AN EVALUATION OF APPROXIMATE ORIGINAL CONTOUR AND POSTMINING LAND USE IN WEST VIRGINIA
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Draft Report: AN EVALUATION OF APPROXIMATE ORIGINAL CONTOUR AND POSTMINING LAND USE IN WEST VIRGINIA |
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Cover letter from Kathy Karpan, Director of the Office of Surface Mining
Executive Summary
1. Purpose of this Report
2. Proposed Conclusions and Recommendations
Glossary of Mining Terms
1. State Program
2. Approximate Original Contour (AOC)
3. Types of Mining Applicable to this Report
4. Mining Related Terms
Chapter A. An Evaluation of Approximate Original Contour and Postmining Land Use
in West Virginia
1. Introduction
2. Purpose and Scope
3. Federal Requirements
a. General AOC Requirements
1. Statute
2. Legislative History
3. OSM's Treatment of AOC in Rules
b. Federal Requirements Relating to Mountaintop-
Removal Mining Operations
c. Federal Requirements Pertaining to Steep-Slope Mining Operations
4. State Program Requirements
a. General AOC Requirements
b. State Requirements Relating to Mountaintop-Removal Mining
Operations
c. State Requirements Pertaining to Steep-Slope Mining Operations
5. Review Methodology
a. Site Selection
b. Work Plan
6. Findings and Analyses
a. Approximate Original Contour (AOC)
b. Mine Classification and Inventory
c. Mountaintop-Removal Mining Operations with AOC Variances
1. Approved Program Language Differences
2. Observed Postmining Land Uses
3. Additional Permits Examined in Order to Test Findings
d. Steep-Slope Mining Operations with AOC Variances
1. Appropriateness of Variance Type
2. Program Language Differences
3. Observed Postmining Land Uses
4. Additional Permits Examined in Order to Test Findings
e. Site Reclamation and Utility
7. Proposed Conclusions and Recommendations
a. Approximate Original Contour (AOC)
b. Mine Classification and Inventory
c. Mountaintop-Removal Mining Operations With AOC Variances
1. Approved Program Language Differences
2. Postmining Land Uses Not Authorized by the State Program
3. Inadequate Permit Documentation
d. Steep-slope Mining Operations With AOC Variances
1. Appropriateness of Variance Type
2. Program Language Differences
Chapter B. Evaluation Reports, Cross Sections, and Photographs (Photographs available in printed or .pdf format)
1. Cedar Coal Company's S-201-76 permit area
2. Concord Coal Corporation's/Logan County Airport Contractors'
S-198-77 permit area
3. Hobet Mining, Inc.'s S-128-78 permit area
4. Consolidation Coal Company's S-142-78 permit area
5. Cannelton Industries, Inc.'s S-175-78 permit area
6. Donnaway Coal, Inc.'s S-47-84 permit area
7. Hobet Mining, Inc.'s S-5062-86 permit area
8. Chafin Branch Coal Company's S-5082-86 permit area
9. War Eagle Construction Company's S-5046-88 permit area
10. Cyprus Kanawha Corporation's S-6020-89 permit area
11. Appalachian Mining Company, Inc.'s S-3006-91 permit area
12. High Power Energy's S-3013-91 permit area
13. Arch of West Virginia, Inc.'s/Apogee Coal Company's S-5006-91
permit area
14. Heartland Coal Company's S-5055-92 permit area
15. Peerless Eagle Coal Company's S-3021-93 permit area
16. Catenary Coal Company's S-3035-93 permit area
17. MidVol Leasing, Inc.'s S-4010-96 permit area
18. Hobet Mining, Inc.'s S-5003-96 permit area
19. Independence Coal Company, Inc.'s S-5023-96 permit area
Appendices
Appendix I. OSM/WVDEP Oversight Work Plan (Available in printed or .pdf format)
Appendix II. OSM Directive INE-26, Approximate Original Contour (Available in printed or .pdf format)
Appendix III. List of West Virginia Mountaintop Permits as of June 1, 1998
Appendix IV. WVDEP List of Mountaintop and Area Mining Permits Used to Select
Sites for Evaluation (Available in printed or .pdf format)
Appendix V. List of Sites Selected for Review by Permit Number (Available in printed or .pdf format)
Appendix VI. List of Sites Selected for Review by Mining Categories
Appendix VII. West Virginia Survey Form (Available in printed or .pdf format)
Appendix VIII. Additional Sites Selected for Review (Available in printed or .pdf format)
EXECUTIVE SUMMARY
(See the "Glossary of Mining Terms," for definitions
of the terms used in this document.)
1. PURPOSE OF THIS REPORT
The Office of Surface Mining's (OSM) Charleston Field Office (CHFO) has prepared this oversight
report on portions of the West Virginia surface mining program, which was approved on January 21,
1981, under the Federal Surface Mining Control and Reclamation Act of 1977 (SMCRA). OSM
headquarters and the Office of the Solicitor have participated in the development of the proposed
conclusions and recommendations in this report. The West Virginia Division of Environmental
Protection (WVDEP), which administers the regulatory program in West Virginia, assisted OSM in
gathering the data for this report, and also, to some extent, contributed to the analysis. The proposed
conclusions and recommendations are, however, OSM's.
This document addresses mountaintop operations, that is, those mines that remove all or a large
portion of a coal seam or seams running through the upper fraction of a mountain or ridge. The
number of mountaintop operations has risen dramatically in recent years, both in number and scale,
which may help explain the upsurge in the public's interest in such mines. It was in response to the
extensive public interest in mountaintop operations that the CHFO and WVDEP included this topic
in the general oversight agreement they signed on November 13, 1997.
Although the media have frequently categorized all mountaintop operations as "mountaintop-
removal," that is only one of three types of mountaintop operations addressed in this report (see
glossary for definitions). The three types are: (1) mountaintop-removal with a variance from
approximate original contour (AOC), (2) mines which remove all of the coal seam or seams in the
upper fraction of a mountain but which return the land to AOC, and (3) steep-slope mines with an
AOC variance. Under SMCRA, as well as both Federal and State regulations, all mines are
required to return the mined land to AOC, unless a variance is granted by the regulatory authority,
which, in West Virginia, is the WVDEP.
This report focuses on two kinds of issues:
First, does WVDEP currently use appropriate standards in evaluating whether a
particular postmining land configuration constitutes a return to AOC? This report
describes various characteristics of land after mining in terms of elevation changes,
creation of valley fills, creation of level sections, and other general descriptive
information. The issue is how any of those characteristics, either by themselves or in
combination, may be used in determining if AOC has been achieved.
Second, in situations where WVDEP has determined that a waiver from AOC
requirements is necessary, has it required appropriate postmining land uses in
granting the waiver?
Mountaintop operations raise a number of other complex issues that are partially or wholly outside
the confines of SMCRA. These are currently under study not only by OSM but also by other
Federal agencies. One of the matters that both OSM and other Federal agencies are continuing to
examine is the way mountaintop operations affect local streams through construction of valley fills.
The matter of valley fills involves the overlapping jurisdiction of several Federal agencies including
OSM, the U.S. Fish and Wildlife Service, the U.S. Environmental Protection Agency, and the U.S.
Army Corps of Engineers. A task force is currently considering how Federal agencies will
coordinate to address various issues associated with valley fill mining practices. Moreover,
litigation has recently been filed that raises questions about compliance with the Clean Water Act in
connection with these operations. Bragg v. Robertson, No. 98-636 (S.D. W. Va.) (complaint filed
July 16, 1998). Other state and federal land use and environmental laws, regulations, and policies
might affect mountaintop operations. Some people may oppose such operations on philosophical
grounds, even if they are fully in compliance with all laws and regulations. In order to provide an
accurate picture of the mountaintop operations in West Virginia, this report includes some data
about the size of the valley fills created in connection with the operations that served as a basis for
this report. See table A-5 and the individual description reports of the sampled sites in chapter B.
The report does not address the broader issues relating to valley fills, but instead, it focuses solely on
the requirements of SMCRA and its implementation in West Virginia.
An important question to ask is why, rather suddenly, has the controversy emerged about
mountaintop operations and whether SMCRA and other laws are adequate to deal with them. There
are several reasons. One has to do with the terms of SMCRA itself. While SMCRA is a wide-
ranging law, it does not clearly answer all the questions that are raised. There are some
uncertainties about how to apply the AOC requirements, and how broadly or narrowly the
postmining land use limitations should be construed. There is the related question about how much
leeway SMCRA gives the states to address these issues. Evolution in the coal industry has also
contributed to the relatively recent emergence of the issue. With the application of new Clean Air
Act restrictions, West Virginia's high quality coal has become more desirable in the marketplace.
Technological advances that permit larger operations operating in mountainous Appalachia are also
a contributing factor. Finally, until very recently, the regulatory issues have not generally been
raised in the permitting processes by other governmental agencies, by environmental groups, or by
other citizens. The explanation for why it has taken so long for the issue to come to the fore, is
therefore, complex.
