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83–696 PDF 2004

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

(
(II)

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

JAMES M. JEFFORDS, Vermont, Chairman

MAX BAUCUS, Montana

HARRY REID, Nevada

BOB GRAHAM, Florida

JOSEPH I. LIEBERMAN, Connecticut

BARBARA BOXER, California

RON WYDEN, Oregon

THOMAS R. CARPER, Delaware

HILLARY RODHAM CLINTON, New York

JON S. CORZINE, New Jersey

BOB SMITH, New Hampshire

JOHN W. WARNER, Virginia

JAMES M. INHOFE, Oklahoma

CHRISTOPHER S. BOND, Missouri

GEORGE V. VOINOVICH, Ohio

MICHAEL D. CRAPO, Idaho

LINCOLN CHAFEE, Rhode Island

ARLEN SPECTER, Pennsylvania

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

THOMAS R. CARPER, Delaware

HILLARY RODHAM CLINTON, New York

JON S. CORZINE, New Jersey

GEORGE V. VOINOVICH, Ohio

JAMES M. INHOFE, Oklahoma

MICHAEL D. CRAPO, Idaho

PETE V. DOMENICI, New Mexico
(III)

CONTENTS

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
Page

IV

Letters from—Continued

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
(1)

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
2

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
3

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
4

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 pro-
5

motes 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.
6

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 ma-
7

terial 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 ‘‘effectsbased 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.
8

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.
9

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 9thcircuit 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,
10

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.
11

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 nonlawyer 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.’’
12

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,
13

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
14

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 afterthe-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 author-
15

ity, 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
16

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 imple-
17

mented 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
18

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
19

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.
20

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 inverte-
21

brates 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
22

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
23

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.
24

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 mate-
25

rial’’ 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)].
26

1The 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). 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). 3Memorandum 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 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.

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.

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.

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.
27

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
28

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 de-
29

bris, 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 dis-
30

charges 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
31

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 § 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 § 404?

Response. Both under prior and current regulatory definitions, a project proponent could apply for § 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 § 404. It does not confer any inherent authorization. All requirements of the CWA fully apply to the review of applications for § 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.
32

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 § 404 permit. What chemically

contaminated wastes does the Corps currently permit to be placed in waters under

the § 404 program?

Response. The discharge of chemically contaminated dredged material into waters

of the U.S. has long been eligible for authorization under § 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 uncer-
33

tainties 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
34

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 § 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 § 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 § 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 § 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 § 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 § 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’’?
35

Response. As stated in the EA, the Corps prepares appropriate NEPA documentation for all of its permit decisions. The percentage of Corps § 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 § 402 or § 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 § 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 § 402 or § 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 pro-
36

tected. 40 C.F.R. § 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.

§ 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.
37

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 § 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 § 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
38

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 § 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 § 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 § 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
39

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 § 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 reg-
40

ulations 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 circumstances.

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,
41

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 ap-
42

proximate 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 twentythree 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
43

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,
44

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. 2Final Revisions to the Clean Water Act Regulatory Definition of ‘‘Fill Material’’ and ‘‘Discharge of Fill Material’’, 67 Fed. Reg. 31129 (May 9, 2002). 3See Letter to President George W. Bush from 18 national environmental organizations,

March 8, 2002. 4The 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. 5S. 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. § 131.12(a).

7 Id. at 51408–09.

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

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 § 404 permits

for waste disposal.

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.

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.

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. § 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.,

§ 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. § 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
45

8 Id.; see 40 C.F.R. § 131.10(a). 9When 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. 10That ruling was issued in response to a challenge by a citizen group, Kentuckians For The

Commonwealth, to the Corps’ approval under a § 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). 11 Id. at 1–2. 12 Id. at 42 (emphasis in original). 13 Id. at 5. 14 Id. at 42 (emphasis added).

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

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

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

§ 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 § 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 § 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:

‘‘The Court holds that § 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

The court then enjoined the Corps from issuing any new § 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 § 404 is ENJOINED.’’ 12

The court ruled:

‘‘To approve disposal of waste other than dredged spoil, in particular mountaintop removal overburden, in waters of the United States under § 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

‘‘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

‘‘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,
46

15 Id. at 44. 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. 17See, 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. 21 Kentuckians For The Commonwealth at 39–40.

not within the murk of administrative after-the-fact ratification of questionable

regulatory practices.’’ 15

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 § 404 permits for fills comprised of waste material.16

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.

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 § 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.

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—
47

22 67 Fed. Reg. at 31130. 23 Id. at 42–43. 24 72 F.Supp. 2d 642 (S.D. W. VA 1999), rev’d, 248 F. 3d 275 (4th Cir. 2001). 25Deposition of Rodney Woods, Nov. 30, 1998, p. 23 (taken in Bragg v. Robertson).

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:

‘‘[F]or the past 20 years, particularly in the Huntington Corps District, § 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 § 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

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

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

§ 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.
48

26 42 U.S.C. § 4321 et seq. 27 42 U.S.C. § 4332(2)(C). 28 40 C.F.R. § 1508.18(a) (emphasis added). 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. 30Letter 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. 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. 34Mountaintop Mining EIS Presentation, EPA Office of Water, Office of Federal Activities,

and Office of General Counsel, March 5, 2002.

