Bush's Appalachian War: "Immunity" For Mining Companies Stick this out and get to the activist steps at the bottom!! by: Patriot Daily

Source: Photo by Penny Loeb of Valley Fill Bush has "legalized" valley fills despite the devastating impacts to people and environment. For years, mining companies obtained de facto "immunity" from environmental laws: Regulators simply ignored or twisted the laws to "authorize" valley fills. Citizens and environmental groups fought back with multipronged litigation to force compliance with the laws. Lower courts were shocked by the extent of regulator noncompliance and issued permanent injunctions to stop the valley fills. Not surprisingly, the conservative Court of Appeals for the Fourth Circuit vacated these decisions, but not usually on the merits. Given the blatant illegalities and massive destruction to Appalachia, it was only a matter of time before some case would be too egregious for even the Fourth Circuit to ignore. So, Mr. Unitary Decider replaced long-standing laws with those de facto exemptions used to evade the law. The impact of the new rules is not limited to Appalachia. The mining waste in the Appalachian waterways will flow into the rivers and streams in the region that share the same headwaters. It is not solely a regional issue because now permits authorize mining waste to be dumped into waters on the West Coast. And, it is not limited to the coal industry because the Clean Water Act is not limited to mining waste. The impacts may be exacerbated because Bush has argued that all waters of the US are unitary waters. Under this theory, the Clean Water Act would not regulate the discharge or transfer of polluted water from one waterway into another. If you support environmental human rights and justice, then please let your fingers do the walking to Congress via email or phone to obtain more sponsors for the Clean Water Protection Act. HR 2169 is designed to repeal Bush's new rule on fill material --- the subject of this diary. Tomorrow I will post Part 2 of Bush's Appalachian War: "Immunity" For Mining Companies, which addresses a few more fixes by Bush to ensure that valley fills are legalized without the inconvenience of thorough, objective environmental review of impacts. 1. Why Valley Fills Are Really Valley Kills In mountaintop removal (MTR), the mining company uses bombs to "decapitate" the top 500-1,000 vertical feet of the mountaintop. The bombing blends together the rock and dirt from the former mountaintop with the blasting chemicals, and then "millions of tons" of waste that may be hundreds of feet deep are dumped into the valleys. A "single fill may be over 1,000 feet wide and over a mile long (pdf file)." The mining companies call these waste sites "valley fills." Looking only at several environmental impacts recognized by our government provides an indicator of how much destruction Bush will permit so that mining companies may continue business on the cheap: 1. CRS reports that valley fills are killing the streams, aquatic and wildlife habitat (pdf file) by suffocation, altering flow patterns, increasing the number and severity of floods and degrading water quality with mining overburden pollutants. 2. During 1985-2001, there were 6,700 valley fills in central Appalachia. The EPA estimated more than 1,200 miles of valley streams had been "impacted" and more than 700 miles of streams had been killed, buried entirely. 3. Government studies show that streams not buried by mining waste "carry high levels of silt and toxic chemicals." 4. The U.S. Fish and Wildlife Service estimated that 244 species, including endangered species, suffered "unprecedented" impacts by the loss of forest and aquatic habitats. 5. A study by federal regulators predicted that one valley fill "could increase peak runoff flow by as much as 42 percent" resulting in increased flooding. In the past, the mining debris was placed at the headwaters of streams with intermittent flow. Now, mining companies use any stream because the increased usage of MTR has exhausted (pdf file) "smaller upstream disposal sites." Despite knowledge of this destruction, the Bush gang fixed the laws to legalize environmental rape. After Bush was selected president, his minion J. Steven Griles (who was subsequently sentenced to prison for lying to Senate committee about his ties to Jack Abramoff) publicly pledged to the coal mining industry in August 2001 that they would "fix the federal rules very soon on water and spoil placement." Bush frames the issue as one of necessity for national security, but it really is simply corporate profiteering at the expense of people and environment. Mining companies claim MTR is not possible without valley fills. Not exactly true: "[S]tudies have identified more benign, though admittedly more costly, ways to dispose of the waste." So, mining companies used their deep pockets to persuade our government to ignore the laws. 2. The Fill Fix In order to legalize valley fills, the first fix involved a little restructuring of the Clean Water Act (CWA), which has two regulatory programs with different substantive jurisdiction. The program that had jurisdiction would not likely issue a permit for valley fills due to stringent standards. So, for years our government violated the law by issuing