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October 24, 2007

**COMMENTS RE:**

**The Proposed Stream Buffer Zone Rule (RIN 1029-AC04)**

**& Excess Spoil Minimization DEIS (OSM-EIS-34)**

TO:

Dennis G. Rice

Office of Surface Mining Reclamation & Enforcement

Department of the Interior

1951 Constitution Ave, NW

Washington, DC 20240

Via email to <drice@osmre.gov>

David Hartos

Office of Surface Mining Reclamation & Enforcement

Appalachian Region

3 Parkway Center

Pittsburgh, PA 15220

Via email to <dhartos@osmre.gov>

FROM:

Cindy Rank

WVHC Mining Committee Chair

HC 78, Box 227

Rock Cave WV 26234

Phone & fax: 304-924-5802

e-mail: <clrank@hughes.net>

I submit these comments objecting to the Excess Spoil Minimization DEIS
and opposing the proposed Stream Buffer Zone Rule change on behalf of
the Mining Committee of the West Virginia Highlands Conservancy.

The West Virginia Highlands Conservancy has joined with several other
state and national organizations in more extensive and comprehensive
comments on the proposed rule and draft EIS on Excess Spoil
Minimization, that I hereby incorporate by reference. Those detailed
comments contain abundant references to appropriate sections of law,
scientific studies and legislative history as supporting documentation
for our positions in these matters.

For purposes of my comments this evening, I offer a brief, more general
overview of our position and comments.

First and foremost, we view this proposal to change the Stream Buffer
Zone Rule as another in a series of actions by the powers that be in
Washington to gut long-standing safeguards against the wholesale burial
and pollution of streams in Appalachia by the coal mining industry.

\- In May 2002, the U.S. Army Corps of Engineers (the Corps) repealed a
25-year-old prohibition on dumping waste material in streams. 67 Fed.
Reg. 31129.

\- In December 2003, the Office of Surface Mining (OSM) proposed to
weaken its oversight of state mining programs, by making federal
takeovers for state violations of federal law discretionary rather than
automatic. 68 Fed. Reg. 67776.

\- In October 2005, the Administration released its final Programmatic
Environmental Impact Statement on Mountaintop Mining/Valley Fills in
Appalachia (PEIS), which proposed no meaningful mining reforms or
limitations on valley fills. 70 Fed. Reg. 62102.

\- Now, OSM proposes to gut the stream buffer zone (SBZ) rule, the most
important safeguard under the Surface Mining Control and Reclamation Act
(SMCRA) for protecting streams.

Taken together, these actions can only accelerate the pace of
mountaintop removal mining and valley filling, which has already
destroyed 1,200 miles of Appalachia's streams and well over 400,000
acres of its forests.

While it is true that the Surface Mine Act envisions mountaintop removal
mining, the size and extent of that mining was limited by the stream
buffer zone rule which - if enforced properly - would allow only the
uppermost reaches of any stream to be filled with waste rock from mining
operations.

The proposed rule would eliminate the standing prohibition against
mining within 100 feet of streams if that mining will have an adverse
effect on water quantity, water quality, and other environmental
resources of the stream. In its place, the proposed rule would merely
ask coal operators to "minimize" harm to the extent possible.

This is an open invitation to industry to ignore a rule that, as a
practical matter, has been routinely abused and violated as federal and
state regulators looked the other way.

Clearly, burying 1 or two miles of stream under millions of tons of rock
violates the intent and letter of this rule. To paraphrase the late
Judge Haden in his 1999 ruling interpreting the existing SBZ rule in our
Bragg *v. Robertson* litigation, there is no greater harm to these
streams than obliteration. ... Once the stream is filled with tons of
waste rock, there *is* no more stream, no more water quality.

In a Fact Sheet offered as background for this rule change, OSM would
have us believe that burying some upper reaches of streams that fall
within the permitted mine area is OK as long as the downstream reaches
beyond the permit boundaries are not harmed. Addressing this erroneous
perception, Judge Haden wrote that \"\[n\]othing in the statute, the
federal or state buffer zone regulations, or the agency language
promulgating the federal regulations suggests that portions of existing
streams may be destroyed so long as (some other portion of) the stream
is saved.\" [*Bragg v. Robertson*.]{.underline}

#  Our lengthy comments will state and support our belief that:

\- OSM's proposal is not a 'clarification', but rather guts the existing
SBZ rule and reverses OSM's prior interpretation of the existing rule

\- OSM's reasons for gutting the SBZ rule are irrational and
inconsistent with congressional intent to protect the environment,
including streams.

\- OSM's DEIS is inadequate because it does not consider all reasonable
alternatives including any that would restrict the size, number or
impact of fills.

\- EPA cannot legally concur with the proposed rule because it will
cause significant degradation of streams, in violation of the Clean
Water Act.

A1977 House Report insisted that OSM must obtain concurrence from EPA
any proposed rule in order to guarantee consistency with environmental
requirements of the Clean Air Act and Clean Water Act. Indeed the
proposed rule not only violates the original intent of SMCRA, but also
violates the Clean Water Act because the rule will allow significant
degradation of streams to continue. The DEIS itself, as well as other
available scientific evidence, demonstrate that surface coal mining
activities are causing significant degradation of streams in Appalachia
and that degradation is likely to continue under the proposed rule
change.

\- Stream degradation is significant

\- Water quality degradation is significant

\- Water quantity and community impacts are significant

\- Degradation of aquatic diversity is significant

\- OSM's DEIS evades its obligation to analyze significant degradation

Against this background of scientific evidence of significant
degradation to streams The DEIS' analysis of cumulative effects is
pathetically inadequate.

A mere 1/2 page rationale is offered and two 20 year old EIS from \'79
and \'83 are relied upon as further proof of limited impact when in fact
the 2005 Mountaintop Mining/Valley Fill EIS concluded that fills are 72%
larger in the 1990\'s than they were in the 1980\'s and the length of
streams buried have increased 224% !!!

In conclusion:

1\) The [Existing]{.underline} SBZ Rule is Consistent with the CWA,

2\) OSM's deletion of the requirement that activities that disturb the
SBZ must comply with water quality standards is an illegal attempt to
exempt activities from water quality standards \-\-- and attempt to
override not work in concert with the requirements of the Clean Water
Act

## 3) We join with many others to say: 

## [PULL THE PROPOSED RULE & ENFORCE CURRENT LAW]{.underline}

Thank you for the opportunity to comment.