Revised mining rule heartens industry, worries environmentalists

A proposed rule change by the Interior Department would clarify how coal mining companies may dispose of excess rock generated in the long-standing but controversial mining process known as mountaintop removal. Environmentalists fear the change will expand the unusually destructive practice and weaken protections for streams near mining operations.

In revising what's known as the stream buffer zone rule, Interior's Office of Surface Mining Reclamation and Enforcement seeks to spell out guidance on where coal companies may dump excess rock and debris that results from a particular form of strip mining practiced in the mountainous Appalachian coal fields in parts of West Virginia and Kentucky.

In mountaintop removal mining, companies use demolitions to access hard-to-reach coal seams, a process that generates tons of rock and sediment. The law requires that as much debris as possible is to be returned to the site after the coal is mined; nonetheless, it is not possible to rebuild destroyed mountains, and excess debris typically is dumped in nearby valleys, transforming the mountainous landscape and burying and polluting streams in the process.

The practice, while condemned by environmentalists, has been condoned by a number of agencies, including the Army Corps of Engineers, the Environmental Protection Agency and state agencies that oversee mining operations.

The West Virginia Highlands Conservancy, a conservation group opposed to mountaintop mining, maintains that more than 2,000 miles of streams in Appalachia have been buried in waste, resulting in erosion, flooding and water contamination.

"Permanently destroying thousands of miles of mountain streams is more than irresponsible; it is insane," the group said in comments on its Web site protesting the rule change. The conservancy, and other environmental associations opposed to the proposal, could not be reached Wednesday.

An environmental impact statement prepared by officials in the Office of Surface Mining acknowledges that, over the last two decades, more than 700 miles of streams have been buried under debris, and predicts that number will double over the next two decades.

Ben Owens, a spokesman for Interior's surface mining office, said the new rule will require coal companies "to go to much greater lengths to show they're using the best technology available to limit the impact" on the environment. In the past, coal companies only needed to detail their favored reclamation plan -- now they will need to submit multiple plans with detailed analysis of each.

The rule change will increase the agency's workload because staff will need to evaluate multiple plans with each application. The agency has no plans to increase staffing levels to handle the greater workload, Owens said.

The rule is consistent with the 1977 Surface Mining Control and Reclamation Act, which specifically envisions mountaintop mining, Owens said.

In 1998, the highlands conservancy sued the Army Corps of Engineers and the state of West Virginia over their interpretation of the rule governing valley fills. A district court in 1999 found that the stream buffer zone rule prohibits valley fills in streams, but the U.S. Court of Appeals for the Fourth Circuit reversed that decision in 2001. In 2003, the same appeals court ruled in another case that the Surface Mining Control and Reclamation Act did in fact envision that excess debris would be placed in streams.

The mining industry supports the rule revision even though it will impose additional permit application costs on industry, said Luke Popovich, a spokesman for the National Mining Association.

The rule, if adopted, should discourage lawsuits seeking to prevent an activity Congress never intended to prevent, Popovich said. "What the agency has done is bring the interpretation [of the rule] in concert with what appeals courts have unambiguously said," he said.

Coal mining in Appalachia would grind to a halt if companies were not allowed to dump excess debris in valleys below, Popovich added, because alternative mining practices are not economically feasible. Anyone wishing to stop the practice "will confront the inconvenient fact that this has always been a bipartisan initiative," he said.

The public may comment on the proposed rule change by going to http://www.regulations.gov and using Docket Number RIN 1029-AC04. The environmental impact statement prepared by Interior's Office of Surface Mining can be found at: http://www.osmre.gov/eis/draftosm-eis-34.pdf