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. 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. 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. 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:
Rahall:
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.
Rahall:
Thirty years, and we are still looking for a definition of AOC.
Today, a rulemaking on AOC is not listed among OSMRE’s priorities in its latest budget documents provided to Congress, or in the regulatory agenda for its parent agency, the Department of Interior.
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 …
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The lack of a legal definition by WVDEP, EPA and OSM for AOC is of course what allows mountain top removal to continue. However just because these government agencies don’t have a definition of OAC does not mean that one does not exist. It means approximate original contour. You don”t need an engineering degree to understand that MTR results in a radical change to the original contour. This is one of the most cynical and criminal interpretation of a law that I have ever observed. If I get arrested stealing and totaling a classic Corvette can I return the wreckage and say its very close to its approximate original contour?
Good one on the Corvette, Roselle.
I should clarify (been doing that a lot lately):
There IS definition. It’s in the statute. Congress wrote it in 1977:
“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.”
What there isn’t (except for WVDEP’s formula) is a clear way of defining that, a way for permit writers to implement it without one permit writer doing it differently from another, leaving companies being treated differently.
But it is one of those things that seems to defy common sense…
Here’s another great quote from my 1998 story:
“AOC is impossible” for mountaintop removal mines, said Ben Greene, a former top state regulator who now lobbies for the coal industry. “Approximate original contour in the sense that you re-create everything that was there and bring back what God created is impossible.
“You do not re-create that mountain,” Greene added. “That has never been anybody’s idea or intention.”
Thanks again to West Virginia Blue for reminding me of the importance of getting back to some basic questions like this one.
Ken.
tell me how much of our interstate system destroyed mountains in this state to the same extent of mtr?have you bothered to look at state route 121 also known as the “coalfield”expressway?the same with the extensions on route 35.what is it they are doing?is it referred to as mtr or would you call it progress for jobs?it boils down to doing the same as you call mtr.if you are so much against mtr,then you must be against this version to mtr.no i’m not for or against mtr, but you blame coal for the damage done to mountains,then apparently you tend to forget that these and other places have done the same damage to our mountains as mtr.i’ve been told it is not the same,but when you look at the damage done ,it is no less than the same,only for a different purpose.
Great post Ken. One small (but important for clarification) item–you have your original news story dated 1988, not 1998.
Thank you for the reply to the earlier CCS discussion. Good points & info.
Here’s reality.
Approximinate Original Contour was required — by state law — years before SMCRA existed: first in Pennsylvania (1971 then in Ohio (1972) and in West Virginia (1975?) .
The “definition” (description) in SMCRA generally minics what was already in these state laws.
In Ohio, AOC was essentially elimination of the highwall — the mining face. In many instances that was accomplished by blasting and the pushing it down into a somewhat backfilled pit. (In the in 1970s and early 1908s there was very little use of trucks to move overburden as is the case now.)
The first OSMRE director Walter Heine was questioned by Congress about a definition and he ducked it as has every director since then.
Defining AOC will not end mountain top removal or excess spoil disposal fills — placing spoil outside of the excavated area. Both are allowable under SMCRA as it currently exists.
Essentially, AOC is defined as what’s possible to restore given reasonable engineering and economic constraints.
Reclamation is not restoration and adverse impacts from coal mining are to be mimized, not prevented. The exceptions being is to prevent “”imminent danger to the health and safety of the public” and “significant, iminent harm to the environment.”
Note: I was with OSMRE (1978-1995) after being an Ohio reclamation specialist (1975-1978.)
Bob Mooney,
You’re not exactly right … you state that “adverse impacts from coal mining are to be minimized, not prevented.”
Actually, in some situations, SMCRA absolutely requires adverse impacts to be prevented …
For example:
Section 510(b)(3) prohibits the issuance of permits unless the CHIA indicates the proposed mining “has been designed to PREVENT material damage” to the hydrologic balance outside the permit area.
Surface mining must also be designed in a manner that will “prevent slides, erosion, and water pollution” according to Section 515(b)3).
Ken.
Yep, those are permitting requirements, not performance standards.
(As an inspector, at times, I want to issue violations to the permitting staff for their non-compliances.)
