Federal strip mine regulators have again delayed a decision on whether mountaintop removal coal mines can be reclaimed as "fish and wildlife habitat and recreation lands."

The U.S. Office of Surface Mining last week put off deciding whether to approve a change in state law to legalize the coal industry's favorite post-mining land use for mountaintop removal mines.

In a Federal Register notice published Feb. 9, OSM Director Kathy Karpan said that "a decision on this provision is being deferred."

"OSM requested public comment on a new report concerning an evaluation of approximate original contour and post-mining land use in West Virginia," the notice said.

"It is expected that some of the comments received in response to the evaluation will address the proposed revision," the notice said. "Therefore, OSM is deferring a decision on this provision at this time, and will consider any additional comments on the proposed post-mining land use."

In December, OSM issued a report on mountaintop removal that examined approximate original contour and post-mining land use enforcement. That report was supposed to be released in mid-August. The public comment period was extended several times, and officially ended Friday.

Under the 1977 federal Surface Mining Control and Reclamation Act, strip mine operators must generally restore mined land to its "approximate original contour," or AOC. Mountaintop removal mines can be exempted from that requirement, if they propose future development - such as factories, housing developments, schools or public parks - on mined land.

Currently, federal law does not allow mountaintop removal operations to be reclaimed as "fish and wildlife habitat and recreation lands."

Two years ago, the state Division of Environmental Protection proposed a change in state mining law to add fish and wildlife habitat to the approved list of mountaintop removal post-mining land uses.

The state had already been approving permit applications that proposed fish and wildlife habitat, instead of the developments required by federal law.

The U.S. Office of Surface Mining last week put off deciding whether to approve a change in state law to legalize the coal industry's favorite post-mining land use for mountaintop removal mines.

In a Federal Register notice published Feb. 9, OSM Director Kathy Karpan said that "a decision on this provision is being deferred."

"OSM requested public comment on a new report concerning an evaluation of approximate original contour and post-mining land use in West Virginia," the notice said.

"It is expected that some of the comments received in response to the evaluation will address the proposed revision," the notice said. "Therefore, OSM is deferring a decision on this provision at this time, and will consider any additional comments on the proposed post-mining land use."

In December, OSM issued a report on mountaintop removal that examined approximate original contour and post-mining land use enforcement. That report was supposed to be released in mid-August. The public comment period was extended several times, and officially ended Friday.

Under the 1977 federal Surface Mining Control and Reclamation Act, strip mine operators must generally restore mined land to its "approximate original contour," or AOC. Mountaintop removal mines can be exempted from that requirement, if they propose future development - such as factories, housing developments, schools or public parks - on mined land.

Currently, federal law does not allow mountaintop removal operations to be reclaimed as "fish and wildlife habitat and recreation lands."

Two years ago, the state Division of Environmental Protection proposed a change in state mining law to add fish and wildlife habitat to the approved list of mountaintop removal post-mining land uses.

The state had already been approving permit applications that proposed fish and wildlife habitat, instead of the developments required by federal law.

A Gazette investigation last year found at least 23 such permits that covered 11,000 acres, or 17 square miles, of land across the state.

A federal court lawsuit over mountaintop removal alleges that DEP has established a pattern and practice of approving permits with illegal post-mining land uses, such as fish and wildlife habitat.

The OSM report published in December also found that DEP had improperly issued fish and wildlife habitat mountaintop removal permits. OSM ordered the state to stop issuing such permits until the federal agency decided whether to approve the state law change.

In October 1997, OSM Charleston field office Director Roger Calhoun wrote to DEP to say federal officials probably would not approve the change.

Since then, the coal industry has complained to Karpan about how Calhoun's staff handled the issue. After those complaints, OSM reopened the public comment period on the proposed change in state law.

John Ailes, chief of the DEP Office of Mining and Reclamation, said his agency just wants OSM to make a decision one way or the other.

"We'd like to see what the lay of the land is, and the sooner the better, for everyone," Ailes said Tuesday.