EPA approves mountaintop removal rule changes
Posted on December 4th, 2008By Noelle Straub
Greenwire: U.S. EPA yesterday approved changes to the rule governing mountaintop mining activity near bodies of water, the last step needed to finalize a measure that critics say will lead to irreparable harm to mountain waterways.
The Bush administration needed EPA’s approval to alter the 25-year-old rule because the agency must agree to any mining regulations that could affect air and water quality. The Office of Management and Budget also signed off on the changes earlier this week, and they are expected to take effect before President George W. Bush leaves office next month.
The administration and the mining industry say the rule change is necessary to end litigation over whether Congress intended to allow dumping of huge piles of debris, called “valley fills,” when it passed the Surface Mining Control and Reclamation Act of 1977, but critics say the move is a last-minute power grab for the coal industry.
Environmentalists and politicians who opposed the change — including the governors of Kentucky and Tennessee — had lobbied EPA in recent weeks, hoping it would refuse to agree to the changes. They now hope that the incoming Obama administration will decide to reconsider the rule.
Mountaintop mining companies use the practice to expose coal seams in West Virginia, Kentucky and other Appalachian states, shearing off ridge tops and depositing waste rock in valleys, many of which are coursed by streams. Current rules, which have been in effect since 1983, require coal operators to establish a 100-foot buffer around streams to protect them from mining operations, including roads.
The proposed rule change would extend the stream buffer zone rule to all waters, including lakes, ponds and wetlands. But it would also exempt certain activities, including permanent excess spoil fills and coal waste disposal facilities, and allow mining that would change a waterway’s flow, provided the mining company repairs the damage later.
Companies also could receive a permit to dump waste within the 100-foot buffer if they explain why an alternative is not reasonably possible and identify a range of possible amounts and locations, choosing the one with the least overall adverse environmental impact.
“This rule will provide long-term regulatory stability by clearly specifying the activities to which the buffer requirement does and does not apply and describing the relationship between our rules and the Clean Water Act,” a summary of the rule says. “It also will promote environmental protection by requiring that mining operations be designed to minimize both the creation of excess spoil and adverse environmental impacts resulting from the disposal of excess spoil and coal mine waste.”
EPA said it only approved the changes after winning some concessions. The regulation retains a provision requiring that no mining activity potentially affecting water quality in rivers and streams may proceed unless it is approved under the Clean Water Act, EPA Administrator Stephen Johnson wrote in a letter agreeing to the changes. The Office of Surface Mining Reclamation and Enforcement had proposed to remove a similar provision, Johnson said.
But Allen Hershkowitz, a senior scientist at the Natural Resources Defense Council, said EPA’s approval of the rule is “ecologically and economically indefensible.”
“Only a few companies, and bad actors at that, will benefit from this rule change, which makes it legal to use the most environmentally harmful coal mining technology available,” he said. “This action, once again, solidifies the disastrous environmental legacy of Bush administration.”
The National Mining Association said the rule change will protect jobs in the affected states.
OMB estimated that the changes would cost affected coal operators in Kentucky, Virginia and West Virginia about $240,500 because of the requirement to document the analyses and findings required by the regulatory changes.
The Office of Surface Mining said the rule also would require mining operations to demonstrate that they have minimized the creation of excess spoil, that excess spoil fills have been designed to be no larger than needed and to consider various alternative spoil disposal plans.
Community, environmental and religious groups critical of OSM’s plan argue that hundreds of miles of streams in the Appalachian Mountains have been buried under the waste generated by mountaintop removal mining and that any change to the rule would only allow more damage.
The changes will take effect 30 days after it is printed in the Federal Register.
Click here to read Johnson’s letter.