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Report mutes mining criticism

In a new report to be released today, federal regulators tone down their criticism of mountaintop-removal mining, but still conclude that coal operators who use that method have skirted strip mining laws.U.S. Office of Surface Mining investigators also found that state regulators have not strictly followed the law in granting permits to huge mountaintop-removal mines, according to a copy of the report.The new report, the result of a nine-month study, identifies many of the same permitting oversights as an internal OSM draft completed in August.But it describes those problems in a much less negative tone, and does not go nearly as far in proposing solutions."Some of the problems are due to the program regulations themselves and others are the result of the state's implementation of those requirements," the report stated."While these problems do raise concern, OSM believes that they can be resolved," it said. "There was no evidence of any significant environmental problems at any of the sample sites."The OSM launched the study in March, and expanded it in May, because of growing citizen complaints about mountaintop-removal mining's effects on the environment and coalfield communities.A final report was scheduled to be completed in mid-August, but its release has been delayed numerous times since then.Much of the report to be released today was rewritten by John Leshy, the chief lawyer for the U.S. Department of Interior, and by Kay Henry, one of his top assistants.The report focuses on whether mountaintop-removal mines have complied with federal law requirements for "approximate original contour," or AOC, reclamation variances and rules that mandate coal operators plan development for land flattened by mining.Among the problems cited in the new report:The state Division of Environmental Protection's evaluation of whether mine reclamation plans satisfy AOC requirements "are either applied inconsistently or are overly broad, resulting in varied interpretations of what constitutes AOC." "Specifically, OSM believes that large, postmining changes in elevation in relation to the premining relief, the amount and location of material placed off the mined area, and land configuration (land shape or form) should be given more attention in AOC determinations," the report stated.The DEP has approved mountaintop removal permits that proposed post-mining land uses not allowed under federal law, including "forestry" and "fish and wildlife habitat."Permits have also been approved that did not meet all of the tests for approving designated postmining land uses. For example, mines that proposed to be reclaimed for "commercial woodlands" did not contain a showing that flat or gently rolling terrain was needed for commercial timber cutting.
State strip mine law and regulations are weaker than federal requirement in three important ways.First, state rules do not require coal operators to prove there is a market and need for proposed postmining land uses. Second, state regulations allow "woodlands," as a mountaintop removal postmining land use, whereas federal rules don't allow it. Third, the state allows a postmining land use of "public use" instead of the more narrow "public facility" allowed by federal law.OSM officials have declined comment on the report until it is formally released today. Press calls to the OSM field office in Charleston are being referred to Al Klein, the agency's regional director in Pittsburgh.
John Ailes, chief of the DEP Office of Mining and Reclamation, said his agency was waiting on a final copy of the report to review."We're going to look at it and try to work with OSM," Ailes said Monday. "We need to work on the inconsistencies. Everybody knows what they are and we need to make sure we don't have them down the road."The report has been toned down considerably after being reviewed by the Interior Department's Office of Solicitor.
For example, an internal drafted dated Aug. 15 stated that coal operators "may be indiscriminately dumping excess spoil into valley fills for convenience or economic reasons, rather than for what is needed to accomplish the postmining land use."The new version states only that some operators are putting more waste rock and earth into valley fills than needed to account for swelling of material once it is loosened during mining. "Both sites with and without AOC variances placed more material in the fill than could be accounted for by just the swell factor, which ranged from 20 percent to 40 percent," the new report stated.On the key issue of more clearly defining "approximate original contour," the OSM did not make a decision."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 report said."Finally, OSM also invites public comments on whether, if further guidance is deemed appropriate, it should be developed during a formal rulemaking amending OSM's regulations, or through other measures, such as a policy statement or an amendment to the West Virginia program," it said.OSM also dodged the issue of whether valley fills must be considered part of the area that has to be returned to its approximate original contour. The agency seemed to take both sides of the issue."Valley fills are outside the mined area to which AOC applies," the report said. "Therefore, valley fills themselves are not subject to a requirement to achieve AOC."Nevertheless, valley fills can affect the achievement of AOC in the mined area," it said. "That is, if the raising of a valley floor is such that, when compared to the reduction in elevation of the mountain, it significantly alters the premining topography, the change of configuration of the mined area in relation to the surrounding terrain is a useful indicator of whether AOC has been achieved."The OSM report also stopped short of ordering the state to fix some regulatory problems.On the issue of weaknesses in state mining rules, for example, the OSM said it "has not determined the extent to which the above differences have contributed to the inadequate documentation justifying AOC variances and to unauthorized postmining land uses.""Future discussions with WVDEP will identify the source of the problems and, if they are related to the approved program language, OSM will provide the state a notification requesting that the language be changed to correct the deficiencies," it said. "If, however, the problems are merely the result of inadequate implementation of the current state program requirement, OSM will work with WVDEP to put in place procedural revisions to prevent further occurrences."The OSM left most of the solutions for consideration during a public-comment period, which starts today and runs through Jan. 15.Comments may be submitted to OSM through Patricia Hairston, Office of Surface Mining, 1951 Constitution Ave. N.W., Washington, DC 20240, or via e-mail to of the report are available on the Internet at or at the OSM Charleston field office, 1027 Virginia St. E. 
To contact staff writer Ken Ward Jr., call 348-1702.
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