<DOC>
[107 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:83696.wais]
S. Hrg. 107-1000
CLEAN WATER ACT: REVIEW OF PROPOSED
REVISIONS TO SECTION 404 DEFINITIONS
OF ``FILL'' AND ``DREDGED FILL''
=======================================================================
HEARING
before the
SUBCOMMITTEE ON CLEAN AIR, WETLANDS, AND CLIMATE CHANGE
of the
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
JUNE 6, 2002
__________
Printed for the use of the Committee on Environment and Public Works
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
JAMES M. JEFFORDS, Vermont, Chairman
MAX BAUCUS, Montana BOB SMITH, New Hampshire
HARRY REID, Nevada JOHN W. WARNER, Virginia
BOB GRAHAM, Florida JAMES M. INHOFE, Oklahoma
JOSEPH I. LIEBERMAN, Connecticut CHRISTOPHER S. BOND, Missouri
BARBARA BOXER, California GEORGE V. VOINOVICH, Ohio
RON WYDEN, Oregon MICHAEL D. CRAPO, Idaho
THOMAS R. CARPER, Delaware LINCOLN CHAFEE, Rhode Island
HILLARY RODHAM CLINTON, New York ARLEN SPECTER, Pennsylvania
JON S. CORZINE, New Jersey PETE V. DOMENICI, New Mexico
Ken Connolly, Majority Staff Director
Dave Conover, Minority Staff Director
----------
Subcommittee on Clean Air, Wetlands, and Climate Change
JOSEPH I. LIEBERMAN, Connecticut, Chairman
HARRY REID, Nevada GEORGE V. VOINOVICH, Ohio
THOMAS R. CARPER, Delaware JAMES M. INHOFE, Oklahoma
HILLARY RODHAM CLINTON, New York MICHAEL D. CRAPO, Idaho
JON S. CORZINE, New Jersey PETE V. DOMENICI, New Mexico
C O N T E N T S
----------
Page
JUNE 6, 2002
OPENING STATEMENTS
Corzine, Hon. Jon S., U.S. Senator from the State of New Jersey,
prepared statement............................................. 12
Jeffords, Hon. James M., U.S. Senator from the State of Vermont.. 5
Lieberman, Hon. Joseph I., U.S. Senator from the State of
Connecticut.................................................... 1
WITNESSES
Callaghan, Mike, cabinet secretary, West Virginia Department of
Environmental Protection, Charleston, WV....................... 16
Prepared statement........................................... 157
Dunlop, George S., Deputy Assistant Secretary of the Army for
Policy and Legislation, Office of the Assistant Secretary of
the Army for Civil Works....................................... 6
Grumbles, Benjamin H., Deputy Assistant Administrator, Office of
Water, Environmental Protection Agency......................... 7
Prepared statement........................................... 24
Responses to additional questions from Senator Lieberman..... 31
Mulhern, Joan, senior legislative counsel, Earthjustice Legal
Defense Fund, Washington, DC................................... 13
Prepared statement........................................... 43
Responses to additional questions from Senator Lieberman..... 59
Richardson, Kevin, founder and president, Just Within Foundation,
Lexington, KY.................................................. 18
Prepared statement........................................... 158
Responses to additional questions from Senator Lieberman..... 159
Wallace, J. Bruce, professor of entomology, University of
Georgia, Athens, GA............................................ 20
Prepared statement........................................... 160
Responses to additional questions from Senator Lieberman..... 161
Whitt, Mike, executive director, Mingo County Redevelopment
Authority, Williamson, WV...................................... 21
Prepared statement........................................... 170
ADDITIONAL MATERIAL
Article, The Silence, by Katheryne J. Hoffman.................... 198
Charts:
Bulgar Hollow in Raleigh Co., WV............................. 67-68
Mingo County................................................173-179
Mountaintop Mining EIS Presentation..........................98-106
Valley Fills at Mountaintop Removal Mines in Kentucky and
West Virginia.............................................. 66
Declaration, John S.L. Morgan...................................137-143
Letters from:
American Rivers, Defenders of Wildlife, Earthjustice,
Endangered Species Coalition, Friends of the Earth, Mineral
Policy Center, League of Conservation Voters, National
Audubon Society, National Parks Conservation Association,
National Wildlife Federation, Natural Resources Defense
Council, Physicians for Social Responsibility, Scenic
America, Sierra Club, The Coast Alliance, Trout Unlimited,
U.S. Public Interest Research Group, World Wildlife Fund... 64
Bonds, Julia................................................. 187
Bradford, Richard............................................ 190
Bradford, Sylvia and Charles................................. 189
Bush, President George W..................................... 225
Canterberry, Pauline......................................... 203
Cooper, David................................................ 216
Daniel, Mickey R............................................. 191
Gallimore, Johnnie and Ruth.................................. 193
Griffy, Judy Turner.......................................... 196
Hamilton, David and Sue...................................... 202
Henderson, Lisa.............................................. 184
Hendrix, Regina M............................................ 217
Henry, Dorothy A............................................. 221
Holstein, William............................................ 192
Hufford, Mary................................................ 223
Liston, Sister Anne-Marie.................................... 200
McGee, David................................................. 220
Miller, Mary................................................. 205
Moore, Amanda................................................ 212
Nease, Janice H.............................................. 197
Oaks, Katherine.............................................. 224
Pentecost, Sister Robbie..................................... 214
Rank, Cindy.................................................. 183
Sebok, Patty................................................. 185
Smith, Barbara Hutchison..................................... 222
Stacy, Pauline............................................... 211
Taylor, Elinore.............................................. 218
White, Harry and Jewel....................................... 204
Wood, Betty.................................................. 210
Memorandums:
Izzo, Dominic, Office of the Assistant Secretary, Civil Works 74-82
Lishman, John, Wetland and Aquatic Resources Regulatory
Branch, Environmental Protection Agency.................... 144
Reports:
Characterization of Building-Related Construction and
Demolition Debris in the United States....................152-156
Economic Consequences, Environmental Impact Statement:
Mountaintop/Valley Fill Mining in Central Appalachia......107-136
Managing Industrial Solid Waste From Manufacturing, Mining,
Oil and Gas Production and Utility Coal Combustion........146-151
Permitted Stream Losses Due to Valley Filling in Kentucky,
Pennsylvania, Virginia, and West Virginia: A Partial
Inventory, September 1998.................................. 83-96
Resolutions:
Delegates at the United Methodist Church Annual Conference at
Buckhannon, WV............................................. 208
Diocesan Council, Episcopal Diocese of West Virginia......... 209
Mountain Top Removal/Valley Fill Strip Mining................ 215
The Commission on Religion in Appalachian.................... 206
Statements:
Coakley, Doyle, chair, board of directors, Citizens Coal
Council.................................................... 180
Phillips, Charles, Central States Organizer Endangered
Species Coalition.......................................... 194
Plumart, Perry, Director of Government Relations, Audubon.... 181
Transcript, Patricia Braggs v. Colonal Dana Robertson........ 69-73
CLEAN WATER ACT: REVIEW OF PROPOSED REVISIONS TO SECTION 404
DEFINITIONS OF ``FILL'' AND ``DREDGED FILL''
----------
THURSDAY, JUNE 6, 2002
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Clean Air, Wetlands,
and Climate Change,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:14 a.m. in
room 406, Senate Dirksen Building, Hon. Joseph I. Lieberman
(chairman of the subcommittee) presiding.
Present: Senators Lieberman, Carper, Clinton, Corzine, and
Jeffords [ex officio].
OPENING STATEMENT OF HON. JOSEPH I. LIEBERMAN, U.S. SENATOR
FROM THE STATE OF CONNECTICUT
Senator Lieberman. The hearing will come to order.
I express my apologies to all those here for being late. I
was in a meeting with several of my colleagues and President
Mubarak, who is in town in regard to the crisis in the Middle
East, and the meeting went on for a while. As a matter of fact,
it is still going on. Thank you for your patience.
I want to welcome you to this hearing of the Environment
and Public Works Committee's Subcommittee on Clean Air,
Wetlands, and Climate Change.
We are here today to discuss what on its face is a very
technical subject, which is, changes in the definition of
``fill material'' under the Clean Water Act. This is, in fact,
a matter of critical importance to the health of America's
rivers and America's streams.
Streams and rivers provide drinking water for people, and
habitats for many aquatic species, not to mention places of
recreation and tranquility. They also provide a means of
transporting water during heavy storms. Waterways are our
planet's circulatory system and we should no sooner allow them
to be unnaturally blocked than we would accept such blockages
in our own veins or arteries.
In 1972, Congress passed the Clean Water Act, one of the
landmark pieces of environmental legislation in our Nation's
history; one of the most successful governmental initiatives in
the last century. As a result of that Act, our lakes, rivers,
and streams are today much cleaner than they otherwise would
have been.
Under the Act, the Federal Government has allowed industry
to put some materials into our rivers and streams. The idea
there was that limited deposits of certain materials in
particular places would not harm our water supply and our
bodies of water. Sometimes the deposits can even serve a useful
or constructive purpose, such as providing the foundation for a
building or a bridge. When that is the case, what is dumped is
not called waste, it is called ``fill.''
Ever since the passage of the Clean Water Act, the Army
Corps of Engineers has, in fact, given industry permits for
such deposits on a case-by-case basis. We now know that the
Army Corps has also been issuing permits to companies which
allow them to dump vast quantities of blasted rubble, literally
tons and tons of rock, dirt, and toxic materials, right into
our rivers and our streams. The environmental consequences of
this short-sighted policy, in my opinion, have been severe.
Water has been polluted, aquatic life has been terminated, and
ecosystems have been drastically, and perhaps irreparably,
damaged.
As is well known, mountaintop removal is the most prominent
activity associated with and allowed under the changing
definition of ``fill material'' under the Clean Air Act. If
this type of activity and the mining associated with it is to
continue, the waste created by this practice and others must be
disposed of in compliance with the Clean Water Act. That is the
law. For years, in my opinion, it has been shameful that our
own Government was not following the law. Unfortunately, the
Bush administration is not looking for ways to stop the dumping
allowed under the current definition of ``fill material.'' It
seems to be looking for ways to continue it indefinitely and,
in fact, to expand it in the future.
Just last month, when my colleague, Senator Jeffords of
Vermont, who is the chairman of the full committee, the
Environment and Public Works Committee, and I learned that the
Administration was on the verge of finalizing rule changes
which would do just that, which is to say not only continue the
current definition of ``fill material'' but expand it, we sent
a letter to the President urging him to reconsider. We asked
for the opportunity, particularly through this committee, to
work with the Administration and others to fully assess the
environmental and other effects of the changes before they went
into effect. Two days later, unfortunately, despite not only
our request but that of many other people, the Administration
changed the rule anyway.
I am honored to note the presence of the chairman of the
full committee, Senator Jeffords, who has worked very closely
with me in this matter, as I just mentioned.
I believe that the new rule actually violates the Clean
Water Act. Just days after the rule was issued, a Federal
District Court in fact agreed with that belief, stating that
the Clean Water Act does not allow filling the waters of the
United States solely for waste disposal, and that Agency policy
that holds otherwise is beyond the power conferred by the Clean
Water Act.
The new EPA/Corps rule not only puts a seal of approval on
the dumping of mountaintop removal waste in our waters, but
effectively invites new kinds of waste to be put in our rivers
and streams, because the rule redefines ``fill material'' so
broadly that it seems to me it would include mining overburden,
wood chips, and even construction debris. It no longer requires
those seeking permits to demonstrate that the dumping would
serve any useful purpose.
Now, if this Administration wants to change the Clean Water
Act to allow such dumping, it seems to me that the way to do it
is to come to Congress and ask us to change the law, not to do
it through the administrative fiat that has been carried out.
As long as the Clean Water Act is the law of the land, this
practice cannot be permitted and should literally not be
permitted by the Army Corps of Engineers.
We are going to hear testimony this morning on the
relevance of the fill definition to the health of the
environment and local economies, how this problem has been
addressed at the State level, and the impacts mountaintop
removal waste have had on the waters in Appalachia.
Now let me just say a word about an unfortunate dispute
that has occurred between Senator Voinovich and me about one of
the witnesses, Kevin Richardson. It is a serious matter,
although I must say perhaps affected by my teenage daughter,
and I cannot resist saying that when it came to the question of
one of the Backstreet Boys testifying here this morning,
Senator Voinovich and I were not ``in sync.''
[Laughter.]
Senator Lieberman. I could not resist.
Look, Senator Voinovich, the Ranking Republican on this
committee, and I have had a good relationship and this dispute
began with a misunderstanding I am afraid between our staffs.
It was my staff's understanding that as we negotiated and
discussed witnesses for this hearing, we retained the right to
call at least one more witness. When we found that Mr.
Richardson was available today, we chose to exercise the powers
that I have as a subcommittee chair to call him. Senator
Voinovich's staff obviously felt that that was not the case. We
offered them the opportunity to call another witness on the
other side. They turned down that opportunity. So, as I presume
most of you know, Senator Voinovich has decided not to be at
the hearing and to exercise the right he has as a Senator to
terminate this hearing at approximately noon.
I do want to say that Mr. Richardson is here as much more
than just a well-known celebrity. He is a native of the State
of Kentucky, which is directly affected by the question of the
definition of fill material under the Clean Water Act. He is
knowledgeable on this issue and, in fact, has worked to protect
the environment in his home State through the Just Within Reach
Foundation that he founded and on whose behalf he will testify
today. So I believe his voice will add to our understanding of
the issue before us today, and I am grateful that he could be
here.
[The prepared statement of Senator Lieberman follows:]
Statement of Hon. Joseph I. Lieberman, U.S. Senator
from the State of Connecticut
Good morning, and welcome to this hearing of the Environmental and
Public Works Committee's Subcommittee on Clean Air, Climate Change and
Wetlands. We're here today to talk about a matter of critical
importance to the health of America's rivers and streams, the changing
of the definition of fill material under the Clean Water Act.
Streams and rivers provide drinking water for people and habitats
for many aquatic species. They also provide a means of transporting
water during heavy storms. Waterways are our planet's circulatory
system, and we should no sooner allow them to be disrupted than we
would accept blockages in our own veins or arteries.
In 1972 Congress passed the Clean Water Act, one of the landmark
pieces of environmental protections in our nation's history. Under the
Act, and under the careful oversight of government ever since, our
lakes, rivers and streams have been cleaned and safeguarded for us and
for future generations.
Under the Act, the Federal Government has allowed industry to put
some materials in our rivers and streams. The idea is that limited
deposits of certain materials in particular places do not harm our
water supply. Sometimes, the deposits serve a useful and constructive
purpose--such as providing the foundation for a building or a bridge.
When that's the case, what's dumped is not called waste--it's called
``fill.'' Ever since the passage of the Clean Water Act, the Army Corps
of Engineers has given industry permits for such deposits on a case-by-
case basis.
But we've learned that the Army Corps has been issuing permits to
companies which allow them to dump vast quantities of blasted rubble--
literally, tons and tons of rock, dirt, and toxic materials--right into
our rivers and streams. And the environmental consequences of this
shortsighted policy have been severe: water has been polluted, aquatic
life has been terminated, and ecosystems have been irreparably changed.
Mountaintop removal is the most prominent historical and current
activity associated with the fill issue under the Clean Water Act. It
is an important industry on which many American communities depend.
But if this type of mining must continue, the waste created by this
practice and others must be disposed of in compliance with the Clean
Water Act. That's the law--and for years, it's shameful that our own
government wasn't following it.
Unfortunately, the Bush administration isn't looking for ways to
stop the dumping. It is looking for ways to allow it to continue
indefinitely and expand it in the future. Just last month, when EPW
Committee Chairman Jeffords and I learned that Bush administration was
on the verge of finalizing rule changes that do just that, we sent a
letter to the President urging him to reconsider. We asked for the
opportunity to work with the Administration and others to fully assess
the environmental and other effects of the changes first.
Two days later, despite the concern we and many others had
expressed, the Administration changed the rule anyway. I believe that
the new rule violates the Clean Water Act. And just days after the rule
was issued, a Federal district court agreed with that belief--stating
that the Clean Water Act does not allow filling the waters of the
United States solely for waste disposal, and that agency policy that
holds otherwise is beyond the power conferred by the Clean Water Act.
What's doubly disturbing is that the new EPA/Corps rule not only
puts a seal of approval on the dumping of mountaintop removal waste in
our waters, but effectively invites many new kinds of waste to be put
in our rivers and streams. The rule redefines ``fill material'' so
broadly as to include mining overburden, woodchips, and even
construction debris. And it no longer requires those seeking permits to
demonstrate that the dumping would serve any useful purpose.
If the EPA wants to change the Clean Water Act to allow this
dumping, not to mention new dumping, it should seek to change the law,
but not through administrative fiat. As long as the Clean Water Act is
the law of the land, this practice cannot be permitted--and must
literally not be permitted by the Army Corps of Engineers.
We will hear this morning testimony on the relevance of the fill
definition to the health of the environment and local economies, how
this problem has been addressed in the State of West Virginia, and
impacts mountaintop removal waste has had on the waters in Appalachia.
Before starting the hearing I must address an issue that has caused
some controversy regarding the hearing. I am sorry to report that my
good friend Senator Voinovich is not here today to hear testimony on
this important topic. There was a misunderstanding between our staffs
over witnesses, specifically our calling Mr. Kevin Richardson to
testify, that led him to boycott this hearing and invoke a Senate rule
that requires this hearing to end 2 hours after the Senate opens for
business. Forgive the pun but Senator Voinovich and I were not
``N'Sync'' with about having a Back Street Boy testify today. I am
sorry about this, especially because I know so many of you have
travelled so far to be here today.
Mr. Richardson, I am sorry that you have been subjected to
criticism about your coming here to testify. I know that you were born
in Kentucky and raised on the edge of the Daniel Boone National Forest,
and still own a farm there. You have family and friends throughout the
Appalachian region. I understand that you are the founder and president
of the Just Within Reach Foundation. Your foundation promotes personal
responsibility and promotes environmental education, including the
granting of scholarships. Finally, you have been involved in the issue
before us today, and have flown over the coal fields in Kentucky, West
Virginia, and Tennessee, so you have seen first hand the consequences
of the granting of fill permits to allow the disposal of waste from
mountaintop removal.
Mr. Richardson is here as more than a well-known celebrity. He is
knowledgeable on this issue and has in fact worked to protect the
environment in his home State. I believe his voice will add to our
understanding of the issue.
Senator Lieberman. Senator Jeffords.
OPENING STATEMENT OF HON. JAMES M. JEFFORDS, U.S. SENATOR FROM
THE STATE OF VERMONT
Senator Jeffords. Good morning. I would like to thank and
commend Senator Lieberman for holding this hearing today, and
thank the witnesses for being here.
The reason we are all here is because we all care about
clean water. The Clean Water Act is a great success story in
the country's short history of environmental legislation. It
has served as a model for how States and the Federal Government
can work together to be more responsible stewards of our
precious resources. During the past 30 years, significant
progress has been made in attaining the goals set in the Clean
Water Act--the primary goal of zero discharge, and the interim
goal of fishable/swimmable water conditions.
The issue we are considering today is the impact that
changes in the rule defining ``fill material'' and the
``discharge of fill material'' will have on achieving the goals
of the Clean Water Act. Concerns have been raised that the new
definition will take us a step backward from achieving the
goals, while others believe the revised definitions will
eliminate confusion caused by EPA and the Corps having
different definitions of ``fill material.''
I look forward to hearing from our witnesses today about
why the changes are being made and their opinions as to what
the impacts of the new rules will have on our Nation's waters.
Thank you, Mr. Chairman.
[The prepared statement of Senator Jeffords follows:]
Statement of Hon. Jim Jeffords, U.S. Senator from the State of Vermont
Good morning. I would like to thank Senator Lieberman for
holding this hearing today and thank the witnesses for being
here.
The reason we are here today is because we all care about
clean water. The Clean Water Act is a great success story in
this country's short history of environmental legislation. It
has served as a model for how States and the Federal Government
can work together to be more responsible stewards of our
precious resources.
During the last 30 years, significant progress has been
made in attaining the goals set in the Clean Water Act--the
primary goal of zero discharge and the interim goal of fishable
and swimmable water conditions.
The issue we are considering today is the impact that
changes in the rule defining ``fill material'' and the
``discharge of fill material'' will have on achieving the goals
of the Clean Water Act.
Concerns have been raised that the new definition will take
us a step backward from achieving the goals, while others
believe the revised definitions will eliminate confusion caused
by EPA and the Corps having different definitions of ``fill
material''.
I look forward to hearing from our witnesses about why the
changes are being made and their opinions on what the impacts
of the new rule will be on our nation's waters and the quality
of the water.
Thank you, Mr. Chairman.
Senator Lieberman. Thank you, Senator Jeffords. Mr.
Chairman, thanks for your leadership on this and so many other
environmental questions.
Senator Carper of Delaware.
Senator Carper. I am just happy to be here and look forward
to the testimony of our witnesses, and delighted to be in your
company.
Senator Lieberman. Thank you, Senator Carper.
Our first panel is composed of Mr. Benjamin Grumbles,
Deputy Assistant Administrator, Office of Water, U.S.
Environmental Protection Agency, who is accompanied by Mr.
George Dunlop, Deputy Assistant Secretary of the Army for
Policy and Legislation, Office of the Assistant Secretary of
the Army for Civil Works, which is to say the Corps of
Engineers.
Mr. Grumbles, I gather that you will deliver the testimony
for the Administration, and both you and Mr. Dunlop are
available for questioning.
Mr. Grumbles. If the chairman would yield, I would simply
say that, if it is OK, the way we were going to proceed was
that Mr. Dunlop was going to give a 5-minute presentation and
then I would give a 5-minute presentation.
Senator Lieberman. Go right ahead. Do you want to go first,
Mr. Dunlop?
Mr. Dunlop. Yes, sir, thank you very much.
STATEMENT OF GEORGE S. DUNLOP, DEPUTY ASSISTANT
SECRETARY OF THE ARMY FOR POLICY AND LEGISLATION,
OFFICE OF THE ASSISTANT SECRETARY OF THE ARMY
FOR CIVIL WORKS
Mr. Dunlop. We welcome the opportunity to be here and thank
you very much for enabling us to present this testimony which
provides our views about the way we have come to the
circumstance at which we are at.
Mr. Chairman, as you explained at the outset, the Clean
Water Act involves definitions of ``pollutants'' and includes
in those definitions ``dredge'' and ``fill materials'' that are
regulated by the Corps of Engineers under Section 404 of the
Clean Water Act as those materials have the effect of changing
the bottom elevation of the waters of the United States or to
convert wetlands into dry lands. Under Section 404 of the Clean
Water Act, the EPA regulates all other pollutants that have
degradation effects through various programs that the EPA
administers.
Under the Section 404 program, unlike the Section 402
program, the Section 404 program specifically provides for
circumstances in which the waters are converted to non-waters,
to use the technical term, in ways that avoid, minimize, and
compensate for the impacts of such conversions. We do that by
requiring specific mitigations. That is found only in the
Section 404 authorities.
Further, Section 404 of the Act provides for the regulation
of discharges of fill materials, but Congress never really
defined what fill material is. They left that up to the
Agencies. The way we have gotten into this fix is that prior to
1977, for their respective programs, both Agencies, that is,
the Corps and the Environmental Protection Agency, used the
same effect-based definition of fill material that is found in
the Act. However, in 1977, the Corps of Engineers amended its
404 definition of fill material to add this primary purpose
test, to which the chairman alluded, and this focused on
whether or not the primary purpose of the material was, in
fact, to raise the bottom elevation or to convert wetland into
dry land.
It is important to note that the Corps, so as not to find
itself regulating garbage, which had been a certain practice in
certain areas in the United States at that time, specifically
excluded waste from those 1977 definitions. At that time, the
EPA retained the original effects-based definition in its 402
program governing the discharge of pollutants that have the
water quality degradation effect.
Over time, these two differing definitions of what
constituted ``fill'' pertaining to the purpose of what the fill
material was put created uncertainty, both for the regulators
and for the regulated community. In an effort to resolve that,
in 1986 the EPA and the Corps of Engineers entered into a
Memorandum of Agreement that sought to clarify these
circumstances.
Well, that Memorandum of Agreement did not clarify very
much because all these differing opinions continued. The
consistency of the Federal approach by the different Agencies
did not exist; it was not always consistent. Of course, as you
can well imagine, what did that lead to? Litigation. As you
well know, there are a variety of cases; the RII case, the
Bragg v. Robertson case, and of course the Rivenburgh case,
which the chairman referred to, which even as we speak is
before the courts.
So, because virtually all of the projects that place fill
in the waters of the United States have some purpose other than
raising the bottom elevation or turning wetland into dry land,
one court's interpretation of the primary purpose test, if
taken to an extreme, could exclude all traditional fill
material in the waters of the United States from regulation of
Section 404. Mr. Chairman, that is why all of these things were
modified and changed.
The bottom line of what we have done in our newly
harmonized May 2002 rule is to define ``fill material'' for the
404 program in terms of its effect on raising the bottom
elevation of waters of the United States, regardless of the
purpose that caused that fill to exist. It specifically
excludes garbage from the definition. It leaves the pollution,
that is, the water degradation effects, to be regulated by
EPA's Section 402 program.
Mr. Grumbles will then pick up from there how we got into
this present circumstance.
Senator Lieberman. Thanks, Mr. Dunlop.
Mr. Grumbles.
STATEMENT OF BENJAMIN H. GRUMBLES, DEPUTY ASSISTANT
ADMINISTRATOR, OFFICE OF WATER, ENVIRONMENTAL
PROTECTION AGENCY
Mr. Grumbles. Thank you, Mr. Chairman. I would like to
focus specifically on a brief history of how EPA developed its
``effects-based test'' and has applied this long-standing
approach to defining ``fill material,'' and also the steps that
we are taking to ensure that the Clean Water Act Section 404
program continues to provide protection for human health and
the environment.
Mr. Chairman, I know that you and your colleagues know that
there are essentially two basic issues that are involved here.
One is a jurisdictional issue. The question is whether Section
404, which has traditionally been designed to regulate the
discharge of dredged or fill materials, should apply, or
Section 402 of the Clean Water Act, which traditionally has
been, and continues to be, focused more on industrial and
municipal waste and all other pollutants under the Clean Water
Act. So there is an important jurisdictional question, and our
rulemaking, which George Dunlop has just described, is an
attempt to resolve and to harmonize the Agencies' differing
definitions.
The other issue is implementation. How do we implement the
404 program? How can we be responsive to the concerns that have
been raised in the past and that continue to be raised about
mountaintop mining and other practices that are subject to the
404 program?
So what I would like to do is focus more on the history of
the jurisdictional question, and essentially the difference,
after 1977, between having an ``effects-based test,'' which is
what EPA has had since then, and a ``primary purpose test,''
which is what the Corps had, where you might end up having to
look into the minds of those who are going to do the discharge
and figure out what was their purpose. The rule that we
finalized adopts the long-standing EPA approach of an effects-
based test: Look to see what the effect of a discharge is on
the environment.
Now, as George talked about, the 404 program under the
Clean Water Act specifically says you need a permit issued by
the Corps of Engineers for the discharge of dredged or fill
material. As George mentioned, the statute does not define
dredged or fill material; it was left to the Agencies. Mr.
Chairman, our view has been, and continues to be, both under
the previous Administration and this Administration, the
lawyers looking at the Act, looking at the congressional
intent, the consistent implementation, the bottom line legal
conclusion is that we believe that when you look at fill
material in the definition, that mining material overburden is
more appropriately consistent with the Clean Water Act
regulated under the Section 404 program as opposed to the
Section 402 program which traditionally regulates industrial
and municipal waste, of a liquid nature, in particular.
I just want to point out a couple of things about the 404
program that we have, and the difference with 402. Under 402,
there are no statutory or regulatory provisions designed to
address discharges that convert waters of the United States to
dry land. That is a fundamental concept to keep in mind. If we
were told to start regulating mountaintop mining discharges
under 402, it would require a comprehensive overhaul of the
existing 402 program. The program is simply not designed, and
has not been implemented, to regulate that type of material. In
essence, the view is that regulations under 402 would result in
an up-front, categorical ban of any type of discharge
associated with that type of mining because you are, in
essence, converting waters of the United States into dry land.
That is precisely what the 404 program, in our view, was
intended to regulate, that type of discharge.
What are some of the protections under 404? Specifically,
under the 404 program, the Corps of Engineers issues the
permits and follows EPA guidelines. ``Guidelines'' is really a
misnomer. These are binding regulations. It also is called the
``404(b)(1) guidelines,'' and the whole exercise there is to go
through an analysis where you look at the practicable
alternatives to the discharge. You have to go through a process
of minimizing the effects of the discharge, and then, finally,
provide for what is called ``compensatory mitigation.'' If
there are no practicable alternatives to the discharge of the
fill material into the waters of the United States, then you
have to minimize the effects, and then, finally, provide for
compensatory mitigation.
As George said, there has been in the past no single
definition. Over time, again and again there was controversy
and confusion that has arisen. I think one of the key points to
highlight is that this rule is not just about mining, it is
also about the regulation of placement of materials in wetlands
and other waters of the United States for the construction of
solid waste landfills. A 9th-circuit case in 1998 is one of the
primary motivations behind this rulemaking. It is to clarify
that, yes, safeguards under the Clean Water Act, not just under
RCRA but under the Clean Water Act as well, would apply to that
type of activity, of putting sand and gravel in a wetland for a
liner or a leachate collection system. So one of the points is
that the rulemaking that we are finalizing is attempting to
address that concern as well; to try to harmonize the differing
definitions between the Corps and the EPA.
Finally, I just want to talk about implementation. We are
not here to defend mountaintop mining practice, we are not here
to defend any type of practice that is regulated under the
Clean Water Act. We recognize that there have been in the past,
and there continue to be problems and environmental impacts
associated with a wide range of activities regulated under the
Clean Water Act. Our purpose was to clarify, to resolve the
different definitions and also to make clear in the rulemaking
that trash and garbage was not something that could be subject
to the Section 404 permitting program. These are materials,
that, traditionally, we have never authorized permits for nor
tolerated in any form or substance.
So, one of the purposes of the rulemaking was to clarify
the landfill issue and the role of 404 in activities related to
landfill liners and leachate collection systems, but also to
harmonize the differences between the Corps and EPA. The EPA
and the Corps are working to do several things to strengthen
the regulatory protections under the nationwide permit program
as it relates to mountaintop mining. We are working to include
numeric thresholds as to the acreage limits that might come
into play with respect to a nationwide permit for mountaintop
mining. The Corps District Engineers in each of the Districts
throughout Appalachia will be looking specifically at the
cumulative impacts of mountaintop mining in the context of
permits or authorizations. We are also involved in a multi-
agency effort looking at the cumulative impacts, reviewing
these, in particular for mountaintop mining.
So, Mr. Chairman, I appreciate your allowing me to go over
time. I guess the bottom line is that we believe that our
current interpretation of the Act and the intent of Section 404
is the correct one, and that the rulemaking, nothing more,
nothing less, is intending to harmonize that difference in
definitions. We also look forward to more regulatory efforts to
make sure that cumulative impacts and safeguards are in place
with respect to mountaintop mining.
Senator Lieberman. Thanks, Mr. Grumbles.
Senators will have 5-minute rounds of questioning of you.
Look, the concern here is that in the clarification that
you have done, as you describe it, you have legitimized a
practice that is in fact harmful to the Nation's waterways. I
looked over some of the files in that 1998 case Bragg v.
Robertson, and it was interesting to read the testimony of
several of the Army Corps of Engineers officials who were
deposed and acknowledged, as I read it, that the Corps did not
have the legal authority to issue permits for valley fills
because the Corps' own regulations prohibited the use of waste
as fill. One of the Corps officials, when asked why the Corps
did issue such approvals without legal authority, said that the
Corps ``sort of oozed into that.'' That is the concern.
So let me ask this question. Is it not possible that
Congress in adopting the Clean Water Act and the President
signing it did not anticipate allowing such discharges under
either Section 402 or Section 404? In other words, you have
clarified the interpretations, according to your testimony, but
it seems to me that there is an argument to be made pursuant to
the obvious intention of the Act, which was to clean up our
waterways, that under 402 or 404 Congress did not intend such
discharges to be legal.
Mr. Grumbles. If I may, Mr. Chairman, I think there are a
couple of things to keep in mind. One of them is that while the
Act does have as its overarching objective to restore and
maintain the chemical, physical, and biological integrity of
the Nation's waters, and it does have some non-binding
important goals at the front of the Act about specifically
reducing and eliminating discharge over a period of time, any
discharges, the whole purpose of the Act is to have the two
primary operative regulatory programs, 402 and 404, to allow
for the addition of pollutants under stringent conditions and
requirements.
Specifically, Section 404 does allow for the discharge of
dredged or fill material into specified ``disposal sites.'' It
is specifically contemplated. It is part of the Act that there
will be disposal of waste and other materials, dredged or fill
material into the waters, but they need to be regulated and
there need to be safeguards and controls.
The point you mentioned about the confusion over whether or
not the Corps had the legal authority to be authorizing these
activities I think is the precise reason why we felt, and why
the previous Administration felt, there was a need to clarify
the different definitions that were in the regulations. The
Corps had a specific provision that said if it is the primary
purpose to dispose, that is what you look at, and there was a
waste provision, an exclusion that waste would not be under
404. Our definition was different. To our lawyers in reading
through the Act, it seemed very clear that you should look at
the effect of the discharge into the waters of the United
States and then that should be the primary test. If you change
the bottom elevation of a waterbody, what you needed to do was
to have to go through the 404 permit program.
Senator Lieberman. Just on a non-legal basis, is it really
possible to think of the dumping of millions of tons of debris
into valleys as ``strictly controlled,'' to use the words of
the statute?
Mr. Grumbles. I do not know what the precise number is.
There is no doubt that there has been a lot of material,
whether it is mountaintop mining overburden or other materials,
that have over the years been discharged into the Nation's
waters. The safeguards, the attractiveness of the 404 permit
program, as opposed to the 402 program, is that it is
specifically designed to take the permit right through an
analysis where they look at practicable alternatives and they
also look at the cumulative impacts.
One of the things that we are committed to doing is to look
in a very rigorous way at the individual and cumulative impacts
of those discharges. Since 1998, we understand that the number
of valley fills has been reduced by 30 percent, and that the
overall size impact of the valley fills has been reduced by
approximately 20 or 25 percent.
The bottom line is that these discharges do have an effect.
We do not believe that the statute, the current reading and
correct reading of the statute, would impose an absolute
categorical ban on the discharge of this type of waste. We do
believe it needs further restrictions both under the nationwide
permit program and the individual program, and there needs to
be continued analysis of cumulative impacts of such activities.
Senator Lieberman. OK, Mr. Grumbles, my time is up.
Senator Corzine.
Senator Corzine. Thank you, Mr. Chairman. I must admit that
I am not a lawyer, so this language seems overdrawn. Filling up
valleys strikes me as not necessarily consistent with what a
non-lawyer would read in looking at the Clean Water Act.
Senator Lieberman. Your status as a non-lawyer may, in
fact, give you clearer vision in this case.
[Laughter.]
Senator Corzine. So I am having a little problem with coal
mining overburden and placement of overburden as confusing the
issue.
Let me switch gears a little bit and maybe show some of my
ignorance. This is actually very troubling relative to a common
sense interpretation of what, at least my understanding, the
Clean Water Act was all about. Are there any changes in these
definitions that have anything to do directly with the dredging
activities in New York-New Jersey Harbor and the definitions of
what will be appropriate fill material, both for this and for
other activities?
Mr. Grumbles. Well, we are not attempting in the rulemaking
to define ``dredged'' material. In terms of the definition of
``fill material,'' I want to check with the lawyers and will
get back to you for the record. The HARS, I believe is
regulated under the Marine Protection Research and Sanctuaries
Act. So that is a different statute.
[The referenced material follows:]
Clarification on the Effect of the rule on the New York/New
Jersey Harbor HARS: ``Placement of dredged material from New
York/New Jersey Harbor at the Historic Area Remediation Site
(HARS) is regulated under Title I of the Marine Protection,
Research, and Sanctuaries Act (33 U.S.C. 1401 et seq.). The
rulemaking to clarify the definition of 'fill material' under
Section 404 of the CWA thus does not affect the HARS.''
Senator Corzine. The same material that would be dredged
from that harbor then deposited in coal mine shafts in
Pennsylvania would be subject to 404?
Mr. Grumbles. That is correct. If you were putting it into
other waters or inland waters, then the Section 404 program
would apply.
Senator Corzine. Would you consider coal mine shafts water
sources?
Mr. Grumbles. I do not know about coal mine shafts. I was
thinking you were going more in terms of other streams or
waters.
Senator Corzine. So there are concerns about using these
dredged materials as pollutants that undermine the water tables
and seepage into them. I am just curious as to whether these
same issues of definition apply to that discussion and debate
as they do here.
