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EPA To Gut Mountaintop Mining Rule That Protects Streams

Renee Schoof and Bill Estep

Mountaintop coal mines, such as this one near Mud River, W.Va., generate large amounts of waste. "With less than two months left in power, the Bush administration is determined to cement its legacy as having the worst environmental record in history," Earthjustice said in a statement. "This is a sad day for all people who are thankful for the clear mountain streams and stately summits of the Appalachians."(By Michael Williamson -- Post)

WASHINGTON - The Environmental Protection Agency on
Tuesday approved a last-minute rule change by the Bush administration
that will allow coal companies to bury streams under the rocks leftover
from mining.

The 1983 rule prohibited dumping the fill
from mountaintop removal mining within 100 feet of streams. In
practice, the government hadn't been enforcing the rule. Government
figures show that 535 miles of streams were buried or diverted from
2001 to 2005, more than half of them in the mountains of Appalachia.
Along with the loss of the streams has been an increase of erosion and

11th hour change before President George W. Bush leaves office would
eliminate a tool that citizens groups have used in lawsuits to keep
mining waste out of streams. Mining companies had been pushing for the
change for years.

also means that President-elect Barack Obama's administration will have
to decide whether to try to restore and enforce the rule, a process
that could take many months of new rulemaking. Obama's transition team
declined to comment on its plans on Tuesday.

Another option would be for opponents to go through the courts. Opponents have argued that the rule change is illegal.

now, however, the EPA's approval means there are no further obstacles
to the Office of Surface Mining's plans to change the rule. The White
House's Office of Management and Budget approved it on Monday. The
Department of Interior, which includes the mining office, plans to make
the rule final in December after briefing members of Congress, and it
will go into effect 30 days after that, said spokesman Peter Mali.

The timing means the rule is expected to be in effect when Obama takes office in January.

approving the change in writing as required by law, EPA Administrator
Stephen Johnson rejected the appeals of environmentalists and some
coal-country officials, including Kentucky Gov. Steve Beshear and
Tennessee Gov. Phil Bredesen, both Democrats.

In a letter in
November to Johnson, Beshear said his state had to protect its water
and that while coal was important to the economy, it should be mined in
environmentally responsible ways.

The new rule says the buffer
zone around streams would not apply to the disposal of rocks, dirt and
sludge from mining. It would allow companies to get a permit for the
disposal as long as they show on a case-by-case basis that they are
trying to minimize the waste.

Carl Shoupe, 62, of Benham, Ky.,
said mining already had buried many streams and he and others worried
that the rule change would lead to more losses.

"They're taking
our water away. They're taking our mountains away," said Shoupe, a
former underground coal miner disabled in a roof fall. "We ain't got
all the water resources that we used to have up here."

areas deserve protection because that's where the entire stream system
begins, said Shoupe, who also is a member of the citizens group
Kentuckians for the Commonwealth. And he said it's not true that the
only opposition to the rule change comes from outside the coalfields.

"It's ridiculous what they're doing," he said.

said in a statement that the rule would not violate federal or state
water quality standards. EPA spokeswoman Enesta Jones said she could
not provide any further explanation.

Joan Mulhern, a senior
attorney at Earthjustice, a nonprofit law firm that has fought
mountaintop mining, said the EPA had failed to do its job.

less than two months left in power, the Bush administration is
determined to cement its legacy as having the worst environmental
record in history," she said in a statement. "This is a sad day for all
people who are thankful for the clear mountain streams and stately
summits of the Appalachians."

However, coal mining companies and
lawmakers who argued on their behalf in letters to the EPA said the
rule change was necessary.

Kentucky State Rep. Hubert Collins
said that in a national recession, only coal was keeping eastern
Kentucky out of a depression.

"It's a matter of keeping people working," he said. "It's a matter of keeping food on the table here in the coalfields."

Caylor, president of the Kentucky Coal Association, said the rule
change clarifies the intent of the federal surface-mining law. He said
the law was never intended to ban putting excess rock and dirt from
mining operations into the headwater sections where streams only flow
when it rains.

"If you can't be within 100 feet of a dry ditch,
we're finished," he said. Caylor also noted that the new rule would
have little impact because coal companies already work to keep valley
fills as small as possible.

Kentucky's best known
environmentalist, Tom FitzGerald, called the new rule "a regrettable
exclamation point on a litany of Bush-era regulatory and policy changes
that have weakened the stream protection and mining and reclamation
requirements intended by Congress - an early Christmas present to the

States had applied the stream buffer rule unevenly and
federal enforcement was lax, FitzGerald said. But the elimination of
the buffer zone requirement makes it possible for the coal industry to
expand dumping in headwater streams, he said.

FitzGerald said the
rule change applied to mountaintop mining and all other forms of
surface mining, as well as disposal of coal mine processing waste,
disposal of waste from underground mining and the use of streams for
sedimentation ponds.

Estep reports for the Lexington Herald-Leader. Andy Mead of the Herald Leader contributed to this article.

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