Dec 2 - McClatchy-Tribune Regional News - Ken Ward Jr. The Charleston Gazette, W.Va.

The White House and the U.S. Environmental Protection Agency signed off Tuesday on plans to revoke parts of a key water quality rule that could have been used to limit the burial of streams by mountaintop removal coal mining operations.

Approval by EPA and the White House Office of Management and Budget paved the way for Interior Department officials to finalize industry-backed changes in the 25-year-old stream "buffer zone" rule.

Environmental groups had fought the change, because they hoped that either court actions or moves by the incoming Obama administration might use the buffer zone as a tool to more strictly regulate mountaintop removal.

Citizen groups were especially upset over the last few weeks, as it became clear that EPA was going to concur with the rule change proposed by Interior's Office of Surface Mining, Reclamation and Enforcement.

"Once again, the Environmental Protection Agency has failed to live up to its name," said Joan Mulhern, a spokeswoman for the group Earthjustice.

In a prepared statement, EPA spokeswoman Enesta Jones said her agency "worked closely with OSM to enhance environmental provisions in the final rule, including requirements that no mining activities may occur in or new streams that would violate federal or state water quality standards."

Under the changes in the final rule, EPA would consider mining valley fills incompliance with water quality standards if mining operators obtained "dredge-and-fill" permits from the U.S. Army Corps of Engineers. But, the standard for obtaining such a permit allows a greater level of damage than would be permitted under OSM's previous version of the buffer zone rule.

Over the last few months, the buffer zone battle has heated up, with governors of two Appalachian coal states -- Kentucky and Tennessee -- have joined with environmental groups to fight the Bush administration changes.

For nearly five years, since January 2004, the Bush administration has been working to essentially eliminate the more than 20-year-old buffer zone rule. Generally, that rule prohibits mining activities within 100 feet of perennial and intermittent streams.

Coal operators already can obtain variances to mine within the 100-foot buffer. To do so, though, companies must show that their operations will not cause water quality violations or "adversely affect the water quantity and quality, or other environmental resources of the stream."

For years, the OSM and various state mining agencies have interpreted the buffer zone rule to not apply to valley-fill waste piles that bury streams.

In 1999, then-U.S. District Judge Charles H. Haden II concluded that the rule did apply to valley fills. That decision was overturned on appeal, but federal regulators and the coal industry still moved to rewrite the rule.

The OSM proposed a rule in January 2004, and then delayed finalizing it so agency officials could conduct a more detailed environmental impact review. A final version of that review was made public in October, and OMB approval of the resulting rule was made public Tuesday morning.

The OSM proposes to exempt valley fills from the buffer zone rule. A companion rule would require coal operators to minimize fills and consider alternatives.

However, under the federal strip mine law, the OSM cannot implement the changes unless the EPA signs off on them.

In a flurry of letters over the past month, environmentalists have pointed out that the EPA previously supported the existing buffer zone rule and raised serious concerns about the OSM's proposed changes.

"EPA has consistently stated that the current stream buffer rule is necessary to protect water quality and prevent further violation of water quality standards," said a Nov. 3 letter signed by Coal River Mountain Watch and eight other groups. "Given that the proposed rule will sanction and allow such violations to continue and increase, EPA cannot lawfully concur in the proposed rule."

Kentucky Gov. Steve Beshear and Tennessee Gov. Phil Bredesen also wrote letters last month to urge EPA administrator Stephen Johnson not to sign off on the changes.

West Virginia Gov. Joe Manchin has not voiced an opinion on the rule change, but the state Department of Environmental Protection has repeatedly supported it.

DEP Secretary Randy Huffman said the OSM's requirement to minimize the size of fills is similar to state guidance approved after Haden's ruling.

"It doesn't lessen the standard," Huffman said. "It actually tightens the standard."

Joe Lovett, director of the Appalachian Center for the Economy and the Environment, said the state rules have reduced fill size. The reductions have not been enough, though, Lovett said, and the OSM rule would reduce Obama's options for limiting the impacts on streams.

"[The OSM rule change] is an attempt to take away from regulators the ability to limit valley fills through the use of the buffer zone rule," Lovett said Monday.

Reach Ken Ward Jr. at kward@wvgazette.com or 348-1702.

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