Ohio § 1513.27

§ 1513.27.

As used in this section and sections 1513.28 , 1513.30 , 1513.31 , and 1513.32 of the Revised Code , “ damage to adjacent property ” means physical injury or harm to nearby property caused by the unreclaimed condition

of lands mined prior to April 10, 1972, or pursuant to a license issued prior to April

10, 1972, including, without limitation, injury or harm to vegetation on adjacent

property, pollution of surface or underground waters on adjacent property, loss or

interruption of water supply on adjacent property, flow of acid water onto or across

adjacent property, flooding of adjacent property, landslides onto or across adjacent

property, erosion of adjacent property, or deposition of sediment upon adjacent property.  Damage to adjacent property does not include any diminution of the market value

of adjacent property caused exclusively by the visual or aesthetic appearance of such

unreclaimed lands. The chief of the division of mineral resources management, with the approval of the

director of natural resources, may enter into a written agreement, which may be in

the form of a contract, with the owner of any unreclaimed land affected by mining

before April 10, 1972, or pursuant to a license issued before April 10, 1972, that

causes or may cause pollution of the waters of the state or damage to adjacent property,

is not likely to be mined in the foreseeable future, and lies within the boundaries

of a project area approved by the chief under section 1513.30 of the Revised Code , under which the state or its agents may enter the land to reclaim it at state expense

with money from the mining regulation and safety fund by establishing vegetative cover

and substantially reducing or eliminating erosion, sedimentation, landslides, pollution,

accumulation or discharge of acid water, flooding, and damage to adjacent property.  The agreement may include provisions pertaining to liability for damages and any

other provisions necessary or desirable to achieve the purposes of this section. If the chief makes a finding of fact that land or water resources have been adversely

affected by past coal mining practices;  if the adverse effects are at a stage where,

in the public interest, action to restore, reclaim, abate, control, or prevent the

adverse effects should be taken;  and if the owners of the affected land or water

resources either are not known or readily available or will not give permission for

the state, political subdivisions, or their agents, employees, or contractors to enter

on the property to restore, reclaim, abate, control, or prevent the adverse effects,

the chief or the chief's agents, employees, or contractors may enter on the affected

property in order to do all things necessary or expedient to restore, reclaim, abate,

control, or prevent the adverse effects.  Prior to entering on the property, the chief or the chief's agents, employees, or

contractors shall give notice by mail to the owners, if known, or, if not known, by

posting notice on the premises and advertising once in a newspaper of general circulation

in the county or municipal corporation in which the land lies.  Such an entry shall be construed as an exercise of the police power for the protection

of public health, safety, and welfare and shall not be construed as an act of condemnation

of property or of trespass.  The money expended for the work and the benefits accruing to any premises so entered

upon shall be chargeable against land and shall mitigate or offset any claim in or

any action brought by any owner of any interest in the premises for any alleged damages

by virtue of the entry.  This provision is not intended to create new rights of action or eliminate existing

immunities. Each agreement entered into pursuant to this section shall contain provisions for

the reimbursement of a portion of the costs of the reclamation that is commensurate

with the increase in the fair market value of the property attributable to the reclamation

work thereon, as determined by appraisals made before and after reclamation in the

manner stated in the agreement, unless the determination discloses an increase in

value that is insubstantial.  For reimbursement of the portion, the agreement may include provisions for any of

the following: (A) Public use for soil, water, forest, or wildlife conservation or public recreation

purposes; (B) Payment to the state of the share of the income from the crops or timber produced

on the land that is stated in the agreement; (C) Imposition of a lien in the amount of the increase in fair market value payable upon

transfer or conveyance of the property to a new owner.  All such reimbursements and payments shall be credited to the mining regulation

and safety fund. (D) Payment to the state in cash of the amount of the increase in fair market value,

payable upon completion of the reclamation. For the purpose of selecting lands to be reclaimed within the boundaries of approved

project areas, the chief shall consult the owners of unreclaimed lands, may consult

with local officials, civic and professional organizations, and interested individuals,

and shall consider the feasibility, cost, and public benefits of reclaiming particular

lands, their potential for being mined, and the availability of federal or other assistance

for reclamation.  Before entering into the agreement, the chief shall prepare or approve a detailed

plan with topographic maps indicating the reclamation improvements to be made.  The plan may include improvements recommended by the owner, but may not include

improvements that the chief finds are not necessary to establish vegetative cover

or substantially reduce or eliminate erosion, sedimentation, landslides, pollution,

accumulation or discharge of acid water, flooding, or damage to adjacent property. With the approval of the director and upon entering into the agreement with the owner,

the chief may carry out the plan of reclamation or any part thereof with the employees

and equipment of any division of the department of natural resources, or the chief

may carry out the plan or any part thereof by contracting therefor. The chief, with the approval of the director and written consent of the owner, may

enter into a contract with an operator mining adjacent land under a current, valid

permit to carry out the plan of reclamation on the unreclaimed land or any part of

the plan without advertising for bids.  Contracts entered into with operators mining adjacent land are not subject to division (B) of section 127.16 of the Revised Code . The chief shall require every operator mining adjacent land who performs reclamation

work pursuant to this section to pay workers at the greater of their regular rate

of pay, as established by contract, agreement, or prior custom or practice, or the

average wage rate paid in this state for the same or similar work performed in the

same or similar locality by private companies doing their own reclamation work.  Each contract awarded by the chief to other than an operator mining adjacent land

shall be awarded to the lowest responsible bidder after sealed bids are received,

opened, and published at the time and place fixed by the chief.  The chief shall publish notice of the time and place at which bids will be received,

opened, and published, at least once at least ten days before the date of the opening

of the bids, in a newspaper of general circulation in the county in which the area

of land to be reclaimed under the contract is located.  If, after so advertising for bids, no bids are received by the chief at the time

and place fixed for receiving them, the chief may advertise again for bids, or, if

the chief considers the public interest will be best served, the chief may enter into

a contract for the reclamation of the area of land without further advertisement for

bids.  The chief may reject all bids received and again publish notice of the time and

place at which bids for contracts will be received, opened, and published.  The chief, with the approval of the director and written consent of the owner, may

enter into a contract with a licensed mine operator mining adjacent land under a valid

permit to carry out the plan of reclamation on the unreclaimed land or any part of

the plan without advertising for bids.