Corps' stance on valley fills at issue
For years, the U.S. Army Corps of Engineers handed out permits that allowed coal companies to put millions of tons of strip-mine waste into valleys and streams.
Earlier this year, the corps suddenly stopped approving those permits.
In July, the West Virginia Highlands Conservancy sued the corps and the state Division of Environmental Protection to try to curb mountaintop removal coal mining.
Among other things, the conservancy alleges the corps cannot authorize valley-fill, strip-mine waste piles under the Clean Water Act's "dredge and fill" permit provisions.
The corps agreed with the argument. When corps officials talked with conservancy lawyers in March, before the suit was filed, the agency stopped issuing valley- fill permits.
This week, the corps' position will take center stage in the ongoing debate over mountaintop removal mining in West Virginia.
Joe Lovett, lead lawyer for the conservancy, filed papers on Monday in federal court arguing that the corps' position proves his clients should be given an injunction against any new mountaintop removal permits.
Lovett filed copies of sworn statements from three corps officials from Huntington, Cincinnati and Washington, D.C. All three said they don't currently believe the corps can permit valley fills under the dredge and fill provisions.
"We do not regulate them," Rick Buckley, chief of the corps' permitting section in Huntington, said in a sworn statement in November.
Rodney Woods, regulatory program manager with the corps' division office in Cincinnati, said the law was never intended to allow the corps to permit valley fills. "Maybe they just sort of oozed into that," Woods said.
John Studt, chief of the corps' regulatory branch in Washington, said that he agreed with Buckley and Woods.
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 that 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 depositions, corps officials have admitted that valley fills are composed of mining spoil and that mining spoil is waste and thus does not qualify as 'fill material' within the meaning of the corps' regulatory definition," Lovett wrote. "Consequently, under the plain language of the corps' regulation, the corps lacks authority to issue permits for these valley fills."
In his motion, Lovett asks for summary judgment, a declaratory judgment, a permanent injunction or a preliminary injunction to keep the corps from issuing any new valley fill permits.
Chief U.S. District Judge Charles Haden will hold a hearing on the matter at 9 a.m. Thursday in federal court in Charleston.