permits from a different regulatory program. Then, a court issued a permanent injunction to stop this illegal practice. Bush responded by changing the jurisdictional rules, which also enabled the mining companies to achieve a secondary goal of participating in a streamlined permitting process (called NWP and discussed in Part 2) for which valley fills did not qualify --- until another fix was implemented. The Clean Water Protection Act is designed to undo this fix of the CWA. Under the CWA, it is unlawful to discharge any pollutants into waters without a permit. The CWA has two primary regulatory regimes: Section 402 regulates the discharge of most pollutants into our waters and Section 404 regulates the discharge of dredged or fill material into waters at specified sites. Whether a discharge is regulated by 402 or 404 is dependent upon whether the discharge constitutes "fill material:" Fill material is subject to 404 while discharge of non-fill material is regulated by 402. Historically, disposal of waste into waters has been regulated by 402 pursuant to NPDES permits that impose stringent technology-based limitations on dischargers and can be quite expensive and time-consuming. As the CRS noted, if mining waste were regulated by the NPDES permit, it "would effectively prohibit (pdf file) a broad range of mining activities which have been allowed by longstanding current practice" due to more stringent standards: [T]he types of materials associated with surface mining activities (e.g., rock and sand) are defined in the Clean Water Act as pollutants when discharged into U.S. waters. If such materials are subject to the act's Section 402 NPDES requirements, they are evaluated on the basis of whether they alter the chemical, physical, or biological integrity of the water. That standard is more stringent than evaluation under Section 404, which authorizes permits for fill discharges for constructive or useful purposes. For years, our government issued unlawful 404 permits for valley fills. Then, a federal district court held that long-standing rules prohibited regulators from issuing 404 permits for valley fills used solely for waste disposal. Moreover, the judge permanently enjoined (pdf file) this practice. [Kentuckians for the Commonwealth v. Rivenburgh (S.D. W.Va. 2002) 204 F.Supp. 2d 927] The Court of Appeal reversed. However, the district court's opinion provided sound legal reasoning which also illustrates what lies in our future should Bush's new rule not be reversed. The Bush team have cited two primary reasons for changing the rules. One, Bush claimed there was an interagency conflict that required "clarification," which is discussed below. Two, it was claimed that regulators could not comply with laws that were out of synch with mining practices. However, the rules changed by Bush were adopted after the coal industry started MTR. The central issue is the meaning of fill material, which is not defined in the CWA. While the Corps heads up the 404 program, the EPA also has a role, and both agencies defined fill material in their regulations. However, the definitions created different tests (pdf file) to determine whether a material constituted "fill material": While the Corps' definition centered on evaluating what is the primary purpose of a prospective discharge to determine whether it would be regulated by Section 404 or Section 402, EPA's definition … focused on the effect of the material. 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 a waterbody. 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 C.F.R. § 323.2(e) Valley fills clearly did not constitute "fill material" under the Corps' definition. The primary purpose of valley fills is waste disposal, not replacement of an aquatic area with dry land or changing the elevation, which was a secondary or incidental effect of valley fills. As the district court stated, "filling to create dry land or elevate a bottom must be undertaken for some constructive or useful purpose" which excluded waste disposal. Moreover, "fill material" was defined to exclude pollutants (which includes rock and sand) discharged primarily for waste disposal. After all, the purpose of the CWA is to improve water quality, not authorize the dumping of waste into waters as some new garbage site. Therefore, the Corps did not have legal authority to issue 404 permits for valley fills, which should have been regulated by the NPDES program. A momentary ambiguity was introduced by the EPA definition of "fill material" that was adopted in 1988 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. 