Citing continued failure to apply the stream buffer zone rule to the footprint of valley fills, a coalition of environmental groups late today demaned a federal takeover of the West Virginia Department of Environmental Protection’s mining program.
The petition, filed by the Appalachian Center for the Economy and the Environment and other groups, asks the U.S. Office of Surface Mining to substitute federal enforcement of this key strip-mining rule:
West Virginia has long refused to enforce the buffer zone rule, and it still refuses to do so. The State’s systematic failure to apply the rule to those activities that are most harmful to the streams the rule was intended to protect defies logic. Indeed, the WVDEP’s decision to exempt valley fills and huge stream elimination projects from the scope of the rule’s protections renders the regulation meaningless.
The buffer zone rule, on its face, is a pretty simple thing: No mining activity allowed within 100 feet of a perennial or intermittent stream. You can get a waiver to this if you show that the activity proposed won’t adversely impact the stream.
A decade ago, U.S. District Judge Charles H. Haden II ruled that this simple rule outlawed valley fill waste piles in perennial and intermittent streams. That ruling was overturned on appeal — but on a technicality about court jurisdiction, not on the key issues about how the buffer zone applies to strip mining and valley fills. And not before the Clinton administration filed a legal brief explaining that it had decided the buffer zone rule did apply to the footprint of valley fills and was mean to reduce the number and size of fills.
Now, of course, the Obama administration has moved to try to reverse a Bush administration rewrite that essentially eliminated the buffer zone rule. But at the same time, Obama’s team has not said if they plan to enforce the rule to apply to valley fill footprints or not.
The new petition filed against WVDEP argues, among other things, that the the Bush OSM never would have tried to rewrite the rule if it didn’t really know that the rule as written applied to valley fills:
If OSM had believed in 2008 that the 1983 rule truly excluded from its purview intermittent or perennial streams that would be buried by valley fills, there would have been no reason for the attempted rule change. OSM was attempting to conform its regulations to its behavior, not the other way around.
Of course, various administrations over at the WVDEP has always argued that the rule does not apply to valley fill footprints and, if it did, the rule would essentially end all coal mining. I tried to reach current WVDEP Secretary Randy Huffman late this afternoon to ask him about the new OSM takeover petition, but couldn’t reach him.
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“West Virginia has long refused to enforce the buffer zone rule, and it still refuses to do so. The State’s systematic failure to apply the rule to those activities that are most harmful to the streams the rule was intended to protect defies logic. Indeed, the WVDEP’s decision to exempt valley fills and huge stream elimination projects from the scope of the rule’s protections renders the regulation meaningless.”
The petitioner’s failure to see that valley fills are not the reason for the rule makes their petition meaningless.
Posted: 10:32 AM Aug 11, 2009
http://www.wsaz.com/news/headlines/52959597.html
CHARLESTON, W.Va. (WSAZ) — Four people were arrested Tuesday after they chained themselves to the doors leading into the Department of Environmental Protection’s building in Kanawha City.
According to a news release, the protesters were “demanding the resignation of DEP Secretary Randy Huffman. The group claims the department has failed to enforce mountaintop removal coal mining and water quality regulations.
The protesters are with several environmental groups, including the Coal River Mountain Watch group.