Bush publishes changes to mountaintop removal
rule
Dec 11 - McClatchy-Tribune Regional News - Ken Ward Jr. The Charleston
Gazette, W.Va.
The Bush administration on Friday will publish its final rule to revoke key
water quality protections, a move that critics say helps to protect
mountaintop removal coal mining from tougher restrictions.
The changes approved by the U.S. Department of Interior's Office of Surface
Mining, Reclamation and Enforcement are scheduled for publication in
Friday's Federal Register.
Last week, the White House and the U.S. Environmental Protection Agency
paved the way for OSM to finalize its more than five-year effort to rewrite
the 1983 stream "buffer zone" rule.
Issuance of the final rule on Friday easily meets a Dec. 19 deadline,
allowing the rule to take effect before President-elect Barack Obama takes
office Jan. 20, and making it harder for Obama to revoke the rule if he
chose to do so.
Late Thursday afternoon, OSM officials informed congressional leaders of
their plans and circulated a press release that is expected to be issued
Friday morning.
OSM said the final rule "places new restrictions" on coal companies dumping
waste rock and dirt into streams, and requires companies to minimize stream
damage by valley fills.
"We believe that the new rule is consistent with a key purpose of the
Surface Mining Law, which is to strike a balance between environmental
protection and ensuring responsible production of the coal essential to the
nation's energy supply," said C. Stephen Allred, assistant Interior
Secretary for land and minerals management. "The new rule also fosters
regulatory stability by clarifying the stream buffer zone rule and resolving
long-standing controversy over how that rule should be applied."
Environmental groups have vowed to challenge the rule in court, and continue
to hope that Obama -- who has said he opposes mountaintop removal -- will
take steps to limit or abolish the practice.
"The Office of Surface Mining is again trying to mislead the public by
claiming that the buffer zone rule changes tighten stream protections, when
everyone knows they do the exact opposite," said Joan Mulhern of the
Washington, D.C., group Earthjustice.
The National Mining Association has "supported the clarification of the
stream buffer zone rule to help end litigation that has ... jeopardized
thousands of mining jobs."
Generally, the 1983 version of the buffer zone rule prohibited mining
activities within 100 feet of streams. Coal operators could obtain waivers,
but to do so they were supposed to show that their operations would not
cause water quality violations or "adversely affect the water quantity and
quality, or other environmental resources of the stream."
OSM wrote the buffer zone rule to implement a congressional mandate in the
1977 strip mine law that the agency "minimize the disturbances to the
prevailing hydrologic balance at the mine site and in associated offsite
areas and to the quality and quantity of water in surface and groundwater
systems both during and after surface mining operations and during
reclamation."
In mountaintop removal, coal operators use explosives to blow up
mountaintops and uncover valuable, low-sulfur coal reserves. Leftover rock
and dirt -- the stuff that used to be the mountains -- is dumped into nearby
valleys, burying streams.
For years, OSM and various state mining agencies allowed these fills by
interpreting the buffer zone rule to not apply to the mining waste piles. A
government study published in 2003 found that mine operators had buried 724
miles of Appalachian streams between 1985 and 2001.
Then in 1999, then-U.S. District Judge Charles H. Haden II ruled that the
buffer zone rule applied to valley fills. Haden's ruling was later
overturned on jurisdictional grounds, but the Bush administration and the
coal industry continued efforts to rewrite the rule.
OSM's final rule would exempt valley fills and similar waste dumps, such as
slurry impoundments, from the 100-foot stream buffer. A companion rule would
require coal operators to minimize these fills and consider alternatives for
waste disposal.
Officials from OSM and the coal industry argue that reading the buffer rule
to outlaw valley fills conflicts with other language in the strip-mine law
that appears to legalize such waste dumps.
In an environmental impact study, OSM officials conceded that their
companion language aimed at minimizing valley fills would have little
on-the-ground impact on how coal companies operate. That same study
projected that coal operators can be expected to bury another 724 miles of
Appalachian streams by 2018.
Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.
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