The Office of Surface Mining (OSM) proposed to eliminate a key rule that protects Appalachian streams and communities from a coal-mining technique known as mountaintop removal mining. The Office intends to replace the rule with a regulation that streamlines the approval process for coal mining permits.1 This marks OSM's second attempt in five years to scale back restrictions on the Appalachian coal industry, distorting scientific procedures for assessing environmental impacts in the process.
During mountaintop removal mining, coal companies dynamite entire mountain ridges in order to expose coal seams. Millions of tons of waste rock and dirt are then dumped into nearby hollows, burying headwater streams under enormous valley fills and simultaneously obliterating ecosystems. Waterborne pollutants that leach out from filled sites pose grave risks to people and wildlife downstream.
These ecosystems are legally protected under the 1983 stream buffer zone (SBZ) rule, which prohibits mining companies from digging and dumping within 100 feet of any stream,2 but this rule is rarely enforced as written.3 The scientific community overwhelmingly affirms this is the best method for protecting these waters.4 OSM agrees that implementation of the SBZ rule is "the best technology currently available" to protect stream environments,5 and their best means of executing the Surface Mining Control and Reclamation Act of 1977 (SMCRA).6
Yet OSM plans to scrap the SBZ rule in favor of weak regulatory language allowing coal companies to dump mining waste directly into streams with only a vague requirement to minimize the adverse environmental impacts.7 To justify the change, the office released an environmental impact statement (EIS) in August of 20078 that distorts the scientific evidence and downplays the devastation caused by mountaintop removal mining.
A History of Interference
OSM first attempted to gut the SBZ rule after environmental groups brought a lawsuit against the Office in 1998,9 alleging OSM failed to adequately enforce the rule. OSM settled the case by agreeing to produce, with assistance from other agencies, an EIS to examine the effects of mountaintop removal mining and identify ways to minimize mining-related damage to the environment.10
Political interference by J. Stephen Griles, then deputy secretary of the Department of the Interior and a former lobbyist for the National Mining Association,11 derailed the scientific purpose of the EIS. Internal government documents reveal Griles violated a signed statement to the Senate, in which he recused himself from issues affecting his former clients,12 and met no fewer than 12 times with top Bush administration officials and coal industry representatives to discuss the EIS.13 Griles also issued a memo stating that the EIS should "focus on centralizing and streamlining coal-mining permitting" instead of minimizing adverse environmental effects.14
Due to Griles' influence, the agencies drafting the EIS were directed to drop consideration of all alternatives that would restrict how and where coal mining operations may construct valley fills.15 Representatives from 50 environmental groups, including Former Maryland State Senator Gerald Winegrad, criticized the OSM for compromising the policy process by censoring these alternatives.16 "The EIS process has been usurped and its scientific underpinnings destroyed," said Winegrad.17
These accusations are supported by internal documents obtained via the Freedom of Information Act from the U.S. Fish and Wildlife Service (FWS), one of the agencies that collaborated with OSM to draft the 2004 EIS. One memo from frustrated FWS staff stated, “The alternatives and actions, as currently written, belie four years of work and the accumulated evidence of environmental harms.”18 Another concerned FWS biologist, Cindy Tibbot, protested the forced changes: “It’s hard to stay quiet about this when I really believe we’re doing the public and the heart of the Clean Water Act a great disservice.”19 The only alternatives offered in Griles’ proposed EIS, as Tibbot put it, would be “alternative locations to house the rubber stamp that issues the [mining] permits.”20
Under this fierce criticism, OSM acknowledged in 2005 that the EIS was flawed21 and committed to revising the EIS before making any changes to the SBZ rule. OSM's second attempt at the EIS, released August 2007,22 continues to misrepresent the scientific consensus on the devastating environmental effects of mountaintop removal mining. In an October 2007 letter, 36 professional aquatic scientists criticize OSM for systematically discounting the effectiveness of stream buffer zones by employing poor documentation, subjective reasoning, and inadequately qualified staff.23 They conclude that "the Draft EIS is severely and fundamentally flawed and is not based on sound science."24 Griles may have left OSM,24 but it seems he has left a legacy of catering to the coal industry at the expense of scientific integrity, environmental quality, and human health.
Distorted Risk Assessments
OSM has compromised the process of preparing environmental risk assessments by systematically misrepresenting independent and objective scientific analysis in the final 2007 EIS. Researchers involved in the EIS process have revealed to the Union of Concerned Scientists that OSM distorted and misrepresented scientific evidence, and as a result deemphasized the ecological importance of temporary stream ecosystems, the damage to fish populations downstream, the danger posed by waterborne toxins, and the risk of mining-related flooding.
