Salazar Seeks to Vacate Bush-Era Mining Rule
Disposal of Mountaintop Waste Was Eased

By Juliet Eilperin
Washington Post Staff Writer
Tuesday, April 28, 2009

Interior Secretary Ken Salazar instructed the Justice Department yesterday to seek a court order to overturn a Bush administration regulation allowing mining companies to dump their waste near rivers and streams, calling the regulation "legally defective."

The announcement, coming on the same day the Environmental Protection Agency said it was taking a second look at a handful of Bush-era rules on air pollution, shows that the Obama administration continues to chip away at its predecessor's environmental policies.

Some environmentalists, however, were disappointed by Salazar's move, arguing that more needs to be done and that the federal government has failed to enforce for decades its rule governing mountaintop mining practices.

The ongoing dispute centers on a 1983 law that bars mining operators from dumping piles of debris -- which stem from blowing off the tops of mountains to get to the coal -- within 100 feet of any intermittent or permanent stream if the material would harm a stream's water quality or reduce its flow. Federal and state courts have issued conflicting interpretations of the law, and widespread dumping continued. The government estimates that 1,600 miles of streams in Appalachia have been wiped out since the mid-1980s.

In December, the Office of Surface Mining Reclamation and Enforcement issued a rule that required companies to avoid the 100-foot stream buffer zone if they could, but it allowed them to continue dumping "if avoidance is not possible." Environmental groups filed two lawsuits challenging the rule.

"In its last weeks in office, the Bush administration pushed through a rule that allows coal mine operators to dump mountaintop fill into streambeds if it's found to be the cheapest and most convenient disposal option," Salazar said in a statement. "We must responsibly develop our coal supplies to help us achieve energy independence, but we cannot do so without appropriately assessing the impact such development might have on local communities and natural habitat and the species it supports."

Joan Mulhern, a lawyer with Earthjustice who represents a coalition of community groups in one of the two lawsuits in U.S. District Court for the District of Columbia, said vacating the Bush rule "would be meaningless" if Interior does not crack down on the dumping.

"They're going back to status quo, which is a good rule, but it's not being enforced," she said.

Interior spokesman Frank Quimby would not say whether the department would prohibit such activity, but he said the administration is seeking "to develop a comprehensive policy on mountaintop mining" in the months ahead. "This is not the end of what the administration proposes to do about mountaintop mining," he said.

Mining executives did not welcome Salazar's move, saying they would explore legal options to keep the rule in place.

"This rule evolved from a four-year public involvement process, a thorough environmental assessment and ironically would have strengthened, not weakened, existing environmental rules dating from the Reagan administration," said Luke Popovich, a spokesman for the National Mining Association.

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