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This article originally provided by
The
Charleston Gazette
By Ken Ward Jr.
Staff writer
CHARLESTON, W.Va. -- Political opposition is building as the Bush
administration moves to revoke parts of a key water quality rule
that could be used to limit mountaintop removal coal mining.
Governors of two Appalachian coal states - Kentucky and Tennessee -
have joined with environmental groups to fight industry-backed
changes in the stream "buffer zone" rule.
However, Department of Interior officials are poised to finalize the
changes anyway, perhaps as early as this week. So opponents have
shifted their focus to the U.S. Environmental Protection Agency,
which must sign off on the change before Interior's Office of
Surface Mining, Reclamation and Enforcements can enact it.
"Since EPA knows that valley fills destroy hundreds of miles of
streams and pollute downstream waters, we are hopeful they will do
their job as public watchdogs and not act like industry lapdogs,"
said Joan Mulhern of the group Earthjustice.
Enesta Jones, an EPA spokeswoman, said her agency has been working
with the OSM and the White House's Office of Management and Budget
"to include additional improvements to the OSM rule that we believe
respond to issues raised in these letters and which are relevant to
our concurrence decision."
Earthjustice and other environmental groups hope to convince the EPA
to veto the changes, or at least delay action until the Obama
administration takes office next month. President-elect Barack Obama
has said he opposes mountaintop removal, but has so far not offered
specifics for how he might rein in the practice.
For nearly five years, since January 2004, the Bush administration
has been working to essentially eliminate the more than 20-year-old
buffer zone rule. Generally, that rule prohibits mining activities
within 100 feet of perennial and intermittent streams.
Coal operators already can obtain variances to mine within the
100-foot buffer. To do so, though, companies must show that their
operations will not cause water quality violations or "adversely
affect the water quantity and quality, or other environmental
resources of the stream."
For years, the OSM and various state mining agencies have
interpreted the buffer zone rule to not apply to valley-fill waste
piles that bury streams.
In 1999, then-U.S. District Judge Charles H. Haden II concluded that
the rule did apply to valley fills. That decision was overturned on
appeal, but federal regulators and the coal industry still moved to
rewrite the rule.
The OSM proposed a rule in January 2004, and then delayed finalizing
it so agency officials could conduct a more detailed environmental
impact review. A final version of that review was made public in
October, and a companion rule is awaiting final White House
approval.
The OSM proposes to exempt valley fills from the buffer zone
rule. A companion rule would require coal operators to minimize
fills and consider alternatives.
However, under the federal strip mine law, the OSM cannot implement
the changes unless the EPA signs off on them.
In a flurry of letters over the past month, environmentalists have
pointed out that the EPA previously supported the existing buffer
zone rule and raised serious concerns about the OSM's proposed
changes.
"EPA has consistently stated that the current stream buffer rule is
necessary to protect water quality and prevent further violation of
water quality standards," said a Nov. 3 letter signed by Coal River
Mountain Watch and eight other groups. "Given that the proposed rule
will sanction and allow such violations to continue and increase,
EPA cannot lawfully concur in the proposed rule."
Kentucky Gov. Steve Beshear and Tennessee Gov. Phil Bredesen also
wrote letters last month to urge EPA administrator Stephen Johnson
not to sign off on the changes.
West Virginia Gov. Joe Manchin has not voiced an opinion on the rule
change, but the state Department of Environmental Protection
repeatedly has supported it.
DEP Secretary Randy Huffman said the OSM's requirement to minimize
the size of fills is similar to state guidance approved after
Haden's ruling.
"It doesn't lessen the standard," Huffman said. "It actually
tightens the standard."
Joe Lovett, director of the Appalachian Center for the Economy and
the Environment, said the state rules have reduced fill size. The
reductions have not been enough, though, Lovett said, and the OSM
rule would reduce Obama's options for limiting the impacts on
streams.
"[The OSM rule change] is an attempt to take away from regulators
the ability to limit valley fills through the use of the buffer zone
rule," Lovett said Monday.
Reach Ken Ward Jr. at kw...@wvgazette.com or 348-1702.
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