New OSM report doesn't answer important question
A long-awaited federal study of mountaintop removal coal mining has left unanswered what many experts believe is the most important question about the controversial practice:
How does the federal law's "approximate original contour" reclamation requirement apply to huge mines that literally level Appalachian hills and hollows?
In its inch-thick report, released Dec. 8, the U.S. Office of Surface Mining dodged the question.
Report authors wrote that, in West Virginia, the AOC rules are "either applied inconsistently or are overly broad."
OSM, however, declined to offer concrete suggestions on fixing the problem. The agency said it didn't want to write a more detailed definition of AOC, as state regulators and environmentalists had suggested. Instead, OSM put the issue out for still more public comment.
"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 agency's report said.
"Finally, OSM also invites comments on whether, if further guidance is deemed appropriate, it should be developed through a formal rulemaking amending OSM's regulations, or through other measures, such as a policy statement or an amendment to the West Virginia program," the report said.
OSM Director Kathy Karpan has refused to answer questions about her agency's report.
Mountaintop removal mining is different from old-time strip mines that peeled coal off the sides of hills.
Mountaintop removal blasts off entire hilltops to reach valuable low-sulfur coal seams underneath. Leftover rock and earth is dumped into valleys and hollows, burying streams.
The AOC rule is the heart of the 1977 Surface Mining Control and Reclamation Act. It requires coal operators to return land the way they found it before mining. Under AOC, most strip mines must be reclaimed so they resemble "the general surface configuration of the land prior to mining."
When Congress passed SMCRA, lawmakers allowed mountaintop removal as an exception.
Coal operators could ignore AOC, and flatten out the land. But they could only do so if the flattened or gently rolling land was needed for post-mining development of schools, factories, shopping malls, or public parks. To qualify for AOC variances, coal companies had to submit concrete development plans.
A series of Gazette articles published earlier this year found that the state Division of Environmental Protection has not required most coal companies to get AOC variances or submit required post-mining development plans.
The OSM report found that the newspaper's investigations were correct.
The report said, for example, that "there is not much difference in the characteristics of mines which have been granted AOC variances and those which are to return the land to AOC.
"Additionally, it was found that many sites identified as returning the mined areas to AOC generated nearly as much excess spoil as the sites with an AOC variance," the OSM report said. "The result is that some mines are held to more restrictive postmining land use criteria that other seemingly comparable mines need not meet."
The OSM report also concluded that at least two post-mining land uses routinely approved by the state - "forestry" and "fish and wildlife habitat" - are not allowed for mountaintop removal mines under federal law.
Taken together, these findings mean that coal companies are being allowed to conduct mountaintop removal without meeting the AOC standard, and without proposing post-mining development plans required to receive variances.
Last week, lawyers for the West Virginia Highlands Conservancy added allegations about AOC violations to their federal court lawsuit over DEP's handling of mountaintop removal permits.
The amended complaint alleged that DEP Director Michael Miano "has established a pattern and practice of authorizing permits on the basis of applications that fail to insure that the mine site will be restored to approximate original contour as mandated by" the law and regulations.
"Defendant Miano routinely approves surface mining permits that will not result in reclamation in which the reclaimed areas, including the valley fill areas, closely resemble the general surface configuration of the land prior to mining," the amended complaint stated.
U.S. Rep. Nick Rahall, D-W.Va., put the blame for AOC problems squarely on OSM.
"It is ludicrous to observe that operations which have the character of mountaintop removal mining are being permitted both with and without variances from the approximate original contour reclamation requirement, and then not make strong recommendations that some type of distinction should be made between the two," Rahall said last week.
"I do not want to belabor the point, but I was there," said Rahall, who served on a House-Senate conference committee that wrote the final version of SMCRA.
"And it was clear to us that industry believed at the time that it could not engage in mountaintop removal mining without a variance from the reclamation requirement," Rahall said. "That is why we gave it to them."