dissenting. In my opinion, the majority construes the phrase “engaged in strip mining,” found in former R.C. 1513.01(G), too broadly, and unnecessarily finds appellees are subject to the licensing and permitting provisions of former R.C. Chapter 1513. Therefore, I respectfully dissent.
While there are no cases explicitly defining “engaged in strip mining,” there are numerous cases construing the term “engaged in” in conjunction with other activities. In Fillippo v. S. Bonaccurso & Sons, Inc. (1978), 466 F. Supp. 1008, at page 1017, for instance, the United States District Court for the Eastern District of Pennsylvania stated:
“* * * Being engaged in an activity requires more than a single act or transaction or an occasional participation. * * *”
Clearly, the phrase “engaged in” connotes a continuous activity, consciously pursued and not an incidental by-product of another project, such as present herein, viz., the removal of coal incidental to construction of a commercial development.
Indeed, a closer investigation of the circumstances in this case reveals this coal proved to be a burden to the defendants. The coal was of very poor quality, and thus, it was not economically advantageous for the defendants to extract the coal. However, it was impossible to commercially develop the site without first removing this underlying layer of coal. Therefore, the defendants were literally compelled to remove the coal prior to commencing their development. It seems somewhat ludicrous to declare defendants are “engaged in strip mining” when they were literally forced to extract this coal.
Likewise, the phrase “process followed in the production of coal” found in the former definition of “strip mining,” also evokes visions of an individual whose purpose is the extraction of coal, rather than one whose activities only incidentally include isolated acts of coal extraction. Appellees’ purpose, as stipulated by the parties, is the preparation of the site for commercial development. After much consideration, I do not feel the above-quoted phrase is broad enough to encompass a party, such as appellees, involved solely in commercial development. As stated by the majority, “[p]rior to Home Pro applying for this permit, it had never encountered, removed, marketed, or otherwise dealt with coal in its activities as a commercial developer.”
The majority concludes that excluding individuals or businesses such as appellees from the requirements of former R.C. Chapter 1513 acts to thwart *262the underlying purpose of the strip-mining - and reclamation laws, e.g., regulating the extraction of coal in a manner which is both economically efficient and environmentally safe. The most persuasive argument against this assertion becomes apparent when one examines the federal statutes in this area. Most specifically, Section 1278(2), Title 30, U.S. Code, explicitly excludes “the extraction of coal for commercial purposes where the surface mining operation affects two acres or less * * Recognizing the goals of the federal government to be co-extensive with the goals of the state of Ohio in this area, it seems the determination to exclude parties such as appellees from the mandates of the surface mining laws, while not controlling, should certainly be weighed heavily against the argument to the contrary.
Furthermore, the majority also points out R.C. 1513.07(A)(8) directs an operator to include his “future plans” in the permit application; interestingly, “commercial development” is included as one of the future uses. From this the majority concludes individuals commercially developing land must obtain a strip-mining permit. However, reading R.C. 1513.07(A)(8) in its entirety militates against the majority’s conclusion.
R.C. 1513.07(A)(8) provides in relevant part:
“* * * The chief shall disapprove any plan or amended plan which does not provide for the immediate establishment of covering by grasses, legumes, or similar plants in order to prevent soil erosion, including a preliminary planting of such cover in areas which are to be planted in trees. * * *”
A mandatory requirement for the immediate covering of a site by “grasses, legumes, or similar plants” is totally inconsistent with that site’s commercial development. Why would one plant grass on land which is to be immediately covered by a building foundation, asphalt or concrete? Must such an individual, after removal of coal, plant “grasses, legumes, or similar plants,” wait for them to grow and once again clear the land for commercial development? To conduct an intermediate phase of covering the land with grasses and plants would be an obvious exercise in futility.
In view of all the above, I conclude the statutes pertaining to the reclamation of strip-mined land, found in former R.C. Chapter 1513, did not extend to the regulation of individuals engaged in the commercial development of .7 acre plot of land who are forced to extract coal from the site prior to beginning their project.
Accordingly, I would affirm the judgment of the Court of Appeals.
C. Brown, J., concurs in the foregoing dissenting opinion.