Mr. Chairman, I am going to plead ignorance on my legal
ability, but I have serious trouble at a common sense level of
the juxtaposition of these kinds of overdrawn legal definitions
blocking what I think is the clear intent of the Congress with
regard to the Clean Water Act. I am pleased to hear that we
have fewer filled-in valleys. Somehow or other, that does not
seem good enough relative to at least the limited study I have
given to this particular issue. I think it is very worthy that
we dig deeply into this and challenge some of these definitions
because, frankly, I am troubled, and I think the American
people would be, with regard to the usage of these statutes to
justify those purposes.
[The prepared statement of Senator Corzine follows:]
Statement of Hon. Jon S. Corzine, U.S. Senator
from the State of New Jersey
Thank you Mr. Chairman for holding today's hearing on the issue of
the Army Corps' change to their definition of ``fill'' material. This
may seem like a minor technical change. But as we will hear today,
there are much broader and potentially damaging implications that such
a change may have.
I want to start by noting that this year marks the 30th anniversary
of the Clean Water Act. The Act's objective is clear: ``to protect and
restore the physical, chemical and biological integrity of the nation's
waters.'' The Clean Water Act has resulted in many successes since
1972. Thirty years ago, only 30-40 percent of the nation's rivers,
lakes and coastal waters were estimated safe for swimming and fishing.
Today that percentage has risen to over 60 percent. In my home State of
New Jersey--which has over 120 miles of ocean coastline, 6,450 miles of
rivers, and 24,000 acres of public lakes--considerable progress has
been made as well. All coastal beaches from Sandy Hook South to Cape
May are fully swimmable, 73 percent of the monitored estuary waters and
76 percent of the monitored ocean waters fully support shellfish
harvesting--this wasn't the case 30 or even 20 years ago.
These are good achievements, but there is still a lot of work to be
done in New Jersey and across the country. So in this year of the 30th
anniversary of the Clean Water Act, I think we ought to be taking steps
to strengthen the Act to address remaining water quality problems. We
certainly shouldn't be weakening the Act, or making changes to
regulations that will create new water quality problems. Unfortunately,
that's exactly what the Administration is doing with this change to the
wetlands program.
It is my understanding that the new ``fill'' definition is such
that any material that has the effect of replacing portions of waters
with dry land or changing the bottom elevation of a water body is
permissible for use as ``fill'' material. As my colleagues have pointed
out, the effect of this change is that many types of wastes--including
hardrock mining waste, coal mining waste, and construction and
demolition debris--will be allowed to be dumped in our Nation's
waterways.
Needless to say, Mr. Chairman, this could be devastating to
streams, lakes and wetlands across the country. And it goes against the
heart of the Clean Water Act, whose purpose is to clean up the nation's
waterways, not to dump waste into them. So I'm extremely dismayed by
the Administration's actions.
Thank you, Mr. Chairman. I look forward to hearing the testimony.
Senator Lieberman. Thank you, Senator Corzine. I agree with
you.
Gentlemen, I have a couple of other questions, but I am
going to leave the record open and submit them to you in
writing.
I gather, under the Senate rules and Senator Voinovich's
objection, we are going to have to adjourn by 11:30. Some folks
have come from some distance on the second panel and I want to
give them an opportunity to testify.
So, thank you for your testimony.
Mr. Dunlop. Mr. Chairman, as a matter of housekeeping, may
we ask that our prepared formal statement be inserted in the
record.
Senator Lieberman. Without objection, the full statements
will be included in the record, as they will for those who
testify on the second panel. I thank you.
I now call the second panel. The panel is composed of Mr.
Kevin Richardson, founder and president of the Just Within
Reach Foundation, from Lexington, KY; Joan Mulhern, senior
legislative counsel, Earthjustice Legal Defense Fund; Mike
Callaghan, secretary, West Virginia Department of Environmental
Protection; J. Bruce Wallace, Ph.D., professor of entomology
from the University of Georgia, Athens, GA; and Mike Whitt,
executive director, Mingo County Redevelopment Authority,
Williamson, WV.
I thank you all for being here. Obviously, this is a very
important hearing on a very important subject and your
testimony is of significance to us.
We are going to start with you, Ms. Mulhern, then we are
going to go to Mr. Callaghan, Mr. Richardson, Mr. Wallace, and
Mr. Whitt.
STATEMENT OF JOAN MULHERN, SENIOR LEGISLATIVE
COUNSEL, EARTHJUSTICE LEGAL DEFENSE FUND,
WASHINGTON, DC
Ms. Mulhern. Chairman Lieberman and members of the
subcommittee, thank you for holding this hearing to review one
of the most destructive changes to Clean Water Act regulations
in decades. My name is Joan Mulhern. I am senior legislative
counsel for Earthjustice Legal Defense Fund, a national non-
profit law firm.
Present for your hearing today, Mr. Chairman, are citizen
groups and individuals from the coal field who are among the
people who will be most directly hurt by the Administration's
weakening of the Clean Water Act rules. I have some statements
from these individuals and others, as well as from local groups
and religious leaders in the region, and with your permission,
Mr. Chairman, I would like to ask that these be entered into
the record for the hearing.
Senator Lieberman. Without objection, they will be entered.
Thank you.
Ms. Mulhern. On May 3, the Bush administration eliminated
from the Army Corps of Engineers' Clean Water Act regulations a
25-year old legal prohibition on using waste material to fill
waters of the United States. This change in the definition of
fill material was made to give the Corps authority to permit
any industry to bury any waterway under almost any kind of
solid waste. The rule change is indefensible as a matter of law
and policy. It is directly contrary to the Clean Water Act,
which, as you stated, Mr. Chairman, has the central purpose of
protecting the integrity of our Nation's waters. No activity is
more inconsistent with the goal of protecting the integrity of
waters than allowing them to be buried forever under piles of
industrial waste.
The EPA has declared this to be the ``Year of Clean Water''
in honor of the Clean Water Act's thirtieth birthday, which
happens this year on October 18. Opening the Nation's waters
for obliteration in the way that this rule change does is a
perverse way of marking an important milestone in this landmark
law's history.
Much of the attention on the new waste dump in water rule
has been on mountaintop removal and the destruction of streams
into which the coal companies dump enormous quantities of
waste. This is because of not only the unparalleled destruction
that this practice causes, but it is precisely for the coal
companies that the Bush administration adopted this rule.
Estimates vary, but most suggest in West Virginia and
Kentucky alone where mountaintop removal is most concentrated
more than 1500 miles of streams have already been destroyed
under valley fill waste dumps. It is impossible to overstate
the harmful effects of mountaintop removal on the surrounding
environment and communities. Not only are the waters buried
under tons of rubble, the forested mountains become barren
moonscapes. Mining complexes can be 10 or even 20 square miles
in size. The communities below these massive operations are
devastated. People are forced from their homes by blasting, by
dust, noise, flying rocks, and the degradation of stream and
well water. Life near mountaintop removal operations become so
unbearable that generations old communities are forced to move
away.
Many people, including some coal field residents who have
lost homes and loved ones in the recent floods, believe
flooding is made worse by mountaintop removal. It is a
reasonable conclusion. When mining strips the land bare of all
trees and vegetation and the natural water courses are filled
under tons of rubble, stormwater will come rushing down more
quickly into communities and valleys. In the floods last month,
nearly a dozen people lost their lives and four West Virginia
counties were declared Federal Disaster Areas.
As you noted, Mr. Chairman, recently a Federal District
Judge, Charles Haden, ruled that the Administration's rewrite
of the Clean Water Act regulations was beyond its legal
authority. He wrote:
``To read the Clean Water Act otherwise presumes Congress
intended the Act to protect the Nation's waterways with one
major exception: the Army Corps was to be given authority to
allow the waters of the United States to be filled with
pollutants and destroyed, even if the sole purpose is waste
disposal.''
He wrote:
``Amendments to the Act should be considered and accomplished
in the sunlight of open congressional debate, not within the
murk of administrative after-the-fact ratification of
questionable regulatory practices.''
Earthjustice could not agree more. The questionable
regulatory practice referred to is the fact that the Corps,
without legal authority, has been permitting this filling of
streams with coal mining waste for many years. This was not a
matter that was unclear, as Mr. Dunlop suggests. The waste
exclusion that has been in the Corps' regulations for 25 years
was all too clear. In fact, it was only when citizens moved to
enforce the Clean Water Act against the Federal and State
Agencies that were permitting it that the Bush administration
tried to change the rule.
The coal industry and the Bush administration argue that
companies must bury streams and that forbidding them from doing
so would cause economic havoc both regionally and nationwide.
Yet the evidence shows neither of these claims is true. Most
mining operations do not require valley fills. For the others
there are alternatives to dumping waste in waters. According to
an economic study recently prepared for the Bush
administration, even severe restrictions on the size of valley
fills would only add one dollar to the price of a ton of coal
and a few cents to the cost of a megawatt of electricity.
Some proponents of mountaintop removal claim it is needed
to create flat land for development. While there are a few such
examples, it is extremely unlikely that any significant
percentage of any of the hundreds of square miles that have
already been flattened will ever be developed. According to one
estimate, less than 1 percent of mine land is currently used
for any development purpose.
It is important to understand that the way that the rule
was changed would also allow almost any other industry to seek
approval from the court to dump any kind of waste into
waterways. As the chairman noted, plastics, construction
debris, along with wood chips, overburden, slurry tailings, and
similar mining materials would all be allowed to be permitted
in water, including wastes that are chemically contaminated.
Perhaps the most startling thing about the Administration's
change to the regulations is it was done without any study or
analysis of the environmental or societal consequences. If you
look at the Environmental Analysis prepared by the Corps, Mr.
Chairman, you will find that it lacks one thing--an
environmental analysis. The document cites not one study,
report, or fact of any kind to support the Agency's conclusions
that there will be no environmental effects from this rule
change. Not only does common sense tell us otherwise, but
recently released documents from the EPA and Corps show that
the effects already caused by mountaintop removal are
significant and likely irreversible.
I am over my time, so I will just say that I could not
disagree more with Mr. Grumbles and Mr. Dunlop's explanation of
the Clean Water Act and the reasons that they give for changing
this rule. It is one thing to fill a stream or wetland because
a constructive use needs to be made of a certain area. It is
something else altogether to allow it to be filled with waste
just because that is the cheapest means of disposal.
Because Judge Haden enjoined the Corps from issuing any new
permits, our waters are protected from this rule change for
now. As the courtroom battles on the rule change continue, as
they undoubtedly will, it makes sense for Congress to step in
and settle this matter once and for all by reconfirming what
the Clean Water Act already says, that it forbids the use of
our Nation's waters as dumps.
Thank you again, Mr. Chairman, for the opportunity to
testify.
Senator Lieberman. Ms. Mulhern, I agree with you. One of
the questions I was going to ask the previous panel was exactly
the one you stated, which is, there was no Environmental Impact
Analysis that I can see, it was just asserted. Second, it is my
intention to introduce legislation to do exactly what you have
said, which is to assert in law the original intention of the
Congress, which is not to allow this kind of dumping in our
waters.
Senator Lieberman. Secretary Callaghan, secretary of the
West Virginia Department of Environmental Protection. Thanks
for being here.
STATEMENT OF MIKE CALLAGHAN, SECRETARY, WEST VIRGINIA
DEPARTMENT OF ENVIRONMENTAL PROTECTION, CHARLESTON, WV
Mr. Callaghan. Thank you, Mr. Chairman, and thanks for
having me back. You might recall I testified on some air issues
several months ago.
Senator Lieberman. I do.
Mr. Callaghan. At that stage, I blamed my premature balding
on air issues. Today, I am going to blame it on mountaintop
mining.
[Laughter.]
Mr. Callaghan. As you mentioned, I am Mike Callaghan,
cabinet secretary for West Virginia DEP. What I want to relate
to you is West Virginia's perspective on what is happening in
the coal fields with respect to valley fills and mountaintop
mining.
To put it in some kind of perspective, I am a fifth
generation West Virginian. So I go back to when the State was a
State. I have been around the issue of coal mining all my life.
We have discussed the benefits and the burdens that that has
brought to our State, and it has brought both.
When you look at mountaintop removal, it is, as the name
suggests, a mining method in which the soil and rock are
basically pulled from the top of the mountain, the coal seam is
extracted, and then the materials tried to be placed back into
the fields and into the mountain in as best condition as
possible. The excess soil and rock, which they refer to as
``spoil,'' is commonly placed in the nearby valleys and
hollows, creating large sloped areas called ``valley fills.''
Mountaintop removal is one of the most economical ways to
mine coal in a steep sloped terrain, such as in southern West
Virginia, but it does have the consequence of filling miles of
mountain streams with rock and dirt. The practice of
mountaintop mining has increased because the demand for low
sulphur coal has been steadily increasing over the last decade.
So that is what is driving the more mountaintop mining.
From a regulatory standpoint, the State of West Virginia
issues mining permits through a federally approved program and
we have primacy of our program through the Department of
Interior. Basically, we apply the Surface Mine Control and
Reclamation Act and its regulations dictate most aspects of the
permitting process implemented by the State of West Virginia,
which includes a permitting of valley fills. In West Virginia,
among other requirements, every permit for a mining operation
which proposes filling a stream must include detailed
provisions for minimizing the amount of excess spoil material,
a stormwater runoff analysis to prevent flooding, and detailed
engineering requirements to ensure structural stability of the
valley fills themselves.
As you have seen today, in addition to State approval, the
Army Corps of Engineers must issue a Section 404 permit before
any waters of the United States can be filled.
Over the last 20 years, West Virginia and the Federal
oversight Agencies, which include EPA, the Army Corps of
Engineers, the Office of Surface Mining, have issued permits
that authorized the construction of more than 4,000 valley
fills in West Virginia. Those fills have ranged in size from a
few hundred yards to over 2 miles in length and affected
approximately 750 miles of our streams, creeks, and drainage
ways.
One conclusion about mountaintop mining and valley fills
that is certain though is that the use of these practices has
enabled the mining industry to flourish and has put thousands
of West Virginians to work. In numerous communities in southern
West Virginia the coal mining industry has for many years
formed the backbone of the economy. The industry draws its work
force from the local population and many additional jobs are
sustained through businesses that support mining industry.
Currently, market factors are having a significant impact
on West Virginia coal. Western coal competition, depletion of
reserves, economies of scale, and industry mergers all will
likely lead to a decline in the employment in the mining
industry in Appalachia. This is going to leave our region, and
especially West Virginia, with an economic void.
Ironically, when you look at these valley fills and
mountaintop removal sites, they can serve as effective
development tools for filling the gap left by the mining
industry when they move on. That is, when properly planned,
mountaintop mining sites have proven ideal locations for
industrial, commercial, residential, and recreational
development. The flat topography of mountaintop removal sites
in areas typically devoid of prime building locations has
already proven beneficial to several businesses, including a
large wood products factory, a world-class golf course, a
multi-faceted recreational park, and residential development.
My department is working closely with the State economic
development office to more fully utilize these surface mining
sites. Individuals such as Mike Whitt, sitting here at the
table with me, have been very instrumental in providing a
vision for West Virginia's future post-mining. Unfortunately,
former mining sites historically have been under-utilized as
economic tools. Of the several hundred surface mining sites
with valley fills in West Virginia, less than two dozen have
been used for economic or community development.
Let me conclude by saying that prior to joining DEP, I was
a Federal prosecutor with pretty extensive experience in
prosecuting people who committed environmental violations. One
of the first things I did was to appoint an environmental
prosecutor from the Department of Justice here in Washington to
come and run our coal program. I say that, in West Virginia
sometimes we like to talk in phrases, but basically I want you
to understand that there is a new sheriff in town. We are
running our program and we are doing a good job of enforcing
the rules and regulations as they are written.
Please know that I am fully committed to the enforcement of
the existing laws and regulations, and we want to demonstrate
steady progress in improving our oversight of the coal industry
in West Virginia. We certainly welcome the companies to mine
our coal, but we also intend to do our jobs as regulators and
enforce the law. Thank you.
Senator Lieberman. Thanks, Secretary Callaghan.
Mr. Richardson, thanks for being here. As I indicated in my
opening statement, I regret the dispute over your appearance. I
am grateful that your schedule allowed you to be here. You have
got a proven record of being involved in environmental
protection. You come from a part of the country that is
affected by this discussion. So I look forward to your
testimony now.
STATEMENT OF KEVIN RICHARDSON, FOUNDER AND PRESIDENT, JUST
WITHIN REACH FOUNDATION, LEXINGTON, KY
Mr. Richardson. Thank you, sir. Mr. Chairman, honorable
committee members, and guests, my name is Kevin Richardson. I
was born in Lexington, KY, and I was raised in the Appalachian
Mountains of eastern Kentucky. My father managed a camp and
conference center that hosted retreats for religious groups and
businesses from all over the world. There at the camp I mowed
the grass, swept the cabins, cleaned the toilets, and led hikes
all over the thousands of acres that border the Daniel Boone
National Forest that we lived on. Our entire water supply was
supplied from a natural spring.
I am here today to talk about a systematic destruction of
one of the most beautiful, productive, and historical regions
of our country--my home State of Kentucky, the mountains of
West Virginia and Tennessee, and the other areas of Appalachia
where the practice of mountaintop coal mining has taken over.
In the midst of their giant lakes of coal sludge that
sometimes burst without warning, their constant dynamiting that
shakes homes from their foundations, their transformation of
forested mountain ranges into flat, gravel-covered moonscapes,
and their contamination of well water and natural springs, coal
companies engage in the practice of valley fill, our purpose
for being here today.
For years, the Corps of Engineers has routinely issued
permits to coal companies in the Southeast and Appalachia
allowing them to fill valleys and waterways with overburden
from the mountaintop removal coal extraction operations.
Overburden, along with coal sludge, are the byproducts of
extracting and washing coal, before shipping it to electric
generating plants across the country.
EPA officials, residents living in the shadows of mines,
and citizen groups have questioned the validity and legality of
the Corps' decision to issue such permits--permits for an
activity that dumps mining waste into the region's streams,
rivers, and valleys. Hundreds of millions of tons of industrial
mining byproducts are pushed into the valleys surrounding coal
extraction sites, to date burying over 1,500 miles of headwater
streams in West Virginia and my home State of Kentucky. Valley
fills destroy spawning grounds that support our recreational
fishing industry, they contaminate our drinking water, and they
trash our thriving tourist industry that relies on the natural
beauty of our area. In addition, these stripped lands can no
longer absorb the seasonal rainfall, causing massive flooding
and loss of life. People should not have to die when it rains.
In April, a Federal District Court judge finally brought
some needed attention to this issue by ruling that the Corps'
practice of issuing valley permits violates Congress' intent in
the Clean Water Act and its restrictions on using waterways for
industrial waste disposal. The Administration's recent attempt
to circumvent the Clean Water Act by rewriting the rules to
define coal extraction waste as ``fill'' is a nice gesture to
their friends in the industry. It clearly exceeds the
Administration's legal authority granted under the Act. Such a
gesture cannot alter the meaning of the law. I urge you to make
this clear to the President and his Agencies.
The bottom line is that we have an industry that has
thrived, not from honest business practices in a free market,
but from passing its real costs to the people of Appalachia and
the rest of the United States--with subsidies in the form of
illegal permits from the Corps of Engineers and other Agencies
that are supposed to protect us. Ending the practice of valley
fills and making coal companies manage their industrial waste
like any other industry is not about hugging trees and
worshipping mountains. It is about making coal companies
compete for our energy dollar on an equal playing field with
natural gas, hydroelectric, solar, and wind. It is about
recognizing that we own the streams and rivers of this country
and that we own the fish and other resources in those
waterways. Destroying the rivers, the fisheries, the forests
and mountains through irresponsible coal extraction, as well as
coal-produced acid rain deposition in your home State, Mr.
Chairman, is no different than kicking down the doors of our
homes and walking away with an armful of our valuables. Theft
is theft.
I am not a scientist, but I know what I have seen on
flights over the coal fields. My first flight was in Spring
2001. The historic resources that sustained Daniel Boone, the
original Cherokees, and generations of mountain people are
being converted on a mammoth scale into flat, lifeless
plateaus. The first time I ever flew over the area at about
5,000 feet, I thought I would see a few scarred peaks. Instead,
I saw the entire horizon filled with mountains with their tops
blown off, huge lakes of toxic sludge, and piles of waste
filling every valley around the mines. I was sick to my
stomach.
I came here today to bring attention to an Administration
policy and a Corps of Engineers practice on valley fills that
is completely misguided and gives no consideration to the
generations to come. When I move back home to Kentucky to raise
my family on my farm, I would like my kids to be able to swim
and fish in the same places I did when I grew up. I ask you, as
our leaders, to look beyond the political clout of the coal
lobby and do what is right for the forgotten Appalachian
region.
In closing, I would like to personally invite each of you
to take a flight with me over the coal fields and see firsthand
how future generations are being robbed.
Mr. Chairman, I thank you for your invitation to speak here
today before the committee and for your willingness to bring
this difficult issue to light. Thank you very much.
[Applause.]
Senator Lieberman. The hearing will come to order.
Thanks, Mr. Richardson. Your testimony vindicated my
confidence that you would add something to the hearing, and you
did. You have unique personal appearance and strong testimony
to offer, and I thank you for it.
Senator Clinton, I thank you for being here. A cloture vote
has started on the floor. We are under a threat of being closed
off at 11:30. I wonder if we can do a tag team; I will run over
now and vote and then come back. Next is Dr. Wallace and then
Mr. Whitt. I will be right back. I really appreciate your being
here.
Senator Clinton [assuming the chair]. Thank you, Mr.
Chairman.
Dr. Wallace.
STATEMENT OF J. BRUCE WALLACE, PROFESSOR OF ENTOMOLOGY,
UNIVERSITY OF GEORGIA, ATHENS, GA
Mr. Wallace. Thank you. Senators, ladies, and gentlemen,
thank you for the opportunity to offer testimony on changing
definitions of fill as it relates to central and southern
Appalachian streams. Judge Charles Haden has concluded that
these changes can only be allowed to stand if the U.S. Congress
alters the intent of the Clean Water Act and allows fills so
that waste from mining operations can be deposited in headwater
streams. Based on more than 30 years of experience of working
in Appalachian stream, I strongly urge you not to allow such
changes.
The impacts of coal mining are significant and detrimental.
We are burying streams and creating potential long-term
environmental consequences as well as economic consequences
that will haunt us into the future. Over 900 miles of
Appalachian streams were buried between the years 1986 and 1998
alone because of mountaintop removal and valley fill coal
mining activities, and that is an underestimate because those
values were made from maps that do not show all of the smaller
streams.
The significance of headwater streams is widely accepted by
the scientific community, as demonstrated by an attached letter
I submitted signed by 44 senior aquatic scientists as well as
excerpts from a peer-reviewed publication. The message from the
scientific community is clear: (1) headwater streams provide
vital ecological goods and services, and (2) they are being
destroyed at an extremely high rate by human activities.
Much of the diversity of aquatic biota in the Appalachians
is found in the small streams such as those being buried. These
streams receive most of their energy inputs from leaves, wood,
et cetera, called detritus, from surrounding forests. This
organic detritus is stored and processed by biota and physical
processes into smaller particles and dissolved organic matter.
This material is subsequently transported downstream to serve
as food for invertebrates and ultimately fish. Destroying the
linkage between headwaters and downstream areas alters the
availability of organic matter as fuel for downstream animals.
One of the fundamental concepts of stream ecology is
linkage of upstream to downstream segments. Former streams
covered by valley fills no longer serve as a source of organic
matter for downstream areas. Recent studies have shown that
small streams in the drainage network are the sites of the most
active uptake and retention of dissolved nutrients. Burying
small streams results in increased downstream loading of
nutrients and degradation of water resources and the loss of
valuable ecosystem services.
Our potable water supplies will be harmed many years into
the future because of large increases in concentrations of
several chemicals, as recently found by the USEPA below valley
fills. The large increases in concentrations of chemical
elements, which I show in Table I of the things I submitted
earlier, combined with increased discharge below valley fills
increases the rate of downstream nutrient loading. Altered
chemistry, altered temperature regimes contribute to the
elimination of many species of invertebrates. EPA studies have
shown that many sensitive species are absent from streams below
valley fills. Who pays for this long-term pollution of our
waterways? Unfortunately, those of us who live downstream pay.
This deliberation really boils down to short-term economic
gain for long-term environmental degradation. However, the
question should not be how can we extract coal resources with
the minimum expense and maximum short-term profit for the
mining companies. The question we should really be asking is
how can we extract coal resources in a wise manner which
ensures long-term environmental integrity, productive forests,
unburied and unpolluted streams, and long-term productive
economies for our children and grandchildren. Thank you for
your attention.
[Applause.]
Senator Clinton. Thank you very much, Dr. Wallace.
Mr. Whitt.
STATEMENT OF MIKE WHITT, EXECUTIVE DIRECTOR, MINGO COUNTY
REDEVELOPMENT AUTHORITY, WILLIAMSON, WV
Mr. Whitt. Thank you Senator Clinton, members of the
committee. I appreciate the invitation to speak about this very
important issue in southern West Virginia. I appreciate your
willingness to learn about the positive projects that are
coming to fruition in the southern West Virginia coal fields.
The Mingo County Redevelopment Authority's mission is to
create jobs, improve the quality of life, and increase the tax
base throughout the next generation for the future of our
children and grandchildren. We cannot meet these challenges
unless mine sites are provided to us for the purposes of
economic development.
The Authority brought together a very diverse group of
citizens to develop the Mingo County land-use master plan. The
Mingo County commission approved this plan after holding a
public hearing and receiving the citizen's input to this plan.
Now, for the first time in history, we have a road map to
achieve economic development opportunities. Any company who
volunteers will be provided with this post-mine land-use that
will ensure that we have economic development sites once mining
is complete. Prior to our plan, Mingo County lost many economic
development opportunities because most of the property that was
mined was put back to the approximate original contour, leaving
no suitable land for economic development. Our plan affords
opportunities to change that.
Through the leadership of the Authority, we have developed
an excellent partnership with private and public sectors. Mike
Callaghan, the Director of DEP, and Governor Bob Wise have been
very instrumental in our efforts to encourage post-mine land-
use sites for proposed and ongoing surface mine activities. We
have listened to the concerns of our citizens and one thing
that everyone agrees on is the fact that we must diversify our
economy. We must stop the cycle of schools being closed, we
have lost 16 schools since 1991; good teachers having to leave,
we have lost 120 teachers since 1993; major industry jobs
vanishing, we lost over 800 jobs since 1990. Our county's
population has dropped from 37,000 in 1980 down to 28,000 in
the year 2000. That is a loss of over 1,800 students in our
school systems.
One of our schools, 95 percent of the kids qualify for the
free lunch program. The best case scenario, we have in our
county seat one of our high schools where over half of their
kids qualify for the free lunch program. That is very
disheartening. We have not done a very good job down there
providing opportunities for our folks.
The Redevelopment Authority has worked hard to form a team
relationship between private and public sectors, and with the
dedication of our board of directors we have achieved an
excellent display of teamwork within our county. Everyone has
come together to help save our county from economic
devastation. We cannot wait to diversify the economy after the
coal is depleted. We must diversify in conjunction with the
ongoing and future mining activities, and our efforts must
continue.
I would like to mention some projects that have come to
fruition utilizing opportunities that have been created by the
mining industry. We had three projects on reclaimed surface
mine land:
The Wood Products Industrial Park. It is a $28 million
capital investment. We have 90 employees there and expect
another 100 by the end of this year. The first major
diversification project ever in our county from coal.
We have an Agriculture Demonstration Project. For the first
time, our kids have a horticulture curriculum and now they are
maintaining and operating this facility. It broadens their
education values.
The Twisted Gun Golf Course. The coal industry constructed
an 18-hole PGA-type golf course, with a breathtaking view of
our natural surroundings. This project will enhance our
recreation opportunities.
We have two projects utilizing underground mine water, and
that has created a new industry in southern West Virginia,
particularly in my county. We have a fish hatchery which
hatches and raises arctic char fingerlings and a grow-out
facility is now in operation. That is a $3.5 million investment
from the private sector which takes arctic char fingerlings and
grows them to market size, about two pounds. Pro Fish is the
distributor of our arctic char in the Washington, DC. area and
I would encourage you to try some for dinner. It is excellent.
Some of our potential projects in conjunction with ongoing
mining that will help diversify our economy, save millions of
tax dollars, and enhance the quality of life for Mingo County
citizens are:
The King Coal Highway, I-73/74 corridor. In cooperation
with the Department of Highways, the Department of
Environmental Protection, and a local mining company, the coal
industry plans to construct 5 miles of this road to rough grade
and put two connectors in. That is an estimated savings of $90
million of taxpayer money.
We do not have an airport that will let any kind of
corporate executive land there. In cooperation with Mingo
County Airport Authority, the coal company has agreed to
construct to rough grade an area to provide the county with an
airport runway of 6,000 to 10,000 feet, with sufficient acreage
for ancillary future development. That is an estimated savings
of $30 million.
As you can see, the mining industry and our efforts to
diversify the economy in southern West Virginia are connected
in a substantial manner. I am not a lawyer, I am not an
engineer, and I am not a chemist. I am just a local citizen who
loves my county and its citizens. We care about our kids and
our grandkids and opportunities that are provided to them. We
want a county that will allow people who have had to move away
to come back home to live and work. We care about our schools
and the opportunities provided to our kids. We are working hard
to make southern West Virginia economically viable.
The mining is necessary. The valley fills are needed for
the continuation of surface, contour, and underground mining to
create economic opportunities for Mingo County. We have found a
solution to stop the downward plunge and it is not just a
fleeting mission. It is reality. It is attainable. It works. We
want it to continue.
Now you have a better understanding of our situation, and
we can see the importance of diversification during the mining
process in southern West Virginia. If there is anything that I
can do to help ensure that our progress is not hindered, please
feel free to contact me. I, like Mr. Richardson, I would like
to invite you down to my county and I will personally take you
around and show you the progressive steps that we have made.
Then you can make a decision for yourself if we are on the
right track.
I would like to leave you with a very powerful quote from
former President John F. Kennedy. It sort of summarizes my
county. The citizens down there is the first part, and I think
the Redevelopment Authority and the teamwork we have put
together is the second part of his phrase. He said: ``Some
people see things as they are and ask why.''--and I am asked
all the time why don't we have this kind of industry, or why
don't we have this, and why don't we have that--``But I,'' I
want to paraphrase here--``But [we] dream of things that never
were and ask why not.'' We are answering the ``why nots'' down
there right now. It has been very difficult. It is hard to turn
a big ship around. But with your help and support, we are going
to accomplish our goals.
With that, I thank you for giving me time to testify before
you today.
Senator Clinton. Thank you very much, Mr. Whitt.
Unfortunately, as you know, we have to end this hearing
because of the disagreement that arose. I join Chairman
Lieberman in thanking all of the panelists for being here, and,
Mr. Richardson, we are very pleased that you were able to be
part of this important hearing.
I think we will keep the record open because we did not get
a chance to ask any questions. I have to leave to go vote. If
Senator Lieberman gets back, he will have maybe 5 minutes
before he has to close the hearing down because of the
objection of one of our members. So at this point, I will
adjourn the hearing and ask if all of you would be available
for us to submit written questions, since we did not get a
chance to orally.
I want to thank the audience which has come to demonstrate
its concern, particularly everybody from West Virginia. I thank
you very much for making the trip to be here. We look forward
to working on this very difficult problem with you. I look
forward to coming to see the area. I have enjoyed my visits to
West Virginia and I look forward to coming back. Mr.
Richardson, I will talk to Senator Lieberman and we may take
you up on that offer to take a fly over and we will go over
Kentucky as well as West Virginia and Tennessee and take a look
at what is happening. Because the costs of this can no longer
be borne by the people alone and we have to do more to make
sure that we have a good relationship between economic
development, which everyone knows is important, but if you do
not protect the environment you are not going to have much of
an economy in the future.
So thank you all very much.
[Applause.]
Senator Clinton. The hearing is adjourned.
[Whereupon, at 11:22 a.m., the subcommittee was adjourned,
to reconvene at the call of the chair.]
[Additional statements submitted for the record follow:]
Statement of Benjamin H. Grumbles, Deputy Assistant Administrator,
Office of Water, U.S. Environmental Protection Agency and George S.
Dunlop, Deputy Assistant Secretary of the Army, Policy and Legislation
Good morning, Mr. Chairman and members of the Committee. We welcome
the opportunity to present joint testimony on the national implications
of the recent Department of the Army (Army) and U.S. Environmental
Protection Agency (EPA) Clean Water Act (CWA) rulemaking defining the
terms ``fill material'' and ``discharge of fill material'' for the
Section 404 program.
In today's testimony, we will explain the rule, its history, and
how it will result in more effective regulation of activities under the
CWA, leading to a reduction in environmental impacts. We also will
address the ramifications of the May 8, 2002, decision in Kentuckians
for the Commonwealth, Inc. v. Rivenburgh [No. 2:01-770 (S.D.W.Va.)] for
the rule and how the agencies intend to proceed. Army and EPA are
committed to protecting this nation's aquatic resources consistent with
the requirements of the CWA and the final fill rule enhances our
ability to do just that.
BACKGROUND
Before discussing the specifics of the rulemaking, let us first
explain the underlying context. The definition of ``fill material'' has
a long history that reflects the complexity associated with the
purposes of the CWA. The CWA reflects a national commitment to protect
the nation's aquatic resources, but it establishes that commitment in a
context that also recognizes that our waters are used for a variety of
purposes. The CWA establishes permitting programs that are designed to
strike the appropriate balance between those competing purposes. The
definition of ``fill material'' is indicative of the challenge that
exists in ensuring that all of the goals of the CWA are met.
The CWA governs the ``discharge'' of ``pollutants'' into
``navigable waters,'' which are defined as ``waters of the United
States.'' Specifically, Section 301 of the CWA generally prohibits the
discharge of pollutants into waters of the U.S., except where such
discharges are authorized under either CWA Section 404, which regulates
the discharge of dredged or fill material, or CWA Section 402, which
regulates all other pollutants under the National Pollutant Discharge
Elimination System (NPDES) program.
These two permit programs are designed to address different types
of materials. In keeping with the fundamental difference in the nature
and effect of the discharge that each program was intended by Congress
to address, Sections 404 and 402 employ different approaches to
regulating the discharges to which they apply. The Section 402 program
is focused on (although not limited to) discharges such as wastewater
discharges from industrial operations and sewage treatment plants,
stormwater and the like. Pollutant discharges are controlled under the
Section 402 program principally through the imposition of effluent
limitations, which are restrictions on the ``quantities, rates, and
concentrations of chemical, physical, biological and other constituents
which are discharged from point sources into navigable waters'' [CWA
Section 502(11)]. Section 402 permits must include effluent limitations
that reflect treatment with available pollution control technology, and
any more stringent limitations necessary to meet water quality
standards for the receiving water [CWA Section 301(b)]. There are no
statutory or regulatory provisions under the Section 402 program
designed to address discharges that convert waters of the U.S. to dry
land. Moreover, the Section 402 permitting process does not require an
evaluation of alternatives to a proposed discharge or mitigation for
unavoidable impacts.
In contrast, the Section 404 permitting program does specifically
contemplate the possible conversion of waters to non-waters and is
designed, therefore, to evaluate and provide for ways to avoid,
minimize, and compensate for the impacts of such conversions. Just
because material is characterized as ``fill material'' does not mean
that a Section 404 permit will necessarily authorize a particular
discharge--the permit process carefully screens proposed discharges and
applies the 404(b)(1) Guidelines, which provide a comprehensive means
of evaluating whether any discharge of fill, regardless of its purpose,
is environmentally acceptable. First, a discharge is categorically
prohibited if it would significantly degrade a water of the United
States. In addition, no discharge may be allowed if there is a less
environmentally damaging practicable alternative to placing the
material in waters of the United States. Finally, where there is no
other alternative, the discharge may be allowed if the permit applicant
has taken all practicable steps to minimize the amount of material
discharged, and compensate for the remaining, unavoidable impacts
through mitigation.
This comprehensive environmental evaluation is specifically suited
to addressing activities whose effect is to convert waters to dry land,
because it ensures the associated habitat modification is avoided,
minimized and compensated for to the maximum extent practicable. The
sufficiency of this permitting process to provide appropriate
environmental protection for waters of the U.S. does not depend on the
purpose of the discharge of fill material. The Section 404(b)(1)
Guidelines also provide for consideration of the effects of chemical
contaminants on water quality in a number of ways, specifically
requiring compliance with applicable State water quality standards [40
CFR 230.10(b)(1)], toxic effluent limits or standards established under
CWA Section 307 [40 CFR 230.10(b)(2)], and appropriate use of chemical
and biological testing to evaluate contaminant effects [40 CFR
230.11(d) and (e); 230.60]. However, because Section 404 was intended
by Congress to provide a vehicle for regulating materials whose effects
include the physical conversion of waters to non-waters or other
physical alterations of aquatic habitat, the Section 404(b)(1)
Guidelines go beyond such a water quality based approach to require
careful consideration of the effects of the discharge on the aquatic
ecosystem as a whole, as well as evaluation of alternatives to the
discharge and measures to minimize and compensate for unavoidable
adverse effects.
