WASHINGTON — The Inter ior Department has advanced a proposal that would ease restrictions on dumping mountaintop mining waste near streams, though environmental groups will probably sue to block the change if the administration finalizes it.
The department's Office of Surface Mining issued a final environmental impact analysis Friday on the proposed rule change, which has been under consideration for four years. It has been a top priority of the surface mining industry.
Sign Up and Save
Get six months of free digital access to the Lexington Herald-Leader
It sets the stage for a final regulation, one of the last major environmental initiatives of the Bush administration, after 30 days of additional public comment and interagency review.
The proposed rule would rewrite a regulation enacted in 1983 by the Reagan administration that bars mining companies from disposing of huge amounts of rock and dirt from surface mining within 100 feet of any intermittent or perennial stream if the disposal adversely affects water quality or quantity.
The revisions would require mining companies to minimize the debris they dump as much as possible, but also let them dump inside the protective buffer zone if compliance is determined to be impossible.
"The new rule will allow coal companies to dump massive waste piles directly into streams, permanently burying them," warned Joan Mulhern of Earthjustice, among the environmental groups that have fought large-scale surface mining — including mountaintop removal — used in Appalachia, especially in West Virginia, Kentucky and parts of Virginia and Tennessee.
Mining companies remove vast mountaintop areas to expose layers of coal. Coal companies put much of the rock and dirt — called overburden or spoil — back onto mined areas during reclamation, but can't put back all the material.
The companies dump the excess spoil into valleys near the mine, creating valley fills that often bury stream areas.
Despite the 100-foot buffer requirement, hundreds of miles of Appalachian streams have been buried or affected by valley fills.
There has been a great deal of conflict among environmentalists, the coal industry and regulators about what stream areas the rule covers. It has been routine for regulators to grant exemptions and let coal companies mine and dump spoil in areas that environmentalists argue should be off limits.
This proposed rule "legitimizes mountaintop removal and its most damaging effect, which is putting valley fill and sludge into streams," said Mulhern.
However, the Office of Surface Mining maintains that the 1983 rule "has never been applied as an absolute prohibition of mining activities near a stream," according to a fact sheet included in the rule-making. It acknowledged there has been confusion about the rule among federal and state regulators.
The revisions are an attempt to clarify the situation, the agency says.
The mining agency, in a statement issued Friday, said the proposed changes reflect a "slightly positive" improvement in environmental protection because it would require coal companies to minimize the effects of the dumping by reducing the amount of wastes and the disposal areas.
Mulhern called that "a sham" and said the agency "did not even study, among available alternatives" the option of strictly enforcing the stream buffer rule that has been on the books for 25 years.
"Instead they pretended that the existing stream buffer law does not apply. ... They claim their rule is better for the environment when the exact opposite is true," she said.
Bill Caylor, president of the Kentucky Coal Association, said coal companies work to minimize the size of valley fills and that most cover only areas with ephemeral streams — the start of a drainage area near the top of a hill that is dry except when it rains.
The federal-surface mining law wasn't meant to ban filling those areas, but environmentalists had hoped to use the buffer-zone rule to shut down surface mining by denying companies a place to dispose of excess rock and dirt, Caylor said.
Environmentalists say those headwater areas are vital parts of the stream ecosystem and shouldn't be filled.
The proposed rule change would simply maintain the practices of the last three decades since the federal surface-mining law was adopted, Caylor said.
"Nothing changes. We continue to mine as we have for the last 31 years," he said.
Mulhern said the federal Environmental Protection Agency still has to sign off on the proposed change. Environmental groups already are discussing legal options if the administration finalizes the new stream-buffer rule, she said.
"I would be shocked if somebody didn't sue to block the administration's actions, because they are blatantly illegal," she said.