'As high as God did'
LOGAN - Ken Stollings points to the maps and charts on his office wall to show how Hobet Mining will turn the rugged peaks and valleys around Blair Mountain into flat plains and a few rolling hills.
Stollings, a Division of Environmental Protection engineer, shows the changes to his boss, agency permit supervisor Larry Alt. Asked if this proposal meets the legal mandate that mined land be reclaimed to its "approximate original contour," Alt and Stollings just laugh.
"We just can't stack it as high as God did," Alt says with a shrug.
Approximate original contour, or AOC, is the heart of the federal strip mining law. But among many West Virginia regulators, it's becoming a joke.
Congress passed the 1977 Surface Mining Control and Reclamation Act to make strip operators put land back, as best they could, the way it was before they mined it.
Under the law's AOC requirement, operators must reclaim mined land so that it "closely resembles the general surface configuration of the land prior to mining."
Lawmakers allowed narrow exemptions. Coal operators could ignore AOC, and flatten out the land, if they planned future development, such as schools, factories or public parks. But to qualify for those exemptions, mining companies were supposed to have detailed project plans in hand before mining permits were approved.
Today, these rules are routinely skirted by dozens of huge mountaintop-removal strip mines in Southern West Virginia, according to a three-month Sunday Gazette-Mail investigation.
Giant earth-moving machines chop hundreds of feet off the tops of mountains. Rather than go to the time and expense of putting the mountains back - a task some say isn't possible, anyway - mine operators dump millions of tons of rock and earth into nearby valleys.
Rugged hills and hollows of Boone, Logan, Mingo and other Southern coal counties are flattened, or replaced with a few gently rolling hills. Hundreds of miles of streams are buried, or replaced by manmade diversion ditches.
Last year, more than two-thirds of the area permitted for new strip mining was for mountaintop removal. In 1997 alone, DEP approved 20 new mountaintop-removal permits that cover 20 square miles.
Companies that operate these mines, including Arch Coal Inc., A.T. Massey Coal and Pittston Coal, rarely ask for or receive approximate original contour exemptions for mountaintop removal, according to state records obtained under the Freedom of Information Act.
Three-quarters of the active mountaintop-removal mining permits in West Virginia were not granted the required exemption, according to the records.
But regulators also hesitate to push companies to return these mines to their approximate original contour.
State environmental officials say that a vague legal definition of approximate original contour often ties their hands.
"'Closely resembles the general surface configuration' - who the hell knows what that means?" said John Ailes, chief of the DEP Office of Mining and Reclamation.
"Nobody has ever defined it," Ailes said. "What's AOC to you might not be AOC to me. That is truly difficult for the agency. We're forced to make these interpretations without any guidance."
While mountaintop-removal mining - meant to be the exception - becomes the rule, federal officials have done little to address the issue.
Top U.S. Office of Surface Mining officials declined requests by their own inspectors for more concrete guidance on what constitutes approximate original contour. In fact, OSM several years ago issued a ruling that made the term more vague.
And, in more than 20 years of keeping watch on state regulators, OSM has never fully examined how well the West Virginia DEP handles AOC and mountaintop-removal exemptions during its permitting process.
Last week, the top lobbyist for the state's coal industry conceded there may be some problems. But he insisted they are technical, permitting matters that aren't causing major environmental damage.
"Maybe there is something there that needs to be looked at," said Bill Raney, president of the West Virginia Coal Association. "Maybe there's an explanation for it.
"It sounds like to me DEP needs to take a look to see if they meet all the requirements," Raney added. "Apparently, there are some issues to be addressed, but they have little do with environmental compliance."
Congress debated the federal strip mining law for years. The measure was opposed by coal operators, and twice vetoed by President Ford. President Carter signed it on Aug. 3, 1977.
Lawmakers bickered repeatedly over whether operators should be allowed to conduct mountaintop-removal mining at all.
In old-time strip mining, machines chipped away at the sides of hills to slice off coal reserves. In mountaintop removal, much bigger machines shave off the entire tops of mountains.
Draglines, giant shovels that look like cranes, dig out multiple seams of coal from the whole length of ridges at once.
Environmentalists and some members of Congress, including then-Rep. Ken Hechler, D-W.Va., wanted to ban mountaintop removal altogether.
"This is not only aesthetically bad, as anyone can tell who flies over the state of West Virginia or any places where the mountaintops are scalped off, but also it is devastating to those people who live below the mountain," Hechler said in a 1974 debate.
Others said that if Congress outlawed mountaintop removal, and made all mines return to the approximate original contour, it would kill the Appalachian mining industry.
Some members of West Virginia's congressional delegation, including Sen. Jennings Randolph and Rep. John Slack, both Democrats, also argued that allowing mine operators to flatten out the hills would be good for economic development.
