"A diverse vegetative cover will be established, providing habitat, food sources and protective cover for a variety of wildlife," the permit application said. "Over time, native plant species will likely invade the area, adding to species diversity.
"The surrounding area is covered in upland forest. The creation of wildlife habitat on the reclaimed mine site is therefore a viable postmining land use choice."
Bill Marcum, a spokesman for Massey Coal, said the company believes its permit application meets the requirements of federal and state law.
"Based on our understanding of the regulations and current state policies, fish and wildlife habitat and recreation lands meets the requirements of improved or higher land use following mining," Marcum said. "DEP has approved fish and wildlife habitat and recreation lands as an appropriate post-mining land use. OSM has approved this, provided there is public access."
The Legislature added "fish and wildlife habitat and recreation lands" as an alternative post-mining land use for mountaintop removal strip mines under state law in 1997.
But federal law does not allow DEP to implement changes in state mining law until they are approved by OSM. In 1994, the state Supreme Court scolded DEP for contending that changes in state mining rules don't have to be approved by OSM before they are implemented.
In April 1997, then-DEP Director John E. Caffrey asked OSM to approve the addition of "fish and wildlife habitat and recreation lands" as a post-mining land use for mountaintop removal mines.
OSM has so far refused to approve the change.
In October 1997, OSM Charleston Field Office Director Roger Calhoun wrote a letter to Caffrey to say that the change might not be allowed. Calhoun wrote that the change would make West Virginia strip mine laws less stringent than federal law requires.
Last month, DEP Office of Mining and Reclamation Chief John Ailes wrote to Calhoun's boss, OSM Regional Director Allen D. Klein to ask that the change be approved.
"Because of the feral nature of wildlife, the proposed program amendment conforms with federal regulations by providing enhanced recreational benefits in the form of additional wildlife for public hunting and observation," Ailes wrote.
"Consequently, if the reclaimed site were made available to the public for recreational purposes, it would qualify for such alternate post-mining land use," he wrote.
"Therefore, this provision is as effective as the federal program for post-mining land uses and recreational benefits."
Also last month, Independence submitted letters to DEP from the companies that own the land where the Constitution Mine would be.
The companies said they would allow public access to the land after mining is completed "for outdoor recreation activities, such as hunting and fishing, subject to the appropriate waivers of liability, indemnifications and assumptions of risks associated with the use of the surface property."
OSM officials said that is not enough to make the Independence proposal qualify under the "public facilities" post-mining land use for mountaintop removal mines.
According to OSM, that land use would apply to recreation lands only if they are made into public parks or state-run public hunting and fishing areas.
Two weeks ago, DEP backed off issuing the Independence permit because of questions raised by the Sunday Gazette-Mail and in a formal notice of intent to sue filed by environmentalists.
Several days later, Ailes defended the permit.
"There is nothing that we've seen that will deny it," Ailes told The Associated Press. "The matter of fact is it's a pretty good permit."
Last week, Ailes said there may be details about the post-mining land use change that need to be worked out, but his office will probably approve the Independence permit anyway.
"Is there any doubt in my mind about the post-mining land use?" Ailes said. "I think that is in line with what the federal law requires, but I'm not sure our ability to get there is as clear as we'd like it to be."