The federal Office of Surface Mining (OSM) published a final rule on December 12, 2008 to amend and clarify the stream “buffer zone” rule for coal mining operations (73 Fed. Reg. 75814). According to OSM’s press release, the rule “places new restrictions on how coal mine operators can dispose of coal mine waste and the excess spoil created by the mining operation.” The original rule generally provided that mining activities could not take place within 100 feet of a stream unless a waiver was granted by OSM or the relevant state agency. The new rule resolves years of controversy by clarifying OSM’s long-standing interpretation that the regulation was never intended to prohibit in-stream construction of valley fills for disposal of mine spoil. Fills may only be constructed, however, upon a showing (through an “alternatives analysis”) that it is not reasonably possible to avoid disturbance of a stream, and after the operator has demonstrated that it has taken steps to minimize the size of such proposed fills.

OSM’s issuance of the final rule culminates a nearly five year regulatory process that included preparation of a Environmental Impact Statement. OSM published its first version of the proposed rule in January of 2004. OSM held four public hearings and received approximately 43,000 written comments during the rulemaking process. The federal Environmental Protection Agency (EPA) was also required to concur with the final rule, which it did on December 2, 2008.

Controversy over the meaning of the buffer zone rule dates back even further. In 1999 and then again in 2002, a federal district court concluded that construction of in-stream valley fills was prohibited by federal law. Both decisions were later reversed on appeal. OSM’s revision to the rule has reignited that litigation. A group of eight anti-mining organizations filed suit on December 22, 2008 against OSM and the EPA. The organizations allege that the rule violates the Clean Water Act, that OSM failed to consider an adequate range of alternatives, and that OSM downplayed the anticipated environmental impacts of the rule.

In addition to legal action, there is likely to be a strong political push for the Obama Administration to rescind or otherwise invalidate the rule in early 2009. However, given the country’s heavy dependence on coal for production of electricity, and the fact that changes to the rule would affect both underground and surface mining operations, it may be difficult to effect a wholesale repudiation of it.

OSM’s press release and a copy of the final buffer zone rule as published in the Federal Register are available at the following link: