that intercepts the hillside)..." The Division of water reported that Ohio Valley Coal Company's data showed that 90 percent of water wells within 700 feet of a longwall panel edge were impacted. "Ground water effects in the zone of surface fracturing ... are variable because strata are susceptible to recharge and dewatering as fractures develop." The ODMR reported that Ohio Valley Coal Co. statistics found that 100 percent of developed springs within 700 feet of a longwall panel edge were impacted, 76 percent with significant impact.
The Division of Geological Survey found that Dysart Woods' soils were well drained, moderately permeable, and on steep slopes. The division found that Dysart Woods was susceptible to erosion and slippage. Thus, the ancient forest would be prone to slippage and other affects if mining of any type, including room and pillar, were allowed underneath or nearby. Also, a lowering of the regional water table would very likely harm Dysart Woods because water is so permeable at the surface. "The root-throw of fallen trees at Dysart Woods proper indicates that most, if not all, trees are relatively shallow-rooted in collubium...it seems possible that sudden movement within colluvium could topple trees that are shallow-rooted in colluvium (ODNR, 6-24-98).
The ODNR team furthers the warnings of this appeal that room and pillar mining is just a means to delay the affects until later. "Length of time for mine subsidence to occur increases with increasing depth of mining and increasing competency of overburden. Also, the type and amount of roof support in addition to pillars of coal left in the mine contribute to subsidence. Most underground mines in Ohio used wooden timbers as additional roof support. Roof bolting is another type or roof support being used in Ohio mines. With time, following abandonment of an underground mine, these types of additional roof support would eventually rot or deteriorate a lowing subsidence to occur, depending on width of unsupported roof, pillar dimension, and load-bearing capacity of pillars. Because of the complexity of the variables which contribute to mine-related subsidence, no acceptable system exists which is capable of accurately and precisely predicting the exact time or amount of subsidence in a variety of geological settings, especially for mines with an irregular pattern of room and pillar of mining. However longwall mines induce subsidence rapidly, beginning almost immediately after mining begins. Generally, most of the subsidence occurs at the surface within nine months of mining. Residual subsidence may occur up to several years until Smax is achieved (ODNR 6-24-98).
Ohio Division of Mines and Reclamations does not have adequate information
The ODNR admits in numerous occasions that it does not know what the impacts of mining is on forests because of a lack of scientific data. Given the rarity and importance of Dysart Woods, it is critical that the ODMR protect the full watershed buffer zone given the lack of knowledge by the ODMR. With the evidence in this appeal showing the affects of room and pillar mining on the surface hydrology, room and pillar mining must be declared unsuitable for mining in the ODMR Lands Unsuitable Petition decision for Dysart Woods.
The big picture
The ODMR needs to look at the whole ecology of Dysart Woods. Maps show extensive coal mining in all directions around Dysart Woods. The greater matrix around this ancient forest has been mined. It is critical for the ecological integrity of Dsyart Woods that the watershed buffer zone by protected from all types of mining.
Dysart Woods is being studied as the only significant old-growth mixed mesophytic forest left in Ohio. It can only be studied as a benchmark of how our forests once were if it is left intact. Mining within the 4,170 acre watershed buffer zone would likely severely impact Dysart Woods, as outlined above. Top scientists including Ohio University Botany Professor Irwin Ungar, Geography Professor Ted Bernard and Forest Ecology Professor Brian McCarthy have all called on the protection of the watershed buffer zone from all types of mining for Dysart Woods to be protected.
Dysart Woods is the last .004 percent of old-growth forest left in Ohio, which was once 95 percent covered with ancient forest. This should require extra protection to ensure that the ecological integrity of this last significant unglaciated ancient forest left in Ohio be protected for generations to come.
Grounds for the appeal
The area in question is already under appeal by Dysart Defenders with intervening support by the Buckeye Forest Council and Ohio University. The Lands Unsuitable Petition provides a legal avenue for the protection of special lands like Dysart Woods from mining. Because the Lands Unsuitable Petition and was filed by both the Buckeye Forest Council and Ohio University before Ohio Valley Coal Co. filed the D-0360-9 permit, the LUP appeal must be fully considered prior to a decision to mine by the ODMR is allowed.
Ohio Administrative Code 1501:13-4-03 (E) Relationship to areas designated unsuitable for mining under (1) states, "Each application shall contain a statement of available information on whether the proposed permit area is within an area designated unsuitable for coal mining operations under rule 501:13-3-07 of the Administrative Code or under study for designation in an administrative proceeding under such rule." Because of the Dysart Defenders Lands Unsuitable Petition appeal, the watershed buffer zone is still under study, meeting the aforementioned law requirements.
