Rule Change May Alter Strip-Mine Fight

Rule Change May Alter Strip-Mine Fight

By James Dao, New York Times

January 26, 2004

Harleston, W.Va. - The Bush administration is moving to revamp a rule protecting streams that Appalachian environmentalists view as their best weapon for fighting the strip-mining technique of mountaintop removal.

Over the past six years, environmental groups have used the rule, which restricts mining within 100 feet of a stream, to block or slow the issuing of state permits for mountaintop removal.

Strip mining involves dynamiting away mountaintops to expose seams of low-sulfur coal, then dumping the leftover rubble into nearby valleys and streams. Some of those valley fills, as they are known, are hundreds of feet deep and several miles long, making them among the largest man-made earthen structures in the East.

The proposed rule change by the Office of Surface Mining would make clear that filling valleys and covering streams is permitted under federal law if companies show they are minimizing mining waste and the environmental damage caused by it.

Administration officials say the proposed changes to the rule, affecting the stream buffer zone, will clarify conflicting federal regulations and thereby reduce litigation. The rule could take effect as early as mid-March.

Environmentalists and at least one federal judge say the change would be significant because the current rule forbids virtually all mining activity in the buffer zone. Coal industry officials and environmental groups agree that if the current rule was stringently enforced, most large-scale strip mining in Appalachia could be halted.

"If we lose the buffer zone, we lose the last clear-cut argument to stop these valley fills," said Joe Lovett, executive director of the Appalachian Center for the Economy and the Environment, a nonprofit group in Lewisburg, W.Va.

If the federal buffer-zone rule is changed, the West Virginia Legislature is expected to revise state regulations to conform to it, said Tom Clarke, a lawyer for the State Department of Environmental Protection.

The struggle over the stream buffer zone underscores how some of the most significant battles over government policy are waged on the overlooked fields of little-known laws and lesser-known regulations.

And the struggle comes as mountaintop mining has emerged as the most common form of surface mining in central Appalachia. The process produces more coal, requires fewer employees and is less costly than other forms of mining.

But opponents contend that strip mining also levels mountains, fills narrow valleys, covers streams and destroys forests. Mining companies are required to reconfigure hilltops and replant forests, but those efforts rarely approach the natural beauty of the original landscape, residents argue.

"We have beautiful, beautiful streams," said Evelyn Kelly, whose husband, Willard, is a retired coal miner. They live in Omar, W.Va., near a band of strip mines. "It's so sad. If you look up from the bottom of a valley fill, it's just dirt and rock and boulders where it used to be a beautiful hollow and stream."

The buffer-zone rule, created in 1977 and revised in 1983, says that "no land within 100 feet of an intermittent or perennial stream shall be disturbed by surface coal mining and reclamation operations" without government authorization.

Such authorization can be granted only if the operations are shown to be "environmentally acceptable."

West Virginia and other states, which issue mining permits, enacted their versions of the rule. But for nearly two decades, it was only loosely enforced by states, allowing hundreds, perhaps thousands of miles of Appalachian streambeds to be buried.

In 1998, Mr. Lovett, on behalf of residents and an environmental group, filed suit, asserting that burying streams with mining waste violated the rule. The mining industry and the state disagreed, arguing that covering the upper stretches of a stream was acceptable if downstream portions were not impaired.

In a strongly worded opinion issued in 1999, Chief Judge Charles H. Haden II of Federal District Court in Charleston agreed with the environmentalists.

"Valley fills are waste disposal projects so enormous that, rather than the stream assimilating the waste, the waste assimilates the stream," Judge Haden wrote.

In 2001, the Court of Appeals for the Fourth Circuit overturned Judge Haden's decision, ruling that federal courts did not have jurisdiction in the case. But the appeals court did not rule on the substance of the suit, leaving the door open to state litigation.

Mr. Lovett recently brought a new suit on behalf of the West Virginia Highlands Conservancy, a nonprofit group, arguing before the state Surface Mine Board that a proposed 851-acre strip mine operated by Arch Coal Inc. would violate the existing buffer-zone rule.

Mr. Lovett argued that the proposed rule change would undercut his suit. It would make the rule "virtually toothless," he said in a recent hearing before the board, and would be "a giveaway to the coal industry."

Lawyers for the state and the mining industry argue that mountaintop removal can be done in a way that restores forests and mountain peaks. Only 1 percent of the state's landmass has been affected by mountaintop removal, they say, while 76 percent remains forested.

Robert G. McLusky, a coal industry lawyer, said the strict interpretation of the buffer-zone rule demanded by environmentalists would be a "death sentence" for the mining industry in Appalachia.

To bolster their case, lawyers for the state and the industry cite two studies conducted since 1998. In one, mining experts concluded that coal production in West Virginia would be cut 90 percent in above and underground mines if the buffer-zone rule was stringently enforced. A second study, by two Marshall University faculty members, predicted that state tax revenues would decline by as much as $168 million a year if Judge Haden's decision had been allowed to stand.

Environmental groups argue that those studies exaggerate the effect of the buffer-zone rule. They say that smaller strip mines could still operate even if the rule was stringently enforced and that there are alternatives to dumping mine waste into streams, if mining companies are willing to pay for them.

Mr. McLusky told the Surface Mine Board that if the Highlands Conservancy wins its case, "most of the mining, surface and underground, in this state would come to an end."