On April 6, 2001, four months after Bush's inauguration, representatives of the National Mining Association met with EPA officials for 90 minutes to argue for reviving the rule -- but with significant changes. For starters, the mining representatives said, the Clinton-era rule set too many limits on the kinds of materials that could be classified as "fill," according to an EPA memo summarizing the meeting.
Industry officials "expressed opposition to adding a definition of 'unsuitable fill material,' " the memo states.
"Mountaintop removal" mining has flattened many peaks, such as these near Kayford, W.Va.
(Bob Bird -- AP)
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
_____About this Series_____About this Series
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.
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.
A Word Accelerates
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.
The attempt to revive the rule drew protests not only from environmentalists but also from many Republicans in Congress. Rep. Christopher Shays (R-Conn.) joined Rep. Frank Pallone Jr. (D-N.J.) in sponsoring a bill that would have outlawed dumping mine waste in streams. And, as the Bush administration had not scheduled additional public hearings on the revised rule, Sen. Joseph I. Lieberman (D-Conn.) convened a Senate hearing to decry what he described as a "shameful" attempt to weaken the Clean Water Act. Among those speaking out against the rule at the hearing was Kevin Richardson, a Kentucky native and member of the pop group the Backstreet Boys.
Yet, the final version of the Bush administration's fill rule published in May 2002 contained nearly all the changes the mining industry requested. The definition of "fill" was expanded to include "rock, sand, clay, plastics, construction debris, wood chips [and] overburden from mining." Only garbage was expressly excluded.
As the fill rule moved through the bureaucracy, the administration was taking steps to contain another potential threat to mountaintop mining: the environmental impact study begun under President Bill Clinton to assess the need for limits on the size of future mines.
As part of the study, federal scientists and engineers had spent more than two years documenting damage to Appalachian streams and wildlife. Some panel members had prepared draft recommendations that called for restricting valley fills larger than 250 acres. But Griles, the Interior Department undersecretary, informed panel members in an Oct. 5, 2001, memo that their study lacked the proper focus and needed restructuring. He ordered recommendations for "centralizing and streamlining coal-mine permitting," according to the memo, which the environmental law firm Earthjustice obtained under the Freedom of Information Act.
"We do not believe the [study] as currently drafted focuses sufficiently on those goals," Griles wrote.
Scientists who were at work on the report found the change in direction inexplicable, internal memos and e-mails show. "Our proposed approach was subsequently voted down within the executive committee," one Fish and Wildlife Service employee explained to colleagues in a memo, "in part because a decision appears to have been made that even minor modifications to current regulatory practices are now considered to be outside the scope" of the study.
The Bush administration defended its handling of the environmental study. In a written statement, the Interior Department said Griles had not sought to influence the panel. The statement notes that Griles had urged scientists to recommend ways to allow mining to continue "in an environmentally sound manner."
By the time the Bush administration released the study, all proposals for limiting valley fills had indeed been omitted. And, as Griles had urged, the document's main recommendations called for cutting bureaucratic red tape and speeding up the permitting process.
One government scientist complained in an e-mail to colleagues: "All we have proposed is alternative locations to house the rubber stamp that issues the permits."
In January 2004, the administration took another major step to help the coal industry dodge legal obstacles. At the time, mining permits were being challenged in court on grounds that they violated a 20-year-old regulation that banned mining within 100 feet of a stream. Like the fill rule, the "buffer zone" rule, adopted during the Reagan administration, was widely ignored in practice. Owing to the sheer size of the projects, mountaintop mining in Appalachia always entailed destroying streams.
Under the Bush administration's proposal, miners would be exempt from the buffer rule, provided they could show that they took measures "to the extent possible" to protect water quality and avoid harm to fish and wildlife. Administration officials contend that the buffer-zone rule does not weaken environmental protections but merely recognizes a reality that has existed in the coal fields for decades.
The changes have not entirely eliminated legal threats to mining. Last month, a federal judge revoked permits for 11 West Virginia mines, ruling that federal officials used improper procedures in granting fast-track approval for new mines. Industry officials are preparing an appeal while lawyers study the implications of the ruling.