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Fill rule removes stream protections

Appalachian streams would lose the protections of a mining buffer zone rule under a regulatory change proposed Wednesday by the Bush administration.

In a move expected for nearly a year, the U.S. Office of Surface Mining formally proposed to eliminate key portions of the 20-year-old regulation.

The buffer zone rule was at the heart of a now-overturned 1999 court ruling to limit mountaintop removal. It is also central to an ongoing state mining permit appeal that, if successful, could lead to renewed restrictions on large-scale mining.

OSM said its changes were intended to “clarify” the rule and “reduce the regulatory uncertainty” concerning mountaintop removal valley fills.

“They’re calling this a clarification, and they know that’s not true,” said Joe Lovett, a lawyer with the Appalachian Center for the Economy and Environment. “That’s a dishonest use of the English language that shows nothing but contempt for the citizens of West Virginia.”

Currently, the buffer zone rule generally prohibits mining activity within 100 feet of streams.

Coal operators can obtain variances to mine within that buffer. But to do so, companies must show their operations would not cause water quality violations or “adversely affect the water quantity and quality or other environmental resources of the stream.”

In mountaintop removal, coal operators blast off entire hilltops to uncover valuable, low-sulfur coal reserves. Leftover rock and dirt — the stuff that used to be the mountain, but which the industry calls “spoil” — is dumped into nearby valleys, burying streams.

Over the last 20 years, state and federal regulators have allowed hundreds of miles of Appalachian streams to be buried by these fills. In West Virginia and other states, regulators seldom examined whether these fills complied with the buffer zone rule or were eligible for a variance.

In its Wednesday announcement, OSM proposed to change the test companies would have to meet for a variance.

Under the proposal, a variance could be approved if a company showed that it would “to the extent possible, using the best technology currently available” prevent additional solids from leaching into the stream and “minimize disturbances and adverse impacts on fish, wildlife and other related environmental values of the stream.”

The buffer zone change, if finalized, would not be the first time the Bush administration changed major environmental rules in a way that helped foster mountaintop removal.

In May 2002, the U.S. Environmental Protection Agency and the Army Corps of Engineers rewrote Clean Water Act rules to legalize valley fills.

On Wednesday, OSM Director Jeff Jarrett was not available to answer questions about his agency’s proposal, said agency spokesman Joe Pally.

OSM issued a news release in which Jarrett said, “These improvements will clarify our program requirements and reduce the confusion that has enveloped the energy producers, regulators and the public.”

As part of its proposal, OSM wants to force coal companies to provide additional justification when they seek permits for valley fills.

Under this language, states would have to require coal operators to show that the size of fills is “minimized to the maximum extent possible,” OSM said in a Federal Register notice. Coal companies would also have to submit an analysis of alternative plans for fills of various sizes at various locations on a mine site, the OSM proposal says.

“Because of the growing concerns regarding the volume of excess spoil and the size of excess spoil fills, we propose to amend this regulation to require the applicant to include sufficient supporting information in the plan to demonstrate ... that the applicant has taken the necessary steps to avoid the generation of excess spoil and has minimized the volume of excess spoil to the maximum extent possible,” OSM said.

The National Mining Association had favored a broader change that would have exempted valley fills entirely from the buffer zone rule.

“We’ll want to look at this from the standpoint of what additional showings we have to make,” said Carol Raulston, press spokeswoman for the mining association.

In October 1999, U.S. District Judge Charles H. Haden II said the buffer zone rule generally prohibited valley fills from burying many Appalachian streams.

Haden’s ruling was later overturned, but on jurisdictional grounds that did not address the buffer zone issue.

During that appeal, the Clinton administration said that Haden was correct to conclude that the buffer zone rule “prohibits the burial of substantial portions of intermittent and perennial streams beneath excess mining spoil.”

Justice Department lawyers, though, added that Haden went too far. They said the judge’s injunction “prohibit[ed] even minor spoil disposal activities that do not involve the filling of stream segments.”

In announcing the proposed rule change, OSM said this “narrow interpretation” by federal government lawyers “is not consistent with our historic interpretation” of federal Surface Mining Reclamation and Control regulations.

In October, the West Virginia Highlands Conservancy moved to use the buffer zone rule to block a new mining permit issued by the state Department of Environmental Protection.

Conservancy lawyers appealed the permit for Coal-Mac Inc. to mine 850 acres and bury three miles of streams in Logan County. In their appeal, they told the state Surface Mine Board that the permit violates West Virginia’s version of the buffer zone rule. A hearing is scheduled for Jan. 20.

OSM published the buffer zone proposal just one day after the close of a public comment period on a 51/2-year government study of mountaintop removal.

Under a legal settlement, the study was intended to help regulators come up with tougher restrictions on mountaintop removal. No such tougher rules have been proposed.

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


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