OSM is making this report widely available, and solicits public comment on it, particularly its
proposed findings and recommendations. OSM seeks public input on fair resolution of any issues,
particularly as they relate to permits issued in the past several years. Details on how and where to
submit comments may be found in the Introduction to this report.
2. PROPOSED CONCLUSIONS AND RECOMMENDATIONS
OSM has concerns with the administration of various aspects of the West Virginia program. Some
of the issues have existed since the early days of the program, while other concerns relate to the
recent increase in the number and size of mountaintop permits. Decisions under the State program,
such as permitting actions, have been made with full public involvement without any questions or
concerns being raised by any party.
In general, OSM proposes that any reforms that result from this report should be applied
prospectively, and that existing mining operations, some of which were initially permitted many
years ago, be altered only to the extent practicable. OSM requests that in addition to those permits
which were examined for this report, WVDEP review all existing permits with AOC variances and
apply these reforms prospectively.
After analyzing the information gathered during the oversight process, the following conclusions and
recommendations were developed:
OSM's oversight evaluation indicates an industry trend of proposing to return mine sites to AOC
rather than obtaining an AOC variance. Also, the evaluation revealed that policies or procedures
used for determining when a mining operation's reclamation plan satisfies requirements established
for AOC are either applied inconsistently or are overly broad, resulting in varied interpretations of
what constitutes AOC. Because mountaintop 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 operations throughout the region. Finally, OSM also invites comments on whether
further guidance, if deemed appropriate, should be developed through a formal rulemaking that
would amend OSM's regulations, or through other measures, such as a policy statement or an
amendment to the West Virginia program.
A major source of confusion over what qualifies as "mountaintop-removal" mining operations,
which require a variance from AOC, arises from WVDEP's method of classifying, in its permitting
database, various mining methods as mountaintop operations, regardless of whether an AOC
variance has been obtained or not. Although the tracking of mountaintop removal operations and
associated waivers is not required by State or Federal law, WVDEP has made changes to its
database and is in the process of reviewing all current surface mining permits to clearly identify
which sites should be classified as "mountaintop-removal" operations.
OSM identified three significant areas in which the language of the approved State program differs
from that of SMCRA and the Federal regulations. These language differences, which may have
contributed to some of the other problems addressed in this report, relate to the following areas: (1)
documentation of the need and the market for the designated postmining land use,
(2) use of "woodlands" as an approved postmining land use, and (3) allowing "public use" instead of
"public facility (including recreational facilities) use" as a postmining land use. OSM has not
determined the extent to which the above differences have contributed to inadequate documentation
justifying an AOC variance and non-approved 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 30 C.F.R. Part 732 notification requesting that the language
be changed to correct the deficiencies. 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 oversight evaluation found that mountaintop-removal permits have been issued with postmining
land uses "forestry" and "fish and wildlife habitat" not authorized in the approved State program,
although a program amendment to authorize "fish and wildlife habitat and recreation lands" is
pending before OSM. OSM has requested that WVDEP immediately discontinue approving permits
for unauthorized land uses, and that, in addition to those permits OSM examined in preparing this
report, it review other permits currently in effect for similar problems. For all current mountaintop-
removal permits already issued that have not properly applied the postmining land use provisions of
the approved State program, OSM is requesting that WVDEP work with operators to ensure, where
practicable, final reclamation achieves a postmining land use authorized by the program. OSM
recognizes that the pending program amendment is intended to resolve some of these concerns and,
with the release of this report, OSM plans to reopen the comment period on the State's proposed
amendment concerning "fish and wildlife habitat and recreation lands." A notice will be published
in the Federal Register, and comments will be solicited from the public.
OSM found that all of the mountaintop-removal permits with AOC variances lacked at least some of
the documentation required for approving the designated postmining land use. OSM has requested
WVDEP to initiate an immediate review of its permit application and permitting process to assure
that the program requirements are being fully implemented. OSM is not proposing any corrective
action for previously issued permits.
In the review, OSM found four situations where steep-slope AOC variances had been granted, but
where mountaintop-removal AOC variances would have been more appropriate because the entire
coal seam or seams had been removed. OSM requests that WVDEP implement proper classification
procedures for operations seeking AOC variances and review the appropriateness of AOC variances
issued to steep-slope operations, taking corrective actions on existing permits, where practicable.
The approved West Virginia program does not limit approval of an AOC variance for a steep- slope
mine to the specific postmining land uses that are specified in SMCRA. OSM has requested that
WVDEP submit an amendment to correct this deficiency, and WVDEP has filed a proposed rule
with the West Virginia Legislative Rulemaking Review Committee to address the required
amendment. OSM requests that WVDEP consider whether it is appropriate to issue any steep-slope
AOC variances until an amendment is approved.
GLOSSARY OF MINING TERMS
OSM has defined the mining terms listed below in an effort to improve the general understanding of
mining practices within the State of West Virginia. These terms are used throughout this report.
OSM has taken some of the definitions from the West Virginia Surface Coal Mining and
Reclamation Act (WVSCMRA); others are culled from the Federal Surface Mining Control and
Reclamation Act of 1977 (SMCRA) or from State and/or Federal regulations. OSM has developed
still others solely for the purpose of the report. When not otherwise clear, the source of each
definition is identified in the brackets that follow it.
State program:
Approved State program.-The West Virginia surface coal-mining program approved under
SMCRA consists of the West Virginia surface mining law, regulations, policies, and
procedures that OSM approved initially on January 21, 1981 [46 Federal Register,
pages 5915 through 5956]. Subsequent amendments and actions concerning the
approved State program are set forth at 30 C.F.R. 948.10, 948.12, 948.13,
948.15 and 948.16.
Oversight.-The term used to describe OSM's role of monitoring a State's implementation
of its approved program. Upon approving a State program, OSM's role of sharing
responsibilities for regulating surface coal mining activities within a State is reduced
to overseeing the State's administration of its approved program [general term
described in 30 C.F.R. Part 732].
Primacy.-The term used to describe the delegation of primary authority by OSM to a
State in administering its surface mining program. West Virginia obtained primacy
on January 21, 1981, with OSM's conditional approval of its permanent regulatory
program [general term described in 30 C.F.R. Part 732].
Approximate original contour (AOC):
AOC.-The 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. All mined areas are to be returned to AOC, unless they receive
a variance from it [term defined in Subsection 22-3-3(e) of WVSCMRA and
Subsection 701(2) of SMCRA].
AOC variance.-A regulatory authority may grant a variance or waiver from the
requirement to restore a site to AOC if certain specified conditions are satisfied. State
and Federal law provide for the following types of AOC variances: mountaintop-
removal, steep-slope, thick overburden, thin overburden, and remined areas. This
report concentrates only on mountaintop-removal and steep-slope AOC variances.
A mountaintop-removal AOC variance can be granted by the regulatory authority
only if the entire coal seam or seams running through the upper fraction of the hill,
ridge, or mountain is removed, and a level plateau or a gently rolling contour is
created with no highwalls remaining. The site granted such a variance must be
capable of supporting certain postmining land uses.
A steep-slope AOC variance may be granted by the regulatory authority if (1) the
proposed mining is going to occur in a steep-slope area, (2) the watershed control of
the area will be improved by granting such a variance, and (3) the landowner
requests in writing that the variance be granted in order that the land after
reclamation will be suitable for certain postmining land uses [Subsections 22-3-13(c)
and (e) of the WVSCMRA and Subsections 515(c) and (e) of SMCRA].
Types of mining applicable to this report:
Area mining.-A mining operation where, unless the operation is located in a steep-slope
area and a steep-slope AOC variance has been granted, all disturbed areas are
restored to (1) AOC and (2) the site is capable of supporting the uses that existed
prior to mining or an equal or better use.
An area-mining operation may remove multiple seams of coal in the upper reaches
of a mountain just like a mountaintop-removal operation; however, this type of
operation cannot be classified as a mountaintop-removal operation for two reasons.
First, the site may be restored to AOC; second, the entire coal seam or seams may not
be removed [Code of State Regulations (CSR) 38-2-14.15.b.4 and OSM/WVDEP
oversight work plan (appendix I); definition modified for use in this report].
Contour mining.-Surface-mining technique that makes a cut into a hillside, creating a level
bench with a highwall. A contour-mined area must be restored to AOC, including
elimination of the highwall, unless the mining is conducted on a steep slope and a
variance from AOC has been approved. In either situation, the highwall must be
eliminated. The AOC variance would have to meet the requirements of a steep-
slope variance [OSM/WVDEP oversight work plan (see appendix I)].
Mountaintop-removal operation.-Type of surface-mining operation that (1) has been
granted a variance from AOC and (2) extracts an entire coal seam or seams running
through the upper fraction of a mountain, ridge, or hill. Coal extraction must be
accomplished by removing all of the overburden and creating a level plateau or a
gently rolling contour that both has no highwalls remaining and is capable of
supporting certain postmining land uses. Under the State program, the allowable
postmining land uses for mountaintop-removal operations are industrial,
commercial, woodland, agricultural, residential, or public use [Subsection 22-3-
13(c) of WVSCMRA].
