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Corps says it doesn't regulate valley fills

One of several federal agencies that were sued last week for their role in permitting mountaintop removal coal mines agrees with a key argument of the lawsuit.

Army Corps of Engineers officials don't believe mountaintop removal waste piles, called valley fills, can be permitted under the "dredge and fill" provisions of the federal Clean Water Act.

"They're not under our jurisdiction as far as we're concerned," said Rodney Woods, regional program manager for the corps' Great Lakes and Ohio River Division in Cincinnati.

If that's the case, it means that all valley fills must meet state and federal water quality standards - something many experts believe is impossible. It could also mean that none of the valley fills approved in West Virginia had proper permits, according to lawyers involved in the suit.

"They have no permits," said Joe Lovett, a lawyer with the nonprofit firm Mountain State Justice, which represents several of the citizens who filed a federal court lawsuit to curb mountaintop removal. "It means all valley fills are illegal."

Mountaintop removal is different from strip mining. Years ago, surface mines stripped layers of coal from the sides of mountains. Mountaintop removal uses huge earth-moving machines to cut off entire hilltops and reach valuable low-sulfur coal seams underneath. The earth and rock removed from these mountaintops - mine operators call it spoil - are then dumped into nearby streams in waste piles called valley fills.

Mountaintop removal has become the dominant form of surface mining in West Virginia.

During the 1980s, the state issued 44 permits for mountaintop removal. Those permits covered a total of 9,800 acres. In the last three years alone, the state Division of Environmental Protection has permitted at least 38 new mountaintop removal mines that cover a total of nearly 27,000 acres, according to state records.

Valley fills are a major part of mountaintop removal operations. Mining companies say they need the fills to have somewhere to put mountains moved to reach coal. Putting the mountains back is a costly, impractical - and often impossible - proposition, according to most industry officials.

Environmental groups, however, believe that valley fills violate the federal Clean Water Act, a landmark law passed more than 25 years ago to preserve and protect water quality in the nation's rivers and streams.

In a 48-page lawsuit filed Thursday in U.S. District Court in Charleston, the West Virginia Highlands Conservancy and 10 residents of Boone, Logan and Mingo counties ask for a court order that state and federal regulators have improperly permitted hundreds of valley fills.

The suit states that a review of 48 large mountaintop removal permits issued by DEP since 1991 shows those mines included more than 200 valley fills that would fill streams with more than 2 billion cubic yards, or about 3.5 billion tons, of rock and earth that used to be mountains.

Under the Clean Water Act, pollutants - whether rock and dirt or toxic chemicals - can be discharged into streams only if the discharger receives a water pollution permit issued by the U.S. Environmental Protection Agency or a state regulatory agency. The law, however, also includes a provision which allows the Corps of Engineers to issue permits to fill in streams or wetlands for roads, shopping centers and other "dredge and fill" activities.

For years, valley fills have been permitted by the corps as one of these dredge and fill activities. These permits are called 404 permits for the section of the Clean Water Act that outlines their authorization.

But in a 1989 decision, U.S. District Judge John T. Copenhaver defined strip mine spoil as "waste." Copenhaver's ruling was challenged by the coal industry, but upheld by the 4th U.S. Circuit Court of Appeals in 1990.

Under federal law and regulations, 404 permits cannot be used to allow activities that are strictly for the disposal of waste materials. They can only be used to allow the disposal of fill to create dry land or to elevate a body of water.

In their lawsuit, environmentalists alleged that the corps has improperly issued dozens of 404 permits for mountaintop removal mine valley fills. The suit also alleges the corps has never performed a required study of the environmental impacts of those fills before issuing permits for them.

The suit also states, however, that "The corps may be in the process of revising its policy.

"Officials in both the corps' Cincinnati regional office and its Huntington district office ... have, within the past several months, made statements that Section 404 of the Clean Water Act does not and cannot authorize disposal of mining waste in the waters of the United States," the suit states.

"These statements have not been disclosed to the public in any written document," the suit says. "Huntington and Cincinnati corps permitting officials have made these statements because they have come to believe that surface mining spoil is 'waste' rather than 'fill' material."

The suit names three corps officials who have advanced this position. They include Woods of the Cincinnati office; Michael Gheen, chief of the regulatory branch in Huntington; and Richard Buckley, chief of the permitting section in Huntington.

The suit cites a July 2 letter to Lovett, the environmental lawyer, in which Gheen declined to state the corps' position in writing.

Gheen noted that, "The Corps of Engineers, on a national basis, is presently reviewing the current regulatory processes associated with valley fills among the appropriate federal regulatory agencies."

In an interview before the lawsuit was filed, Gheen said last week that the corps reads Copenhaver's decision to say that valley fills cannot be permitted under Section 404.

"The valley fill is waste material," Gheen said. "That pretty much takes us out of the picture. We've not disagreed with that."

Buckley said the corps stopped issuing 404 permits for valley fills in May, after the agency was made aware of Copenhaver's 10-year-old court decision. Buckley said that since then, the corps may have issued a couple of letters concerning 404 permits for valley fills, but that those letters "aren't really valid for anything."

"We're not supposed to authorize valley fills," Buckley said.

According to the lawsuit, if the corps cannot authorize valley fills under 404 permits, the fills must receive permits under Section 402 of the Clean Water Act. In that case, the fills must comply with all federal and state water quality standards. Those standards limit the amount of suspended solids and other pollutants that can be dumped in streams. The standards also include an anti-degradation standard which prohibits degradation of the uses of streams.

"By burying waters of the state beneath millions of tons of rock and dirt, valley fills from surface mines necessarily kill aquatic life in the buried part of the stream and make water contact recreation impossible," the lawsuit states. "These fills therefore violate West Virginia's anti-degradation standard.

"Valley fills that cover streams, creeks and branches use such waters for waste assimilation, cause deposits of materials on the bottom of such waters, and adversely and significantly alter the integrity of such waters, including the physical, hydrologic and biologic components of their aquatic ecosystems."

Jim Hecker, a lawyer for the Washington group Trial Lawyers for Public Justice, is helping to represent the Highland Conservancy and the coalfield residents.

"These mountaintop removal mines are destroying streams at an astonishing rate," Hecker said last week. "If mountaintop removal mining is going to take place in West Virginia, it needs to comply with federal laws, which prevent this destruction from taking place."

To contact staff writer Ken Ward Jr., call 348-1702.


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