Bush administration action would legalize valley fills
In 1977, the Army Corps of Engineers wrote rules to define the "fill material" that could be dumped into streams under the agency's Clean Water Act permits.
The Corps said that the permits couldn't be used for "any pollutant discharged into the water primarily to dispose of waste."
In 1989, a federal judge ruled that rock and dirt overburden from coal mines is waste. Ten years later, another federal judge ruled that because it's waste, that rock and dirt couldn't be dumped into streams under a Corps permit.
Now, rather than block coal operators from burying miles and miles of Appalachian streams, the federal government is moving to change the rules.
In effect, the Bush administration's action - expected within a few months - would legalize valley fills that the coal industry has been building illegally for years.
"This proposed rule change is one of the worst things that could happen to the protection of waters in this country," said Joan Mulhern, senior lawyer for Earthjustice, a Washington, D.C.-based environmental group.
"There is nothing more inconsistent with the purpose of the Clean Water Act than permitting waters to be permanently buried under tons of industrial wastes - yet that is exactly what this rule would allow," Mulhern said.
Last week, Earthjustice and three other environmental groups filed a Freedom of Information Act request with federal agencies seeking records about the proposed rule change. They want documents concerning any discussions between the Bush administration and coal industry officials about the proposal.
"The FOIA was motivated by recent reports that the Bush administration is putting the coal companies' rule change on a fast track and the environmental groups' concern that coal industry influence may be motivating the weakening of the rules," Earthjustice said in a news release.
Earthjustice cited $2.9 million in campaign contributions to the Bush administration from the energy industry. That included more than $400,000 from power plant owners and $100,000 from the coal industry itself, according to records Earthjustice obtained from the Center for Responsible Politics.
The environmental groups also cited the appointment by Bush of several former coal and related industry lobbyists to key positions dealing with the valley fill rule proposal.
They included: J. Steven Griles, a former National Mining Association lobbyist who is deputy secretary of the Department of Interior, and Mike Parker, a former CSX Transportation lobbyist who is assistant secretary of the Army in charge of the Corps of Engineers.
Griles did not return a phone call last week. Parker disputed the environmental groups' criticism.
"Of course they're off base," Parker said from his office at the Pentagon. "But I guess that's part of their job, to try to attack people.
"I think it's ridiculous. I have always fought for very strong environmental protections. But I believe you need to be able to conduct business also."
Coal industry officials have said that they can't operate in Appalachia without valley fills, and have urged the government to write the rule to allow them.
The issue is moving to the Bush administration's front burner in large part because of a legal motion filed Feb. 6 in federal court in Charleston.
In that motion, lawyers for the group Kentuckians for the Commonwealth asked Chief U.S. District Judge Charles H. Haden II to block the Corps from issuing any new valley fill permits anywhere in the country.
"KFTC contends that the Corps has no legal authority under the [Clean Water Act] to issue permits to dispose of waste rock from surface coal mining activities in streams," the motion said.
In their new motion, lawyers for the group cited Haden's October 1999 ruling in a similar case.
Haden noted that, a decade earlier, Judge John T. Copenhaver had concluded that valley fills are made of waste, which isn't fill material. The 4th U.S. Circuit Court of Appeals upheld that decision.
Haden said that, because valley fills are waste, they can't be authorized to be dumped under Corps permits.
"While valley fills ... have the incidental effect of replacing an aquatic area with dry land and changing the bottom elevation of streams, their primary purpose is the disposal of rock and dirt, that is, industrial waste, the overburden or excess spoil which must be removed to mine the coal in mountaintop removal mining," Haden wrote.
Last year, the 4th Circuit overturned that decision by Haden. But the 4th Circuit never considered the merits of the valley fill issue. Instead, the court said the case - filed against a state agency - did not belong in federal court. The new case before Haden was filed against the Corps, and will not face the same legal hurdle over court jurisdiction.
In 2000 alone, the Corps issued permits to allow more than 87 miles of streams nationwide to be buried by valley fills, according to government records. Almost all of that, 85 miles, was in the agency's Huntington District, which includes Southern West Virginia and Eastern Kentucky.
After Haden's 1999 ruling, Sen. Robert C. Byrd, D-W.Va., tried unsuccessfully to get legislation passed to change the definition of fill, and legalize valley fills.
Then, in April 2000, the Clinton administration proposed to rewrite the Corps' rules to legalize valley fills.
In a joint Federal Register notice, the Corps and the U.S. Environmental Protection Agency said, "With regard to proposed discharges of coal mining overburden, we believe that the placement of such material into waters of the U.S has the effect of fill, and therefore, should be regulated" under Corps permits.
Environmental groups generated about 17,000 public comments against the rule change. The Clinton administration never finalized it.
In October 2001, the Bush administration said that it planned to finalize the rule change by December 2001. It never did.
Last month, the Corps said that the agencies were still analyzing public comments on the change.
Last week, Corps lawyer Earl Stockdale said that a final rule was nearly complete. That rule will be submitted to the White House Office of Management and Budget, and then published in the Federal Register, perhaps within three months, Stockdale said.
"We have tried very hard to take into account all of the comments, and come up with a rule that addresses some of the very valid comments that we received," Stockdale said.
Parker said that the Corps and EPA are being careful with the final changes, because of the motion pending before Haden.
"You've got the courts involved in this," Parker said. "We've got to make sure that the thing is such that it meets the guidelines of the court order.
"The court is basically looking at the agencies to come up with a definition that is uniform, so that we all know what we're talking about," Parker said.
"We want to protect the environment, but also be sure that we can continue with the production of coal," he said. "A lot of people don't realize that a majority of the electricity we have on the East Coast comes from the burning of coal. It's also vital to the economy of West Virginia."
To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.