The Interior Department is writing new regulations for mountaintop-removal coal mining that would expand protection for waterways and require the restoration of dynamited areas.

Christopher Holmes, spokesman for Interior's Office of Surface Mining Reclamation and Enforcement, said the agency is rewriting its "stream protection rule" to boost environmental safeguards.

The proposal being drafted, Holmes said, would:

• Establish a clear standard for restoring dynamited mountaintops. The 1977 Surface Mining Reclamation and Control Act requires that mountaintops be restored to their "approximate original contour," but defining the term has been left to individual states.

• Yank the right of state regulators to grant exceptions to the contour-restoration requirement. Federal authorities currently allow states to set their own standards for granting exemptions, and state standards vary widely.

• Set a federal definition for "material damage" to watersheds beyond permitting areas. The surface-mining law prohibits mountaintop-removal mines and other above-ground coal operations from damaging watersheds outside areas covered by mining permits, but the requirement has been difficult to enforce because "material damage" has never been defined.

• Require companies applying for mining permits to collect more information on the environmental health of watersheds where they intend to work and to monitor conditions during and after mining. Mines that inflict environmental damages beyond what is permitted would be required to change their operations or close.

• Clarify that seasonal streams and temporary streams are covered by the regulations, even when the streambed is dry.

The changes under consideration would apply to new applications for surface coal mining permits and would not apply to existing coal mines, Holmes said.

The new stream rule would replace Interior's previous watershed-protection guidelines that banned mining activities within a 100-foot buffer of streams.

The Bush administration in 2007 modified the stream-buffer zone rule to allow mining activities within the 100-foot buffer if it was deemed impractical to avoid such work. The change faced numerous lawsuits, and Interior Secretary Ken Salazar last April voluntarily retracted the rule and announced his department would issue its own rule for stream protection.

Mountaintop mining produces waste-rock even after mountains are rebuilt. When the mountaintops are blasted, the volume of waste material expands by about 25 percent and leaves mine operators with excess rock even after the area is restored.

Waste rock is often dumped in valleys. About 1,200 miles of headwater streams have been buried, according to U.S. EPA.

EPA this month issued a set of water-quality guidelines for surface mining in Appalachia that agency officials said would ban the dumping practice, known as a "valley fill," in nearly all cases (E&ENews PM, April 1).

Interior evaluation

The new stream protection rule is far from final, Interior spokesman Holmes said.

The Office of Surface Mining is planning to hire scientists and policy experts to assess the proposal's environmental impact.

Agency officials will also be in West Virginia and Kentucky over the next two weeks for closed-door meetings with mining companies, environmental groups, state regulators and the miners' union. Meetings in the District of Columbia and Western states will also occur next month, Holmes said.

The agency will incorporate feedback from the assessment and stakeholder meetings into a proposed rule, scheduled for publication in February. A final rule could be in effect by 2012, Holmes said.

Reactions

The primary mining-industry group says the Interior rules would be another part of the Obama administration's regulatory assault on coal mining.

"At the core of [the Surface Mining Control and Reclamation Act] is balancing economic and environmental protection," said Luke Popovich, spokesman for the National Mining Association. "They seem to be tipping the balance in favor of environmental protection."

Popovich expressed particular concern about provisions that would no longer allow state exemptions for restoration requirements, saying they would curb states' ability to build on reclaimed mine lands.

In mountainous areas, states have built airports, golf courses and malls on former mountaintop removal mining sites, Popovich said.

Holmes said the new rules were not aimed at curtailing such developments, but Popovich said he is skeptical of how the rule would play out.

"This represents a clear strategic direction to wrest greater control of the regulatory program from states where it has traditionally resided," Popovich said.

The Sierra Club's director of environmental quality, Ed Hopkins, said his group had some concerns about the potential removal of a stream-buffer requirement.

"There's inevitably some interpretation in enforcement, and that's why we like to see a bright-line standard like the one set under the Clinton administration," Hopkins said.

But Hopkins said other proposed changes such as federal definitions for mountaintop restoration and damage to watersheds should yield positive environmental impacts.

"The way [the federal reclamation law] has seemed to work, there seems to have been a tremendous amount of state discretion in interpreting federal rules," Hopkins said. "To the extent that these rules would hold states accountable, that seems like a good thing."

Update: Corrected at 3 p.m. to clarify how the proposed rule would affect Interior's previous watershed-protection guidelines that banned mining activities within a 100-foot buffer of streams.

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