The other AOC variance permit proposed agriculture as a post-mining land use, but did not "demonstrate that flat land is essential to support the proposed use, and it does not contain the required plans and assurances to show that the proposed agricultural land use is needed and will be achieved," OSM said.
OSM investigators also found that most of the AOC variance permits did not contain sufficient documentation to grant those variances. "Few, if any, contained the required agency approvals or the specific plan and assurances demonstrating a need for and supporting the proposed post-mining land use," OSM found.
Among the 11 permits that did not receive AOC variances, OSM inspectors found that what DEP accepted as constituting AOC varied widely.
In some cases, mine operators rebuilt mountains to within 40 feet of their original elevation. In others, mountains were only rebuilt to within 340 feet of their original elevation. In still others, permits contained little or no information about what would constitute AOC reclamation at the mines.
Generally, the greater the change in elevation that mine operators are allowed to make, while still qualifying as AOC, the greater the amount of mine waste that is dumped into valley fills. The rock and earth that would go back on hilltops instead goes into valley fills.
Coal operators say they need valley fills to dispose of mining "swell," the increased amount of material formed when compacted rock and earth is blown apart by blasting and dug up by huge shovels.
Many of the permits OSM investigators reviewed contained concrete data on how much mined material expanded, and how much was put back on hilltops or dumped in valley fills.
For the permits that did contain that information, the material removed to reach coal swelled by 20 percent to 40 percent over the original amount removed. Coal operators, however, placed from 43 percent to 73 percent of the original amount into valley fills.
"This indicates that the operator may be indiscriminately dumping excess spoil for convenience or economic reasons, rather than for what is needed to accomplish the post-mining land use," the OSM draft report concluded.
The OSM draft notes that DEP officials "have said that they are hard pressed to say when a site does not meet AOC, because the state's definition of AOC lacks sufficient detail.
"With the completion of this study, OSM, in cooperation with the state, will now begin evaluating these findings to determine if the state's interpretation and application of its definition of AOC ... is reasonable and appropriate or whether changes are warranted," the draft report says.
During an interview two weeks ago, DEP Director Michael Miano said he would not propose new state mining regulations to define approximate original contour.
"There is a lot of discretion, and I think that's the way it should remain," Miano said.
John Ailes, chief of the DEP Office of Mining and Reclamation, said it OSM's job - not the state's - to come up with a concrete definition of AOC.
"There are some things that need some clarification, and this agency can't do that," Ailes said. "I don't think that's the right place for it.
"Nobody is really refereeing this stuff" on a national level, Ailes said. "That leads to imbalances, and one of the purposes of the federal law was to create a level playing field among the states."
Patrick McGinley, an environmental law professor at West Virginia University, agreed.
McGinley said OSM's inaction is allowing "West Virginia to have regulations that are inconsistent with other states, and basically allowing a race to the bottom, that is to say, the most minimal standards among the states.
"It is true that the states have some discretion, but only within the scope of the definition that OSM has given them," McGinley said last week. "Congress did not intend that AOC be defined at the whims of the states.
"It's up to OSM to define and enforce what constitutes AOC," he said. "OSM is ignoring its responsibility and sidestepping the law."