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This article originally provided by The Charleston Gazette

Mine operators not restoring mountains, OSM report finds

CHARLESTON, W.Va. -- Coal operators in Southern West Virginia are not restoring large strip-mining sites to their "approximate original contour," despite a state policy change meant to require such reclamation, according to a previously unpublished federal government report.

U.S. Office of Surface Mining investigators found that reclaimed mining sites were left much lower in elevation than required to meet the approximate original contour formula spelled out in their approved permit applications.

In one of the eight instances examined by OSM -- the most extreme example in the federal agency study -- the mine operator left the land more than 200 feet lower than required by a permit approved by the state Department of Environmental Protection.

Under federal law, mine operators must generally put strip mine sites back the way they were prior to mining. The law calls this "approximate original contour," or AOC. In limited circumstances, operators that proposed post-mining development can leave mined sites flattened or with gently rolling hills.

But OSM investigators found mine operators did not return the land to its original topography, or to the configuration spelled out in approved permit applications. Similar violations existed at both sites where AOC was required and where operators obtained variances allowing them to avoid that standard.

"At virtually every site, there were certain areas where the actual measured ground surface was significantly above or below the proposed lines shown in the permit," said a draft of the OSM report obtained by the Sunday Gazette-Mail.

The OSM report adds to growing criticism of mountaintop removal coal mining and the way the practice is regulated by the DEP under Gov. Joe Manchin. Environmental groups have asked the U.S. Environmental Protection Agency to take over enforcement of the Clean Water Act in West Virginia, citing largely broad gaps in the way DEP polices water pollution from coal mining.

OSM engineers and inspectors completed a draft of their report in June 2008, but the agency has never finalized the document or made it public.

Roger Calhoun, director of the OSM's Charleston field office, said similar studies are underway in Kentucky, Virginia and Tennessee, and his office has been trying to compare notes with OSM officials in those states.

Also, Calhoun said Friday, top OSM officials in Washington have decided to make AOC enforcement a national priority that all agency regional offices will focus on.

As for his office's report, Calhoun said its release has also been delayed as he tries to negotiate with DEP to come up with a list of actions the state will take to resolve the problems uncovered by OSM investigators.

"We would prefer to have a report with an action plan, rather than just a list of recommendations," Calhoun said.

The AOC reclamation standard is the heart of the 1977 federal Surface Mine Control and Reclamation Act. Under the law, mine operators must put rock and dirt back so that the site "closely resembles the general surface configuration of the land prior to mining." Variances to this are allowed, but only in limited situations where mining companies propose post-mining plans for schools, factories, commercial sites or public parks.

But as mountaintop removal grew in the 1990s, state and federal regulators abandoned any clear guidelines for defining when a mining proposal conformed with AOC. A special report by the Gazette-Mail, published in 1998, detailed this lack of enforcement. Later, OSM investigators confirmed the newspaper's findings.

Today, though, there is still no clear, nationwide rule from OSM for how to apply the AOC standard. In July 2007, Acting OSM Director Glenda Owens told a House committee hearing that her agency was working on such a rule. But no such rule has yet been published, or even listed among OSM's rulemaking priorities.

"Regulatory clarification is needed that 'approximate original contour' means both that the reclaimed are should resemble the area before mining in both aspect, or slope, and elevation," Tom FitzGerald of the Kentucky Resources Council told OSM officials at an annual meeting in May.

As part of a lawsuit settlement with environmentalists in West Virginia, the DEP wrote a new formula that aims to define when a mining proposal meets AOC and, at the same time, optimize the size of valley fill waste piles.

Industry experts and observers generally credit the AOC formula with helping to reduce the size of valley fills over the last decade.

During testimony last month to Congress, DEP Secretary Randy Huffman touted the formula, saying it is used "to verify valley fills are as small as physically possible." But Huffman also criticized EPA, saying the agency was wrongly pushing state officials to require AOC reclamation, instead of allowing more land to be flattened for post-mining development.

"This opportunity is very important in the Southern West Virginia coal-mining region, where no flat land exists," Huffman told a Senate Committee on Environment and Public Works subcommittee on June 25.

But Joe Lovett, director of the Appalachian Center for the Economy and the Environment, has told Congress that there is little post-mining development of mountaintop removal sites across Southern West Virginia.

"The post-mining land is in isolated mountain areas, the land is unstable for building and it will no longer support native vegetation," Lovett said during a July 2007 hearing. "In short, mountains and valleys have been changed dramatically in contour so that they resemble no surface configuration on Earth and the land is useless for development."

Lovett also explained the connections between AOC enforcement and environmental impacts of large-scale strip mines.

"If mines are restored to AOC, the disturbed area is smaller, valley fills and stream impacts are reduced," Lovett said. "Remarkably, there are few, if any, large surface mines in Appalachia that comply with this basic requirement.

"Instead, mining operators, with the acquiescence of OSM, thumb their noses at the law and create monstrous valley fills and sawed off mountains that more closely resemble the surface of the moon than our lush, green hills," Lovett said.

Even some supporters of mountaintop removal, such as House Natural Resources Chairman Nick J. Rahall, D-W.Va., have been critical of the lack of state and federal enforcement of the AOC standard.

"Thirty years, and we are still looking for a definition of AOC," Rahall said at his committee's 2007 hearing.

The National Mining Association, meanwhile, has touted tougher state regulations on AOC and post-mining land use variances as proof that mountaintop removal is being properly regulated.

But except for the previously unreleased OSM report, there has not been a public accounting of whether these new rules and regulations were doing any good.

Starting in late 2007, OSM engineers and inspectors -- working with DEP officials -- examined a sample of large mining permits. Their goal was to see if they were returned to AOC.

OSM investigators studied four permits that were supposed to meet the AOC rules and four that received AOC variances.

On both types of permits, federal officials found that the final reclamation configuration did not match that spelled out in the DEP-approved permits. In some instances, post-mining elevations were slightly higher than required by the permits.

But in most cases, mine operators left the land much lower than required by their permits. The elevation changes ranged from 24 feet to 205 feet, according to the draft OSM report.

"Comparison of field measured data with approved mine plan data showed that at virtually every site, there were certain areas where the actual measured ground surface was significantly above or below the proposed lines shown in the permit," the OSM report concluded.

Calhoun said that further review by OSM officials discovered some errors in their numbers, but that those errors did not change the overall thrust of the report.

OSM recommended that DEP and the industry come up with a better system for measuring post-mining configuration, perhaps using surveying or GPS data. Also, federal officials said, DEP "should adopt a system similar to the one used in this study to spot check backfilling and grading of mountaintop surface mining operations."

OSM also noted that DEP continues to do a poor job keeping track of how much of the land that is strip mined is reclaimed to AOC or for some post-mining development.

"The percentage of reclaimed land under the AOC variances by post-mining land use type, adequate infrastructure, and current functional public or private development is not tracked in such detail," the OSM report found.

"The only available data rendered is the allowed mining methods, variance and land use," the report said. "Mountaintop removal variance and steep slope variance permits can be rendered for permitted current acres."

Also, the OSM report said, "there continues to be confusion" in DEP permits about the "type of mining and type of variance" issued to each mining operator.

Tom Clarke, director of DEP's Division of Mining and Reclamation, said he is waiting on a report from one of his staff on ways to address the issues raised in the OSM report. But Clarke also downplayed OSM's findings, saying federal officials found only "minor differences" between permits and on-the-ground reclamation results.

The on-the-ground reclamation found by OSM "might be considered within the acceptable range of tolerance, considering you are sculpting the ground with a bulldozer, not Michelangelo doing Venus de Milo or something."

Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.

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