Steep-slope mining.-Type of surface-mining operation where the natural slope of the land
within the proposed permit area exceeds an average of 20 degrees. In West Virginia,
those portions of a permit area classified as "steep slope" may obtain a variance from
AOC if the permit application demonstrates that (1) the postmining use of the mined
land will be equal to or better than its premining use, (2) the watershed affected by
mining will be improved, and (3) mining will comply with all applicable provisions
of the approved State program. Such operations could qualify as area, contour, or
mountaintop mines, as further defined in this glossary [CSR 38-2-14.12 and 30
C.F.R. 785.16].
Mining-related terms:
Durable rock.-Naturally formed aggregates that will not slake in water or degrade to soil
material. State and Federal law provide that durable-rock fills must consist of at
least 80 percent durable rock [CSR 38-2-14.14.g and 30 C.F.R. 816.73 and
817.73].
Excess spoil.-Overburden material that is disposed of in a location other than the mine pit
and that is not needed to achieve AOC [30 C.F.R. 701.5 and CSR 38-2-2.47].
Excess-spoil fills.-Fill structures that are created by the placement of excess spoil in
valleys, on hill sides, or on preexisting benches. The State program contains
regulations for constructing valley or head-of-hollow, preexisting bench, sidehill, and
durable-rock fills. Although most excess-spoil fills are commonly referred to as
valley fills, most mountaintop-removal and steep-slope mining operations today
involve the construction of durable-rock fills [CSR 38-2-14.14 and 30 C.F.R.
816.71 and 817.71].
Overburden.-Consolidated or unconsolidated material of any type, excluding topsoil,
which overlies a mineral deposit [CSR 38-2-2.83].
Premining/postmining land use.-The primary uses of the land before and after mining.
After mining, land is generally required to be returned to its premining use. As
provided by CSR 38-2-7.3, a site may be returned to an alternative postmining
land use if certain requirements are satisfied. Permits involving mountaintop-
removal or steep-slope mining operations with variances from AOC may be issued
by the regulatory authority only if they meet certain specified postmining land uses
as described in the approved State program.
Some examples of postmining land uses mentioned in this report include, but are not
limited to:
Combined uses-Any appropriate combination of land uses where one land
use is designated as the primary land use and one or more other
land uses are designated as secondary land uses.
Commercial woodland-Land where forest cover is managed for
commercial production of timber products.
Fish and wildlife habitat and recreation lands-Wetlands, fish-and-wildlife
habitat, and/or areas managed primarily for fish and wildlife and
recreation.
Forestland-Land with at least 25 percent tree canopy or that has been
stocked with at least 10 percent forest trees of any size, including
land that formerly had such tree cover and that will be naturally or
artificially reforested.
Hayland or pasture-Land used primarily for the long-term production of
adapted, domesticated forage plants to be grazed by livestock or cut
and cured for livestock feed.
Rangeland-Rangelands and forestlands that support a cover of herbaceous
or scrubby vegetation suitable for grazing or browsing use.
Residential.-Single and multiple-family housing properties together with
their necessary support facilities.
[These land-use definitions are taken from CSR 38-2-7.2.]
Relief.-Difference in elevation between the highest mountaintop, ridge, or hill and the
lowest valley within a permit area [derived, for purposes of this report, from Bureau
of Mines, Dictionary of Mining, Mineral, and Related Terms: U.S. Government
Printing Office, 1968.]
Required findings.-Specific findings that a regulatory authority must make prior to
granting a mountaintop-removal or steep-slope AOC variance [Subsections 22-3-
13(c) and (e) of WVSCMRA, CSR 38-2-14.12, and Subsections 515(c) and (e) of
SMCRA].
Steep slope.-Any slope of more than 20 degrees or such lesser slope as may be designated
by the regulatory authority after consideration of soil, climate, and other
characteristics of a region or State [CSR 38-2-14.8 and 30 C.F.R. 701.5].
Swell.-The tendency of soils, on being removed from their natural, compacted beds, to
increase or swell owing to the creation of voids or spaces between soil particles. The
volumetric increase, normally expressed as a percentage, that occurs as the
consequence of changing undisturbed overburden (bank) into loose (excavated)
material [derived, for purposes of this report, from Bureau of Mines, Dictionary of
Mining, Mineral, and Related Terms: U.S. Government Printing Office, 1968].
CHAPTER A.
AN EVALUATION OF APPROXIMATE
ORIGINAL CONTOUR AND POSTMINING
LAND USE IN WEST VIRGINIA
(See the "Glossary of Mining Terms," for definitions
of the terms used in this document.)
1. INTRODUCTION
The Federal Surface Mining Control and Reclamation Act of 1977 (SMCRA) establishes a program
of cooperative federalism that allows states such as West Virginia to enact and administer their own
regulatory programs within limits established by Federal minimum standards and with oversight
authority by the Department of the Interior. See H.R. Rep. 218, 95th Cong., 1st Sess. at 57 (1977),
reprinted in 1977 U.S. Code Cong. & Admin. News 593, 595; Hodel v. Virginia Surface Mining
and Reclamation Association, 452 U.S. 264, 289 (1981). In SMCRA's findings section, Congress
explained its decision to offer each state "primary jurisdiction" or "primacy" in this area:
because of the diversity in terrain, climate, biologic, chemical and
other physical conditions in areas subject to mining operations, the
primary governmental responsibility for developing, authorizing,
issuing, and enforcing regulations for surface mining and reclamation
operations subject to this chapter should rest with the States[.]
30 U.S.C. 1201(f).
Primacy does not, however, grant a state absolute authority to regulate surface coal mining without
any Federal involvement. Section 503 of SMCRA requires that state rules and regulations be
"consistent with regulations issued by the Secretary pursuant to [SMCRA]."
30 U.S.C. 1253(a)(7). Further, Section 505(b) of SMCRA provides that "[a]ny provision of any
State law or regulation . . . which provides for more stringent land use and environmental controls
and regulations" than does SMCRA or the Federal rules "shall not be construed to be inconsistent"
with SMCRA. 30 U.S.C. 1255(b).
Because West Virginia has a state program approved under Section 503 of SMCRA, see 30 C.F.R.
Part 948, its actions must be evaluated for consistency with that program. At the same time,
however, if it becomes apparent that some aspect of the approved program is inconsistent with
SMCRA, it is incumbent upon the Office of Surface Mining (OSM) to address that situation. If, for
example, State program provisions are found to be less effective than the Federal requirements,
OSM can require the State to amend its program in accordance with 30 C.F.R.
732.17. In this report, consequently, OSM has evaluated the way in which the West Virginia
Division of Environmental Protection (WVDEP) administers the requirements relating to
approximate original contour (AOC) and postmining land uses associated with mountaintop-
removal and steep-slope AOC variances for consistency with its approved State program. It has also
reviewed the State program requirements to determine if they are consistent with Federal
requirements.
In order to evaluate WVDEP's administration of requirements related to AOC and postmining land
use and to determine whether West Virginia requirements are consistent with SMCRA, OSM
reviewed a representative sample of 19 permits, 12 of which had AOC variances. OSM has focused
its evaluation on (1) gathering data that might be useful in understanding how AOC is determined in
West Virginia and determining whether or not additional guidance in making AOC determinations
may be necessary, and (2) determining the appropriateness of the postmining land use when an AOC
variance was granted by the State. The 19 permits reviewed were issued over more than two
decades. Some involved disturbances initiated before the permanent program was approved by
OSM; others involved disturbances only recently begun. The purpose of evaluating the older
permits was to gain insight into the actual land forms created after mining and to see if there have
been any trends over the years.
As discussed below, this report identifies some problems with the State's implementation of its
mountaintop-removal and steep-slope mining requirements. Some of the problems are due to the
program regulations themselves and others are the result of the State's implementation of those
requirements. While these problems do raise concern, OSM believes that they can be resolved. Most
of the problems identified during this review are procedural or administrative in nature. There was
no evidence of any significant environmental problems at any of the sample sites. OSM also
acknowledges that WVDEP has been constructive in helping identify these problems and is showing
a willingness to take steps to correct them. OSM is confident that, together with the State's
cooperation, these issues can be resolved in a timely and effective manner that protects the
environment, satisfies legal requirements, and minimizes disruption to the coal industry.
To ensure that all concerns are addressed, OSM is making this report widely available, and solicits
public comment on it, particularly its proposed findings and recommendations. Comments should
be transmitted to OSM Headquarters by January 15, 1999, via the Internet or mailed or hand
delivered to the office. The E-mail address for the office is PHAIRSTO@OSMRE.GOV. The
U.S. Postal Service mailing address is:
Patricia Hairston
Office of Surface Mining
1951 Constitution Ave. NW
Washington, DC 20240
If you would like to discuss your comments or questions on the draft oversight report, please contact
John Craynon, Chief, Technology Development Staff at (202) 208-2866. Following receipt and
evaluation of the public comments, OSM expects to issue a final report. This draft report, all
comments, and the final report will be included in West Virginia's oversight file for 1998 and will be
available for public review in Washington, as well as Charleston. In addition, any comments
received will be shared with WVDEP to facilitate discussions on corrective actions.
