Second Challenge to Stream Buffer Zone Rule filed in Washington

            The “stream buffer zone” (“SBZ”) rule, issued over two decades ago pursuant to SMCRA, prohibited mining activities within 100 feet of intermittent and perennial streams absent certain findings by the regulatory authority.  Neither OSM nor any of the states with similar rules had ever interpreted the rule as prohibiting excess spoil “fills” permitted under Section 404 of the Clean Water Act.  In October 1999, however, a federal district court judge in West Virginia ruled that the West Virginia surface mining authorities could not, as a matter of law, make the findings necessary to escape the rule’s prohibition with respect to the excess spoil valley fills and refuse facilities necessary to conduct mining operations in most of central Appalachia.  

            Also, late in the Clinton administration, the Department of Justice filed a brief with the Fourth Circuit largely agreeing with the district court ruling—an abrupt departure from its long-time application of the rule.  While the Fourth Circuit later reversed the decision on jurisdictional grounds and a WV administrative appellate body later rejected the substance of the district court ruling, the incoming Bush administration’s OSM feared that later administrations might try to do what had been done in the Fourth Circuit at the end of the Clinton administration—issue an interpretation of the SBZ rule that would prohibit much of the mining in central Appalachia.  Accordingly, for over 4 years, OSM worked to issue a revision to the SBZ rule to clarify that it did not prohibit valley fills or refuse impoundments.  OSM completed an environmental impact statement on its proposed rule in late 2008, and on December 12, 2008, finalized its revisions to the SBZ rule.  The new rule expressly allows fills, but requires OSM to make findings of impact minimization that overlap with findings required by the Corps of Engineers in administration of its Clean Water Act 404 program.

            On December 22, 2008, a group of environmental groups filed a lawsuit against both OSM and USEPA challenging the rule.  They rely on SMCRA, the Clean Water Act, the National Environmental Policy Act (“NEPA”) and the Administrative Procedures Act (“APA”) for their challenge.  See Coal River Mtn. Watch et al v. Kempthorne.  Those claims challenge not only OSM’s rule, but also USEPA’s written concurrence in the rule (required by SMCRA).  The claims are summarized below:

1.         Claims Against OSM:

a.       Count 1: NEPA Claim: OSM ignored available evidence of harm; overstated the benefits of the rule, and failed to explore alternatives;

b.         Count 2: APA and SMCRA: OSM provided no reasoned explanation for departure from the earlier SBZ rule (or OSM’s litigation-driven interpretations of it in the 1999 WV litigation); and the new rule violates SMCRA itself.

 

2.        Claims Against USEPA:

a.         APA: No notice and opportunity to comment on EPA’s concurrence with OSM’s SBZ rule and no explanation for departing from earlier EPA interpretations; and

 

b.         Clean Water Act: EPA’s concurrence with SBZ rule violates EPA’s duty to avoid conflicts between SMCRA and CWA.

On January 16, 2008, the Southern Environmental Law Center issued a press release stating that it and several other groups had just filed a second challenge in the D.C. District Court to the SBZ, this one focusing more on Endangered Species Act issues in southwestern Virginia and Tennessee.  The link to its press release is:

http://www.southernenvironment.org/newsroom/press_releases/2009_1_16_stream_buffer_rule_groups_sue_bush_admin_on_coal_mining_law/

            This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author see here.