"In the state of West Virginia, we have a need for level land," Randolph said in 1973. "We know that ofttimes surface mining can allow for the location of a school, an airport, or for housing - not one, but many homesites."
Current U.S. Sen. Jay Rockefeller, who opposed strip mining during his bid for governor in 1972, spoke out in favor of mountaintop removal during a 1977 congressional hearing.
"Mountaintop removal should certainly be encouraged, if not specifically dictated, by proposed legislation," said Rockefeller, who was elected governor in 1976 after he dropped his opposition to strip mining.
In the end, Congress compromised.
Most of the time, mine operators would have to return land to its approximate original contour.
The idea was that coal operators should put all rock and earth removed to reach coal seams back on top of mined-out areas, to restore the mountains that existed before.
If there was any rock and earth - coal companies call it spoil - left after the mountains were rebuilt, operators could dump it in waste piles called valley fills.
In mountaintop-removal mining, rebuilding the mountains was considered impractical at best, and impossible at worst.
The law requires AOC-reclaimed slopes to be no more steep than a 2-1 horizontal-to-vertical rise. Often, Appalachian hills are much steeper. So a contradiction in the law prohibits strict AOC compliance. Loose rock and earth stacked on top of mountains, even when compacted by heavy equipment, is less stable than untouched, pre-mining hills. So operators can't always guarantee landslides won't occur if they go too far back toward AOC.
"AOC is impossible" for mountaintop removal mines, said Ben Greene, a former top state regulator who now lobbies for the coal industry. "Approximate original contour in the sense that you re-create everything that was there and bring back what God created is impossible.
"You do not re-create that mountain," Greene added. "That has never been anybody's idea or intention."
Congress agreed that, in some cases, approximate original contour probably wasn't possible.
Lawmakers went so far as to conclude that not putting the mountains back could sometimes be a good idea.
Under the law, coal operators could not return mined land to its approximate original contour if they received one of two types of exemptions.
One applies to mountaintop-removal mining; the other covers mining on slopes steeper than 20 degrees.
To qualify for these exemptions, however, mine operators must show in their permit applications that they will leave the land generally better than it was before they mined.
In the case of mountaintop removal, operators must plan future development of commercial, industrial, residential, agricultural or public facilities.
And to qualify, operators must have development plans in hand, and meet a list of other requirements, before they receive a permit. They must show development plans fit in with neighboring land uses. They have to prove there's a market need for the development. And, they have to show that any necessary public approvals and that financing is available.
Since the federal law was passed, strip mining in West Virginia has boomed.
Thirty years ago, only about 10 percent of West Virginia coal production came from strip operations. Today, strip mining accounts for roughly one-third of all coal produced in the state.
Since 1981, nearly 500 square miles of the state - an area larger than Logan County - has been strip mined, according to OSM records. And as strip mining in general increased, mountaintop removal became a more popular method among operators.
During all of the 1980s, the state issued 44 permits for mountaintop removal mines that covered a total of 9,800 acres, according to DEP files.
In the last three years alone, DEP has permitted 38 new mountaintop-removal mines that cover a total of nearly 27,000 acres. Nearly half of that acreage was permitted through 20 new mines authorized in 1997, according to agency records.
So why is a type of mining intended to be the exception becoming the rule?
First, DEP does not require mine operators to get a variance - and prove the land will be improved - to conduct mountaintop-removal mining.
Asked in late January how many West Virginia strip mines had received the mountaintop-removal exemption from approximate original contour, DEP officials said they didn't know. Agency field office workers had to pull dozens of mining permit files to respond to a Charleston Gazette FOIA request for the information.
The results, provided in mid-March, show:
Sixty-one of the 81 active mountaintop-removal mines permitted since 1978 did not receive the exemption. Only 20 mines - 24 percent of the total - received the exemption required by state and federal law.
The largest of the mines did not receive exemptions. Six of the 10 biggest mines, by acreage, did not receive exemptions. The 61 mines that did not receive exemptions account for 70 percent of the total active mountaintop-removal mine acreage.
In the last three years, the situation has gotten worse. In 1995, four of six new mountaintop-removal mines, or about 67 percent, did not receive exemptions. Last year, 15 of the active mountaintop- removal mines, or 75 percent, did not receive the exemptions.
DEP provided information for only the 81 active mountaintop-removal mines, not for about 55 closed permits.
With older permits, it's sometimes impossible to determine if mines received exemptions. Permit files weren't complete. Companies did not always indicate whether they wanted an exemption. Regulators did not always note whether one was given.
Second, DEP officials say they are hard-pressed to argue mountaintop-removal mines do not meet the approximate original contour standard. There are no detailed federal or state rules that define the term.
For years, state regulators policed mountaintop-removal mines under a somewhat informal, "50-foot rule."
Mine operators were required to return mountains to within 50 feet of their original elevation to meet the approximate original contour standard. If the post-mining elevation differed by more than 50 feet, companies were required to apply for an AOC variance.