Although Section 404 provides for the regulation of discharges of
fill material, Congress did not define ``fill material'' in the Act,
leaving it to the agencies to define the term consistent with the
overall goals of the Act. Prior to 1977, the Corps and EPA had the same
``fill material'' definition. We both defined ``fill material'' as
``any pollutant used to create fill in the traditional sense of
replacing an aquatic area with dry land or of changing the bottom
elevation of a water body for any purpose. . . .'' [40 FR 31325 (July
25, 1975); 40 FR 41291 (September 5, 1975)].
In 1977, the Corps amended its definition of ``fill material'' to
add a ``primary purpose test,'' which focused on whether the primary
purpose of the material was to raise the bottom elevation of a water or
convert wet to dry land. The definition also specifically excluded
material that was discharged primarily to dispose of waste [42 FR 37130
(July 19, 1977)]. This change was adopted by the Corps because it
recognized that some discharges of solid waste materials technically
fit the definition of fill material; however, the Corps believed that
such waste materials should not be subject to regulation under the CWA
Section 404 program.\1\ For example, the Corps sought to exclude the
disposal of trash and garbage from regulation under section 404.
---------------------------------------------------------------------------
\1\ The Corps' definition of ``fill material'' adopted in 1977
reads as follows: (e) The term ``fill material'' means any material
used for the primary purpose of replacing an aquatic area with dry land
or of changing the bottom elevation of an [sic] water body. The term
does not include any pollutant discharged into the water primarily to
dispose of waste, as that activity is regulated under section 402 of
the Clean Water Act.'' 33 CFR 323.2(e) (2001) (emphasis added).
---------------------------------------------------------------------------
However, the definition of ``fill material'' is not just
significant to the Section 404 program. Because Section 402 is
applicable to all pollutants other than dredged or fill material, the
definition of what does or does not constitute ``fill material''
impacts on the 402 program as well. Rather than change its regulations
to adopt a ``primary purpose test'' similar to that adopted by the
Corps, the EPA regulations retained a focus on the effect of the
material (an ``effects-based test'') in determining whether a discharge
would be subject to Section 404 or Section 402. The EPA regulations
provided that any material that has the effect of raising the bottom
elevation of a water body or converting wet to dry land is ``fill
material.'' \2\ EPA retained the effects-based approach because it
avoids the need to ascertain the ``purpose'' of a project in order to
determine regulatory requirements, and ensures that discharges with
similar environmental effects receive similar regulatory treatment.
---------------------------------------------------------------------------
\2\ 40 CFR 232.2 defines ``fill material'' as ``any `pollutant'
which replaces portions of the `waters of the United States' with dry
land or which changes the bottom elevation of a water body for any
purpose'' (emphasis added).
---------------------------------------------------------------------------
Over time, the agencies began to see evidence that their differing
definitions created uncertainty among both regulators and members of
the regulated public. In 1986, the agencies entered into a Memorandum
of Agreement (1986 MOA)\3\ in an effort to clarify when Section 402
versus Section 404 was the appropriate framework. Nevertheless, there
continued to be regulatory uncertainty.
---------------------------------------------------------------------------
\3\ Memorandum of Agreement Between the Assistant Administrators
for External Affairs and Water, U.S. Environmental Protection Agency,
and the Assistant Secretary of the Army for Civil Works, Concerning
Regulation of Discharges of Solid Waste Under the Clean Water Act.
---------------------------------------------------------------------------
In addition, the purpose test lends itself to the possible
exclusion of materials from Section 404 that are most commonly used for
the very purpose of raising the elevation of an area (i.e., of filling
a water of the U.S.) if the materials are a waste product of some other
activity, and thus can lead to incongruous results. For example, some
might argue that test would preclude the Corps from allowing the excess
rock and dirt that is generated on road construction projects in steep
slope areas to be used as ``fill material'' because it is a waste by-
product of that activity. Nevertheless, the very same material that is
discharged under different circumstances would be generally regulated
as fill material.
The uncertainty caused by differing definitions, in general, and
the ``primary purpose test,'' in particular, has also engendered
litigation. We are concerned that if inconsistencies and ambiguities in
the regulatory definitions of ``fill material'' are not corrected,
further litigation will arise and future court decisions could reduce
the ability of the CWA Section 404 program to protect the quality of
the aquatic environment, and the overall public interest.
The court decision that most clearly illustrates the serious
problems caused by the ``primary purpose test'' is the Ninth Circuit
Court of Appeals decision in Resource Investments Incorporated v. U.S.
Army Corps of Engineers, 151 F.3d 1162 (9th Cir. 1998) (the RII case).
This case involved a CWA Section 404 permit application for a solid
waste landfill proposed to be built in waters of the U.S. located in
the State of Washington. The Corps' Seattle District Engineer denied
the Section 404 permit, on the grounds that a solid waste landfill at
that location could contaminate an important ``sole source'' aquifer,
and on the basis that environmentally safer, practicable alternatives
were available to handle the region's solid waste. When the permit
applicant sued, the District Court upheld the Corps' permit denial, but
the Ninth Circuit Court of Appeals reversed.
One of the Ninth Circuit's conclusions in the RII decision was that
the ``primary purpose'' test in the Corps' definition of the term
``fill material'' meant that the Corps could not require a CWA Section
404 permit for pollutants that the applicant proposed to discharge into
waters of the U.S. for construction of a proposed landfill. Based on
the Corps' definition of fill material, the Ninth Circuit determined
that the layers of gravel, low permeability soil, and synthetic liner
that would underlie the solid waste landfill did not constitute ``fill
material.'' The Court reasoned that the ``primary purpose'' of these
materials (e.g., soil and gravel) to be placed in the waters of the
U.S. was not to change the bottom elevation of a water body or replace
an aquatic area with dry land, but to create a leak detection and
collection system.
The Ninth Circuit's decision in the RII case illustrates the
inherent problems in the ``primary purpose'' test. In RII, the litigant
was successful in excluding from regulation under the CWA Section 404
program traditional fill material, by alleging an alternative primary
purpose. Typically fill serves some purpose other than just creating
dry land or changing a water body's bottom elevation. Thus, if this
approach to interpreting the Corps' ``primary purpose test'' were to be
taken to its extreme conclusion, the unreasonable end result could be
that almost any traditional fill material proposed to be placed in
waters of the U.S. does not need a Section 404 permit. Such an
interpretation would be clearly contrary to the intent of Congress
expressed in the plain words of CWA Sections 404 and 301, which require
that any ``fill material'' to be placed in any water of the U.S. must
be legally authorized by a permit under CWA Section 404.
Similarly, Bragg v. Robertson, 54 F. Supp. 2d 563 (S.D. W. VA.
1999) (and now the Rivenburgh case) are further evidence of how the
uncertainty in the regulatory context resulted in a misinterpretation
of the legal framework governing this program. In Bragg, despite its
previous approval of a settlement agreement recognizing use of Section
404 to regulate overburden, the District Court, in a decision
addressing claims under State law, stated in dicta that under the then-
existing Corps regulations Section 404 was not the appropriate
framework for regulating overburden because it was waste material.
Although that decision was ultimately vacated by the Fourth Circuit
Court of Appeals on jurisdictional grounds, the same court in its May
8, 2002, decision in the Rivenburgh case went even further and
concluded that the CWA itself did not contemplate regulation of waste
discharges under Section 404. We will further discuss the Rivenburgh
decision later in our testimony, but decisions such as these underscore
why a clear statement of regulatory policy, which the agencies have
attempted to do in our recent rule, is essential.
For some time, there has been strong public concern surrounding the
fill rule and related issues. In the past, both industry and
environmental groups have urged the agencies to reconcile their
differing definitions of ``fill material.'' Industry was frustrated by
the confusion and additional time that was sometimes necessary to
process applications as the agencies sorted out their different
regulatory perspectives. At one time, environmental groups believed
that EPA's effects-based approach to the definition of fill material
was more environmentally protective and went so far as bring suit in
1982 to have the Corps definition declared unlawful and invalid and to
enjoin its implementation.
APRIL 2000 PROPOSAL
For the reasons just characterized, the Clinton Administration, on
April 20, 2000, proposed a joint rule to revise the Army and EPA
regulations defining the term ``fill material.'' Consistent with the
terms of the settlement agreement entered in the Bragg litigation
between the Federal defendants and the plaintiffs, the proposal made
clear that discharges into waters of the U.S. of coal mining
overburden, and berms, dams, or roads associated with the sedimentation
ponds would continue to be regulated as ``fill material.'' In
developing the regulatory revisions, the Army and EPA sought to improve
regulatory clarity in a manner that is generally consistent with EPA's
long-standing definition and current practice. The goal was to maintain
or improve existing environmental protections in a manner that would
avoid major disruptions or reallocations of responsibilities between
the ongoing Section 404 and 402 programs and to ensure that no new
types of pollutant discharges would now become allowable. The approach
adopted by the proposal, and ultimately the final rule, best protects
the environment, minimizes potential program disruptions, and properly
reflects the differing regulatory approaches established by Sections
402 and 404 of the CWA.
The proposal was to amend both the Army and EPA definitions of
``fill material'' to provide a single definition of that term. The
proposal, which was consistent with EPA's long-standing definition and
the current practice of the agencies, would result in material that has
the effect of filling waters of the U.S. being deemed ``fill material''
and thus subject to evaluation under the CWA Section 404(b)(1)
Guidelines, which were specifically written to address material with
that type of effect. At the same time, the proposal would have
specifically excluded from the definition of ``fill material''
discharges subject to EPA proposed or promulgated effluent limitation
guidelines and standards under CWA Sections 301, 304, and 306, or
covered by a NPDES permit issued under CWA Section 402. The proposed
revisions also contained a change to the definition of the term
``discharge of fill material,'' in order to provide further
clarification that landfill construction and placement of coal mining
overburden are regulated under Section 404. In addition, the preamble
to the proposal sought comment on whether to amend the Corps'
regulations so as to provide a definition of ``unsuitable fill
material'' that could not receive a Section 404 permit, and set out a
potential definition for that term.
The proposal originally was issued with a 60-day public comment
period. However, in response to requests from the public, the agencies
extended the comment period for an additional 30 days, providing a
total comment period of 90 days, which closed on July 19, 2000. We
received over 17,200 comments on the proposed rule, most of which
consisted of identical or substantially identical e-mails, letters, and
postcards opposing the rule and generated from websites that enabled
the sender to submit an e-mail or fax by simply typing in their name
and clicking a button. Approximately 500 of the comments consisted of
more individualized letters, with a mixture of those comments
supporting and opposing the rule.
The comments of environmental groups and the various form letters
were strongly opposed to the proposal, in particular, the elimination
of the waste exclusion and the discussion in the preamble regarding
treatment of unsuitable fill material. Except for several
representatives of landfill interests, comments from the regulated
community generally supported the proposal, in particular, the fact
that the rule would create uniform definitions of ``fill material'' for
the Corps' and EPA's rules and maintain regulation of certain
discharges under Section 404 as opposed to Section 402 of the CWA.
MAY 2002 FINAL RULE
The comments on the April 2000 proposal addressed a number of
issues briefly discussed below, including adoption of a single
consistent EPA and Corps definition of ``fill material,'' the use of an
effects-based test for defining ``fill material,''and the elimination
of the waste exclusion from the Corps' definition. This latter issue
was a matter of particular concern to the environmental community.
With regard to adoption of a single EPA and Corps definition, the
majority of the comments from both the environmental and industry
perspectives expressed the general view that the agencies should have
the same definitions for the key jurisdictional terms ``fill material''
and ``discharge of fill material.'' Many such comments also noted that
the differences between the Corps' and EPA's rules have historically
caused confusion for the regulated community. The final rule, like the
proposal, provides for a consistent Corps and EPA definition of these
key terms.
Most of the comments that addressed use of an effects-based test
for defining ``fill material'' expressed support for its use, as well
as for elimination of the ``primary purpose'' test from the Corps'
definition. However, there were some commenters who disagreed with such
an approach. They gave a variety of reasons for their opposition,
believing elimination of the primary purpose test from the Corps'
definition was unnecessary, that purpose-based tests were successfully
used in other statutes and elsewhere in the Section 404(b)(1)
Guidelines, that alternative ways of resolving the issue without a rule
change were available, and that the proposal represented an expansion
of Section 404 jurisdiction.
We carefully considered such comments, but concluded that the
objective standard created by an effects-based test will yield more
consistent results in determining what is ``fill material'' and will
provide greater certainty in the implementation of the program. An
objective, effects-based standard also helps ensure that discharges
with similar environmental effects will be treated in a similar manner
under the regulatory program. As previously discussed, the subjective,
purpose-based standard led in some cases to inconsistent treatment of
similar discharges, a result which hampers effective implementation of
the CWA. In addition, despite previous efforts to resolve the
uncertainties resulting from the differing Corps and EPA definitions
without rulemaking (e.g., the 1986 MOA), regulatory uncertainties
continued to arise. Thus, the final rule, like the proposal, uses an
effects-based approach to provide a single definition of the term
``fill material.''
In particular, the final rule defines ``fill material'' as material
placed in waters of the U.S. where the material has the effect of
either replacing any portion of a water of the United States with dry
land or changing the bottom elevation of any portion of a water. This
approach is similar to EPA's long-standing definition of the term
``fill material.'' For purposes of increased clarity, the final rule
also contains specific examples of ``fill material'' including rock,
sand, soil, clay, plastics, construction debris, wood chips, overburden
from mining or other excavation activities, and materials used to
create any structure or infrastructure in waters of the U.S.
With regard to elimination of the waste exclusion from the Corps'
definition, comments from the environmental community and general
public strongly opposed its elimination. Some of these comments
recommended that the agencies include in the regulation a general
exclusion from the definition of ``fill material'' for any discharge of
``waste.'' Some commenters expressed the view that deletion of the
waste exclusion language from the Corps' regulations violates the CWA,
and pointed to the decisions in RII and Bragg to support that view.
Many of these comments acknowledged, however, that when waste is
discharged for a purpose other than mere disposal, (e.g., to create
fast land for development), review under the Section 404 permit process
in accordance with the Section 404(b)(1) Guidelines adequately protects
the environment and is consistent with the CWA.
We believe that a categorical exclusion for waste would be over-
broad, and the final rule thus does not contain such an exclusion.
Simply because a material is disposed of for purposes of waste disposal
does not, in our view, justify excluding it categorically from the
definition of ``fill material.'' Some waste (e.g., mine overburden)
consists of material such as soil, rock and earth, that is similar in
its characteristics and effects to ``traditional'' fill material used
for purposes of creating fast land for development. In addition, other
kinds of waste having the effect of fill (e.g., certain other mining
wastes, concrete, rubble) also can be indistinguishable either upon
discharge or over time from structures created for purposes of creating
fast land. Given the similarities of some discharges of waste to
``traditional'' fill, we declined to categorically exclude all wastes
from the definition, allowing the appropriateness of the material to be
assessed in the permit review process. The final rule, however, was
modified in light of the comments to specifically exclude trash or
garbage.
The proposed rule's preamble addressed a related issue of whether
to define ``unsuitable fill material,'' and contained an example
definition of that term. The comments on that proposal expressed almost
unanimous opposition to this ``unsuitable fill material concept,'' in
some cases viewing it as too limited and an inadequate substitute for
the elimination of the waste exclusion, in others' opinion, leaving too
much discretion as to what is ``unsuitable fill material,'' and
impermissibly rejecting materials out of hand that might be acceptable
when actually evaluated under the permitting process.
However, many of the comments received did assert that various
types of trash or garbage are not appropriate to use, as a general
matter, for fill material in waters of the U.S. We believe these
impacts can be generally avoided because there are alternative clean
and safe forms of fill material that can be used to accomplish project
objectives and because there are widely available landfills and other
approved facilities for disposal of trash or garbage. In light of this,
the final rule was modified to add an exclusion of trash and garbage
from the definition of ``fill material.''
In addition to the foregoing issues, the final rule itself, unlike
the proposal, does not contain an exclusion from ``fill material'' for
discharges covered by effluent limitation guidelines or standards or
NPDES permits. This change was made in light of comments expressing
concern that the proposed rule language regarding the exclusion was
susceptible to differing interpretations and would result in
uncertainty with respect to the regulation of certain discharges.
However, while the language in question does not appear in the final
rule itself, the preamble does emphasize that the effects-based
definition is consistent with EPA's long-standing approach to defining
fill material, and generally is intended to maintain our existing
approach to regulating pollutants under either Section 402 or 404 of
the CWA. In particular, as noted in the preamble, the final rule does
not change any determination EPA has made regarding discharges that are
subject to effluent limitation guidelines and standards, which will
continue to be regulated under Section 402 of the CWA. In addition, the
preamble notes the final rule does not alter the manner in which water
quality standards currently apply under the Section 402 or the Section
404 programs.
With regard to solid waste landfills and the RII case, comments
from the regulated community asserted that the regulation under Section
404 of discharges for creation of infrastructure associated with solid
waste landfills (e.g., roads, liners, berms, dikes) was inconsistent
with the court's decision in RII. However, as explained in considerable
detail in the preamble to the final rule, we do not agree, and instead
believe that an effects-based test is the appropriate means of
evaluating whether a pollutant is ``fill material.'' Like the proposal,
the final rule thus makes clear that discharges having the effect of
raising the bottom elevation of a water or replacing water with dry
land, including fill used to create landfills such as liners, berms and
other infrastructure associated with solid waste landfills are
discharges of fill material subject to the Section 404 program. These
types of discharges have been consistently subject to regulation under
Section 404, and the final rule clarifies that the important
environmental protections of the Section 404 program continue to apply
to such discharges.
RELATIONSHIP OF RULEMAKING AND MOUNTAINTOP MINING
We recognize that this rulemaking has been the subject of
considerable public attention and controversy, largely because
opponents of the practice of mountaintop mining have viewed this issue
as an opportunity to halt that practice. Notably, neither this rule nor
the CWA are the principal vehicle provided by Congress for regulating
mountaintop mining activities. Rather, the responsibility was delegated
to the Secretary of the Interior, through the Office of Surface Mining,
under the Surface Mining Control and Reclamation Act (SMCRA).
Nevertheless, this rulemaking has been incorrectly painted as being
designed to facilitate the continuation of mountaintop mining. In
actuality, it was undertaken in light of years of past experience in
order to enhance regulatory clarity and improve environmental
protection. However, because this rulemaking has been depicted as
linked to promotion of mountaintop mining, we would like to take this
opportunity to briefly discuss the Administration's efforts to provide
for more effective and environmentally sound management of that
practice under the existing regulatory framework.
Consistent with the Bragg settlement agreement, we are continuing
to develop a programmatic Environmental Impact Statement (EIS) that
will consider appropriate changes to agency policies, guidance, and
coordinated agency decisionmaking processes to reduce the adverse
environmental effects to waters of the U.S. and to fish and wildlife
resources from mountaintop mining operations, and to other
environmental resources that could be affected by the size and location
of fill material in valley fill sites. This is an inter-agency activity
being undertaken by EPA, the Corps, the Office of Surface Mining (OSM),
and the U.S. Fish and Wildlife Service (FWS), in cooperation with the
State of West Virginia.
In addition, on January 15, 2002, the Corps modified nationwide
Permit 21 (NWP 21), which is the CWA Section 404 general permit most
often used to authorize discharges of dredged or fill material
associated with surface mining activities. Under the revised NWP, the
District Engineer will make a specific determination on a case-by-case
basis that the proposed activity complies with the terms and conditions
of the NWP and that adverse effects to the aquatic environment are
minimal both individually and cumulatively. Under revised NWP 21, the
Corps also has clarified that it will require appropriate mitigation
for impacts to aquatic resources.
In light of regional concerns about impacts in Appalachia from
surface mining activities, Corps Headquarters has requested the
relevant District Engineers to establish regional conditions in
Appalachian States on the use of NWP 21 that are consistent with the
provisions of the Federal District court approved settlement in the
Bragg litigation in West Virginia, which generally limits use of NWP 21
for valley fills to watersheds draining 250 acres or less. As part of
this, the Corps will make a project-specific evaluation of the
cumulative loss of aquatic resources within the affected watershed. We
believe these NWP changes, and continued development of the
programmatic EIS, will further improve environmental protection with
regard to surface mining activities in Appalachia.
In addition to the CWA-related activities described above, the
Office of Surface Mining is responsible for developing the rules that
govern mountaintop removal coal mining under the Surface Mining Control
and Reclamation Act (SMCRA). Most Appalachian States administer these
rules through programs delegated to them by OSM.
RIVENBURGH DECISION
The regulatory uncertainty associated with the differing Corps and
EPA fill material definitions most recently has arisen again in
Kentuckians for the Commonwealth, Inc. v. Rivenburgh, in which
plaintiff challenged a Corps' Section 404 authorization under the then-
existing regulations for the discharge of overburden associated with a
mountaintop mining coal operation. Following initiation of this
lawsuit, the plaintiff moved for summary judgment on several grounds,
including the claim that the Corps lacked authority under the then-
existing Corps definition of fill material to authorize the placement
of valley fill in waters of the U.S. for purposes of waste disposal.
The government argued that the Corps' longstanding practice of
regulating valley fills under Section 404 was consistent with the CWA,
particularly in light of EPA's then-existing definition of fill
material as any pollutant that replaces a water with dry land or raises
the water's bottom elevation for any purpose. On May 6, the Government
informed the court that the Corps and EPA had completed rulemaking
reconciling the agencies' differing definitions which adopted an
effects-based approach to defining the term.
On May 8, 2002, the court issued a decision finding that the Corps
lacks the statutory authority to regulate any material discharged
solely for purposes of waste disposal. While the new regulation was not
challenged in this case, the court nonetheless stated that it was
inconsistent with the CWA and exceeded the agencies' legal authority.
The court decision enjoins the Corps from ``issuing any further Sec.
404 permits that have no primary purpose or use but the disposal of
waste.''
We believe that the court misconstrued the CWA and its legislative
history. EPA and the Corps explained in detail in the recent rulemaking
the legal and policy basis for the agencies' revised definition of fill
material, and we continue to believe that new definition is in full
accord with the CWA. In light of this, USDOJ has requested a stay of
the court's injunction because its economic and social impacts warrant
such a stay pending appeal. In addition, we have argued we will likely
prevail on the merits because (1) the Corps does have authority to
issue permits under CWA 404 to allow for the discharge of mining
overburden; (2) the court's approval of the Settlement Agreement in
Bragg bars relitigation of that issue; and (3) the Court's injunction
is overly broad. We also have requested that the court clarify the
scope of its injunction. In addition, intervenors, including the
Kentucky Coal Association, have moved to stay the injunction.
Plaintiffs oppose the stay and seek to expand the injunction. Briefing
was completed on May 28 and we are monitoring a decision now.
CONCLUSION
This rulemaking is about the need to reconcile differing regulatory
definitions so as to provide consistency and regulatory predictability.
In order to achieve that goal, the definition adopted is fully
consistent with EPA's existing definition and the Corps' longstanding
practice, and further ensures that material with the effect of filling
waters of the U.S. is regulated under the regulatory regime best
designed to deal with those effects--Section 404 of the CWA. This
concludes our testimony and we would be pleased to answer any questions
you might have.
______
Responses by Benjamin H. Grumbles and George S. Dunlop
to Additional Questions from Senator Lieberman
Question 1a. In your testimony, you described the revised
definition of fill material as ``consistent with the current practice
of the agencies.'' According to the final rule, examples of wastes now
eligible for Sec. 404 permits include, but are not limited to ``rock,
sand, soil, clay, plastics, construction debris, wood chips, [and]
overburden from mining or other excavation activities'' in addition to
``placement of overburden, slurry, or tailings or similar mining-
related materials'' are also to be permitted.
Does the Corps currently allow all of the types of waste material
listed in the new definition to be permitted under Sec. 404?
Response. Both under prior and current regulatory definitions, a
project proponent could apply for Sec. 404 permit to discharge any of
these materials into waters of the U.S.; however, the discharge of
these materials would not be authorized without a thorough review of
their potential impacts on the environment, as well as other aspects of
the public interest. Authorization would have to be conveyed either
through compliance with a Corps Nationwide Permit or Regional General
Permit, the terms and conditions of which are designed to ensure that
impacts are no more than minimal, or through an individual permit
process in which the effects are individually assessed. Please note
that the revised definition of the term ``fill material'' only
describes the materials that qualify for regulation under Sec. 404. It
does not confer any inherent authorization. All requirements of the CWA
fully apply to the review of applications for Sec. 404 permits.
Question 1b. Please provide the Committee with copies of all
individual and nationwide permits it has issued in the past 5 years
that allow these wastes to be placed in waters of the U.S. as ``fill.''
Response. The Corps maintains centralized permit data on the
acreage of waters of the U.S. that of any fill material, we can not
provide this information in response to this request, or the several
that follow. Although Corps District Offices might be able to produce
copies of the requested permits, this would have to be accomplished
through hand-searches of several hundred thousand file documents, which
would be prohibitively time-consuming and expensive.
Question 1c. Using your most recent available data, how many acres
of wetlands, ponds and lakes and miles of streams and rivers does the
Corps annually permit to be filled by coal mining overburden waste
material?
Response. See response to 1b above.
Question 1d. Using your most recent available data, how many acres
of wetlands, ponds and lakes and miles of streams and rivers does the
Corps annually permit to be filled by hardrock mining tailings or
similar mining-related materials?
Response. See response to 1b above.
Question 1e. Using your most recent available data, how many acres
of wetlands, ponds and lakes and miles of streams and rivers does the
Corps annually permit to be filled by other excavation waste material?
Response. See response to 1b above.
Question 1f. Using your most recent available data, how many acres
of wetlands, ponds and lakes and miles of streams and rivers does the
Corps annually permit to be filled by construction and demolition
debris?
Response. See response to 1b above. In addition, we know from
experience that the inclusion of construction and demolition debris as
fill material is not uncommon. Demolition debris such as brick,
concrete, and various quarry products is often used as stable fill
material in both aquatic and non-aquatic construction projects.
Question 1g. Using your most recent available data, how many acres
of wetlands, ponds and lakes and miles of streams and rivers does the
Corps annually permit to be filled by waste wood chips?
Response. See response to 1b above.
Question 1h. Using your most recent available data, how many acres
of wetlands, ponds and lakes and miles of streams and rivers does the
Corps annually permit to be filled by slurry waste material?
Response. See response to 1b above.
Question 2a. As the new definition states, this is not an
exhaustive list. What other types of wastes does the Corps already
permit to be dumped into waters as fill?
Response. Under the former Corps purpose-based definition of fill
material, any material proposed for a construction-related purpose
would have qualified for consideration for a Section 404 permit,
regardless of whether or not it was a `waste' by-product of some other
activity.
Question 2b. The preamble to the final rule even states that wastes
that may be ``chemically contaminated'' would be eligible for a
Sec. 404 permit. What chemically contaminated wastes does the Corps
currently permit to be placed in waters under the Sec. 404 program?
Response. The discharge of chemically contaminated dredged material
into waters of the U.S. has long been eligible for authorization under
Sec. 404 provided the discharge will comply with the applicable
environmental criteria. Although the Corps is obliged to accept such
applications, the subsequent permit process normally focuses on the use
of appropriate material testing (e.g., chemical and biological tests)
to identify the potential for adverse physical, chemical and biological
effects associated with the proposed discharge, and on exploring
methods of avoiding or ameliorating these adverse effects. If there is
reasonable assurance that adverse effects can be sufficiently avoided,
including chemically contaminated materials that are proposed for
discharge into waters of the U.S. as fill under the new definition.
Question 3. Did either of your agencies do an assessment of all the
likely or potential sources and amounts of all waste streams that
would, under the new definition, qualify for disposal as fill material
in waters of the U.S.? Please provide the Committee a list of the
universe of potential waste dischargers under the definition and the
amount of waste they generate each year.
Response. It is important to recognize that there were two
definitions of ``fill material'' at issue when this rulemaking was
undertaken. EPA's long-standing definition already used an effects-
based test to define fill material. Thus, the new rule, which also uses
an effects-based test, generally does not alter status quo from the
perspective of EPA's previous definition. The Corps' previous
definition used a primary purpose test in defining fill material. As a
result, the very same material being discharged as fill material in one
circumstance, under the Corps definition, would not be deemed fill
material when discharged for the primary purpose of waste disposal. The
consequence is that under the purpose-based definition virtually any
discharge or material has the potential to be either fill material or
excluded waste depending on the purposes/intentions of the discharger.
As explained in the preambles to the proposed and final rules, the
agencies undertook this rulemaking to eliminate uncertainties
associated with such a purpose-based test and to eliminate differences
in the agencies' definitions in a manner consistent with their general
practice in program implementation. In light of the above, we did not
definitions of a key jurisdictional term.
Questions 4a-b. You testified ``[s]ome waste (e.g., mine
overburden) consists of material such as soil, rock and earth, that is
similar in its characteristics and effects to `traditional' fill
material used for purposes of creating fast land for development. In
addition, other kinds of waste having the effect of fill (e.g., certain
other mining wastes, concrete, rubble) also can be indistinguishable
either upon discharge or over time from structures created for purposes
of creating fast land.''
Do the agencies agree or disagree that allowing mining overburden,
other mining wastes, concrete, rubble, construction and demolition
debris, tailings, slurries and other materials placed in waters for the
purpose of waste disposal will result in more streams, wetlands and
other waters being filled than if these materials were not permitted in
waters for disposal purposes?
How many more acres of wetlands, ponds and lakes and miles of
streams and rivers will be filled with waste under the new rule as
compared to a rule that retained (and enforced) a waste disposal
exclusion?
Response. As we have indicated, the agencies do not believe that
the revised rule will significantly alter current practice or result in
more regulated waters being filled than was the case prior to the
rulemaking. In fact, the agencies continue to take steps to improve the
implementation of the Section 404 program in an effort to enhance
protection for the Nation's waters. The Corps is currently moving to
adopt regional conditions on the use of NWP 21 in Appalachian states
consistent with the Bragg settlement agreement currently in place in
West Virginia until the interagency stream assessment protocol is
available for use throughout the entire Appalachian region. Since those
limits were adopted in West Virginia in 1998, as indicated in our
testimony the average size and number of valley fills has been reduced
by nearly 25 percent. In addition, the agencies will continue to
prepare their programmatic environmental impact statement evaluating
the environmental effects of mountaintop coal mining practices in
Appalachia. As a ``programmatic'' evaluation, the EIS is intended to
identify areas where we can improve the implementation of Federal
programs under the Surface Mining Control and Reclamation Act (SMCRA)
and the Clean Water Act (CWA) applicable to the environmental review
and permitting of surface coal mining operations. We are confident that
this EIS will provide the technical and scientific bases to implement
more effective measures for protecting human health and the
environment.
Question 5a. When asked by a reporter on April 22 about the then-
imminent rule change Administrator Whitman stated that the rule change
``would codify what's going on and wouldn't allow any new activity . .
. it wouldn't allow anything new, any new operations.'' (Emphasis
added.)
What did the Administrator mean by that?
Response. The Administrator's quote is emphasizing two key aspects
of the ``fill material'' rule that were discussed in the preamble to
that rule and our recent testimony before the Subcommittee. First, the
rule does not substantively alter the agencies' current regulatory
practice. In adopting EPA's longstanding effects-based approach for
defining fill, the agencies' intent was to minimize changes in the
nature of discharges that were being regulated under the Section 404
and 402 permit programs. Moreover, the agencies' revision to the
definition of fill material is not intended to allow any new categories
of discharges to take place. The Administrator's statement is
consistent with these two points.
Question 5b. Is EPA saying that not a single new individual,
company or industry will seek to take advantage of this rule change to
apply for waste disposal permits from the Army Corps in any water of
the U.S.? That no waste fill will occur in any waterway not already
filled? Is that what EPA means by ``no new activity?''
Response. Any party may seek to apply for a permit under Section
404 that does not mean any party will obtain a Section 404 permit,
because the environmental criteria under Section 404 and the Corps
public interest review must be satisfied. Nonetheless, for the first
time, the rule clarifies that the term ``fill material'' does not
include trash or garbage. The Corps will, however, continue to accept
applications under Section 404 for proposed discharges of material that
fall under the definition of ``fill.'' The characterization of ``no new
activity'' means, as we have previously stated, that the rule change
will not generally allow new categories of discharges to take place.
Question 6a. NEPA requires agencies of the Federal Government to
prepare an environmental impact statement (``EIS'') for all ``major
Federal actions significantly affecting the quality of the human
environment'' including ``new or revised agency rules, regulations,
plans, policies, or procedures.'' NEPA requires that the environmental
impacts of a major Federal action must be evaluated before the agency
decides whether or how to proceed.
I am concerned that the Corps appears not to have complied with
these basic requirements of NEPA. It did not prepare an environmental
impact statement for this rule despite its nationwide effect and the
obvious harm caused when wastes bury waters. Instead, the Corps
prepared an Environmental Assessment (EA) concluding--without reference
to anything other than its own unsubstantiated assertions--that the
rule change does not constitute a major Federal action significantly
affecting the quality of the human environment. Not a single study or
fact about the environmental effects of this rule is cited to support
this conclusion.
Please provide the committee with copies of all studies, reports,
data or other facts relied on to support the claim that the rule change
will have ``no significant effect on the human environment.''
Response. First, as previously noted, the rule does not
substantively alter current regulatory practice. Furthermore, the Corps
concluded that since the rule change only defines the kinds of
materials that are subject to regulation under Sec. 404 of the CWA as
``fill material,'' it does not authorize any activity, or cause or
allow any change in the environment. Effects on the human environment
may occur when the new definition is applied in actual Sec. 404 permit
situations, when the issuance of the Corps permit is actually being
contemplated. At those times, regulated activities that the Corps
intends to authorize under Sec. 404, including the discharge of
materials that qualify as 'fill material' under the new definition, are
subject to applicable NEPA requirements. The definition change does not
convey any exemption from NEPA requirements in any Sec. 404 situation.
In light of this, determination regarding whether an EIS will be
required typically does not take place until all project modifications
designed to avoid, minimize and mitigate potential adverse effects on
the environment have been considered--the point at which the
prospective environmental effects are no longer merely speculative.
believes that, in the same way, determinations related to the need for
an EIS should be conducted at the point where the new definition of the
term ``fill material'' is actually applied in a permit situation, when
actual environmental effects are reasonably predictable.
Question 6b. The EA states one of the reasons the Corps concluded
it did not need to do an EIS is that the rule change would be
consistent with current agency practice. Please provide the committee
with copies of all studies, reports, data or other facts relied on to
support the claim that all of the waste materials that would be allowed
to be disposed of in waters under the new rule are already permitted by
all Corps districts under the Sec. 404 program.
Response. The statement referred to was based on the considered and
informed professional judgment of the Corps officials who prepared and
approved the rule under discussion. Collectively, these officials have
decades of experience in overseeing and directing the implementation of
the Section 404 regulatory program. This experience includes frequent
contact with District-level personnel regarding issues that arise in
individual permit applications and preparation of periodic regulatory
guidance to ensure consistent practice across Districts. Also see
response to 6a.
Question 6c. Please provide any legal analyses or court decisions
relied on by the Corps in preparing the EA that support the theory that
a change in long-standing regulations, even if ``consistent with agency
practice,'' does not require a true environmental analysis--one that
actually analyzes the effects on the environment--or an EIS.
Response. As explained in the proposed and final rule's preamble,
the new definitions are consistent with EPA's long-standing effects-
based definition and are generally consistent with current practice.
Moreover, the revised definitions do not authorize or allow any
discharges to waters of the U.S., or cause environmental effects of any
sort. These facts fully support decision not to prepare an EIS for the
rulemaking. See response to 6a for further discussion.
Question 6d. The EA states one of the reasons the Corps concluded
it did not need to do an EIS is that the Corps prepares an EIS for each
of its permit decisions. Currently, what percentage of permits and
approvals for activities under the Sec. 404 program are subject to an
EIS? What percentage of the approvals under the nationwide permit
program are subject to an EIS? Currently, the Corps is working on a
draft programmatic EIS for the NWP program. Does this programmatic EIS
study the environmental effects of allowing waste materials, including
but not limited to coal mining wastes, to be placed in waters as
``fill''?
Response. As stated in the EA, the Corps prepares appropriate NEPA
documentation for all of its permit decisions. The percentage of Corps
Sec. 404 permit authorizations that require the preparation of an EIS
under NEPA is low (i.e., less than 1 percent). This is because most
permitted activities do not result in significant environmental impacts
and hence do not require an EIS under NEPA. However, all permit
decisions are subject to NEPA requirements. It is through the
application of these requirements that the need for an EIS, or other
appropriate NEPA documentation is decided.
The purpose of that programmatic EIS is to evaluate the NWP program
processes and procedures to ensure that NWP program authorizes only
those activities with minimal adverse effects on the aquatic
environment, individually and cumulatively. The programmatic EIS will
also examine and compare programmatic and procedural alternatives to
the NWP program. However, the programmatic EIS does not examine impacts
associated with specific NWPs, or impacts of individual activities
authorized by NWPs. The Corps, together with EPA and other Federal and
State agencies, is also developing a programmatic EIS on mountaintop
mining/valley fills to provide environmental impact information as well
as recommendations for appropriate program revisions to address these
impacts and strengthen environmental protection.
