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 flooding.
The 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.
It 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.
For 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.
In 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."
Headwater 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.
EPA 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.
"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," 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."
Bill 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 industry."
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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