IT'S ABOUT time. West Virginia's Division of Environmental Protection and its predecessors approved multitudes of mountaintop removal mines with a provision that the flattened land would be used for "fish and wildlife habitat and recreation lands."
The U.S. Office of Surface Mining finally got around to telling the state that such a use is illegal under the 1977 federal Surface Mining Reclamation and Control Act.
In passing SMCRA, Congress allowed decapitation of mountains only if each artificial plateau is used for some beneficial development, such as a "public use facility (including recreational facilities)." State officials pretended that potential hunting land met this requirement. But it doesn't, OSM says. Logically, the federal agency says that some sort of development - campgrounds, parks or amusement areas - open to the public is required to qualify as a "recreational facility."
Second, and more crucial, OSM pointed out that flattening is not necessary for fish and wildlife habitat.
The 1977 law requires coal firms to restore cut-off mountains to their "approximate original contour," unless the company is given a variance after proving it can do something more useful with the land by leaving it flat. In such cases, a firm must show a need for the proposed development, and have financing in hand.
Instead, for 20 years, companies have been lopping off West Virginia crests, hydrospraying a fast-growing mix of scrub plants, and calling the plateau a "fish and wildlife habitat."
DEP and prior agencies allowed this to happen. And OSM, for 20 years, did nothing about it, even though OSM has a statutory obligation to ensure that the law is followed.
DEP didn't even bother to ask for approval from OSM until 1997, despite the fact that program changes are supposed to be OK'd by the federal agencies before they take effect.
OSM should have stepped in before DEP asked. After it asked, we cannot fathom why it took two years to make this common-sense determination.
So, what happens now? What does OSM propose to do with 20 years of illegal permits? Go back and require real development? Fat chance of that happening. In its new report, OSM says that reclamation bonds should not be released until approved uses of the sites have been achieved.
This is a problematic and politically charged approach, although it is necessary unless OSM wants to continue ignoring blatant violations of the law.
One small consolation is the hope that from now on companies will be forced to follow the law and leave behind something truly useful and beneficial to surrounding communities.
Had OSM and DEP been doing their jobs, Logan County wouldn't be facing economic turmoil because of the potential closing of a single mine, for which the permit was unlawful.