The federal Office of Surface Mining Reclamation and Enforcement, OSM, is proposing to exempt coal mining wastes from a 1983 regulation known as the Stream Buffer Zone Rule that prohibits coal mining activities from disturbing areas within 100 feet of streams. Regardless of the rule, the agency has allowed thousands of miles of headwaters and perennial streams in Appalachia to be permanently buried by coal companies under millions of tons of waste generated by mountaintop removal coal mining.

On Friday, the OSM will release a draft Environmental Impact Statement, EIS, considering the effects of its proposed revision to its Stream Buffer Zone Rule and several possible alternatives. The draft EIS will be open for public comment on the internet at www.regulations.gov. The agency said in a statement Tuesday that based on the findings of the draft EIS, it will revise regulations governing how much “spoil” or displaced rock surface coal mining operations are allowed to generate and where it may be placed.

It also would clarify existing requirements for mining in and around streams, "requirements that are not being interpreted consistently," the agency said. "Uncertainty over what the rules do and do not address had resulted in conflicting legal decisions and inconsistent enforcement." Environmentalists who have received advance copies of the proposed regulations are outraged because the OSM proposes to exempt from the stream buffer zone rule those very mountaintop removal activities that are most destructive to streams, including "permanent excess spoil fills, and coal waste disposal facilities."

"The Bush administration just doesn't give up in its quest to give away more and more legal protections to the mountaintop removal polluters," said Joan Mulhern, senior legislative counsel for Earthjustice, a nonprofit, public interest law firm. "Despite the federal government's own studies showing widespread, harmful, and irreversible stream loss in the region, the OSM proposes exempting the most harmful mountaintop removal mining activities from the buffer zone rule," said Mulhern.

According to OSM figures, 1,208 miles of streams in Appalachia were destroyed from 1992 to 2002, and regulators approved 1,603 more valley fills between 2001 and 2005 that will destroy 535 more miles of streams. "OSM has chosen to turn its back on irreplaceable water resources of the Appalachian region," said Cindy Rank with West Virginia Highlands Conservancy. "Headwater streams are the lifeblood of the mountains and those of us privileged enough to live in those mountains. This new interpretation of the buffer zone rule is an unholy reversal of the original intent of the Surface Mine Act, which was to protect communities and streams, not bury them."

The effort to repeal the buffer zone rule dates back to 2004, when OSM proposed repealing the Reagan-era stream buffer zone rule to allow coal companies to accelerate mountaintop removal mining in Appalachia. In response to protests from coalfield residents and conservation groups, OSM agreed it would do an EIS before changing the rule. But in its new draft EIS, the agency did not even consider the effect of enforcing the stream buffer zone rule as written.

"OSM summarily rejected all alternatives that would reduce harm and only considered those that would allow stream burials to continue at the same rate as in the past," said Jim Hecker, environmental enforcement director at Public Justice. "OSM's own report shows that valley fills harm downstream water quality but this proposal does nothing to address it." The agency also assumes all stream loss will be fully mitigated, even though it freely admits that stream mitigation has generally failed.

"While proven methods exist for larger stream channel restoration and creation, the state of the art in creating smaller headwater streams onsite has not reached the level of reproducible success," the OSM wrote. "Attempts to reestablish the functions of headwater streams…have achieved little success to date."

"The coal companies have yet to show that they can successfully recreate streams after they completely destroy these mountains and bury these waters, yet OSM still gives them this major exemption from the law," said Dianne Bady, with the Ohio Valley Environmental Coalition. "These headwater streams are the sources of our drinking water and our heritage, and this administration is knowingly allowing them to be buried and poisoned."

This wholesale exemption for mountaintop removal mining will have significant impact to downstream water quality, permanently filling and destroying important headwaters that feed larger waters that function as drinking water sources and fishing and recreational waters for thousands of Americans. Already, mountaintop removal mining has flattened more than 500,000 acres and permanently buried 2,000 miles of streams.

"The OSM essentially wants to destroy our most valuable, life-giving resource to extract a filthy, polluting resource," said Vernon Haltom of Coal River Mountain Watch. "We who live near mountaintop removal sites are having our future sustainability destroyed for someone else's short-term profits." A detailed summary of the five alternatives and a chart comparing the expected impacts of each is available in the executive summary of the EIS available at osmore.gov:
Details on submitting public comments will be made available on Friday.
(Environmental News Service, 22/08/2007)