I concur in the judgment and opinion but feel required to concur separately because I believe the Reclamation Board of Review misapprehends the extent of its duty to review permit applications under R.C. 1513.13 and 1513.162.
Longwall mining is, as is demonstrated in the record, an efficient and obviously more economical way to mine coal. As noted in the brief of the intervenor, Southern Ohio Coal Company, and amicus curiae brief of Local 1886, there are substantial economic benefits to our society from the longwall mining process. There is in the record a clear demonstration that in some respects longwall mining is beneficial because of the predictability and immediacy of subsidence (Finding of Fact No. 26). The predictability and immediacy are considered beneficial because they occur at a time when the mine operator is available to repair any damage that might be done. But such a benefit is available, however, only if the board of review sees to it that the persons affected are predictably and immediately compensated.
As noted in the intervenor's and amicus' briefs, there is an enormous investment in this coal seam. In a like manner, however, there is proportionately a substantial investment by the surface owners in the properties that they hold. The economics in this case are relatively simple. Longwall mining, which is more efficient and more economical, causes some damage because of the subsidence. The cost of this damage does not go away. It must be borne by someone. The landowner whose water supply is dewatered should not be forced to bear the entire economic cost of the effects of longwall mining. Since society as a whole and the permit holder in particular benefit from the granting of the permit, the costs of dewatering equitably, and legally under R.C.1513.162, ought to be borne by the permit holder. The expense necessary to replace the loss of surface water supplies to any homeowner is just another cost of doing the longwall mining. This expense will increase the cost of coal, and ultimately the cost of electricity, but it is only reasonable that it be paid by electricity users in proportional shares rather than by affected landowners in disproportionate shares.
The board of review found that the *Page 305 overall effect of granting this longwall mining permit would be minimal. I believe the record amply justifies the board's conclusion. However, one might as easily say that when a foul ball is tapped into the stands at a baseball game, the effect of the ball on the crowd is minimal. To the individual fan who catches a hard fast one in the face, the effect is not minimal, but is, as appellant notes, devastating. The board of review, in my opinion, while fully justified in concluding that the overall effects of the permit on the population in general would be minimal, has failed to adequately provide for the individual who is singly and devastatedly affected. The water replacement plan simply does not provide any sort of reasonable protection or remedy for a person whose water supply has been affected by the longwall mining operation. Finding of Fact No. 50 provides as follows:
"David Wright is responsible for the administrative [sic] of Southern Ohio Coal's Alternative Water Replacement Plan. (Wright, Tr. 944.) This plan is part of the permit application. (Permit App., Addendum to Part 2, Item F(1), (2).) The plan provides that, if contamination, significant diminution, or interruption of an underground or surface source of water supply occurs as a result of mining activities, Southern Ohio Coal Company will:
"a. provide temporary water supply while a permanent alternative is sought or remedial measures are taken to correct the affected supply,
"b. seek an alternative source an [sic] a case-by-case basis, based upon negotiation as to the type of supplies to be installed, and
"c. give first consideration to the development of an on-site source, such as a spring, well or pond."
This plan really provides no protection or enforceable rights for the affected landowner, nor does it impose any duty on the permit holder with any degree of specificity. The duties imposed on the permit holder where there has been a disruption of the water supply is particularly defective because it has no framework by which an affected landowner can establish and enforce his right to an adequate water supply. A right without a remedy is useless. The plan simply talks about "negotiations," and "case by case analysis." The board clearly failed to establish a reasonable plan for guaranteeing surface owners an enforceable right to a continuous and regular source of water. Negotiation is hardly a remedy at all. Indeed a siege is nothing more than negotiation for the surrender of the city, while its inhabitants' water supply dwindles.
It seems clear from the record based on all the exhibits and testimony that not many people will be affected by a loss of water supply. Some of the losses will be self-healing, and some of the disruptions will be only temporary, and only a few will be adversely affected. However, those few individuals will be severely affected. One asks, hypothetically, how long can a homeowner go without a glass of water or a clean shirt or shower? It is an abuse of discretion for the board not to require that those few have a timely, definite, specific and enforceable remedy to compel the permit holder to resupply them with an adequate water supply. The board, for example, speaks of "reasonable time," yet reasonable time is left undefined. Is forty-eight hours a reasonable time? To a family without water anything longer might seem unreasonable.
It is in this area where I believe the board has abused its discretion and has failed to apply the relevant statutes. In order for a permit to be granted, the operator must replace a water supply and reimburse the owner. Since the board found that this will in fact happen to a few people, the board must *Page 306 order very specifically and very definitely procedures to be followed when this happens. Again we wish to emphasize that we recognize this will cost money. But since the board's very own findings indicate that this will only happen in a few isolated cases, requiring the permit holder to act immediately will not be burdensome because of the few cases in which it will happen. This is the kind of balancing of interests that the board is required to do. R.C. 1513.13.
On remand, the board of review should, I believe, limit its reconsideration of the permit application solely to this issue: the adoption of a water replacement plan which has immediate, definite, and enforceable rights for those persons who are adversely affected. The decision of the board of review is amply supported by the record in all the other matters. I would add one final note regarding the final comment of the majority opinion. Our decision in this case is limited solely to the question of the Reclamation Board of Review's decision to affirm the approval of Permit No. 0262 for Meigs Mine No. 2. We have not, as the majority notes, considered or decided any issue regarding property rights, tort claims, or the right of subjacent support. Not having decided any of these issues, I believe our opinion should not comment on them at all.
Thus I concur in the majority opinion sustaining Assignment of Error Part E and remanding the case to the Reclamation Board of Review for further proceedings on that issue.