OSM pushes against mine reforms

The federal Office of Surface Mining wants to halt proposed reforms that would have ensured that coal companies plan post-mining development before they obtain mountaintop removal permits, new government records show. OSM is also pushing for a federal study of mountaintop removal to propose "no set restrictions" on the size of valley fill waste piles, according to the records. The OSM positions are outlined in a U.S. Environmental Protection Agency slide presentation, obtained this week as part of a federal Freedom of Information Act request. In the presentation, dated March 5, EPA also said that OSM and the Army Corps of Engineers oppose any new rules that limit mountaintop removal's damage to mountains and forests. "Cumulative terrestrial impacts from [such] activities are considered to be significant, and have a high level of public interest," the EPA presentation said. "Actions to promote reforestation involve private property rights, and are difficult to implement," the presentation said. "As a result, OSM and COE are reluctant to impose regulatory requirements to minimize terrestrial impacts." OSM officials declined to discuss the EPA documents. On Tuesday, The Charleston Gazette received the computerized slide show from EPA. The agency continues to provide records as part of a request for all documents concerning the federal Environmental Impact Statement on mountaintop removal. Federal agencies have not yet formally released the study. But a copy of the current draft, along with the new EPA slide show, are now available on the newspaper's Web site at http://wvgazette .com/eis. The slide show's release comes just as Chief U.S. District Judge Charles H. Haden II issued a major ruling that could curb mountaintop removal. On Wednesday, Haden ruled that the Clean Water Act does not generally allow the corps to authorize valley fills through its Section 404 "dredge-and-fill" permits. The judge said that the corps may approve fills only when coal companies have proposed them as part of a post-mining development plan for a potential mining site. In his ruling, Haden drew a connection between fill requirements in the Clean Water Act and the federal Surface Mining Control and Reclamation Act. Under the Clean Water Act, the judge said, the corps may allow fill to be dumped into streams "only for a constructive primary purpose, not solely for waste disposal."
Under the surface mining law, coal operators are generally required to reclaim mined land to its "approximate original contour" before it was mined. Companies can avoid that requirement - and level mountains and bury streams - only if they propose concrete plans for future development of the site. "Waivers to AOC requirements are available when land will be put to ‘an equal or better economic or public use,'" the judge wrote. "AOC waivers may be allowed for ‘industrial, commercial, agricultural, residential, or public facilit[ies] (including recreational facilities). "SMCRA's statutory and regulatory scheme thus assumes overburden will be returned to the mountaintop removal site recreating AOC unless a constructive primary purpose is designated for the site," Haden wrote.
"Only where the site will be improved for ‘an equal or better economic or public use,' does the statute contemplate overburden or excess spoil placement elsewhere." In a 1998 series, the Gazette reported that the West Virginia Department of Environmental Protection routinely approved mountaintop removal permits without post-mining development plans. After its own investigation, OSM issued a report that confirmed the newspaper's findings and proposed some reforms.
In its draft EIS, the federal government confirms again that problems continue with permitting mountaintop removal without post-mining development. "There are few programs that are effectively promoting economic and social benefits on a broad, systematic scale," the draft study says. "Indeed, there are instances where the flattened topography is truly used to advantage in terms of more intensive human uses such as an airport, a school, etc.," the draft says. "On the other hand, there are many instances where an AOC variance is issued and the [post-mining land use] is not a ‘higher' use, and the use is not one that depends on having reduced slopes." In various drafts of EIS documents, the agencies say that they may propose new rules and guidance for meeting post-mining land use requirements. But in the new slide show, EPA indicates that OSM wants to eliminate those proposals from the EIS. "Post-mining land use [PMLU] studies suggest that, in general, post-mining development is not occurring as envisioned when variances are requested from the requirements to return the land to a condition capable of supporting its primary use," the slide show says. "Actions to ensure that PMLU development occurs as envisioned have been developed, but OSM recommends deleting these actions from further consideration in the EIS." Other government records show that the Department of Interior, which oversees OSM, wants to use the EIS to create "one-stop shopping" to make it easier for companies to obtain mountaintop removal permits. Former mining industry lobbyist Steven J. Griles, now a Bush administration deputy secretary of Interior, is pushing the strategy, records show. Some EPA officials apparently are trying to oppose the OSM strategy. They said that, if the OSM plan is followed, "A clear statement must be made that this process will be significantly different than the requirements prior to 1998." Last week, EPA Administrator Christie Whitman said that a draft EIS on mountaintop removal would be issued later this summer. To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.
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