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Clean Water Act allows burying streams, feds say

A federal judge was wrong when he concluded that the Clean Water Act generally doesn’t allow coal operators to bury streams beneath millions of tons of mining waste, federal government lawyers argued Wednesday.

Lawyers from the U.S. Department of Justice late Wednesday filed their brief in an appeal of the May 8 mining ruling by Chief U.S. District Judge Charles H. Haden II.

They argued that Congress did not define “fill material” that may be dumped into streams, leaving that task up to regulatory agencies’ discretion.

“Although it could easily have done so, Congress did not define ‘fill material,’ leaving that to the agencies,” the federal government brief says. “In turn, the court’s ... discussion of a wide range of authorities provides no showing of clear intent for its construction.

In his May 8 ruling, Haden concluded that the federal Clean Water Act prohibited the U.S. Army Corps of Engineers 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 issues permits for the dumping into streams of “material discharged solely to dispose of waste.”

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Under Haden’s ruling, the corps is prohibited from approving new mountaintop removal valley fills that are proposed simply to dispose of waste.

The corps can authorize valley fills only if they are proposed with a constructive, primary purpose. Haden likened such purposes to the post-mining development plans required for mountaintop removal permits under the federal Surface Mining Control and Reclamation Act.

The Bush administration and the coal industry appealed Haden’s ruling to the 4th U.S. Circuit Court of Appeals in Richmond, Va.

Legal briefs by the administration and the industry were scheduled to be filed Monday.

The Department of Justice, representing the corps, filed its brief late Wednesday afternoon, according to an agency spokeswoman.

Justice Department lawyers argued in their brief that Haden was wrong to argue that the Clean Water Act’s legislative history supported his ban on fills for waste disposal.

“The CWA legislative history does not demonstrate clear intent,” the brief says. “The CWA legislative history, like the statute itself, states nowhere that ‘fill material’ refers solely to material deposited for some beneficial purpose.”

Also, the federal government argues that Haden went too far when he blocked the corps from issuing new valley fill permits anywhere in the agency’s Huntington District.

Government lawyers said that the group that sought Haden’s ruling, Kentuckians for the Commonwealth, did not have standing to seek such a broad injunction.

An October 1999 ruling by Haden to limit valley fills was overturned by the 4th Circuit on a legal technicality of whether the case belonged in federal or state court.

The May 8 ruling was filed against a federal agency, not a state body, and does not face the same jurisdictional hurdle.

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


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