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This article originally provided by
The
Charleston Gazette
By Ken Ward Jr.
Staff writer
MORE ONLINE: Read about the rule changes at
www.osmre.gov
CHARLESTON, W.Va. -- The White House and the U.S. Environmental
Protection Agency signed off Tuesday on plans to revoke parts of a
key water quality rule that could have been used to limit the burial
of streams by mountaintop removal coal mining operations.
Approval by EPA and the White House Office of Management and Budget
paved the way for Interior Department officials to finalize
industry-backed changes in the 25-year-old stream "buffer zone"
rule.
Environmental groups had fought the change, because they hoped that
either court actions or moves by the incoming Obama administration
might use the buffer zone as a tool to more strictly regulate
mountaintop removal.
Citizen groups were especially upset over the last few weeks, as it
became clear that EPA was going to concur with the rule change
proposed by Interior's Office of Surface Mining, Reclamation and
Enforcement.
"Once again, the Environmental Protection Agency has failed to live
up to its name," said Joan Mulhern, a spokeswoman for the group
Earthjustice.
In a prepared statement, EPA spokeswoman Enesta Jones said her
agency "worked closely with OSM to enhance environmental provisions
in the final rule, including requirements that no mining activities
may occur in or new streams that would violate federal or state
water quality standards."
Under the changes in the final rule, EPA would consider mining
valley fills incompliance with water quality standards if mining
operators obtained "dredge-and-fill" permits from the U.S. Army
Corps of Engineers. But, the standard for obtaining such a permit
allows a greater level of damage than would be permitted under OSM's
previous version of the buffer zone rule.
Over the last few months, the buffer zone battle has heated up, with
governors of two Appalachian coal states -- Kentucky and Tennessee
-- have joined with environmental groups to fight the Bush
administration changes.
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 OMB approval of the resulting rule was made
public Tuesday morning.
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 has
repeatedly 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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