Question 7. You state in your testimony ``The CWA reflects a
national commitment to protect the nation's aquatic resources, but it
establishes that commitment in a context that also recognizes that our
waters are used for a variety of purposes. The CWA establishes
permitting programs that are designed to strike the appropriate balance
between those competing purposes. ``
Section 301 of the Act prohibits the discharge of pollutants into
waters of the U.S., except where such discharges are authorized under
either Sec. 402 or Sec. 404.
Is it your testimony that all types of discharges of pollutants
into the nation's waters are to be allowed under one of the permitting
programs, but that no categories of discharges--such as filling waters
completely with waste materials--should be flatly prohibited under
Sec. 301 and the goal of protecting the integrity nation's waters?
Response. We agree that Section 301 prohibits discharges except
where such discharges are authorized under either Sec. 402 or Sec. 404.
Our testimony did not indicate that all types of discharges are
allowable under the CWA, but rather that the permitting programs are
designed to evaluate when the discharge of certain pollutants may be
appropriate. Specifically, the Section 402 program is not designed to
address discharges that have the effect converting waters of the U.S.
to dry land, nor does it require an evaluation of alternatives to a
proposed discharge or mitigation for unavoidable impacts. In contrast,
the Section 404 permitting program is designed to address the potential
conversion of waters to non-waters and thus specifically addresses such
effects as well as ways to avoid, minimize, and compensate for such
impacts. Because of such provisions, Section 404, is the appropriate
regulatory regime for discharges that have the effect of filling waters
of the U.S.
Question 8. One of the goals of the Clean Water Act is to eliminate
the discharge of pollutants into waters of the U.S., including the
discharge of dredged materials into waters as soon as possible. The
permitting programs are exceptions to the ``no discharge'' goal, but
clearly Congress intended discharges would not just be permitted to
continue but that they would be eliminated whenever technically
feasible. Discharges that threaten the physical, chemical and
biological integrity of waters should not be allowed. How does your
recent change to the definition of fill help to achieve this goal?
Response. The revised definition of fill material is generally
consistent with EPA's long-standing effects-based approach and past
regulatory practice. Moreover, because various types of trash or
garbage are generally not appropriate to use for fill material in
waters of the U.S., and landfills and other approved facilities for
disposal of trash or garbage are widely available, the final rule was
modified to add an exclusion of trash and garbage from the definition
of ``fill material.'' Section 404 and its implementing regulations
provide for evaluation of impacts associated with filling waters of the
U.S., as well as whether there are practicable alternatives to such
discharges, and authorize discharges only where they will not cause or
contribute to significant environmental degradation. The revised
definition of ``fill material'' is consistent with the goals of the
Act, and as indicated in our testimony, the use of an objective
``effects-based'' standard will yield more consistent results in
determining what is ``fill material'' and provide greater certainty in
the implementation of the Act.
Question 9. Federal regulations require the States to designate
water quality standards, which include appropriate water uses that are
to be achieved and protected. 40 C.F.R. Sec. 130.3. A state may not
adopt water quality standards that are less stringent than the Federal
standards established by the Clean Water Act. This is because the Clean
Water Act ``provides a Federal floor, not a ceiling on environmental
protection.'' Dubois v. U.S. Dept. of Agriculture, 102 F.3d 1273, 1300
(1st Cir. 1996), cert. denied, 521 U.S. 1119 (1997). Thus, Federal
water quality standards are the floor below which state water quality
standards may not fall. Federal regulations clearly state that ``[i]n
no case shall a State adopt waste transport or waste assimilation as a
designated use for any waters of the United States.'' 40 C.F.R.
Sec. 131.10(a). As a result, no waters of the United States, regardless
of their location, may be used for waste transport or assimilation.
How do EPA and the Corps reconcile the new rule--which would allow
so much waste in waters that the waters are buried--and the Federal
rule forbidding waste transport or waste assimilation as a designated
use for any water?
Response. The definition of fill material clarifies what types of
material are subject to the Section 404 permitting program and does not
alter State water quality standards or Federal water quality standards
regulations dealing with designated uses. Section 404 was designed to
address discharges that have the effect of filling waters of the U.S.,
i.e., converting waters to non-waters. In adopting Section 404,
Congress recognized that such filling of waters could be permitted, but
wanted to ensure that it was conducted in a manner that minimized
adverse environmental impacts. This is why, among other provisions, the
Act requires that before a Section 404 permit can be issued, any
potentially affected state must certify that the permit will not result
in a violation of its water quality standards. The revised regulation
does not, in any way, alter this requirement. Under the revised
regulation, as previously stated, discharges of material that have the
effect of filling waters of the U.S. are only allowed if all relevant
provisions of the CWA are satisfied and a Section 404 permit obtained.
Question 10. Is it your testimony the Army Corps of Engineers and
the U.S. Environmental Protection Agency are unable to discern when a
business or other entity is trying to dispose of waste as opposed to
filling a wetland or a stream for a constructive purpose?
Response. No. The agencies are often required to make a
determination of project purpose (in the evaluation of alternatives,
for example) but this determination can be difficult to make and the
government and applicant sometimes disagree. The more relevant concern
regarding the waste versus fill debate, however, is what is the most
environmentally effective and programmatically consistent way to
determine how discharges are to be regulated under the Act. Our strong
conclusion, based on over 30 years of program administration, is that
defining fill based on its physical effect ensures the most effective
environmental review of proposed discharges, provides the most
consistent and predictable application of CWA permit programs, and has
the added benefit of avoiding the often difficult determination of the
applicant's intent. EPA and the Corps also believe that this approach
best reflects the purposes of the Clean Water Act as it seeks to
distinguish discharges of dredged or fill material under Section 404
from all other point source discharges.
Question 11. You testified that the Section 404(b)(1) Guidelines
``require . . . evaluation of alternatives to the discharge.'' How do
the agencies consider ``alternatives to the discharge'' if they are not
able to discern the purpose of the discharge? In other words, if you
cannot tell if the purpose of a proposed ``fill'' is waste disposal or
construction, how can you evaluate alternatives--such as sending the
materials to a landfill or construction of the facility in an dry,
upland area?
Response. The agencies are required, in the context of an
individual permit review, to evaluate project purpose as a part of the
Section 404(b)(1) Guidelines alternatives analysis. The Corps issues,
on average, 3,000--4,000 individual permits annually where this
analysis is required versus nearly 80,000 General permits each year
where the Corps is not making that kind of evaluation. The
determination of project purpose is often difficult and contentious
because it is a critical aspect of establishing the scope of
alternatives review. As we stated above, however, our decision to rely
on EPA's long-established effects based definition of fill material was
not based on the difficulties associated with discerning project
purpose. Rather, it was based on our firm belief that this approach
provides for the most effective environmental review of proposed
discharges and ensures greater consistency and predictability in EPA
and Corps permit programs. We also made the point in the preamble to
the rule, however, that this approach has the additional programmatic
benefit of avoiding the often difficult and contentious determination
of an applicants project purpose in every case.
Question 12. You testified that ``because Section 404 was intended
by Congress to provide a vehicle for regulating materials whose effects
include the physical conversion of waters to non-waters or other
physical alterations of aquatic habitat, the Section 404(b)(1)
Guidelines go beyond . . . a water quality based approach to require
careful consideration of the effects of the discharge on the aquatic
ecosystem as a whole, as well as evaluation of alternatives to the
discharge and measures to minimize and compensate for unavoidable
adverse effects.'' You also testified that the Sec. 404 the permit
process ``carefully screens proposed discharges and applies the
404(b)(1) Guidelines, which provide a comprehensive means of evaluating
whether any discharge of fill, regardless of its purpose, is
environmentally acceptable.''
Please describe in detail how these provisions have been applied to
the permitting of the disposal of coal mining overburden in streams.
Specifically, what effects on the aquatic ecosystem as a whole does the
Corps consider when it issues permits or authorizations under Sec. 404
for valley fills? What alternatives does the Corps require the coal
companies to utilize? How do the coal companies ``compensate for
unavoidable adverse effects''?
Response. When processing any Section 404 permit, potential direct
and indirect impacts to the aquatic ecosystem are included in the
evaluation. Coal companies, like any other applicant for a Section 404
permit, must show that they have avoided and minimized adverse effects
to the maximum extent practicable. Those impacts that are unavoidable
must be mitigated. mining coal is constrained by the fact that a mine
must be located at a coal source. However, coal companies are expected
to consider alternative sites for placement of excess overburden and to
select sites that minimize adverse impacts to the aquatic environment.
The Corps stream assessment protocols currently under development will
assist this analysis. In addition, coal companies are required to
mitigate for permanent impacts to the aquatic resource and various
options are available for mitigation. Specific examples include:
streams that have been degraded due to previous mining activities can
be restored (e.g., sediment ponds removed, channels reconstructed),
sources of sediment can be controlled, riparian and wetland vegetation
planted, and sources of acid mine water can be neutralized to improve
the overall watershed.
As discussed above, while compensatory mitigation may include
restoration of degraded streams or creation of new ones, it may also
include other activities (e.g., elimination of acid mine drainage from
previously abandoned mine sites) that enhance general watershed health.
Question 13. A document prepared by the MTM/VF EIS Steering
Committee, ``Problems Identified/Confirmed/Inferred by Technical
Studies,'' (August 15, 2002 working draft) concludes that it is
``difficult if not impossible to reconstruct free flowing streams on or
adjacent to mined sites.''
Do the EPA and Corps agree with this conclusion? If not, please
explain how you think new, free flowing streams can be created to
compensate for the stream miles filled and please provide to the
Committee the scientific literature you rely upon for your conclusion?
If you do agree that this is impossible, how does (or will) the Corps
ensure that the miles of streams filled are compensated for?
(Preserving other streams or waters offsite does not replace lost
streams and would still represent a net loss of waterways.) How is this
destruction of streams consistent with the goal of maintaining or
restoring the physical, biological, or chemical integrity of streams?
Response. In the course of generating technical information for the
ongoing EIS, the agencies have been evaluating the potential for stream
restoration and creation on or adjacent to mines sites. Certain
circumstances in Appalachia lend themselves more to successful
restoration of stream function than others. As part of the EIS process,
the agencies plan to publish for public comment the information
relevant to stream impacts and potential restoration and creation,
including relevant literature citations. Avoidance and minimization
practices will be discussed as well. As discussed above, while
compensatory mitigation may include restoration of degraded streams or
creation of new ones, it may also include other activities (e.g.
elimination of acid drainage from previously abandoned sites) that
enhance general water shed health.
Question 14. According to the Mountaintop Mining EIS Presentation
to the EPA Office of Water on March 5, the EIS studies show that
macroinvertebrate indices indicate that stream segments located
downstream of valley fills are being impaired, stream chemistry
monitoring efforts show significant increases in conductivity,
hardness, sulfate, and selenium concentrations downstream of valley
fills. Other documents indicate that EPA's stream chemistry study found
``The selenium data clearly show 'hot spots' with higher concentrations
of selenium in each of the five watersheds [that were studied] and
located downstream of 'Filled' sites ONLY. There are 66 violations of
the stream water quality criteria identified and each is at a Filled
site. No other category of site had violations of selenium!'' Email
from Gary Bryant (EPA WV) to William Hoffman (EPA Region 3), March 27,
2002 (capitalization and exclamation point in original). Selenium is a
metalloid that is released to water from both natural and anthropogenic
sources; it can be highly toxic to aquatic life at relatively low
concentrations, according to EPA.
How has the Corps ``carefully considered'' these kinds of effects
on the aquatic ecosystems when it issues Sec. 404 approvals for valley
fills? Has the Corps issued permits or approvals for valley fills even
when downstream, water quality standards will be violated?
Response. Section 404 permits address the placement of rock and
other material in the heads of valleys, as well as material placed for
the berms, or dams, used to create associated sedimentation ponds.
Under the Act, Section 404 permits are subject to State certification
under Section 401 as to compliance with, among other things, State
water quality standards, and the Corps primarily relies on the Section
401 certification process to address such impacts (see 33 320.4(d)).
The actual effluent discharges into waters of the U.S. from
sedimentation ponds requires a CWA section 402 permit, and such permits
are to contain effluent limitations consistent with applicable State
water quality standards.
Issues specifically related to selenium are being considered as the
Draft EIS is developed, and will be available for public comment.
Question 15. Dr. Bruce Wallace testified ``Elimination of small
streams from the drainage network results in increased downstream
loading of nutrients and degradation of water resources. We should be
most concerned with the valuable ecosystem services that are lost when
streams are buried.''
Do EPA and the Corps agree with Dr. Wallace's conclusion? If not,
please provide the Committee with studies relied on by the agencies
that reach a contrary conclusion.
Response. EPA and the Corps are concerned with the impact of the
potential loss of small streams, including such potential results as
increased loadings of downstream nutrients. Review of such potential
impacts is incorporated in the CWA evaluations that are conducted when
discharges of this nature are proposed. Several programmatic analyses
along these lines are also being carried out as part of the EIS
process. The agencies are evaluating a suite of potential impacts to
streams for review and comment by the public when the Draft EIS is
published.
Question 16. Please describe in detail what studies the Corps
usually performs or requires the coal mining companies to perform and
submit as part of its application for a permit or approval under
Sec. 404 for a valley fill to meet the requirements of the 404(b)(1)
Guidelines (effects on the aquatic ecosystem, alternatives,
minimization, compensation).
Response. The Surface Mining Control and Reclamation Act already
requires a substantial amount of the information necessary for
Guidelines compliance evaluations as part of the application package.
This includes information on water quality, hydrology (flooding),
endangered species, and historic properties, as well s a reclamation
plan. While the information required to facilitate the Corps
determination regarding project compliance with the Guidelines and the
public interest is in the regulations, the Corps is currently preparing
specific guidance for coal companies, consultants, etc., that outlines
the information which is currently not part of the SMCRA permit review.
This additional information includes wetlands linear feet of ephemeral,
intermittent, and perennial streams proposed to be impacted (both
temporary and permanent), locations of sediment control structures, and
a summary of the condition of the aquatic resources on the site. This
summary includes stream assessments using consideration of foreseeable
future actions (e.g., logging and road construction), and results of
benthic studies. Information obtained through application of the Corps
stream assessment protocols will also be incorporated into this
summary, when completed no practicable alternatives to the proposed
discharge. Compliance with Sections 402 and 401 of the Clean Water Act
is also required.
Question 17. Of the 5858 valley fills constructed since 1985,
according to the March 5 Mountaintop Mining EIS Presentation, how many
received individual permits from the Corps under Sec. 404? How many
were approved under the general permit, Nationwide Permit (NWP 21)?
Response. There are 5 Corps districts (Huntington, Pittsburgh,
Louisville, Norfolk and Nashville) that regulate the discharge of fill
material associated with mountaintop mining in the Appalachian coal
region. Until recently, authorizations for valley fills occurred almost
exclusively under NWP 21. However, this Administration is working to
improve regulation of valley fills. For example, the settlement
agreement for the court case Bragg v. Robertson generally limited the
use of NWP 21 in West Virginia by setting an impact threshold of 250
acres (valley fills extending to that point where the stream drained
more than 250 acres generally require an individual permit). Under this
Administration, the five Corps districts listed above will be placing
three special conditions on NWP 21 which: (1) set the aforementioned
250 acre threshold for all valley fills not just those in West Virginia
(until additional information is obtained via the Corps Stream
Assessment Protocols), (2) evaluate cumulative impacts to aquatic
resources as part of the application process and (3) require
appropriate mitigation, over and above any that may be required under
SMCRA or other State authorities, for all permanent fills. We also are
continuing with efforts that were previously underway to develop a
programmatic EIS evaluating further ways to improve regulation of
mountaintop mining.
Question 18. Does the Corps apply the Sec. 404(b)(1) Guidelines to
valley fills approved under NWP 21 as part of the ``careful screening
`` process for proposed discharges described in your testimony?
Response. On a case-by-case basis, when evaluating whether a
project may be authorized under NWP 21, the Corps must determine that
the discharge of excess overburden fill material into higher value
streams, etc. has been avoided and minimized to a degree that supports
the Corps conclusion that the site specific and cumulative impacts to
the aquatic environment are minimal. The Corps Stream Assessment
Protocols, currently under development, will further support these
determinations. In addition, the Corps has improved NWP 21 by further
requiring additional mitigation for aquatic resource impacts (i.e,
beyond that required by the SMCRA process) to assure that impacts are
within the minimal effects threshold.
Question 19. Is it the position of the EPA that the valley fills
approved by the Corps under NWP 21 has no more than a minimal adverse
effect on the environment, both individually and cumulatively? Is it
the position of the EPA that the effect of valley fills is
``environmentally acceptable''?
Response. While EPA has raised concerns, in specific circumstances,
about the environmental impacts associated with the placement of valley
fills in waters of the U.S., the Agency has consistently concluded that
valley fills involve the discharge of fill material and are
appropriately regulated by the Corps under CWA Section 404. EPA has
worked with the Corps to improve the application of NWP 21 to the
regulation of mining related discharges, and is continuing those
efforts. We have also coordinated with the Office of Surface Mining
(OSM) to improve the environmental review of proposed coal mines under
the Surface Mining Control and Reclamation Act, the review upon which
NWP 21 relies to a great extent. Current data show that, as a result of
this coordination, the number and size of valley fills, and their
associated environmental impacts, have been reduced. The Corps is
conducting more reviews of proposed coal mines under their individual
permit program. The first Environmental Impact Statement under the
National Environmental Policy Act for an individual surface coal mine
in West Virginia is being prepared by the Corps to support its Section
404 permit process. In addition, EPA, the Corps, OSM, U.S. Fish and
Wildlife Service and the State of West Virginia are currently
developing a programmatic environmental impact statement to evaluate
the environmental effects of surface coal mining and to make
recommendations for improving the Federal programs responsible for
environmental review of these mining operations. EPA and the Corps have
committed to making improvements to the Section 404 permit program in
response to this evaluation, including further revision, if necessary,
of NWP 21.
Question 20. In your testimony, you state, ``this rulemaking has
been incorrectly painted as being designed to facilitate the
continuation of mountaintop mining. In actuality, it was undertaken in
light of years of past experience in order to enhance regulatory
clarity and improve environmental protection.'' What formal activities
to change the definition of ``fill material'' did the Corps and EPA
undertake prior to the court's decision in Bragg v. Robertson? In
actuality, didn't the Department of Justice file affidavits from EPA
and the Corps with the Federal district court hearing the Kentuckians
For The Commonwealth v. Rivenburgh case stating that the agencies were
in the process of changing the fill rule in order to convince the court
that it need not rule on the question of whether valley fills were
being permitted in violation of the existing regulatory decision? How
then could the rule change not be directly related to the concerns over
mountaintop removal coal mining waste disposal practices?
Response. EPA and the Corps have worked for many years, virtually
from the point that the Corps adopted a different definition of ``fill
material'' in 1978, to reconcile for their field staff and the public
how the differing definitions would be applied. The agencies have
prepared guidance, written MOA's, and defended their regulations in
court in an effort to apply their differing definitions in a
consistent, fair and environmentally protective manner. These efforts
were proceeding long before concerns regarding the regulation of
mountaintop removal mining gained attention. It is correct that in
April, 2000, the previous administration proposed the ``fill'' rule to
resolve the various problems that were continuing to arise as a
consequence of the differing definitions of fill, including the 1998
9th Circuit decision in Resource Investments, Inc. v. U.S. Army Corps
of Engineers involving the regulation of a solid waste landfill, and
the settled Southern District of West Virginia case, Bragg v.
Robertson, which challenged the Corps regulation of a mountaintop coal
mine. That case was settled, in part, on the basis that the Corps would
continue to review mining associated discharges in waters of the U.S.
under CWA Section 404. As with the positions the government took in
those cases as well as more recently in KFTC v. Rivenburgh, the goal
was to defend successfully the most environmentally effective
administration of our programs, not to facilitate the continuation of
any particular practice.
Question 21a. In your testimony you say ``neither this rule nor the
CWA are the principal vehicle provided by Congress for regulating
mountaintop mining activities. Rather, the responsibility was delegated
to the Secretary of the Interior, through the Office of Surface Mining,
under the Surface Mining Control and Reclamation Act (SMCRA).''
Notably, SMCRA was passed by Congress with a savings clause specifying
that nothing in SMCRA limits or preempts any provision of the Clean
Water Act, so clearly, by passing SMCRA, Congress did not intend to
limit the responsibility of the EPA to protect the nation's waters from
the potentially harmful effects of coal mining.
What role, if any, did officials from the Department of Interior
play in the change of the regulatory definition of fill material?
Response. Two agencies from the Department of the Interior, the
U.S. Fish and Wildlife Service and the U.S. Office of Surface Mining,
participated in informal discussions during the rulemaking process to
define the term ``fill material.'' Neither agency, however, submitted
written comments to EPA or the Corps in response to draft versions of
the rule and preamble circulated for review among the Federal agencies.
The only group within the Department to submit written comments was the
Bureau of Reclamation, Yuma Area Office, who wrote in response to the
April 2000 Federal Register notice of proposed rulemaking.
Question 21b. Did any Interior Department official formally or
informally advocate for the change in the definition of fill material
within the administration or to the Corps or EPA? If so, please
identify the individual(s) and describe the circum-
stances.
Response. Department of the Interior representatives participated
in informal discussions that occurred among the Federal agencies during
the process to develop the definition of ``fill material,'' including
discussions regarding the development of the agencies' April 2000
proposed rule and the May 2002 final rule. Informal coordination among
the Federal agencies is a valuable and routine aspect of the
preparation of national wetlands policies, guidance, rules, etc. There
was general agreement among the Federal agencies, including Department
of the Interior representatives, with regard to the Corps and EPA
decision to develop a single definition of fill. The only written
comments received from the Department of the Interior in association
with the interagency discussions or in response to versions of the rule
and preamble circulated among the agencies for review, were comments
sent by the Bureau of Reclamation, Yuma Area Office, in response to the
agencies April 2000 Federal Register notice of proposed rulemaking.
Question 21c. Did any Interior Department official prepare any
documents, analysis, memoranda, draft response to public comments, or
other materials in connection to this rule change? If so, please
identify the individual(s) and provide the Committee with all such
documents.
Response. The only document, analysis, memoranda, draft response to
public comments, or other materials in connection with the rule change
prepared by an Interior Department official that was received by EPA or
the Corps is a comment letter sent by the Bureau of Reclamation, Yuma
Area Office, in response to the agencies' April 2000 Federal Register
notice of proposed rulemaking. That letter is dated June 8, 2000, and
is enclosed for your consideration.
Question 22. In your testimony you state: ``In light of regional
concerns about impacts in Appalachia from surface mining activities,
Corps Headquarters has requested the relevant District Engineers to
establish regional conditions in Appalachian States on the use of NWP
21 that are consistent with the provisions of the Federal District
court approved settlement in the Bragg litigation in West Virginia,
which generally limits use of NWP 21 for valley fills to watersheds
draining 250 acres or less. As part of this, the Corps will make a
project-specific evaluation of the cumulative loss of aquatic resources
within the affected watershed. We believe these NWP changes, and
continued development of the programmatic EIS, will further improve
environmental protection with regard to surface mining activities in
Appalachia.''
Response. The language is an accurate quotation taken from our
written testimony.
Question 23. In the economic study prepared recently for the EIS,
limits on valley fills to 250 acres and 35 acres had similar almost
imperceptibly different economic effects on the price of coal, the
price of electricity and the amount of coal that could be mined during
the 10-year study period.
Given that limiting valley fills to 35 acres or less would
undoubtedly have a greater environmental benefit than limiting them to
250 acres in size, on what scientific or economic basis is the Corps
recommending the 250-acre limit?
Response. The 250 acre limit for valley fills is the threshold
currently being applied by the Corps on the use of NWP 21. Proposed
valley fills larger than 250 acres are reviewed under the Corps
Individual Permit process. This threshold was implemented as part of
the 1998 settlement agreement in Bragg v. Robertson and was accepted by
the Corps, plaintiffs, and the Federal District court as the most
appropriate threshold based on the information available at the time.
Data on valley fills available since 1998 indicate that the average
size and number of valley fills have decreased in West Virginia with a
commensurate reduction in stream impacts when compared to data prior to
1998. The interagency team currently developing the draft programmatic
EIS on mountaintop mining is considering several studies that compare
the economic impacts and environmental effects of alternative
limitations on the allowable size of valley fills. The agencies
continue to evaluate the results of these studies and have thus far not
reached any conclusions about an appropriate final threshold.
Question 24a. On Monday, June 3, the owners of the mine that is the
subject of the Kentuckians For The Commonwealth lawsuit wrote to the
Corps stating that they could mine the entire site without any new
valley fills in waters of the U.S. In its letter, Beech Fork Processing
Inc. said it could comply with Chief US District Judge Charles H. Haden
II's ruling. Along with the letter, Beech Fork submitted to the Corps a
pre-construction notice stating the company's intent to re-engineer its
mine site without dumping waste into streams. The manager of
engineering for Beech Fork said in the letter that his company had
purchased an old mine site in the middle of its eastern Kentucky
property that ``provides substantial acreage for spoil disposal out of
the waters of the United States.'' This letter raises several
questions.
How is it that the Corps, which you have testified studies
alternatives to placing waste in waters of the U.S. and requires fills
to be minimized when they cannot be avoided, permitted this mine to
have 27 valley fills that would, in total, bury 6.3 miles of streams?
In the careful permitting process you described in your testimony, how
is it that the existence of alternative sites for waste disposal was
not discovered earlier?
Response. The Corps original authorization to the Martin County
Coal Company, the original project proponent, was based on
jurisdiction/impact information that proved to be inaccurate.
Subsequent negotiations with Beechfork Processing, Inc., the new
project proponent, resulted in reduced and/or mitigated impacts to the
aquatic environment, in recognition of additional information on
jurisdiction and aquatic resource impacts. The NWP 21 Beechfork
verification letter was modified to reduce the permanent impacts to
aquatic resources to two valley fills. When Beechfork's original
verification letter was modified in October of 2001, the company looked
for land to purchase that they did not own at the time to provide a
practicable site for waste disposal. The Beech Fork letter to the Corps
of Engineers Huntington District dated June 3, 2002, does not suggest
that they expect to ``mine the entire site without any new valley fills
in waters of the United States'' as this question states. Instead, that
letter states in paragraph 2 that ``Using old mining area, and the fact
that twenty-three of the twenty-seven drainages in the existing
permitted area already hold fill from either prior highway construction
or the old mountain top removal operation, Beech Fork has confidence
that it may be able to mine the entire reserve by placing fills with a
constructive purpose in waters of the United States.'' (Emphasis added)
Question 24b. According to John Morgan, a mining engineer who
submitted an affidavit on behalf of the plaintiffs in the current
lawsuit, potential alternative sites for placing waste include
previously mined areas that were not returned to their approximate
original contour, previously disturbed areas such as old refuse
impoundments, side hill fills, and more distant disposal locations; in
addition, companies can redesign the fill configuration and change
their mining equipment to reduce fill impacts. To what extent has the
Corps of Engineers studied these alternatives, either on a case-by-case
basis or regionally? If these alternatives were maximized at every
potential valley fill site, to what extent could dumping coal mining
waste in waters be avoided or minimized? Please provide the Committee
with all studies prepared by or for the Corps analyzing these
alternatives.
Response. The Army Corps of Engineers Standard Operating Procedures
for the Regulatory Program (October 15, 1999) outlines the appropriate
nature and extent of information and review that is necessary on a
project specific basis for determining compliance with the Section
404(b)(1) Guidelines' alternatives analysis. For activities covered by
a Nationwide permit, the Corps requires, as a condition to the use of a
Nationwide authorization, that the applicant take all practicable steps
to ensure that potential impacts are avoided and minimized. In
addition, the agencies are coordinating in the context of the
development of the programmatic mountaintop mining EIS to use the SMCRA
permit review process to ensure that environmental impacts associated
with valley fills are avoided and minimized. The agencies recognize
that considerable mining expertise is available in State SMCRA programs
upon which the Corps can better rely to examine effective opportunities
for avoiding and minimizing mining related environmental impacts. These
kinds of programmatic improvements will continue to help us to
strengthen the Section 404 review of proposed mining projects and
ensure more effective environmental protection.
The Beechfork situation was somewhat unusual in that there was a
site immediately adjacent to the active site that the company could
acquire. If other proposed mines have this same opportunity, then the
mine company would be required to evaluate this upland alternative and
to use it as an alternative to placing overburden in waters of the U.S.
unless the company demonstrated that it was not practicable within our
definition of ``available in terms of cost, logistics and technology''
Question 24c. The company states in its letter ``If it has the
right, Beech Fork would like to operate as originally authorized. If it
is determined that Judge Haden's order only applies prospectively and
not to Beech Fork's original authorization, or should Judge Haden's
decision be reversed on appeal, Beech Fork intends to operate as
initially planned to operate pursuant to its original authorization.''
How can the Corps allow the company to operate as initially planned--
burying over six miles of streams--after the company has admitted that
it has alternatives to dumping its wastes in the waters of the U.S.?
Would the Corps allow Beech Fork to operate under its initial approval
in the wake of this new information?
Response. As these questions correctly recognize, the Beech Fork
permit and the Corps review of that project are issues that go to the
heart of ongoing litigation in the Federal District Court of the
Southern District of West Virginia. We respectfully defer these
questions until that litigation is resolved. We would emphasize,
however, that efforts to avoid and minimize the placement of coal
mining materials in waters of the U.S. have improved in recent years,
and we expect those improvements to continue.
The Beech Fork letter to the Corps of Engineers Huntington District
dated June 3, 2002, does not suggest that they expect to ``mine the
entire site without any new valley fills in waters of the United
States'' as this question states. Instead, that letter states in
paragraph 2 that ``Using old mining area, and the fact that twenty-
three of the twenty-seven drainages in the existing permitted area
already hold fill from either prior highway construction or the old
mountain top removal operation, Beech Fork has confidence that it may
be able to mine the entire reserve by placing fills with a constructive
purpose in waters of the United States.'' (Emphasis added) Beechfork is
in the process of redesigning it's entire project to reduce impacts to
the aquatic resource. We have not yet seen their new plan, however, we
must be satisfied that their aquatic resource impacts have been reduced
to the fullest extent practicable and those adverse impacts which
remain must be fully mitigated.
Question 25a. I understand that the EPA, together with the Office
of Surface Mining (OSM), the Army Corps of Engineers, the U.S. Fish and
Wildlife Service, and the West Virginia Department of Environmental
Protection had spent or committed to spend about $4.5 million preparing
an Environmental Impact Statement on the environmental, social, and
economic impacts of mountaintop removal mining. I also understand that
in January 2001 Preliminary Draft EIS and extensive technical studies
included an inventory of valley fills, and analyses of the impacts of
valley fills on streams, wildlife, land use and the economy. I further
understand that the findings of this study included adverse impacts on
significant amount of stream lengths, aquatic life, stream chemistry.
The summary of technical studies found ``no scientific basis could be
established for arriving at an environmentally 'acceptable' amount of
stream loss.
How does the EPA reconcile this statement with the May 3 rule,
which essentially puts many more stream lengths at risk?
Response. The EIS agencies are in agreement that the status of the
preliminary draft EIS and technical studies are, as the title suggests,
both ``draft'' and ``preliminary'' and, as such, there is considerably
more work that is necessary before we would be comfortable reaching
conclusions about the nature and extent of environmental impacts that
can be correctly attributed to surface coal mining practices in
Appalachia. The quote from the study summary used in this question
refers to the selection of a ``minimal impact'' threshold under NWP 21
as a potential alternative to the 250 acre figure used currently and
the technical challenge of selecting a single, scientifically
supportable number that is appropriate for that threshold. It is not a
broad reference to the environmental acceptability of placing mining
materials in streams. The agencies are eager to complete this EIS and
to implement improvements to our programs to address environmental and
social concerns that are identified. Until this public process is more
complete, however, we are not in a position to reach final conclusions
on what changes to implement.
The relationship of the definition of ``fill material'' rulemaking
and the EIS is an important one and we appreciate the opportunity to
clarify this question. The decision to prepare this EIS is a provision
of the 1998 Settlement Agreement in Bragg v. Robertson that was
accepted by the court and settled plaintiffs' claims against the Corps.
One of those claims was that the Corps lacked the authority to regulate
coal mining waste under CWA Section 404 as ``fill material'' and that
these discharges should instead be regulated under CWA section 402. In
settling this issue, the plaintiffs and court explicitly recognized
that the agencies would continue to regulate, as they had for many
years, discharges of coal waste as ``fill material'' under Section 404.
This recognition would, in turn, be a fundamental basis for the
evaluation conducted under the EIS. As such, the EIS has been prepared
on the basis that discharges of excess spoil and similar mining
materials in waters of the U.S. will continue to be subject to review
by the Corps under the Section 404 permit program.
Question 25b. Please explain the status of this Environmental
Impact Statement when is it going to be finalized--and the role of its
technical studies in the recent rule change. When was this impact
statement supposed to be finished?
Response. The decision to prepare this programmatic EIS was
incorporated as a provision of the 1998 settlement agreement in Bragg
v. Robertson. In that settlement, the government indicated its goal to
complete the EIS within 2 years. That goal has not been met for several
reasons. First, the EIS has proved to be a complex undertaking,
entailing a comprehensive evaluation of both environmental and economic
effects and procedures, policies and regulations that covers coal
mining operations over the whole of Appalachia. Second, as envisioned
in the Settlement Agreement, the review has focused on the practice of
mountaintop removal coal mining and the placement of excess spoil from
these operations in waters of the United States. In his recent decision
in Kentuckians for the Commonwealth v. Rivenburgh, Federal District
court Judge Charles Haden enjoined the Corps from issuing Clean Water
Act permits for discharges of excess spoil and other mining waste in
waters of the U.S., in most circumstances, raising questions about the
relevance of this focus. Prior to the Haden ruling, the agencies
indicated that a draft EIS would be released for public review and
comment by late this summer. We are currently evaluating the
appropriate focus of the EIS in light of the Rivenburgh decision, prior
to releasing it for public comment.
__________
Statement of Joan Mulhern, Senior Legislative Counsel,
Earthjustice Legal Defense Fund
Chairman Lieberman, Senator Voinovich and members of the
Subcommittee, thank you for holding this hearing today to review one of
the most significant and destructive changes to Clean Water Act
protections in decades. My name is Joan Mulhern. I am Senior
Legislative Counsel for Earthjustice Legal Defense Fund, a national
non-profit law firm founded in 1971 as the Sierra Club Legal Defense
Fund. Earthjustice represents, without charge, hundreds of public
interest clients, large and small, in order to reduce water and air
pollution, prevent toxic contamination, safeguard public lands, and
preserve endangered species and wildlife habitat.\1\
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\1\ Earthjustice does not represent parties in the recent
mountaintop removal cases; those groups and individuals are represented
by the Appalachian Center for the Economy and the Environment, Trial
Lawyers for Public Justice and private attorneys. Earthjustice
submitted an amicus brief in the Bragg case on Clean Water Act issues
and prepared comments on the proposed revisions to the definition of
fill on behalf of several national environmental groups.
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Present for today's hearing are many representatives of groups from
Appalachia and individuals who live in the coalfields and who are among
the people that will be most directly hurt by the Bush administration's
change to the longstanding Clean Water Act rules that are the subject
of this hearing. While I am not testifying on their behalf, I hope my
comments today will help convey the seriousness of the Bush
administration's weakening of Clean Water Act rules and the real
impacts it will have not only on our nation's waters but also on many
people's lives.
The Bush administration's change to Clean Water Act rules is
intended to allow wastes especially mountaintop removal coal mining
waste, but also hardrock mining waste, construction and demolition
debris, and other industrial wastes to bury and fill streams, wetlands,
lakes, rivers, ponds and other water bodies around the country.\2\ This
new rule eliminates a 25-year prohibition on the issuance of Sec. 404
permits for waste disposal.
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\2\ Final Revisions to the Clean Water Act Regulatory Definition of
``Fill Material'' and ``Discharge of Fill Material'', 67 Fed. Reg.
31129 (May 9, 2002).
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Earthjustice, along with 17 of the nation's largest environmental
and conservation organizations,\3\ many State and local groups, tens of
thousands of individuals across the country and dozens of Members of
Congress strongly oppose this rule change. The rule change is
indefensible as a matter of law and public policy, and is directly
contrary to the intent of Congress when it passed the Clean Water Act
three decades ago. Our nation's streams, lakes, wetlands, ponds,
rivers, and coastal waters should not be used as waste dumps.
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\3\ See Letter to President George W. Bush from 18 national
environmental organizations, March 8, 2002.
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USING THE NATION'S WATERS AS WASTE DUMPS VIOLATES THE VERY PURPOSE
OF THE CLEAN WATER ACT
Elimination of the waste exclusion from the longstanding definition
of ``fill material'' is intended to give the Corps new authority to
allow the disposal of refuse directly into the nation's waters.
It will give the Corps authority to permit any industry,
governmental agency, or individual to bury rivers, streams, lakes, and
wetlands all across the country under tons of mining waste, waste from
other excavation activities, mining tailings, construction and
demolition debris, plastic waste or almost any other sort of solid
waste.\4\ In short, it will allow the Corps to issue permits for the
disposal of virtually any waste in any waters of the United States,
opening up waters all across the country to significant degradation,
and possible obliteration as waste dumps. This directly violates the
central purpose of the Clean Water Act.
