October 20, 2008--- On Friday, the federal Office of Surface Mining (OSM) published a final Environmental Impact Statement (EIS) on the agency’s proposed revisions to the regulations implementing the Stream Buffer Zone (SBZ) rule. In 2004 OSM published proposed revisions to the SBZ rule in the Federal Register. The 2004 draft revisions were accompanied by a draft Environmental Assessment (EA), reflecting OSM’s belief that its proposed revisions to the SBZ rule would not warrant a full-blown EIS under the National Environmental Policy Act.
OSM received thousands of comments on the draft EA and in June 2005 decided that a full EIS was appropriate given the volume of responses received on the original proposal. In August 2007 OSM published a draft EIS to accompany a further revised set of proposed regulatory revisions. The agency received some 43,000 comments of the proposed rule changes and 2,000 comments were submitted to OSM on the draft EIS. The draft EIS considered 17 alternatives with respect to the SBZ rule. The agency’s preferred alternative mirrored the proposed changes to the SBZ regulations. The preferred alternative calls for clarifying the SBZ rule to expressly exempt activities that are intended to take place in streams such as the construction of valley fills and coal refuse structures.
While the EIS supports the proposed revisions to the SBZ rule it does not, by itself, revise any of OSM’s regulations. The actual revisions to the SBZ rule are still pending. The revised rules can be published 30 days after the EIS. For a copy of the EIS and more complete summary of the document, please contact jbostic@wvcoal.com
This month marks the nine year anniversary (October 20, 1999) of Judge Charles Haden’s opinion in the first mountaintop mining case that originally identified the need to revise the SBZ rule to clearly state Congressional intent with respect to mining-related fill construction. Haden ruled that the SBZ rule prohibited mining related disturbance within 100 feet of an intermittent or perennial stream. The October 1999 decision was reversed on appeal.