Citizens Coal Council

Working together for clean water, safe homes and a healthy environment

110 Maryland Ave. N.E. #408 1705 S. Pearl St. #5

Washington, D.C. 20002 Denver, Co. 80210

202-544-6210 fax: 202-544-7164 303-722-9119 fax: 303-722-8338

citzcoal@starpower.net ccc6@mindspring.com

Testimony of Doyle Coakley

Chair, Board of Directors

Citizens Coal Council

Regarding revisions to the Clean Water Act with respect

to "fill material" and "discharge of fill material"

Before the Environment and Public Works Committee

Subcommittee on Clean Air, Wetlands, and Climate Change

United States Senate

June 6, 2002

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.