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\4\ The only exception in the final rule is for ``trash or
garbage.'' 67 Fed. Reg. at 31142. But the preamble to the rule asserts,
in specific circumstances, ``certain types of material that might
otherwise be considered as trash or garbage may be appropriate for use
in a particular project to create a structure . . . in waters of the
U.S. In such situations, this material would be regulated as fill
material.'' Id. at 31134.
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The purpose of the Clean Water Act is to ``restore and maintain the
chemical, physical, and biological integrity of the Nation's waters.''
33 U.S.C. Sec. 1251(a). State water quality standards under the Act
must ``protect the public health or welfare, enhance the quality of
water and serve the purposes of this chapter.'' Id.,
Sec. 1313(c)(2)(A). To achieve this purpose, the Clean Water Act
established a regulatory regime that was intended to achieve the
national goal of eliminating the discharge of pollutants into the
navigable waters by 1985. Id. Sec. 1251(a)(1).
As Congress made clear in 1972, the Clean Water Act establishes
that there is no ``inherent right to use the nation's waterways for the
purpose of disposing of wastes.\5\ Indeed, Congress passed the Clean
Water Act to ensure that pollution would continue only where
technological limitations prevented its elimination. In 1983, EPA
reissued its antidegradation regulation, which mandates that all
existing stream uses be protected.\6\ In doing so, EPA rejected
proposals to allow exceptions to this principle ``as being totally
inconsistent with the spirit and intent of both the Clean Water Act and
the underlying philosophy of the antidegradation policy.\7\ EPA also
stated ``[a] basic policy of the standards program throughout its
history has been that the designation of a water body for the purposes
of waste transport or waste assimilation is unacceptable..'' \8\
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\5\ S. Rep. No. 92-414, at 2 (1972), reprinted in 1972 U.S.C.C.A.N.
3668.
\6\ 48 Fed. Reg. 51400 (Nov. 8, 1983); 40 C.F.R. Sec. 131.12(a).
\7\ Id. at 51408-09.
\8\ Id.; see 40 C.F.R. Sec. 131.10(a).
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The language, history and purpose of the Clean Water Act and its
implementing regulations fully support a prohibition on dumping masses
of solid waste in waterways as ``fill.'' \9\
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\9\ When it adopted the Clean Water Act, Congress intended that
even the dumping of dredged spoil into waters of the United States
should end as soon as possible. See 118 Cong. Rec. 33699 (1972), 1
Legis. Hist. 177-78 (``the Committee expects the Administrator and the
Secretary to move expeditiously to end the process of dumping dredged
spoil in water''). This obviously would require potential dischargers
to transport spoil dredged from a waterbody away from the water to a
dry land disposal site. Surely Congress could not have intended that
waste materials obtained from dry land should be transported to waters
for disposal.
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Now, almost 30 years after the Clean Water Act was passed and 17
years after the zero discharge goal was to have been met, the Bush
administration is attempting to greatly expand the legal authority of
Corps of Engineers so that it may issue Sec. 404 permits for waste
disposal activities that will obliterate more waterways. By eliminating
the waste exclusion provision in the definition of ``fill material,''
the Corps would be authorized to issue Sec. 404 permits to allow the
nation's lakes, rivers, streams, and wetlands to be used as waste
dumps.
a west virginia federal district court has found that the bush
administration's ``waste in waters'' rule violates the clean water act
and is beyond the agencies' authority
On May 8, 2002, Federal district court judge Charles Haden III
ruled that the Corps' existing definition of ``fill material''
expressly prohibits that agency from issuing Clean Water Act Sec. 404
permits for fills comprised of waste.\10\ The court also found that the
Federal agencies' rewrite of the rules to eliminate this express
prohibition was beyond the Corps' and EPA's authority under the Clean
Water Act:
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\10\ That ruling was issued in response to a challenge by a citizen
group, Kentuckians For The Commonwealth, to the Corps' approval under a
Sec. 404 nationwide permit of a mountaintop removal operation in Martin
County, Kentucky that proposed to create 27 valley fills and bury 6.3
miles of streams. Kentuckians For The Commonwealth v. Rivenburgh,
S.D.W.V.No. 2:01-770 (May 8, 2002).
``The Court holds that Sec. 404 of the Clean Water Act does
not allow filling the waters of the United States solely for
waste disposal. Agency rulemaking or permit approval that holds
otherwise is ultra vires, beyond agency authority conferred by
the Clean Water Act. Only the U.S. Congress can rewrite the Act
to allow fills with no purpose or use but the deposit of
waste.'' \11\
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\11\ Id. at 1-2.
The court then enjoined the Corps from issuing any new Sec. 404
permits that have no primary purpose or use but the disposal of waste
and stated: ``In particular, issuance of mountaintop removal overburden
valley fill permits solely for waste disposal under Sec. 404 is
ENJOINED.'' \12\
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\12\ Id. at 42 (emphasis in original).
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The court ruled:
``To approve disposal of waste other than dredged spoil, in
particular mountaintop removal overburden, in waters of the
United States under Sec. 404 dredge and fill regulations
rewrites the Clean Water Act. Such rewriting exceeds the
authority of administrative agencies and requires an act of
Congress.'' \13\
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\13\ Id. at 5.
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``To read the Act otherwise presumes Congress intended the
Clean Water Act to protect the nation's waterways and the
integrity of its waters with one major exception: the Army
Corps was to be given authority to allow the waters of the
United States to be filled with pollutants and thus destroyed,
even if the sole purpose were disposal of waste. This obviously
absurd exception would turn the ``Clean Water'' Act on its head
and use it to authorize polluting and destroying the nation's
waters for no reason but cheap waste disposal.'' \14\
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\14\ Id. at 42 (emphasis added).
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``The agencies' new final rules address political, economic
and environmental concerns to effect fundamental changes in the
Clean Water Act for the benefit of one industry. However
important to the energy requirements of the economy and to
employment in the region, amendments to the Act should be
considered and accomplished in the sunlight of open
congressional debate and resolution, not within the murk of
administrative after-the-fact ratification of questionable
regulatory practices.'' \15\
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\15\ Id. at 44.
Earthjustice agrees with Judge Haden's interpretation of the Clean
Water Act, as his analysis and conclusion are strongly grounded in the
history, letter and purpose of the Act. Because of this decision, the
Corps is currently enjoined from issuing any new Sec. 404 permits for
fills comprised of waste material.\16\
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\16\ In discussing the intended or likely environmental impacts of
the Bush administration's rule change in this testimony, it is with the
caveat that these harms can only occur if the court's decision in the
Kentuckians For The Commonwealth is stayed or narrowed, which we hope
will not happen. In any case, because we believe that the Clean Water
Act and its regulations forbid the Corps from permitting mountaintop
removal valley fills and other waste dumps as ``fill,'' if the Corps
does issue any new permits allowing waste disposal as fill, such
permits would be illegal and vulnerable to legal challenge. The Bush
administration is currently seeking a stay of the court's decision and
arguing that the scope of the injunction be narrowed to only cover the
Martin County mine that was the immediate subject of the litigation.
The plaintiff in the case, Kentuckians For The Commonwealth, is
opposing these motions.
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THE BUSH ADMINISTRATION'S ARGUMENTS IN DEFENSE OF THIS RULE CHANGE
ARE WITHOUT MERIT
One of the administration's frequently repeated justifications for
changing the definition of fill material to allow waste to be dumped
into waterways is that considering only the ``effect'' of a fill, not
its ``purpose'' will result in more effective regulation.\17\ It argues
that the ``primary purpose'' test and the ``waste exclusion'' in the
rules adopted in 1977 are confusing, subjective and have led to
inconsistent treatment of similar discharges.\18\ The preamble to the
final rule states: ``There is no environmental basis for contending
that the sufficiency of the permitting process to protect waters of the
U.S. depends on the purpose of the discharge.'' \19\ In sum, it argues
that the purpose of a discharge into waters is always irrelevant.\20\
But when it comes to waste disposal, that conclusion is wrong on
several counts.
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\17\ See, e.g., 67 Fed. Reg. at 31131 (``The agencies believe that
an effects-based definition is, as a general matter, the most effective
approach for identifying discharges that are regulated as ``fill
material'' under section 404''). See also id. at 3132-31133.
\18\ Id.
\19\ Id. at 31134.
\20\ Comments prepared by Earthjustice and supported by several
national environmental groups supported the agencies' proposal to
reconcile the agencies differing definitions, while disagreeing with
the claim that those definitions were confusing, and supported dropping
the ``primary purpose'' test as a general matter, as long as the
language that explicitly excludes waste materials as ``fill'' was
retained.
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First, that conclusion ignores the goal of the Clean Water Act. The
purpose of a discharge of pollutants into waters matters very much in
the context of the Act, which Congress enacted with a purpose that of
protecting the nation's precious water resources. As stated above, the
very first sentence of the law declares this purpose clearly and
concisely: ``It is the objective of this chapter to restore and
maintain the chemical, physical, and biological integrity of the
Nation's waters.'' No activity could be more inconsistent with the
purpose of protecting the integrity of waters than burying them forever
under piles of waste.
Second, the conclusion that purpose is always irrelevant ignores
the fact that waste disposal is an activity that is entirely different
in kind from those that fill waters for a constructive purpose. It is
one thing to fill a stream or wetland because, after ensuring there are
no non-water dependant alternatives, a constructive use needs to be
made of a certain area to build a road or other facility; it is
something else altogether to allow waters to be filled with waste just
because that is the cheapest means of disposal. Using the nation's
waters for cheap waste disposal is exactly what the Clean Water Act is
supposed to prevent.
Third, the administration's conclusion ignores the undeniable fact
that allowing our waters to be used for waste dumps will significantly
increase the number of waters destroyed under the Sec. 404 program. By
allowing coal mining companies, hardrock mineral mining interests,
construction and demolition outfits and others to dump their wastes
into waters, burying them, the inevitable effect will be that more
streams, wetlands, rivers, ponds, lakes and coastal areas will be
filled. As Judge Haden succinctly put it in his recent decision, ``As a
child could explain, the effect of filling things is that they get
full.'' \21\ Allowing destruction of more streams, rivers and wetlands
is flatly inconsistent with the Clean Water Act's goal of ending the
discharge of pollutants into our country's waterways.
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\21\ Kentuckians For The Commonwealth at 39-40.
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The administration's assertion that it makes no difference whether
industries are allowed to fill waters for constructive purposes only or
for any reason whatsoever--including using our waters as waste dumps--
demonstrates this administration's disregard for the Clean Water Act as
well as for the natural resources and communities the law was enacted
to protect.
The Corps and EPA also contend that the rule change is justified
because it will allow the Corps' regulations to conform to its
practices.\22\ This appears to be a reference to the fact that the
Corps has been violating the law for years by allowing mountaintop
removal coal mining ``valley fills'' to bury streams and wetlands.
(Perhaps the Corps has also been permitting other waste disposal
operations to destroy waters; if so, it does not identify those
practices in the proposed rule.) In short, instead of requiring the
Corps to conform its permitting activities to the law, the Bush
administration is trying to change the law to accommodate the Corps'
unlawful and destructive practices undertaken on behalf of the coal
companies. As Judge Haden explains in his order:
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\22\ 67 Fed. Reg. at 31130.
``[F]or the past 20 years, particularly in the Huntington Corps
District, Sec. 404 permits have been issued for mountaintop
removal overburden disposal in valley fills that have
obliterated and destroyed almost a thousand miles of streams,
by the Corps' own account. The valley fills are used solely to
dispose of the waste rock and dirt that overlies the coal. Past
Sec. 404 permit approvals were issued in express disregard of
the Corps' own regulations and the CWA. As such, they were
illegal. When the illegitimate practices were revealed by court
decisions in this district, the agencies undertook to change
not their behavior, but the rules that did not support their
permit process.'' \23\
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\23\ Id. at 42-43.
In fact, several Corps' officials deposed in the earlier
mountaintop removal case, Bragg v. Robertson,\24\ acknowledged that the
agency did not have legal authority to issue permits for valley fills
because their own regulations prohibited the use of waste as fill; one,
when asked why the Corps did issue such approvals without legal
authority said that they ``just sort of oozed into that.'' \25\
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\24\ 72 F.Supp. 2d 642 (S.D. W. VA 1999), rev'd, 248 F. 3d 275 (4th
Cir. 2001).
\25\ Deposition of Rodney Woods, Nov. 30, 1998, p. 23 (taken in
Bragg v. Robertson).
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no review of the nationwide environmental effects of allowing waste
dumps in waters was conducted by the corps or epa before finalizing the
rule
The EPA and Corps concluded that elimination of the ``waste
exclusion'' would have no environmental effect because they already
allow waste dumps in waters. This conclusion has absolutely no basis in
law or fact and demonstrates a callous disregard for the environment.
By illegally issuing permits for mountaintop removal coal mining
valley fills--5,858 of them since 1985 by the administration's own
count--the Corps has allowed the complete destruction of well over 1000
miles of streams in Kentucky and West Virginia, perhaps much more. To
claim that changing the law to allow the continuation of such
permitting practices will have no significant effect on the environment
is absurd on its face.
It is equally unreasonable to conclude that expanding this
permitting practice to allow waters to be buried under hardrock mining
tailings, other excavation wastes, construction and demolition debris,
plastic waste and other refuse will not have a significant effect on
the environment. Presumably the Corps is not already issuing Sec. 404
permits to all of the industries that will be eligible to receive waste
dump permits under the new rule; if they are allowing these industries
to dump their wastes in waters, then the extent of the Corps' illegal
permitting activities is greater than has been previously documented.
In short, their conclusion that these waste disposal activities,
whether previously permitted (illegally) or not, will not cause any
significant environmental harm is not supported by fact--or logic.
Indeed, all evidence is to the contrary.
Allowing industries to bury and obliterate waterways with waste, a
previously prohibited activity, will have severe adverse effects on
water quality, water supplies, fish and wildlife habitat, flood control
and floodplain management, as well as other health, safety,
environmental and economic consequences for the communities where such
waste fills are allowed. Whatever the number of waters the Corps has
already allowed industries to bury with their waste, previously
unaffected streams, wetlands, lakes, rivers, ponds and coastal waters
will be filled and destroyed in the wake of this rule change.
Nonetheless, the Corps and EPA completely failed to analyze the
environmental consequences of eliminating the waste exclusion from the
definition of fill material. The Bush administration conducted no
studies or analyses whatsoever to measure these impacts.
Worse, the administration even went so far as to ignore data
currently in its possession regarding the known and devastating
environmental impacts of mountaintop removal coal mining. The
administration's utter disregard for the harm that would be caused by
this rule change violates the National Environmental Policy Act of 1969
(``NEPA'') \26\ as well as the agencies' general obligation to protect
the environment.
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\26\ 42 U.S.C. Sec. 4321 et seq.
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NEPA is the basic national charter for protection of the
environment. The law requires agencies of the Federal Government to
prepare an environmental impact statement (``EIS'') for all ``major
Federal actions significantly affecting the quality of the human
environment.'' \27\ Federal actions include ``new or revised agency
rules, regulations, plans, policies, or procedures.'' \28\ NEPA
requires that the environmental impacts of a major Federal action must
be evaluated before the agency decides whether or how to proceed.
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\27\ 42 U.S.C. Sec. 4332(2)(C).
\28\ 40 C.F.R. Sec. 1508.18(a) (emphasis added).
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The Corps has not complied with these basic principles of NEPA. It
did not prepare an environmental impact statement for this rule as
required by law, despite its nationwide effect and the obvious harm
that is caused when wastes bury waters.
Instead, the agencies prepared an Environmental Assessment (EA)
concluding--without reference to anything other than its own
unsubstantiated assertions--that the rule change does not constitute a
major Federal action significantly affecting the quality of the human
environment.\29\ Not a single study or fact about the environmental
effects of this rule is cited to support this conclusion.
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\29\ ``Environmental Assessment (EA) and Finding of No Significant
Impact for the Fill Rule,'' (May 9, 2002). Notably, the Corps did not
complete and sign the EA until 6 days after they sent the rule to the
Federal Register for publication. However, in a memo explaining this
mistake, Dominic Izzo, Principal Deputy Secretary of the Army (Civil
Works) assured readers that this did not indicate that the Corps
treated the EA as an afterthought.
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In fact, at the time that the Corps and EPA first proposed to
change the definition of fill material to eliminate the waste exclusion
in the spring of 2000, the Corps admitted that it did not possess even
one document that supported its initial determination that no
environmental impact statement needed to be prepared.\30\ This initial
finding of ``no significant effect on the quality of the human
environment'' is nonetheless cited in the EA as supporting the final
decision not to do an EIS.\31\ We can only assume that the Corps still
does not have any evidence whatsoever to support their claim that no
significant harm will come of this rule change.
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\30\ Letter to Melissa A. Samet, Earthjustice Legal Defense Fund,
from Richard L. Frenette, Counsel, U.S. Army Corps of Engineers (July
5, 2000) (``no documents were located'' that satisfied a Freedom of
Information Act (FOIA) request for all documents upon which the Corps
based its determination that an environmental impact statement was not
necessary).
\31\ EA at 7.
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The Bush administration's assertions about ``no significant harm''
are flatly contradicted by the information collected by this
administration that is not even mentioned in its discussion of the
environmental effects of this rule change. The preliminary findings of
an environmental impact statement (EIS) on mountaintop removal that is
currently being prepared by the EPA and other agencies show the
environmental destruction caused by mountaintop removal coal mining and
its waste disposal practices is enormous.
As of February 2002, the EPA, together with the Office of Surface
Mining (OSM), the Corps, the U.S. Fish and Wildlife Service, and the
West Virginia Department of Environmental Protection, had spent or
committed to spend about $4.5 million preparing an EIS on the
environmental, social, and economic impacts of mountaintop removal
mining.\32\ In support of the EIS, EPA prepared a January 2001
Preliminary Draft EIS (PDEIS) and extensive technical studies,
including an inventory of valley fills, and analyses of the impacts of
valley fills on streams, wildlife, land use, and the economy.\33\
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\32\ Email from William Hoffman (EPARegion 3) to Gregory Peck (EPA
DC) February 13, 2002.
\33\ EPA recently disclosed this PDEIS and most of the studies to
the public in response to a FOIA request from Kentuckians For The
Commonwealth.
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The studies conducted by EPA for the mountaintop mining EIS have
confirmed and amplified the scope of the known harm from valley fills.
A March 2002 slide show presentation\34\ to senior EPA officials in the
agency's Washington, DC. headquarters summarizes the findings from
these studies:
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\34\ Mountaintop Mining EIS Presentation, EPA Office of Water,
Office of Federal Activities, and Office of General Counsel, March 5,
2002.
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<bullet> One percent of all streams in the study area (560 out of
55,000 miles) have already been eliminated by valley fills.\35\
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\35\ Other studies, cited below, indicate that this 1 percent
figure is likely to be a gross underestimation of the stream miles
filled in the study area. These inventories rely heavily on
topographical maps that often do not map ephemeral headwater streams,
despite their ecological importance. Also, the 1 percent figure
contains the entire study area; in watersheds where mining activity is
occurring or has occurred, up to 30 percent of the headwaters have been
filled.
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<bullet> Macroinvertebrate indices indicate that stream segments
located downstream of valley fills are being impaired (aquatic life
use).
<bullet> Stream chemistry monitoring efforts show significant
increases in conductivity, hardness, sulfate, and selenium
concentrations downstream of [Mountaintop Mining/Valley Fill]
operations.\36\
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\36\ EPA's stream chemistry study found that ``The selenium data
clearly show `hot spots' with higher concentrations of selenium in each
of the five watersheds that were studied] and located downstream of
`Filled' sites ONLY. There are 66 violations of the stream water
quality criteria identified and each is at a Filled site. No other
category of site had violations of selenium!'' Email from Gary Bryant
(EPA WV) to William Hoffman (EPA Region 3), March 27, 2002
(capitalization and exclamation point in original). Selenium, ``a
metalloid that is released to water from both natural and anthropogenic
sources, can be highly toxic to aquatic life at relatively low
concentrations.'' See www.epa.gov/ost/selenium/factsh.html.
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<bullet> The Appalachian Highlands is characterized by some of the
best forest habitat in the world.
<bullet> Current reclamation practices are converting these forests
to grassland, which may significantly impact neotropical migrant bird
populations and other sensitive species if left unchanged.
Similar findings are contained in a draft summary of the EIS'
technical studies, which finds that ``[n]o scientific basis could be
established for arriving at an environmentally 'acceptable' amount of
stream loss'' . . . it is ``difficult if not impossible to reconstruct
free flowing streams on or adjacent to mined sites'' . . . there is
``no evidence that native hardwood forests . . . will eventually
recolonize large mountaintop mine sites using current reclamation
methods'' . . . ``[p]opulations of forest birds will be detrimentally
impacted by the loss and fragmentation of mature forest habitat'' . . .
and that ``[l]arge-scale surface coal mining will result in the
conversion of large portions of one of the most heavily forested areas
of the country, also considered one of the most biologically diverse,
to grassland habitat.'' \37\
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\37\ See MTM/VF EIS Steering Committee, ``Problems Identified/
Confirmed/Inferred by Technical Studies,'' August 15, 2002 working
draft.
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Although the EPA and Corps had this information in hand well before
they finalized the rule change on May 3, none of this data is even
mentioned in the preamble to the rule or the extremely cursory
Environmental Assessment that accompanied it.
Further, the impacts of the ``waste in waters'' rule will be felt
far beyond the coalfields of Appalachia, where the Bush administration
wishes to be able to continue issuing Sec. 404 permits for the disposal
of coal mining wastes with impunity.
It is clear that the proposed rule change will have significant
environmental consequences, both from mountaintop removal and other
waste disposal activities. The proposed rule change would give the
Corps new authority to allow the disposal of refuse directly into any
river, stream, lake, wetland or coastal area in the country. These
effects required preparation of an environmental impact statement
before the rule change was ever proposed.
THE CORPS' WILLINGNESS TO GRANT VIRTUALLY EVERY PERMIT REQUEST
DRAMATICALLY INCREASES THE ALREADY STAGGERING IMPACTS OF THE RULE
CHANGE
The potential impacts of the rule change are staggering,
particularly in light of the Corps' willingness to routinely grant
virtually every permit request submitted to it for any project to fill
waterways. For example, according to testimony submitted to this
committee in March 2000, in one 3 year period, the Corps denied only 3
out of every 1000 of all Sec. 404 permit requests:
[T]he Corps received an average of 74,500 Section 404 permit
requests per year from fiscal year 1996 to fiscal year 1999. Of
those requests, 84.4 percent were authorized through a general
permit. Only 6.7 percent of all permit applications were
subject to the more detailed individual permit evaluation,
through which impacts are avoided and compensated. Because of
our effectiveness in avoiding and mitigating impacts, only 3
tenths of a percent of all Section 404 requests were denied.
Finally, it should be noted that thousands of additional
actions requiring authorization by Section 404 were allowed to
proceed under the authority of general permits that do not
require any notification to the Corps.\38\
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\38\ Testimony of Michael Davis, Deputy Assistant Secretary of the
Army for Civil Works, Before the U.S. Senate Committee on Environment
and Public Works, Subcommittee on Air Quality, Wetlands, Private
Property and Nuclear Safety (March 28, 2000).
The Bush administration provides no evidence at all to suggest that
the vast majority of permit requests for waste disposal activities will
not also be routinely granted by the Corps. In fact, the evidence is to
the contrary: if the Corps' track record of granting approval for
mountaintop removal valley fills is any indication of how the Corps
will treat other applications for 404 permits for waste disposal, there
is a great deal to be concerned about.\39\
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\39\ Even if one were to assume that the Corps would be more
selective about issuing individual permits for waste disposal
activities than they are when issuing permits for other fills, the
majority of activities that are currently approved under the Sec. 404
program occur under authority of general permits and require no
individual approval from the Corps. If the same holds true when wastes
are added to the list of acceptable filling practices, many waste
disposal activities may occur under general permits without the need
for Corps' approval.
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the adverse impacts on mining communities are enormous and unnecessary
As the court notes in Kentuckians For The Commonwealth, the Bush
administration's change to Clean Water Act regulations to allow waste
disposal in waters was written to benefit one industry--the coal mining
industry.\40\ In particular, the elimination of the decades-old
language prohibiting the use of waste to fill waters was intended to
accommodate the enormously destructive mining practice known as
mountaintop removal.
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\40\ Kentuckians For The Commonwealth at 44.
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Mountaintop rremoval is conducted throughout the Appalachian
region, but is especially concentrated in southern West Virginia and
eastern Kentucky. In mountaintop removal operations, mine operators use
explosives and enormous machines to rip hundreds of feet off the top of
mountains to expose and remove the coal seams that lay underneath. In
the process, millions of tons of waste (that was formerly the
mountaintop) are generated.
The current solution preferred by many mining operators for
disposing of this waste rock and dirt is to dump it into nearby
valleys; this dumping creates ``valley fills.'' Typically, there are
networks of streams in the valleys that are filled with the excess
mining waste. As a result of the valley fills, these streams and
wetlands, and the aquatic and wildlife habitat they support, are
destroyed by virtue of being buried by hundreds of millions of tons of
rocks and dirt that was once part of the mountaintop.
Environmental Harm
Mountaintop removal is destroying irreplaceable forests and
streams. In March 1998, the U.S. Fish and Wildlife Service (FWS)
estimated that nearly 500 miles of streams had been lost in only six
West Virginia watersheds due to Mountaintop Removal valley fills.\41\
This estimate did not include five other major coal mining counties in
West Virginia. West Virginia's forests are among the most productive
and diverse temperate hardwood forests in the world. According to the
US Fish and Wildlife Service, the forests are hotspots for migratory
birds.\42\ The size of proposed mountaintop removal operations has
grown significantly. Mining complexes often create holes of more than
10 square miles in the forest canopy. For instance, Arch's Mountaintop
Removal complex in Blair, West Virginia would have destroyed more than
12 square miles of forests and streams. At least two other Arch
operations in West Virginia now cover more than 20 square miles
each.\43\ Such holes in the forest canopy have significant adverse
impacts on bird migration.
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\41\ U.S. Fish & Wildlife Service, ``Permitted Stream Losses Due to
Valley Filling in Kentucky, Pennsylvania, Virginia, and West Virginia:
A Partial Inventory'' 6 (1998).
\42\ U.S. Fish & Wildlife Service, ``A Survey of Aquatic Life and
Terrestrial Wildlife Habitats on the Proposed Spruce No. 1 Surface Mine
in Logan County, West Virginia'' 21 (1998).
\43\ Hobet 21 and Samples.
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It is nearly impossible to overstate the destructive effects of
mountaintop removal on the surrounding environment. Mountains and
forests become barren moonscapes. Waters and aquatic life are buried
under tons of rubble. In an order in the Bragg case, issued March 3,
1999,\44\ Judge Haden, Chief Judge of the District Court for Southern
District of West Virginia, described the view of mountaintop removal
sites seen from the air, and assessed the potential damage posed by the
mine.
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\44\ Bragg v. Robertson, 54 F. Supp.2d 635, 646 (S.D.W.V. 1999);
also see photos: ``Valley Fills at Mountaintop Removal Mines in
Kentucky and West Virginia--Aerial Views'', attached.
``The Court's helicopter flyover of all mountaintop removal
sites in southern West Virginia revealed the extent and
permanence of environmental degradation this type of mining
produces. On February 26, the ground was covered with light
snow, and mined sites were visible from miles away. The sites
stood out among the natural wooded ridges as huge white
plateaus, and the valley fills appeared as massive,
artificially landscaped stair steps. Some mine sites were 20
years old, yet tree growth was stunted or non-existent.
Compared to the thick hardwoods of surrounding undisturbed
hills, the mine sites appeared stark and barren and enormously
different from the original topography.
``If the forest canopy of Pigeonroost Hollow is leveled,
exposing the stream to extreme temperatures, and aquatic life
is destroyed, these harms cannot be undone. If the forest
wildlife are driven away by the blasting, the noise, and the
lack of safe nesting and eating areas, they cannot be coaxed
back. If the mountaintop is removed, even [the mine company's]
engineers will affirm that it cannot be reclaimed to its exact
original contour. Destruction of the unique topography of
southern West Virginia, and of Pigeonroost Hollow in
particular, cannot be regarded as anything but permanent and
irreversible.''
Judge Haden expanded upon this assessment in his opinion issued on
October 20, 1999:
``When valley fills are permitted in intermittent and
perennial streams, they destroy those stream segments. The
normal flow and gradient of the stream is now buried under
millions of cubic yards of excess spoil waste material, an
extremely adverse effect. If there are fish, they cannot
migrate. If there is any life form that cannot acclimate to
life deep in a rubble pile, it is eliminated. No effect on
related environmental values is more adverse than obliteration.
Under a valley fill, the water quantity of the stream becomes
zero. Because there is no stream, there is no water quality.''
\45\
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\45\ Bragg, 72 F. Supp.2d at 661-62.
EPA's draft cumulative impact study on mountaintop removal mining
states that, if left unconstrained, mining will fill another 500 miles
of streams and destroy 350 square miles of forests in Appalachia.\46\
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\46\ Gannett Fleming, ``Landscape Scale Cumulative Impact Study of
Future Mountaintop Mining Operations,'' March 2002, pp. ii, iv.
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Harm to Communities
Not only do these massive valley fills destroy the watersheds in
Appalachia, uncontrolled mountaintop removal operations destroy
Appalachian coalfield communities.
The environmental and social impacts resulting from mountaintop
removal surface mining extend well beyond the streams that are actually
filled. The quantity and quality of waters in the vicinity of these
operations are often adversely affected and significant portions of the
State's forests, mountains and streams are destroyed. The communities
below these massive operations are often devastated. The people are
effectively forced from their homes by blasting (which often cracks the
walls and foundations of their homes), dust, noise, flyrock, the threat
of flooding, fear that the valley fills above their homes are unstable,
and the degradation of stream and well water. Life near mountaintop
removal operations becomes so unbearable that generations-old
communities are forced to move away.
A 1997 article in U.S. News and World Report states that rather
than fight constant complaints from homeowners, Arch Coal ``has bought
more than half of the 231 houses in Blair through a subsidiary. Vacated
and quickly stripped, at least two dozen have been burned down'' by
arsonists.\47\ In Blair, West Virginia, the elementary school and the
town's only grocery stores have closed.
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\47\ Penny Loeb, U.S. News & World Report, ``Shear Madness,''
(August 7, 1997).
---------------------------------------------------------------------------
Many people, including some coalfield residents who have lost homes
and loved ones in the floods of 2001 and 2002, believe flooding in the
region is made worse by mountaintop removal mining. It is a reasonable
conclusion. When mountaintop removal coal mining strips a landscape
bare of all trees, and valley fills bury headwaters with tons of dirt
and rock, storm water will come gushing down more quickly into the
communities nestled in the valley. Preliminary Federal studies indicate
that rain runoff at valley fill sites vary, but the studies indicate
that runoff can surge anywhere from 3 percent to 42 percent, ultimately
blending with the larger flood pattern.\48\ In the most recent floods,
nearly a dozen people lost their lives and four West Virginia counties
were declared Federal disaster areas.\49\ In McDowell County alone, 6
people died, close to 200 homes were destroyed, and more than 2,000
others were damaged by flooding.\50\
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\48\ Charleston Gazette, ``Flood Causes Get Serious With Studies,''
May 8, 2002; Ken Ward, ``Forests' Return Could Take Centuries Due to
Mining,'' Charleston Gazette, May 3, 2002 (discussing the draft EIS
studies obtained by Gazette by FOIA); see also photos: ``Valley Fill on
the Headwaters of White Oak Creek in Raleigh Co.'', and ``July 2001,
floods devastated Bulgar Hollow in Raleigh Co., W. Va.'', attached.
\49\ Anderson, Mason. ``Appalachian Flood Victims Assess Damages,''
DisasterRelief.org, May 7, 2002.
\50\ Francis X Clines, ``100-Year Flood, for the Second Straight
Year,'' New York Times, May 9, 2002.
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Economic Impacts
Recently, the Bush administration filed a motion for a stay pending
appeal of West Virginia district court's May 8 Order, which enjoined
the Corps from issuing any further Sec. 404 permits that have no
primary purpose or use but the disposal of waste. In its brief, the
administration argues at length that this injunction will have
``devastating'' economic effects. But the administration's allegations
of impending economic doom are supported only by broad and conclusory
affidavits by government officials, with no supporting expert analysis
or studies.
The Bush administration's and coal mining companies' claims about
significant economic harm are flawed in at least four fundamental
respects. First, the administration is again ignoring the results of
its own studies that it commissioned in preparation of the EIS on
mountaintop mining and valley fills. Second, according to these
government studies, most mines do not require valley fills. Third,
engineering analysis shows that there are alternatives to putting waste
in valley fills. Fourth, according to these government studies,
significant restrictions on the size of valley fills will not have
significant economic impacts.
The Government Is Ignoring Its Own Studies Showing Prohibition on
Mining Waste Valley Fills in Waters of the U.S. Would Not Cause Serious
Economic Harm
As stated above, the EPA and other Federal and state agencies are
preparing an EIS to study the environmental, social, and economic
impacts of mountaintop removal mining.\51\ The PDEIS and studies
directly contradict the claims of economic harm made by the Bush
administration and others who insist that weakening Clean Water Act
rules is an economic necessity.
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\51\ See 64 Fed. Reg. 5800 (Feb. 5, 1999) (notice on the EIS).
---------------------------------------------------------------------------
As part of the EIS effort, EPA contracted with Hill & Associates
(H&A), an economic modeling firm, to model the economic impacts of the
various alternatives for restricting the size of valley fills. In a
December 2001 final report to EPA, H&A concluded that even the most
severe restriction on valley fills studied in the report--one that
barred fills covering watersheds more than 35 acres--would raise the
price of coal by only $1 per ton and raise the cost of electricity by a
few cents per megawatt-hour.\52\ In the March 2002 slide show
presentation to senior EPA officials in its Washington Headquarters,
EPA Region 3 officials characterized these effects as ``a minimal
impact on the price of coal'' and ``virtually NO impact on electricity
prices.'' \53\ The presentation revealed that significant restrictions
on valley fill size would not significantly affect coal supplies, coal
prices, or electricity prices:
---------------------------------------------------------------------------
\52\ Hill & Associates, ``Economic Impact of Mountain Top Mining
and Valley Fills, Environmental Impact Statement,'' for U.S. EPA,
December 2001. The H&A study assumed that valley fill restrictions
would apply immediately to all existing mines, while the court's order
only applies to future permits. The study therefore overstates the
economic impacts of prohibiting any future Sec. 404 permits to dump
waste into waters. On the other hand, the study evaluated a restriction
on valley fills of no more than 35 acres, while a ban on the discharge
of coal waste in any waters of the U.S. may be more restrictive in some
watersheds. The study may therefore understate the economic impacts of
enforcing the law in this respect.
\53\ Mountaintop Mining EIS Presentation, EPA Office of Water,
Office of Federal Activities, and Office of General Counsel, March 5,
2002 (emphasis in original).
``Sufficient coal reserves appear to exist under the 250,
150, 75, and 35 acre restriction scenarios necessary to meet
demand during the 10 year study period . . .''
``Restricting valley fills to 250, 150, 75, or 35 acre
watersheds will increase the price of coal by only $1/ton under
each respective restriction scenario.''
``Restricting valley fills to 250, 150, 75, or 35 acre
watersheds will increase the price of electricity by only a few
cents/MWHr under each respective restriction scenario.'' \54\
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\54\ Id.
Another EPA draft study, dated April 23, 2002, concludes that, even
under the 35-acre watershed restriction, annual average impacts to
total statewide employment in Kentucky and West Virginia are no more
than 0.3 percent of total year 2000 employment. In addition, there are
no ``notable differences in [wholesale electricity] prices or
generation levels among the alternative [restrictions] . . . due to the
competitive nature of the energy markets.'' \55\
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\55\ Gannett Fleming, Draft Economic Consequences Study for MTM/VF
EIS, April 23, 2002.
---------------------------------------------------------------------------
These studies indicate that severe restrictions on the size of
valley fills, and even a prohibition of valley fills in waters of the
US, would not cause serious economic harm, as the Bush administration
claims.
Most Mines Do Not Require Valley Fills
Almost two-thirds of coal mined in Appalachia comes from
underground mines. While underground mines do create waste rock and
dirt, the amount generated is considerably less compared to mountaintop
removal mining. Both in the short and long term, alternatives to
dumping these wastes into streams exist and are already utilized by
many coal mining companies.\56\
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\56\ See Declaration of John S L Morgan, (May 18, 2002). Mr. Morgan
has a degree in mining engineering from the Royal School of Mines and
is President of Morgan Worldwide Consultants, a company specializing in
providing technical support to the mining industry worldwide. Mr.