2. PURPOSE AND SCOPE
OSM's CHFO has prepared this oversight report on portions of the West Virginia surface mining
program, which was approved on January 21, 1981, under SMCRA. OSM headquarters and the
Office of the Solicitor have participated in the development of the proposed conclusions and
recommendations in this report. The WVDEP, which administers the regulatory program in West
Virginia, assisted OSM in gathering the data for this report, and also, to some extent, contributed to
the analysis. The proposed conclusions and recommendations are, however, OSM's.
This evaluation focuses on the three types of mountaintop coal mining operations that mine all or a
significant portion of a coal seam or seams running through the upper portion of a mountain or
ridge. These types of mines have often been called "mountaintop-removal mines" by citizens and the
media, even though that term applies only to one type of mountaintop operation in the regulatory
sense. It was in response to the extensive public interest in mountaintop operations that the CHFO
and WVDEP included a topic for mountaintop postmining land use and spoil disposal in the general
oversight agreement they signed on November 13, 1997. Also included in the November agreement
was a stipulation that OSM and WVDEP would work together on AOC determinations. These two
concepts were merged in an amended detailed work plan (see appendix I) in May of 1998, which
forms the basis for the evaluation summarized in this report.
This report focuses on two kinds of issues:
First, does WVDEP currently use appropriate standards in evaluating whether a
particular postmining land configuration constitutes a return to AOC? This report
describes various characteristics of land after mining in terms of elevation changes,
creation of valley fills, creation of level sections, and other general descriptive
information. The issue is how any of those characteristics, either by themselves or in
combination, may be used in determining if AOC has been achieved.
Second, in situations where WVDEP has determined that a waiver from AOC
requirements is necessary, has it required appropriate postmining land uses in
granting the waiver?
To answer these questions, the Federal/State review team looked at both State and Federal program
requirements and reviewed a sample of 19 mountaintop operations. In order to review land
configuration after reclamation and to evaluate the amount of success in establishing, and the
appropriateness of, postmining land uses, the sample included several older permits under which
mining was initiated prior to the approved program. The sample included sites approved in different
years to see if any trends were evident. The team also examined the database the State uses to
catalogue mining operations in order to see if it could be used to accurately identify the number of
operations fitting the parameters of this study.
Prior to OSM's 1981 approval of the State program, five of the permits evaluated in this study had
been issued, and some coal was being mined within their permit areas. At the time this report was
prepared, three of these five permits had obtained final (phase III) bond release. All the sites
examined, however, included activities after 1981 that made them subject to the State's permanent
program requirements. The review team chose the five pre-1981-approved sites for evaluation
primarily in order to help them study actual land reclamation as it relates to AOC and postmining
land use.
3. FEDERAL REQUIREMENTS
a. General AOC Requirements
1. Statute
Section 701(2) of SMCRA defines "approximate original contour" to mean,
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; water impoundments may be permitted where
the regulatory authority determines that they are in compliance with
Section 515(b)(8) of this Act.
30 U.S.C. 1291(2).
Section 515 of SMCRA sets forth environmental protection performance standards applicable to
surface coal mining operations. 30 U.S.C. 1265. Among these is the requirement to return the
land to AOC pursuant to Subsection 515(b)(3), mine operators must "backfill, compact . . ., and
grade in order to restore the approximate original contour of the land with all highwalls, spoil piles,
and depressions eliminated." 30 U.S.C. 1265(b)(3).
2. Legislative History
The legislative history of SMCRA shows that Congress intended to provide considerable flexibility
with respect to what surface configuration would satisfy the statutory requirement for AOC
restoration. The Committee Report on the House version of SMCRA, which contained the
definition of AOC that was enacted into law, stated:
H.R. 2 requires that a mine site be regraded to AOC. Moreover, the
regrading standard of H.R. 2 was formulated to cover all types of
mining operations under all conditions. Thus it is, of necessity, a
flexible standard which contemplates different mining circumstances.
The bill's critics have alleged, to the contrary, that the term
"approximate original contour" imposes an overly rigid and
impractical requirement. It should be emphasized, therefore, that a
reasonable interpretation of H.R. 2 cannot justify the assertion that
the bill requires either the impossible task of restoration of the
original contour or the useless act of digging a pit to obtain fill
material to achieve full restoration of the original topography.
H.R. Rep. No. 95-218, at 96 (1977).
Since the enactment of SMCRA, OSM has recognized that, in primacy States, the State regulatory
authority has the primary responsibility for interpreting what constitutes AOC at a given mine site
during the permitting process. See 30 U.S.C. 1201(f), quoted supra in the Introduction.
An important AOC issue, however, is to what extent a postmining change in land elevation, slope,
relief, or configuration constitutes a departure from AOC. Our research to date into SMCRA's
legislative history has indicated that the primary element of AOC is configuration or shape. The
House Committee Report mentioned both configuration and elevation, but gave primary emphasis to
configuration:
As defined in the bill, approximate original contour means:
That surface configuration achieved by backfilling and grading of the
mine 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
draining pattern of the surrounding terrain, with all highwalls and
spoil piles eliminated * * *.
The term contour is defined by the dictionary as "the outline of a
figure or body, with a line or lines representing such an outline." The
contour of ground is similarly defined as the outline of the surface of
the ground with respect to its undulations. These two definitions
primarily refer to the shape or configuration of a surface. In addition,
with respect to mapping, contour takes on an additional meaning; the
imaginary line connecting the points on the land surface that have the
same elevation and the line representing such line on a map or chart.
In order to understand this concept it is necessary to distinguish
between the two dimensions of elevation and configuration.
Id. at 97.
The Committee went on to give a number of examples of what the Committee meant by AOC. Id. at
97-103. In each of these, the emphasis was on configuration as the primary element.
Our examination of the legislative history of SMCRA has disclosed no statements indicating that a
change in elevation, by itself, constitutes a departure from AOC. Instead, on several occasions
during the debate on SMCRA and its precursors, the bill's sponsors gave assurances that the AOC
requirement did not mandate a return to original elevation. Usually, these statements were made in
response to charges that a return to AOC, as required by SMCRA, would be impossible. For
example, during the floor debate on H.R. 25, a direct precursor of SMCRA, Representative Clausen
of California, one of the principal sponsors of the bill, emphasized that AOC did not mandate a
return to original elevation:
In addition, the bill requires that lands be returned to the approximate
original contour and requires they be covered by vegetation. The
land must come as close to resembling its premining appearance as
possible. It is important to point out that this requirement is not
intended to require restoration of mined lands to their original
elevation, but to a similar configuration.
121 Cong. Rec. 6676, 6686 (March 14, 1975)(floor debate on H.R. 25) (emphasis added).
During the same debate, Congressman Ruppe of Michigan, who played a key role in SMCRA's
enactment, also emphasized that it did not mandate a return to original elevation:
However, we plainly realize that the lands which will be mined vary
in terms of their physical characteristics, and as a result we have
provided rational flexibility. We do not mandate that the mined land
be returned to exactly the same shape as it was prior to mining. What
the committee has obliged operators to do is to return the land to its
"approximate original contour." It should be emphasized here once
again, as I have attempted to do many times in the past, that
"approximate original contour" does not mean that the land must
be returned to original elevation. This would be patently ridiculous
in the case of a thick seam of coal covered by a relatively thin
stratum of overburden. When this coal is mined, it will create a
depression that could not be returned to the original elevation without
hauling an enormous amount of materials from some other location,
thereby creating a similar depression elsewhere. Therefore, the
committee bill requires that the coal operator regrade the mined area
inside and around the perimeter of the mined area so that the
depression blends into the surrounding terrain, and that within the
mined area, the surface of the land "closely resembles" its premining
configuration.
Id. at 6888. See also Additional Views of Cong. Ruppe, Clausen, and Lagomarsino, H.R. Rep. No.
94-45, at 152 (94th Congress, 1st Sess. 1975) ("First, approximate original contour as it applies to
thick seam area mining in the West is not intended to require that the mined site be returned to its
original elevation. Original elevation simply often cannot be obtained. . . . It must be emphasized
that the requirement to return to approximate original contour does not necessarily mandate the
attainment of original elevation."); 120 Cong. Rec. 23650, 23659 (July 17, 1974) (floor debate on
H.R. 11500, another SMCRA precursor); ("Now approximate original contour does not mean
original elevation or that every bump on the landscape must be restored.").
While this legislative history is helpful, much of it focuses on thin and thick overburden situations,
rather than mountaintop-removal and steep-slope mining operations, and it does not clearly state
what a regulatory authority must consider when making AOC determinations. Subsection
515(b)(3) of SMCRA specifically exempts thin and thick overburden situations from the
requirement to restore the AOC.