As required by Ohio Revised Code (ORC) Section 1513.073, as amended in General Assembly: 121; Bill Number: Amended. Sub. S.B. 162; Effective Date: 10/29/95
(A)(1) Upon petition pursuant to division (B) of this section, the
chief of the division of
(2) Upon petition pursuant to division (B) of this section, a surface
area may be
(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
(c) Affect renewable resource lands in which the operations could
result in a substantial
Because no coal company can replace an old-growth forest or a 400 year old tree, reclamation is not technologically or economically feasible, violating ORC section 1513.073 (A) (1). Thus, any operations that could result in significant damage to important historic, cultural, scientific and esthetic values and natural systems must be prohibited in the Lands Unsuitable Petition decision. Scientific documentation in this report and expert witness Ohio University Forest Ecology Professor Brian McCarthy will show in this appeal that the ODMR decision to allow room and pillar mining mining within the watershed buffer zone of Dysart Woods could significantly affect the old-growth forest, thus violating section 1513.073 (A) (2) (b) as stated above. Further, the Nov. 30, 2001 ODMR D-0360-9 decision of Dysart Woods violates section 1513.073 (A) (2) (a) in that it is incompatible with the public designated use of Dysart Woods as a Nature Preserve.
Second grounds for appeal
The cavity will inevitably subside, yet this is not taken into account in the permit
Entry centers 65 to 90 feet wide will inevitably cause subsidence. While OVCC claims the limestone just above the mining will hold up the structures, this strata will inevitably fracture with all of the mining activity going in and out through the entryway. Addendum to page 28, part 3, K(1) by OVCC states, "These entry and cross-cut centers have been shown to be adequate for long term life at the Powhatan No. 6 Mine."
Third Grounds for appeal
Existing faults will make subsidence and dewatering from the mine more likely
OVCC addendum to part 2, page 16, B(1) page two states that there are a series of faults that offset downward and upward. This will make it far more likely for the mine to cause dewatering of the surface and from the watershed of Dysart Woods. This contradicts OVCC’s assertion that subsidence is unlikely. These faults will make it easier for the land to collapse into the cavities that OVCC will leave in the approved mine permit.
Fourth grounds for appeal
OVCC admits that all strata above their mine will transmit water
Addendum to page 17, C by OVCC for the D-0360-9 permit states that the groundwater resides primarily above the Pittsburgh No. 8 Coal. The permit continues that "The rock aquifers are primarily sandstones, limestones and coals, but may also include shales, claystones and silstones. All units transmit water primarily by secondary porosity or hydraulic conductivity (joints and other fractures, bedding partings)...The stratigraphy identified in the Geology Description section shows numerous lithologic units that are probably capable of transmitting water.
Fifth grounds for appeal
Much of the overlying strata is extremely fragile
D-0360-9 Attachment #13 for Drill Hole # N92-03 shows a majority of shales that are "erodible" in the overlying strata above the Pittsburgh #8 seam and under Dysart Woods. Appendix J shows a majority of brittle shales above the area proposed to be mined, showing that the risk of subsidence is elevated and that mining should not be allowed.
Sixth grounds for appeal
Wells of up to 289 feet deep will increase permeabilty
OVCC Table 1 D-0360-9 shows that there are 66 wells within the D-0360-9 permit area. Twenty-four of them are of an unknown depth. Of those known, the deepest is 289 feet. This will clearly increase the flow of water down toward the mine.
Seventh grounds for appeal
OVCC admits that 69 percent of the overburden is soft rock
While OVCC in its application claims that most rocks above the stata are hard rocks like limestone, and would therefore not be prone to subsidence, their application table 1 for D-0360-9 shows that the average percentage of soft rocks is 69%. Further, the table shows that the range is subject to question.
Eighth grounds for appeal
Ohio Valley Coal Co. fails to meet the statutory requirement to be able to reclaim subsidence damages
Ohio Administrative Rule 1501:13-4-13 (Underground mining permit application requirements for information on environmental resources) section (C) states "(1) Each application shall include geologic information in sufficient detail to assist in: ... (c) Determining whether reclamation as required by these rules can be accomplished and whether the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area."
However, Ohio Valley Coal Company has failed to provide data on how they can replace the 400+ year old trees of Dysart Woods that would be damaged and may die as a consequence of this mining. Further, OVCC and the ODMR failed to include old growth forest areas in the far South portion of Dysart Woods, despite information provided by Dysart Defenders to the ODMR. This is a violation of section (J)-6 of this same section of administrative code, which requires the listing of areas eligible for national historic register in the permit. Clearly, the extremely rare ancient forests and trees that once made up 95 percent of Ohio are important historic areas eligible for listing, particularly in light of the fact that we have only .004 percent of the original ancient forest left in Ohio and Dysart Woods represents the most significant stand of virgin forest in unglaciated Ohio.