Morgan participates on the West Virginia Department of Environmental
Protection Quality Control advisory panel tasked with evaluating and
improving quality control related to permitting,
---------------------------------------------------------------------------
The mountaintop removal PDEIS contains an extensive inventory of
the valley fills in the four-state region of Kentucky, West Virginia,
Tennessee and Virginia where surface coal mining is concentrated. Over
90 percent of the 5,585 valley fills approved between 1985 and 1999 are
in Kentucky and West Virginia.\57\ During that time, only 1,271 out of
6,234 mining permits in Kentucky (20 percent), and 305 out of 2,527
mining permits in West Virginia (12 percent) were issued with valley
fills.\58\ Thus, historically, most surface mining operations do not
use valley fills, and a prohibition on fills in waters would not affect
those mines. The same principle applies to pending permit applications,
which are the only ones that would be affected by the Court's
prospective order. According to WVDEP, only 59 of the 123 pending
applications for mining permits in West Virginia, and only 11 out of
157 applications for incidental boundary revisions and permit
applications, contemplate filling waters of the United States.\59\
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\57\ January 2001 Preliminary Draft EIS (PDEIS) at III.K-21.
\58\ Id. at K-22, K-28.
\59\ See http://www.dep.state.wv.us/Docs/1449NR-CrumResponse.pdf.
---------------------------------------------------------------------------
Furthermore, even for the coal mines that do apply for fills, a ban
on new valley fills would not shut down all of those mines in the short
term. The PDEIS states ``[a]n industry practice is to permit more
surface area for disturbance than is likely to be affected by the
operations planned. This allows the mining operation to respond more
quickly to changing market conditions.'' \60\ Thus, there is surplus
capacity that has already been permitted, and that would not be
affected by a prospective ban on new valley fills in waters of the US.
That was apparently the situation in 1999, when no valley fills were
approved by West Virginia,\61\ yet statewide coal production was
virtually the same in 1999 and 2000. Thus, the lack of fills does not
necessarily have an immediate impact on coal production.
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\60\ PDEIS at III.K-13.
\61\ Id. at III.K-28.
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There Are Alternatives to Dumping Coal Mining Waste into
Streams
Coal mining waste should not be dumped in streams, and it does not
have to be dumped into streams. Mining companies choose to dump their
wastes in waters when it is the cheapest alternative, and regulatory
prohibitions are not enforced.\62\ Coal companies seek to optimize
maximum coal recovery at the least cost.\63\ But there are
alternatives.
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\62\ Morgan Declaration.
\63\ Id.
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The impact of valley fill restrictions varies from mine to mine,
and requires a site-specific engineering analysis.\64\ Broad brush
statements that the coal companies have no choice but to dump their
wastes in streams are incorrect. Potential alternative sites for
placing waste include previously mined areas that were not returned to
their approximate original contour, previously disturbed areas such as
old refuse impoundments, side hill fills, and more distant disposal
locations; in addition, companies can redesign the fill configuration
and change their mining equipment to reduce fill impacts.\65\
Underground mines generate much less waste rock and dirt than surface
mines, and there are available alternatives for placement of that waste
as well.\66\ These alternatives to placing mining waste in streams
should be used instead of dumping waste in waterways.
---------------------------------------------------------------------------
\64\ Id.
\65\ Id.
\66\ Id.
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Clean Water Act regulations require consideration of these
alternatives. Where a proposed project to fill waters ``does not
require access or proximity to or siting within the special aquatic
site in question to fulfill its basic purpose (i.e. is not `water
dependent'), practicable alternatives that do not involve special
aquatic sites are presumed to be available, unless clearly demonstrated
otherwise.'' \67\ Regardless of the definition of fill material, the
Corps is not authorized to issue a Sec. 404 permit ``unless appropriate
and practicable steps have been taken which will minimize potential
adverse impacts of the discharge on the aquatic ecosystem.'' \68\ Since
surface coal mining is not ``water dependent'' and alternatives to
filling streams exist, granting of Sec. 404 permits for the disposal of
waste in streams, as the Bush rule purports to do, is illegal for this
reason as well.
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\67\ 40 C.F.R. Sec. 230.10(a)(3) (emphasis added).
\68\ Id., Sec. 230.10(d).
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Post-Mining Land Uses
Some proponents of mountaintop removal coal mining claim that it is
needed to create more flat land for development purposes. While there
may be a few examples here and there of airports or factories being
built on mountaintop removal sites, it is extremely unlikely that any
significant percentage of mountaintop removal sites, including the
valley fills, will ever support development. As noted above, EPA's
draft cumulative impact study on mountaintop removal mining states
that, if left unconstrained, mountaintop removal mining will destroy
350 square miles of forested land;\69\ This is in addition to the
hundreds of square miles that have already been flattened. According to
one estimate, less than 1 percent of the mined land is reused for any
development purpose.\70\
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\69\ Gannett Fleming study, pp. iv.
\70\ Phone conversation with Jim Burger, Professor of Forestry,
Virginia Tech, (June 3, 2002). Professor Burger studies post-mining
land uses in Appalachia, including reforestation and development.
---------------------------------------------------------------------------
The Bush administration's studies conclude that, in fact, post-
mining land uses are not occurring as envisioned. Remarkably, the
Office of Surface Mining (OSM) appears to want to address this problem
by deleting actions to ensure that post-mining land uses do occur from
further consideration in the EIS:
Post Mining Land Uses (PLMU) studies suggest that, in general,
post-mining development is not occurring as envisioned when variance
are requested from the requirements to return the land to a condition
capable of supporting its prior use. Actions to ensure that PMLU
development occurs as envisioned have been developed, but OSM
recommends deleting these actions from further consideration in the
EIS.\71\
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\71\ Mountaintop Mining EIS Presentation.
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UNDER THE BUSH ADMINISTRATION'S RULE, MANY OTHER WASTES WILL BURY
WATERS
There is probably no region of the country that will be more
adversely effected by this ``waste in waters'' rule change than the
coal mining communities of Appalachia. But the Bush administration's
rule change undoubtedly will have significant nationwide effects. While
the ``waste exclusion'' in the Corps' clean water regulations was
removed from the rules primarily for the coal mining companies, the
final rule would give the Corps discretion to permit any industry,
governmental agency, or individual to bury rivers, streams, lakes, and
wetlands all across the country under tons of mining waste, waste from
other excavation activities, mining tailings, construction and
demolition debris, plastic waste or almost any other sort of solid
waste.\72\
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\72\ As noted earlier, the only exception in the final rule is for
``trash or garbage.'' 67 Fed. Reg. at 31142. But the preamble to the
rule asserts, in specific circumstances, ``certain types of material
that might otherwise be considered as trash or garbage may be
appropriate for use in a particular project to create a structure . . .
in waters of the U.S. In such situations, this material would be
regulated as fill material.'' Id. at 31134.
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According to the final rule, examples of wastes now eligible for
Sec. 404 permits include, but are not limited to ``rock, sand, soil,
clay, plastics, construction debris, wood chips, [and] overburden from
mining or other excavation activities.'' \73\ In addition, another part
of the new definition makes clear that ``placement of overburden,
slurry, or tailings or similar mining-related materials'' are also to
be permitted.\74\ As the new definition states, this is not an
exhaustive list. There are many other types of industrial wastes that
the Corps could also try to permit to be dumped into waters. Even
wastes that may be ``chemically contaminated'' would not be ruled out
under this proposal; in fact, the administration argues that the
provisions of Sec. 404 regulations and its related guidelines are
adequate to address such cases.\75\
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\73\ 67 Fed. Reg. at 31142 (emphasis added).
\74\ Id. (emphasis added).
\75\ 67 Fed. Reg. at 31133 (``We recognize that, some fill material
may exhibit characteristics, such as chemical contamination, which may
be of environmental concern in certain circumstances'').
---------------------------------------------------------------------------
The list of waste that would be considered ``fill material'' in the
proposed rule, published in the Federal Register on April 20, 2000, was
also not exhaustive, but the examples were far more limited: ``rock,
sand and earth'' and ``placement of coal mining overburden.'' \76\
---------------------------------------------------------------------------
\76\ 65 Fed. Reg. 21299.
---------------------------------------------------------------------------
Below is a review of some of the wastes that are included in the
new ``waste in waters'' rule.
Coal mining slurry
Coal slurry, a cement-like substance generated during coal
processing, is another waste material that would expressly be allowed
to be dumped into waters under the Bush rule. As with valley fills, the
Corps has been permitting coal companies to dump their slurry waste
into impoundments created in streams for years.
Slurry spills destroy homes, contaminate drinking water and kill
wildlife; uncertainty over the long-term health and environmental
effects associated with major spills leaves residents fearing the
worst.\77\ During the devastating floods that hit West Virginia in May
of 2002, a coal slurry impoundment in McDowell County--an area
particularly hard-hit by floods--spewed blackwater slurry at a 5,000-
gallon-a-minute-rate.\78\ In October of 2000, an impoundment in eastern
Kentucky spilled 250 million gallons of waste, adversely affecting at
least 100 miles of streams creeks, and rivers.\79\ Perhaps the most
devastating coal slurry spill is the famous ``Buffalo Creek Disaster''
of 1972, where the collapse of a Pittston Coal dam in West Virginia
killed 125 people and left 4,000 homeless.\80\
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\77\ Alan Maimon, ``Coal Slurry Spill Still Taints E. Kentucky,
Residents Say,'' Kentucky Courier-Journal October 8, 2001.
\78\ AP, ``W. Va. Seizes waste site in effort to control spill,''
The Herald-Dispatch, May 8, 2002.
\79\ Geraldine Sealey, ``Coal Slurry Spill Hits Rivers Worst
Regional Disaster in Years,'' ABCnews.com, October 23, 2000.
\80\ Ken Ward, ``Alternatives to coal slurry ponds exist, study
says,'' Sunday Gazette-Mail, October 14, 2001.
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Coal slurry impoundments present a significant risk to downstream
waters, communities, and wildlife. Its explicit inclusion in the
definition of materials deemed suitable to use as ``fill'' in waters
will continue this harm unnecessarily, particularly when the National
Academy of Sciences concluded in an October 2001 study that there are
alternatives to coal slurry impoundments and called for a ``broad study
of ways to reduce or eliminate the need'' for the impoundments.\81\
There are numerous alternatives available for the disposal of coal
slurry other than dumping that waste into streams.\82\
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\81\ Id. (emphasis added).
\82\ See Morgan Declaration (``Alternative disposal methods include
the placement of fine refuse material in incised ponds that can be
located on the bench of surface mined areas. In addition coarse refuse
can also be placed in previously mined areas. Underground disposal of
both coarse and fine refuse is technologically feasible and underground
injection of fine refuse is currently conducted in West Virginia. Some
of the backfilling methods used in the hard rock mining industry could
be applicable to the underground disposal of coal waste and warrant
consideration.'').
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Hardrock mining tailings and other wastes
As noted in the 1999 National Research Council report, Hardrock
Mining on Federal Lands, modern open-pit hardrock mining generates vast
amounts of waste rock/overburden, tailings and beneficiation/processing
wastes.\83\ Often, these facilities are located directly in riverine
valleys, the so-called ``valley fills.'' As noted by the Council's
report, ``Obviously, if a valley is filled, the vegetation in the
valley will be destroyed. Once filled, the riparian vegetation that
requires the conditions found at the bottom of the valley cannot be
restored.'' \84\
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\83\ National Academy of Sciences, ``Hardrock Mining on Federal
Lands,'' (1999).
\84\ Id. at App. B 163.
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A 1992 Congressional Office of Technology Assessment report
estimated that the mineral mining industry generated about 1.7 billion
tons of extraction and beneficiation wastes in 1987 but cannot provide
a comparable estimate for mineral processing wastes.\85\ This estimate
does not even include the tonnage of waste rock and dirt overburden
generated at hardrock mining sites. According to the EPA's most
recently released Toxics Release Inventory, in 2000 alone, the metal
mining industry release 3,315,896,409 (3.3 billion) pounds of toxics to
land.
---------------------------------------------------------------------------
\85\ U.S. Congress, Office of Technology Assessment, Managing
Industrial Solid Wastes From Manufacturing, Mining, Oil and Gas
Production, and Utility Coal Combustion--Background Paper, (February
1992).
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The threat to western stream and wetlands that the new ``waste in
waters'' rule poses is obviously considerable, as these hardrock mining
wastes are explicitly included in the new definition of fill.
Construction and demolition debris
Waste is generated every time a building, road, or bridge is
constructed, remodeled, or demolished. Known as construction and
demolition (C&D) debris, this waste often contains bulky, heavy
materials, including concrete, wood, asphalt (from roads and roofing
shingles), gypsum (the main component of drywall), metals, bricks, and
plastics. C&D debris also includes salvaged building components such as
doors, windows, and plumbing fixtures.\86\
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\86\ http://www.epa.gov/OSWRCRA/non-hw/debris/about.htm
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The EPA estimates that 136 million tons of building-related C&D
debris was generated in the United States in 1996.\87\ The majority of
this waste comes from building demolition and renovation, and the rest
comes from new construction.\88\ This figure does not include debris
from road, bridge or land-clearing projects, which comprise a large
(but in this report, unquantified) portion of the C&D waste stream.\89\
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\87\ Franklin Associates (for the U.S. Environmental Protection
Agency), Characterization of Building-Related Construction and
Demolition Debris in the United States, (June 1998).
\88\ Id. at 8.
\89\ Id.
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Currently, an estimated 30 to 40 percent of C&D ``is managed
onsite, at [municipal solid waste] landfills, and unpermitted sites.''
\90\ Even a small fraction of this waste, if disposed of in wetlands,
streams, ponds, or rivers, could have a significant negative effect on
waters of the Nation.
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\90\ Id. at 3.
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Other Wastes
Other wastes specifically referenced in the final rule as being
eligible for the new Corps waste dumping permits include overburden
from other excavation activities, wood chips, and plastic. None of
these categories is further defined, and each seems like it could
encompass millions--if not billions--of tons of material nationwide.
All waste rock and dirt from any type of excavation operation must be
quite an enormous amount of waste. If the Corps allows excavation
operations to now dump that wastes into streams or wetlands instead of
moving it to a dry upland site, it is likely that thousands of acres of
wetlands and miles of stream will be destroyed as a result. No
explanation is provided in the final rule for including these
categories of waste in the new definition of fill material. And as with
all of the categories of waste fill, no environmental assessment of the
effects of dumping excavation waste, waste wood chips, or plastic waste
in waterways was conducted.
Garbage
The only waste not permitted to be used as fill material in waters
of the U.S. under the Bush administration's ``waste in waters'' rule,
at least not as a general matter, is trash or garbage. It is worth
noting that the agencies' rationale for this single exclusion should
also make waste rock, sand, soil, clay, plastics, construction debris,
wood chips, overburden from mining or other excavation activities,
slurry, or tailings and similar mining-related materials ineligible to
be used as fill--if the criteria enumerated by the agencies were fairly
applied.
``The agencies have added an exclusion for trash or garbage
to the definition of ``fill material'' for several reasons.
First, the preamble to the proposed rule and many of the
comments recognized that trash or garbage, such as debris, junk
cars, used tires, discarded kitchen appliances, and similar
materials, are not appropriately used, as a general matter, for
fill material in waters of the U.S. In particular, we agree
that the discharge of trash or garbage often results in adverse
environmental impacts to waters of the U.S. by creating
physical obstructions that alter the natural hydrology of
waters and may cause physical hazards as well as other
environmental effects. We also agree that these impacts are
generally avoidable because there are alternative clean and
safe forms of fill material that can be used to accomplish
project objectives and because there are widely available
landfills and other approved facilities for disposal of trash
or garbage.'' \91\
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\91\ 67 Fed. Reg. at 31134 (emphasis added.).
The discharge of waste rock, sand, soil, clay, plastics,
construction and demolition debris, wood chips, overburden from mining
or other excavation activities, slurry, or tailings and similar mining-
related materials also results in adverse environmental impacts to
waters of the U.S. by creating physical obstructions that alter the
natural hydrology of waters and may cause physical hazards as well as
other environmental effects, and their disposal in waters is also
generally if not always avoidable.
As the court rightly observed in Kentuckians For The Commonwealth:
``The obvious perversity of this proposal forced the agencies
to suggest baseless distinctions among wastes: ``trash'' and
``garbage'' are out; plastic, construction debris and wood
chips are in. The final rule for ``discharge of fill material''
highlights that the rule change was designed simply for the
benefit of the mining industry and its employees. Only one type
of waste is added to the otherwise constructive list:
``overburden, slurry, or tailings or similar mining-related''
waste are now permissible fill in the nation's waters.'' \92\
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\92\ Kentuckians For The Commonwealth at 43 (emphasis added).
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the national mining association gets its way
Finally, there were two provisions of the proposed rule that
somewhat limited the use of Sec. 404 fill permits for waste materials
other than coal mining overburden. While neither of these two
provisions were adequate substitutes for the broad-based waste
exclusion in the existing regulations that was proposed for deletion,
both of these provisions weighed against the permitting of processed or
contaminated waste materials under Sec. 404.
Both provisions were removed from the Bush administration's final
rule at the request of the National Mining Association and its member
groups, including both coal mining and hardrock mineral mining
interests that wanted the final rule written to their
specifications.\93\ In the final rule, the Bush administration gave
them exactly what they asked for.
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\93\ See Memorandum from John Lishman, Wetlands and Aquatic
Resources Regulatory Branch, Office of Water, U.S. EPA, ``April 6,
2001, Meeting with National Mining Association Representatives on
Proposed Revisions to the Clean Water Act Regulatory Definitions of
``Fill Material'' and ``Discharge of Fill Material,'' (April 12, 2001).
This memo recounts for the rulemaking record a meeting between NMA
representatives and EPA officials in which NMA objected to two
provisions in the April 2000 proposal that would have limited the use
of Sec. 404 fill permits for certain categories of waste, while
reiterating their overall support for the rule.
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``Unsuitable Fill''
First, the preamble to the April 2000 draft rule suggested that the
final rule would contain a definition of ``unsuitable fill material''
and asked for public comments on this proposal. The proposal stated
that the Corps could include within its regulations a definition for
``unsuitable fill material'' that would read generally as follows:
The term ``unsuitable fill material'' means any material
proposed to be discharged into waters of the United States that
would fall under the definition of ``fill material,'' but which
the District Engineer determines to have physical or chemical
characteristics that would make the material unsuitable for a
proposed discharge into waters of the United States, so that
there is no reasonable possibility that a section 404 permit
can be granted for the proposed discharge of that particular
material. For example the District Engineer may determine that
fill material is unsuitable because of the potential for the
leaching of contaminants from the fill material into
groundwaters or surface waters, or because the proposed fill
material is too light or unstable to serve reliably for its
intended purpose (e.g., bank stabilization or erosion control).
In most circumstances, heterogeneous solid waste, discarded
appliances, and automobile or truck bodies would qualify as
unsuitable fill material. In addition, material containing
toxic pollutants in toxic amounts (see section 307 of the Clean
Water Act) is unsuitable fill material.\94\
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\94\ 65 Fed. Reg. at 21296-21297.
In its comments to the proposed rule, NMA argued that the inclusion
in the rule of a definition of unsuitable fill material ``could lead to
the denial of permits that presently receive authorizations, and it
would vest the District Engineer (``DE'') with unfettered discretion to
reject Sec. 404 applications.'' \95\ Phelps Dodge, the country's
largest copper mining company, complained ``the agencies are proposing
to add a new definition to its 404 permitting regulation for
'unsuitable fill material'. . . . Examples of unsuitable fill materials
include materials that have the potential for the leaching of
contaminants to groundwater or surface water or materials that contain
toxic pollutants in toxic amounts. Phelps Dodge opposes the adoption of
the proposed definition of unsuitable fill material . . . The vast
majority of fill materials, including rock and dirt, has the potential
to leach contaminants.'' \96\
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\95\ National Mining Association, Re: Proposed Changes to the
Definition of Fill Material, (July 17, 2000) at 2.
\96\ Phelps Dodge Corporation Comments on Proposed Revisions to the
Clean Water Act Regulatory Definitions of ``Fill Material'' and
``Discharge of Fill Material,'' at 5.
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Apparently agreeing with the mining companies that no waste (other
than trash or garbage) generated by any industry is unsuitable for
dumping into waters of the United States, the Bush administration
dropped the ``unsuitable waste'' category from the final rule.
Discharges with Effluent Limitations
Second, the definition of fill in the April 2000 proposal contained
an exception not included in the final rule: ``The term fill material
does not include discharges covered by proposed or final effluent
limitations guidelines and standards under sections 301, 304 or section
306 of the Clean Water Act (see generally, 40 CFR part 401), or
discharges covered by an NPDES permit issued under section 402 of the
Clean Water Act.'' \97\
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\97\ 65 Fed. Reg. at 21299.
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At that time, the EPA and Corps argued that the proposed ``effects-
based'' definition of fill material required this clarification
``because, read literally, it could subject to regulation under CWA
section 404 certain pollutants that have been, are being, and should be
regulated by the technology and water quality based standards used in
the section 402 program.'' \98\ Examples given were industrial waste or
sewage that contain suspended solids which ultimately will settle to
the bottom following discharge and could raise the bottom elevation of
the water, potentially making them eligible for a Sec. 404 fill permit
(and thus possibly exempt from the Sec. 402 permitting
requirement).\99\ Therefore, the agencies reasoned, ``where such
pollutants are covered by proposed or final effluent limitations
guidelines and standards under section 301, 304, or 306 of the CWA or
the discharge is covered by a . . . permit issued under section 402 of
the CWA, the proposed rule would exclude the discharge from the
definition of fill.'' \100\
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\98\ 65 Fed. Reg. 21295 (emphasis added).
\99\ Id.
\100\ Id.
---------------------------------------------------------------------------
The Bush administration's rationale for deleting this language from
the final rule states:
Several of the comments raised concerns that the exclusion
included in the proposed definition for discharges covered by
proposed or existing effluent limitation guidelines or
standards or NPDES permits was vague and would result in
uncertainty with respect to the regulation of certain
discharges. Other comments stated that it was inappropriate for
rule language to allow reliance on proposed effluent limitation
guidelines or standards before they are promulgated as a final
rule. In addition, including the language in the actual rule
could raise questions as to whether the reference to effluent
guidelines was meant to refer only to those in existence at the
time today's rule was promulgated or whether the reference was
prospective.\101\
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\101\ 67 Fed. Reg. at 31135. The agencies do go on to say
``although we have removed the language in question from the rule
itself, we emphasize that today's rule generally is intended to
maintain our existing approach to regulating pollutants under either
section 402 or 404 of the CWA.'' Id.
Again, these were the concerns of the NMA and other mining
companies. In their comments, the NMA said they saw ``a potential
ambiguity arising . . . whereby discharged material that has the effect
of replacing portions of waters of the U.S., or substantially raising
the bottom elevation for such waters, could conceivably result in
attempts to be excluded from Sec. 404 coverage simply due to the
presence of constituents in the material that would be literally
pollutants for which [effluent limits] exist if such constituents were
discharged in waste water (i.e., mine drainage or process water)
subject to Sec. 402 permitting requirements.'' \102\
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\102\ NMA comments at 7 (emphasis in original).
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In other words, as long as they dump enough tailings or other waste
``constituents'' into a waterway so that the waterway is filled, mining
companies and others should be able to apply for a Sec. 404 ``fill''
permit from the Corps for the part of the waste discharge that would
bury the water--even if the waste to be discharged has an effluent
limitation and would otherwise be regulated under Sec. 402 of the law.
This seems to create a potential loophole--most likely an illegal one--
that could give companies the incentive to dump more waste into waters
instead of less. But, again, the mining companies got their way with
the Bush administration.
CONCLUSION
If it ever goes into effect, which Earthjustice hopes will never be
the case, the ``waste in waters'' rule change would give the Corps
discretion to permit any industry, governmental agency, or individual
to bury rivers, streams, wetlands and other waters all across the
country under tons of coal and hardrock mining waste, construction or
demolition debris, tires, coal ash or almost any other sort of solid
waste. It short, the Bush administration's rule would allow the Corps
to issue permits for the disposal of virtually any waste in any waters
of the United States.
This is likely the worst thing to happen to the Clean Water Act and
the future of our nation's waterways since the law was passed 30 years
ago.
What is most startling about the Bush administration's new rule is
that it was finalized without any review whatsoever of the
environmental and societal harm that eliminating the 25-year old
prohibition on using waste as fill materials will have as our nation's
wetlands, streams, lakes, ponds, rivers and coastal areas are
obliterated under piles of industrial wastes.
The administration ignored the information prepared by and for its
own agencies in order to allow the destruction of mountaintop removal
to continue. It gave in to all of the demands of the mining industry to
open up the rule to allow virtually any kind of mining waste, including
those contaminated with toxins, to be dumped in waterways. It conducted
no environmental review of any kind about the potential, likely or
known harm that this rule change will allow. In a word, what this
administration has done is unconscionable.
Appalachia is already treated as the country's sacrifice zone in
pursuit of a backward-looking national energy policy too reliant on
extracting non-renewable, polluting sources of power like coal from the
Earth. Now, the Bush administration has added to this sacrifice the
integrity of the nation's waters from coast to coast and everywhere in
between.
Because Judge Haden has enjoined the Corps from issuing any Clean
Water Act permits for the purpose of waste disposal, there may not be
an immediate need for Congress to act to overturn the administration's
actions. But as the legal battles on this rulemaking continue, as they
undoubtedly will for some time, it could make sense for Congress to
step in and settle the matter once again by reconfirming that allowing
waste dumps to bury waters is wholly inconsistent with the letter and
the purpose of the law.
In any event, Members of Congress who support the goal of
protecting the integrity of the nation's waters as we near the 30th
anniversary of the Clean Water Act, should take a stand publicly
against the Bush administration's ``waste in waters'' rule change.
Thank you again, Mr. Chairman, for the opportunity to testify on
this important issue.
______
Responses by Joan Mulhern to Additional Questions
from Senator Lieberman
Question 1. In testimony of EPA and the Corps, they described the
revised definition of fill material as ``consistent with the current
practice of the agencies.'' According to the final rule, examples of
wastes now eligible for Sec. 404 permits include, but are not limited
to ``rock, sand, soil, clay, plastics, construction debris, wood chips,
[and] overburden from mining or other excavation activities'' in
addition to ``placement of overburden, slurry, or tailings or similar
mining-related materials'' are also to be permitted. What is your view
of the claim that the revised definition is ``consistent with the
current practice of the agencies''? What is your view of the examples
of wastes cited by the agencies as now eligible for permits?
Response. The claim by the EPA and Corps that the new definition of
fill is ``consistent with the current regulatory practice'' is partly
but not wholly true. To any extent that it is true, it is not a valid
excuse for the administration's decision to change in the definition of
fill in an attempt to make the rules conform to the agencies' past
illegal practices.
There is no exception to the Clean Water Act that gives polluters
the right to continue to break the law just because it has been the
practice of Federal regulators to allow them to do so. Neither do the
past practices of the agencies give them the legal authority to create
new exceptions to the Clean Water Act through regulatory revisions.
Only Congress has the ability to amend the Clean Water Act.
Earthjustice's view regarding all of the wastes listed in the May
3rd rule as now eligible ``fill'' for Clean Water Act ' 404 permits is
that there are no circumstances under which these kinds of wastes
should be allowed to be placed into waters of the US for disposal. The
inevitable and intentional effect of this rule change, if it is ever
allowed to go into effect, will be to allow any industry to seek
approval from the Corps to dump almost any kind of industrial waste
into waterways--just as long as they dump enough waste to ``fill'' the
water or at least raise the bottom elevation of the waterway. The fate
of every wetland, stream, lake, river, pond and coastal water in the
country is thereby placed at risk by the Bush administration's actions.
It is true that the Corps and EPA have looked the other way for
many years while coal mining companies have dumped millions of tons of
waste rock, dirt and other materials generated by mountaintop removal
into Appalachian streams, obliterating those waters.
According to most estimates, over one thousand miles of streams in
Kentucky and West Virginia have been destroyed forever by this
violation of the Clean Water Act. As Senator Lieberman noted in his
opening statement at the hearing, Corps officials have admitted under
oath that they had no legal authority to permit this destruction but
they routinely did so anyway, explaining that they just ``oozed'' into
this lawless practice.
As for all of the other wastes that the new rule would allow to be
dumped into waters of the United States--rock, sand, soil, clay,
plastics, construction debris, wood chips, overburden from other
excavation activities, slurry, and tailings or similar mining-related
materials--the Corps and EPA have provided no analysis whatsoever to
substantiate their claim that allowing these wastes to be dumped into
wetlands, streams, lakes, rivers and other waters protected by the Act
is ``consistent with the current regulatory practice of the agencies.''
Both before and after the hearing, Earthjustice asked EPA to provide
examples of where such waste dumping has been permitted. So far, we
have not been provided with any documents to substantiate the agency's
assertion that permitting such waste disposal is routine or has
occurred at all under the Corps' Sec. 404 regulatory practice.
The Bush administration contends that elimination of the ``waste
exclusion'' will have no environmental effect because the agencies
already allow waste dumps in waters. As noted above, it is not clear
whether or to what extent this assertion is even true when it comes to
wastes other than mountaintop removal waste. In any case, the claim
that changing the rules to allow the continuation of waste dumping
practices will cause no additional harm is absurd on its face. Whatever
the number of waters the Corps may have already allowed industries to
bury with their wastes, pristine streams, wetlands, lakes, rivers,
ponds and coastal waters across the country will be filled and
destroyed in the wake of this rule change. Obliterating waters has a
very negative effect on the environment.
The rule change to allow industrial wastes, including coal mining
waste, to be dumped into waters is simply indefensible. It is directly
contrary to the intent of Congress when it passed the Clean Water Act
in 1972. The central purpose of the Act is to ``restore and maintain
the chemical, physical, and biological integrity of the Nation's
waters.'' No activity is more inconsistent with the goal of protecting
the integrity of waters than allowing them to be buried forever under
piles of industrial waste. It was precisely for the purpose of ending
the use of our country's waterways as waste dumps to the exclusion of
other uses that the Clean Water Act was adopted in the first place.
Question 2. Please describe alternatives to the agencies allowing
wastes to be placed in waters.
Response. There are always alternatives to placing wastes in
waterways for disposal. Disposal of solid waste materials is not a
``water dependent'' activity. There is never any technological reason
why such wastes should ever be placed into streams, wetlands, lakes,
rivers or other waters--it can always be taken somewhere else.
Ecologically, again there is never any justification for burying waters
with waste, as the nation's waters are irreplaceable resources that
protect communities from flooding, provide drinking water and
recreational opportunities, sustain local economies and provide habitat
and food for a wide variety of species. It is inexcusable, as well as
illegal, to allow these resources to be forever destroyed by waste
dumping.
Alternatives to placing wastes in waterways include (1) not
generating the waste (or such large amounts of waste) in the first
place; and (2) disposing of any wastes that are generated in a dry
upland area instead in a waterway.
The EPA and Corps have not provided even a superficial
justification for allowing construction and demolition debris, hardrock
mining waste, or other wastes to be placed in waters. No rationale
whatsoever is offered for including these wastes in the new ``waste
dump in waters'' rule.
For mountaintop removal mining wastes, the Bush administration and
the coal mining companies claim that there are no alternatives, but
again, provide no real analysis. In fact, there are alternatives. The
first is to mine in a way that does not generate as much waste as
completely blowing off the tops of mountains does. This is not the only
way to mine coal, although some companies argue it is the cheapest. But
the majority of existing mining permits in West Virginia and Kentucky
have been issued without any valley fills.
Even for coal mining operations that do seek approval to bury
streams, alternatives are likely to be available. These alternatives
include placing waste on previously mined areas that were not returned
to their original contour or other previously disturbed areas such as
old refuse impoundments; using side hill fills; and taking waste to
other more distant disposal locations. In addition, coal companies can
redesign the configuration of their operations and change their mining
equipment to reduce fill impacts. According to mining engineer John
Morgan, an expert witness in the ongoing litigation, the impact of
valley fill restrictions would vary from mine to mine and requires
site-specific engineering analyses, so broad brush statements that the
coal companies have no choice but to dump their wastes in streams are
likely to be incorrect at many sites.
One recent example dramatically illustrates not only that
alternatives are readily available, but also that the Corps will not
require them nor will the coal companies utilize such alternatives
unless forced to do so.
On June 3rd, the company that now owns the very mine that is the
subject of the Kentuckians For The Commonwealth lawsuit wrote to the
Corps to say that they can mine their entire site without filling any
waters of the US protected by the Clean Water Act. Originally, this
mine sought and received approval from the Corps to create 27 valley
fills that would bury 6.3 miles of streams--an extremely large
mountaintop removal operation. In fact, this operation was so
potentially devastating to the environment that the EPA threatened to
use its authority under the Clean Water Act, seldom invoked, to veto
the permit. But the Corps persisted in its plan to approve the 27
valley fills, and under the Bush administration, the previously
threatened veto evaporated and the Corps granted the approval for the
project.
Less than a month after Judge Haden's decision enjoining the
``waste dump'' rule, Beech Fork mining company, the current owner of
the site, wrote to the Corps to announce they determined they could
mine the coal on their site--all of it--without creating any valley
fills in waters of the US. The company's letter stated that they had
bought an old mine site adjacent to theirs that ``provides substantial
acreage for spoil disposal out of the waters of the United States.'' So
this company that was proposing over two dozen valley fills--for which
the Corps presumably determined that no alternatives existed--suddenly
found a way to mine the entire site without the massive stream
destruction originally proposed and approved.
Underscoring the fact that this debate is not so much about the
absence of alternatives as it is finding the cheapest waste disposal
option available, Beech Fork went on to say in its letter that ``[I]f
it is determined that Judge Haden's order only applies prospectively
and not to Beech Fork's original authorization, or should Judge Haden's
decision be reversed on appeal, Beech Fork intends to operate as
initially planned to operate pursuant to its original authorization.''
(Letter attached.)
Clearly, the Corps and EPA have never required coal mining
companies to fully explore alternatives to dumping waste in streams.
Because the agencies have not enforced the Clean Water Act, coal
companies have found no reason to look elsewhere than the nearest
valley and stream to dump their wastes. When citizens went to court
themselves to enforce the Act, the Bush administration moved quickly to
change the rules in an attempt to allow the companies to keep dumping
their wastes in waterways rather than changing their practices, finding
alternatives, and obeying the law.
Question 3. Most of the testimony at the hearing revolved around
mountaintop removal and subsequent placement of mine overburden into
waters. Do you see the implications of this rule confined to specific
regions and practices, or are there national implications for water
quality? Please explain what implications, if any, you see on a
regional and/or national basis?
Response. While no other region of the country is likely to suffer
the detrimental effects of this rule change as severely as the coal
field communities of Appalachia, the destruction of wetlands, streams,
rivers, lakes and other waters will occur nationwide. Section 404 of
the Clean Water Act, which authorizes the Corps to permit certain
activities that ``fill'' waters, applies to all waters of the United
States covered by the Act. Changing the definition of ``fill'' material
to delete the waste exclusion, as the administration has done, places
every water in the country in jeopardy. In other words, any industry
that generates waste--other than traditional garbage--can now seek a
permit from the Corps to allow them to dump their waste into any
waterway anywhere, a practice prohibited by the Corps' own regulations
for the last quarter century.
Expanding the Sec. 404 permitting jurisdiction to allow waters to
be buried under hardrock mining tailings, other excavation wastes,
construction and demolition debris, plastic waste and other refuse will
have a significant destructive effect on the environment nationwide.
Permitting industries to bury and obliterate waterways with waste will
have severe adverse effects on water quality, water supplies, fish and
wildlife habitat, flood control and floodplain management, as well as
other health, safety, environmental and economic consequences for the
communities wherever such waste fills are allowed.
The Bush administration's new definition of ``fill'' says that
waters can be used as waste dumps, so in the water is where a lot of
these wastes will end up. Given the quantity of industrial waste
generated in the country each year, the prospects for our nation's
waterways are frightening. The enormous volumes of just two of the
several categories of waste explicitly listed as ``fill'' in the new
rule--construction debris and hardrock mining waste--reveal how
damaging this rule change will be, if its implementation is not blocked
by the courts or overturned by Congress.
The EPA estimates that 136 million tons of building-related
construction and demolition debris (C&D) was generated in the United
States in 1996, and this is just one category of C&D waste. A 1992
Congressional Office of Technology Assessment report estimated that the
hardrock mineral mining industry generated about 1.7 billion tons of
extraction and related wastes in 1987, and this does not include
mineral processing and other related hardrock mining wastes.
When companies are allowed to fill waters with waste, water quality
is not only harmed, the waterway is obliterated. As Judge Haden
explained in his opinion in the Bragg case in October 20, 1999:
When valley fills are permitted in intermittent and perennial
streams, they destroy those stream segments. The normal flow
and gradient of the stream is now buried under millions of
cubic yards of excess spoil waste material, an extremely
adverse effect. If there are fish, they cannot migrate. If
there is any life form that cannot acclimate to life deep in a
rubble pile, it is eliminated. No effect on related
environmental values is more adverse than obliteration. Under a
valley fill, the water quantity of the stream becomes zero.
Because there is no stream, there is no water quality.
The same effect--obliteration--will occur in other waters,
including ephemeral streams, which are vitally important to downstream
water quality, wetlands, and river segments when they buried under
piles of mining tailings or construction debris or excavation wastes.
While the destruction of waters is unlikely to occur elsewhere on the
scale that it does in Appalachia, it is undeniable that the effect of
``filling'' waters with waste is that the waters are destroyed.
