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.