In a new report to be released today, federal regulators tone down their criticism of mountaintop-removal mining, but still conclude that coal operators who use that method have skirted strip mining laws.
U.S. Office of Surface Mining investigators also found that state regulators have not strictly followed the law in granting permits to huge mountaintop-removal mines, according to a copy of the report.
The new report, the result of a nine-month study, identifies many of the same permitting oversights as an internal OSM draft completed in August.
But it describes those problems in a much less negative tone, and does not go nearly as far in proposing solutions.
"Some of the problems are due to the program regulations themselves and others are the result of the state's implementation of those requirements," the report stated.
"While these problems do raise concern, OSM believes that they can be resolved," it said. "There was no evidence of any significant environmental problems at any of the sample sites."
The OSM launched the study in March, and expanded it in May, because of growing citizen complaints about mountaintop-removal mining's effects on the environment and coalfield communities.
A final report was scheduled to be completed in mid-August, but its release has been delayed numerous times since then.
Much of the report to be released today was rewritten by John Leshy, the chief lawyer for the U.S. Department of Interior, and by Kay Henry, one of his top assistants.
The report focuses on whether mountaintop-removal mines have complied with federal law requirements for "approximate original contour," or AOC, reclamation variances and rules that mandate coal operators plan development for land flattened by mining.
Among the problems cited in the new report:
The state Division of Environmental Protection's evaluation of whether mine reclamation plans satisfy AOC requirements "are either applied inconsistently or are overly broad, resulting in varied interpretations of what constitutes AOC."
"Specifically, OSM believes that large, postmining changes in elevation in relation to the premining relief, the amount and location of material placed off the mined area, and land configuration (land shape or form) should be given more attention in AOC determinations," the report stated.
The DEP has approved mountaintop removal permits that proposed post-mining land uses not allowed under federal law, including "forestry" and "fish and wildlife habitat."
Permits have also been approved that did not meet all of the tests for approving designated postmining land uses. For example, mines that proposed to be reclaimed for "commercial woodlands" did not contain a showing that flat or gently rolling terrain was needed for commercial timber cutting.
State strip mine law and regulations are weaker than federal requirement in three important ways.
First, state rules do not require coal operators to prove there is a market and need for proposed postmining land uses. Second, state regulations allow "woodlands," as a mountaintop removal postmining land use, whereas federal rules don't allow it. Third, the state allows a postmining land use of "public use" instead of the more narrow "public facility" allowed by federal law.
OSM officials have declined comment on the report until it is formally released today. Press calls to the OSM field office in Charleston are being referred to Al Klein, the agency's regional director in Pittsburgh.
John Ailes, chief of the DEP Office of Mining and Reclamation, said his agency was waiting on a final copy of the report to review.