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Bush administration plan broadens valley fill rule changes

Bush administration officials have broadened the changes to an important stream-filling rule in response to complaints from the mining industry.

Among other things, the Bush changes would allow the dumping of junk cars and refrigerators under U.S. Army Corps of Engineers permits.

"Materials generally considered to be garbage or trash, such as recycled porcelain bathroom fixtures like toilets and sinks, or even junk cars, can be cleaned and placed in waters of the U.S. to create environmentally beneficial artificial reefs," says a new draft of the rule changes being promoted by the corps and the US. Environmental Protection Agency.

EPA and the corps are finishing up their rewrite of rules that define "fill material" that can be dumped into streams.

Section 404 of the federal Clean Water Act allows the corps to issue permits to fill streams and wetlands. Under the law, the corps can issue such permits for material that is dredged from stream bottoms, or with "fill material."

In mountaintop removal, mining operators blast off entire hilltops to uncover valuable, low-sulfur coal seams. Leftover rock and dirt is dumped into nearby valleys, burying streams.

Historically, the corps has granted coal operators Section 404 permits for valley fills. In 2000 alone, the corps approved permits that would bury more than 80 miles of streams in Southern West Virginia and Eastern Kentucky, agency records show.

But a series of court rulings has held that rock and dirt from strip mines is really "waste," not "fill material."

Under corps' rules, 404 permits are allowed only for material that is used "for the primary purpose of replacing an aquatic area with dry land or changing the bottom elevation of a water body." Those permits are not allowed for "any pollutant discharged into the water primarily to dispose of waste."

After one adverse court ruling in 1999, the Clinton administration proposed to rewrite the definition of fill material to specifically legalize valley fills. EPA and the corps received more than 17,000 comments opposing the rule, and the Clinton White House never finalized the change.

The National Mining Association generally supported the rule changes, but proposed some amendments. The group said that valley fills are a necessary part of mining in Appalachia.

"Mining activities must occur where the mineral resources are found," association senior vice president Harold Quinn said in a letter commenting on the Clinton proposal.

"In addition to this geological reality, topographical, technological, logistical and economic factors pose significant constraints upon the availability of practical alternatives to the discharge of fill material from mining and related activities into jurisdictional waters."

In its proposal, the Clinton administration suggested eliminating the "waste exclusion," which prohibited the corps from permitting waste to be dumped into streams.

But the initial proposal suggested including language to outlaw corps permits for "unsuitable fill material, such as trash, debris and car bodies."

On Thursday, the Natural Resources Defense Council distributed copies of a Feb. 28, 2002, draft of the Bush administration's fill rule changes.

In that draft, marked "Confidential," the administration said it would not include language to outlaw the dumping of "unsuitable fill material."

The draft said that mining industry officials asked that this language not be included in the final rule.

In its comment letter on the Clinton proposal, the mining association said that it feared that the "unsuitable fill material" language would end up blocking valley fills.

"Indeed, the very ‘overburden and coal refuse' that the agencies acknowledge in this rule have received ‘authorization under CWA Section 404' might potentially face the argument by some [albeit incorrectly] that it meets the proposed definition of unsuitable fill material," the association said.

"The same unintended consequences could follow for other material associated with mineral processing activities, haul roads, placement of overburden or waste rock, and other activities involving in mining and land reclamation that currently receive permits pursuant to [Section] 404."

So, the Bush administration rewrote its draft to say that fill material - allowed under corps permits - will not include "trash, garbage, or similar materials unless such materials are to be used to create any structure or infrastructure in waters of the United States, such as an artificial reef or berm."

The draft continues, "While the agencies have generally excluded materials characterized as trash or garbage from the definition of ‘fill material,' [if] the placement of such materials in the waters of the U.S. is associated with an appropriate project [it] would be consistent with their regulation as ‘fill material' under CWA Section 404."

Also, the Clinton administration proposed to exclude from corps' permitting any material that is already covered by a separate Clean Water Act program for point-source pollution discharges. At the mining industry's request, the Bush administration removed that language.

Contacted on Thursday, officials from EPA declined to comment on the details of the current draft of the rule.

Those officials said that they had not completed a final draft, or submitted it for Office of Management and Budget review.

"We're still working on it," said Robin Woods, and EPA press spokeswoman in Washington, D.C.

Daniel Rosenberg, an NRDC staff lawyer, said that the Bush administration is giving in to industry demands for further changes in the rule.

"The National Mining Association said, ‘We don't want any limits on what the corps says we can put in the water,'" Rosenberg said. "The National Mining Association said, ‘Take the lid off.' They asked for it, and they got it."

Today, a new lawsuit is pending before Chief U.S. District Judge Charles H. Haden II that could block all new valley fills.

In that case, the group Kentuckians for the Commonwealth asked Haden to again declare that mountaintop removal rock and dirt are "waste," that the corps cannot authorize to be dumped into streams.

Lawyers for the environmental group, the Department of Justice and the coal industry have filed briefs in the case, and the matter is ripe for a decision by Haden.

At the same time, Bush administration officials are rushing to finalize the rule change. In February, government lawyers told Haden in a legal brief that they would finalize the rule sometime this month.

On Monday, which was Earth Day, reporters asked EPA Administrator Christie Todd Whitman about the status of the rule change.

"There's a regulation that would codify what's going on, and wouldn't allow any new activity," Whitman said, according to a White House transcript of the discussion.

"That's nothing new," she said. "It's not new. It's not a giveaway to the mining industry. It does not allow activity that isn't already underway."

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


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