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Easy permits proposed for mountaintop removal mining

THE U.S. Department of the Interior wants to provide coal operators with "one-stop permitting" for mountaintop removal mining, new government records reveal.

Gazette published EPA draft environmental study

The entire study is available for download here.

(Adobe Acrobat required for .pdf files)

In the last six months, Bush administration officials have sought to change the course of an ongoing study of mountaintop removal.

Bush appointees in the Interior Department want the project to focus on "centralizing and streamlining coal mine permitting," records show.

Among other changes, Interior officials want state regulators to take over issuing controversial Clean Water Act "dredge-and-fill" permits for mountaintop removal valley fills.

Interior's Office of Surface Mining has drawn up proposed regulatory amendments and interagency agreements that would enact the changes.

Deputy Interior Secretary Steven J. Griles, a former mining industry lobbyist, suggested the permit streamlining in a letter to other federal agencies last October. That letter, along with Interior's proposed permitting changes, was obtained under the federal Freedom of Information Act.

Late last month, the U.S. Environmental Protection Agency released the records, along with a previously unpublished draft of the Environmental Impact Statement on mountaintop removal.

Scientific studies conducted as part of the EIS have confirmed that without much stronger restrictions, mountaintop removal will destroy huge portions of Appalachian forests and streams.

"Mountaintop [removal] mining operations in the Appalachian coalfields involve fundamental changes to the region's landscape and terrestrial wildlife habitats," the draft study concluded. "With the increasing size of these operations, a single permit may involve changing thousands of acres of hardwood forest into grassland.

"While the original forest habitat was crossed by flowing streams and was comprised of steep slopes with microhabitats determined by slope, aspect and moisture regimes, the reclaimed mines are often limited in topographic relief, devoid of flowing water, and most commonly dominated by erosion-controlling, herbaceous communities."

In late 1998, EPA, Interior and other agencies agreed to conduct the study to resolve major portions of a lawsuit over lax mountaintop removal regulation.

When it formally announced the study in February 1999, EPA said that the review was "to consider developing agency policies ... to minimize, to the maximum extent practicable, the adverse environmental effects to waters of the United States and to fish and wildlife resources ... and to environmental resources that could be affected by the size and location of excess spoil disposal sites in valley fills."

In his October 2001 letter to other agencies, Griles said that the environmental study "is the logical vehicle to address environmental protection and promote government efficiency, while meeting the nation's energy needs."

"In order to address these needs, the EIS must consider and recommend resolutions to well-documented, significant impacts that will allow steep slope Appalachian coal mining to proceed in an environmentally sound manner," Griles wrote. "We do not believe that the EIS, as currently drafted, focuses sufficiently on these goals.

"We must ensure that the EIS lay the groundwork for coordinating our respective regulatory jurisdiction in the most efficient manner," he wrote. "At a minimum, this would require that the EIS focus on centralizing and streamlining coal mine permitting, and minimizing or mitigating environmental impacts.

"As you know, key goals for this administration are environmental protection, maintaining the nation's energy supply, and government efficiency. Addressing the controversy surrounding mountaintop coal mining in Appalachia provides an opportunity to further these goals."

Last week, environmental group lawyer Joe Lovett said that Interior is pushing the mountaintop removal study in the wrong direction.

"The purpose of the EIS should be to study the environmental and social impacts of this practice, not to make it easier for the coal industry to get permits," said Lovett, who runs the Appalachian Center for the Economy and the Environment. "It's already easier enough for the coal industry to get permits."

In the last two weeks, the Bush administration has come under increasing pressure on the mountaintop removal issue.

On Friday, the EPA and the U.S. Army Corps of Engineers approved a final rule that helps to legalize valley fills.

Under that change, the definition of "fill material" that the corps can permit to be dumped into streams would be expanded to specifically include mountaintop removal waste.

Previously, corps rules outlawed the dumping of waste material into streams under Clean Water Act Section 404 permits. Over the years, however, the corps has permitted hundreds of miles of valley fills anyway, according to agency records.

Senate Environment and Public Works Chairman James Jeffords, I-Vt., had urged Bush to back off the rule change until his panel can hold hearings to investigate its effects.

"The proposed rule would jeopardize the health of the nation's streams, wetlands, lakes, rivers and other waters," Jeffords said in a letter to the White House.

Even now that the fill rule change has been finalized, environmental groups could continue to try to block the corps from issuing more valley fill permits.

In federal court in Charleston, Chief U.S. District Judge Charles H. Haden II is considering a request by the citizen group Kentuckians for the Commonwealth to do just that. Briefs have been filed, and that matter is ripe for a decision by the judge.

