By Juliet Eilperin
Washington Post Staff Writer
Wednesday, December 3, 2008
The Bush administration finalized rules yesterday that will make it easier for mountaintop mining companies to dump their waste near rivers and streams, overhauling a 25-year-old prohibition that has sparked legal and regulatory battles for years.
The regulation got signoffs from the Office of Management and Budget and the Environmental Protection Agency this week and will go into effect 30 days after it is published in the Federal Register. The change is intended to resolve a nearly five-year-old fight over how companies can dispose of the vast amounts of rubble and sludge created when they blow the tops off mountains to get to the coal buried below, although the incoming Obama administration could revisit the issue.
"This rule strengthens what can and can't be done in streams," said Office of Surface Mining spokesman Peter Mali, whose agency crafted the measure.
A senior administration official, who spoke on the condition of anonymity because the rule has not been published, said new safeguards in the regulation will reduce the amount of waste deposited in Appalachian mountain waterways and is "going to impose costs on the coal industry."
But coal officials, who had lobbied for the change, said it would not burden the industry and would help protect Appalachia's 14,000 mountaintop mining jobs.
"We had sought clarification on the rule because there had been various court decisions that put a halt to surface mining. This put jobs at risk and mining activities at risk," said Carol Raulston, a spokeswoman for the National Mining Association.
Mountaintop mining, which yields 130 million tons of coal a year and accounts for 10 percent of the nation's coal production, is cheaper and safer than underground mining. But this method of reaching valuable low-sulfur coal seams below ground generates large amounts of rubble and sludge that are usually trucked away to be dumped in the region's steep valleys.
Under a 1983 law, mining operators were barred from dumping the massive piles of debris, called "valley fills," within 100 feet of any intermittent or permanent stream if the material would harm a stream's water quality or reduce its flow. But federal and state courts have issued conflicting interpretations of the law, and widespread dumping continued; the government estimated that about 1,600 miles of streams in Appalachia have been wiped out since the mid-1980s, and regulators expect that roughly 100 miles of streams will be legally filled each year under the new rule.
The regulation would require companies to avoid the 100-foot stream buffer zone unless they show why they cannot do so. If they do dump the waste in the buffer zone, they must try to minimize or avoid harming streams "to the extent practicable" and compensate for the damage somewhere else.
Environmentalists decried the decision, noting that an EPA study in July documented that waste from coal-mining operations in southern West Virginia has been found to be "strongly related to downstream biological impairment," including a drop in the diversity of aquatic life.
Vernon Haltom, co-director of West Virginia-based Coal River Mountain Watch, said EPA Administrator Stephen L. Johnson's letter certifying that the new rule complies with the Clean Water Act "is a slap in the face of Appalachian communities, which have already endured enough injustice from mountaintop removal. My home and thousands of others are now in greater jeopardy."
Johnson wrote Interior Secretary Dirk Kempthorne yesterday that he was satisfied that the regulation had enough water-quality protections in it: "Americans should not have to choose between clean coal or effective environmental protection; we can achieve both."
Coal industry and administration officials said many of the streams that will be covered in mine waste are small or ephemeral. "You're not talking about big, ecologically valuable areas," the senior Bush official said. "This will not be a negative environmental impact."
But Cindy Rank of the West Virginia Highlands Conservancy said some of the waterways that have been lost are significant even if they are not major rivers.
"With this rule change, the outgoing Bush administration is poised to eliminate forever more of our headwater streams -- the very lifeblood of our mountains and the source of healthy water resources that future generations will depend upon," Rank said.