A.T. Massey Coal Co. says 1,600 acres of Boone County forest will be improved if the company strip mines the land, flattens it out, and turns it into "fish and wildlife habitat and recreation lands."
West Virginia regulators think this plan qualifies Massey for an exemption to the general requirement that mine operators restore land to its approximate original contour.
The U.S. Office of Surface Mining isn't so sure.
When the state Division of Environmental Protection approves the project, probably sometime this week, OSM officials say they will intervene. Local OSM officials have said the permit would be illegal, and national agency officials have ordered an investigation.
"We will look at that permit," said OSM Director Kathy Karpan.
The permit could cause a battle between DEP and OSM over what coal operators must promise in the way of future development to qualify for exemptions that allow a controversial type of mining called mountaintop removal.
Under the 1977 Surface Mining Control and Reclamation Act, coal companies must generally put land that they mine back the way it was before it was mined.
The law states that mines must be reclaimed to their approximate original contour, or AOC. Mines must be reclaimed so that land "closely resembles the general surface configuration of the land prior to mining."
Congress allowed narrow exceptions. Coal companies could ignore the AOC requirements and flatten out the land, if they promised to improve the land with future development, such as factories, schools, shopping malls or public parks.
Federal law allows mountaintop removal AOC variances only when coal companies plan one of five post-mining land uses. They are industrial, commercial, agricultural, residential and public facilities, including "recreational facilities."
Under the law, coal operators may receive a variance only if they propose one of these uses and if that use will constitute an improvement over pre-mining conditions.
In June 1997, Massey subsidiary Independence Coal Co. proposed a new mine, called the Constitution Surface Mine, south of Madison near the town of Uneeda.
The mine, along Hunter Branch and Griffith Branch, would produce about 1.1 million tons of coal a year between January 1999 and July 2004, according to DEP permit files.
In its permit application, Independence Coal says, "The pre-mining capability of the land is limited to unmanaged forest land and wildlife habitat because of the steep slopes and limited access.
"These steep soils are best suited to trees and shrubs rather than agricultural or other uses," the company said. "The inaccessibility of the area promotes a viable habitat for many wildlife species."
Independence asked DEP for an AOC variance for mountaintop removal. This would allow the company not to reclaim the land to its approximate original contour.
Instead of rebuilding the mountains that it removes to reach coal reserves, the company will dump 100 million cubic yards of rock and earth into surrounding hollows and streams.
In its permit application, Independence says the flat land created could be used for a variety of beneficial post-mining land uses. But the company writes off most of those possibilities.
"Because this mining and reclamation plan will produce level areas on the mountaintop and hollow fills, a variety of land uses after reclamation may be possible," the permit application states.
"Soils are generally too poor to provide intensive agricultural or horticultural development, although hay production and grazing has proven successful in many mined lands in the region," it says.
"Commercial or residential development of this property is not considered feasible at this time, but the nearly level land created by this project may present a future opportunity for economic or residential development."
Independence proposed "to reclaim the permit area to wildlife habitat and recreation."