"Earlier guidance or acceptance of reclamation by the regulatory authority should be given considerable deference because the regulatory authority has the primary responsibility for interpreting what constitutes AOC, and the permittee who received such guidance acted reasonably in construing the state's acceptance as assurance that AOC requirements had been met in accordance with the state program," Wahlquist wrote.
Wahlquist's involvement in keeping OSM out of the AOC issue dates back even further. He wrote a 1987 OSM directive that ordered agency officials to defer to state regulators on AOC matters.
During an interview in early May, Wahlquist said he believed state Division of Environmental Protection officials misunderstood his AOC guidance.
Wahlquist said the memos were not supposed to mean that the DEP could not have a maximum elevation change in its AOC definition.
Last week, Wahlquist said he has taken no formal action to try to clear up that problem.
Wahlquist said he called John Ailes, chief of the DEP Office of Mining and Reclamation, and Ben Greene, president of the West Virginia Mining and Reclamation Association, to tell them about the misunderstanding.
Calhoun said Friday that it could be two more weeks before he releases an OSM study of mountaintop removal. The study was supposed to be released by mid-August.
Wahlquist said he has reviewed drafts of the study and suggested some changes.
"I felt there were some things they could word a little better in terms of the interpretation of the data and what the data meant," Wahlquist said.
A draft of the study, obtained by The Sunday Gazette-Mail, said that OSM would again leave the issue of defining AOC up to the states.
Wahlquist said last week he continues to believe that defining AOC on a state and a case-by-case basis "makes more sense than defining it on a nationwide basis."
Patrick C. McGinley, an environmental law professor at West Virginia University, said Wahlquist is wrong.
"Congress imposes upon the Office of Surface Mining the responsibility to ensure that the states carry out the requirements of the federal laws, and also imposed upon the Office of Surface Mining the responsibility to develop regulations under SMCRA," McGinley said.
"Mr. Wahlquist's view that each state can come up with its own definition of approximate original contour indicates he either misunderstands OSM's clear responsibility, or for some reason has chosen to distort Congress' intent," he said.
"It's not the state's role to define basic terms and there is nothing more basic in the federal surface mining act than the concept of returning land to its approximate original contour," McGinley said. "To suggest that OSM should defer to the states on that critical issue displays an amazing ignorance of the law that is surprising coming from an individual who has worked for OSM for 15 years."
To contact staff writer Ken Ward Jr., call 348-1702.