Coal Mining Debris Rule Is Approved

NY Times

December 3, 2008

By ROBERT PEAR and FELICITY BARRINGER

WASHINGTON — The White House on Tuesday approved a final rule that will make it easier for coal companies to dump rock and dirt from mountaintop mining operations into nearby streams and valleys.

The rule is one of the most contentious of all the regulations emerging from the White House in President Bush’s last weeks in office.

James L. Connaughton, chairman of the White House Council on Environmental Quality, confirmed in an interview that the rule had been approved by the White House Office of Management and Budget. That clears the way for publication in the Federal Register, the last stage in the rule-making process.

Stephen L. Johnson, administrator of the Environmental Protection Agency, concurred in the rule, first proposed nearly five years ago by the Interior Department, which regulates coal mining.

In a letter to Interior Secretary Dirk Kempthorne, dated Tuesday, Mr. Johnson said the rule had been revised to protect fish, wildlife and streams.

Mining activities must comply with water quality standards established by the federal government and the states, Mr. Johnson said.

But a coalition of environmental groups said the rule would accelerate “the destruction of mountains, forests and streams throughout Appalachia.”

Edward C. Hopkins, a policy analyst at the Sierra Club, said: “The E.P.A.’s own scientists have concluded that dumping mining waste into streams devastates downstream water quality. By signing off on this rule, the agency has abdicated its responsibility.”

Mr. Bush has boasted of his efforts to cooperate with President-elect Barack Obama to ensure a smooth transition, but the administration is rushing to complete work on regulations to which Mr. Obama and his advisers object. The rules deal with air pollution, auto safety, abortion and workers’ exposure to toxic chemicals, among other issues.

The National Mining Association, a trade group, welcomed the rule, saying it could end years of uncertainty that had put jobs and coal production in jeopardy.

The coal industry could be the largest beneficiary of last-minute environmental rules.

“This is unmistakably a fire sale of epic size for coal and the entire fossil fuel industry, with flagrant disregard for human health, the environment or the rule of law,” said Vickie Patton, deputy general counsel of the Environmental Defense Fund.

The Environmental Protection Agency is trying to finish work on a rule that would make it easier for utilities to put coal-fired generating stations near national parks. It is working on another rule that would allow utility companies to modify coal-fired power plants and increase their emissions without installing new pollution-control equipment.

Joan M. Mulhern, a lawyer at Earthjustice, an environmental group, denounced the mining regulation.

“With less than two months left in power,” Ms. Mulhern said, “the Bush administration is determined to cement its legacy as having the worst environmental record in history.”

At issue, she said, is a type of mining in which “coal companies blast the tops off mountains to reach the seams of coal and then push the rubble into the adjacent valleys, burying miles of streams.”

Administration officials rejected the criticism.

“This rule strengthens protections for streams,” said Peter L. Mali, a spokesman for the Interior Department office that wrote the regulation. “Federal law allows coal mine waste to be placed in streams, and the rule tightens restrictions as to when, where and how those discharges can occur.”

The rule gives coal companies a legal right to do what, in the past, they could do only in exceptional circumstances, with special permission from the government.

As a presidential candidate, Mr. Obama expressed “serious concerns about the environmental implications” of mountaintop mining.

“We have to find more environmentally sound ways of mining coal than simply blowing the tops off mountains,” Mr. Obama told one environmental group. At the same time, he proposed a major federal investment in clean coal technology.

Gov. Steven L. Beshear of Kentucky and Gov. Phil Bredesen of Tennessee, both Democrats, had urged the Bush administration not to approve the rule. Mr. Beshear said he feared that it would lead to an increase in pollution of “Kentucky’s beautiful natural resources.”

Several members of Congress also opposed the rule, including Representative John Yarmuth, Democrat of Kentucky.

In giving his blessing to the new regulation, Mr. Johnson, the head of the E.P.A., noted that Mr. Bush had promoted the use of clean coal technology as a way to reduce dependence on foreign oil.

“Americans should not have to choose between clean coal or effective environmental protection,” Mr. Johnson said. “We can achieve both.”

But environmental groups like the Natural Resources Defense Council see the mountaintop mining rule and pending changes in air pollution regulations as part of a final effort by the Bush administration to cater to the needs of energy industries.

The proposal that would give more leeway to coal-burning power plants, to increase their emissions when they make repairs and renovations, was on the original wish list of the energy task force convened by Vice President Dick Cheney in 2001.

In 2006, a federal appeals court struck down an effort by the Bush administration to loosen the rules on such coal-burning plants.