Saying the Bush administration's rule governing mountaintop mining near water bodies "simply does not pass the smell test," Interior Secretary Ken Salazar said today that he is moving to reverse the regulation.
With the Justice Department agreeing that there are "legal deficiencies" with the Bush rule, Salazar said he has asked DOJ to file a plea in U.S. district court requesting that the rule be vacated and remanded to Interior for further action.
Interior also will seek public comment on "how we can update and improve" the rule that had been in place since 1983, he said, including feedback from industry and affected states. The Bush rule changed regulations established under President Reagan, which Salazar said had greater protections for communities and habitat.
"Today we are taking another step toward changing how the Department of Interior does business and cleaning up a major misstep from the previous administration," Salazar said. "I have closely reviewed the previous administration's mountaintop coal mining rule, which allowed coal mine operators to dump mountain fill into stream beds, and have determined that it is bad public policy."
The department will move quickly to write a new rule that is similar to the 1983 version but includes improvements learned over the last 25 years, Salazar said. He spoke with the governor of West Virginia this morning about the issue, he said.
"We'll put the pedal to the metal to get it done," he said.
Salazar said the White House Council on Environmental Quality has been working to ensure coordination with the Army Corps of Engineers, which issues mountaintop mining permits, and U.S. EPA, which must agree to any mining regulations that could affect air and water quality.
Today's action will not affect existing coal production, because no guidance on how to implement the Bush rule has yet been given to states, which are responsible for issuing permits for coal mining, he said.
"For those who will scream about the reversal of the Bush-era rule on mountaintop mining, the fact of the matter is that the 1983 rule is still what is being implemented in 49 of the 50 states," he said. "There will not be, in my view, impact on existing coal mining operations or permits that have already been issued. ... I don't see this particular action today having an effect on coal production."
Noting that half of U.S. electricity comes from coal, he said, "To be clear, the responsible development of our coal supplies is important to America's energy security." But he added, "As we develop these reserves we must also protect our treasured landscapes."
Salazar added that the future of the coal industry depends on developing and deploying clean coal technologies "as fast as we can"; otherwise, the industry will be "very weakened" as the world moves to address carbon emissions.
"I don't think [today's] change by itself will affect future coal production," he said. "I think there are other forces that are much larger than this rule that may have an effect on future coal production, and those forces have to do with carbon dioxide emissions and whether or not we are successful at developing advanced clean coal technologies."
Mining companies use mountaintop techniques to expose coal seams in West Virginia, Kentucky and other Appalachian states, shearing off ridge tops and depositing waste rock in valleys, many of which are coursed by streams. Current rules, which have been in effect since 1983, require coal operators to establish a 100-foot buffer around streams to protect them from mining operations, including roads.
The Bush rule change would have extended the stream buffer zone rule to all waters, including lakes, ponds and wetlands. But it would also have exempted certain activities, including permanent excess spoil fills and coal waste disposal facilities, and allowed mining that would change a waterway's flow, provided the mining company repaired the damage later.
Companies also could have received a permit to dump waste within the 100-foot buffer if they explained why an alternative was not reasonably possible and identified a range of possible amounts and locations, choosing the one with the least overall adverse environmental impact.
Despite Interior's decision seeking to remove the Bush-era rule, long denounced by environmental advocates, critics said today's action does little to solve the larger question of what the Obama administration plans to do about mountaintop mining.
"We're happy the administration is realizing the error of the Bush rule, but just being better than Bush is not OK," said Judy Bonds, director of Coal River Mountain Watch.
Bonds noted that Interior said only that it would revoke the Bush stream buffer zone rule, and not that it would increase enforcement of the original 1983 rule, which environmentalists have claimed has been consistently ignored. "What we want is clarification," she said. "We want to know if [the stream buffer zone rule] will really been enforced."
Joan Mulhern, an attorney with Earthjustice, said the original stream buffer zone rule was written at a time before the current form of mountaintop mining that allows for entire streams to be buried existed.
While the original rule does not allow for rock waste to fall within 100 feet of a stream, the rule has been consistently ignored by the Office of Surface Mining and the states to allow valley fills that have buried more than 1,200 miles of streams in Appalachia, Mulhern said.
"It sounded like what Secretary Salazar said was we were going back to the status quo," she said. "It's a bad thing, the status quo, because obviously burying a stream under a mountain of waste is bad for the stream."
The mining industry and the Bush administration said its rule change was necessary to end litigation over whether Congress intended to allow dumping of huge piles of debris, called "valley fills," when it passed the Surface Mining Control and Reclamation Act of 1977, but critics said the move was a last-minute power grab for the coal industry.
"The Secretary of the Interior's move to undo a seven-year rulemaking process is precipitous and will only add to the uncertainty that is delaying mining operations and jeopardizing jobs," National Mining Association President Hal Quinn said in a statement. "We trust the secretary of the Interior does not plan on engaging in a de facto rulemaking, thereby avoiding the transparency integral to a fair and legal regulation."
It is unclear how today's announcement will affect a pair of lawsuits that were filed late last year against the Bush stream buffer zone rule.
One of those lawsuits, which came from Earthjustice and the Appalachian Center for the Economy and the Environment, argued that OSM failed to adequately consider the environmental impacts of the rule change on mountaintop ecosystems and communities when it created the rule (E&ENews PM, Dec. 22, 2008).
The government's response to that lawsuit is due May 6, according to Mulhern.
Interior spokesman Frank Quimby said he was unsure how today's action will affect the lawsuits but said that if the federal court remands the Bush rule back to the department, "it would go a long way to resolving the legal suits against the stream buffer zone rule."
Addressing the questions about enforcement, Quimby said, "The secretary clearly indicated this was not the end of the administration's review of mountaintop removal. I'm sure as they develop the new rule, they are going to consider the issue of enforcement."