3. OSM's Treatment of AOC in Rules
In its national regulations and in approving individual State programs, OSM adopted the statutory
definition of AOC essentially unchanged. In the development of national regulations, the only
discussion where elevation change was mentioned in relation to AOC is in the preamble to the rules
regarding thick or thin overburden. The permanent program rules promulgated in 1979
defined thin overburden as overburden where the final thickness is less than 0.8 times the initial
thickness and thick overburden as overburden where the final thickness is greater than 1.2 times the
initial thickness. The preamble stated:
The definition of approximate original contour states that the reclaimed area should
closely resemble the general surface configuration of the land prior to mining. OSM
interprets this to mean that the approximate original contour, or configuration, of the
premining land is intended, and minor changes in elevation are anticipated.
44 Fed. Reg. 15231 (March 13, 1979).
Thus, an elevation change of plus or minus 20 percent was accepted as AOC in those rules.
In 1983, those numerical limits were deleted from the thick and thin overburden rules. See 48 Fed.
Reg. 23356, 23365 (May 24, 1983). In 1988, the D.C. Circuit upheld the remand of those rule
changes because the Secretary had failed to explain his reasons for removing the numerical limits.
National Wildlife Federation v. Hodel, 839 F.2d 694, 734 (D.C. Cir. 1988). In 1991, OSM again
published rules addressing thick and thin overburden. Again OSM declined to set a numerical limit
and asserted that the issue was best left to the regulatory authority. The preamble contains cross
sections showing elevation changes of greater than plus or minus 20 percent that would still be
considered AOC. This rule was never challenged and remains in place today. See 56 Fed. Reg.
65629-95633 (December 17, 1991).
In 1987, OSM issued Directive INE-26 (see appendix II) to provide guidance to OSM field
personnel in evaluating AOC issues during oversight. The Directive makes three points with respect
to AOC. First, because both the permittee and the regulatory authority (as well as other interested
parties) need a clear understanding prior to mining of what the final postmining topography will be,
the anticipated postmining topography must be determined in the permitting process to enable a
determination if AOC will be achieved. Second, inspections should ensure that the approved
postmining topography is being reasonably achieved, including general surface configuration,
drainage, and elimination of highwalls and spoil piles. Third, in oversight, considerable deference
should be given to prior decisions by the State, particularly where the final grade work has been
done. In recognition of the emphasis that the 1987 Directive places on the role of the permitting
process in applying AOC requirements to specific operations, the current review looked to see what
WVDEP was accepting as meeting AOC requirements in the permitting process. (See page A-19 for
further discussion of the findings.)
b. Federal Requirements Relating to Mountaintop-
Removal Mining Operations
Section 515 of SMCRA contains specific performance standards for mountaintop-removal mining.
Subsection 515(c) permits an exception to the AOC restoration requirement for mountaintop-
removal operations which, after reclamation, would be capable of supporting specific postmining
land uses. In such operations, instead of restoring the site to approximate original contour, the
operator is permitted to remove all of the overburden and create a level plateau or a gently rolling
contour with no highwalls remaining. 30 U.S.C. 1265(c). Subsection 515(c)(3) lists the
allowable postmining land uses: "industrial, commercial, agricultural, residential or public facility
(including recreational facilities) use[s]." 30 U.S.C. 1265(c)(3). In demonstrating the feasibility
and practicability of the proposed postmining land use, the applicant must include specific plans and
show that the use will be:
(i) compatible with adjacent land uses;
(ii) obtainable according to data regarding expected need and market;
(iii) assured of investment in necessary public facilities;
(iv) supported by commitments from public agencies where
appropriate;
(v) practicable with respect to private financial capability for
completion of the proposed use;
(vi) planned pursuant to a schedule attached to the reclamation plan
so as to integrate the mining operation and reclamation with the
postmining land use; and
(vii) designed by a registered engineer in conformance with
professional standards established to assure the stability, drainage,
and configuration necessary for the intended use of the site.
30 U.S.C. 1265(c)(3)(B).
The Federal regulations pertaining to mountaintop-removal operations are found at 30 C.F.R.
785.14 and Part 824. The regulations generally track the language of SMCRA, but do clarify the
applicable requirements in the following respects:
- A requirement for compliance with the alternative postmining land use provisions of
30 C.F.R. 816.133(a) through (c) [30 C.F.R. 824.11(a)(4)];
- A specification that final graded slopes on the plateau portion of the operation not
exceed 1v:5h (20%) [30 C.F.R. 824.11(a)(7)];
- A requirement that plateau outslopes attain a minimum static safety factor of 1.5 or
that they not exceed 1v:2h (50%) [30 C.F.R. 824.11(a)(7)];
- A requirement that the resulting level or gently rolling contour be graded to drain
inward from the outslope [30 C.F.R. 824.11(a)(8)]; and
- A clarification that the prohibition on damage to natural watercourses applies only to
watercourses below the lowest coal seam to be mined [30 C.F.R.
824.11(a)(9)].
c. Federal Requirements Pertaining to
Steep-Slope Mining Operations
Subsection 515(d) of SMCRA specifies additional requirements for "steep-slope surface coal
mining." The term "steep slope" is defined at Subsection 515(d)(4) as "any slope above twenty
degrees or such lesser slope as may be defined by the regulatory authority after consideration of soil,
climate, and other characteristics of a region or State." 30 U.S.C. 1265(d) (4). When mining on
such slopes, no spoil, abandoned or disabled equipment, debris or waste materials may be placed
downslope below the bench or mining cut; the operator may not disturb the land above the top of the
highwall unless it is found that such disturbance will facilitate compliance with the Act's
environmental protection standards; and complete backfilling with spoil material is required to
"cover completely the highwall and return the site to approximate original contour . . . ." 30
U.S.C. 1265(d).
As provided in Subsections 515(e)(1) and (e)(2) of SMCRA, a variance from AOC for a steep-slope
mining operation is allowed if the owner of the property requests it in writing as part of the permit
application; the watershed control of the area is improved; the potential use of the affected land is
deemed to constitute an "equal or better economic or public use;" and the proposed use is designed
and certified by a qualified registered professional engineer in conformance with professional
standards established to assure the stability, drainage, and configuration necessary for the intended
use of the site. 30 U.S.C. 1265(e)(1) and (e)(2). Subsection 515(e)(2) further specifies that these
variances from AOC must be for operations that will render the land suitable, after reclamation, "for
an industrial, commercial, residential or public use (including recreation facilities)." 30 U.S.C.
1265(e)(2).
The Federal regulations relating to steep-slope mining operations are found at 30 C.F.R.
785.15, 785.16, 816.107/817.107, and 816.133(d)/817.133(d). The regulations generally track
the language of SMCRA, but do clarify the applicable requirements in the following respects:
- Steep-slope mining operations must comply with the alternative postmining land use
provisions of 30 C.F.R. 816.133(c) and (d) and 817.133(c) and (d) [30 C.F.R.
785.16(a)(2)];
- The watershed of lands within the proposed permit area and adjacent areas will be
improved by the steep-slope mining operation if the amount of total suspended solids
or other pollutants discharged into surface or ground waters will be reduced or flood
hazards within the watershed will be reduced by a reduction in peak flow discharges;
the total volume of flow will not vary in a way that adversely affects surface waters
or any existing planned use of surface or ground water; and the appropriate State
environmental agency approves the plan [30 C.F.R.
785.16(a)(3)];
- All highwalls must be completely eliminated with spoil material in a manner which
results in a static safety factor of at least 1.3 [30 C.F.R. 816.133(d)(7) and
817.133(d)(7)]; and
- Only that amount of spoil necessary to achieve the postmining land use and ensure
the stability of the retained spoil may be placed off the mine bench [30 C.F.R.
816.133(d)(8) and 817.133(d)(8)].
4. STATE PROGRAM REQUIREMENTS
a. General AOC Requirements
State law requires, with certain exceptions, that mined lands be returned to their AOC. Subsection
22-3-3(e) of the West Virginia Surface Coal Mining and Reclamation Act (WVSCMRA) essentially
repeats the SMCRA definition of AOC. The exceptions, i.e., formal variances from AOC, are
limited to mountaintop-removal and steep-slope mining operations as provided for in Subsections
22-3-13(c) and (e) of the WVSCMRA. Table A-1 contains a summary of the State's requirements
relating to AOC and the variances that are allowed under the West Virginia approved program.
