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OSM chief defends variance policy

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.

"AOC variances for other than mountaintop removal operations can also be granted for steep slope mining, but likewise only for certain enumerated post-mining land uses. Any other type of mining must return the land to AOC."

Karpan also wrote that "one difficulty with the term 'approximate original contour' is making an objective judgment to determine compliance with the standard.

"Because of differing topography across the United States, a precise definition of what constitutes AOC is impractical," she wrote. "OSM allows the states wide latitude to determine what AOC means in relation to site-specific conditions."

In an interview Friday afternoon, Karpan said she would order the expansion of a joint OSM-DEP mountaintop removal study to include an investigation of the issues raised by the Gazette-Mail.

The original agency plan, signed in February, called only for inspectors to see if active mines are reclaiming mountaintop removal mines as described in state-approved permits.

Now, Karpan said, OSM will also look at whether DEP has abused the AOC definition and improperly permitted mountaintop removal mines. The study should be completed by mid-August, OSM records show.

"We will do a study that is just as big and as comprehensive as is needed," Karpan said.

"Mountaintop removal is getting bigger and bigger," she said. "Do we really feel we understand all the impacts, and are we doing all we can? We're saying there is reason to be concerned."

Also last week, another OSM official said the West Virginia DEP misunderstood federal guidance about mountaintop removal mines.

The state used to require any mines that changed the elevation by 50 feet or more to obtain an approximate original contour variance. In late 1992 or early 1993, DEP threw out that rule in response to a guidance memo from OSM.

DEP officials read the memo as saying mines could change elevation by 200 or 300 feet and still meet the AOC requirement.

Brent Wahlquist, a regional OSM director who supplied the guidance used in the 1992 memo, said that wasn't what OSM meant.

According to Wahlquist, the memo actually meant that mountaintop removal mines - those that receive a variance - could change elevation by 200 or 300 feet.

"I don't see a reference to AOC in that memo," Wahlquist said in a phone interview. "It was describing mountaintop removal, not AOC.

"Mountaintop removal is different from AOC. It's a variance from AOC," he said. "There is a distinction between mountaintop removal mines and AOC mines, which is an important distinction."

Rahall noted that if mountaintop removal mines are permitted as meeting AOC, and there is no elevation limit for complying with AOC, it is easier for operators to put more and more mine waste in larger valley fills.

"In my view, Congress did not anticipate operations having the character of mountaintop removal being conducted without the variance when passing the surface mining act," said Rahall, who served on the congressional conference committee that wrote the final version of the law.

"The public interest lies with having beneficial postmining land uses," he said. "Once the coal is gone, at least the public is left with developments that can provide jobs and contribute to the economy."

Cindy Rank, mining chair for the West Virginia Highlands Conservancy, blamed the permitting problems on a lack of vigilance by OSM.

"The state may be messing up, but it's OSM's responsibility to know they are doing that before it gets out of hand," Rank said. "OSM wasn't paying attention, and now it's gotten out of hand and nobody knows how to rein it in because it's gotten so out of hand.

"Why OSM hasn't picked up on this raises serious questions about their hands-off approach and cries out for OSM's attention and involvement in overseeing the state program."


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