The Obama administration took steps Monday to reverse a last-minute Bush-era rule that allows mountaintop mining waste to be dumped near streams saying it was bad public policy.
Interior Secretary Ken Salazar said the rule didn't "pass the smell test" and he wanted a federal judge to give the Office of Surface Mining another crack at refining the so-called buffer zone rule. If a judge approves, Salazar proposed the temporary reinstatement of a 1983 regulation that would keep coal companies 100 feet away from streams unless they could prove mining wouldn't harm water quality or quantity.
Two lawsuits pending in federal court seek to block or overturn the Bush rule, which was approved the month the administration left office.
In a court filing Monday on one of the cases, Justice Department lawyers said the rule should be vacated because the U.S. Fish and Wildlife Service had not been consulted about its effect on threatened and endangered species. Sending the rule back to be reworked would achieve the same relief sought by the lawsuits, the filing said.
"The responsible development of our coal supplies is important to America's energy security," Salazar said in a conference call with reporters. "But as we develop these reserves we must also protect our treasured landscapes, our land, our water and our wildlife."
But environmentalists who would like to see mountaintop removal end altogether said the Interior Department would have to do more to protect waterways from mountaintop mining. Earthjustice, which represents the plaintiffs in one of the cases, said that while the lawsuit would be null and void if the judge agrees with the administration, the fight would go on to ensure the rule was enforced.
"With the explosives and bulldozers standing by, it will take tough enforcement and more rule changes and legislation to end mountaintop removal coal mining completely," said Mary Anne Hitt, a deputy director for the Sierra Club's Beyond Coal Campaign.
Mining officials responded to Monday's announcement saying it added another layer of uncertainty about the industry's ability to obtain permits and mine coal.
"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," National Mining Association Chief Executive Hal Quinn said in a statement. "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."
The action is the latest by the Obama administration to address mountaintop removal mining, a process in which mining companies remove vast areas to expose coal. While they are required to restore much of the land, the removal creates many tons of rocks, debris and other waste that are trucked away and then dumped into valley areas, where streams flow.
Although the rule applies nationwide, mountaintop removal operations are of special interest in Appalachia, where surface mines cover thousands of acres. An Environmental Protection Agency study estimated 400,000 acres of forest were cut and nearly 724 miles of streams buried between 1985 and 2001 by mountaintop mining.
Last month, the Environmental Protection Agency announced it was cracking down on mountaintop removal by taking a closer look at 150 to 200 permits pending before the U.S. Army Corps of Engineers.
On Monday, in another sign the Obama administration is targeting Bush administration environmental policies, the agency announced it was initiating a review of three rules that environmentalists and the state of New Jersey had asked the agency to reconsider but in two cases the Bush administration denied. The regulations deal with a program that ensures air quality is not worsened when industrial facilities are expanded or modified.
Kentucky Coal Association President Bill Caylor said a primary reason for the Bush administration's changes was to clarify whether the 1983 rule covered ephemeral streams that occasionally carry water.
"The original rule was clear that it did not apply to these little, small, dry ditches," Caylor said. "It helped by clarifying it because there was starting to be litigation."
Salazar said he talked to West Virginia Gov. Joe Manchin before Monday's announcement. Manchin spokesman Matt Turner said the governor invited Salazar to the state to visit a mountaintop removal mine.
"There has to be a balance and that is what he (Manchin) is looking for," Turner said. "There has to be a realistic understanding of how much energy comes from coal. We just can't instantly wean ourselves from this energy source."
Manchin complained to the administration after the EPA announced it wanted to review permits the U.S. Army Corps of Engineers was considering for mountaintop removal mines in West Virginia, Kentucky and Virginia.