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EPA to trim fines for buried streams

The Bush administration plans to offer greatly reduced penalties for coal operators who buried streams without proper Clean Water Act permits.

U.S. Environmental Protection Agency investigators, in a preliminary probe, have found “high levels of noncompliance” with fill permit requirements.

In response, EPA and the U.S. Army Corps of Engineers will offer lesser fines to companies that voluntarily report these violations.

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“Eligible operators will be offered a one-time opportunity to voluntarily participate in this program, report on their violations, perform any necessary mitigation, and pay reduced penalties that are well below those EPA would normally seek,” says a one-page Aug. 13 paper describing the program.

Robert Klepp, a lawyer with the EPA Office of Regulatory Enforcement in Washington, D.C., briefed coal industry officials on the plan during a meeting Tuesday at a Charleston hotel.

Klepp spoke as part of a series of workshops that federal officials are holding across the coalfields to instruct mining companies and consultants about mountaintop removal permit requirements. The workshops are open to the public. But they are not widely publicized, and Tuesday’s was attended almost exclusively by industry representatives.

Under the program, Klepp said, coal companies would not have to shut down current operations to resolve their fill permit violations.

“One goal of all of this is not to disturb ongoing operations,” Klepp said. “We are not going to be interested in running out seeking injunctions or cease-and-desist orders or anything like that.”

Klepp said officials are not sure yet how many violations might be occurring, or how many companies would be eligible for the reduced fines.

Under the program, the agencies would publish a notice this fall to outline the precise program rules. Operators would then have 20 days to notify EPA of their intent to participate. Then, companies would have 30 days to submit a report to disclose their violations.

EPA will propose and finalize penalties by spring 2004.

In the paper describing the program, EPA said, “Most operators will be eligible to participate, with the exception of those with violations that cause serious harm or imminent and substantial endangerment to human health or the environment.”

EPA said that self-reporting “will greatly reduce penalties” for companies that do so.

Under normal enforcement rules, permit violations such as these could carry administrative or civil penalties of up to $25,000 per day of violation. In more serious cases, criminal fines of up to $50,000 per day of violation could be levied.

Normally, EPA sets fines at a level meant to recover whatever financial benefit a company has received by not complying with permit requirements.

In the mining fill cases, Klepp told coal operators at Tuesday’s meeting, “We’re going to give some pretty lenient — not lenient, I’ll get myself in trouble up here — some pretty fair assessments of what that benefit is.”

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

Earlier this year, federal agencies issued a draft report that found that more than 700 miles of Appalachian steams have already been buried by valley fills.

Historically, the corps has authorized these fills through “dredge-and-fill” permits under Section 404 of the federal Clean Water Act.

In separate rulings in October 1999 and May 2002, U.S. District Judge Charles H. Haden II found that mining fills were composed of “waste” that he concluded was not eligible for Section 404 permits.

Haden, in his May 2002 ruling, blocked the Huntington district office of the corps from issuing new fill permits unless the fills were proposed as part of a postmining development plan.

In January 2003, the 4th U.S. Circuit Court of Appeals overturned Haden’s decision and cleared the way for the corps to approve more fills.

But in the meantime, EPA officials have found, some coal operators continued to bury streams under expired fill permits. Other companies did not seek renewal of their fill permits when they expired in February 2003, EPA has found.

Klepp said the court rulings and appeals caused “a lot of regulatory confusion” at the corps’ Huntington District, which covers Southern West Virginia and Eastern Kentucky.

In May, EPA and the corps sought to resolve some of violations with a public notice to the mining industry.

At the time, the agencies said they were “becoming increasingly aware of circumstances in Kentucky, West Virginia and Ohio involving coal mining operations that may be discharging dredged or fill material in waters of the United States without CWA authorization or a permit application to the Corps of Engineers.”

“If this information is correct, we need to work quickly to address this situation and ensure compliance with the requirements of CWA Section 404 while avoiding disruptions to legitimate mining activities,” EPA and the corps said in their notice.

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


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