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Stream rule proposals criticized

Janet Fout thought strip mine regulators should hear the sounds of frogs and birds whose homes could be damaged by mountaintop removal mining.

So, at a public hearing on proposed changes to a key stream protection rule, Fout tried to play a tape of spring peepers and wood thrushes.

“I’m speaking for life,” said Fout, a Huntington environmental activist. “We will all miss the birds and the frogs and the fish.”

U.S. Office of Surface Mining officials weren’t interested.

“I’m not going to listen to that for five minutes,” said OSM’s Tom Morgan, referring to the allotted time for each speaker.

“What relevance does that have to the stream buffer zone rule?” Morgan said. “We are not here to hear animal calls or bird calls.”

Fout continued to play the tape. She said that scientific studies have found mountaintop removal is harming bird and other animal habitat.

A uniformed Charleston police officer — one of two posted inside the hearing — walked to the front of the room and exchanged whispers with Morgan.

Then, the officer walked over to the podium and whispered to Fout. When she still didn’t stop the tape, the officer shut off the microphone. He appeared at one point to be trying to confiscate the tape player or at least turn it off.

But Morgan and several other OSM officials heard plenty more from mountaintop removal activists who dominated the three-hour hearing.

Julia Bonds of Whitesville blasted mountaintop removal as an “evil scheme to allow greedy mining companies to destroy our mountains and our streams.”

“This administration and these agencies are nothing more than prostitutes for the extractive industries,” said Bonds, a leader of the group Coal River Mountain Watch.

OSM held Tuesday’s hearing to accept public comments on its proposal to rewrite a 20-year-old regulation called the stream buffer zone rule. More than 100 people packed a small meeting room at the Charleston Civic Center for the hearing.

Currently, the rule generally prohibits mining within 100 feet of perennial and intermittent streams.

As the rule is now, mining operators can obtain waivers to come closer to streams. But, to obtain such a variance, companies must show their proposed mining will not violate water quality standards or “adversely affect the water quantity and quality.”

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 — is dumped into nearby valleys, burying streams.

Last year, a federal government report found that more than 700 streams in the Appalachian region have already been eliminated by valley fills.

In October 1999, U.S. District Judge Charles H. Haden II ruled that the stream buffer zone rule outlawed valley fills except in smaller, ephemeral streams.

That ruling was later overturned. But the appeals court said only that the case belonged in state court, not before a federal judge.

In October, the West Virginia Highlands Conservancy filed a new permit challenge, seeking a state court ruling on the issue. Hearings on the issue continue in May before the state Surface Mine Board.

Earlier this year, the Bush administration proposed to rewrite the federal buffer zone rule.

Under the proposal, a variance could be approved if a company showed it had “minimized, to the maximum extent possible” the size of its valley fills.

The Charleston meeting was one of five public hearings on the rule change that OSM held around the coalfields, and in Washington, D.C., on Tuesday.

On Monday, the industry group Friends of Coal sent out a mass e-mail to urge its members to attend the Charleston hearing.

“Show up and let OSM know what coal means to you, your family and your community and how important these changes are to secure your future in West Virginia,” the message said.

But only two of the nearly four dozen speakers at the hearing spoke up for the coal industry or mountaintop removal.

Industry lawyer Bob McLusky said that he favors the rule changes, with one exception.

The new variance requirements should require valley fill size to be minimized as much as “practicable,” not as much as “possible,” McLusky said.

Bill Raney, president of the West Virginia Coal Association, said his group also supports the changes and that mine operators have risen to the challenge of many new restrictions.

At the end of the hearing, Charleston lawyer Mary Ann Maul asked Morgan to allow Fout to play her tape. Then, Maul said, it would be part of the hearing record and OSM could decide later whether to consider it in its final decision.

Morgan refused and also said he would not cite any OSM rules that prohibit the playing of such tapes at public hearings.

“I’m not here to justify what I do,” Morgan said. “I’m in charge of this hearing.”

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


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