Bush Publishes Changes to Mountaintop Removal Rule

Robert F. Kennedy Jr. testifies against buffer zone changes at congressional hearing

by Ken Ward Jr.

CHARLESTON, W.Va. – The Bush administration today 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 today’s Federal Register.

Last week, the White House and the U.S. Environmental Protection Agency paved the way for the OSM to finalize its more than five-year effort to rewrite the 1983 stream “buffer zone” rule.

Issuance of the final rule today 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 chooses to do so.

Late Thursday afternoon, OSM officials informed congressional leaders of their plans and circulated a news release that is expected to be issued this morning.

The 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.

Earlier Thursday, environmental lawyer Robert F. Kennedy Jr. testified against the buffer zone changes during a congressional hearing on Bush’s moves to weaken environmental protection rules.

“This is an open invitation to industry to ignore a rule that already, as a practical matter, has been routinely abused and violated as federal and state regulators looked the other way,” Kennedy told lawmakers.

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.”

The 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, the 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, 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.

The 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 the 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.

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