Feds Propose Tougher Mining Regulations, But Do They Go Far Enough?

Over the past week, federal regulators have begun to tighten environmental rules for mining operations. They’re taking steps in the right direction, environmental advocates say, but only baby steps – much more is needed.

One of the moves by regulators would strengthen the permitting process for mountaintop mining in Appalachia, but still allow the practice to continue. Another would require certain mining companies to have sufficient finances for cleaning up their sites, a rule intended to keep fly-by-night operations from dumping that burden on taxpayers.

First, the Army Corps of Engineers submitted the Obama administration's plan to require a more stringent permitting process for coal companies that intend to bulldoze their mining debris into Appalachian streams.

The Corps' notice, published yesterday in the Federal Register, deals with Nationwide Permit 21, a process that currently allows mining companies to apply for and receive permits to chop down forests, level mountain peaks and bury streams under rock and waste without notifying the public.

The new rule, expected to be finalized in early 2010, will require individual site permits, rather than NWP 21 permits, in the Appalachian states of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia and West Virginia. Under those individual site permits, mining companies would be required to perform environmental analyses, issue public notices and provide opportunities for area residents to comment. (NWP 21 will still be allowed elsewhere.)

“It’s long overdue and is required both by the science and the law,” say Jim Hecker, environmental enforcement director at Public Justice. “I’m not saying that the ultimate decision is necessarily different. But usually when you have better information and analysis, you get better decisions.”

The current permitting practice goes against federal regulations, Hecker argues.

The EPA’s guidelines for allowing dredged materials to be dumped into streams, rivers and wetlands require agencies to evaluate the streams that are being filled. “They’re not doing that, so they don’t even know what is being lost before the stream is filled,” he says. If the agencies don’t know much harm will be done, they won’t how much mitigation is needed.

“No one has been able to recreate a natural stream on a virgin site out of nothing, but the Corps assumes you can re-create these new streams and offset all of the lost structure and function of the buried stream by creating new streams somewhere else. And we think that’s scientifically indefensible,” Hecker says.

The agencies also have not properly analyzed the cumulative impacts of the hundreds of issued mining permits, or the thousands of miles of streams that have been filled, Hecker says.

Appalachian advocates had high hopes for the Obama administration and were disappointed last month when the White House promised an important announcement but then only moved to tighten oversight rather than banning a practice that devastates the landscape and has been blamed for contaminating water supplies across the region.

“Ending the use of streamlined permits is another baby step in the right direction, but for the mountain that gets blown up, and the community whose drinking water gets destroyed, it doesn’t make a difference what type of permit was issued or how closely it was scrutinized,” says Tierra Curry, a biologist at the Center for Biological Diversity.

Environmentalists were similarly cautious in their applause for other proposed changes to regulations governing mining.

Spurred by a lawsuit decided in February, the EPA announced that it will create a rule requiring hard rock mining companies to have sufficient funds to cover their own environmental cleanup.