Rule Change May Alter Strip-Mine Fight
January 26, 2004
By JAMES DAO
CHARLESTON, W.Va., Jan. 21 - The Bush administration is
moving to revamp a rule protecting streams that Appalachian
environmentalists view as their best weapon for fighting
the strip-mining technique of mountaintop removal.
Over the past six years, environmental groups have used the
rule, which restricts mining within 100 feet of a stream,
to block or slow the issuing of state permits for
mountaintop removal.
Strip mining involves dynamiting away mountaintops to
expose seams of low-sulfur coal, then dumping the leftover
rubble into nearby valleys and streams. Some of those
valley fills, as they are known, are hundreds of feet deep
and several miles long, making them among the largest
man-made earthen structures in the East.
The proposed rule change by the Office of Surface Mining
would make clear that filling valleys and covering streams
is permitted under federal law if companies show they are
minimizing mining waste and the environmental damage caused
by it.
Administration officials say the proposed changes to the
rule, affecting the stream buffer zone, will clarify
conflicting federal regulations and thereby reduce
litigation. The rule could take effect as early as
mid-March.
Environmentalists and at least one federal judge say the
change would be significant because the current rule
forbids virtually all mining activity in the buffer zone.
Coal industry officials and environmental groups agree that
if the current rule was stringently enforced, most
large-scale strip mining in Appalachia could be halted.
"If we lose the buffer zone, we lose the last clear-cut
argument to stop these valley fills," said Joe Lovett,
executive director of the Appalachian Center for the
Economy and the Environment, a nonprofit group in
Lewisburg, W.Va.
If the federal buffer-zone rule is changed, the West
Virginia Legislature is expected to revise state
regulations to conform to it, said Tom Clarke, a lawyer for
the State Department of Environmental Protection.
The struggle over the stream buffer zone underscores how
some of the most significant battles over government policy
are waged on the overlooked fields of little-known laws and
lesser-known regulations.
And the struggle comes as mountaintop mining has emerged as
the most common form of surface mining in central
Appalachia. The process produces more coal, requires fewer
employees and is less costly than other forms of mining.
But opponents contend that strip mining also levels
mountains, fills narrow valleys, covers streams and
destroys forests. Mining companies are required to
reconfigure hilltops and replant forests, but those efforts
rarely approach the natural beauty of the original
landscape, residents argue.
"We have beautiful, beautiful streams," said Evelyn Kelly,
whose husband, Willard, is a retired coal miner. They live
in Omar, W.Va., near a band of strip mines. "It's so sad.
If you look up from the bottom of a valley fill, it's just
dirt and rock and boulders where it used to be a beautiful
hollow and stream."
The buffer-zone rule, created in 1977 and revised in 1983,
says that "no land within 100 feet of an intermittent or
perennial stream shall be disturbed by surface coal mining
and reclamation operations" without government
authorization.
Such authorization can be granted only if the operations
are shown to be "environmentally acceptable."
West Virginia and other states, which issue mining permits,
enacted their versions of the rule. But for nearly two
decades, it was only loosely enforced by states, allowing
hundreds, perhaps thousands of miles of Appalachian
streambeds to be buried.
In 1998, Mr. Lovett, on behalf of residents and an
environmental group, filed suit, asserting that burying
streams with mining waste violated the rule. The mining
industry and the state disagreed, arguing that covering the
upper stretches of a stream was acceptable if downstream
portions were not impaired.
In a strongly worded opinion issued in 1999, Chief Judge
Charles H. Haden II of Federal District Court in Charleston
agreed with the environmentalists.
"Valley fills are waste disposal projects so enormous that,
rather than the stream assimilating the waste, the waste
assimilates the stream," Judge Haden wrote.
In 2001, the Court of Appeals for the Fourth Circuit
overturned Judge Haden's decision, ruling that federal
courts did not have jurisdiction in the case. But the
appeals court did not rule on the substance of the suit,
leaving the door open to state litigation.
Mr. Lovett recently brought a new suit on behalf of the
West Virginia Highlands Conservancy, a nonprofit group,
arguing before the state Surface Mine Board that a proposed
851-acre strip mine operated by Arch Coal Inc. would
violate the existing buffer-zone rule.
Mr. Lovett argued that the proposed rule change would
undercut his suit. It would make the rule "virtually
toothless," he said in a recent hearing before the board,
and would be "a giveaway to the coal industry."
Lawyers for the state and the mining industry argue that
mountaintop removal can be done in a way that restores
forests and mountain peaks. Only 1 percent of the state's
landmass has been affected by mountaintop removal, they
say, while 76 percent remains forested.
Robert G. McLusky, a coal industry lawyer, said the strict
interpretation of the buffer-zone rule demanded by
environmentalists would be a "death sentence" for the
mining industry in Appalachia.
To bolster their case, lawyers for the state and the
industry cite two studies conducted since 1998. In one,
mining experts concluded that coal production in West
Virginia would be cut 90 percent in above and underground
mines if the buffer-zone rule was stringently enforced. A
second study, by two Marshall University faculty members,
predicted that state tax revenues would decline by as much
as $168 million a year if Judge Haden's decision had been
allowed to stand.
Environmental groups argue that those studies exaggerate
the effect of the buffer-zone rule. They say that smaller
strip mines could still operate even if the rule was
stringently enforced and that there are alternatives to
dumping mine waste into streams, if mining companies are
willing to pay for them.
Mr. McLusky told the Surface Mine Board that if the
Highlands Conservancy wins its case, "most of the mining,
surface and underground, in this state would come to an
end."
nytimes.com
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