40 C.F.R. § 232.2 This EPA rule was used for decades to issue 404 permits for valley fills used for waste disposal. [Kentuckians for the Commonwealth v. Rivenburgh (S.D. W.Va. 2002) 204 F.Supp. 2d 927] It has two key components. One, did the fill have the effect of filling. Given that all fills have the effect of fill, not a difficult test to pass. Two, it expanded 404 jurisdiction by changing the focus of the purpose test. Under the Corps' primary purpose test, "the purpose for discharging § 404 fill is the construction or development or use for which the fill is needed." Under the EPA "any purpose" test, the key is the "purpose for which the material is discharged." In other words, the EPA "any purpose" test focused on the use or purpose of the discharge whereas the Corps' test focused on the use or purpose of the fill. Thus, permits were issued for mining waste disposal because the EPA model allowed discharges "for any purpose." The court held this interpretation conflicted with the CWA and the definition of "discharge of fill material." It is this conflict between the agencies as to what constituted fill material, and consequently, which agency should be regulating valley fills, that Bush grabbed as a reason to change the rule to expressly authorize valley fills. However, when there is an apparent conflict in the law, the role of statutory interpretation is assigned to our courts, not Mr. Decider. In order to resolve the conflict between these two definitions of fill material, the district court in Kentuckians for the Commonwealth looked at the definition of "discharge of fill material" by the two agencies. This made sense because the two agencies agreed upon this definition. Moreover, this definition answered the question of whether the fill had to be for the primary purpose of a permissible activity or use (Corps definition) or could it be for any purpose (EPA definition). The key here is that "discharge of fill material" defined those activities or discharges which may be authorized by a 404 permit. [33 C.F.R. § 323.2(f) (Corps definition); 40 C.F.R. § 232,2 (EPA definition)] All of the activities described in this definition have the common element that the fill material is discharged in an incidental or secondary role for the primary beneficial purposes of construction, development or property protection of specified structures. In other words, fill may be used when it is necessary for an approved structure to be constructed in a waterway, such as dams or levees. The definition of "discharge of fill material" shows that both the Corps and EPA did not intend for fill material to be dumped into waters when there was not any approved structure to be constructed. This definition would exclude valley fills because the fill is the project. The district court found this interpretation to be consistent with Congressional intent. Section 1344(f)(2) of the CWA provides that: Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section. Similar to the Corps' and EPA's definition of "discharge of fill material," Congress focused on fill material being discharged for the purpose of "bringing an area into a new use" because it is the constructive use or purpose that justified filling US waters. [Kentuckians for the Commonwealth] In short, the EPA definition of fill material was a minority view that was contrary to its own definition of "discharge of fill material." Moreover, Kentuckians for the Commonwealth noted that the EPA had agreed with the interpretation by the Corps and Congress until May 3, 2002, which just happened to be the date that the "agencies signed for publication the final version" of the new Bush rule while the court was considering this case. So, the Bush team wrote a new rule to redefine "fill material" to include valley fills. The fix actually started earlier though. On April 6, 2001, National Mining Association reps met with EPA officials for 90 minutes to advocate changes in the rule to permit MTR. Bush's final rule "contained nearly all the changes the mining industry requested." Fill material is now defined as "material" placed in US waters that has the "effect" of replacing water with dry land or changing the bottom elevation. [33 C.F.R. 323.2(e) & 40 C.F.R. 232.2] Examples of fill material now subject to 404 jurisdiction include "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 the waters of the United States." Bush used a lot of words to provide a silly tautological definition of fill: Fill material is defined as material which has the effect of filling. However, the impact of this tautology is to expand the Corps' jurisdiction to "allow the waters of the United States to be filled, polluted, and unavoidably destroyed, for any purpose, including waste disposal." [Kentuckians for the Commonwealth] The final rule eliminated the regulatory language that excluded waste discharges from 404 jurisdiction. Now, when the "waste has the effect of fill," it is regulated by 404 (pdf file): One analyst observed that the result of the 2002 rule revisions was to change the baseline of what is regulated by the 404 program and the NPDES program. Under the Corps' previous regulation, the disposal of waste was solely subject to Section 402. Now, where the waste has the effect of fill, the government believes that regulation under Section 404 is appropriate. Thus, fill material now defines the extent of the NPDES program, because only pollutants subject to effluent limitations are excluded from regulation as fill. According to this view, the Section 404 permitting program has been expanded at the expense of EPA's NPDES program. The government and mining industry maintain that excluding all waste from 404 is not appropriate because "some waste (e.g., mine overburden) consists of material such as soil, rock and earth, that is similar to 'traditional' fill material (pdf file) used for purposes of creating fast land for development." In other words, the mining industry claims that its waste is similar to traditional fill material