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Valley fill rule rewrite due by April

The Bush administration plans to finish rewriting federal regulations governing mountaintop removal valley fills by April, government lawyers told a federal judge Monday.

In a legal brief, the U.S. Department of Justice said the rule change would make moot a new lawsuit that aims to block new valley fills.

"The proposed definitions make clear that discharges of overburden into valley fills is regulated by the [Army Corps of Engineers]," federal government lawyers said in their brief.

In U.S. District Court here, Chief Judge Charles H. Haden II is presiding over a case that challenges the legality of valley fill permits regularly issued by the Corps.

Historically, the Corps has authorized coal mining fills under Section 404 of the Clean Water Act, which governs "dredge-and-fill" permits handled by the Corp.

In 1977, the Corps wrote its rules to define the "fill material" that could be dumped into streams and wetlands under those 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 mines is waste. Ten years later, another judge - Haden - ruled that, because it's waste, that rock and dirt couldn't be dumped into streams under a Corps permit.

Last year, Haden's 1999 ruling on that matter was overturned on a jurisdictional technicality. A new lawsuit making similar arguments was filed, this time without the same technical problems.

And now, rather than risk a ruling that would block coal operators from burying miles of Appalachian streams, the federal government is moving to change the rules.

In effect, the Bush administration's action would legalize valley fills that the coal industry has been building illegally for years.

In April 2000, the rule change was originally proposed by the Clinton administration. It was never finalized, after agencies received thousands of public comments against the move.

Two weeks ago, Corps officials said that they and the U.S. Environmental Protection Agency planned to move forward.

Earl Stockdale, a lawyer for the Corps, said at the time that the rule change would be finalized in about three months.

In their brief filed Monday, agency lawyers moved up that timeline by about a month.

"With the appropriate dedication of resources, EPA and the Corps expect to publish a final rule in April 2002," wrote Thomas L. Sansonetti, an assistant attorney general in the Justice Department's Environment and Natural Resources Division.

Justice Department lawyers filed their brief in a case brought by the group Kentuckians for the Commonwealth.

The group wants Haden to declare that it is illegal for the Corps to authorize valley fills through Section 404 permits. On Feb. 6, lawyers for the group asked Haden for a permanent injunction to block the Corps from approving any new fills.

Last week, lawyers for Pocahontas Development Co. tried to file a brief that argued that the rule change would make the lawsuit moot.

But Haden refused to allow the brief - and several other Pocahontas Development documents - to be filed in U.S. District Court in Charleston.

In a Friday order, Haden said that he allowed Pocahontas Development and other industry groups to intervene on the condition that they file consolidated briefs.

Last week, Steptoe and Johnson lawyer Ancil Ramey tried to file separate briefs on behalf of Pocahontas Development.

"Counsel does not represent these as a filing coordinated with fellow intervenors, nor was the court's leave sought to file separately," Haden wrote.

Haden instructed the court clerk to return the filings to Ramey, and ordered Ramey to comply with his filing instructions in the future.

To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.


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