I’m starting to wonder if Clem Guttata at West Virginia Blue just wants to make work for me. He keeps asking good questions about coal, climate change and mountaintop removal, and I can’t help but try to answer them.. His latest was this:
Which local, state, or federal regulatory bodies are responsible for defining and enforcing rules about returning Mountaintop Removal sites to Approximate Original Contour (AOC)? What can be done to force those agencies to do their job?
On one level, the answer is simple: The U.S. Office of Surface Mining and the West Virginia Department of Environmental Protection (at least in West Virginia — in other states, it would be their local regulatory authority). Those are the agencies who write the rules. As for how to get them to do their jobs … that’s beyond the scope of one little blog post.
WVDEP officials tried years ago to more clearly define AOC, something they said was needed if they were ever to enforce the rule. But OSMRE stopped the state from doing so, and has repeatedly delayed any plans for a federal rulemaking that would help clarify the term.Â West Virginia, though, has adopted its own AOC formula, and most experts think that has resulted in a reduction in the size of valley fills that bury streams.
But, as the rest of the W.Va. Blue post points out, this AOC issue is complicated and is a subject worth more explanation, because it gets to part of the heart of the problem with the way mountaintop removal has been regulated in Appalachia:
Significant damage occurs because of a lack of returning landscape close enough to the original contour.Â Additional damage happens because original geological structures that filter water are disrupted. Even more damage occurs when eco-systems dependent on the original contour and the geological stucture turn out to no longer be viable.
Putting aside the larger question if the land can ever be restored to original condition, it is becoming increasingly obvious that the lack of returning mountaintop removal sites as close as possible to the original contour is the starting point for major damage to fragile ecological systems that developed over thousands of years.
So here goes my effort to explain a little bit of the background of this important issue:
Despite all the talk from coal industry folks and Friends of Coal like Gov. Joe Manchin, AOC is the heart of the federal Surface Mining Control and Reclamation Act.Â In general, all surface mines are supposed to be put back the way they were before mining, reclaimed to their “approximate original contour.” The law defines that as:
… That surface configuration achieved by backfilling and grading of the mined area so that the reclaimed area, including any terracing or access roads, closely resembles the general surface configuration of the land prior to mining and blends into and complements the drainage pattern of the surrounding terrain, with all highwalls and spoil piles eliminated.
Under the law, Congress allowed mine operators a limited exception. They could leave the land flat, or gently rolling, but only if they submitted a post-mining development plan that called for improving the site — and leaving some of value to the community behind, such as a school, factory, or public park.
But, as I reported more than a decade ago in my original Mining the Mountains series, regulators dropped the ball in two specific areas that left mountaintop removal operators to do pretty much whatever they wanted.
First, the WVDEP and OSMRE ignored the post-mining land use and development requirements for mines that sought AOC variances. They allowed companies to get variances without submitting proper post-mining development plans. But that’s another story.
Second, and on point here, both federal and state regulators never really defined AOC — which meant companies could propose just about any old post-mining land configuration they wanted, and it got approved as meeting AOC.
I documented this is a story published on May 3, 1998. Among other things, I explained:
Giant earth-moving machines chop hundreds of feet off the tops of mountains. Rather than go to the time and expense of putting the mountains back – a task some say isn’t possible, anyway – mine operators dump millions of tons of rock and earth into nearby valleys.
Rugged hills and hollows of Boone, Logan, Mingo and other Southern coal counties are flattened, or replaced with a few gently rolling hills. Hundreds of miles of streams are buried, or replaced by manmade diversion ditches.
… But regulators also hesitate to push companies to return these mines to their approximate original contour.
State environmental officials say that a vague legal definition of approximate original contour often ties their hands.
“‘Closely resembles the general surface configuration’ – who the hell knows what that means?” said John Ailes, chief of the DEP Office of Mining and Reclamation.
“Nobody has ever defined it,” Ailes said. “What’s AOC to you might not be AOC to me. That is truly difficult for the agency. We’re forced to make these interpretations without any guidance.”
While mountaintop-removal mining – meant to be the exception – becomes the rule, federal officials have done little to address the issue.
Top U.S. Office of Surface Mining officials declined requests by their own inspectors for more concrete guidance on what constitutes approximate original contour. In fact, OSM several years ago issued a ruling that made the term more vague.
And, in more than 20 years of keeping watch on state regulators, OSM has never fully examined how well the West Virginia DEP handles AOC and mountaintop-removal exemptions during its permitting process.
OSMRE came off especially bad in this story, because even when the WVDEP tried to define AOC more clearly, federal officials told them to stop:
For years, state regulators policed mountaintop-removal mines under a somewhat informal, “50-foot rule.”
Mine operators were required to return mountains to within 50 feet of their original elevation to meet the approximate original contour standard. If the post-mining elevation differed by more than 50 feet, companies were required to apply for an AOC variance.
The rule was never approved by the Legislature, as most such policies must be, but was included in a handbook given to permit reviewers and mine inspectors.
State officials threw out that rule sometime in late 1992 or early 1993 because an October 1992 memo from the OSM office in Morgantown contained a passing reference to problems with the state’s rule.
“For mountaintop-removal mining, there is no minimum or maximum elevation requirement to which the final contour must be restored after mining,” the memo stated. “There could be as much as 200 or 300 feet difference between the pre-mining and post-mining elevations.”
[As an aside, the guy who wrote that memo, longtime OSM staffer Brent Walquist, later became head of the agency for the Bush administration].
DEP officials say this change paved the way for huge mountaintop-removal mines.
Under the change, operators could cut hundreds of feet off the tops of hills, dump spoils into valleys, and level off mined-out land – all under the guise of meeting the approximate original contour standard.
“The definition of AOC changed,” said Lewis Halstead, assistant DEP chief for permitting. “We wanted to do the 50-foot rule. We changed to what OSM directed and this is the result.”
OSMRE later issued reports that backed up what I had found in the WVDEP permit files, and promised to take steps to fix the problems. Meanwhile, citizen groups pushed with lawsuits and other actions, and forced WVDEP to come up with a negotiated formula for what constitutes AOC. You can read more about the formula here, in a presentation by an industry consultant to a WVDEP-sponsored workshop.
Industry insiders and observers credit the WVDEP formula with being at least partly responsible for a reduction in the size of valley fills. WVDEP Secretary Randy Huffman touted it a few weeks ago in U.S. Senate testimony, saying the state’s formula is “used to verify valley fills are as small as physically possible.”
Last year, OSMRE started a project to review how well this state approach is working. We’re still waiting for a report on that review.
Finally, as I’ve written before, the lack of a federal AOC definition or formula has been one area where Congressman Nick J. Rahall has been very critical of OSMRE. During a hearing held in 2007 to commemorate the 30th anniversary of SMCRA, Rahall grilled agency officials about this:
But does OSM have a definition of AOC, approximate original contour?
OSM’s Glenda Owens:
We do not have a definition at this point. We are, in fact, working on a definition, looking into whether the definition at this time is appropriate.
Thirty years, and we are still looking for a definition of AOC.
Of course, after his 2007 Committee on Natural Resources hearing and his grilling of OSMRE on the issue, Rahall promised he was going to be reviewing hearing testimony and considering reforms to the way surface mining is regulated. So far, I haven’t heard about Rahall proposing a bill to force OSMRE’s hand on the AOC issue …