Bush Rule Allowing Coal Waste Valley Fills 'Legally Defective'

Under the Bush rule, coal companies can dispose of excess mountaintop spoil in perennial and intermittent streams and within 100 feet of those streams.

Salazar directed the U.S. Justice Department to file a pleading with the U.S. District Court in Washington, DC requesting that the "stream buffer zone rule" be vacated due to this deficiency and remanded to the Department of the Interior for further action.

"In its last weeks in office, the Bush Administration pushed through a rule that allows coal mine operators to dump mountaintop fill into streambeds if it's found to be the cheapest and most convenient disposal option," said Secretary Salazar.

Under the controversial mountaintop removal method of mining, coal seams running through the upper fraction of a mountain, ridge, or hill are reached by blasting and removing each layer of rock above the seam. The removed rock is placed in adjacent valleys, permanently eliminating the valley streams. These terraced fills of waste rock can be hundreds of feet tall.

Valley fill at the Hobet-21 mine in southern West Virginia July 2007 (Photo by Vivian Stockman, Ohio Valley Environmental Coalition courtesy NASA)

In the past 20 years, thousands of miles of streams in Appalachia, constituting over two percent of the streams in the area, have been impacted by the discharges associated with mountaintop mining. In West Virginia alone, over 200 miles of streams have been permanently lost.

"We must responsibly develop our coal supplies to help us achieve energy independence, but we cannot do so without appropriately assessing the impact such development might have on local communities and natural habitat and the species it supports," Secretary Salazar said today

"The so-called 'stream buffer zone rule' simply doesn't pass muster with respect to adequately protecting water quality and stream habitat that communities rely on in coal country," he said.

The Bush rule replaced a rule that had been on the books since the Reagan-era rule of 1983. This earlier rule provides greater protection for communities and habitat by allowing the dumping of overburden within 100 feet of a perennial or intermittent stream only upon finding that such activities "will not adversely affect the water quantity or quality or other environmental resources of the stream."

Under the Bush rule, disposal into streambeds is permissible when alternatives are considered "unreasonable," which occurs under the Bush rule whenever the cost of pursuing an alternative "is substantially greater" than normal costs.

Two lawsuits were filed immediately after the Bush rule was published.

If the court accepts the United States' request and vacates and remands the rule, the 1983 rule will continue to remain in force in all of the states that have delegated authority under the Surface Mining Control and Reclamation Act. Only two states, Washington and Tennessee, do not have delegated authority under this Act.

Environmental groups are likely to be pleased with Salazar's decision.

This is the second recent victory for environmental groups fighting mountaintop removal mining and the dumping of waste rock known as valley fill.

On March 31, a federal judge in Charleston, West Virginia ruled in favor of three environmental groups that challenged the U.S. Army Corps of Engineers' decision to issue a nationwide permit, NWP 21, authorizing the discharge of dredged and fill material associated with surface coal mining activities, which includes mountaintop mining. A nationwide permit takes the place of individual permitting decided on a case by case basis.

Chief Judge Joseph Goodwin ruled that the Corps was "arbitrary and capricious" in its decisions that a nationwide permit would only have minimal cumulative environmental impacts and that no environmental impact statement was needed.

Salazar said today that the federal Office of Surface Mining expects to issue guidance to states regarding application of the 1983 rule. Also, OSM expects to solicit public comment on the potential development of a comprehensive new stream buffer zone rule.

A new rule would update the 1983 rule, address ambiguities and fill interpretational gaps, while implementing the statutory requirements set forth in the Surface Mining Control and Reclamation Act. It would ensure that SMCRA requirements are coordinated with Clean Water Act obligations administered by the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency.

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