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Appalachia Is Paying Price for White House Rule Change

Only in the late 1990s did the problems begin to command the sustained attention of federal environmental officials. W. Michael McCabe, a deputy administrator of the Environmental Protection Agency in the late 1990s, recalled feeling astonished during a 1998 plane flight in which he passed over several of the largest mines in the middle of the lush West Virginia highlands. The denuded, flattened hills were a jarring sight, "like landing decks for alien spacecraft," he said.

McCabe said his agency had not anticipated the exponential growth of mountaintop mines. A key factor, he said, was a decision by mining companies in the 1980s to apply the techniques and supersize machines of western strip mines to Appalachia, where coal mines historically had been smaller and less efficient.


"Mountaintop removal" mining has flattened many peaks, such as these near Kayford, W.Va. (Bob Bird -- AP)

_____Altered State_____
Flattening the Mountains: How mining companies tear down mountains and fill adjacent streams and hollows. Also, how the "fill rule" became law.
Map: W.Va. Mining Areas
_____More From Series_____
Bush Forces a Shift In Regulatory Thrust (The Washington Post, Aug 15, 2004)
'Data Quality' Law Is Nemesis Of Regulation (The Washington Post, Aug 16, 2004)
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About this Series

Sunday

An Agency Takes a Turn

Under President Bush, the Occupational Safety and Health Administration has made sometimes subtle changes in regulations that carry large consequences for workers and employers. Across the government, the Bush administration has started fewer regulations and killed more inherited proposals than did either of the two previous administrations.

Monday

A Policy Puts Science on Trial

A last-minute addition to an unrelated piece of legislation has created a tool for attacking the science used by federal agencies as a basis for new regulations. Industry has embraced the Data Quality Act to challenge 32 major proposals, including a successful assault on efforts to restrict the use of the herbicide atrazine.

Today

A Word Accelerates

Mountaintop Mining

By changing the word "waste" to "fill" in a regulation covering coal mining, Bush appointees have allowed an increase in the destruction of mountaintops in Appalachia.

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"The acreage affected by these mines went through the roof -- from the hundreds to the thousands of acres," said McCabe, now a private consultant. "It was the difference between a hand saw and a chain saw."

Bending Policies

Ironically, the fill rule that reopened the door to mountaintop mining grew out of an attempt by the Clinton administration to strengthen government oversight of these dramatically larger new mines. But what happened to the proposal shows how different administrations can bend the policies of their predecessors to meet their own priorities.

By mid-1998, McCabe and other senior EPA officials wanted a broad review of federal policies for mountaintop mines. They were motivated not only by accumulating evidence from the field but also by growing external pressure from local environmentalists and citizens groups, current and former agency officials said in interviews.

A lawsuit filed in 1998 accused federal agencies of violating the Clean Water Act by granting permits for mountaintop mines. The suit, filed by the environmental group West Virginia Highlands Conservancy, cited a little-noticed clause in the regulations of the Army Corps of Engineers, the agency that grants approval for most construction projects involving alterations to streams, rivers or wetlands. While the Army allowed builders to put clean "fill" materials in waterways for purposes such as building bridges or artificial reefs, the rules explicitly forbade the dumping of waste.

As the Army defined it, mining debris was "clearly waste," said Joe Lovett, director of the Appalachian Center for the Economy and the Environment, a nonprofit law firm that represented activists in the suit. Yet, for more than a decade, Army officials had issued the permits anyway.

"The Army was allowing coal companies to use waterways as giant trash heaps, without any environmental analysis," Lovett said. "They did not have the authority to do that."

In 1999, a federal judge agreed with Lovett's interpretation in a decision that called into question the legality of virtually every mountaintop mine in Appalachia. Faced with a potentially disastrous shutdown of the region's most powerful industry, the Clinton administration agreed to an out-of-court settlement: The activists would drop the lawsuit in exchange for a federal promise of closer scrutiny of mining permits and a thorough scientific review, called an environmental impact statement.

The administration would allow mining debris to be deposited in streams, but only as part of a comprehensive approach that would address long-term environmental concerns. "We would not go forward with the fill rule except as part of this comprehensive approach," McCabe said.

But the comprehensive approach went nowhere. Negotiations between the EPA and industry officials on proposals for limiting the size of valley fills stalled and then stopped altogether as the presidential election of 2000 approached. The court ruling that questioned the legality of valley fills was overturned on appeal. Meanwhile, West Virginia coal executives had begun to stake their hopes on an administration change in Washington. The state's coal firms raised $275,000 for Bush. Many West Virginia coal miners, fearing that Democratic contender Al Gore's environmental policies would eliminate coal field jobs, joined prominent business leaders in campaigning for the Texas governor.

After the election, administration officials publicly promised to remove the legal bureaucratic roadblocks to the mining permits. Newly appointed Deputy Interior Secretary J. Steven Griles, a former coal industry lobbyist, made a specific pledge to the West Virginia Coal Association in a speech in August 2001:

"We will fix the federal rules very soon on water and spoil placement," Griles said.

New Administration

Under the new Bush administration, the "fixes" were rolled out in quick succession. The first was the fill rule, which had been proposed by the Clinton administration but essentially abandoned in the face of harsh criticism from local opponents and environmentalists, who flooded the EPA with 17,000 letters and public comments.


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