OSM delays changes to buffer zone rule
Bush administration officials announced Thursday that they will conduct a detailed environmental study before they scrap a federal rule that prohibits coal mining within 100 feet of streams.
The study could delay the rule change for two years or more. The change had been strongly pushed by the coal industry.
“We don’t have a hard schedule,” said David Hartos, a U.S. Office of Surface Mining scientist working on the study. “But a ballpark estimate would be 18 to 24 months.”
In January 2004, the OSM had proposed to essentially eliminate the 20-year-old stream “buffer zone” rule, which 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 that their operations will 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 — is dumped into nearby valleys, burying streams.
Over the past 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 1999, U.S. District Judge Charles H. Haden II concluded that the rule generally prohibited coal operators from burying most streams with waste rock and dirt from their mines.
That decision was overturned on appeal, but federal regulators and coal industry officials still moved to rewrite the rule.
Thursday’s announcement was a major reversal for the OSM.
Originally, the agency argued that its buffer zone rule changes would “not significantly affect the quality of the human environment.”
A more detailed study — called an Environmental Impact Statement, or EIS — would not be needed, the OSM said.
Environmental and citizen groups disagreed and urged the OSM during a comment period last year to perform an EIS.
In Thursday’s Federal Register notice, the OSM said it has “subsequently determined that the preparation of an EIS would be an appropriate mechanism to fully assess alternative approaches to these specific proposed actions and their potential impacts.”
“It’s a major concession by OSM,” said Jim Hecker, an attorney with Trial Lawyers for Public Justice, a Washington, D.C., group that has fought for tougher regulation of mountaintop removal.
Hecker added, though, that federal regulators should not try to split off various pieces of the mountaintop removal issue into separate small studies.
Already, the government is more than 4 years behind schedule to release a final version of a broad study of mountaintop removal. Issues such as the buffer zone changes all should be part of that broader study, Hecker said.
“Now, we have a situation where nothing that they are doing is connected,” Hecker said. They can’t piecemeal us and look at one action at a time.”
Carol Raulston, a spokeswoman for the National Mining Association, said industry officials “remain confident that the EIS will demonstrate that the rule issued by OSM was appropriate and in order.”
In its proposed rule changes last year, the OSM wanted to weaken the test that companies would have to meet for a variance from the buffer zone rule.
Under the proposal, a variance would be allowed 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.”
In his 1999 ruling, Haden had said valley fills could never meet the strict test for a variance from the existing buffer zone rule.
“When valley fills are permitted in intermittent and perennial streams, they destroy those stream segments,” Haden wrote.
“The normal flow and gradient of the stream is now buried under millions of cubic yards of excess spoil waste material, an extremely adverse effect,” the judge wrote. “If there are fish, they cannot migrate. If there is any life form that cannot acclimate to life deep in a rubble pile, it is eliminated.
“No effect on related environmental values is more adverse than obliteration,” Haden wrote. “Under a valley fills, the water quantity of the stream becomes zero. Because there is no stream, there is no water quality.”
In 2001, the 4th U.S. Circuit Court of Appeals in Richmond, Va., overturned Haden. But the court ruled only on jurisdictional grounds, not on the merits of Haden’s decision.
The OSM said it “believes there may be a need to clarify” the buffer zone rule. The agency cited “highly contradictory views on the application” of the rule.
In Thursday’s announcement, the OSM said it will accept public comments until mid-August on how to design the buffer zone study.
The OSM also said it will hold “scoping meetings” in Pittsburgh; Knoxville, Tenn.; Alton, Ill.; Denver; and Washington.
None of the meetings was scheduled for any of the nation’s top three coal-producing states — Wyoming, West Virginia and Kentucky.