This week the U.S. District Court for the District of Columbia tossed out a late-2008 Bush Administration decision to scrap a decades-old rule protecting streams from the spoils of mountaintop removal mining. It said the rule violated the Endangered Species Act.
Use of the word “spoil” is not rhetoric here, it is the technical term for the broken rock that coal mining operators create after drilling, blasting, or bulldozing the tops of mountains to get access to the coal underneath. Since the spoil takes up more room when broken up, the companies cannot put it back where it came from, so they dump it elsewhere — often in the tops of valleys, burying streams.
The rule in question, issued in 1983, established a buffer zone around streams to keep toxic coal mining spoil from entering sensitive waterways. In December 2008, the outgoing Bush Administration issued its own “Stream Buffer Zone Rule” that essentially removed those protections. The National Parks Conservation Association challenged the rule, and lawyers from the Southern Environmental Law Center argued the case. The Interior Department and the Environmental Protection Agency are defendants in the case, though they asked the Court to rule against them in a September hearing. The National Mining Association protested the government’s position as an intervening defendant, arguing that the government erred in partially conceding the case.
The Interior Department conceded that it did not consult the U.S. Fish and Wildlife Service about possible Endangered Species Act impacts of the stream buffer zone rule. In the decision, the Court said that the Bush Administration rule did indeed threaten endangered species: “the record is clear that the 2008 Rule ‘may affect’ threatened or endangered species or critical habitat.”
But the waterways of Appalachia are not out of the woods yet. Coal advocates in the House are pushing a bill that would take the Bush Administration stream rule and apply it to all states. H.R. 2824 was scored by the CBO in January after a committee hearing last fall. The court’s decision on the buffer rule complicates the bill’s prospects, though it could soon face a vote.
Vernon Haltom, the executive director of Coal River Mountain Watch, applauded the court’s decision but made clear that regulators still have to effectively enforce the previous 1983 rule:
Unfortunately, we are still stuck with regulators who refuse to enforce the previous rule, who refuse to take citizens’ complaints seriously, and who refuse to acknowledge the growing scientific evidence that mountaintop removal harms human health.
We need federal takeover of the West Virginia Dept. of Environmental Protection’s failed mining division, and we need to pass the Appalachian Community Health Emergency (ACHE) Act, H.R. 526.
Deborah Murray, senior attorney at the Southern Environmental Law Center, said that “the original rule, if properly enforced, is critical to the protection of streams in Appalachia from the impacts of mountaintop mining.”
Last year, the D.C. Circuit Court of Appeals ruled that EPA had the authority under the Clean Water Act to veto so-called “dredge and fill” permits that allowed mining companies dispose of waste in streams. The decision confirmed EPA’s rejection of a permit for what would have been one of the largest mountaintop removal mines in West Virginia history.