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SOARE adviser offers insight into new mountaintop removal rules

Recently, the Bush administration issued a regulation regarding the coal mining practice of mountaintop removal. The technique involves blasting off the tops of mountains and dumping the rubble into valleys and streams.

Dr. Joseph Schiller, associate professor of biology at Austin Peay State University, offers a professional and historical insight into a new rule that degrades water quality in streams resulting from mining activities.

Schiller also is adviser to SOARE – Student Organization for the Advancement of Renewable Energy. Here is his opinion:
Recently, the Bush administration issued a regulation regarding the coal mining practice of mountaintop removal. The technique involves blasting off the tops of mountains and dumping the rubble into valleys and streams.

Dr. Joseph Schiller, associate professor of biology at Austin Peay State University, offers a professional and historical insight into a new rule that degrades water quality in streams resulting from mining activities.

Schiller also is adviser to SOARE — Student Organization for the Advancement of Renewable Energy. Here is his opinion:

The new rule promulgated by the Office of Surface Mining (OSM) basically eliminates the 100-foot stream buffer zone that was passed to prevent mining activities too close to streams. The reason for the original 100 foot stream buffer zone is that mining in and around streams degrades their water quality, making it unable to support many species usually found in streams with good water quality. In this case, the OSM has passed a rule that not only degrades water quality in streams, it completely destroys the stream by burying it under millions of tons and hundreds of feet of mine waste.

When this practice was first challenged in the courts by citizens of West Virginia, the original argument of the state and federal agencies and their coal company “clients” was that because the filled part of the valley no longer contained a stream, provisions of the Clean Water Act (CWA) and Surface Mining Reclamation and Control Act (SMCRA), including the stream buffer zone, only applied to that portion of the stream that flowed out of the valley fill. The late Judge Charles H. Hayden II described this line of reasoning as a “reductio ad absurdum” because it led to the ridiculous situation where an entire river system could be filled in with mine waste and as long as some short segment emerged with relatively good water quality then the CWA and SMCRA would have protected the stream.

He went on to rule against the state and federal agencies describing valley fills from mountaintop removal mines as “waste disposal projects so enormous that, rather than the stream assimilating the waste, the waste assimilates the stream.”

Basically what the Bush administration has done is give the mining industry a free pass, not only to harm streams, but to obliterate them entirely a privilege extended to no other polluting entity in the country. Of course, environmentalists are enraged, but all industries and utilities should be so enraged because, unlike the mining industry, they still have to play by the rules.

All citizens should be so enraged because it is their heritage of beautiful Appalachian streams, teeming with unique and beautiful organisms, many found nowhere else on earth, and in numbers and variety found almost nowhere else on earth, that is being destroyed for all time on an unprecedented scale and at an unprecedented rate.

However, Hayden's original ruling was overturned by the 4th Circuit Court of Appeals on a technicality. Subsequent rulings by Hayden and other federal judges have consistently found the state and federal regulatory agencies to be in violation of the CWA, SMCRA, the National Environmental Policy Act (NEPA), and the Administrative Procedures ACT (APA), but each time the 4th Circuit has overturned those rulings. However, even a few of the 4th Circuit justices have dissented from these rulings so that the administration has had a very difficult time allowing this practice legally.

The administration's strategy to circumvent these laws was literally to change the rules. It was about the time of the first Hayden ruling that OSM began the rulemaking process to change the stream buffer zone rule so it could legally allow the valley fills required for mountaintop removal mining.

While the 4th Circuit deferred to the Corps rulemaking interpretation, the Corps still was required to follow the law, which only allows dredge and fill permits to be issued under the nationwide permit if the activities have no significant environmental impact. In a recent suit alleging that the Corps was ignoring this requirement Judge Robert Chambers ruled: “The court finds fundamental deficiencies in the Corps' approach, resulting in EAs [Environmental Assessments] which are inadequate and unsupported…” Chambers ordered the Corps either to come back with valid assessments or go back to individual permits that require full environmental impact studies and citizen involvement. Chambers was openly skeptical of the Corps' ability to do a valid EA that would conclude the proposed valley fills would have no significant environmental impact. Chambers' ruling is being appealed to, guess, the 4th Circuit.

Then a couple of weeks ago, the Environmental Impact Statement studying the proposed stream buffer zone rule change was published. When OSM first published its intent to change this rule it tried to do so under the less onerous and less transparent process of conducting an EA. In order to change the rule by this process, OSM would have had to conclude that the proposed rule change would have no significant environmental impact. In other words, OSM would have to convince everyone that a rule change that would rubberstamp the destruction of hundreds of thousands of acres of Appalachian forests and hundreds of miles of Appalachian streams would have no significant environmental impact. They thought better of it and decided to proceed with the slower, more painful, but more legally defensible process of a full Environmental Impact Statement (EIS). Typical of the unmitigated cynicism and contempt for environmental protection of this administration, the proposed rule change is titled “Excess Spoil Minimization, Stream Buffer Zones” to give the impression that the rule change is increasing the protection of streams, when in reality, it is removing all protection.

What is to be done? First, it is essential that citizens everywhere submit written comments denouncing this proposed rule and demanding the nation's streams remain protected under the old stream buffer zone rule. The ramifications of this rule extend well beyond the boundaries of Appalachia. This rule will allow destruction of streams by mining operations everywhere in the US. Comments can be submitted in writing by ground mail to David Hartos, Office of Surface Mining Reclamation and Enforcement, 3 Parkway Center, Pittsburgh, PA 15220 or by e-mail at dhartos@osmre.gov. Identify your comments as referencing OSM-EIS-34.

The next step is to write your federal legislators to demand that they pass strong water protection legislation that reasserts the clear intent of the original clean water act and its revisions to protect and restore the nations' waters. A strong stream buffer zone provision is an essential feature of any legislation that purports to do this.

Fortunately, such legislation is already pending before congress. It is called the Clean Water Protection Act, H.R. 2169, in the House of Representatives. Currently, two Tennessee congressmen are cosponsors of this bill, Jim Cooper and Steve Cohen. They deserve our sincere thanks, but it is sad that more Tennessee congressional representatives are not cosponsoring this bill. Tennessee has a great deal at stake. For example, did you know that the Sundquist and Royal Blue Wildlife Management Areas could both be destroyed by mountaintop removal mines? Did you know that additional hundreds of thousands of acres of Tennessee's Cumberland mountains and streams could also be destroyed by such mining? The whole purpose of the proposed rule change is to legalize the filling of streams and accelerate their destruction.

While you are writing your federal representatives, do not forget to write Gov. Bredesen and your state legislators. They have more power to protect Tennessee's streams from the devastating effects of mountaintop removal than they care to admit. Demand that state regulators deny water quality permits to mountaintop removal and other strip mining operations that would degrade the waters of Tennessee. They have the power to do this even though they would have you believe they do not.