By David Dewitt

November 20, 2017 - Athens County, Ohio Commissioners are gathering legal advice on whether they are required to hold a public-comment period before considering a new road-variance waiver for a proposed coal mine near Glouster after rescinding the coal company’s previous waiver.

On Thursday, a group of residents opposed to the mine from the Athens County Fracking Action Network’s “Save Our Rural Environment” (SORE) subgroup attended the Commissioners meeting and asserted that federal rules require a new public-comment period.

In June 2016, the Athens County Commission granted a right-of-way waiver to Oxford Coal Co. for work within 100 feet of County Road 68 as it relates to the Trimble Township mining project. Oxford currently has a permit for the mine pending before the Ohio Department of Natural Resources. 

The Ohio EPA already has approved a water-quality permit for the proposed coal mine. The permit area for the project is about 300 acres, located off Johnson Run Road not far from the Trimble State Wildlife Area. Oxford’s proposal calls for a five-year mining plan.

In September, the Commissioners asked Oxford to voluntarily go through the public-hearing process again for the waiver after a mistake was found on its public notice for the hearing that already had been held.

The problem with the first public notice was that it did not specifically define what impact the operation would have on the road and its right-of-way. Plans submitted by the company do show those details, but the public notice failed to include them.

The waiver allowed work right up to the roadway, though Athens County Engineer Jeff Maiden has said that the company’s plan actually calls for mining between 45 feet and 50 feet from the roadway. 

On Sept. 19, the Commissioners voted to rescind the roadway waiver after Oxford declined to voluntarily re-do the public-hearing process. On Sept. 29, Oxford filed a notice of appeal in Athens County Common Pleas Court, which is pending.

The company is now also scheduled to seek a new waiver from the Commissioners at 10:30 a.m. during their Dec. 5 meeting.

Local environmentalists critical of the proposed mine have attended multiple Athens County Commission meetings over the past several months, encouraging them to rescind the waiver and to oppose the project.

Roxanne Groff, a member of SORE and former county commissioner, told the board Thursday that a 30-day public-comment period must be afforded before any new variance can be granted, and that during that comment period the public can request an official public hearing.

Ohio approved a variety of administrative changes to regulations on surface mining in 2012 that became effective in 2015, Groff said, including the adoption of a variety of federal rules including the requirement for a public-comment period.

“Federal law says that if you go forward with consideration of Oxford’s request, you must have a public-comment period where the public can write in comments, and also advise the public of its right to request a public hearing,” she said.

Groff said that the Commissioners failed to offer this required public-comment period in 2016 and also failed to advise the public they could ask for a hearing.

“You didn’t provide either of those things to the public in 2016 so it must be afforded to the public Dec. 5; that is, if you go forward with considering that variance,” she said.

Commissioner Lenny Eliason said that the board would bring materials provided by Groff to legal counsel and get advice on what is required of them.

“What your interpretation is and what our interpretation is might not be the same thing but they may be,” he said. “We’ll ask our legal counsel what our requirements are, and we’ll go from there.”

Eliason said the board will make sure with legal counsel that they are in compliance, to which Groff said she thinks “that’s a good idea.”

Several others spoke during the Commissioners meeting, including resident Ann Moneypenny who asserted that the Commissioners are not obligated to approve a variance for Oxford.

“The county Commissioners are under no legal requirement to grant this variance,” she said. “If moving to approve this exception to the law, they are doing so solely to support a project that deteriorates the quality of water and land in our county.”

Moneypenny said that containment is impossible and argued that the impacts of surface mining extend beyond the property lines of the project.

In general, Ohio law grants the state primacy over approval of coal-mining projects, allowing little discretion to local governments to prohibit or limit such projects.

Oxford issued a legal notice published in the Athens Messenger Nov. 12. It includes the Dec. 5 meeting with the Commissioners and, among other things, the notice describes proposed mining activities at the Johnson Run Road site.

It said that the road surface would not be mined or physically impacted by the mining, adding that the road would be maintained in accordance with a road use and maintenance agreement signed with Athens County Engineer Jeff Maiden.

The notice states that Oxford plans to conduct activities within the right-of-way including spoil, topsoil and equipment storage, pond and/or drainage control construction, excavation or location of an 80-foot highwall, and other activities necessary for coal removal and reclamation. 

In July in the Athens County Commissioner chambers in the Courthouse Annex, Nate Leggett, from Oxford Mining Company, back to the camera, spoke with Commissioners Charlie Adkins, center, and Lenny Eliason, right, while audience members listened.  

Photo by Dennis E. Powell