The parties to the lawsuit by the West Virginia Highlands Conservancy and several individuals challenging mountaintop removal strip mining practices have reached a partial settlement. While the settlement leaves one major issue unresolved (see accompanying story) it resolves several significant questions. In making the settlement, the Division of Environmental Protection (DEP) tacitly admits that it has failed to carry out substantial portions of the law.

The settlement makes two major changes in present practice. The first is in how the legal requirement of restoring the land to approximate original contour is implemented.

Since 1977 both state and federal law has required that land affected by strip mines be returned to the "approximate original contour." In the contour strip mines of the 1980’s it was easier to determine what the term "approximate original contour" meant. Mining companies had to cover all highwalls and reshape the land so that it was similar to what existed before mining.

With the spread of mountaintop removal mining in the 1990’s, it became more difficult for the companies to determine when they had returned the land to approximate original contour. The disturbance was so massive that a return to original contour was more difficult. The DEP had similar difficulties in determining when approximate original contour had been achieved.

The DEP’s response to this was to decide that whatever the company said was approximate original contour must be approximate original contour. Regardless of how dramatic the difference between pre-mining and post-mining contour, it was the policy of the DEP to approve it as approximate original contour.

It was easier and cheaper to shove the overburden into the valley and then convince DEP that the result was approximate original contour than it was to try to restore the land to something resembling the original contour. The result was that more material went into valley fills and the mined land resembled the original contour only to those with very active imaginations.

The settlement changes that. Instead of allowing the permit applicant to persuade the DEP that its plans, no matter what they were, restored the land to "approximate original contour", the settlement will define "approximate original contour" with an engineering formula. Companies will be required to follow that formula, resulting in a consistent definition of "approximate original contour." No longer will "approximate original contour" mean whatever the permit applicant says it means.

In addition to bringing consistency to the permitting, a change to the new formula will result in actual improvements on the ground. More of the dirt and rock that now covers the coal will be stacked back on the mine benches and less dumped into fills. Although the exact results will be different for each mine, the result will be that the shape and elevation of the land after mining will more closely resemble pre-mining conditions than it does now. Another benefit of the new formula for calculating approximate original contour will be that, because more of the dirt and rock will remain on top, less will be disposed of in valley fills. The probable result will be that fill size will be reduced by about one third.

The second major change in present practice as a result of the settlement will be in the post mining use the land affected by mountaintop removal.

Companies may avoid returning land to its approximate original contour by creating one of the special post-mining land uses set forth by law. These are industrial, commercial, residential, agricultural, or public use. The second major part of the settlement would change the way this part of the law is carried out.

Past practice has been for companies to sow grass on mine sites and then abandon them. They might call these fields of grass wildlife habitat or pasture land. Regardless of what they called the fields of grass, they were never actually used for pasture and were less hospitable as wildlife habitat than what was present before mining. They certainly were not suitable as a basis for a post-coal economy.

The settlement would change that. Sowing grass for a post mining land use would be eliminated and replaced either by hardwood forests or one of the other listed uses.

The settlement would also require that the mining company show that there is a need for the proposed use and a market for the proposed use. In the past, companies have been allowed to make unfounded assumptions about the desirability of flat land. During the public hearings of the Governor’s Task Force on Mountaintop Removal, speaker after speaker talked about how badly we needed flat land for economic development. The impression they gave was that there were companies lined up just across the state line, just waiting to flood into West Virginia as soon as we had leveled all these pesky mountains.

The truth is there is no market for mountaintop removal sites as industrial, commercial, or agricultural sites. If there were, there would have been factories there already. When Toyota came to look for a site in West Virginia for its factory, the Development Office did not show it any mountaintop removal sites.

The settlement would require an applicant for a permit to demonstrate that there is actually a need for the flattened land created by mountaintop removal. They would also have to show that there is a market for the land. The DEP will no longer be able to issue permits based upon unfounded generalities about the post-mining use of the land.

In addition to these two major changes, the settlement also produces a host of smaller changes in present practice. It creates a technical review panel which will periodically go to DEP, examine permits, and see that the requirements of the law and the settlement are being complied with. It will ensure closer examination of the mining company’s plans to restore the hydrology of the mined area.

Like any settlement, or any law for that matter, the implementation of this settlement will determine its success or failure. At a minimum, the settlement has laid down a strong foundation for more effective regulation of mountaintop removal mining.