Administration Ignores Scientific Evidence and Pushes Forward with Mountaintop Removal

A long-anticipated Environmental Impact Statement (EIS) on the mountaintop mining waste disposal process ignores scientific evidence in order to validate the waste disposal method preferred by industry and the administration. Mountaintop mining uses explosives to expose coal seams for mining, resulting in waste dumped in nearby valleys, often burying streams and disrupting local ecosystems. Federal Protections Undermined The potential harm to waterways from mountaintop mining triggers the federal government's duties under environmental law. Under the Clean Water Act, the Army Corps of Engineers and EPA are required to prevent serious degradation of waterways. Under current regulation, the act is interpreted as keeping mine waste from being dumped within 100 feet of streams. The National Environmental Policy Act (NEPA) also requires agencies to assess the environmental impact of projects that may have significant environmental effects. Despite these provisions, the Army Corps of Engineers has issued nationwide general permits for mountaintop waste disposal that do not require prior scrutiny of the environmental impact. Section 404 of the Clean Water Act allows the government to bypass the requirement of detailed, individualized permits for pollution discharges when the discharge in question is "dredged or fill material." In such cases the Clean Water Act permits agencies to issue general permits good on a state, regional, or even nationwide basis. "Fill material" generally refers to material deposited for a beneficial primary purpose, such as development or construction, but a 2002 rule change expanded the definition to include mine waste. In the wake of that rule change, federal agencies are now streamlining the permit process, thus paving the way for more mountaintop mining. Citizens and environmental groups have been forced to take federal agencies to court in a series of cases aimed at requiring these agencies to comply with CWA and NEPA and protect streams from mountaintop waste. In July 2004, the courts handed environmental groups a victory by determining that 11 mining waste disposal permits required environmental impact statements. The case is currently under appeal, and a final decision could determine if the Army Corps of Engineers may use the streamlined permits for mountaintop mining waste disposal or if the corps must use individual permits that consider environmental impacts prior to mining. Federal agencies have also failed to enforce the 100-foot buffer zone provision. And in another gift to the mining industry, a 2004 proposed rule would revise the mining standards to allow the Office of Surface Mining to waive the buffer zone requirement for streams as it sees fit. Companies could receive permits to conduct surface mining activities near streams provided that they, "to the extent possible," "prevent additional contributions of suspended solids," and "minimize disturbances and adverse impacts." Agencies Ignore Their Own Findings Released Oct. 29, the Environmental Impact Statement (EIS), which was required of the agencies in a settlement agreement with citizens groups, validates both the administration's approach of using the general permit as well as the relaxation of the buffer zone requirements, despite scientific evidence of irreversible damage to streams and the wildlife dependent on them. The EIS includes more than 30 scientific and technological studies, many of which point to serious environmental harm if the current course is not reversed. One such study found that 2,200 square miles of land will be damaged by 2010 without stronger environmental controls. Rather than developing alternatives that would mitigate the impacts of mountaintop mining, the agencies instead claimed that while the studies used "were useful in identifying data gaps and needs for further study," they could not be used to determine "a bright-line threshold of minimal impacts." Further, the agencies deemed that conducting more studies would be too costly, effectively burying the chance for more stringent regulations under exhaustive analytical requirements. Citizen action groups have met with limited success at the state level, but without an overarching federal policy, their efforts leave only patchworks of protection for mountains, valleys and streams in Ohio, West Virginia, Kentucky, Tennessee and Virginia. Timeline December 23, 1998: Settlement with West Virginia citizens group requires the federal government to halt the routine issuance of nationwide mining waste permits until Environmental Impact Statement (EIS) on the mountaintop mining process could be completed. Instead, the Army Corps of Engineers would be required to issue a greater number of individual permits with greater scrutiny of the environmental impact. Bragg v. Robertson (S.D. W.Va.) February 5, 1999: The Environmental Protection Agency, the U.S. Army Corps of Engineers, the Office of Surface Mining, and the Fish and Wildlife Service issue a notice of intent in the Federal Register to do an EIS. 64 Fed. Reg. 5,778 October 25, 1999: U.S. District Court for the Southern District of West Virginia rules that state and federal agencies overseeing mountaintop mining permits violated the Clean Water Act by failing to enforce a 100-foot buffer zone meant to keep mine waste from disturbing streams. April 24, 2001: A three-judge panel of the U.S. Court of Appeals for the Fourth Circuit reverses the lower court's decision, claiming that the suit was barred under the sovereign immunity clause of the Eleventh Amendment. Bragg v. Robertson, 248 F.3d 275 (4th. Cir. 2001) May 8, 2002: District Court rules that mining waste cannot be fill material and any rule issued that says otherwise is illegal. Kentuckians for the Commonwealth v. Corps of Engineers, 204 F.R.D. 301 (S.D. W. Va. 2002). See Court Rejects Move to Dump from Mountaintop Mining (5/13/2002) May 9, 2002: New rule relaxes mountaintop mining dumping requirements under the auspices of harmonizing the definition of "fill material." New rule opens the door for greater dumping of rock waste and dirt as well as trash in streams and also grants the Army Corps of Engineers greater discretion in deciding when dumping can be permitted. 67 Fed. Reg. 31,129 See Administration Clears Way for Dumping, Mountaintop Mining (4/29/2002) January 29, 2003: Fourth Circuit Court rejects the lower court decision restricting mountaintop mining and invalidating the fill material rule, paving the way for further mountaintop removal. Kentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425 (4th Cir. 2003) See Court Ruling Overturned: Mining Companies Free to Bury Streams Once Again (2/10/2003) February 12, 2003: House bill introduced to reinstate original definition of "fill material." See Clean Water Protection Act of 2003. January 7, 2004: Proposed rule would gut prohibition on dumping mine waste within 100 feet of streams and ease the way for new mountaintop mining. 69 FR 1,035 See Administration Moves to Allow Dumping of Mining Waste into Streams (1/12/2004) July 8, 2004: Court rules that 11 general nationwide permits for mountaintop mining waste disposal violate the Clean Water Act because they take into consideration the environmental impact only after the fact. The case is now under appeal. Ohio Valley Environmental Coalition v. Bulen, No. 3:03-2281 (S.D. W. Va. filed July 8, 2004), available at http://www.wvsd.uscourts.gov/district/opinions/pdf/BULEN_FINAL.pdf. October 28, 2005: Agencies issue a final Environmental Impact Analysis, as required under the 1999 settlement agreement with the West Virginian citizen's group (Bragg v. Robertson, 72 F. Supp. 2d 642 (S.D. W. Va. 1999)). The EIA does propose alternatives to the streamlined general grant. None of the alternatives, however, seeks to limit damage to mountaintops, and all ignore incontrovertible scientific evidence of long-term environmental damage of mine waste dumping.
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