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The last we checked in on the largest mountaintop removal mining permit in West Virginia history, U.S. District Judge Robert C. Chambers had suspended court proceedings on the permit until this past Tuesday.

Chambers was giving Arch Coal Inc. more time to talk with U.S. EPA and the Corps of Engineers about its Spruce No. 1 Mine in Logan County, W.Va. Three weeks ago, EPA had begun proceedings to veto the Corps’ effort to approve this nearly 2,300-acre mine that would bury more than 7 miles of streams.

In an order issued yesterday, Judge Chambers extended his stay of proceedings concerning the Spruce Mine for another month, until Dec. 4.

Department of Justice lawyers had sought the extension, saying EPA wanted more time for “consultations” with the Corps and the company before deciding whether to move forward in blocking the permit.

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As West Virginia Gov. Joe Manchin continues his war of words against the Obama administration’s Environmental Protection Agency, a showdown may be nearing between EPA and the federal Corps of Engineers over the largest mountaintop removal permit in state history.

Corps officials in Huntington have rejected EPA’s urging that the Corps suspend or revoke its Clean Water Act permit for Arch Coal Inc.’s Spruce No. 1 Mine.

In a Sept. 30 letter to EPA, Corps District Engineer Robert D. Peterson said his agency “determined there were no other practical alternatives that would have less impacts on the aquatic environment” and that the Spruce Mine — an operation covering 2,278 acres and including 8.3 miles of valley fills and other stream-filling — “would not be expected to cause or contribute to violations of applicable state water quality standards or significant degradation of the environment.” After re-examining the proposed permit, Peterson said, the Corps  concluded that “all appropriate steps were taken to minimize potential adverse impacts.”

But the story doesn’t end there …

On Monday, Department of Justice lawyers asked U.S. District Judge Robert C. Chambers to delay the legal case over the Spruce Mine for another 30 days.

In this legal filing, DOJ told Chambers that EPA “is now considering whether to exercise its authority” under the Clean Water Act  “to prohibit discharges into waters of the United States as authorized by the Spruce No. 1 permit.”

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Lots of commentary out there on today’s big announcement by the Obama administration about its plans for dealing with (or, some critics on both sides say, not really dealing with) mountaintop removal. As I report in tomorrow’s Gazette, the announcement drew little praise from either side of the debate.

Among the best commentaries I can recommend is this analysis by Tom FitzGerald of the Kentucky Resources Council. It’s among the few commentaries so far that goes beyond the back-and-forth rhetoric of coal lobbyists who complain this creates more regulatory uncertainty and environmentalists who object that Obama didn’t come out and ban mountaintop removal. Fitz raises two primary objections to what Obama’s folks announced earlier today:

The first concern is that the procedural Memorandum of Understanding detailing how EPA and the Corps of Engineers will coordinate review of the 108 pending requests for Section 404 authorization by coal companies in the Appalachian region, sets a schedule for EPA review and identification of proposed authorization of concern, that may result in inadequate substantive review of many of the applications. That only 6 of 48 requests for authorization reviewed by EPA since March were flagged by EPA, suggests that a number of the 108 may go forward due to agency staffing and time constraints.

The second concern is that, while the MOU addresses all mining techniques in the central Appalachian region, the media release and media focus continues to be on “mountaintop mining” and on using only the Clean Water Act to reduce the number of fills and number of sediment ponds and streams affected. The Office of Surface Mining should take a much more significant role in minimizing the footprint of mining, since all forms of surface coal mining generate spoil material that has to be managed, and it is in the design
and approval of mining plans and spoil handling that aquatic impacts can be avoided. 

Fitz goes on to discuss a number of specific steps that Obama could have — but did not — take to get mountaintop removal under control. And he closes by pointing out that Obama still has not named anyone to fill the important job of director of the U.S. Office of Surface Mining Reclamation and Enforcement:

The people of the Appalachian coalfields, indeed the nation’s coalfields, need and deserve a Director who will go to work each day with the goal of restoring the restoring to a troubled agency the morale, staff, and regulatory tools that have been lost and weakened since 1981. OSM must be a
full partner, utilizing all available regulatory tools to do what Congress directed in 1977: To protect society and the environment from the adverse effects of surface coal mining operations” and to assure that areas mined are reclaimed “as contemporaneously as possible.”

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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.

Obama administration officials better figure out pretty soon what their game plan is for dealing with mountaintop removal coal mining … because a federal appeals court today gave them a deadline.

By April 14, Obama’s lawyers from the Department of Justice must respond to a motion for a rehearing of the 4th U.S. Circuit Court of Appeals’ decision overturning a mountaintop removal ruling by U.S. District Judge Robert C. Chambers.

Questions about Obama’s position and his plans for regulating mountaintop removal have been growing since the 4th Circuit’s decision on Feb. 14 — and have reached new levels in the last week, after the U.S. EPA announced plans for much closer reviews of Clean Water Act permits for valley fills.

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HUNTINGTON, W.Va. — Well, Obama administration lawyers didn’t exactly drop a bombshell. But they did confirm in federal court here this morning that a new policy on mountaintop removal is being developed.

What is that policy? They’re not saying yet.

“We are in a state of transition,”  said Cynthia “C.J.” Morris, a Department of Justice lawyer representing the federal Army Corps of Engineers. Morris added that she had “nothing significant to report” about where that transition might take government policies on mountaintop removal.

I guess it’s change you can believe in — but just not change you can know about yet.

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Nancy Sutley, who served as Deputy Mayor for Energy and Environment for the city of Los Angeles, California since 2005, is Barack Obama’s  chairwoman of the White House Council on Environmental Quality.

President Barack Obama’s top aides will be making a decision “very soon” about what they will do about mountaintop removal, according to congressional testimony today from Nancy Sutley, chairwoman of the White House Council on Environmental Quality.

Sutley told lawmakers her staff have been meeting with EPA, the Corps of Engineers, the Department of Justice and the Office of Surface Mining, discussing the issue, reviewing the February decision by the 4th U.S. Circuit Court of Appeals, and examining a flood of pending permits at the corps office in Huntington.

“We’re trying to get a handle on what’s out there and what we may be able to do about it,” Sutley told the  House Appropriations Committee’s Subcommittee on Interior, Environment and Related Agencies.

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Photo by Vivian Stockman

We asked yesterday what President Barack Obama is going to do about mountaintop removal coal mining…

Well, on Monday we might get a hint about Obama’s plans. Federal government lawyers will be in court there, before U.S. District Judge Robert C. Chambers, for what could be a key status hearing on one of the ongoing court fights over mountaintop removal.

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I asked the press office at the U.S. Department of Justice — which represented the Army Corps of Engineers in the mountaintop removal case — for a reaction to Friday’s ruling. This is what I got back from DOJ spokesman Andrew Ames:

The opinion speaks for itself.  The Court of Appeals has reversed the injunctions that set aside permits issued by the U.S. Army Corps of Engineers for valley fills incidental to coal mining operations.  The ruling is 84 pages and the Department continues to review.

Environmental groups are asking some interesting questions about the federal government’s new Clean Water Act settlement with Patriot Coal Corp.

Joe Lovett, executive director of the Appalachian Center for the Economy and the Environment, told me that citizen groups he often represents will probably challenge the deal, after going along with a similar settlement (including a record $20 million fine) last year with Massey Energy.

I spelled out the basics of the $6.5 million deal with Patriot in a story for our Print edition today. And now, I’ve posted the EPA/Department of Justice complaint against Patriot here and the consent decree here.

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