A Free Pass For Polluters To Ignore Water Quality?

ABINGDON, Va. – A free pass to ignore water quality? Or will a new federal rule on mine spoil ultimately improve reclamation of the landscape?

Opinions are strong on both sides of those questions in Southwest Virginia, where coal-dependent communities are in a love-hate relationship with the mining industry and its environmental outcomes.

“Coal is a natural resource, and so is water,” said Kathy Selvage, vice president of Southern Appalachian Mountain Stewards, which is based in the coal-dependent Wise County, Va., town of Appalachia. “I do believe there’s a way we could live without coal, but I do not believe we can live without relatively clean water.”

John Paul Jones, director of environmental affairs for the Abingdon-based coal company Alpha Natural Resources, said the new rule will require more analysis and planning with regard to mine waste – and will ultimately result in less of it being dumped into valleys.

Mike Abbott, of the Virginia Department of Mines, Minerals and Energy, said the change in the stream-buffer-zone rule will have no effect on enforcement in Virginia.

“That’s the way this has been applied … we’re not going to be doing anything different than what was being done prior to this,” Abbott said. “That’s simply a clarification of those requirements.”

Published by the Bush administration on Friday, the new rule requires a surface mine operator to avoid disturbing land within 100 feet of a stream “unless he or she can demonstrate that it is not reasonably possible to avoid disturbance, or that avoidance is not necessary to meet environmental requirements,”
according to a news statement from the U.S. Office of Surface Mining. The office said the new rule was created over a five-year process.

Selvage said the rule legalizes something that’s been happening for years, dumping mine spoil in streams, and it will have a negative effect on the water supply not only here but in major cities downstream.

“When will we say, no? No, you cannot have our water,’ ” Selvage said. “It just seems like a ridiculous battle we have to fight. Doesn’t everybody understand the importance of clean water?”

Jones said the rule has been misconstrued.

“That rule’s been portrayed by environmental groups as being a relaxing of the environmental standards and protections of the streams and a … parting gift by President [George W.] Bush, and it’s really not,” Jones said. “This was an effort by OSM [Office of Surface Mining] to clarify it and to try to keep from having so many of the [legal] challenges that keep getting overturned but still disrupted the process.”

Jones said those legal challenges have paralyzed the issuance of permits by the U.S. Army Corps of Engineers that are required for surface mining, but the new rule clarifies the requirements – and water quality will not be harmed.

“The ultimate effect of that is going to be smaller valley fills,” Jones said. Under the new rule, “we’re going to have to take material ... and find other places to put it, like old high walls that might be available to us, or to stack it back on top of the mountain, build the mountain back a little bit more.”

In the OSM news statement, Assistant Secretary of the Interior C. Stephen Allred said the new rule is consistent with a key purpose of the federal Surface Mining Law, “which is to strike a balance between environmental protection and ensuring responsible production of the coal essential to the nation’s energy supply.”

“The new rule also fosters regulatory stability,” Allred said, “by clarifying the stream-buffer-zone rule and resolving long-standing controversy over how that rule should be applied.”

Opponents of strip mining have sought for years to stop valley fills and have argued in federal court that the old rule prohibited any dumping of this waste into streams. At least two cases decided in their favor have been overturned by the U.S. Court of Appeals for the 4th Circuit. A similar case is pending – the case activists believe could finally stick.

Deborah Murray, a senior attorney with the Southern Environmental Law Center, said if the new rule is not overturned it will open the door for increased mountaintop mining and will be “devastating” for the nation’s waterways.

“Of course I think that the rule is a terrible idea, and hopefully the Obama administration can move to revoke it,” Murray said. “The EPA [Environmental Protection Agency] had to sign off on this rule, and to me they just can’t do so in compliance with the Clean Water Act, so I would very much question the legality of the EPA’s action and the Office of Surface Mining in promulgating this regulation.”

Jones, too, acknowledged that the new rule, while clarifying regulations, won’t put an end to legal challenges from environmentalists.

“The last ruling, the one that’s in the 4th Circuit now, it’s going to impact way more than coal mining,” Jones said. “It’s going to impact road building, Walmart building, any development that requires filling in streams and an erosion- and sediment-control type plan. If it’s upheld, there’s going to be some significant changes in how business is done in any excavation-type industry.”

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