that does not have health or environmental concerns and thus mining waste should not be treated differently just because its primary purpose is waste disposal. However, unlike traditional fill material, mining overburden also includes the chemicals used for blasting off the mountaintops. To tie up loose ends, Bush expanded the types of discharge activities subject to 404 permits by amending the definition of "discharge of fill material" to include the "placement of overburden, slurry, or tailings or similar mining-related materials." Now, 404 permits may be authorized for valley fills which are the only activities that are not incidental to the primary purpose of the construction of some authorized structure. The result is that the illegal practice of issuing 404s for waste disposal is now legal. The impact of this rule extends beyond Appalachia because fill material may now be argued to authorize any waste (pdf file) discharge, including coal ash refuse, provided that the effect of filling is to fill. The Corps has now issued 404 permits "for an array of activities" that discharge waste into waters, including the discharge of 4.5 million tons of chemically processed gold mining tailings into a lake at Tongass National Forest. This is the "first time (pdf file) since the Clean Water Act was passed that the Corps has allowed a mining operation to dump process wastewater directly into a lake, river or stream as 'fill.'" 3. Repealing The Fix With HR 2169 The mining companies have whined that they can not do MTR if they do not get a free ride on valley fills. This is one time I hope they are being truthful. One way to find out is to round up more sponsors for HR 2169: Clean water protection act HR 2169 FILL MATERIAL- The term 'fill material' means 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. The term does not include any pollutant discharged into the water primarily to dispose of waste. The intent of HR 2169 is to reverse Bush's tinkering of the fill rule by indicating that valley fills do not constitute fill material. Therefore, the mining companies would have to obtain a NPDES permit, which is not likely to happen given the need to comply with water quality standards. I support HR 2169 as a good start to ending valley fills but do have some concerns: (1) It makes me nervous that HR 2169 is primarily based on the EPA's/Bush's model rather than the Corps' model. In fact, HR 2169 is the EPA definition of fill material except for the last sentence. Thus, 2169 is a combination of the EPA's effects or filling test, the EPA's any purpose test and part of the Corps' waste clause. (2) HR 2169 may be interpreted as providing that fill material is any pollutant that has the effect of filling US waters for any purpose except discharges primarily for waste disposal. It is the tautology model that may be easily used to expand 404 jurisdiction. This leaves the door open for mining companies to argue that coal waste products are appropriate fill material if the primary purpose is other than waste disposal, such as structural support. (3) I liked the original Corps' definition of fill material, which required the fill material be discharged for some "primary, beneficial purpose" such as construction of authorized structures or development in the waters. Using the EPA phrase of "any purpose" eliminates this distinction. (4) Bush expanded 404 jurisdiction to include discharge activities involving the "placement of overburden, slurry, or tailings or similar mining-related materials." This creates a conflict with HR 2169, which sometimes excludes mining waste as fill material. The definition of "discharge of fill material" should be amended to exclude this overburden clause. I think this diary provides a few good reasons why we should call, email or write lawmakers to sponsor the Clean Water Protection Act. As Devilstower says: Momentum is on the side of the Clean Water Protection Act. Wheels are turning, people are moving, and the odds that this bill will emerge from committee with the momentum it needs to sweep the full House is looking better every day. And I don't think your participation in this has gone unnoticed. Now is the time we need to apply even more pressure to win over the holdouts. In particular, these Congressmen sit on the Water Resources Subcommittee. None of them have said they won't support the CWPA, but they've also not signed on. Adding just a few of these names to the list of cosponsors would be a huge boost. Name District Local # D.C. # Eddie Bernice Johnson TX-30 (214) 922-8885 (202) 225-8885 Gene Taylor MS-4 (228) 864-7670 (202 225-5772 Brian Baird WA-3 (360) 695-6292 (202) 225-3536 Jerry Costello IL-12 (618) 233-8026 (202) 225-5661 Russ Carnahan MO-3 (314) 962-1523 (202) 225-2671 John Salazar CO-3 (970) 245-7107 (202) 225-4761 Mazie Hirono HI-2 (808) 541-1986 (202) 225-4906 Harry Mitchell AZ-5 (480) 946-2411 (202) 225-2190 Steve Kagen WI-8 (920) 437-1954 (202) 225-5665 Grace Napolitano CA-38 (562) 801-2134 (202) 225-5256 Michael Arcuri NY-24 (315) 252-2777 (202) 225-3665 Why is Michael Arcuri's name lined out? Because Arcuri signed onto the CWPA just yesterday. Now, we just need to get the rest of them. So call. If you can't call, write.

Patriot Daily :: Bush's Appalachian War: "Immunity" For Mining Companies