Big news today in the ongoing fight between the U.S. EPA and the Corps of Engineers  over the regulation of mountaintop removal coal mining.

Remember those first couple of Corps’ Clean Water Act permits that EPA announced two months ago it wanted to take a closer look at?

One of them was a permit for Central Appalachia Mining LLC to bury 3.5 miles of streams to get at about 7.3 million tons of coal in Pike County, Ky.  And apparently, the company decided it didn’t like the idea of EPA taking a closer look at its permit, and — after an initial meeting in mid-April — cut off those discussions.

So then on Monday, Corps officials in Huntington were preparing to approve the permit. Ginger Mullins, regulatory branch chief for the Corps’ Huntington District office, told me today that the permit documents were sent to the company. The permit would be issued once the company signed the documents and returned them, along with a $100 permit fee check, to the Corps.

But that never happened — because EPA stepped in, sending this letter to Corps District Engineer Dana Hurst,  invoking EPA’s authority under the federal Clean Water Act to take over review of the permit and block issuance by the Corps.

“That stops signing of the permit by the district,” Mullins told me. “It’s now more or less in their [EPA's] hands.”

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I keep coming back to this question. Anybody have any good answers?

The Interior Department and Office of Surface Mining PR folks didn’t bother to tell me about today’s press conference call for their buffer zone announcement. Luckily, someone else tipped me off. But I did miss a few sentences of Interior Secretary Ken Salazar’s opening statement — and more importantly, I got so far behind in the queue for questions that I never got to ask Salazar anything.

Luckily, the comments are online — both the prepared remarks and an audio file.

Our Gazette news story is also available here,  and there’s more coverage from The Associated Press, Reuters, the Herald-Leader, and The Washington Post.

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The National Mining Association issued this statement about the Obama administration’s move to reverse the Bush rewrite of the buffer zone rule:

“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.  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.”

I’ll have more as developments warrant on the Interior Department’s buffer zone rule announcement, but here’s a quick statement from Joan Mulhern, senior legislative  counsel for the group Earthjustice:

 “Unless this announcement is accompanied by a firm commitment to enforce the law as it applies to mountaintop removal and valley fills, it’s meaningless.  Secretary Salazar’s comments at the press conference lacked such a commitment; he made it sound as if this action would return the situation to the status quo before the Bush 11^th-hour change to the stream buffer zone rule.  But the history of the stream buffer zone rule is that it hasn’t been enforced. Announcements are fine but the deeds need to match the words. This gets us nowhere if the stream buffer zone rule is not enforced to prohibit mountaintop removal and valley fills.

 

“Interior Secretary Ken Salazar made it clear at his press conference that the 1983 rule would continue to be implemented as it has in the past – meaning it will not be enforced against waste dumping.  He stated that coal production would not be affected and that current coal operations would not be affected and was vague with respect to future actions. Therefore, the administration’s actions will not provide the protection essential for Appalachian mountain streams under the surface mining law or the Clean Water Act.”

Interior Secretary Ken Salazar is having a news conference right now to announce his agency’s plans to try to undo the Bush administration’s changes to the stream buffer zone rule.

Salazar said his agency is going to ask a federal court to send the rule back to Interior, and then plans to reopen a public comment period on the controversial rule change. The rule is current pending in court, because environmental groups filed a legal challenge to the Bush administration’s changes.

Salazar said his agency wants for the time being to revert to the 1983 version of the buffer zone rule, which he said most states are still using, and which, Salazar said, provides more protections to streams.

But most of Salazar’s news conference appeared aimed at reassuring the coal industry that Obama has no plans to do anything that would hamper continued production.

“We will continue to use coal as a significant part of our energy portfolio,” Salazar said.

[UPDATED: Importantly, the Obama administration has not said how it plans to interpret the buffer zone rule. The rule (prior to the Bush administration re-write) prohibited mining activities within 100 feet of perennial and intermittent streams. But regulators treated the rule with a wink and a nod, until environmentalists and federal judges began demanding enforcement. Will Obama actually enforce the rule? We don't know yet].

Stay tuned for more on this development later … but for now, here’s the Interior Department’s press release:

Salazar Moves to Withdraw
11^th Hour Mountaintop Coal Mining Rule
Restores Protections Against Dumping in Streams

WASHINGTON, D.C. – Secretary of the Interior Ken Salazar today announced his determination that the mountaintop coal mining “stream buffer zone rule” issued by the Bush Administration is legally defective.  Salazar directed the United States Department of Justice (DOJ) to file a pleading with the U.S. District Court in Washington D.C. requesting that the rule be vacated due to this deficiency and remanded to the Department of the Interior for further action.

“In its last weeks in office, the Bush Administration pushed through a rule that allows coal mine operators to dump mountaintop fill into streambeds if it’s found to be the cheapest and most convenient disposal option,” said Secretary Salazar.  “We must responsibly develop our coal supplies to help us achieve energy independence, but we cannot do so without appropriately assessing the impact such development might have on local communities and natural habitat and the species it supports.”

Under the Bush rule, coal mine operators are able to dispose of excess mountaintop spoil in perennial and intermittent streams and within 100 feet of those streams whenever alternative options are deemed “not reasonably possible.”  Disposal into streambeds is permissible when alternatives are considered “unreasonable,” which occurs under the Bush rule whenever the cost of pursuing an alternative “is substantially greater” than normal costs.

The Bush rule replaced a rule that had been on the books since the Reagan era rule of 1983. The Reagan era rule provides greater protection for communities and habitat by allowing the dumping of overburden within 100 feet of a perennial or intermittent stream only upon finding that such activities “will not adversely affect the water quantity or quality or other environmental resources of the stream.  Two lawsuits were filed immediately after the Bush rule was published.

“The so-called ‘stream buffer zone rule’ simply doesn’t pass muster with respect to adequately protecting water quality and stream habitat that communities rely on in coal country,” added Salazar.

If the court accepts the United States’ request and vacates and remands the rule, the 1983 rule will continue to remain in force in all of the states that have delegated authority under the Surface Mining Control and Reclamation Act (SMCRA). (Only two states, Washington and Tennessee, do not have delegated authority under SMCRA.)

OSM expects to issue guidance to states regarding application of the 1983 rule.  Also, OSM expects to solicit comment on the potential development of a comprehensive new stream buffer zone rule that would update the 1983 rule, address ambiguities and fill interpretational gaps, while implementing the statutory requirements set forth in the Surface Mining Control and Reclamation Act and ensuring that SMCRA requirements are coordinated with Clean Water Act obligations that are administered by the U.S. Army Corps of Engineers and the Environmental Protection Agency.