Judge blocks new valley fills

Coal operators can no longer bury Appalachian streams to dispose of mountaintop removal waste rock and dirt, a federal judge ruled Wednesday. In another landmark mining decision, Chief U.S. District Judge Charles H. Haden II blocked the Army Corps of Engineers from authorizing most mountaintop removal valley fills. Haden said that the corps may only allow such fills if coal companies propose them as part of a post-mining land development plan. In his 47-page opinion, Haden also said a move by federal regulators to rewrite environmental rules to legalize valley fills violates the Clean Water Act.
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"The agencies' attempt to legalize their longstanding illegal regulatory practice must fail," the judge wrote. "The practice is contrary to law, not because the agencies said so, although their longstanding regulations correctly forbade it," he wrote. "The regulators' practice is illegal because it is contrary to the spirit and the letter of the Clean Water Act." Instead of giving into the rule change, Haden examined Section 404 of the Clean Water Act, under which the Environmental Protection Agency and the corps wrote the changes. The judge concluded that the law itself prohibited the corps from approving coal mine waste dumping through its Section 404 "dredge-and-fill" permits. Haden concluded that Section 404 does not allow the corps to issue permits for the dumping into streams of "material discharged solely to dispose of waste."
"To read the Act otherwise presumes Congress intended the Clean Water Act to protect the nation's waterways and the integrity of its waters with one major exception: the Army Corps was to be given authority to allow the waters of the United States to be filled with pollutants and thus destroyed, even if the sole purpose were disposal of waste. "This obviously absurd exception would turn the ‘Clean Water' Act on its head and use it to authorize polluting and destroying the nation's waters for no reason but cheap waste disposal." The Haden ruling, expected for weeks, is a substantial blow to the coal industry, and a big win for citizen groups who have waged a fight to curb mountaintop removal. "The Court does not rule in a vacuum," Haden wrote. "It is aware of the immense political and economic pressures on the agencies to continue to approve mountaintop removal coal mining valley fills for waste disposal, and to give assurances that future legal challenges to the practice will fail. "Some may believe that reasonably priced energy from coal requires cheap disposal of the vast amounts of waste material created when mountaintops are removed to get at the natural resource," the judge wrote. "Congress, did not, however, authorize cheap waste disposal when it passed the Clean Water Act." In the new ruling, Haden ordered broader limits on mountaintop removal - and other coal-mining waste fills, such as slurry impoundments that bury streams - than he did in a since-overturned 1999 ruling. In the earlier case, Haden said that a stream buffer-zone rule prohibits valley fills in only certain types of streams. Wednesday's ruling came in a case filed last August by the group Kentuckians for the Commonwealth over a Martin County, Ky., mine that proposed to bury more than 6 miles of streams. "It is a major victory for Kentuckians for the Commonwealth and for all of the citizens of the coalfields," said David Rouse, a KFTC member from Laden Trail in Harlan County, Ky. Coal industry officials quickly condemned the decision. "The ruling is devastating," said Bill Raney, president of the West Virginia Coal Association. He called the ruling "judge-made law." Bill Caylor, president of the Kentucky Coal Association, said that the case didn't belong in Haden's courtroom in the first place.
Soon after it was filed, industry lawyers and the Department of Justice tried to move the case to federal court in Eastern Kentucky, where the mine targeted was located. KFTC said it filed the case with Haden because his jurisdiction includes Huntington, where the corps' district office is located. "The plaintiffs forum-shopped for a judge to do what they wanted, so the ruling wasn't a surprise," Caylor said. In West Virginia, the Wise administration reacted much more calmly than former Gov. Cecil Underwood's administration did after Haden's 1999 ruling. "It affects the way the corps does business, and would appear to put things on hold," said Jack Canfield, press spokesman for Gov. Bob Wise. "One can theorize about effects that would have on large and small operators, but regulators and lawyers are just now pulling down copies of the 47-page opinion. There is a lot of detail in there that has to be scrutinized." State Environmental Protection Secretary Michael Callaghan said that his agency is just starting to study the ruling. "DEP's role is regulatory in nature," Callaghan said. "We're there to enforce the rules and regulations as they are written. "This opinion changes the way the corps has interpreted the rules," Callaghan said. "We're going to have to step back and take a look at how that affects our process." Homer Perkins, chief spokesman for the corps, said, "We're reviewing it now. We will, of course, abide by the law." Perkins said it was too soon to say if the corps would appeal. Caylor said his group, which intervened in the case, would definitely appeal. In mountaintop removal, coal operators blast apart entire hilltops to uncover valuable, low-sulfur coal reserves. Leftover rock and dirt is dumped into nearby valleys, burying streams. Historically, the corps has authorized these fills through its Clean Water Act Section 404 permits. But since 1977, the corps' own regulations have defined "fill material" allowed under those permits to exclude "any pollutant discharged into the water primarily to dispose of waste." Fill material, under the corps' rules, includes "any material used for the primary purpose of replacing an aquatic area with dry land of or changing the bottom elevation of a waterbody." In his 1999 decision, Haden ruled that waste rock and dirt from valley fills couldn't be authorized under these corps definitions. That ruling was later overturned on a jurisdictional issue. Haden's ruling Wednesday does not pose the same jurisdictional question. Sen. Robert C. Byrd, D-W.Va., tried unsuccessfully to get Congress to pass legislation to overturn Haden's 1999 ruling. The Clinton administration proposed a rule change to specifically include mining waste as "fill material" allowed under corps permits. On Friday, the Bush administration finalized that rule. But in his new opinion, Haden essentially argued that the corps' definition of "fill material" doesn't really matter. Under the law, regulatory agencies have only the authority Congress gives them, the judge said. So if Congress didn't authorize the corps to permit fills, the corps can't write a regulation that allows it to do so. "Authorization of 404 permits for waste disposal generally, and specifically for coal mining overburden at mountaintop removal mines ... exceed[s] the statutorily granted authority of EPA or the Corps," the judge wrote. "Only Congress can rewrite the Clean Water Act to allow otherwise." Haden wrote that it also doesn't matter that EPA and the corps have allowed valley fills for years under Section 404. "The fact the Corps approved 404 permits solely for massive waste disposal in the past two decades, with EPA's approval, is an admission against interest, not a mitigating factor, much less an argument the Court should approve the practice," he wrote. "Tacitly recognizing the futility of this argument, the agencies attempted to fix the problem by changing the law, without benefit of Congressional amendment." Caylor, the Kentucky coal lobbyist, said that Haden's ruling is a deathblow to the industry. "If he is outlawing fills, he is stopping coal mining," Caylor said. However, Haden made it clear in his ruling that there is a way for the coal industry to obtain valley fill permits. Haden noted that the 1977 Surface Mining Control and Reclamation Act allows coal operators to receive waivers from the general requirement that mined land be reclaimed to its "approximate original contour," or AOC. "AOC waivers may be allowed for ‘industrial, commercial, agricultural, residential, or public facility[ies] (including recreational facilities)," Haden wrote. "Only where the site will be improved for ‘an equal or better economic or public use' does the statute contemplate overburden or excess spoil placement elsewhere," the judge wrote. "In SMCRA, when Congress dealt specifically with surface coal mining overburden, it reinforced its plan that fills were appropriate where, and only where, they were justified by some constructive end use and purpose served by the fill itself." To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.
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