Ninth grounds for appeal
Dysart Defenders research finds old-growth forest directly above OVCC’s permit D-0360-9
The following research was delivered to the ODMR in reference with this permit, indicating the presence of old growth trees in the far south section of Dysart Woods directly above the area permitted to be mined under the D-0360-9 permit. This was not included by OVCC in their maps, and is a clear violation of the above mentioned laws.
See Appendix H for the map and diameter of the trees marked on the map. Pictures of the trees will be provided later in the appeals process.
Tenth grounds for appeal
Dysart Woods is the only ecosystem of its type in Ohio and must not be harmed in any way
Dysart Woods is the only mixed mesophytic old growth forest land laboratory in Ohio. It has more than 40 years of rich scientific study of its botany and biology. It is unique because it has not been harmed by humans, unlike the 99.996 percent of Ohio that has been altered. It must be preserved at all costs. To allow underground mining would ruin the characteristic that makes Dysart Woods such a unique scientific, ecological, environmental, cultural and historical resource. The value of Dysart Woods to science and ecology is immeasureable.
Eleventh grounds for appeal
U.S. Representative Dennis Kucinich Requests protection of watershed buffer zone
United States Representative Dennis Kucinich, D-Ohio, wrote a letter December 3, 1999 to OU President Robert Glidden requesting the protection of the 4,170 acres water shed buffer zone of Dysart Woods to from all types of mining (see Appendix K).
Twelfth grounds for appeal
Watershed buffer zone map overlaid with permit D-0360-9 shows it infringes on the buffer zone
The map of the ODMR permit D-0360-9 overlaid on the watershed buffer zone map established by scientists in 1970 and reaffirmed by the state of Ohio in 1988 shows that the D-0360-9 permit infringes on the watershed buffer zone.
Thirteenth grounds for appeal
Ohio Valley Coal Co. has recently received numerous notices of violation by the Ohio Division of Mines and Reclamations and the Ohio Environmental Protection Agency
Ohio Valley Coal Co. received numerous notices of violation of Ohio law in 1999 for their D-0360-8 permit, the last of the 360 series that the company received. Clearly, the Reclamation Commission should see the recklessness of Ohio Valley Coal Company in its flagrant violation of environmental laws and see that they cannot be trusted to mine safely under Dysart Woods. ODMR Violation number 25510 was issued on April 23, 1999 by the Division of Mines and Reclamations to OVCC on the D-0360 permit because they "fail to follow approved mining plan - installed Culvert under refuse pile." This released polluted water into a pond that release directly into Captina Creek, an exceptional warm water habitat and home to the endangered salamander the eastern hellbender. On May 5, 1999, the ODMR issued violation number 21173 for OVCC D-0360 permit for yet another failure to follow their approved mining plan for again installing underdrains and a culvert in violation of their permit. Appendix I shows these two violations.
Ohio Valley Coal Company also received a notice of violation by the Ohio Environmental Protection Agency for permits related to the Powhatan #6 mine, which this appeal is directly related to.
Fourteenth ground for appeal
Ohio Valley Coal Co. failed to mention the pending Lands Unsuitable Petition in violation of ORC 1513.07 (B) (2) (i)
Dysart Defenders has an active appeal of the Lands Unsuitable Petition decision of Nov. 30, 1998 by the ODMR for Dysart Woods requesting that the area identified in this appeal be declared unsuitable to all types of mining. OVCC failed to report this in the D-0360-9 permit in violation of ORC 1513.07 (B) (2) (i) which requires "An accurate map or plan, to an appropriate scale, clearly showing the land to be affected and the land upon which the applicant has the legal right to enter and commence coal mining operations, copies of those documents upon which is based the applicant's legal right to enter and commence coal mining operations, and a statement whether that right is the subject of pending litigation."
Fifteenth grounds for appeal
OVCC failed to provide a plan for the protection of Dysart Woods in the ODMR D-0360-9 permit
Ohio Revised Code 1513.07 (B) (4) (a) (vi) requires OVCC to provide "The collection of site-specific resource information and production of protection and enhancement plans for fish and wildlife habitats and other environmental values required by the chief under this chapter." While the permit goes underneath Dysart Woods, which has been identified as a significant resource according to the ODNR, as documented powerfully in this notice of appeal; OVCC does not provide a plan for how they will prevent the subsidence and alteration of ground water levels that will clearly affect Dysart Woods and ruin its value as a scientific and ecological resource.
Sixteenth grounds for appeal
Permit D-0360-9 is in violation of ORC 1513.07 (B) (7) (C)
ORC 1513.07 (7) (C) states that "Each reclamation plan submitted as part of a permit application shall include, in the detail necessary to demonstrate that reclamation required by this chapter can be accomplished." OVCC has failed to mention the inevitable groundwater and subsidence effects that their mining will have on Dysart Woods, which would be impossible to reclaim, in violation of the aforementioned law. How can OVCC or anyone replace the 400+ year old trees in Dysart Woods?
