"We're going to look at it and try to work with OSM," Ailes said Monday. "We need to work on the inconsistencies. Everybody knows what they are and we need to make sure we don't have them down the road."
The report has been toned down considerably after being reviewed by the Interior Department's Office of Solicitor.
For example, an internal drafted dated Aug. 15 stated that coal operators "may be indiscriminately dumping excess spoil into valley fills for convenience or economic reasons, rather than for what is needed to accomplish the postmining land use."
The new version states only that some operators are putting more waste rock and earth into valley fills than needed to account for swelling of material once it is loosened during mining. "Both sites with and without AOC variances placed more material in the fill than could be accounted for by just the swell factor, which ranged from 20 percent to 40 percent," the new report stated.
On the key issue of more clearly defining "approximate original contour," the OSM did not make a decision.
"Because mountaintop-removal operations also exist in surrounding states in the region, OSM invites comments on whether it should issue further guidance on AOC as it relates to mountaintop-removal operations throughout the region," the report said.
"Finally, OSM also invites public comments on whether, if further guidance is deemed appropriate, it should be developed during a formal rulemaking amending OSM's regulations, or through other measures, such as a policy statement or an amendment to the West Virginia program," it said.
OSM also dodged the issue of whether valley fills must be considered part of the area that has to be returned to its approximate original contour. The agency seemed to take both sides of the issue.
"Valley fills are outside the mined area to which AOC applies," the report said. "Therefore, valley fills themselves are not subject to a requirement to achieve AOC.
"Nevertheless, valley fills can affect the achievement of AOC in the mined area," it said. "That is, if the raising of a valley floor is such that, when compared to the reduction in elevation of the mountain, it significantly alters the premining topography, the change of configuration of the mined area in relation to the surrounding terrain is a useful indicator of whether AOC has been achieved."
The OSM report also stopped short of ordering the state to fix some regulatory problems.
On the issue of weaknesses in state mining rules, for example, the OSM said it "has not determined the extent to which the above differences have contributed to the inadequate documentation justifying AOC variances and to unauthorized postmining land uses."
"Future discussions with WVDEP will identify the source of the problems and, if they are related to the approved program language, OSM will provide the state a notification requesting that the language be changed to correct the deficiencies," it said. "If, however, the problems are merely the result of inadequate implementation of the current state program requirement, OSM will work with WVDEP to put in place procedural revisions to prevent further occurrences."
The OSM left most of the solutions for consideration during a public-comment period, which starts today and runs through Jan. 15.
Comments may be submitted to OSM through Patricia Hairston, Office of Surface Mining, 1951 Constitution Ave. N.W., Washington, DC 20240, or via e-mail to PHAIR...@osmre.gov.
Copies of the report are available on the Internet at http://www.osmre.gov or at the OSM Charleston field office, 1027 Virginia St. E.