MTR Part V: Controversy about the proposed change

Controversy Ensues
As is to be expected with any hot button issue, opinions vary and opposition is fierce. Here are just a few examples:
Opponents’ opinions
“OSM proposes to change the rule to conform with its deviant behavior rather than requiring the coal industry to comply with the law.” (Lyric, 2007)
“It would exempt from the stream buffer zone rule those very mountaintop removal activities that are most destructive to streams, including “permanent excess spoil fills, and coal waste disposal facilities” — in other words, giant valley fills and sludge-filled lagoons.” (Lyric, 2007)
"What they are doing is, they are sacrificing Kentucky to the coal-mining powers," said Patty Wallace of Louisa, who is active with the group Kentuckians For the Commonwealth.” (Bruggers & Dunlop, 2007)
Tom FitzGerald, director of the Kentucky Resources Council, said yesterday that OSM has mischaracterized both the state of existing law and the impact of its proposed rule. "It's irresponsible from an ecological standpoint," FitzGerald said of the rule change sought by OSM. "It caters to worst mine plans rather than best practices, and it will further fuel outrage of people in the coalfields, in the scientific community and those who rely on coal-fired power and are tired of seeing coal mined in such an irresponsible manner." (Bruggers & Dunlop, 2007)
Supporters say
Bill Caylor, president of the Kentucky Coal Association, an industry group, said the proposed rule “merely continues the status quo. I don't see things changing at all. This rule simply recognizes existing practice." (Bruggers & Dunlop, 2007)
Ben Owens, an OSM spokesman, contended that the new rule "would not legalize anything that was not legal before." (Bruggers & Dunlop, 2007)
Courts rule
“The original rule was upheld by the 4th U.S. Circuit Court of Appeals, which overturned a lower court decision holding that substantial portions of streams could not be buried under excess spoil or other mining-related structures.” (Bruggers & Dunlop, 2007)
“In October 1999, the Federal District Court ruled that the SBZ rule prohibits valley fills in streams and held that the Stream Buffer Zone Rule is more stringent than the Clean Water Act 404(b)(1) guidelines on placing fill into streams. There is concern such an interpretation of the SBZ rule makes it inconsistent with SMCRA.” (Mining, 2007)
“In April 2001, the U.S. Court of Appeals for the Fourth Circuit reversed the Oct 1999 decision on constitutional grounds (11th Amendment).” (Mining, 2007)
“In May 2002, in Kentuckians for the Commonwealth, Inc. v Rivenburgh, the district court held that SMCRA did not authorize the disposal of overburden in streams.” (Mining, 2007)
“In February 2003, the 4th Circuit Court of Appeals in KFTC v. Rivenburgh, stated that SMCRA at 515(b)(22)(D) envisions that overburden would be placed in waters of the U.S. and reversed the May 2002 District Court decision.” (Mining, 2007)
Resulting confusion
It becomes more and more obvious that not only is the rule unclear, but SMCRA contains a great deal of ambiguity regarding the practices of mountaintop removal. I find it difficult to imagine that OSM truly believes that valley fills, which in effect destroy headwaters streams, constitute a minimization of adverse impacts. However, it seems that the problem lay not in the SBZ rule but in the interpretation of SMCRA and other relevant laws.