Now back to Mountain Top Removal and excess spoil disposal fills: The construction of the Charleston airport (1944-47) was held out as the prototype for doing these activities.
People from all over the United States, from Sweden, England, Cuba, South America and other foreign countries visited Kanawha Airport during its construction. In many instances, they were part of commissions sent to make studies of the most modern methods of moving earth.
An excellent safety record was made during construction. In moving more than nine million cubic yards of earth, there were only three injuries, each caused by falling stones.
An idea of the magnitude of the Airport project may be gathered from the following facts: 360 acres of mountainous land were cleared and grubbed before the excavation was started.
Source: http://yeagerairport.com/History.html
Bob,
Actually, Section 515(b)(3) is a performance standard … check your copy of SMCRA.
And the Yeager Airport comparison is old and worn out and not helpful to discussion — 360 acres of not very big compared to today’s surface mines in Appalachia. And 9 million cubic yards of earth being moved is tiny compared to even a small mountaintop removal job.
Moreover, the airport construction was not a coal mine — so even if it had taken place after SMCRA was passed, it would not have been required to comply with the law.
Ken.
Yes, that airport construction is tinsy, but that signficance of post-land use and the existing commitment of planning/financing for it was to be the standard for AOC variances. (Earlier versions of the OSMRE regs (pre-1982) were more detailed regarding the showing neccessary in order to obtain AOC variences.
This is the actual language you are excerpting from:
http://www4.law.cornell.edu/uscode/html/uscode30/usc_sec_30_00001265—-000-.html
“the operator shall after restoring the approximate contour, backfill, grade, and compact (where advisable) the excess overburden and other spoil and waste materials to attain the lowest grade but not more than the angle of repose, and to cover all acid-forming and other toxic materials, in order to achieve an ecologically sound land use compatible with the surrounding region and that such overburden or spoil shall be shaped and graded in such a way as to prevent slides, erosion, and water pollution and is revegetated in accordance with the requirements of this chapter; ”
Which means: That “graded in such a way as to prevent slides, erosion and water pollution” pertains to “the excess overburden and other spoil and waste materials” “after restoring the approximate contour.”
This language can be found higher up in that provision: “… backfill, compact (where advisable to insure stability or to prevent leaching of toxic materials), and grade in order to restore the approximate original contour of the land with all highwalls, spoil piles, and depressions eliminated…”
Mr. Clements-
You cannot make the comparison of a MTR site to an interstate.
Firstly, the extent of the two are different. An interstate is a narrow strip of disturbed land (even when including side fills and cuts used to create the roadbed) surrounded by an expanse of undisturbed land (geologically undisturbed that is). A MTR site is a large expanse of disturbed land with perhaps, if lucky, a few isolated pockets of undisturbed land.
Secondly, and more importantly, an interstate provides a lasting social benefit in exchange for disturbing the land. A MTR only provides a temporary social benefit in exchange for disturbing the land. There are a handful of shopping centers, prisons, schools, golf courses, and factories located on old MTR sites when you consider the total acreage of MTR.
now there is that debatable arguement towards mtr, mayfly guy.no matter how you slice it,whether it be a small or large piece of land your referring to,you still come out with the same end result.you have destroyed a piece of the natural enviroment which leads to the same results as mtr.your giving the “social benefits” to excuse of the destruction of land that mtr also does.in my book if you do one, then why does it not benefit the other?there has not been a scientific study to show what the impacts of the interstate system has had on the enviroment or there has not been a total sum of acreage of land destroyed for these roads that have been or are being built.it does not take a scientist to see the destruction of mountains for roads ,houses, golf courses,factories,or shopping centers. it doesn’t take a report on the flooding that also impacts the areas i talk about.all one has to do is open their eyes and talk to the people around these areas.it does not make for front page news such as what happened to the slurry pond in tennessee.progress has destroyed much more of the enviroment than coal mines ever will.now if you open your eyes to that ,then you will see what i refer to.otherwise, you’ll still argue that it is socially beneficial.
[...] to know why they haven’t yet started writing a tougher and more clear definition of the approximate original contour reclamation standard. And if the Obama administration won’t take on the task, Rahall and his committee could put [...]