All mines that remove the tops of mountains aren't mountaintop removal mines, according to the head of the U.S. Office of Surface Mining.
OSM Director Kathy Karpan said last week that she doesn't see why all mines that shear off the tops of hills should have to receive reclamation variances for mountaintop removal.
U.S. Rep. Nick Rahall, D-W.Va., said Friday that Karpan's statement "is a startling concept coming from the agency charged with enforcing the surface mining act."
Rahall has asked the U.S. Department of Interior, which oversees OSM, to investigate a Sunday Gazette-Mail report that three-quarters of the mountaintop removal mines in West Virginia were given permits without variances.
"We have brought these matters to the attention of the solicitor of the Department of Interior for his review," Rahall said. "In particular, we wanted the solicitor to be aware of OSM's assertion that not all mining that takes off the top of a mountain is mountaintop removal."
Under the 1977 federal Surface Mining Control and Reclamation Act, strip mine operators must generally put mined land back the way it was before they mined it.
The law requires mines to be reclaimed to the approximate original contour (or AOC), so that it "closely resembles the general surface configuration of the land prior to mining."
Congress allowed narrow exceptions. Operators could ignore AOC and flatten out the land if they planned future developments like schools, factories or public parks.
But to qualify for these AOC variances, mine operators had to submit detailed plans to show they could follow through with future developments that improve the land and local economies.
Strip mining has boomed since the law was passed. It now accounts for a third of West Virginia coal production, compared to 10 percent in the late 1960s and early 1970s.
At the same time, mountaintop removal has become more and more popular with mine operators. In the last three years, the annual area approved for mountaintop removal has tripled. In 1997 alone, moutaintop removal accounted for two-thirds of the 18,000 acres in new mining permits.
But a three-month Sunday Gazette-Mail investigation found that the way these mines were permitted skirted federal and state laws:
Three-quarters of the active mountaintop removal mines were not required to receive AOC variances. Only 20 of 81 active mountaintop removal mines were granted variances.
Officials from the state Division of Environmental Protection say a vague legal definition of AOC forces them to permit mountaintop removal operations as AOC mines.
OSM officials have declined their own inspectors' requests for a more detailed, and tougher, definition of approximate original contour.
Last week, both Rahall and Rep. Bob Wise, D-W.Va., called for investigations of the newspaper's findings.
"When it comes to surface mining, there are two principles I have always fought for: environmental justice for coalfield citizens, and a stable regulatory regime so that industry knows that it can operate under widely accepted and well-established rules," Rahall said.
"We cannot expect industry to comply with a moving target," he said. "Unfortunately, in its actions OSM is denying coalfield residents and the coal industry both of these goals."
In response, on Thursday Karpan issued an "Action Plan on Mountaintop Removal and Approximate Original Contour." The two-page document was sent to the Sunday Gazette-Mail and to members of West Virginia's congressional delegation.
Among other things, Karpan wrote that "not all mining that takes off the top of a mountain to extract multiple coal seams is 'mountaintop removal' as envisioned and authorized by the law."
"SMCRA's mountaintop removal provisions are a variance from AOC that can only be justified for certain types of post-mining land uses requiring relatively flat terrain," Karpan wrote.