The rule was never approved by the Legislature, as most such policies must be, but was included in a handbook given to permit reviewers and mine inspectors.
State officials threw out that rule sometime in late 1992 or early 1993 because an October 1992 memo from the OSM office in Morgantown contained a passing reference to problems with the state's rule.
"For mountaintop-removal mining, there is no minimum or maximum elevation requirement to which the final contour must be restored after mining," the memo stated. "There could be as much as 200 or 300 feet difference between the pre-mining and post-mining elevations."
DEP officials say this change paved the way for huge mountaintop-removal mines.
Under the change, operators could cut hundreds of feet off the tops of hills, dump spoils into valleys, and level off mined-out land - all under the guise of meeting the approximate original contour standard.
"The definition of AOC changed," said Lewis Halstead, assistant DEP chief for permitting. "We wanted to do the 50-foot rule. We changed to what OSM directed and this is the result."
Major West Virginia coal companies say they are just following the permits DEP gives them.
"Massey Coal companies have complied with the reclamation regulations," Bill Marcum, a Massey spokesman, said in a written response to questions. "On any permit that does not include an AOC variance, the plans for reclaiming the mine site meet state guidelines for AOC standards."
David Todd, a vice president of Arch Coal, said, "We have the Surface Mining Act and just passed its 20-year anniversary.
"We have been applying for mining permits and they have been reviewed by and granted by DEP, with oversight by OSM," Todd said. "That's got to be pretty fair evidence that mountaintop-removal mines are being approved and operated according to and in compliance with the law."
However, a top environmental lawyer and a leading coal industry lobbyist agree DEP should not permit mountaintop-removal mines as meeting the AOC standard.
Greene, who is president of the West Virginia Mining and Reclamation Association, said, "They're wrong if that's what they contend.
"If they have tortured it to that point, that's not the intent of Congress, nor proper application procedures."
James McElfish, an attorney with the Environmental Law Institute in Washington, D.C., said, "If you take 200 or 300 feet off the top of a mountain and change a rolling or a steep topography to a flat topography, that's not approximate original contour."
Permitting such mines as approximate original contour, McElfish said, allows coal companies to avoid having to prove they will improve the land if they flatten it out.
"They shouldn't be doing this torturing of the approximate original contour definition," McElfish said. "It reflects a lack of care or a lack of attention to the provisions of the act and is meant to make things easier for coal companies."
Even if Greene and McElfish are wrong, top DEP mine regulators admit there are valid questions about whether major mountaintop mines approved in the last two years put enough spoil back on mined-out areas to qualify as approximate original contour.
"You can make that argument and I don't have a good answer for that," Ailes said.
"We try to encourage them to put as much back as they can. Maybe they don't put back as much as we'd like."
At about the same time DEP weakened its approximate original contour rule to comply with the OSM memo, federal mine inspectors in West Virginia asked their bosses to rein in mountaintop removal.
In May 1993, Jim Blankenship, then-director of the Charleston OSM field office, complained to regional OSM director Allen D. Klein about several West Virginia mines.
The mines, operated by Pen Coal Corp. and Costain Coal, had cut more than 90 feet off the top of mountains to reach coal seams. After mining, the companies dumped the leftover rock and earth into nearby valleys. These mines didn't get mountaintop-removal variances, and Blankenship thought they were illegal.
"The regulations intend that, unless an appropriate land-use variance is obtained for steep slope or mountaintop mining operations, only materials not necessary to achieve the approximate original contour will be disposed of in 'excess spoil' fills," he wrote.
"Where mining creates an elevation difference of up to 90 feet, there is obviously more than 'excess spoil' materials being transported to the fills."
At the time, West Virginia regulators complained to Blankenship that OSM had not clearly defined approximate original contour. Blankenship told Klein it was time to do so.
Klein and Brent Wahlquist, assistant OSM director for reclamation and regulator policy, declined. They said OSM should leave such matters to the states.
Roger Calhoun became director of the Charleston OSM field office in January 1997.
During a press conference April 9 with Klein and national OSM Director Kathy Karpan, Calhoun insisted the state of West Virginia was not issuing mountaintop-removal permits without AOC variances.
Later, when provided with a list of such permits, Calhoun said his agency would look into the situation.
"Maybe we should put the burden on the state to come up with some criteria," Calhoun said. "It's something we might want to tighten down on. I don't think the state has paid enough attention to AOC and post-mining land uses and configurations."
Still, Calhoun has repeatedly said that mountaintop removal is not his top issue.
"This is not the biggest environmental issue in the state," Calhoun said. "I have other things to do.
"You can take out that thick book of regulations, point to any one and say, 'Let's do a special study,'" he said. "Did we pick up on this early on as an issue? No. And I'm not sure we've picked up on it yet."