Bush Proposal Would Ease Mining Waste Rule

By J.R. Pegg

WASHINGTON, DC, January 8, 2004 (ENS) - The Bush administration has proposed industry friendly revisions to the "buffer zone" rule, which governs permits for coal mining activities that would disturb areas within 100 feet of streams. Currently the regulation prevents federal and state agencies from issuing such permits unless there is confirmation that the activities will not adversely impact water quality, but administration officials say the rule is onerous and confusing.

The proposed changes, announced Wednesday by the U.S. Office of Surface Mining (OSM), would strike the existing rule and instead call on coal operators to prevent and minimize damage to streams in the buffer zone "to the extent possible."

"These improvements will clarify our program requirements and reduce the confusion that has enveloped the energy producers, regulators and the public," said OSM Director Jeff Jarrett.

Critics say the change would allow coal companies to dump mining wastes directly on top of streams and contend the Bush administration is trying to protect a controversial mining practice called mountaintop coal mining.

The practice - labeled mountaintop removal coal mining by environmentalists - is a form of strip mining widely used in Appalachia in which mining companies blast hundreds of feet off the tops of mountains to easily access coal deposits.

Local groups have formed in many areas of Appalachia opposing mountaintop coal mining, which has harsh impacts on forests and nearby streams. (Photo by Charlie Archambault courtesy Ohio Valley Environmental Coaltion)

These forests are destroyed when the tops of mountains are blasted away, and cannot be restored to their previous health.

Environmentalists believe the practice of dumping mountaintop coal mining wastes into valley fills violates the stream buffer zone rule and see the proposal as an attempt by the administration to remove a vital environmental protection.

Joan Mulhern, senior legislative counsel for the nonprofit environmental law firm Earthjustice, says the claim the proposal is a clarification of a regulation "is a lie and an insult to the people of Appalachia and anyone who cares about the fate of America's environment."

Mulhern said the proposal is inconsistent with interpretations of the rule advanced by previous administrations before federal courts - the regulation was adopted by the Reagan administration in 1983.

In an earlier lawsuit based on the buffer zone rule, a federal court ruled that the rule applies to mining waste disposal in intermittent and perennial streams - but that verdict was subsequently overturned on jurisdictional grounds.

Administration officials - and industry groups - say the revisions would provider greater clarity to industry and balance the economic and environmental needs of regions that use the technique.

Jarrett said the proposal will reduce "conflicts and improve coordination" between relevant provisions in the Clean Water Act and the Surface Mining Act of 1977, which was enacted to limit the environmental impact of coal mining.

This is an aerial photograph of a mountaintop coal mining operation in West Virginia. (Photo by Vivian Stockman courtesy Ohio Valley Environmental Coaltion)

The industry remains a key economic engine for Appalachia and other regions of the country and some 50 percent of U.S. electricity is generated by coal. Tighter regulation of mining wastes from mountaintop coal mining would costs thousands of jobs, according to industry groups.

The practice is used throughout Appalachia, mostly in the states of Kentucky, Ohio, West Virginia, Virginia and Tennessee.

In 2002, the Bush administration finalized changes to the Clean Water Act that allowed the Army Corp to issue permits allowing the dumping of mine wastes into waterways.

Last October environmental groups filed suit in federal court in October against the U.S. Army Corps of Engineers for issuing those permits, which they contend violate the Clean Water Act and other federal environmental laws.

The stream buffer zone proposal was also part of a draft environmental impact statement (EIS) released in May 2003 that assessed the environmental damage of mountaintop coal mining and recommended new actions to protect Appalachian streams from effects associated with the mining technique.

The public comment period for the draft EIS, put out by the U.S. Army Corps of Engineers, closed Tuesday.

Ohio Valley Environmental Coalition Organizer Vivian Stockman said the timing of the OSM proposal shows the Bush administration is "essentially thumbing its arrogant nose at the over 70,00 people who commented" on the draft EIS.

The latest proposal will be open for public comment through March 8, 2004.