The suit was filed by the Appalachian Center for the Economy and the Environment on behalf of the West Virginia Highlands Conservancy and James Spence, an individual from Mingo County whose family lives adjacent to the proposed 1,100-acre White Flame mountaintop removal mine. The plaintiffs charge that the state of West Virginia has illegally issued a permit for this and other mines by ignoring the "buffer zone rule" – a state and federal regulation prohibiting mining disturbances within 100 feet of larger, flowing streams unless that state can find that water quality will not be adversely affected. The White Flame mine would bury at least 4,800 feet of intermittent and perennial streams.
On May 29th, the Bush administration released a long-overdue draft Environmental Impact Statement (DEIS) on mountaintop removal mining in which the administration suggests eliminating the buffer zone rule's application to dumping mining waste in streams. In an earlier lawsuit based on the buffer zone rule, a federal court ruled that the rule applies to mining waste disposal in intermittent and perennial streams.
"We know these mountaintop removal mines are wrong, and the federal court agreed with us in our earlier case. But the state keeps granting these mining permits illegally, violating the buffer zone rule," said Cindy Rank, mining committee chair of the West Virginia Highlands Conservancy. "Now, if the Bush administration gets its way and repeals the buffer zone rule, we may not have a chance to challenge these mines and protect ourselves and our natural resources from destruction."
Adopted by the Reagan administration in 1983, the buffer zone rule strikes a balance between environmental protection and coal production. The buffer zone was designed to protect irreplaceable streams in the coal mining regions of Appalachia. According the recent DEIS, well over 700 miles of streams have been buried by mountaintop removal mining waste in the last decade alone.
"Once again, the Bush administration appears poised to try to change a federal regulation that is crucial to protecting the communities, forests and streams in the coal producing counties of Appalachia," said Joe Lovett, Executive Director of the Appalachian Center for the Economy and the Environment. "The administration has established a shameful pattern of changing the law to accommodate illegal coal industry practices rather than requiring coal operators to comply with laws than have been in effect for more than twenty years."
The plaintiffs' petition states that "The definition of 'buffer zone' and the meaning of the buffer zone rule could not be clearer: the rule is intended to protect stream segments that a [coal company] intends to disturb."
"The buffer zone rule is a longstanding federal safeguard for streams in Appalachia and the people who depend on those waters for their community's health," said Joan Mulhern, senior legislative counsel for Earthjustice. "The Bush administration is making it clear that it is much more interested in protecting the coal companies' profits than protecting the people or environment of Appalachia. It wants to let the coal companies continue to do whatever they want – blow up mountains, bury streams – without limits."
The environmental harm caused by mountaintop removal coal mining in Appalachia is significant and irreversible. For example, the studies show that:
· Over 700 miles of Appalachian streams "have already been eliminated by valley fills;"
· Aquatic life forms downstream of valley fills are being harmed or killed; and
· "Stream chemistry monitoring efforts show significant increases" in concentrations of selenium – a metalloid that according to the EPA "can be highly toxic to aquatic life even at relatively low concentrations" – downstream of mountaintop removal mining and valley fill operations.
The studies conclude that, without additional environmental restrictions, mountaintop removal mining will destroy and additional 600 square miles of land and 1000 miles of streams in the next decade.
"The EIS studies confirmed the obvious fact that blowing up mountains and burying streams is enormously destructive," said Mulhern. "It is therefore astonishing, even for the Bush administration, that their response to this information is to further weaken the environmental limits on mountaintop removal mining."