In comments submitted to EPA and the corps during the agencies' rulemaking, the environmental group Earthjustice argued that when Congress passed the Clean Water Act, lawmakers "made it exceedingly clear that the discharge of dredged spoil into waters of the United States was to be completely eliminated as soon as possible.

"Congress clearly intended that the environmental harm caused by filling streams and other waters should be eliminated, regardless of the cost," Earthjustice said.

EPA Administrator Christie Whitman defended the rule change.

"It's not a giveaway to the mining industry," Whitman said in comments to the media on Earth Day. "It does not allow activity that isn't already underway."

Mining companies are certainly pleased with the proposed change, however.

In his group's weekly newsletter on Friday, National Mining Association President Jack Gerard said that the change would "simply codify permitting policies as they have existed for over 25 years and, hopefully, avoid further disruptive and unnecessary litigation."

Greg Peck, a longtime EPA staffer who is now deputy director for wetlands regulation, argued that the rule change simply writes into federal regulations the way agencies have operated for years.

"I don't look at it as a matter of good or bad," Peck said. "This is the way the program has operated for as long as I can remember.

"To get into a debate about whether or not coal mining can be allowed to continue in Appalachia is part of a debate on a broader national energy policy, not part of a debate over whether this is fill material or not under the Clean Water Act."

On Friday, Whitman said in a statement that the fill rule change is part of the administration's plan to "reduce mining-related impacts, while providing the nation with the advantages of cleaner-burning coal.

"Mountaintop mining is a long-established practice in Appalachia, and this administration is committed to working with the affected states to strengthen the environmental safeguards governing this practice," Whitman said. "We are working to establish a regulatory environment that is clear, predictable, fair and fosters good environmental stewardship."

Now that the fill rule is finalized, records show the Bush administration will try to turn the corps' permitting authority over to state agencies, such as the West Virginia Department of Environmental Protection.

"We propose a comprehensive, ‘one-stop' permitting authority within state government to satisfy [the Clean Water Act] and [the Surface Mining Control and Reclamation Act]," says an OSM "Plan to Address Mountaintop Mining Issues in Appalachia."

Currently, mountaintop removal proposals must receive several different permits from different state and federal agencies. Each agency operates under somewhat different rules, and examines different potential impacts of mining.

The OSM plan calls for "refocusing of the EIS" to eliminate what the agency called "redundant" and "conflicting" legal requirements.

"The proposed [OSM] vision accomplishes the stated intent of the EIS," the plan says. "The EIS, as currently drafted, however, does not sufficiently consider options for centralizing and streamlining coal permitting."

In a joint statement on Friday, EPA and the corps said that the corps is "taking steps now to put tougher new restrictions on mining activities that can be permitted by establishing limits on the size of valley fills that can be built in Appalachian streams.

"The Office of Surface Mining will be proposing changes to its regulations intended to ensure that mining discharges in streams are reduced in both size and number," the statement said. "OSM's changes will also require that better information is provided by permit applicants regarding their projects so that adverse environmental impacts can be more effectively addressed."

Last week, Earthjustice released documents that show that OSM is also moving to rewrite its stream buffer zone rule.

Under the rule, no mining activity is allowed within 100 feet of perennial or intermittent streams.

Historically, regulators have not applied that rule to the actual footprint of valley fills. But in a 1999 court ruling, Haden said that the rule must apply to fill footprints.

Currently, coal operators can receive waivers from the buffer zone rule. But to get waivers, they must be able to prove, among other things, that their activities would not "adversely affect" streams.

OSM officials propose to eliminate that language, making it much easier for companies to receive buffer zone variances.

Jeff Jarrett, director of OSM, said that any buffer zone rule changes proposed by his agency would also include language to make coal companies demonstrate that they have no alternative but valley fills for waste disposal.

Agency records show that this language would require companies to submit, "a demonstration that you have selected a site or sites to minimize disturbances to and adverse impacts on fish, wildlife and related environmental values."

"We do not believe it's appropriate to take an extreme view," Jarrett, a former coal company official, said in an April 29 interview. "One of our statutory mandates is to strike a balance between production of energy and protection of the environment."

Joan Mulhern, senior legislative counsel for Earthjustice, said that "By eliminating the buffer zone rule, the Bush administration is upsetting that statutory balance and handing all of the advantage to the coal mining companies, to the extreme detriment of the environment and coalfield communities.

As for the fill rule change finalized on Friday, Mulhern said, "EPA's claim that this is about enhancing environmental protection is a flat-out lie."

To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.


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