Injury, Insult, Insanity: Buffer Zone Rule Change

Earlier this year, we won a major lawsuit – a federal judge ruled that new, large valley fills are illegal in West Virginia. OVEC, Coal River Mountain Watch and WV Highlands Conservancy filed the case, with our excellent team of lawyers from the Appalachian Center for the Economy and Environment and Earthjustice.

But the Bush Administration’s Office of Surface Mining now wants to make valley fills legal by changing the federal stream buffer zone rule. This poorly-enforced rule said that land within 100 feet of a stream cannot be disturbed by mining unless a company can prove it will not hurt water quality and quantity. So once again, the Bush administration moves to legalize that which is illegal.

The Bush Administration’s latest attempt to increase mountain range removal mining has drawn unprecedented national outcry. Never before have so many national newspapers and other media reported on mountaintop removal in Appalachia. Many groups from around the country that had never taken a stand on mountaintop removal are now asking their members to send letters and e-mails opposing this buffer zone rule change.

Federal spokespeople were quoted in the media as saying that valley fills are needed in order to continue mountaintop removal.

After the New York Times ran a front page story on this proposed legalizing of valley fills, OVEC’s website received 37,000 hits in one day. (Yes, that’s 37 thousand hits!)

Some of our long-time allies are speaking out in outrage at this new federal attempt to promote more stream burial and more mountain annihilation.

"The Bush administration just doesn’t give up in its quest to give away more and more legal protections to the mountaintop removal polluters – despite the federal government’s own studies showing widespread, harmful, and irreversible stream loss in the region," said Joan Mulhern, Senior Legislative Counsel for Earthjustice. "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 proposed rule change will say the rule requiring buffer zones does not apply to putting excess spoil into valleys near mines (valley fills) or to impoundments that coal companies build to hold waste left over from processing coal, Mulhern explained.

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 loud protests from coalfield residents and citizens groups, OSM agreed it would complete an Environmental Impact Statement (EIS) before changing the long-standing 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." 

Jim Hecker, environmental enforcement director for the group Public Justice, said, "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. OSM’s own report shows that valley fills harm downstream water quality, but this proposal does nothing to address it."

"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 agency also assumes all stream loss will be fully mitigated, even though it freely admits that stream mitigation has generally failed. OSM reports, "While proven methods exist for larger stream channel restoration and creation, the state of the art in creating smaller headwater streams on site has not reached the level of reproducible success…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."

Citizens have 60 days to comment on the plan, which basically says it is not illegal to push the spoil into streams and nearby valleys if coal companies can show the process mitigates environmental damage.