Dumping Mountaintops in Coal Country Streams Illegal, Lawsuit Claims

The complaint filed by the National Parks Conservation Association and the Southern Environmental Law Center seeks to block the changes in the Stream Buffer Zone Rule made in December that they say remove the original rule's water quality protections and legalize the destruction of streams in the region's coalfields.

The U.S. Environmental Protection Agency and the Office of Surface Mining are named in the suit, which focuses on protection of federally listed endangered species.

"The Bush administration has undermined protections for national parklands in Tennessee and Kentucky, said National Parks Conservation Association Program Analyst Bart Melton.

There are 10 active coal mine operations in Tennessee's New River watershed, which flows into the Big South Fork National River and Recreation Area.

"Already," said Melton, "mining operations are threatening endangered fish and mussel species found only in the Big South Fork National River. If this shortsighted rule change stands, wildlife in our national parks, including species found nowhere else in the world, could be lost forever."

In mountaintop removal, coal companies clearcut the forests and blast apart the mountain ridges to get at the underlying coal seams. The practice sends tons of sediment into streams and rivers, induces acid drainage and weakens the slopes, leading to future landslides and making the return of native forests virtually impossible, the parks association says.

The rule change exempts the dumping of dirt and rubble from mountaintop blasting from the requirement to leave a 100-foot protective buffer zone along streams so long as the operator minimizes environmental damage "to the extent possible."

The rule change eliminates the requirement that regulators must first determine that coal mining activities in streams or next to streams would not harm water quality or quantity, the environmentalists say.

"We believe that the new rule is consistent with a key purpose of the Surface Mining Law, which is to strike a balance between environmental protection and ensuring responsible production of the coal essential to the nation's energy supply," said C. Stephen Allred, assistant secretary of the interior, land and minerals management.

"To minimize the size of the excess spoil fills constructed in stream valleys, the new rule provides that mining operations must return as much of the overburden as possible to the excavation created by the mine," Allred said.

"When avoidance is not possible, the operator must identify a range of reasonable alternatives for disposing of the remaining overburden and select the alternative with the least overall adverse environmental impact," said Allred.

"The new rule requires that the operator avoid disturbing land within 100 feet of a perennial or intermittent stream unless he or she can demonstrate that it is not reasonably possible to avoid disturbance, or that avoidance is not necessary to meet environmental requirements," he said.

"The new rule also fosters regulatory stability by clarifying the stream buffer zone rule and resolving long-standing controversy over how that rule should be applied," said Allred.

The environmentalists view the rule change as continuing, not resolving, the controversy.

"The new rule basically allows the bulldozers and backhoes to tear up or pollute miles and miles of headwater streams in the mountains that are the source of drinking water for thousands of people and habitat for vital species," said Southern Environmental Law Center attorney Deborah Murray.

Mountaintop removal coal mine in southwest Virginia (Photo courtesy Southwings)

The change in the Stream Buffer Zone rule will have negative impacts on water quality and stream health by condoning mining operations that have already buried at least 724 stream miles and damaged at least 484 more miles in Virginia, Tennessee, Kentucky and West Virginia, the plaintiffs claim.

The two federal agencies failed to consult with the U.S. Fish and Wildlife Service about potential impacts of the rule change to threatened and endangered species and critical habitat, as required by the Endangered Species Act, the lawsuit claims.

Instead, Office of Surface Mining relied on a 1996 "Biological Opinion," a legal document which said that no coal mining operation anywhere in the U.S. would ever harm threatened or endangered species listed then, or in the future - as long as OSM complied with the requirements of the Surface Mining and Control Act, including the former 1983 Stream Buffer Zone rule.

Murray says the Biological Opinion itself is unlawful. The National Parks Conservation Association and other groups petitioned the federal government last year to revoke the document and return to required consultation between the Office of Surface Mining and the Fish and Wildlife Service for coal mining activities.

"It's a closed-loop system - the agencies fail to enforce the stream protection rule, the coal industry takes advantage of that, the agency then changes the rule to allow the harmful mining activities to continue, and rely on an illegal policy to do so." Murray said.

The aquatic species in the watersheds of the Clinch, Powell and the Big South Fork rivers are at risk of being buried by coal companies, the lawsuit alleges.

There are 31 active coal mines in the upper Clinch River watershed in Virginia. The Clinch is inhabited by at least 126 native fish species and at least 44 species of mussels. Of these, 18 fish and mussel species are federally listed as threatened or endangered.

There are 69 active mine operations in the upper Powell River watershed in Virginia. The Powell River was once inhabited by at least 41 species of mussels and 90 species of fish. Of those that remain, two fish species and seven mussel species are federally listed.

Recent surveys in the Big South Fork of the Cumberland found 68 fish species and 24 mussel species. Six of its mussel species are federally listed as endangered. The river system also supports at least three species of federally protected fish.

In December, several other conservation groups also filed a federal lawsuit challenging the Stream Buffer Zone Rule under the Clean Water Act and the National Environmental Policy Act.

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