WELCOME to the action, OSM. After years of sitting on the sidelines and allowing West Virginia regulators to ignore important federal rules regarding mountaintop-removal mines, the U.S. Office of Surface Mining is finally getting into the act.
A draft report detailing a six-month study of West Virginia's regulation of large-scale surface mining verified many of the problems found by reporter Ken Ward Jr. in his continuing Mining the Mountains series.
The OSM report reinforced Ward's latest findings that permits for decapitation mines do not contain required specifications for after-mining land uses.
Further, the report emphasizes that "variances" - which allow coal firms to duck a legal requirement to restore mountains to their "approximate original contour," or AOC - are only to be granted when flattened land is essential for proposed development.
None of the 19 permits reviewed by OSM contained documentation to prove the need or feasibility of suggested post-mining land uses, as required by federal law. Few showed that flattened land was essential for the future use.
This is important, because the severe damage of cutting off crests can be justified only by reusing the sites for genuine development. Failure to restore land to AOC means larger valley fills, because there's more rock and dirt to be disposed of. These valley fills have buried hundreds of miles of West Virginia's streams, wreaking an unknown amount of ecological havoc.
The report complains that operators of mountaintop removal mines - both those that receive AOC variances and those that don't - are "indiscriminately dumping" waste rock and dirt into valleys because it is easier and cheaper than restoring the land.
Unfortunately, the report also indicates that the federal agency won't provide guidance to the state about what actually constitutes approximate original contour, despite state officials' admission that the state's definition is so vague that nobody can say when a site meets AOC.
The illegally appointed director of the state Division of Environmental Protection, Michael Miano, says he does not want a more refined standard. He likes for his permit writers to have "discretion."
That discretion leads to wildly varying results. Mountains that coal companies claim have been returned to AOC may be 40 feet lower than before - or 340 feet lower.
It's clear that the state needs concrete guidelines from OSM.
As Patrick McGinley, an environmental-law professor at West Virginia University, said: "It's up to OSM to define and enforce what constitutes AOC. OSM is ignoring its responsibility and sidestepping the law."
Still, this draft report is a good sign that OSM is finally taking its oversight duty seriously. Mountaintop removal mining is coming under increasing scrutiny, not only from OSM, but also from the U.S. Army Corps of Engineers, which recently agreed to impose a 60-day moratorium on valley fill permits, and the U.S. Department of the Interior, which stalled approval of a huge valley fill of Pigeonroost Branch creek.
The U.S. Environmental Protection Agency is also delaying permits and evaluating the impact of huge valley fills.
This scrutiny is long overdue. Coal companies have been decapitating West Virginia hills with virtual impunity. It's time for that to stop. State and federal regulators must enforce the law.