During the permitting process, applicants must identify the premining and postmining topography
and indicate whether they are requesting a variance from AOC. Depending on the mining plan,
operators in steep-slope areas (greater than 20 degrees) can obtain either a mountaintop-removal
AOC variance or a steep-slope AOC variance.
b. State Requirements Relating to Mountaintop-
Removal Mining Operations
Subsection 22-3-13(c)(2) of the WVSCMRA provides that an AOC variance may be granted for the
surface mining of coal, "where the mining operation will remove the entire coal seam or seams
running through the upper fraction of a mountain, ridge, or hill . . . by removing all of the
overburden and creating a level plateau or a gently rolling contour with no highwalls remaining and
capable of supporting [certain] postmining uses . . ." (emphasis added).
| TABLE A-1 | West Virginia Provisions | Approximate Original Contour (AOC) Restoration | Mountaintop Removal AOC Variance | Steep Slope AOC Variance |
|---|---|---|---|
| Premining topographical eligibility requirements | None. Standard applies universally in absence of variance. | Mountain, ridge, or hill | Average slopes in excess of 20 degrees [OSM disapproved broader variance.] |
| Postmining topographical requirements | Must closely resemble general premining surface configuration | Level or gently rolling inward-draining plateau | No specific requirements (dependent upon land use and terrain) |
| Surface owner consent to proposed postmining topography | Not required, but owner must be consulted on postmining land use | Not required, but owner must be consulted on postmining land use | Required |
| Acceptable postmining land uses | Premining or higher or better uses (uses with higher economic value or onmonetary benefit to landowner or community) | Industrial, woodland, commercial, agricultural, residential, or public use (including recreational facilities) which also constitutes an equal or better use | Equal or better uses [WV has not satisfied 1996 requirement to amend its program to be consistent with section 515(e).] |
| Implementation requirements for approved postmining land use | None (must be capable of supporting approved use) | Must be integrated with mining and reclamation | None (must be capable of supporting approved use) |
| Special hydrologic requirements | None | Must not damage natural watercourses | Must demonstrate that watershed will be improved |
| Required static safety factor | 1.3 | 1.5 | 1.3 |
| Amount of overburden that may be placed outside mined-out area | Limited to excess spoil and spoil required for blending with surrounding terrain | No restrictions apart from requirement to retain enough on bench to achieve postmining land use | Limited to amount necessary to achieve postmining land use and ensure stability |
| WVSCMRA cites | 22-3-13(b)(3) | 22-3-13(c) | 22-3-13(e) |
| WV CSR Title 38-2 citations | 14.8, 14.15, 14.16, 15.2 | 14.10 | 14.12 |
As illustrated in table A-2, the allowable postmining land uses for mountaintop-removal operations
approved under the West Virginia program include:
industrial,
woodland,
commercial,
agricultural,
residential, or
public use.
| TABLE A-2 Approvable Postmining Land Uses in West Virginia | Mining Type | A | B | C | D | E | F | G | H |
|---|---|---|---|---|---|---|---|---|
| Mines w/o AOC Variance | X | X | ||||||
| Steep-Slope Mines w/AOC Variance | X* | |||||||
| Mountaintop-Removal Mines w/AOC Variance** | X | X | X | X | X | X | ||
| A. Pre-Mining Use B. Equal or Better Economic or Public Use C. Industrial D. Woodland E. Commercial F. Agricultural G. Residential H. Public Use *As defined by WVSCMRA **Must also constitute an equal or better use | ||||||||
Pursuant to Subsection 22-3-13(c) of the WVSCMRA, the State may grant a permit with a
mountaintop-removal AOC variance only after finding that:
the proposed postmining land use constitutes an "equal or better use;"
the proposed use will be compatible with adjacent land uses and existing land use plans;
county commissions and other State and Federal agencies have been provided an
opportunity to comment on the proposed land use; and
the application contains specific plans and assurances that the proposed use will be
(1) compatible with adjacent land uses; (2) practicable with respect to financing and
completing the proposed use; (3) supported by commitments from public agencies
where appropriate; (4) planned pursuant to a schedule that will integrate the mining
operation and reclamation with the postmining land use; and (5) designed by an
approved person to assure the stability, drainage, and configuration necessary for the
intended use of the site.
c. State Requirements Pertaining to
Steep-Slope Mining Operations
Subsection 22-3-13(e) of the WVSCMRA and West Virginia Code of State Regulations (CSR) 38-
2-14.8 and 14.12 contain requirements governing steep-slope mining. State law provides that
WVDEP may issue a permit with a variance from AOC for surface mining on slopes greater than 20
degrees when the watershed of the area is improved and all backfilling and grading is completed
with all highwalls eliminated.
According to CSR 38-2-14.12, the State may grant a variance from the requirements for restoring
mined lands in steep-slope areas to AOC only if:
the permit area is located on slopes that exceed an average of 20 degrees;
all highwalls are completely backfilled in a manner which results in a static safety factor
of 1.3;
only spoil not necessary to achieve the postmining land use is removed from the mine
bench;
the watershed of the permit and adjacent areas will be improved by reducing pollutants
to ground and surface waters and reducing flood hazards;
appropriate Federal, State, and local governmental agencies have been provided an
opportunity to comment on the proposed postmining land use and have deemed it to
be "equal or better economic or public use;"
the proposed use is designed and certified by a registered professional engineer to assure
stability, drainage, and configuration necessary for the intended use of the site; and
the landowner has requested in writing that a variance be granted to achieve the
proposed alternative postmining land use.
5. REVIEW METHODOLOGY
Beginning in 1997, the public and media began to focus increasing attention on "mountaintop
operations" in West Virginia. Commonly understood, this term refers to any operation that removes
all or part of the top of a mountain or ridge and places the overburden or excess spoil resulting from
the removal into valley fills. As used in this report, the broad term "mountaintop operations" should
be distinguished from the narrower term "mountaintop-removal (AOC variance) operations" (see
category #1 below).
Three types of mining practices are included in the term "mountaintop operations" for this
evaluation. These types are:
1. "Mountaintop-removal (AOC variance) operations" - Mines which remove all of the
coal seam or seams in the upper fraction of a mountain or ridge and request a
mountaintop-removal variance from AOC. Only this kind of operation constitutes a
mountaintop-removal mine in the regulatory sense.
2. Mines which remove all of the coal seam or seams in the upper fraction of a
mountain or ridge and return the land to AOC.
3. Mines in steep-slope areas (slopes exceeding 20 degrees) which have received steep-
slope AOC variances according to State records. These sites were included in the
evaluation for comparison with mines in category #1.
Notwithstanding regulatory definitions, OSM recognizes that the public's concern is not confined to
any one of these mining scenarios, but encompasses all three. Accordingly, this report addresses all
three types of mines.
Chart A-1 shows the number of ongoing mines included in all categories of "mountaintop
operations." It shows that the number of such operations has increased in recent years. Appendix III
contains a listing of ongoing mountaintop permits issued in the State as of June 1, 1998. Table A-3
also shows the number of ongoing mountaintop operations in the State in relation to other mining
operations. As chart A-2 shows, the acreage disturbed by mountaintop operations has also risen.
This dramatic increase in the number and scale of these operations may help explain the upsurge in
the public's interest in mountaintop operations. It is important to emphasize that the charts cover
more than "mountaintop-removal" operations in the regulatory sense. The information was obtained
from the State's permit tracking system, which does not differentiate between sites with an AOC
variance and those without an AOC variance. After the State has completed its current effort to
refine the database from which this information was gathered, the data in these charts may change
somewhat. However, OSM believes the trends reflected are correct.