Nonetheless, the Corps and EPA completely failed to analyze the
regional or nationwide environmental consequences of eliminating the
waste exclusion from the definition of fill material. The Bush
administration conducted no studies or analyses whatsoever to measure
these impacts. Given the enormous quantities of these wastes generated
every year across the country, we can only conclude that the nationwide
effect of the rule change on the nation's waters will be significant.
Question 4. Please describe your views of the EPA's and the Corps
responsiveness to public comments following the April 2000 proposed
fill rule definition change and public involvement in the changes to
the rule announced on May 3, 2002.
Response. Under the Clinton administration, the agencies were very
responsive to the public's comment and concerns. In finalizing the
change in the definition of fill, the Bush administration agencies were
responsive to only one set of comments--those of the mining industry.
The overwhelming majority of comments filed on the proposed rule--
over 17,000--strongly opposed deleting the waste exclusion from the
definition of ``fill'' material. Fewer than a dozen comments--all from
coal or hardrock mineral mining companies plus one from the asphalt
manufacturers' association--supported the proposal to eliminate the
waste exclusion to allow waste dumping in waters.
The Clinton administration did not finalize the proposal to
eliminate the waste exclusion from the rule, consistent with the
comments of the overwhelming majority of commenters. In contrast, Bush
administration completely ignored the public comments; not only did it
finalize this destructive rule change, it did so exactly to the
specifications of the mining industry.
The response to public comments summarized in the preamble to the
final rule and contained in a separate ``responsiveness'' document are
not responsive at all to the vast majority of comments--those opposed
to the rule change. Both documents are replete with unresponsive,
conclusory, and unsubstantiated statements that repeat the same
assertions over and over without providing any factual information or
environmental analysis to support the administration's oft-repeated
claims that this rule simply conforms to past practice and will not
harm the environment.
Not only did the Bush administration ignore the concerns of the
public to heed the desires of the mining industry to get rid of the
waste exclusion generally, but the only changes made in the final rule
were changes the National Mining Association and its allies asked the
agencies to make.
Unfortunately, both of the NMA changes eliminated provisions that
were in the proposed rule that would have excluded at least some
categories of waste from being eligible as ``fill.'' That is, under the
Clinton administration, there were two provisions in the proposed rule
that would have kept at least some modest limits on dumping certain
industrial waste into waterways under Sec. 404. While neither of these
two provisions were adequate substitutes for the broad-based waste
exclusion that was proposed for deletion, both would have restricted
the permitting of processed or contaminated waste materials under
Sec. 404.
Both provisions were removed from the Bush administration's final
rule at the request of the National Mining Association and its member
groups, including both coal mining and hardrock mineral mining
interests that wanted the final rule written to their specifications.
In the final rule, the Bush administration gave them exactly what they
asked for.
First, the preamble to the April 2000 proposed rule suggested that
the final rule would contain a definition of ``unsuitable fill
material.'' The proposal stated that the Corps could include within its
regulations a definition for ``unsuitable fill material'' that would
read generally as follows:
The term ``unsuitable fill material'' means any material
proposed to be discharged into waters of the United States that
would fall under the definition of ``fill material,'' but which
the District Engineer determines to have physical or chemical
characteristics that would make the material unsuitable for a
proposed discharge into waters of the United States, so that
there is no reasonable possibility that a section 404 permit
can be granted for the proposed discharge of that particular
material. For example the District Engineer may determine that
fill material is unsuitable because of the potential for the
leaching of contaminants from the fill material into ground
waters or surface waters. . . . In most circumstances,
heterogeneous solid waste, discarded appliances, and automobile
or truck bodies would qualify as unsuitable fill material. In
addition, material containing toxic pollutants in toxic amounts
(see section 307 of the Clean Water Act) is unsuitable fill
material. 65 Fed. Reg. at 21296-21297 (emphasis added).
In its comments on the rule, the mining association argued that
having a category of ``unsuitable fill material'' could lead to the
denial of some permits--obviously not the outcome they desired. So the
unsuitable category was dropped in the final rule.
Second, the definition of fill in the April 2000 proposal contained
an exception for discharges covered by proposed or final effluent
limitations guidelines and standards of the Clean Water Act and
discharges already covered by a permit issued under Sec. 402 of the
Act. At the time, the EPA and Corps argued that the proposed ``effects-
based'' definition of fill material required this clarification
``because, read literally, it could subject to regulation under CWA
section 404 certain pollutants that have been, are being, and should be
regulated by the technology and water quality based standards used in
the section 402 program.''
But the NMA did not like this proposal either, again because it
might limit mining companies' ability to get ``fill'' permits for some
waste discharges. So despite the agencies' earlier concerns, the Bush
administration dropped this language from the final rule as well.
In the final rule, the Bush administration took the position, in
accordance with NMA's instructions, that no waste (other than trash or
garbage) generated by any industry is unsuitable for dumping into
waters of the United States, even if it is toxic. Both the ``unsuitable
waste'' category and the effluent limitation language were gone from
the final rule. The mining companies completely got their way; theirs
were the only comments to which the Bush administration rule change was
responsive.
American Rivers, Defenders of Wildlife, Earthjustice,
Endangered Species Coalition, Friends of the Earth, Mineral
Policy Center, League of Conservation Voters, National
Audubon Society, National Parks Conservation Association,
National Wildlife Federation, Natural Resources Defense
Council, Physicians for Social Responsibility, Scenic
America, Sierra Club, The Coast Alliance,
Trout Unlimited, U.S. Public Interest Research Group,
World Wildlife Fund,
March 8, 2002.
Hon. George W. Bush,
President of the United States,
The White House,
1600 Pennsylvania Avenue, NW.,
Washington, DC.
Dear Mr. President: Our organizations are deeply concerned that
your Administration is poised to change an important Clean Water Act
regulation in order to authorize the Army Corps of Engineers to permit
coal mining companies and other industries to bury waters of the United
States with waste materials. The proposal would eliminate from existing
regulations a long-standing prohibition against using waste materials
to fill streams, rivers, lakes and wetlands. Dropping the waste
exclusion from the law would threaten bodies of water across the
country and is flatly inconsistent with the goals of the Clean Water
Act. We urge you to direct the Army Corps and the Environmental
Protection Agency not to bury waters with waste dumps by changing clean
water regulations.
This rule change is primarily an effort to legalize the destructive
practice known as mountaintop removal coal mining, in which the tops of
mountains are literally blown apart to reach seams of coal and the
millions of tons of waste generated are dumped into nearby streams.
Just in West Virginia alone, over 1000 miles of streams have been
destroyed or targeted for destruction by this form of mining. The
extreme environmental consequences of this rulemaking would not end
with mountaintop removal coal mining; the rule change would also
sanction other waste disposal practices in waters of the United States,
including the dumping of hardrock mining waste and other industrial
wastes.
At issue is the Army Corps' definition of ``fill,'' which
determines the scope of the agency's jurisdiction to issue permits
pursuant to section 404 of the Clean Water Act. Under the current
definition, ``fill'' means any material ``used for the primary purpose
of replacing portions of the waters of the United States with dry land
or which changes the bottom elevation of a water body; except that the
term does not include any pollutant discharge composed of waste.'' The
proposed new definition would say that any material that has the effect
of replacing portions of waters with dry land or changing the bottom
elevation of a water body is permissible for use as ``fill'' material.
While there are some environmental gains from changing from the
``primary purpose'' to an ``effects'' test, the proposed rule is
nonetheless completely unacceptable because it would open up waters
across the Nation for filling with wastes by deleting the waste
exclusion in the existing rule.
Unifying EPA and Army Corps definitions of ``fill'' makes sense,
and other changes to the definition could resolve some ambiguity in the
current regulatory scheme, but the proposed rule change goes far beyond
those legitimate goals. The rule would result in an unconscionable
weakening of the Clean Water Act by allowing the Corps to permit waters
to be turned into waste dumps--the very thing the Act was adopted to
prevent.
Changing the definition of ``fill'' was proposed by the Clinton
administration in April 2000. During the notice and comment period,
over 17,000 members of the public, over 20 national environmental
groups and dozens of Members of Congress objected to the plan to strip
the waste exclusion from the definition, while only a handful of mining
companies and industry trade groups offered support for the new rule.
As a result, the previous Administration never finalized the change. We
ask you to reconsider this proposal as well. Instead of moving forward
with this change, you should ensure that the Corps cannot permit
disposal of millions of tons of industrial wastes into our waterways or
take any similar action that would so dramatically compromise our clean
water laws.
In sum, we oppose any changes to Clean Water Act rules that would
allow waters of the United States to be buried and forever destroyed by
coal mining waste, hardrock mining waste, and other industrial wastes.
We respectfully ask you to uphold the integrity of the Clean Water Act,
which was passed 30 years ago with the goal of protecting the integrity
of the nation's waterways and the health of the country's communities.
Our organizations stand ready to work with you to achieve this goal.
Sincerely,
Mark Van Putten, President and CEO, National Wildlife
Federation; Thomas C. Kiernan, President, National Parks
Conservation Association; Brooks Yeager, Vice President, Global
Threats, World Wildlife Fund; John Flicker, President, National
Audubon Society; Rodger Schlickeisen, President, Defenders of
Wildlife; Rebecca R. Wodder, President, American Rivers; Meg
Maguire, President, Scenic America; Jackie Savitz, Executive
Director, The Coast Alliance; Robert K. Musil, PhD, MPH,
Executive Director and CEO, Physicians for Social
Responsibility; Deb Callahan, President, League of Conservation
Voters; Carl Pope, Executive Director, Sierra Club; Vawter
Parker, Executive Director, Earthjustice; John Adams,
President, Natural Resources Defense Council; Stephen
D'Esposito, President, Mineral Policy Center; Brent
Blackwelder, President, Friends of the Earth; Gene Karpinski,
Executive Director, United States Public Interest Research
Group; Brock Evans, Executive Director, Endangered Species
Coalition; and Charles Gauvin, President and CEO, Trout
Unlimited.
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Statement of Michael Callaghan, Cabinet Secretary, West Virginia
Department of Environmental Protection
Thank you, Mr. Chairman, and members of the subcommittee, for this
opportunity to come before you to speak on an important issue for
Westirginia and southern Appalachia.
My name is Michael Callaghan. I am the Cabinet Secretary for the
West Virginia Department of Environmental Protection. I am here today
to speak with you about the policy and practice of using valley fills
in coal mining operations in West Virginia and southern Appalachia.
While most of my testimony relates to impacts on the coal industry, the
fill rule has significant implications in many areas that impact the
economy throughout the country.
I am a fifth generation West Virginian who grew up in the southern
coalfields. As a citizen and an avid fisherman and outdoorsman, I
appreciate both the benefits and the burdens brought upon West Virginia
by more than one hundred years of coal mining. West Virginians have
been debating both the costs and benefits of the mining industry for
many years. Health, safety, employment and environmental issues are
implicated by mining practices.
Mountaintop removal mining is, as the name suggests, a mining
method in which soil and rock are removed from the tops of mountains to
expose a seam of coal. The excess soil and rock, known as spoil, is
commonly placed in nearby valleys and hollows, thereby creating large
sloped areas called valley fills. Mountaintop removal is the most
economical way to mine coal in steep slope terrain, such as southern
West Virginia, but it has the consequence of filling miles of mountain
streams with rock and dirt. Other forms of mining such as underground
mining and contour mining, also make use of valley fills, but to a
lesser degree.
The demand for low sulphur coal has been steadily increasing over
the last decade, and the southern Appalachian coal fields, which
includes West Virginia, are a critical source of low sulphur coal. In
West Virginia in 2000, 169 million tons were mined through surface and
underground operations. That increased to 175 million tons in 2001 and
tonnage is expected to top 180 million in 2002.
The state of West Virginia issues mining permits through a
federally approved program and has primacy of its program through the
Department of the Interior. That is, the Surface Mine Control and
Reclamation Act (SMCRA) and its regulations dictate most aspects of the
permitting process implemented by the state, including the permitting
of valley fills. In West Virginia, among numerous other requirements,
every permit for a mining operation which proposes filling a stream
must include detailed provisions for minimizing the amount of excess
spoil material, a storm water runoff analysis to prevent flooding and
detailed engineering requirements to ensure structural stability. In
other words, our state has a regulatory structure to analyze the impact
of valley fills prior to the issuance of a state permit.
In addition to state approval, before any waters of the United
States can be filled, the mining company must obtain a Section 404
permit under the Clean Water Act from the U.S. Army Corps of Engineers.
The Corps has interpreted the Clean Water Act to authorize construction
of valley fills.
Over the last 20 years, the state of West Virginia and Federal
oversight agencies, which include the Environmental Protection Agency,
the Army Corps of Engineers and the Office of Surface Mining, issued
permits that authorized the construction of more than 4,000 valley
fills in West Virginia. Those fills have ranged in size from a few
hundred yards to over 2 miles in length and affected approximately 750
miles of our streams, creeks and drainageways.
To better assess the practice of mountaintop mining, the Federal
oversight agencies and the state of West Virginia have been working for
3 years on an environmental impact statement to address mountaintop
mining and valley fills. The parties are far from reaching a conclusion
on the measurable, long term impact of mountaintop mining and valley
fills upon the environment and the economy.
One conclusion about mountaintop mining and valley fills that is
certain though is that the use of these practices has enabled the
mining industry to flourish and has put thousands of West Virginians to
work. In fact, under challenging market conditions, production in West
Virginia has steadily increased. In numerous communities in southern
West Virginia, the coal mining industry has, for many years, formed the
backbone of the economy. The industry draws its work force from the
local population and many additional jobs are sustained through
businesses that support mining, such as transportation, equipment sales
and maintenance.
However, over the past several years, we have seen a decline in
mining-related employment as increasingly large scale technology and
automation facilitate the mining of larger tracts of land with fewer
people. We anticipate that this trend will increase over the next 15
years as the most accessible reserves of coal are mined out and
additional automation becomes available to the mining industry.
Market factors such as western coal competition, depletion of
reserves, economies of scale and industry mergers will likely lead to a
decline of employment in the mining industry in Appalachia. This will
leave this region, especially West Virginia, with an economic void.
Ironically, valley fills and mountaintop removal sites can serve as
effective development tools for filling the gap left by the mining
industry. That is, when properly planned, mountaintop mining sites have
proven ideal locations for industrial, commercial, residential and
recreational development. The flat topography of mountaintop removal
sites in areas typically devoid of prime building locations has already
proven beneficial to several businesses, including a large wood
products factory, a world-class golf course, a multi-faceted
recreational park and residential development.
My department is working closely with the state economic
development office to more fully utilize former surface mining sites.
And in the coal mining counties, individuals like Mike Whitt of the
Mingo County Economic Development Authority have risen as leaders in
the field, working closely with coal mining companies, state and local
officials and prospective businesses, to successfully maximize the use
of former surface mining sites as opportunities for growth. These
efforts must be increased in the future to reinvorgate the economy of
southern West Virginia.
Unfortunately, former mining sites historically have been
underutilized as economic development tools. Of the several hundred
surface mining sites with valley fills, less than two dozen have been
used for economic or community development. State and Federal law has
not compelled mine operators to implement a beneficial post mining land
use unless the company is seeking a variance from requirements to
return a site to its approximate original contour. In such instances,
the permit applicant must demonstrate that the post mining land use
will be equal to or better than the premining use of the site.
Currently, there are 69 applications pending with my agency that
contemplate filling waters of the United States. Of those applications,
only seven seek a variance and propose post-mining land uses that are
equal to or better than pre-mining land uses.
Prior to leading DEP, I was a Federal prosecutor with experience
prosecuting environmental violations. When I assumed office a little
more than a year ago, one of my first acts was to appoint an
environmental prosecutor from the Department of Justice in Washington
to take control of our mining regulatory program. Our agency is now
focused upon the strict application of the law as it applies to our
mining permits. We have restructured our mining program to be more
efficient and responsive to the public. Additionally, we are making the
best use of emergency Federal funding with a state match to upgrade our
staff and to improve our technical ability.
Please know that I am fully committed to the enforcement of the
existing laws and regulations to demonstrate steady progress in
improving oversight of the coal industry in West Virginia. While the
industry is welcome to mine coal in the Mountain State, we intend to do
our job as regulators and enforce the law.
While I have addressed the limited role of the fill rule as it
impacts mining in southern Appalachia, the rule has far reaching
effects in other regions of the country and other sectors of the
economy. The consistency in definitions of the fill rule between the
Environmental Protection Agency and the Army Corps of Engineers is
important to mining operations in West Virginia, but it is very
important to other sectors throughout the country as well. I thank you
for this opportunity today and look forward to your questions.
__________
Statement of Kevin Richardson, President and Founder
of the Just Within Reach Foundation
Mr. Chairman, Honorable Committee members, guests . . . I'm here
today to talk about the systematic destruction of one of the most
beautiful, productive and historic regions of our country--my home
state of Kentucky, the mountains of West Virginia and Tennessee, and
the other areas of Appalachia where the practice of mountaintop coal
mining has taken over.
In the midst of their giant lakes of coal sludge that sometimes
burst without warning, their constant dynamiting that shakes homes from
their foundations, their transformation of forested mountain ranges
into flat, gravel-covered moonscapes, and their contamination of well
water and aquifers, coal companies engage in the practice of ``valley
fill''--our reason for being here today.
For years, the Corps of Engineers has routinely issued permits to
coal companies in the Southeast and Appalachia, allowing them to fill
valleys and waterways with ``overburden'' from their mountaintop-
removal coal extraction operations. Overburden, along with coal sludge,
are the byproducts of extracting and washing coal, before shipping it
to electric generating plants around the country. EPA officials,
residents living in the shadows of the mines and citizen groups have
questioned the validity and legality of the Corp's decision to issue
such permits--permits for an activity that dumps mining waste into the
region's streams, rivers and valleys. Hundreds of millions of tons of
industrial mining byproduct are pushed into the valleys surrounding
coal extraction sites, to date, burying over 1,500 miles of headwater
streams in West Virginia and my home state. Valley fills destroy the
spawning grounds that support our recreational fishing industry, they
contaminate our drinking water and they trash our thriving tourist
industry that relies on the natural beauty of our area.
In April, a Federal District Court judge finally brought some
needed attention to this issue by ruling that the Corps' practice of
issuing valley fill permits violates Congress' intent in the Clean
Water Act and its restrictions on using waterways for industrial waste
disposal. The Administration's recent attempt to circumvent the Clean
Water Act by rewriting the rules to define coal extraction waste as
``fill'' is a nice gesture to their friends in the industry. But it
clearly exceeds the Administration's legal authority granted under the
Act. Such a gesture cannot alter the meaning of the LAW. I urge you to
make this clear to the President and his agencies.
The bottom line is that we have an industry that has thrived, not
from honest business practices in a free market, but from passing its
real costs to the people of Appalachia and the rest of the United
States . . . with subsidies in the form of illegal permits from the
Corps of Engineers and other agencies that are supposed to protect us.
Ending the practice of valley fills and making coal companies manage
their industrial waste like any other industry is not about hugging
trees and worshipping mountains. It's about making coal compete for our
energy dollar on an equal playing field with natural gas,
hydroelectric, solar and wind. It's about recognizing that WE own the
streams and rivers of this country and that WE own the fish and other
resources in those waterways. Destroying the rivers, the fisheries, the
forests and the mountains through irresponsible coal extraction, as
well as the coal-produced acid rain deposition in your home state, Mr.
Chairman, is no different than kicking down the doors of our homes and
walking out with an armful of our valuables--theft is theft.
I am not a scientist, but I do know what I've seen on flights over
the coalfields. The historic resources that sustained Daniel Boone, the
original Cherokees and generations of mountain people are being
converted on a mammoth scale into flat, lifeless plateaus. The first
time I flew over the area at 5,000 feet, I thought I would see a few
scarred peaks. Instead, I saw the entire horizon filled with mountains
with their tops blown off, huge lakes of toxic sludge and piles of
waste filling every valley around the mines.
I came here today to bring attention to an Administration policy
and a Corps of Engineers practice on valley fills that is completely
misguided and gives no consideration to the lives of generations to
come. When I move back home to raise a family on my farm in Kentucky, I
want my kids to be able to fish and swim in the same places I grew up.
I ask you, our leaders, to look beyond the political clout of the coal
lobby and do what's right for the forgotten Appalachian region.
In closing, I would like to personally invite each of you to take a
flight with me over the coalfields and see firsthand how our future is
being robbed.
Mr. Chairman, I thank you for your invitation to speak before the
committee and your willingness to bring this difficult issue to light.
______
Responses by Kevin Richardson to Additional Questions
from Senator Lieberman
Question 1. Please describe the activities of the Just Within Reach
Foundation relative to the issues discussed in the hearing.
Response. The Just Within Reach Foundation takes an immense
interest in the education and well being of the young people and
families in Appalachia--families that are affected by the operations
and practices of coal extraction companies in the region, At every
opportunity, JWR provides educational information and material to those
citizens wishing to learn more about these issues. In addition, we
serve as a voice for those in the region that do not believe they have
a voice when it comes to sharing their concerns.
JWR's mission is to provide environmental education and promote
personal responsibility and accountability with regard to the health of
the Earth. JWR serves as a resource that empowers people, particularly
young people and families, with information and practical examples of
environmental issues--knowledge that can be put into action at the
local community level. Working together and with the proper tools,
young people will be the driving force behind environmental progress,
changing unfriendly behaviors into actions and practices that will
conserve and preserve. The JWR Foundation believes we can have progress
such as industry, jobs and business profits while also protecting
resources, wildlife, our health and Earth's beauty. But in order to be
motivated to solve environmental problems, we must first understand how
those problems impact our daily lives. JWR brings these daily life
issues to the forefront and helps point people in the right direction
to learn more and inspire them to create an action plan of their own.
Areas and Projects supported by JWR:
<bullet> Environmental studies scholarships for college students
<bullet> Environmental education hikes, trips and camping
excursions
<bullet> Sponsoring kids to attend environmental camps
<bullet> Educating people on the importance of being involved in
political processes
<bullet> Clean-up and recycling events throughout the United States
<bullet> An educational video and classroom study guide
<bullet> An environmental television series for kids and their
families
<bullet> Water and soil testing in potentially hazardous areas
<bullet> Research into alternative and renewable energy sources
<bullet> Research into the link between the environment and cancer
We are proud to share that the Just Within Reach Foundation just
awarded $12,000 in scholarships for college students studying in the
areas of Environmental Science and Marine Studies. Also, this year, JWR
assisted the Waterkeeper Alliance in establishing a Kentucky
Riverkeeper organization in the state of Kentucky, to monitor the
health of the state's rivers and waterways.
Question 2. Please describe the impacts associated with valley
fills in the state of Kentucky.
Response. The process of utilizing living valleys as a repository
for mountaintop coal extraction waste has severe and devastating
impacts on the people, wildlife and natural systems in Eastern
Kentucky. These valleys serve as the historic and present day homes to
the people of Appalachia and are the headwaters to all of the surface
waters in the region. Valley fill wipes out the spawning grounds of
Appalachia's fisheries by filling in streams and replacing them with
concrete ditches. A vibrant fishing industry is crucial to the thriving
tourist economy of Kentucky. Empty, murky streams created by valley
fills will not attract tourist dollars.
In addition to their impact on our fisheries, clearing forested
valleys and filling them with mining wastes has destroyed the natural
drainage systems in Kentucky. Every time the rain falls in Eastern
Kentucky, flood waters roll down the denuded hillsides, wiping out
homes and farms in the flood zones, sometimes killing residents that
aren't able to escape.
__________
Statement of J. Bruce Wallace, Professor of Entomolgy, University of
Georgia
Senators, ladies and gentlemen, thank you for the opportunity to
offer testimony on changing definitions of fill material as it relates
to central and southern Appalachian streams. These changes, as pointed
out by Judge Charles Haden, can only be allowed to stand if the U.S.
Congress alters the intent of the Clean Water Act and allows fills so
that waste, from mining operations can be deposited in headwater
streams. Based on more than thirty years of studying Appalachian
streams, I strongly urge you not to allow this Act to be altered.
The impacts of coal mining operations are significant and
detrimental. We are burying streams and creating potential long-term
environmental consequences that will haunt us into the future from both
environmental and economic standpoints. Documentation shows at least
900 miles of headwater streams have already been eliminated in the
Central and Southern Appalachians between 1986 and 1998 because of
mountain-top removal valley-fill (MTR/VF) coal mining practices.
Because these data were derived from maps that do not show all
headwater streams and spring brooks, I must tell you that this figure
is a very low estimate.
The significance of headwater streams is widely accepted by the
scientific community as demonstrated by an attached letter signed by 44
senior aquatic scientists and excerpts from a peer-reviewed
publication. The message from the scientific community is clear: (1)
headwater streams provide vital ecological goods and services, and (2)
they are being destroyed at an extremely high rate by human activities.
Much of the diversity of aquatic biota in the Appalachians is found
in the small headwater streams. The degradation and elimination of
headwater streams increase extinction vulnerability for aquatic
invertebrates, amphibians and fish. Streams draining these forests
receive most of their energy inputs from leaves, wood, etc. supplied by
the surrounding forest. The organic matter (called detritus) deposited
in headwater streams is stored and processed by biota and physical
processes into smaller particles and dissolved organic matter. This
detritus is transported downstream to serve as food for other microbes
and invertebrates (and ultimately fish). Destroying the linkage between
headwaters and downstream areas alters the availability of organic
matter as fuel for downstream animals. These downstream reaches are
often far removed from the headwater source of the detritus input.
One of the fundamental concepts in stream ecology is the
longitudinal linkage of upstream to downstream segments. Former streams
covered by valley fills no longer serve as a source of input, storage,
and conversion of organic matter for export to downstream areas. Recent
studies have shown that small streams in the drainage network are the
sites of the most active uptake and retention of dissolved nutrients.
Elimination of small streams from the drainage network results in
increased downstream loading of nutrients and degradation of water
resources. We should be most concerned with the valuable ecosystem
services that are lost when streams are buried. Uptake of nutrients by
vegetation and the transformation of nutrients and chemicals by
microbes in soils, riparian zones, and streams is an important
mechanism controlling export of nitrogen from watersheds.
Our potable water supplies will be harmed many years into the
future because of large increases in concentrations of several
chemicals as recently found by the USEPA below valley fills. The large
increases in concentrations of chemical elements below valley fills
(Table 1), combined with increased discharge will increase downstream
pollution. Altered chemistry, and altered temperature regimes,
contribute to the elimination of sensitive species of invertebrates
(which also serve as food for higher animals such as fish) from
downstream areas below valley fills. As shown by USEPA studies in West
Virginia and Kentucky, many sensitive species are absent from streams
below valley fills. Who pays for this long-term pollution of our
waterways? Unfortunately, those of us who live downstream pay the bill.
This deliberation really boils down to short-term economic gain for
long-term environmental degradation. However, the question should not
be ``How can we extract coal resources with the minimum expense and
maximum short-term profit for the mining companies?'' but rather ``How
can we extract coal resources in a wise manner, which ensures long-term
environmental integrity, productive forests, unburied and unpolluted
streams, and long-term productive economies for our children and
grandchildren?''
Table 1.--Median values (mg/L) for un-mined sites and valley fill sites
for various water quality parameters in West Virginia during the period
of October 1999 to February 2001 (Source USEPA).
------------------------------------------------------------------------
Un-mined Valley Filled/Un-
Parameter sites Fill mined
------------------------------------------------------------------------
Sulfate................................ 12.6 524 41.7
Calcium................................ 4.9 104 21.3
Magnesium.............................. 4.1 86.7 21.2
Hardness............................... 29.1 617 21.2
Solids, dissolved...................... 50.5 847 16.8
Manganese, total....................... 0.005 0.044 8.8
Conductivity (mhos/cm)................. 66.4 585 8.8
Selenium............................... 0.0015 0.0117 7.8
Alkalinity............................. 20 149.5 7.5
Potassium.............................. 1.58 8.07 5.1
Sodium................................. 1.43 4.46 3.1
Manganese, dissolved................... 0.005 0.0104 2.1
Chloride............................... 2.5 4.5 1.8
------------------------------------------------------------------------
______
Responses by J. Bruce Wallace to Additional Questions
from Senator Lieberman
Question 1a. Please describe the specific types of aquatic species
that are being eliminated as a result of the valley fills and their
ecological importance.
Response. The types of organisms whose habitats are being
eliminated include many taxa of aquatic insects as well as other
invertebrates, salamanders and some fish.
The streams destroyed or harmed by valley fills associated with
mountaintop removal mining range from perennial streams to small
headwater springbrooks and headwater seeps and many of these seeps and
springbrooks are year round. Much of the biological diversity of
aquatic insects found in the Appalachians is found in the small
springbrooks and headwater seeps. Headwater streams provide unique
habitats for numerous species. Their degradation and elimination from
the landscape increase extinction vulnerability for aquatic
invertebrate (e.g. Morse et al. 1993, Kirchner et al. 2000), amphibian
(Elliott et al., submitted), and fish species (e.g. Etnier 1997). Morse
et al. (1997) recognized the southern Appalachian area, extending from
Maryland and West Virginia southward to Georgia and Alabama, as an area
of outstanding diversity. Many of the aquatic invertebrates such as
mayflies, stoneflies, and caddisflies (EPT taxa) occur exclusively in
the mountainous and foothill areas. For example, 104 species of
caddisflies found in the Eastern Highlands (Cumberland Plateau,
Appalachian plateaus, Appalachian Mountains, and Piedmont) do not occur
anywhere else in the world. Morse and colleagues consider about 74
species belonging to the EPT taxa to be vulnerable to extirpation in
the southern Appalachians because many are known to occur from only one
or two small headwater springbrooks or seepage areas. Morse et al.
(1997) suspect the number of species potentially subject to extirpation
may be considerably higher than the seventy-four they list because many
small streams, seeps, and springbrooks have been poorly explored and
insufficiently sampled. These areas represent the types of habitats
that are being filled or proposed for valley fills.
Studies in other regions suggest that many intermittent and
temporary streams may contain a diverse assemblage of aquatic species.
For example, in western Oregon, taxa richness of invertebrates (>125
species) in temporary streams exceeded that found in a permanent
headwater, ca. 100 species (Dieterich and Anderson 2000). Dieterich and
Anderson (2000) found 13 previously undescribed taxa of invertebrates
associated with one temporary headwater stream. In several northern
Alabama streams, Feminella (1996) could find little difference between
the numbers of invertebrate taxa found in permanent streams versus
those found in intermittent stream reaches.
Other than the knowledge that small spring brooks and spring seeps
can be important sites for biodiversity, including unique and rare
species, few attempts have been made to assess what is lost with valley
fills. A recent survey conducted in stream habitats destined for valley
fills in West Virginia and Kentucky (most of which do not appear as
streams on existing USGS 1:24,000 maps) clearly indicates a diverse
aquatic fauna extending into drainages with a watershed area of only
100 to 150 acres (Kirchner et al. 2000). The upstream sampling
locations started at points of contiguous flow with downstream areas
(Kirchner et al. 2000). In fact, some watersheds of less than 50 acres
had multiple (>10) taxa, which could be characterized as requiring at
least a year or more to complete aquatic stages of their development
(Kirchner et al. 2000). Mining operations like that proposed here may
be destroying potentially valuable or unique habitats without knowing
the consequences of their actions on biodiversity of the region
(Kirchner et al. 2000)(also see below).
In addition to these invertebrates there are several salamander
species, including: Northern two-lined, dusky, spring, and longtail
(aquatic) plus the breeding stages of Plethodons (woodland salamanders)
and the Fowler's Toad (Buffo woodhouseii fowleri), which breed in
streams (Green and Pauley 1987). The southern Appalachian region has
the highest diversity of salamanders in North America (Duellman and
Sweet 1999), and many of these are associated with streams (Elliott et
al., submitted). Many stream salamanders require first order streams
and their accompanying headwater seepages in order to maintain viable
populations (Petranka 1998, Elliott et al., submitted). As noted in the
introduction, a large portion of stream salamander habitat does not
even appear on USGS 1:24,000 maps (Meyer and Wallace 2001, Hansen 2001,
Elliott et al., submitted). In fact, these latter authors (Elliott et
al.) noted that existing 1:24,000 USGS maps accounted for only 34
percent of stream habitat suitable for salamanders in northern Georgia,
as most of the smaller streams and seepages did not appear on the USGS
maps. Hence, many more miles of aquatic habitat are being disturbed by
the mining operations than measured from the USGS maps.
Question 1b. What is the ecological importance of species being
eliminated?
Response. Loss of headwater streams is going to have more than
minimal impacts, as well as cumulative and long-term impacts, on
downstream reaches with respect to energy sources. Headwater streams
draining eastern deciduous forest receive most of their energy inputs
from leaves, wood, etc. supplied by the surrounding forest. The
predominance of organic debris dams in headwater streams (e.g. Bilby
and Likens 1980) provides sediment and organic matter retention,
important habitat structure, and sites for critical metabolic activity
(e.g. Steinhart et al. 2000). These important functions are eliminated
when headwaters are filled. Organic matter inputs to headwater streams
such as those affected by this mine average 345 grams per square meter
of streambed area per year (= about 0.7 lb dry weight per square yard
per year) in the eastern United States (Webster et al. 1995). This
organic detritus, along with accompanying microbes such as fungi and
bacteria, provide most of the energy, or food resources, to the stream
invertebrates and ultimately to vertebrate populations such as fish and
salamanders (Wallace et al. 1997, 1999). One of the fundamental
concepts in stream ecology is the longitudinal linkage of upstream to
downstream segments (Vannote et al. 1980).
Organic matter from the surrounding forest is also processed into
fine particulate organic matter (FPOM), as well as dissolved organic
matter (DOM, Meyer et al. 1998) by physical abrasion, microbes, and
invertebrates (Wallace et al. 1991). The FPOM and DOM are more easily
transported by the water currents to downstream reaches where it serves
as food for other microbes and invertebrates (and ultimately fish),
which are often far removed from the headwater source of the detritus
input from the surrounding forest (Vannote et al. 1980). These streams
subjected to valley fills will no longer serve as a source of input,
storage, and conversion of organic matter for export to downstream
areas. Thus, destroying the linkage between headwaters and downstream
reaches alters the availability of organic particles to downstream
areas where the material serves as fuel for microbiota and
invertebrates, which in turn serve as food to fish, and other higher
animals. (As an example: based on data from the Coweeta Hydrologic
Laboratory in the Appalachians of western North Carolina, the smallest
streams [again, not even shown on USGS 1:24,000 maps of the region]
export 36 kg of fine particles of organic matter per 100 m (about =
79.4 lbs per 328 feet) each year for each length of headwater stream
(Webster et al. 1992). Burying hundreds of miles of small headwater
streams would reduce the fine particle export from these headwaters.
Furthermore, dissolved organic matter export to downstream reaches, a
significant portion of which is derived from organic matter from
terrestrial detritus in the streambed (Meyer et al. 1998), would be
greatly reduced.
Dissolved organic matter is another source of energy for downstream
areas (Kaplan et al. 1980)). Headwater streams should be viewed as
important sites of organic matter input (from the surrounding forest),
storage, and processing (or transformation to FPOM and DOM), which are
important for entire drainage systems. In my opinion, burial of so many
headwater streams is akin to trimming the roots of a tree and having
the misguided view that this will not impact the tree.
Another consequence of removing headwater reaches from their
drainage basins is that these small streams are sites of production of
aquatic invertebrates such as insects, which may drift downstream and
become important sources of food to downstream predators such as
various species of fish. These invertebrates are also sources of food
to some headwater fish species, water shrews, and salamanders within
the headwater reach. Additionally, emerging aerial adults of aquatic
insects are often used as food by terrestrial species such as spiders
and birds and they represent an important reciprocal link between
streams and terrestrial biota (Gray 1993, Nakano and Murakami 2001,
Sanzone 2001, Henschell et al., in press, Power et al., in press).
Question 2. Please describe the alterations in stream chemistry as
a result of valley fill--the kinds of chemicals being found, at what
levels, and why should we worry about them?
Response. The basic chemical composition of unpolluted streams
draining a landscape is largely established in headwater streams (Gibbs
1970, Likens 1999, Johnson et al. 2000). Biotic uptake by vegetation,
transformation by microbes in soils, riparian zones, and streams, in
the presence of available carbon is an important mechanism controlling
export of nitrogen from watersheds (Hedin et al. 1998). Small streams
in the network are the sites of the most active uptake and retention of
dissolved nutrients (Alexander et al. 2000, Peterson et al. 2001,
Attachment #5); hence elimination of small streams from the network
results in increased downstream transport of nutrients. Downstream
areas, reservoirs, rivers, and ground waters often have species that
are sensitive to high nutrient concentrations and increasing
conductivity associated with chemicals in the downstream waters.
Increased concentration of chemicals, nutrient enrichment, and
groundwater contamination are likely consequences of loss of the
nutrient retention capacity afforded by headwater streams. I will
address only a few chemical concerns that appear to be causing major
difficulties below valley fills.
