For years, the agency has ignored the law and allowed thousands of miles of headwater and perennial streams in Appalachia to be permanently buried by coal companies under millions of tons of waste generated by mountaintop removal coal mining. Known as the "stream buffer zone rule," this decades-old regulation has prohibited surface coal-mining activities from disturbing areas within 100 feet of streams. A copy of the proposed changes to the buffer zone rule is available.
"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. "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. Once again, OSM is demonstrating that it is not an effective regulator for the public, but the 'Office for Slicing Mountains' and 'Office of Stream Mangling' for coal companies."
The new exemption is the latest chapter in a long-running effort by the Bush administration to allow coal companies to avoid compliance with both the Surface Mining Control and Reclamation Act (administered by OSM) and the Clean Water Act. According to OSM's own 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. Those actions were taken in defiance of the plain language of the existing rule. Under the plan announced this week, OSM proposes to change the rule to conform with its deviant behavior. It would 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" -- in other words, giant valley fills and sludge-filled lagoons.
"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 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 Environmental Impact Statement (EIS) before changing the longstanding rule. But in its new draft EIS, OSM rejected and failed to analyze all alternatives that would have restricted stream filling. In its own words, "OSM would not anticipate a major shift in on-the-ground consequences from any of the alternatives." Most egregious is that 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."
"This proposal amounts to a stamp of approval for the nation's most destructive form of coal mining," said Ed Hopkins, Director of Sierra Club's Environmental Quality program. "Instead of loosening protections for our waters, we should be strengthening our commitment to cleaner, renewable sources of energy that can protect our communities, boost the economy and help fight global warming."
Joan Mulhern, Earthjustice, (202) 667-4500