CHART A-1
CHART A-2
| TABLE A-3 Permanent Program Inspectable Units* in West Virginia As of June 1, 1998 | Type Mine | Number of Inspectable Units | Bonded Acres |
|---|---|---|
| Surface Mountaintop | 84 | 44,431 |
| Surface Area | 260 | 63,680 |
| Surface Contour | 440 | 94,069 |
| Underground | 1,055 | 29,712 |
| Other Facilities | 738 | 65,466 |
| Totals | 2,577 | 297,358 |
| *Does not include abandoned units which remain unreclaimed. | ||
| TABLE A-4 Characteristics of Sites Selected for Review | |||||||||
|---|---|---|---|---|---|---|---|---|---|
| Selected Sites | Entire coal seam removed Y/N | Stated Mining Type | Requested AOC Variance(Type) | Premining Land Uses | Postmining Land Uses | Total Relief (Feet) | Largest Elevation Reduction | Run-off Pattern Changed (Y/N) | |
| Y/N | SS/MTN | ||||||||
| S-201-76 | Y | Mtntop/ Auger | Y | MTN | Woodland/Wildlife | Pastureland/ Woodland/Wildlife | 720 | 80 | N |
| S-198-77 | Y | Mtntop | Y | MTN | Forestland | Airport | 450 | 200 | N |
| S-128-78 | Y | Mtntop/Contour | Y | MTN | Forestland | Rangeland | 760 | 170 | N |
| S-142-78 | N | Mtntop | Y | MTN | Forestland | Forest/Commercial Forestland | 800 | 190 | N |
| S-175-78 | Y | Mtntop | Y | MTN | Forestland | Pastureland/ Hayland | 360 | 50 | N |
| S-47-84 | N | Mtntop/Area | Y | SS | Fish & Wildlife | Fish & Wildlife | 580 | 60 | N |
| S-5062-86 | Y | Area | Y | SS | Forestland | Rangeland | 800 | 260 | N |
| S-5082-86 | Y | Mtntop | Y | MTN | Fish & Wildlife | Fish & Wildlife | 750 | 100 | N |
| S-5046-88 | Y | Mtntop | N | NA | Wildlife/Forestland | Wildlife/Forestland | 400 | 40 | N |
| S-6020-89 | Y | Mtntop/Area/Auger | Y | MTN/SS | Forestland | Agriculture/ Fish & Wildlife | 1060 | 245 | N |
| S-3006-91 | Y | Auger/Area/Mtntop/Contour | Y | SS | Forestland | Wildlife/ Forestland | 840 | 200 | N |
| S-3013-91 | Y | Area/Mtntop/Contour/Auger | Y | SS | Forestland/Fish & Wildlife | Commercial Woodland/ Fish & Wildlife | 750 | 150 | N |
| S-5006-91 | Y | Mtntop/Area | Y | SS | Forestland | Fish & Wildlife | 1000 | 90 | N |
| S-5055-92 | N | Contour/Area/Auger | N | NA | Forestland/Wildlife | Fish & Wildlife Recreation | 450 | 50 | N |
| S-3021-93 | Y | Mtntop/Area/Contour | N | NA | Forestland | Rangeland | 760 | 80 | N |
| S-3035-93 | Y | Area/Contour/Mtntop | N | NA | Forestland/Fish & Wildlife Recreation | Fish & Wildlife Recreation/Forestland | 800 | 90 | N |
| S-4010-96 | Y | Area/Mtntop/Contour | N | NA | Forestland | Forestland | 750 | 100 | N |
| S-5003-96 | Y | Area/Auger/Contour/Mtntop | N | NA | Forestland | Fish & Wildlife Recreation | 500 | 210 | N |
| S-5023-96 | Y | Area/Auger/Contour/Mtntop | N | NA | Forestland | Fish & Wildlife Recreation/Forestland | 900 | 300 | N |
K E Y T O C O L U M N S I N T A B L E A - 5
Selected Sites-- Permit numbers for sites in the evaluation listed in date order of the
original application with the last two digits representing the year received.
Permit Size--The size in acres of the area covered by the listed permit.
AOC Variance Y/N--This column is to indicate if the permit as issued included a
variance from the requirement to reclaim to AOC. A (Y) in this column means the
permit was approved with either a mountaintop-removal or steep-slope AOC
variance.
Premining Overburden--This is the volume, in million cubic yards, of materials
overlying the coal seam(s) prior to mining. This volume includes the volume of
materials between coal seams for multiple-seam operations. Unless noted, the
volume is "in-place" volume, not for broken or loose material.
Predicted Swell--This column lists the predicted increase in the volume of material
which results from the breakage or loosening of the overburden, in percentage and
volume terms. The "swell" of material is a function of the type of rock and the
method of breaking or loosening. The volume of material indicated in this column
plus the premining overburden volume is roughly equivalent to the volume of
"spoil" that must be placed back on the mined area or in excess spoil disposal sites,
usually valley or durable rock fills in West Virginia.
Total Spoil Generated by Mining--The total loose volume of material generated
in the mining process of breaking up and the material (overburden) above the coal
seam for removal.
Proposed Fill--This column lists the portion of the total spoil material which was
not going to be placed on the mined area and that was proposed to be placed in fills,
in both percentage and volume terms.
Number of Fills--This is the number of fills into which the proposed fill volume
was to be deposited.
Total Length of All Fills--This is the combined length in thousands of feet of all
the fills.
NA--No data available.
| TABLE A-5 Fill Data for Sites Selected for Review | ||||||||
|---|---|---|---|---|---|---|---|---|
| Selected Site | Permit Size (acres) | AOC Variance Y/N | Premining Overburden1 | Predicted Swell 2 | Total Spoil Generated by Mining 1 | Proposed Fill 3 | Number of Fills | Total Length of all Fills |
| S-201-76 | 100 | Y | NA* | NA / NA | NA | NA / NA | 2 | 1.05 |
| S-198-77 | 185 | Y | NA | NA / NA | NA | NA / 4.3 | 1 | 0.79 |
| S-128-78 | 1,040 | Y | NA | NA / NA | NA | NA / NA | 2 | 13.73 |
| S-142-78 | 483 | Y | 33.4 | 25% / 8.4 | 41.8 | 42% / 17.6 | 5 | 5.83 |
| S-175-78 | 127 | Y | NA | NA / NA | NA | NA / NA | 3 | 1.05 |
| S-47-84 | 107 | Y | NA | NA / NA | 10 | 62% / 6.2 | 2 | 3.10 |
| S-5062-86 | 535 | Y | NA | NA / NA | NA | NA / NA | 2 | 2.35 |
| S-5082-86 | 242 | Y | 19.8 | 21% / 4.1 | 23.9 | 58% / 13.8 | 2 | 2.55 |
| S-5046-88 | 96 | N | NA | NA / NA | NA | NA / NA | 3 | 2.95 |
| S-6020-89 | 657 | Y | NA | NA / NA | NA | NA / NA | 3 | 10.60 |
| S-3006-91 | 803 | Y | 134.4 | 25% / 33.6 | 168 | 8% / 12.8 | 5 | 9.07 |
| S-3013-91 | 511 | Y | 87.4 | 30% / 26.2 | 113.6 | 40% / 45.9 | 3 | 7.48 |
| S-5006-91 | 852 | Y | 81.8 | 20% / 16.3 | 98.1 | 61% / 59.5 | 2 | 11.05 |
| S-5055-92 | 613 | N | NA | NA / NA | NA | NA / NA | 4 | 4.53 |
| S-3021-93 | 1,339 | N | NA | NA / NA | 103.6 | 45% / 46.7 | 14 | 26.43 |
| S-3035-93 | 1,036 | N | 98.4 | 25% / 24.6 | 123 | 34% / 42 | 4 | 20.30 |
| S-4010-96 | 545 | N | 37.6 | 40% / 15.1 | 52.7 | 33% / 17.6 | 3 | 8.85 |
| S-5003-96 | 2,088 | N | 312.3 | 23% / 71.8 | 384.1 | 44% / 168 | 7 | 61.60 |
| S-5023-96 | 1,676 | N | NA | NA / NA | 472.4 | 44% / 207.4 | 5 | 40.23 |
| * NA = No data available 1 This column is measured in million cubic yards (mcu). 2 This column shows percent of premining overburden and volume measured in million cubic yards (mcu). 3 This column shows percent of total spoil and volume measured in million cubic yards (mcu).<.td> | ||||||||
Nevertheless, valley fills can affect the achievement of AOC in the mine area. That
is, if the raising of the 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.
Where data was available, sites with AOC variances had a somewhat wider
percentage range of excess spoil being placed in fills than did sites without AOC
variances. As table A-5 shows, the percentage of spoil being placed in fills ranged
from 8 to 62 percent for sites with AOC variances and between 33 and 45 percent for
sites without AOC variances. 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 to 40 percent, according to the permits. (Excavated material swells
because of the creation of voids during mining. The swell factor is one of the
elements considered in estimating the number of fills needed to conduct an
operation.) Current regulations do not place a numerical limit on the amount or
percentage of material which may be placed in a fill. This information may be a
good indicator of the degree to which an operation proposes to use available material
to reach AOC.
There were no significant changes in general drainage patterns for any site. (See
table A-4). In other words, even if a fill may have covered the valley floor, there was
no visible significant redirection of runoff from one drainage area or watershed to
another.
Final grading plans for some sites that were to be returned to AOC differed little
from those for sites that had AOC variances. As illustrated by the data for each
permit in chapter B, both sites with AOC variances and sites that were to be returned
to AOC have created similar looking level areas on some parts of the permit as well
as similar changes in elevation.
Other observations OSM made concerning sites that were to return the land to AOC were:
During the permitting process, no other agencies or members of the public objected
to the State's determination that the sampled sites, if mined and reclaimed in
accordance with their permits, would meet the AOC requirement.
Disturbances at the sites have generally been in the upper reaches of the mountain
and total relief has not been eliminated. Typically, the "relief" i.e., the distance
between the valley floor in the immediate area to the highest peak prior to
mining was reduced, but it was not eliminated. In West Virginia, since the
mountains in the surrounding area are not evenly spaced or of an even elevation,
changes at the top of the mountain can still blend into the surrounding terrain if
properly shaped.
Some operations do a better job of creating relief than others. Some operations blend
well into the surrounding terrain. The visual differences in many areas are related
more to differences in ground cover between the mined sites and adjacent areas than
to actual differences in land form.
The slopes of the regraded areas in steep-slope areas will not be as steep as before
mining. To the extent this change is in the upper reaches of a mountain, the regraded
areas may still blend in with the surrounding terrain.
b. Mine Classification and Inventory
The Environmental Resources Information Network (ERIN) is an electronic database developed by
WVDEP to track permitting and inspection and enforcement actions. ERIN was not created, nor
was it intended, to meet regulatory requirements, but was developed as a means by which State
administrators can monitor agency actions and assess program performance.
