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Buffer zones around streams opened for dumping

WASHINGTON — The Environmental Protection Agency on Tuesday approved a last-minute rule change by the Bush administration that environmentalists fear will lead to coal companies burying more Appalachian streams with excess rock and dirt from surface mining.

The change rewrites a 1983 rule that prohibited dumping the fill from mountaintop mining within 100 feet of streams. Environmentalists argue that regulators have not properly enforced the rule, and there were some exceptions that allowed mine debris in stream areas. Government figures show that 535 miles of streams were buried or diverted between 2001 and 2005, more than half of them in the mountains of Appalachia.

The 11th-hour change before President Bush leaves office would eliminate a tool that citizens groups have used in lawsuits to keep mining waste out of streams. Mining companies had been pushing for the change for years, and Kentucky elected officials had weighed in on both sides of the debate in recent weeks.

The change also means that President-elect Barack Obama's administration will have to decide whether to try to restore and enforce the rule, a process that could take many months of new rule making. Obama's transition team declined to comment on its plans on Tuesday.

Another option would be for opponents to go through the courts. Opponents have argued that the rule change is illegal.

For now, however, the EPA's approval means there are no further obstacles to the Office of Surface Mining's plans to change the rule. The White House's Office of Management and Budget approved it on Monday. The Department of Interior, which includes the mining office, plans to make the rule final in December after briefing members of Congress, and it will go into effect 30 days after that, said spokesman Peter Mali. The timing means the rule is expected to be in effect when Obama takes office in January.

In approving the change in writing as required by law, EPA Administrator Stephen Johnson rejected the appeals of environmentalists and some coal-country officials, including Kentucky Gov. Steve Beshear and Tennessee Gov. Phil Bredesen.

In a letter in November to Johnson, Beshear said Kentucky had to protect its water and that while coal was important to the economy, it should be mined in environmentally responsible ways. That letter set Beshear at odds with some state legislators, including several from coal-mining regions, who sent their own letter to the EPA supporting the change.

State Rep. Hubert Collins, D-Wittensville, said the coalfield legislators who signed the letter felt "blindsided" by the governor. Collins said that in a national recession, only coal was keeping Eastern Kentucky out of a depression. "It's a matter of keeping people working," he said. "It's a matter of keeping food on the table here in the coalfields."

The new rule says the buffer zone around streams would not apply to the disposal of rocks, dirt and sludge from mining. It would allow companies to get a permit for the disposal as long as they show on a case-by-case basis that they are trying to minimize the waste.

Carl Shoupe, 62, of Benham, Ky., said mining already had buried many streams, and he and others worried that the rule change would lead to more losses.

"They're taking our water away. They're taking our mountains away," said Shoupe, a former underground coal miner disabled in a roof fall. "We ain't got all the water resources that we used to have up here."

Headwater areas deserve protection because that's where the entire stream system begins, said Shoupe, who also is a member of the citizens group Kentuckians for the Commonwealth. And he said it's not true that the only opposition to the rule change comes from outside the coalfields.

"It's ridiculous what they're doing," he said.

The EPA said in a statement that the rule would not violate federal or state water quality standards. EPA spokeswoman Enesta Jones said she could not provide any further explanation.

Joan Mulhern, a senior attorney at Earthjustice, a non-profit law firm that has fought mountaintop mining, said the EPA had failed to do its job.

"With less than two months left in power, the Bush administration is determined to cement its legacy as having the worst environmental record in history," she said in a statement. "This is a sad day for all people who are thankful for the clear mountain streams and stately summits of the Appalachians."

Bill Caylor, president of the Kentucky Coal Association, said the rule change clarifies the intent of the federal surface-mining law. He said the law was never intended to ban putting excess rock and dirt from mining operations into the headwater sections where streams only flow when it rains.

"If you can't be within 100 feet of a dry ditch, we're finished," he said. Caylor also noted that the new rule would have little impact because coal companies already work to keep valley fills as small as possible.

Tom FitzGerald, executive director of the Kentucky Resources Council, called the new rule "a regrettable exclamation point on a litany of Bush-era regulatory and policy changes that have weakened the stream protection and mining and reclamation requirements intended by Congress — an early Christmas present to the industry."

States had applied the stream buffer rule unevenly and federal enforcement was lax, FitzGerald said. But the elimination of the buffer zone requirement makes it possible for the coal industry to expand dumping in headwater streams, he said.

FitzGerald said the rule change applied to mountaintop mining and all other forms of surface mining, as well as disposal of coal mine processing waste, disposal of waste from underground mining and the use of streams for sedimentation ponds.

U.S. Rep Ben Chandler, D-Versailles, had also weighed in against the rule change and said he was disappointed that the Bush administration went forward.

"Coal has played a large role in the history of our state and will play a large role in the future of the commonwealth," Chandler said in a statement, "but this decision ignores Kentucky's landscape and merely rewards bad behavior."