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."