Both ERIN and State permitting documents use the term "mountaintop" not only to describe
operations that will, according to their permits, be returned to AOC, but also to describe operations
that will not be returned to AOC. The use of this broad term has led to the erroneous conclusion
that all mines termed "mountaintop" by the State will create flat land. But, as this report notes, in
accordance with both State and Federal regulations and notwithstanding State usage, mountaintop
operations that are returned to AOC may not meet one of the key criteria for mountaintop-removal
operations, i.e., they do not create a flat or gently rolling plateau. As a consequence, these
operations are not required to meet the regulatory requirements related to mountaintop-removal
mining.
State officials have acknowledged that ERIN was never designed to distinguish between the three
types of mountaintop operations and have agreed that they will begin reviewing permits to determine
what kind of variance, if any, has been approved. According to WVDEP officials, ERIN has
recently been modified to capture data regarding various types of AOC variances. As a
consequence, from this point forward, these data can be entered or updated as operators submit
future permit applications, modifications, renewals, or revisions.
WVDEP has agreed to accelerate its efforts in updating ERIN to accurately identify all mining
operations in the State with mountaintop-removal and steep-slope AOC variances. In cooperation
with OSM, WVDEP has created a permit review form (see appendix VII) which is being used by its
field staff in characterizing the type of mining on each operation for which the staff has
responsibility. The data will then be entered into ERIN. WVDEP anticipates completing this task
in the near future.
This updated information will differentiate among the three categories of mines described earlier in
this report, i.e., (1) mines which remove all of the coal seam or seams in the upper fraction of a
mountain or ridge and request a mountaintop-removal variance from AOC; (2) mines which remove
all of the coal seam or seams in the upper fraction of a mountain or ridge and return the land to
AOC; and (3) mountaintop mines in steep-slope areas (slopes exceeding 20 degrees) which have
received steep-slope AOC variances according to State records.
c. Mountaintop-Removal Mining Operations With AOC Variances
1. Approved Program Language Differences
The language in the approved State program differs somewhat from the Federal language and
certain aspects of the State program requirements may require further attention, as follows:
For mountaintop-removal operations that have been granted variances from AOC,
the approved State program authorizes postmining land uses that may be inconsistent
with SMCRA. Unlike SMCRA, WVSCMRA specifically provides for "woodlands"
as an acceptable postmining land use for mountaintop-removal operations.
"Woodlands" is defined in CSR 38-2-2.134 to mean commercial woodlands where
the postmining land use would result in the development of a commercial product for
which flat or gently rolling land is essential to facilitate the operation of mechanical
harvesting equipment.
OSM approved the woodlands postmining land use for mountaintop-removal AOC
variances as part of its initial approval of the entire West Virginia program. See 46
Fed. Reg. 5919 (Jan. 21, 1981). SMCRA recognizes "agriculture" as an acceptable
postmining land use for a mountaintop-removal AOC variance. The Secretary had
determined shortly after SMCRA's enactment, however, that "silviculture" or general
forestry does not constitute "agriculture" within the meaning of Section 515(c)(3).
See 44 Fed. Reg. 15288-15289 (March 13, 1979). Nevertheless, the Secretary
approved the "woodlands" postmining land use, reasoning that
by strictly limiting the definition of woodlands to require the
operator to demonstrate that flat land is essential to the
proposed commercial land use, West Virginia would permit
such use only where the intent of the Federal rule is met.
Thus, although there may be no across-the-board need for flat
areas for silviculture, there might in a specific case be special
circumstances which would make flat land essential.
See 46 Fed. Reg. at 5919 (January 21, 1981). (Emphasis in original.)
None of the initial sampled sites with a mountaintop-removal variance specifically
listed "woodlands" as a postmining land use. One permit issued in 1978 listed
commercial forestland, but it lacked the required explanation for "woodlands,"
i.e., a demonstration that flat land is essential for the operation of mechanical
harvesting equipment. The reclamation on the sampled site had not advanced to the
stage where OSM could review how the commercial forestland land use would be
actually implemented. However, because the State regulatory definition of the term
woodlands is unusual, with stringent criteria, OSM believes that it should continue to
monitor the granting of AOC variances for mountaintop-removal mines proposing
"woodlands" as a postmining land use.
Language in State law governing mountaintop-removal operations differs from the
requirements of Subsection 515(c)(3)(B) of SMCRA in that it does not require
applications for such AOC variances to provide exactly the same assurances as listed
in the Federal law. Specifically missing is language requiring assurances that the
proposed postmining land use be (1) obtainable regarding expected need and market
data and (2) assured of investment in necessary public facilities. The State statute, as
approved by OSM on January 21, 1981, did not contain the requirement regarding
expected need and market data. An individual commented to this effect prior to
program approval, but OSM did not address the matter in its January 21, 1981,
Federal Register notice (Administrative Record Nos. WV 147 and WV 392). In
1981, attorneys for the State maintained, and OSM apparently agreed, that another
criterion of State law encompasses the Federal requirement that the proposed
postmining land use can and will be serviced by necessary public facilities:
specifically, a State provision which requires that it be shown that the postmining
land use is "practicable with respect to achieving the proposed use." (See Section
22-3-13(c)(3)(ii) of WVSCMRA). The review of the sample mountaintop-removal
permits with AOC variances revealed that WVDEP is not requiring permit
applicants to supply information that would meet the intent of either of these
requirements. From the sampled permits, OSM cannot judge conclusively the degree
to which operations have been successful in achieving the postmining land uses they
proposed. The number of approved program permits ready for bond release is
limited and, as explained elsewhere in this section, includes land uses not in the
approved program.
Section 515(c)(3) of SMCRA provides that a mountaintop-removal AOC variance
may be granted only if, after mining, the site will result in an "industrial,
commercial, agricultural, residential or public facility (including recreational
facilities) use." (Emphasis added.) The State program, by contrast, authorizes
mountaintop-removal operations for any "public use," not just public facilities.
Black's Law Dictionary defines facility, in relevant part, as "something that is built
or installed to perform some particular function." It also defines public, in relevant
part, as "open to common use; . . . not limited or restricted to a particular class of the
community." The State "public use" provision was approved by the Secretary as part
of the original program on January 21, 1981. The approval document does not
address the differences between "public use" and "public facility (including
recreational facilities) use." It would seem that Congress included the word
"facility" in the mountaintop-removal provisions to ensure that after mining the site
would be capable of supporting a development such as an amphitheatre, ball field,
airport, community center, or public shooting range that would be constructed for
public use. Although none of the permits in the sample specifically authorized
"public use" as the postmining land use, State officials have discussed the possibility
that the "fish and wildlife habitat and recreation lands" would be approvable as a
"public use." OSM will be considering this issue further in review of a pending
program amendment discussed in the next paragraph.
West Virginia currently has a program amendment pending before OSM that would
permit "fish and wildlife habitat and recreation lands" to be an allowable postmining
land use for mountaintop-removal operations. Because Section 515(c)(2) of
SMCRA does not specifically mention "fish and wildlife habitat" or "hunting and
fishing" as acceptable postmining land uses, the question is whether "fish and
wildlife habitat" would constitute a "public facility (including recreational facilities)
use" within the meaning of Section 515(c)(3) of SMCRA. West Virginia has
asserted that, under the proposed amendment, "fish and wildlife habitat" would be
authorized only if the operator provides for public access after mining. OSM earlier
published this proposal for public comment and the comment period has expired.
See 63 Fed. Reg. 39790 (July 24, 1998). With the release of this report, OSM plans
to reopen the comment period on this issue by notice published in the Federal
Register.
2. Observed Postmining Land Uses
In its review of those permit applications with mountaintop-removal AOC variances, OSM generally
found the required documentation to be absent (see table A-6). All of the permits with mountaintop-
removal AOC variances lacked at least some of the documentation required by the State program for
approving the designated postmining land use.
OSM observed the following land uses at the seven sample sites:
Pastureland.-Two sites had been approved for "pastureland" which OSM has
determined fits within the "agriculture" category of Section 515(c)(3) of SMCRA.
30 C.F.R. 701.5 44 Fed. Reg. 14933-14934 (March 13, 1979). These were older
operations approved in 1976 and 1978 that have been released from bond. One site
appears unmanaged; the other site is being grazed by a dozen head of bison/cattle.
Both permits, which are approximately 100 acres each, received final (Phase III)
bond release from the State in 1985. Both permit applications for these sites lacked
the documentation required by the approved program. However, both were initially
approved prior to 1981, when West Virginia became a primacy State.
| TABLE A-6 Mountaintop-Removal AOC Variance Criteria for Sites Selected for Review | |||||||
|---|---|---|---|---|---|---|---|
| Required Findings | S-201-76 | S-198-77 | S-128-78 | S-142-78 | S-175-78 | S-5082-86 | S-6020-89* |
| The proposed postmining land use constitutes an equal or better use. | Not found(1) | Not found(1) | Not found(1) | Not found(1) | Not found(1) | Not found(1) | |