The Army Corps of Engineers and the U.S. Environmental Protection Agency are planning to revise the definition of mining fill, which could have a major impact on the dumping of rock and dirt from mining operations into streams and other waterways.
Critics say the Clean Water Act would be seriously weakened if the revision goes through, which could come as early as March.
The regulatory rule change is designed to eliminate potential legal challenges to the practice of issuing permits that allow valleys to be filled in with debris from mining operations. The practice, the the Army Corp has follwed for years, has resulted in at least a thousand miles of streams being lost.
A legal decision by the U.S. District Court for the Southern District of West Virginia in 1999, in Bragg vs. Robertson -- a case still working its way through the courts -- said the mining fill material currently going into the valleys was not actually fill but was "waste."
If the courts subsequently uphold that opinion, it would mean the Army Corps had acted illegally for years in issuing the valley fill permits and it would lose jurisdiction to grant the permits to the U.S. Environmental Protection Agency. By revising the definition of fill, the Corps and the EPA hope to avoid such a transfer of responsibility.
The rule changes would be made over formal objections by the EPA to any weakening of the regulation that would be most affected by the definition change -- nationwide permit 21. Nationwide permit 21 is the procedure under which streamlined permits are issued by the Corps to coal mining companies for valley fills.
The U.S. Fish and Wildlife Service recently recommended nationwide permit 21 be abandoned but its report, obtained by United Press International, never was officially released and many believe it was ordered withheld.
Under the agreement in Bragg vs. Robertson, which involved the EPA, Army Corps, Office of Surface Mining, West Virginia Department of Environmental Protection and plaintiffs Patricia Bragg and others, the agencies agreed to do an extensive environmental impact study looking at the impact of mountain top removal and the accompanying valley fill dumping.
On Jan. 15, the Corps said in the Federal Register, "The Corps will re-evaluate nationwide permit 21 when the mountain top mining environmental impact study is completed."
Kirk Stark, program management team leader for the Army Corps, told UPI not even a draft of the promised environmental impact study has been completed, however the rule on the new definition of fill essentially has been formulated.
"We're done negotiating and we're just putting the environmental assessment and the preamble and rule language together," Stark said. He said EPA and the Army Corps are working on a new common definition of fill material that will "clearly articulate that the Corps regulates the discharge of overburden into streams as a fill material under (section) 404 of the Clean Water Act."
Overburden is the rock and dirt that lays over and between seams of coal. In West Virginia, it is not uncommon for 15 times as much overburden to be removed as the coal that is recovered. This has resulted in the huge valley fills.
"The Definition of Fill rule will be a final rule," Stark said. "The purpose is to make clear which agency regulates the mining overburden. When we got into (the) Bragg versus Robertson case, there was confusion as whether 402 (waste) or 404 (fill) applied and this simply makes it clear that it's a filling operation." The EPA regulates waste. The Corps regulates fill.
An official from the EPA, speaking on condition of anonymity, said the rule would be changed within "weeks or months." The EPA official noted, "We would certainly not dispute that the potential impact of the activity can be significant and in fact EPA went on record making some very strong environmental recommendations on the nature of nationwide permit 21."
The EPA said last Oct. 9, in a letter from G. Tracy Mehan III, assistant administrator of the office of water, to the principal Army Corps staff involved, Dominic Izzo, "It is premature to adopt substantive revisions that would weaken the environmental criteria of the nationwide permit prior to the completion of a comprehensive programmatic environmental impact statement."
While the letter did not anticipate the change in the definition of fill material, it addressed issues that many would consider of great importance, such as the length of streams that could be filled.
A 16-page statement prepared by the Fish and Wildlife Service, "Fish and Wildlife Service Comment on the Corps of Engineers Nationwide Permit Program," recommended scrapping the streamlined fill permitting process for now.
"We recommend that use of this permit (nationwide permit 21) be suspended and further recommend that the Corps commit to completing peer-reviewed scientific studies analyzing the effect of this permit on the environment," FWS said.
Fish and Wildlife and the Office of Surface Mining are both part of the U.S. Department of the Interior, where the deputy secretary of the interior, J. Steven Griles, is a former lobbyist for the National Mining Association.
More than a few people surmise the strong support the mining industry is receiving from within Interior resulted in the FWS comments being squelched. Interior says it could not coordinate its efforts in time to allow the report to be used as official comment on Corps' rule changes to fill regulations.
One of the attorney's in the far-reaching Bragg vs. Robertson case, Joe Lovett of the Appalachian Center for the Economy and the Environment, based in Lewisburg, W.Va., told UPI: "We caught the Corps doing something illegal, which is destroying the streams and forests of Appalachia. Federal court held what they were doing was illegal. They basically admitted what they were doing was illegal in depositions. And instead of enforcing the law they're getting ready to change it."
"This rule is much more dangerous than just coal overburden. It's also going to legitimize coal slurry refuse, which is also illegal," Lovett said. "They are blowing a hole, a very big hole, in the Clean Water Act. ... They will wave the magic wand and they will make a practice legal that was illegal for 20 years."
Patricia Bragg, one of 88 plaintiffs in the landmark 1999 case, spoke to UPI from her home in the Pie area of Upper Pigeon Creek in West Virginia, a community that has been heavily impacted by mountain top removal and valley fills.
"I think it will have a detrimental impact," Bragg said of the proposed change in the definition of fill.
Bragg said the practice would lead to increased coal profits at the expense of a way of life for people who live near the valley fills.
"We not only have the problems of the creeks and the rivers and the fish there but we also have the people who are going to be affected," Bragg said.
A lot of water wells in the area have been contaminated and Bragg is concerned change in the definition of fill will increase the problem.
Joan Mulhern, senior legislative counsel for Washington-based Earthjustice said, "By allowing waste to be called fill material, they are saying that the Corps can permit the destruction of waters either through mountain top removal of mining wastes or...that any kind of waste material could be used to fill waters -- waste from hard rock mining, demolition debris."
"If they do this they will be giving the Corps of Engineers carte blanche to fill the nation's waters with waste," Mulhern added.
