The Obama administration launched a two-front assault on dirty coal today, targeting a series of last-minute gifts bestowed upon the industry by the Bush administration.
Interior Secretary Ken Salazar went after mountaintop mining, a practice that has been fouling streams and damaging homesteads across Appalachia.
The EPA, meanwhile, announced it would take a closer look at where the coal goes after it leaves the mines – in particular, three Bush-era decisions that pulled teeth from the federal New Source Review (NSR) rules governing air pollution permits for new factory and power plant construction.
In the mountaintop mining fight, Salazar declared that a controversial "stream buffer zone rule" for dumping mine waste, issued by the Bush administration in December, was "legally defective" and a danger to the health of Appalachia's waterways. He stressed that he supports developing U.S. coal supplies, but not at the expense of communities, habitats and wildlife.
"In its last weeks in office, the Bush administration pushed through a rule that allows coal mine operators to dump mountaintop fill into stream beds if it's found to be the cheapest and most convenient disposal option," Salazar said.
"The so-called 'stream buffer zone rule' simply doesn't pass muster with respect to adequately protecting water quality and stream habitat that communities rely on in coal country.
"It doesn't pass the smell test."
Salazar said the administration will ask a U.S. District Court judge to vacate the rule.
Once that happens, a somewhat stricter 1983 stream buffer zone regulation will be in effect, and the Office of Surface mining will begin developing comprehensive new regulations that addresses what Salazar describes as ambiguities and "interpretational gaps" in past rules.
"It's a great day for the fragile ecosystem of the Appalachians, as well as the quality of life for the people who live here," said Todd Bailey, a member of Kentuckians for the Commonwealth who lives uneasily with a mountaintop mining operation behind his home.
Salazar is headed down the right path, but the administration still has far to go to truly protect the region, said Mary Ann Hitt of the Sierra Club, which sued over the Bush rule.
Mountaintop mining was already devastating Appalachia before the Bush administration came along. Under the 1983 law, mountaintop miners were legally required to observe a 100-foot buffer zone around streams when they dumped the mining "overburden" – industry jargon for the remains of mountaintops blown off to get at coal seams. Yet despite the rule, nearly 2,000 miles of streams have been either completely buried in mining debris or poisoned by heavy metals that leached from the overburden. The drinking water of thousands of people living downstream from mines has been contaminated in West Virginia, Kentucky and Tennessee.
The Bush administration loosened the rules even more by allowing miners to dump their overburden into valley streams if the alternatives disposal methods were "unreasonable," which often translated into "more expensive."
"With the explosives and bulldozers standing by, it will take tough enforcement and more rule changes and legislation to end mountaintop removal coal mining completely," Hitt said.
Fired Up Over Power Plants
At the other end of coal's lifecycle, the EPA announced it would review three Bush administration rulings that deal with pre-construction permits for polluters, including power plants.
The rulings address: 1) When "fugitive emissions," those that aren't released through a stack or vent, trigger New Source Review rules for proposed construction projects; 2) Which projects are required to keep emissions records; and 3) How projects measure their expected release of fine particles, better known as soot.
"This is a big deal in that it is a policy shift – a lot of these New Source Review rules that were adopted late in the Bush administration are going to be reopened and reconsidered," said Earthjustice attorney Paul Cort. "The EPA has the potential to undo a lot of the damage that was done."
Cort was involved in a lawsuit over the Bush EPA's changes to how companies measured the amount of soot that would be released from their proposed power plants – or didn't measure it, as it turned out in some cases.
The Bush rule allowed plants that applied for an air pollution permit before July 2008 to use an old EPA policy to estimate their soot release. Under that policy, they could base their fine particle estimates on modeling of larger, coarse particles instead – even though the two behave in very different ways.
Soot in the air is a health issue for millions of people. It exacerbates asthma, effects respiratory systems, and can lead to heart problems.
"The EPA estimates that thousands of people die every years as a result of air pollution that violates these fine particle standards," Cort said.
Five power plants in Nevada, California and New Mexico would have slipped in under the Bush change – with the potential to continue polluting for the next 50 years or more.
By staying that part of the rule change now, the Obama EPA is putting those five permitted plants on hold. If the EPA decides to revoke the rule change, as Cort anticipates, those plants will have to redo their soot analyses, and that could mean expensive new scrubbers and possibly total redesigns.
A few of the plants, including the Ely Energy Center in Nevada, were already on indefinite hold due to the uncertainty of future rules from the new EPA. And the EPA today announced it would reconsider the permit for another, Desert Rock in New Mexico. The EPA move on New Source Review was an "an extra nail in the coffin," Cort said.
The EPA's action is also a reminder to Congress that if it doesn't take action on climate legislation, the regulators will do its job, and Congress might not like the results. The Waxman-Markey bill now in the House offers its own gift to the power industry – while setting new emissions rules into law, it offers to exempt greenhouse gas emissions from New Source Review.
"The New Source Review program has really been giving this kind of bogey man reputation, but it has been very effective in pushing the development of technology," Cort said. "New sources are being built cleaner than ever, and the economy has continued."