Disregarding stream ecosystems. The 2007 EIS hides the conclusions of a study which contradicted expectations that temporary streams are ecologically insignificant. Dr. Bruce Wallace, professor of entomology at the University of Georgia, and Dr. Benjamin Stout, professor of biology at Wheeling Jesuit University, who were commissioned to study these environments for the EIS, found that streams which flow only after rainfall harbor unique ecosystems that are irrevocably destroyed in the “valley fill” process.26 However, the EIS relegates their concerns for this newfound biodiversity to the appendices.27 “The message,” Stout laments, “is lost from the front section.”28
Devaluing fish diversity. Also 'lost' is the message that valley fills jeopardize the long-term survivability of unique fish populations.29 Commissioned for the EIS in 2001, Dr. Jay Stauffer, professor of ichthyology at Pennsylvania State University, and Dr. Paola Ferreri, associate professor of fisheries management also at Penn State, found that coal mining activities reduce the genetic diversity of fish populations in West Virginia and Kentucky.30 The 2007 EIS, however, grossly misrepresented their research to justify conclusions that, as Stauffer says, "are not supported by the evidence we collected."31 Furthermore, OSM disregarded the follow-up study these scientists published in 2004, which unambiguously shows that valley fills drastically decrease both diversity and abundance of downstream fish.32
Ignoring water toxins. The 2007 EIS also downplays the scientific evidence detailing the dangers of waterborne pollutants released by mountaintop removal mining. While the office admits that mining operations increase concentrations of sulfate, suspended and dissolved manganese, alkalinity, and selenium, OSM omitted the critical point that manganese and selenium are known human toxins. Selenium concentrations in streams below valley fills regularly exceed EPA water quality standards33 and have been detected by FWS scientists in concentrations that could disrupt fish reproduction and endanger fish-eating birds.34 Yet the EIS claims the effects of these pollutants are unknown,35 injecting uncertainty into the management of toxins known to pose significant risk to humans and animals alike.
Misrepresenting flood risk. The 2007 EIS fails to support its conclusions that rescinding the SBZ rule "should have very little effect on flooding" with any credible science.36 Its only sources are a study which never mentions the word "flooding"37 and a series of theoretical models used by the Army Corps of Engineers to illegally issue permits to mining companies for valley fill construction.38 According to hydrologist Keith Eshleman, professor at the Appalachian Laboratory of the University of Maryland Center for Environmental Science, these models "ignored 'real' data from published scientific studies" on erosion, water quality, and storm runoff, resulting in underestimated risk of flooding.39 "Any reasonable hydrologist," Eshleman asserts, "would conclude that the risk of flooding downstream increases as the proportion and intensity of surface mining increases."40
A Lack of Integrity
OSM has disregarded the scientific evidence, which shows that strict enforcement of the SBZ rule at all mining sites is the best way to prevent the certain harm caused by mountaintop removal mining. Since 1985, over 1200 miles of streams have been buried under valley fills.41 Until such time as OSM conducts a complete and accurate EIS, the full extent of the indirect harms caused by this devastating mining technique—toxic water pollution, species extinctions, reduced carbon sequestration due to massive deforestation,42 not to mention the loss of a national natural treasure—will remain unknown.
Update: On August 12, 2009, a federal appellate judge refused Interior Secretary Ken Salazar’s attempt to reinstate the stream buffer zone rule, which allowed coal companies to conduct surface mining activities within 100 feet of streams only if they could prove that such actions would not harm the water quality or quantity.43 The court reasoned that permitting such a rule reversal would be equal to changing a federal regulation without public notice and comments. A spokesman for the administration said that they would still work to improve mining practices by other methods.
1. Griles, J.S. Memo to James L. Connaughton, Chairman Council on Environmental Quality, Marcus Peacock, Associate Director Office of Management and Budget, et al. FOIA request by Trial Lawyers for Public Justice. 5 October 2001.
2. To read the SBZ rule as written, see the Code of Federal Regulations (CFR), Title 30, §816.57.
3. In its FAQ on the proposed rule, OSM states, "The rule has never been applied as an absolute prohibition of mining activity near a stream."
4. Mulholland, P. et al. Letter to David Hartos, EIS Team Leader. Re: Comment on Draft EIS "Excess Spoil Minimization/Stream Buffer Zones" (OSM-EIS-34). 1 October 2007.
5. "Stream buffer zones continue to be the best technology currently available for implementation of [the law]." OSM. Draft Environmental Impact Statement: Excess Spoil Minimization/Stream Buffer Zone. II-19. OSM EIS-34. April 2007.
6. Public Law 95-87: Surface Mining Control and Reclamation Act of 1977. §515(b)(24).
7. OSM. Excess Spoil, Coal Mine Waste, and Buffers for Waters of the United States; Proposed Rule. Federal Register. Vol. 72. 48892. 24 August 2007.
8. OSM, 2007 Draft Environmental Impact Statement.
9. Bragg v. Robertson. Civ. Act. No. 2:98-0636. U.S. District Court for the Southern District of West Virginia. 23 December 1998.
10. Environmental Protection Agency (EPA) et al. "Intent To Prepare an Environmental Impact Statement." Federal Register. Vol. 64. No. 24. 5830. 9 February 1999.
11. See the biographical information for James Stephen Griles at sourcewatch.org.
12. Deputy Secretary J. Stephen Griles. "Statement of Disqualification from Matters Involving His Former Employers and Clients", addressed to the U.S. Office of Government Ethics and the Senate Energy and Natural Resources Committee. 1 August 2001.