Eighteenth grounds for appeal
ODMR Permit D-0360-9 is in violation of ORC 1513-07 (C) (2)
ORC 1513.07 (C) (2) (b) states that OVCC must provide "The capability of the land prior to any mining to support a variety of uses, giving consideration to soil and foundation characteristics, topography, and vegetative cover and, if applicable, a soil survey prepared pursuant to division (B)(2)(p) of this section" in their permit application. OVCC, however, failed to mention the old growth trees mentioned earlier in this appeal on the far south side of Dysart Woods and directly above the mining proposed in permit D-0360-9.
Nineteenth grounds for appeal
ODMR Permit D-0360-9 is in violation of ORC 1513.07 (C) (3)
Ohio Valley Coal Company failed to meet the requirements of ORC 1513.07 (C) (3) which states that OVCC must provide "The use that is proposed to be made of the land following reclamation, including information regarding the utility and capacity of the reclaimed land to support a variety of alternative uses, the relationship of the proposed use to existing land use policies and plans, and the comments of any owner of the land and state and local governments or agencies thereof that would have to initiate, implement, approve, or authorize the proposed use of the land following reclamation". OVCC failed to mention how their mining will alter the purpose of Dysart Woods as a land laboratory representing an undisturbed ancient forest in Ohio. Mining will clearly ruin this usage, creating a clear violation of the intent of the 1513.07 code because OVCC is incapable of reclaiming an ancient forest.
Twentieth grounds for appeal
ODMR Permit D-0360-9 is in violation of ORC 1513.07 (C) (4)
OVCC is also in violation of section 4 of the statute which requires, "A detailed description of how the proposed postmining land use is to be achieved and the necessary support activities that may be needed to achieve the proposed land use." Again, OVCC has failed to mention that their mining will cause Dysart Woods to fail to be the most important use for land in Ohio: a benchmark to what nature’s billions of evolutionary years climaxed to in our state before we destroyed 99.996 percent of it. This loss cannot be reclaimed, in violation of the request of this statute.
Twenty-first grounds for appeal
ODMR Permit D-0360-9 is in violation of ORC 1513.07 (C) (4)
OVCC fails to provide what ORC 1513.07 (C) (8) requires, "A description of the degree to which the coal mining and reclamation operations are consistent with surface owner plans and applicable state and local land use plans and programs". As previously proven irrefutably, mining is incompatible with Dysart Woods’ designated National Natural Landmark and as an Ohio University Land Laboratory for the study of undisturbed virgin forest.
Twentysecond grounds for appeal
ODMR Permit D-0360-9 is in violation of ORC 1513.07 (E) (2) (a)
OVCC Permit D-0360-9 is in violation of ORC 1513.07 (E) (2) (a) which requires that"The application is accurate and complete and all the requirements of this chapter have been complied with." As has been mentioned in numerous grounds of appeal above, OVCC has failed to accurately assess the impacts they will have on Dysart Woods with this permit, and they have not complied with numerous sections of this code.
Twentythird grounds for appeal
ODMR Permit D-0360-9 is in violation of ORC 1513.07 (E) (2) (b)
OVCC’s permit D-0360-9 is also in violation of ORC 1513.07 (E) 2) (b) which states, "The applicant has demonstrated that the reclamation required by this chapter can be accomplished under the reclamation plan contained in the application." Again, as has been clearly proven through documentation in this notice of appeal, and which will be even more thoroughly be proven through the course of this appeal, OVCC cannot replace a 400 year old tree, nor can it replace the 40 years of science that both make Dysart Woods such an irreplaceable crown jewel of Ohio’s ecology. To mine under Dysart Woods is the grossest of injustices to nature that cannot be allowed by Ohio law.
The portion of permit D-0360-9 that lies within the watershed buffer zone as delineated by the completed Buckeye Forest Council Lands Unsuitable Petition appeal of Spring, 1998, and provided in Appendix A of this appeal, must be removed from permit D-0360-9. A topographical map with the portion to requested to be removed is included in this appeal.
Dysart Defenders and Chad Kister request a hearing before the Reclamation Commission. Dysart Defenders and Chad Kister also request a site visit by the Reclamation Commission pursuant to Ohio Administrative Code 1513-3-04 (B) (8). Further, Dysart Defenders has requested temporary relief to prohibit all mining within the buffer zone provided in Appendix A of this appeal until the LUP appeal is resolved. Dysart Defenders and Chad Kister do not waive their rights to have a hearing held within the time requirements set forth under division (B) of section 1513.13 of the Revised Code.
John Sproat, Council
Signed December 21, 2001