Earthjustice Will Put Stream Buffer Zone Litigation on Hold

Awaiting results of new rule from U.S. Department of Interior


Raviya Ismail, Earthjustice, (202) 667-4500, ext. 221 

Several Appalachian conservation groups, represented by environmental public interest law firm Earthjustice, have decided to put on hold their lawsuit challenging the Bush administration’s repeal of the “stream buffer zone rule,” which was originally designed to protect Appalachian streams from harmful practices used in surface coal mining. The hold is based on an agreement of the U.S. Office of Surface Mining (OSM) to revise the stream buffer zone rule. The groups will decide whether to continue litigation after the U.S. Department of Interior, which oversees OSM, issues a proposed rule slated to come out Feb. 28, 2011.

“We are very disappointed that OSM has continually failed to enforce the law to protect streams from the dumping of coal mining waste, including right up to the present day,” said Jennifer Chavez, staff attorney at Earthjustice. “We are now calling on the OSM to do its job and move swiftly to finalize a protective stream buffer zone rule that will prohibit dumping mine waste into streams.”

The stream buffer zone rule is a Reagan-era regulation that prohibited surface coal mining activities from disturbing areas within 100 feet of streams. However, in the decades since the rule was adopted OSM has allowed coal companies to permanently bury thousands of miles of headwater and perennial streams in Appalachia under millions of tons of waste generated by mountaintop removal and other large scale surface coal mining.

“Legal action is a last resort when agencies fail to do their job,” said Ed Hopkins, Director of Environmental Quality for the Sierra Club, one of the groups represented by Earthjustice. “We will now work to hold OSM accountable for responsibly fixing the rule to protect streams from mining waste.”

“OSM has consistently failed to enforce the stream buffer zone rule to protect streams,” Chavez said. “Nonetheless, Secretary of the Interior Salazar says he remains committed to reducing the adverse impacts of Appalachian surface coal mining operations on streams. That will require repealing the Bush administration’s changes to the stream buffer zone rule. We believe OSM must move swiftly to restore the 100 foot stream buffer zone rule, and to implement it with the force it is meant to have.”

Bob Mullins, a resident of Derby in Wise County, Virginia, is a retired underground coal miner and member of Southern Appalachian Mountain Stewards. “Mountaintop removal mining destroys waterways and communities — everybody knows that,” said Mullins. “OSM should do its job to protect communities like mine in Wise County, Virginia, from complete destruction before it’s too late. We need strong rules and stronger enforcement, and we can’t wait to have that.”

Earthjustice, along with lawyers from the Sierra Club Environmental Law Program and the Appalachian Citizens’ Law Center, filed the suit on behalf of Coal River Mountain Watch, Kentucky Waterways Alliance, Ohio Valley Environmental Coalition, Southern Appalachian Mountain Stewards, West Virginia Highlands Conservancy, Statewide Organizing for Community eMpowerment (formerly Save Our Cumberland Mountains), and Waterkeeper Alliance. Their lawsuit challenged the Bush administration’s weakening of the stream buffer zone rule, and challenged OSM to issue a plain statement of its enforcement policy, and to begin implementing a policy to protect streams. Many Appalachian streams are now facing an emergency due to the already issued or pending permits authorizing their destruction as a result of OSM’s failure to swiftly restore and enforce legal protection for streams.

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