The following table is from recent EPA data collected for the MTR/
VF Environmental Impact Statement currently being prepared. This table
shows the concentrations of several chemicals and other physical
properties of water below valley fills and compares them with un-mined
areas. The last column shows the ratio of filled to un-mined (or times
higher concentrations leaving filled sites is to un-mined sites).
Table 1.--Median values (mg/L) for un-mined sites and valley fill sites
for various water quality parameters in West Virginia during the period
of October 1999 to February 2001 (Source USEPA).
------------------------------------------------------------------------
Un-mined Valley Filled/Un-
Parameter Sites Fill mined
------------------------------------------------------------------------
Sulfate................................ 12.6 524 41.7
Calcium................................ 4.9 104 21.3
Magnesium.............................. 4.1 86.7 21.2
Hardness............................... 29.1 617 21.2
Solids, dissolved...................... 50.5 847 16.8
Manganese, total....................... 0.005 0.044 8.8
Conductivity (mhos/cm)................. 66.4 585 8.8
Selenium............................... 0.0015 0.0117 7.8
Alkalinity............................. 20 149.5 7.5
Potassium.............................. 1.58 8.07 5.1
------------------------------------------------------------------------
Selenium: is an essential nutrient at low levels of exposure. This
inorganic chemical is found naturally in food and soils and is used in
electronics, photocopy operations, the manufacture of glass, chemicals,
drugs, and as a fungicide and a feed additive. In humans, exposure to
high levels of selenium over a long period of time has resulted in a
number of adverse health effects, including a loss of feeling and
control in the arms and legs. EPA has set the drinking water standard
for selenium at 5 L (versus 11.7 observed below valley fills, Table 1)
to protect against the risk of these adverse health effects. Drinking
water that meets the EPA standard is associated with little to none of
this risk and is considered safe with respect to selenium. (However,
see following paragraph.) The selenium data indicate numerous
violations of the West Virginia stream water quality criterion related
to MTM/VF mining. During the EPA study of water quality in 1999 to 2001
there were 66 violations of the stream criterion exceeding Selenium
water standards. All values above the stream criterion of 5 g/L were
at valley fill sites and many of those are several times greater than
the detection limit of 3 g/L. The elevated values of selenium appear
to be closely related to MTM/VF mining activity.
Selenium is essential for life in very small amounts but is highly
toxic in slightly greater amounts (Lemly 1996, page 427). In 1987, the
EPA lowered the recommended stream water quality criterion for selenium
to 5 g/L to protect aquatic life. West Virginia has adopted that same
limit as their stream criterion. Selenium is strongly bioaccumulated in
aquatic habitats (Lemly 1996, page 435). ``Waterborne concentrations in
the low- g/L range can bioaccumulate in the food-chain and result in an
elevated dietary selenium intake and the reproductive failure of adult
fish with little or no additional symptoms of selenium poisoning in the
entire aquatic system. . . . The most widespread human-caused sources
of selenium mobilization and introduction into aquatic ecosystems in
the U.S. today are the extraction and utilization of coal for
generation of electric power and the irrigation of high-selenium soils
for agricultural production'' (Lemly 1996, page 437). However, Hamilton
and Lemly (1999) have suggested that many effects on biota are
documented for selenium levels of 5 g/L and the more appropriate level
should be a water quality criterion of 2 g/L. Furthermore, Lemly
(1999) has suggested that a selenium time bomb is in the making as a
result of substantial impacts on fish populations. The effects of
selenium on fish populations include the following from Lemly (2002):
<bullet> Swelling of gill lamellae
<bullet> Elevated lymphocytes
<bullet> Reduced hemoglobin (anemia)
<bullet> Eye cataracts as well as exopthalmus (popeye)
<bullet> Pathological effects on liver
<bullet> Reproductive failure
<bullet> Spinal deformities
The West Virginia Geologic and Economic Survey has information on
selenium posted on their website (http;//www.wvgs.wvnet.edu/www/
datastat/te/SeHome.htm). It notes:
Selenium occurs in coal primarily within host minerals, most
within commonly occurring pyrite. . . . An unpublished study at
WVGES using SEM found selenium . . . in 12 of 24 coal samples
studied, mainly in the upper Kanawha Formation coals. . . .
Selenium in West Virginia coals averaged 4.20 ppm. . . . Coals
containing the highest selenium contents are in a region of
south central WV where Allegheny and upper Kanawha coals
containing the most selenium are mined. . . . Selenium is not
an environmental problem in moist regions like the Eastern U.S.
where concentrations average 0.2 ppm in normal soils.
Summarizing this information, we see that in the region of MTM/VF
mining, the coals can contain an average of 4 ppm of selenium, normal
soils can average 0.2 ppm, and the allowable limits in the streams are
5 g/L (0.005 ppm). Disturbing coal and soils during MTM/VF mining
could be expected to result in violations of the stream limit for
selenium.
A fairly comprehensive review of Selenium is given in the Federal
Register of 6 March, 2002 ( Vol. 67, No. 44 pages 10101 -10113). Some
notes made from this document are as follows:
<bullet> The EPA's standard to protect aquatic species is 5 g/
Liter but is being reevaluated as a standard of only 2 g/Liter is
being applied to protect wetland grasslands in the San Joaquin Valley,
CA (note 5 g/L versus over 11 g/L was the median value below valley
fills in WV.
<bullet> Selenium is taken up by vegetation.
<bullet> Selenium is toxic to small mammals as longevity has been
reduced on diets with only g/g in diets of rats, deleterious effects
to the hair, nails, live, blood, heart, nervous system, and
reproduction have been documented.
<bullet> There is evidence that animals such as insects, that feed
on plants absorbing selenium from the environment, accumulate selenium
in their bodies and this is biomagnified by larger animals such as
shrews, which feed on these insects, have even higher levels of
selenium.
<bullet> The potential of additional exposure to selenium of beef
cattle, dairy cattle, swine and poultry wastes production is apparently
increasing.
<bullet> Relatively small amounts of selenium have been shown to
bioaccumulate in the eggs of waterfowl and resulted in egg deformities.
Sulfate: Although sulfate is largely a benign constituent of most
waters, the World Health Organization (WHO) guide is 400 mg/L, which is
based on taste. The US EPA has proposed Sulfate levels of 250 mg/L in
1979, subsequently raised to 400 mg/L in 1985, and 500 mg/L in 1994 (FR
Vol. 64, no. 28, pp 7027-7037). However, according to National
Secondary Drinking Water Regulations 40 CFR CH. 1 (7-1-00 Edition)
Sec. 143.3, the recommended level of Sulfate should not exceed 250 mg/
L, whereas the median for sulfate concentration in streams below valley
fills in WV is 524. Sulfate levels above 250 mg/L are often associated
with taste and odor problems. Short-term, consequences (less than 1
week) of elevated Sulfate concentrations did not support osmotic
diarrhea in adults as reported previously (but see bullets, below);
however, infants have not been tested sufficiently. There is limited
data on acclimation to Sulfate, changes in Sulfate metabolism, and
problems during growth of human fetuses. In 1999 the EPA assembled a
panel of scientists who favored placing a health advisory in areas
where Sulfate concentrations in drinking water exceed 500 mg/L or
higher (FR Vol. 64, no. 28, pp 7027-7037). Clearly, many streams below
valley fills have elevated sulfate concentrations (Table 1).
Furthermore, according to Canadian and U.S. livestock industries high
concentrations of sulfates can combine with magnesium (also very high
below valley fills, Table 1) to form Epsom salt or with sodium salts to
cause a laxative effect in poultry and the two should probably be
evaluated together. According to US EPA (Drinking Water Advisory:
Consumer Acceptability Advice and Health Effects Analysis on Sulfate--
External Review Draft EPA-R-02-033, April 2002) the following should be
considered:
<bullet> Only 5 percent of waters tested across the US exceeded 250
mg/L sulfate, and less than 3 percent of community water supplies had
sulfate concentrations that exceeded 250 mg/L (p.5-6).
<bullet> In the presence of elevated magnesium (note levels ca. 87
mg/L, below valley fills, Table 1), sulfate may form magnesium sulfate
(milk of magnesia), which enhances laxative effect and produces an
osmotic-induced diarrhea (p. 12-13).
<bullet> Above 250 mg/L sulfate concentrations, water has impaired
taste properties (p. 19) and at levels of 320-480 mg/L magnesium
sulfate has impaired taste, as well as 180-680 mg/L for calcium
sulfate. Note that calcium levels are also elevated below valley fills
(Table 1).
<bullet> The level of 250 mg/L or less, appears appropriate to
insure adequate protection of drinking water with respect to taste (p.
23).
Conductivity and total dissolved solids are two separate measures
of similar things. They measure the presence of anions and cations in
water. High conductivity is often associated with water hardness and is
not a health problem per se. Elevated levels of conductivity can be a
nuisance in cases of high calcium and magnesium concentrations where it
interferes with cleaning tasks such as laundering and dishwashing.
Furthermore, films may be formed on showers, bathtubs, sinks, faucets,
as well as inside pipes where water flow can be reduced. High
conductivity is often associated with soil disturbance, mining, urban
development, and agriculture. Thus, high conductivity is often
associated with impaired biological conditions in streams. Higher
discharge from valley fills (as a consequence of reduced evapo-
transpiration by plants and altered groundwater retention) results in
increased chemical loading to downstream areas. Increases in
concentrations of several chemicals and conductivity observed for
valley fills at many West Virginia sites (EPA--EIS 2000, draft of MTR/
VF), combined with the increased discharge observed below fills, will
increase downstream loading of chemicals and conductivity. This will
result in excess loading of chemicals, and concomitant effects on
conductivity, to downstream aquatic communities. The elevated
downstream loading of chemicals will likely be detrimental to
downstream animals, plants, microbiota, and potable water supplies for
many years into the future.
The effects of excessive chemical loading on sensitive taxa is
clearly seen in data collected by the EPA in West Virginia and Kentucky
(Draft EIS for MTR/VF). Streams draining valley fills have abnormally
high conductivity compared to those draining un-mined sites. The high
conductivities are probably the main factor contributing to the
elimination of most species of mayflies below valley fills and altered
community assemblages of stream-dwelling animals. A number of other
chemical parameters were impacted by valley fills and in some cases
these vary by several orders of magnitude between mined and un-mined
sites. For example, sulfate concentrations differed greatly between
mined and un-mined sites (Table 1 only has median values), while
alkalinity, total calcium, and magnesium differ in the tens of mg/L
range. In addition, chloride, total potassium, and sodium differed in
the
mg/L range. Because of altered chemistry and/or conductivity, a number
of species of invertebrates (which also serve as food for higher
animals such as fish) are eliminated from downstream areas, which drain
valley fills. This is being clearly shown for Kentucky and West
Virginia streams by the EPA in the MTR/VF EIS Draft.
Question 3. Please provide any additional information that you
think is relevant to the Committee as it evaluates the impacts of fill
rule definitions.
Response. Effects of Valley Fills Discharge and Hydrology.--In
areas below valley fills a higher baseflow is maintained than typical
forested headwater streams (Wiley et al. 2001). However, as evident
from recent studies, the propensity to flood in downstream areas also
increases below valley fills based on preliminary data being obtained
in West Virginia. The alteration of stream flow is not surprising as a
number of studies from forested catchments at the Coweeta Hydrologic
Laboratory in the mountains of western North Carolina clearly show that
loss of the hardwood forest results in increased levels of stream
discharge because of the absence of evapo-transpiration (Swank and
Crossley 1988). In addition to directly harming the biota via altered
chemical composition, the potential increase in flooding is very
important because floods can be detrimental to fauna and flora, and
alter dynamics of both nutrients and organic matter in downstream
reaches (see, Allan 1995, Wallace and Webster 1996). Furthermore,
recovery by aquatic species from floods in temperate zone streams
suggest faunal recovery may take up to a year or more following
flooding (Thorup 1970, Hoopes 1974, Molles 1985), or up to 2 years
following massive flooding (Minshall et al. 1983).
Consequences of Altered Chemistry and Hydrology.--Higher discharge
from valley fills (as a consequence of reduced evapo-transpiration by
plants and altered groundwater retention) results in increased chemical
loading to downstream areas. Increases in concentrations of several
chemicals and conductivity observed for valley fills at many West
Virginia sites (Table 1), combined with the increased discharge
observed below fills, will increase downstream loading of chemicals and
elevate conductivity. This will result in excess loading of chemicals,
and concomitant effects on conductivity, to downstream aquatic
communities. The elevated downstream loading of chemicals such as
selenium may cause many problems to biota (including fish) and potable
water supplies for many years into the future.
Stream Sediments.--Organic debris dams in headwater streams, such
as those provided by woody debris, (e.g. Bilby and Likens 1980) and
other organic matter such as leaves from the surrounding forest,
provides sediment retention, important habitat structure, and sites for
critical metabolic activity, including denitrification (e.g. Steinhart
et al. 2000, Attachment # 7). Loss of headwater streams by burying them
under millions of cubic yards of sediment is going to greatly reduce
these sites of high metabolic activity that are important in processes
such as nutrient retention and denitrification.
A recent study completed by the U.S.G.S. in West Virginia also
indicates increased numbers of fine particles (<2mm in diameter) and
smaller median particle sizes below valley fills than unmined sites
(Wiley et al. 2001). Substrate particle size is often cited as one of
the critical factors for stream invertebrate populations as finer
particle sizes are indicative of more instability as well as lower
invertebrate biomass (Hynes 1970, Minshall 1984, Allan 1995). Sediments
have numerous negative effects on both benthos and fish in streams
(Waters 1995).
Terrestrial Considerations.--The Appalachian region is known for
having some of the greatest temperate plant biodiversity in the world
(Handel 2001). These diverse forests typically support diverse native
terrestrial fauna. The revegetation plan calls for grasses as well as
planting various tree species to achieve a certain density of stems per
hectare without regard to whether these trees exhibit any growth.
Recent studies conducted for the terrestrial portion of the MTR/VF EIS
from West Virginia clearly show that significant vegetation with
respect to stem diameter (a much better measure of growth and success
than simply counting the number stems per unit area) is simply not
returning to mined areas, even after 25 years post mining (Handel
2001).
According to a summary of Handel's (2001) findings: ``Invasion of
native species onto mined sites and valley fills was very low and
restricted to the first several meters from the adjacent forest edge.
Most of the plants found on the mined site were in the smallest (<1''
diameter) size class, suggesting that the sites are very stressful to
plant growth and survival.'' Furthermore, soil studies conducted during
the study indicate that soil used for mining closure is poor quality
and for forest species growth and productivity (Handel 2001). The heavy
compaction of artificial slopes also contributes to slow invasion of
forest species, and grassy vegetation installed in the reclamation
process hinders the ability of native plant species to establish
(Handel 2001). As noted by Handel (Attachment 17, page 13):
``Overall, the forest soils were consistently found to be
deeper, moister, and darker in color than the mine soils (Table
11). The mine soil consisted mostly of small rocks, and solid
impenetrable rock was hit at generally shallower depths''.
Additionally, it is clear that the success standards for trees on
disturbed areas are often based simply based on stem densities and
height. This sampling scheme (stem counts) gives no indication of
success in terms of forest biomass, growth, or productivity. As some
trees grow faster than others, especially where local soil factors may
differ, diameters should be measured to assess forest growth and
productivity. Stem densities and measures such as dbh (diameter at
breast height) yield very different results (Elliott et al. 1997). If
one really wants information about restoration of the biomass of
forests, dbh and calculations of basal areas per acre or hectare are
really the appropriate units of measure, and not stem densities as
currently being done.
Terrestrial wildlife species, especially birds, are also impacted
on fill sites. For example, bird species were higher in shrub/pole
habitats, whereas fills (grasslands) had fewer bird species, as well
as, reduced bird abundance (EIS--MTR/VF-draft). Furthermore, nest
densities were so low for some grassland birds, WVU scientists could
not assess whether or not mountaintop mine sites are even able to
sustain viable populations of grassland bird species. Snake species
increased in grasslands (fills), whereas salamanders decreased on
valley fills. It may require a longer time for salamander populations
to recover on fills than from forest clear-cutting. Combined with
extremely slow ability of forests to regenerate on mined lands, lack of
larger plants, suppressed growth and low survivorship of seedlings
(Handel 2001), leads to the obvious question: What are the long-term
impacts on native wildlife species? These prerequisite studies to
answer this question have not been done.
Reduction in Surface Area of Land.--Dr. Ben Stout of Wheeling
Jesuit University has pointed out another feature of valley fills, that
the state is losing surface area. This is best visualized as taking
roofs of houses and flattening them (or from a pointed roof to a flat
roof) as the mountainous contour of the countryside is lost. This will
have some effect on number of plants (provided they could grow on
valley fills--which they cannot in many cases) growing in a given area.
Local and Human Economies Versus that Portrayed by Mining
Interests.--Although out of my area of expertise, I consider the
following table to be extremely important. We hear time and time again
how important mining is to the economy of the region. I obtained the
figures from an earlier version of the EIS for MTR/VF (some want to
remove these data). If mining is so important why are all of the coal
mining counties lagging behind in per capita income for each state? The
natives of these mining counties are wonderful people. However, I get
the distinct impression that they are being exploited by outside forces
beyond their control.
Per capita income for MTR/VF mining counties versus per capita income for the State for 1980 and 1990.
----------------------------------------------------------------------------------------------------------------
1980 1990
-----------------------------------------------------------------------
State Mining Statewide Percent of Mining Statewide Percent of
counties average State counties average State
----------------------------------------------------------------------------------------------------------------
Kentucky................................ $4,466 $5,978 74.7 $7,594 $11,153 68.1
Tennessee............................... $4,462 $6,213 71.8 $8,200 $12,255 66.9
Virginia................................ $5,360 $7,478 71.7 $8,997 $15,713 57.3
West Virginia........................... $5,340 $6,141 87.0 $8,766 $10,520 83.3
(Mingo Co.)............................. $5,058 $6,141 82.3 $8,328 $10,520 79.2
----------------------------------------------------------------------------------------------------------------
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__________
Statement of Mike Whitt, Executive Director, Mingo County
Redevelopment Authority of Williamson, WV
Chairman Lieberman, Ranking Member Voinovich, and members of the
subcommittee, thank you for inviting me to testify. I commend you for
your willingness to hear from the Mingo County Redevelopment Authority.
With mining, Mingo County is diversifying the economy. We are
creating good paying jobs with benefits for our citizens, and the
opportunities for economic development are better than they have been
in a long, long time.
Our Mission . . . ``The Mingo County Redevelopment Authority is a
public organization, established to promote and encourage the economic
and civic welfare of Mingo County, and for the development, attraction
and retention of business, industries, and commerce within the county,
thus creating employment opportunities and increasing the area's tax
base.''
Because of mining and development sites created by mining, we have
been able to create good jobs in the industries of wood, aquaculture,
agriculture and recreation. The Mingo County Board of Education has
established a Horticultural Curriculum through the use of our
agriculture demonstration project. By growing excellent Arctic Char
from mine water, we have created a new industry in southern West
Virginia. We anticipate the county school system will add an
Aquaculture Curriculum as a result of our fish hatchery, grow-out
facilities and proposed fish processing facility. Without mining, these
new jobs and economic opportunities would never have been possible in
southern West Virginia!
Our challenge is to achieve our mission to create new jobs, improve
the quality of life for our citizens, and increase our tax base
throughout the next generation for the future of our children and
grandchildren. We cannot meet this challenge unless reclaimed mine
sites are provided to us for the purpose of creating economic
development.
Diversifying the Mingo County economy through support of the mining
industry is an important part of our future. Realizing this, the Mingo
County Redevelopment Authority brought together a diverse group of
citizens to develop the Mingo County Land Use Master Plan (Plan). The
Plan was presented to the citizens of Mingo County at a public hearing,
where public suggestions were incorporated into the Plan. The Plan has
been approved by the Mingo County Commission. For the first time in
history, Mingo County has a Plan that provides a road map to achieve
economic development opportunities. Any coal company who volunteers up
front and before mining commences to use our Plan will be provided with
our proposed post mine land use for the property. After mining, the
property will be (1) returned in a manner consistent to our Plan; (2)
adequately supplied with infrastructure; and (3) used for the economic
development purposes as stated in the post mine land use. Prior to our
Plan, Mingo County lost many economic development opportunities because
most of the property mined was put back to its Approximate Original
Contour (AOC), leaving no land suitable for economic development. Our
Plan affords opportunities to change that.
Through the leadership of the Mingo County Redevelopment Authority,
we have developed an excellent partnership with the private and public
sectors. Mike Callaghan, Director of DEP, and Governor Bob Wise have
been very instrumental in our efforts to encourage post mine land use
development sites for proposed and ongoing surface mine activities. We
have listened to Mingo Countians. The Land Use Master Plan is a grass
root Plan of what we need to stop the downward economic spiral that we
have been faced with. There is one thing that EVERYONE agrees on, and
it is the fact that Mingo County must diversify.
We must stop the cycle of schools being closed, good teachers
leaving and major industry jobs vanishing. Our county population has
dropped from 37,000 in 1980 to 28,000 in 2000. One of our schools has
95 percent of our kids who qualify for the free lunch program . . . as
a best-case scenario; we have nearly half our kids on the free lunch
program at Williamson High School, which is located within our county
seat.
Before 1989 when the Mingo County Redevelopment Authority was
formed, local economic development agencies did not exist in any of the
southern West Virginia counties. Since our establishment, we have
worked hard to form a team relationship between our private and public
sectors, and with the dedication of our board of directors we have
achieved an excellent display of teamwork within our county. Everyone
has come together to help save our county from economic devastation. We
cannot wait to diversify our economy after the coal is depleted . . .
we must diversify in conjunction with the ongoing and future mining
activities, and our efforts must continue.
Here are some of the projects that the Mingo County Redevelopment
Authority has accomplished by utilizing opportunities created by the
mining industry . . .
<bullet> The Mingo County Wood Products Industrial Park (Exhibit A)
<bullet> Located on a reclaimed surface mine site
<bullet> 28 million total project cost
<bullet> Includes a centralized lumber storage area, lumber
processing facility, lumber pre-drier, a battery of dry kilns,
boiler and silo. The first shell building (82,000 sq. ft.)
houses a hardwood flooring manufacturing facility.
<bullet> Presently 90 employees
<bullet> 100 new jobs by the end of 2002 (estimate)
<bullet> The Mingo County Agriculture Demonstration Project
(Exhibit B)
<bullet> Located on a reclaimed surface mine site
<bullet> Enabled the Mingo County Board of Education to
provide a Horticultural Curriculum
<bullet> Operated and maintained by the students through the
new horticultural program
<bullet> The Fish Hatchery (Exhibit C)
<bullet> Utilizing underground mine water to hatch and raise
Arctic Char fingerlings
<bullet> Created a new industry in southern West Virginia
<bullet> Will provide for an Aquaculture Curriculum to be
available to the students through the Mingo County School
system
<bullet> The Grow-out Facility for Arctic Char (Exhibit C)
<bullet> Utilizing underground mine water to grow Arctic Char
fingerlings to market size (2lbs)
<bullet> $3.5 million private investment
<bullet> Pro-fish is the distributor of Arctic Char into the
Washington, DC area.
<bullet> Twisted Gun Golf Course (Exhibit D)
<bullet> The coal industry has already constructed an 18-hole
golf course, with a breathtaking view of the natural
surroundings. This project will enhance the recreational
opportunities in Mingo County.
Here are some of our potential projects that, in conjunction with
ongoing mining, will help diversify and enhance the quality of life for
Mingo County citizens . . .
<bullet> King Coal Highway/I73-74 (Exhibit E)
<bullet> In cooperation with the Department of Highways and
the Department of Environmental Protection, the coal industry
plans to construct (to rough grade) 5 miles of the new King
Coal Highway/ I73-74, with 2 connectors . . . saving the
taxpayers an estimated $90 million dollars
<bullet> Airport (Exhibit F)
<bullet> In cooperation with the Mingo County Airport
Authority, the coal industry will construct (to rough grade) an
area to provide the county with an airport runway of 6,000-
10,000 feet, with sufficient acreage for ancillary future
development . . . saving the taxpayers approximately $30
million dollars.
<bullet> Fish Processing Plant
<bullet> The coal industry has provided site preparation as an
in-kind contribution toward the construction of a fish
processing facility, which will handle all the fish that is
hatched and raised in southern West Virginia
As you can see, the mining industry and our efforts to diversify
the economy in southern West Virginia are connected in a substantial
manner. However, to continue to advance our plans . . .
<bullet> The mining industry must continue . . .
<bullet> Our partnership with the private/public sectors must
continue . . .
<bullet> Post mining land use creating developable property for
future jobs must continue . . .
<bullet> Our diversification efforts must continue . . .
I am not a lawyer and I am not a chemist. I'm just a local citizen
who loves my county and its citizens. We care about whether our kids
and grandkids will be able to work and provide for their families in
Mingo County. We want a county that will allow people who have been
forced to move away to come back home. We care about all these issues.
We care about our schools and the opportunities provided to our kids.
We're working hard to make southern West Virginia economically viable.
We have gone to great strides to achieve a better economy in Mingo
County. We want to continue, and we will if the mining continues. The
mining is necessary, and the valley fills are needed for the
continuation of surface, contour, and underground mining.
Again, without diversification during the mining of coal, there
will be no opportunity for diversification after coal mining. We have
found a solution to stop our downward plunge and it's not just a
``fleeting vision'' . . . it's reality! It's attainable! It works! And
we want it to continue.
Now you have a better understanding of our situation and can see
the importance of diversification during the mining process in southern
West Virginia. If there's anything I can do to help ensure that our
progress is not hindered, please feel free to contact me. Better yet, I
would like to invite each of you to come to Mingo County. I'll
personally take you around our county and show you first hand what
progressive steps are being taken by Mingo County.
``Some people see things as they are and ask why . . . But I dream
of things that never were and ask why not.''--John Kennedy
Thank you very much.
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Statement of Doyle Coakley, Chair, Board of Directors,
Citizens Coal Council
Mr. Chairman and members of the Subcommittee, thank you for the
opportunity to submit this statement for the record on behalf of the
Citizens Coal Council.
Citizens Coal Council is a grass roots federation of citizen groups
and individuals located throughout the coal-producing regions of
America working for social and environmental justice. CCC and its
members strive to protect people and their homes, water and communities
from damage due to coal mining and combustion and waste disposal by
focusing on enforcement of Federal and State laws. Many of our members
suffer the direct impact of mountaintop removal coal mining and filling
valleys with waste material associated with coal mining and processing.
On March 3, 1999, the U.S. District Court of the Southern District
of West Virginia preliminarily enjoined the Army Corps of Engineers
(Corps) and the West Virginia Department of Environmental (WVDEP)
protection from issuing a permit authorizing mountaintop removal
surface mining at a site in Logan County, West Virginia.
That suit charged the Corps and U.S. Environmental Protection
Agency with a ``pattern and practice'' of violating the Federal Clean
Water Act (CWA) National Environmental Protection Act (NEPA) and
Surface Mine and Reclamation Control Act (SMCRA). Plaintiffs alleged
the Corps consistently and without authority issued valley fill permits
under Section 404 of the CWA, which prohibits the dumping of waste
material into water bodies of the United States. Valley fill material
is entirely waste material intended for disposal by the cheapest means
possible--shoving it down the mountainside to bury land and streams
below.
Plaintiffs also charged that WVDEP routinely issued permits
allowing valley fills that are in violation of SMCRA's so-called
``buffer zone'' requirements prohibiting dumping of waste spoil within
100 feet of a stream.
Judge Charles Haden II issued his ruling October 29, 1999 that
overturned decades of illegal mountaintop removal mining in West
Virginia by permanently enjoining the WVDEP ``from approving any
further surface mining permits under current law that would authorize
placement of excess spoil in intermittent and perennial streams for the
primary purpose of waste disposal''.
Judge Haden's decision was appealed by the U.S. Justice Department
in April 2000 and was overturned by the Fourth Circuit Court of Appeals
in April 2001. The Appeals Court ruled on a jurisdiction issue and did
not address the merits of the Haden opinion. Judge Haden was right then
and in a subsequent and similar lawsuit he was right again.
Kentuckians For The Commonwealth (KFTC) sued the Corps when it
issued an area-wide permit authorizing Martin County Coal Corporation
(MCCC) to operate a mountaintop removal coal operation designed to
create 27 valley fills and thereby filling 6.3 miles of streams. KFTC
claimed that the only purpose of valley fills is to dispose of waste
material. The CWA allows only one form of waste disposal and that
material is exclusively limited to dredge spoil.
``Fill material'' (dredge spoil) is deposited for some beneficial
primary purpose (construction work and infrastructure) and not for the
purpose of disposal. For the Corps to allow disposal of waste spoil is
to rewrite the Clean Water Act. Judge Haden ruled such rewriting of a
Federal law exceeds the authority of the Executive Branch and requires
an act of Congress. The framers of our Constitution insisted on that
separation of powers and the Judge upheld that principle.
Sensing a second defeat of its illegal use of valley fill permits
to authorize destruction of Appalachia's valleys and streams, the Bush
administration issued a final rule a few days before Judge Haden's
second opinion. It was intended to change the definition of ``fill
material'' and silence Judge Haden's pending decision. The Judge would
have none of that and issued his opinion in the KFTC case on May 8. It
not only struck down the Corps' interpretation of its authority to
issue valley fill permits to allow disposal of waste, it also
challenged and essentially dismissed the President's final rule issued
on May 3.
Judge Haden reads the purpose of the CWA ``to restore and maintain
the chemical, physical, and biological integrity of the nation's
waters.'' No pollutants can be discharged into waters of the US without
a CWA permit. All parties in the KFTC case agreed that overburden from
mountaintop removal coal mining is a pollutant under the definition and
requires a CWA permit under Section 404.
This Committee debated and reported out the CWA in 1971 and
legislative history makes it undeniably clear it did not intend 404
permits to apply to fill discharges solely for waste or pollutant
disposal, other than disposal of dredge spoil.
Since 1977 the Corps has defined ``fill material'' as:
``Any material used for the primary purpose of replacing an
aquatic area with dry land or of changing the bottom elevation
of water body. The term does not include any pollutant
discharge into the water primarily to dispose of waste, as that
activity is regulated under section 402 of the Clean Water
Act.''
Exactly as designated by this Committee 404 fill is material
discharged into water for construction, development or property
protection while waste disposal is regulated under section 402.
The EPA definition of ``fill material'' and ``discharge'' while not
identical to the definition used by the Corps, when considered
together, point to the same use and purpose requirement. EPA defines
``fill material'' as ``any `pollutant' which replaces portions of the
water of the United States with dry land or which changes the bottom
elevation of a water body for any purpose.'' And, that is an origin of
the controversy between the Corps and EPA's interpretation of the same
law used to permit valley fills.
EPA has always said, until its May 3 final rule changing the
definition of ``fill material'' the purpose for discharging 404 fill is
the construction or development or use for which the fill is needed and
not the purpose for which the material is discharged. EPA has never
considered waste disposal as a proper purpose.
When mountaintop removal overburden is dumped into valleys and
streams to get rid of it that disposal method has the effect of
creating dry land or elevating the level of a stream bottom but that
was not the purpose of its disposal. Thus, the disposal does not fit
the Corps' definition of ``fill material''.
Longstanding regulatory interpretation by both the Corps and EPA
leads to the conclusion that 404 fill permits are issued only for fill
material with a constructive primary purpose, not waste disposal.
SMCRA was written with great care and with the assurance that none
of its provisions violate any other provision of Federal law. SMCRA
could not have allowed the disposal of waste material into streams and
water bodies of the United States because that is prohibited by the
CWA--plain and simple. In fact, two provisions of SMCRA support the CWA
protections for overburden disposal: approximate original contour (AOC)
and the 100-foot buffer zone rule.
Under SMCRA, coal mine operators cannot dump the excess spoil that
is not needed to achieve AOC unless that disposal will make it possible
to achieve ``an equal or better or public use'' of that land. SMCRA
assumes overburden (waste material called ``spoil'') will be returned
to the mountaintop to achieve AOC unless constructive and appropriate
post-mining land use and purpose are designated for the valley into
which the fill is to be disposed.
Congress was clear about the disposal of overburden to achieve a
purpose other than waste disposal. Finally, SMCRA does not allow
disposal of overburden waste into streams and that is supported by the
1977 ``buffer zone rule'' written to enforce the strip mine reclamation
law.
Coal companies that routinely ``practice'' valley fill or head-of-
the-hollow fill disposal are breaking the law. State and Federal
agencies that permit this type of mining operation are violating the
law. This lawlessness and wreckless disregard for the law and the
health and safety of citizens must be challenged and stopped.
Mr. Chairman, Judge Haden is determined to make the Bush
administration obey the law. He challenged the Administration to resist
overturning Federal laws by making rulemakings that ignore the intent
of Congress and particularly this Committee.
It does not require a law degree to understand the basics of this
issue. Mountaintop removal and valley fills are destroying the
environment, private property and quality of life in West Virginia and
Central Appalachia. Floods are becoming more frequent and loss of life
more prevalent as silt and mud wash down the steep inclines below the
mining operations.
Judge Haden is our only line of defense unless you take steps and
exert your responsibilities to uphold the Federal Clean Water Act. We
urge you to challenge the President's rulemaking on the ``fill
material'' definition.
Furthermore, we urge you and the Committee to travel to Central
Appalachia to witness, firsthand, the lawless destruction of our
communities and a part of the oldest mountains on the planet.
__________
Statement of Perry Plumart, Director of Government Relations, Audubon
Mr. Chairman, on behalf of over one million member and supporters
of Audubon, thank you for this opportunity to testify on the affects of
the Bush administration's revisions of the Clean Water Act regulatory
definitions of ``fill material'' and ``discharge of fill material''.
Audubon's mission is to conserve and restore natural ecosystems,
focusing on birds, other wildlife, and their habitats in order to
preserve the earth's biological diversity. The Bush administration's
change to the Clean Water Act definitions would not only allow our
nation's waters to be filled with waste, but the revisions would also
destroy important bird and wildlife habitats crucial to bird species
like the cerulean warbler that have been in significant decline in
recent years.
The purpose of the Clean Water Act is to ``restore and maintain the
chemical, physical, and biological integrity of the Nation's waters.''
33 U.S.C. Sec. 1251(a). The elimination of the waste exclusion from the
definition of ``fill material'' would allow the disposal of refuse
directly into the nation's waters contrary to the intent of Congress
when it passed the Clean Water Act almost thirty years ago. What does
this change really mean? This change in the definition of ``fill
material'' would allow waste, debris, and ruble known as ``overburden''
that comes from blowing off the tops of mountains for coal extraction
to be dumped into nearby rivers and streams located in the surrounding
valleys. These valley fills wipe out the fish, snakes, turtles, frogs,
and other wildlife species that inhabit the rivers and streams that are
used for dumping grounds.
The practice of blowing off the tops of mountains for coal also
destroys some of our nation's important forest habitat located in the
Appalachian region. Not only are many lakes, rivers, and wetlands being
buried by waste from mountaintop mining, but huge swaths of the forests
that are home to many birds and other wildlife are cut down as well.
These mining operations create barren areas, literally moonscapes, in
the forest landscape. These sterile areas often exceed 10 square miles.
In West Virginia and Kentucky alone, over 1,000 miles of streams have
been destroyed along with countless acres of forests. Many birds, fish,
and other wildlife depend upon these forests and streams for their
survival. Among the many victims of this assault on nature is the
cerulean warbler. The places these birds call home are being
permanently destroyed. The coal extraction includes the use of powerful
explosives obliterating the once lush mountain landscape.
The cerulean warbler is an indicator species for the health of our
eastern forests. Over the past 30 years, the cerulean warbler has
declined by 70 percent. This is one of the most severe drops among the
many declining songbird populations in this country. The reason for the
deterioration of the cerulean warbler, particularly in areas like West
Virginia and Kentucky, is due primarily to blowing off the tops of
mountains for coal causing forest fragmentation.
The cerulean warbler is a Neotropical migratory songbird, which
depends upon mature, deciduous forests, often near streams to breed and
survive. According to the US Fish and Wildlife Service, the forests
found in the West Virginia and Kentucky regions are crucial areas for
many migratory birds. While the cerulean warbler is high on Audubon's
conservation priority list in areas where mountaintop mining activity
occurs, there are other Neotropical migrants of the region, such as the
Kentucky Warbler and the Prothonatory Warbler, that are also rapidly
declining in population.
The dramatic decrease of the number of cerulean warblers, and other
songbirds like it, serves as a clear signal that the forests that these
birds call home are in imminent danger. By allowing the Bush
administration's regulatory changes to the Clean Water Act to go
forward, the destructive process of blowing off the tops of mountains
will continue to push birds like the cerulean warbler toward
extinction. We need to stop these destructive acts that would deny our
children and future generations the pleasure of listening to the unique
song of the cerulean warbler.
Mr. Chairman, we look forward to working with you and the other
members of your committee to preserve birds, like the cerulean warbler,
for future generations. Let's stop the Bush administration's regulatory
changes that would permit the practice of mountaintop mining to
continue. We need to work to keep the Clean Water Act for the purposes
Congress intended. Thank you Mr. Chairman for this opportunity to
testify before the Committee on such an important issue. Together, we
can prevent the contamination of our nation's waters and safeguard the
cerulean warbler from extinction.
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