Under the law, coal companies can ignore the AOC rule - and flatten out the land they mine - but only if they receive an AOC variance and propose post-mining development on the flattened land.
A series of Gazette articles published last year revealed that most mountaintop removal mines in West Virginia did not receive AOC variances or propose post-mining land development. As a result, tens of thousands of acres of the state were left as flat plains or rolling hills, but without the economic or community development that Congress required when it wrote the 1977 law.
In December, an OSM report confirmed the newspaper's conclusions.
The federal court lawsuit over mountaintop removal contends that the DEP issues mountaintop removal permits that don't comply with the AOC rule or include proper post-mining development plans.
On March 3, Chief U.S. District Judge Charles Haden ruled that environmental group lawyers had made a good showing that DEP ignores the AOC requirement.
DEP officials have blamed their inaction on the lack of a detailed AOC definition from OSM.
Calhoun said that OSM decided to try to define AOC by giving guidance to the state, rather than by proposing a new formal regulation. Calhoun said mining officials in Kentucky and Virginia are interested in the guidance.
"Right now, we want to see if this works," Calhoun said. "That's probably a better approach - sort of a testing of a policy - before we jump right out and do a rule-making."
DEP Director Michael Miano said his agency would hold public hearings on the policy before it is implemented. Dates for the hearings were not announced.
Rep. Nick J. Rahall, D-W.Va., has repeatedly called for OSM to come up with a tighter definition of AOC. On Tuesday, Rahall praised the agency's action.
"This appears to be a more quantitative means of determining compliance with one of the act's most critical reclamation standards, placing greater reliance on sound engineering principles rather than subjective considerations," Rahall said.
"If successful, this proposal should maximize bench placement of spoil material, minimize impacts on streams and facilitate the consideration of pending mining permits," Rahall said. "I would also think that the success of this proposal could also create an environment in which the environmental plaintiffs could find it beneficial to seek a settlement with the DEP on the outstanding SMCRA issues in their lawsuit."