13. See list prepared by the Ohio Valley Environmental Coalition, Meetings J. Steven Griles had on Mountain Top Coal Strip Mining.
14. Griles memo.
15. Email dated September 20, 2002 from Mike Robinson, OSM, re: Executive Conference Call Agenda–9/23/02, 9-10 am, with Attachment: VFEIS Executive Meeting Agenda, September 23, 2002 Conference Call. Part of FOIA request documents, Ex. 41.
16. Winegrad, G.W., et al. Letters to President Bush and John Forren, EPA. 2 January 2004.
17. Author interview with Gerald Winegrad, March 2004.
18. Densmore, D., Supervisor, Pennsylvania Field Office, U.S. Fish and Wildlife Service. "FWS Comments on 9/20/02 Draft of Chapter IV (Alternatives)." Comments circulated internally. 30 September 2002. Emphasis in original. Part of FOIA request documents, Ex. 42.
19. Tibbot, C., U.S. Fish and Wildlife Service. Email correspondence circulated internally. 30 October 2002. Part of FOIA request documents, Ex. 45.
20. Tibbot email.
21. OSM. "OSM Proposes Environmental Impact Study Of Proposed Rule." News Release. 16 June 2005.
22. OSM. "Draft Stream Buffer Zone Environmental Impact Statement Will Be Released for Public Review." News Release. 21 August 2007.
23. Notably, the EIS preparation team contained neither a trained hydrologist nor a stream ecologist (OSM EIS-34. VII-157). Mulholland, P. et al. Letter to David Hartos, EIS Team Leader. Re: Comment on Draft EIS "Excess Spoil Minimization/Stream Buffer Zones" (OSM-EIS-34). 1 October 2007.
24. Mulholland, P. et al. Letter to David Hartos, EIS Team Leader. Re: Comment on Draft EIS "Excess Spoil Minimization/Stream Buffer Zones" (OSM-EIS-34). 1 October 2007.
25. Griles, under intense scrutiny for unethical conduct, resigned from the Department of the Interior in December of 2004. See James Stephen Griles' biographical information.
26. Stout, Benjamin and Wallace, Bruce. Interagency Invertebrate Study Group. "A Survey of Eight Major Aquatic Insect Orders Associated with Small Headwater Streams Subject to Valley Fills from Mountaintop Mining." U.S. EPA, Washington, D.C. 2005.
27. OSM. Draft Environmental Impact Statement: Excess Spoil Minimization/Stream Buffer Zone. V-148. OSM EIS-34. April 2007.
28. Benjamin Stout. Interview with author. 28 September 2007.
29. OSM. Draft Environmental Impact Statement: Excess Spoil Minimization/Stream Buffer Zone. IV-130. OSM EIS-34. April 2007.
30. Stauffer, J. and Ferreri, P. Characterization Of Stream Fish Assemblages in Selected Regions of Mountain Top Removal/Valley Fill Coal Mining. October 2002.
31. Jay Stauffer. Phone interview with author. 11 October 2007.
32. Ferreri, P. and Stauffer, J. Evaluating Impacts of Mountain Top Removal/Valley Fill Coal Mining on Stream Fish Populations. American Society of Mining and Reclamation. Lexington, KY. April 2004.
33. EPA. "A Survey of the Water Quality of Streams in the Primary Region of Mountaintop / Valley Fill Coal Mining: October 1999 to January 2001 (part 1)".
"A Survey of the Water Quality of Streams in the Primary Region of Mountaintop / Valley Fill Coal Mining: October 1999 to January 2001 (part 2)". 8 April 2002.
34. David Densmore, FWS Supervisor. Letter to Allyn Turner, Director of Division of Water and Waste Management, West Virginia Department of Environmental Protection. 16 January 2004.
35. OSM. Draft Environmental Impact Statement: Excess Spoil Minimization/Stream Buffer Zone. IV-132. OSM EIS-34. April 2007.
36. OSM. Draft Environmental Impact Statement: Excess Spoil Minimization/Stream Buffer Zone. IV-128. OSM EIS-34. April 2007.
38. Ohio Valley Environmental Coalition v. U.S. Army Corps of Engineers. No. 3:05-0784. U.S. District Court for the Southern District of West Virginia, Huntington Division. 23 March 2007.
39. Written Testimony of Keith Eshleman. 18 May 2006. Ohio Valley Environmental Coalition v. U.S. Army Corps of Engineers. No. 3:05-0784. U.S. District Court for the Southern District of West Virginia, Huntington Division. 23 March 2007.
40. Keith Eshleman. Email correspondence with author. 8 October 2007.
41. EPA. Draft Programmatic Environmental Impact Statement on Mountaintop Mining. III.K-47. May 2003; OSM. Draft Environmental Impact Statement: Excess Spoil Minimization/Stream Buffer Zone. III-117. OSM EIS-34. April 2007.
42. EPA. Draft Programmatic Environmental Impact Statement on Mountaintop Mining. III.K-47. May 2003.
43. Huber, T. 2009. Judge rebuffs Obama administration on mining rule. Associated Press, August 12.