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Mountaintop removal report delayed

Federal strip mine regulators have again delayed the release of what is expected to be a landmark report on mountaintop removal coal mining.

The U.S. Office of Surface Mining planned to issue the report on Friday, but agency Director Kathy Karpan delayed the release for at least two weeks.

OSM officials said the report was held so that it can be reviewed by John D. Leshy, the top lawyer for the U.S. Department of the Interior. OSM is part of the department.

Top OSM officials also said last week that even when the report is publicly released, it won't be in its final version.

Margy White, Karpan's chief of staff, said OSM plans to put a draft of the report out for public comment before publishing a final report with conclusions and recommendations.

This is believed to be the first time that the Interior Department's Office of Solicitor has intervened in the drafting of an OSM oversight report.

It is also the first time that OSM has decided to schedule a public comment period on such a report.

"I guess you could call it unusual," White said Thursday.

Unlike old-time strip mining, mountaintop removal blasts off entire hilltops to reach coal seams underneath. Leftover rock and earth, known as spoil, are dumped into nearby valleys and streams.

Mountaintop removal mines cover tens of thousands of acres in Southern West Virginia, and have drawn intense scrutiny in the past year from environmental groups and the national media.

Permitting investigated

After mostly ignoring the issue for years, OSM in February launched an investigation of mountaintop removal mine permitting.

A draft of the agency study, obtained last month, concluded that the state Division of Environmental Protection has allowed mining operators to receive permits without restoring mines to their approximate original contour or submitting plans for post-mining developments.

Among other things, the draft report said regulators needed to define more clearly the approximate original contour and stop mine operators from receiving permits that state "fish and wildlife habitat" as a post-mining land improvement.

Mountaintop removal critics have been anxiously awaiting the final report in the hopes that it will continue to back the arguments made in a federal court lawsuit to curb the mining practice.

The report is also important because it will chart the course OSM will follow in either allowing mountaintop removal to continue at an unprecedented pace or reining in the giant mining operations.

Originally, OSM's formal work plan for the study called for the report to be released by Aug. 15.

After numerous unexplained delays, OSM officials had said privately that they planned to issue the final report on Friday. That never happened.

Allen Klein, OSM's Appalachian regional director, said last week the report was going through additional review by the Solicitor of Interior.

"They're looking at the report overall," Klein said. "We're doing our best, and we don't want to release a report that isn't ready."

Rahall unhappy with OSM

Leshy got involved in the issue at the behest of Rep. Nick J. Rahall, D-W.Va. Rahall was unhappy with OSM's handling of mountaintop removal, and wanted Leshy to make sure OSM was doing its job.

Rahall asked Leshy to investigate after Karpan said in early May that not all mountaintop removal mines should have to receive approximate original contour variances required by the 1977 Surface Mining Control and Reclamation Act.

At the time, Rahall said Karpan's statement "is a startling concept, coming from the agency charged with enforcing the surface mining act.

"We have brought these matters to the attention of the Solicitor of the Department of Interior for his review," Rahall said. "In particular, we wanted the solicitor to be aware of OSM's assertion that not all mining that takes off the top of a mountain is mountaintop removal."

In a May 18 letter to Rahall aide Jim Zoia, Leshy wrote: "These issues are complex, and addressing them may require, to some extent, case by case review, as well as considering the interplay of a number of different regulatory statutes.

"I can assure you these issues now have my personal attention, and my office will be working closely with OSM ... in the coming months to assure full compliance with all applicable laws," Leshy wrote.

Leshy did not return repeated phone calls last week.

White said that OSM is working with Leshy to make sure any legal conclusions in the report are consistent with the legal opinions of the solicitor's office.

"If we have this oversight report with conclusions and recommendations, and we take a position on approximate original contour, and the solicitor is on a different track, timewise or opinion-wise ... so then we get the two together - the director and the solicitor's office - to review this," White said.

Last week, White also revealed that OSM plans to put the mountaintop removal report out for a public comment period that could last several weeks.

OSM, however, decided at least three weeks ago to have the public comment period.

"Mountaintop removal operations and associated issues extend beyond West Virginia," Karpan wrote in an Aug. 20 letter to Rahall.

"Therefore, I will distribute the study report to all interested parties for review and comment," she wrote. "After reviewing the comments received, we will develop an action plan to address the issues arising from the study and to develop any necessary changes in the state or federal regulatory programs."

White said Karpan was concerned that some conclusions in the report would affect mining in other states, particularly Kentucky. She said OSM hopes to receive public comments from those states before making any final decisions on regulatory changes.

Meanwhile, the publication and wording of the draft report have drawn coal industry complaints.

In an Aug. 24 letter to Roger Calhoun, director of the OSM Charleston field office, the West Virginia Coal Association complained about a Sunday Gazette-Mail story detailing the contents of a draft of the report.

Bill Raney, the association's president, said the draft report appeared to be an early - and improper - OSM decision on whether fish and wildlife habitat reclamation should be allowed for mountaintop removal.

The public comment period on the report could be aimed at avoiding a lawsuit charging that OSM violated rules that require public input on such decisions.

To contact staff writer Ken Ward Jr., call 348-1702.


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