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OSM proposes exempting fills from buffer zone rule

Coal operators continue to bury hundreds of miles of Appalachian streams, according to a new federal report that proposes to exempt valley fills from a stream buffer zone rule.

About 535 miles of streams, mostly in Appalachia, will be damaged by strip mining under permits issued between October 2001 and June 2005, according to the U.S. Office of Surface Mining Reclamation and Enforcement report.

Roughly two-thirds of those stream miles - or 357 miles - will be permanently buried by mining waste, according to the OSM report, expected to be formally made public Friday.

The 191-page report is dated April 2007, but has not previously been released. Copies were mailed to interested parties this week. A public comment period is being held, and hearings could be scheduled later.

The OSM prepared the report, called an Environmental Impact Statement, as part of its proposed rewriting of the federal stream buffer zone rule.

In January 2004, the OSM had proposed to essentially eliminate the more than 20-year-old rule, which generally prohibits mining activity within 100 feet of streams. The OSM delayed the move in June 2005 so it could conduct an environmental study.

The OSM concluded in the new report that it should "clarify the kinds of coal mining activities that are subject to the rule.

"Surface mining and reclamation activities occurring adjacent to, but not in, streams and temporary or permanent diversions of intermittent and perennial streams would be subject to the rule," the OSM stated. "Stream crossings, sedimentation ponds, permanent excess spoil fills, and coal waste disposal facilities would not be."

Coal operators can already obtain variances to mine within the 100-foot 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."

A previous government study, published in 2003, found that mining between 1992 and 2002 had damaged 1,200 miles of Appalachian streams. That study also found that mine operators had buried about 724 miles of the region's streams between 1985 and 2001.

The OSM argues in its new study that "the number and size of excess spoil fills could be becoming smaller."

Fill acres and the size of affected watersheds have "decreased steadily" since 1998, according to the OSM.

Between 2002 and 2005, the number of fills permitted in both West Virginia and Kentucky decreased, the OSM said. The average size of Kentucky fills declined over that period, while the average footprint acreage in West Virginia "shows an erratic trend over these years," the OSM said.

The new OSM report also recounted studies that have found increased sedimentation downstream from valley fills, as well as water quality violations for selenium.

In 1999, then-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.

The OSM says in its new report that a rewrite is needed to clear up "considerable controversy over the interpretation of the 1983 rule.

"Federal action is needed to end the ambiguity in interpretation of the stream buffer zone rule and ensure that regulatory authorities, mine operators, other governmental entities, landowners and citizens all can have a common understanding of what the stream buffer zone rule does and does not require, consistent with underlying statutory authority," the OSM said.

The study listed 16 possible alternatives, but OSM officials examined only four of those in any significant detail.

Among the alternatives eliminated from detailed study were 10 proposals to ban or specifically limit the size of valley fills.

The OSM said it does not have legal authority to take such steps. Fill limits would "unnecessarily impair the ability to implement Congress' explicit purpose of assuring an adequate coal supply for our nation's energy requirements," the OSM said.

The OSM said it plans to propose a rule to require coal operators to avoid or minimize the use of valley fills. Operators would be required to submit a plan showing that their operation would "result in the least adverse environmental impacts."

But the OSM concluded that this rule would "cause no discernable changes to the direct stream impact trend" or at best "a minor decrease in length of stream impacted."

Jim Hecker, environmental enforcement director at the group Public Justice, said, "OSM summarily rejected all alternatives that would reduce harm and only considered those that would allow stream burials to continue at the same rate as in the past.

"OSM's own report shows that valley fills harm downstream water quality, but this proposal does nothing to address it," Hecker said Tuesday.


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