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This article originally provided by E and E News

Lawsuit aims to overturn mountaintop removal rule

Eric Bontrager, E&E reporter

Environmental groups filed a lawsuit today aimed at overturning a recent Bush administration rule change that loosened restrictions on mountaintop-removal mining.

Earthjustice and the Appalachian Center for the Economy and the Environment filed the suit in federal district court in Washington on behalf of six coal-country advocacy groups contesting the legality of the so-called "stream buffer zone" rule.

The groups contend that U.S. EPA and the Office of Surface Mining failed to adequately consider the environmental impacts of the rule change on mountaintop ecosystems and communities.

The rule is intended to protect mountain streams and waterways from waste produced by mountaintop removal, a mining technique that involves cleaving the tops from mountains to reach coal seams. Many valleys affected by waste dumping are coursed by rivers and streams.

A 1983 rule required miners to establish a 100-foot buffer around streams, but the new rule -- finalized last week -- would extend the buffer to all waters, including lakes, ponds and wetlands. But the new rule would also exempt certain activities, including permanent spoil fills and coal-waste disposal facilities, and allow mining that changes water flow, provided the 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 dumping area is not reasonably possible and identify a range of possible waste amounts and locations.

EPA signed off on the rule change, but not without getting some concessions from the Office of Surface Mining, including a requirement that any mining that could affect water quality must be approved under the Clean Water Act.

The groups claim in their motion that the rule change still violates the water pollution law and that EPA was negligent in its duties when it signed off on the change earlier this month.

The executive director of the Appalachian Center for the Economy and the Environment, Joe Lovett, expressed confidence that his side would prevail in court. "We feel this will move through the court fairly quickly," he said.

A big factor will be whether either agency will contest the lawsuit after President-elect Barack Obama is inaugurated. No court date has been set for the lawsuit, but it's likely that the first hearing will occur sometime after the new administration is in place.

"We don't know who will be the new head of OSM or EPA, but we expect the Obama administration to be more reasonable than Bush," Lovett said.

Still, the mining industry could petition to intervene on the lawsuit if the Obama administration doesn't pursue the case.

"It's the model of a very deliberate process," National Mining Association spokesman Luke Popovich said of the rule change, noting the three-and-a-half-year effort by the mining office to amend the rule. "It clarifies the issues that have allowed groups like this to continue filing lawsuits."

OSM declined to comment. Calls to EPA were not returned by deadline.

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