The U.S. District Court for the District of Columbia has invalidated the Bush era Stream Buffer Zone Rule (SBZ) that removed protections for streams and waterways near mountaintop mining areas. In late 2008, the Bush Administration issued the SBZ Rule, replacing a 1983 rule that established a buffer zone around streams in order to prevent toxic coal mining spoil from entering sensitive waterways. Spoil refers to the broken rock that coal mining operates create after mining operations. The resulting spoil takes up more area than the original rock, so coal companies have to dump it elsewhere – often in valleys and ridges burying streams. The 1983 rule created a buffer zone around streams, preventing mining companies from placing the spoil in or around the streams. The Bush SBZ Rule removed these protections.
When issuing the SBZ Rule in 2008, OSM officials relied on a 1996 opinion drafted by FWS rather than engage in interagency discussions regarding the impacts of the proposed rule. The 1996 opinion did not address strip mining and FWS objected to OSM relying on the memo in lieu of formal interagency discussion. Judge Barbara Rothstein agreed and ruled OSM’s decision to rely on the outdated memo as “arbitrary and capricious.” US EPA and the Department of Interior, both defendants, asked the court at oral arguments to rule against them and invalidate the 2008 SBZ Rule.
Assuming regulators enforce the previous 1983 rule, the invalidation of the SBZ Rule will prevent coal mining companies from discharging spoil into streams. The victory for environmentalists may be short-lived, as a bill is currently making its way through the House that would effectively apply the Bush SBZ Rule to states.
Ryan Koronowski, Polluting Appalachia’s Streams with Mountaintop Removal Mining Just Got Harder, Climate Progress, February 22, 2014 (http://thinkprogress.org/climate/2014/02/22/3320911/mountaintop-removal-mining-stream-buffer-rule/)
HR 2824, Preventing Government Waste and Protecting Coal Mining Jobs in America http://docs.house.gov/billsthisweek/20140303/CPRT-113-HPRT-RU00-HR2824.pdf
HR 2824, Preventing Government Waste and Protecting Coal Mining Jobs in America, CBO Assessment (http://www.cbo.gov/publication/45038)