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.

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.

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.

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.

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

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 presentation34 to senior EPA officials in the agency’s Washington, DC. headquarters summarizes the findings from these studies:
49

35Other 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. 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. 37See MTM/VF EIS Steering Committee, ‘‘Problems Identified/Confirmed/Inferred by Technical Studies,’’ August 15, 2002 working draft.

• One percent of all streams in the study area (560 out of 55,000 miles) have already been eliminated by valley fills.35

• Macroinvertebrate indices indicate that stream segments located downstream of

valley fills are being impaired (aquatic life use).

• Stream chemistry monitoring efforts show significant increases in conductivity,

hardness, sulfate, and selenium concentrations downstream of [Mountaintop Mining/Valley Fill] operations.36

• The Appalachian Highlands is characterized by some of the best forest habitat

in the world.

• 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

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 § 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 § 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 re-
50

38Testimony 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). 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 § 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. 40 Kentuckians For The Commonwealth at 44. 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. 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.

quiring authorization by Section 404 were allowed to proceed under the authority of general permits that do not require any notification to the Corps.38

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

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.

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.

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.
51

45 Bragg, 72 F. Supp.2d at 661–62. 46Gannett Fleming, ‘‘Landscape Scale Cumulative Impact Study of Future Mountaintop Mining Operations,’’ March 2002, pp. ii, iv. 47Penny Loeb, U.S. News & World Report, ‘‘Shear Madness,’’ (August 7, 1997). 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 HeadContinued

‘‘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

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

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.

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
52

waters 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. 50Francis X Clines, ‘‘100-Year Flood, for the Second Straight Year,’’ New York Times, May 9,

2002. 51See 64 Fed. Reg. 5800 (Feb. 5, 1999) (notice on the EIS). 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 § 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. 53Mountaintop Mining EIS Presentation, EPA Office of Water, Office of Federal Activities,

and Office of General Counsel, March 5, 2002 (emphasis in original). 54 Id.

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

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 § 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.

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:

‘‘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

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 elec-
53

55Gannett Fleming, Draft Economic Consequences Study for MTM/VF EIS, April 23, 2002. 56See 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, 57 January 2001 Preliminary Draft EIS (PDEIS) at III.K–21. 58 Id. at K–22, K–28. 59See http://www.dep.state.wv.us/Docs/1449NR-CrumResponse.pdf. 60PDEIS at III.K–13. 61 Id. at III.K–28. 62Morgan Declaration. 63 Id. 64 Id. 65 Id.

tricity] prices or generation levels among the alternative [restrictions] . . . due to

the competitive nature of the energy markets.’’ 55

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

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

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.

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.

The impact of valley fill restrictions varies from mine to mine, and requires a sitespecific 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
54

66 Id. 67 40 C.F.R. § 230.10(a)(3) (emphasis added). 68 Id., § 230.10(d). 69Gannett Fleming study, pp. iv. 70Phone 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. 71Mountaintop Mining EIS Presentation. 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. 73 67 Fed. Reg. at 31142 (emphasis added). 74 Id. (emphasis added).

as well.66 These alternatives to placing mining waste in streams should be used instead of dumping waste in waterways.

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 § 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

§ 404 permits for the disposal of waste in streams, as the Bush rule purports to do,

is illegal for this reason as well.

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

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

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

According to the final rule, examples of wastes now eligible for § 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
55

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’’). 76 65 Fed. Reg. 21299. 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. 79Geraldine Sealey, ‘‘Coal Slurry Spill Hits Rivers Worst Regional Disaster in Years,’’

ABCnews.com, October 23, 2000. 80Ken Ward, ‘‘Alternatives to coal slurry ponds exist, study says,’’ Sunday Gazette-Mail, October 14, 2001. 81 Id. (emphasis added). 82See 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.’’). 83 National Academy of Sciences, ‘‘Hardrock Mining on Federal Lands,’’ (1999). 84 Id. at App. B 163.

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 § 404

regulations and its related guidelines are adequate to address such cases.75

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

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-gallona-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

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

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

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
56

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). 86http://www.epa.gov/OSWRCRA/non-hw/debris/about.htm 87Franklin 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. 90 Id. at 3.

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.

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

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

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.

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
57

91 67 Fed. Reg. at 31134 (emphasis added.). 92 Kentuckians For The Commonwealth at 43 (emphasis added). 93See 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 § 404 fill permits for certain

categories of waste, while reiterating their overall support for the rule. 94 65 Fed. Reg. at 21296–21297.

widely available landfills and other approved facilities for disposal of trash or

garbage.’’ 91

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

THE NATIONAL MINING ASSOCIATION GETS ITS WAY

Finally, there were two provisions of the proposed rule that somewhat limited the

use of § 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 § 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.

‘‘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

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
58

95 National Mining Association, Re: Proposed Changes to the Definition of Fill Material, (July

17, 2000) at 2. 96Phelps Dodge Corporation Comments on Proposed Revisions to the Clean Water Act Regulatory Definitions of ‘‘Fill Material’’ and ‘‘Discharge of Fill Material,’’ at 5. 97 65 Fed. Reg. at 21299. 98 65 Fed. Reg. 21295 (emphasis added). 99 Id. 100 Id. 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. 102 NMA comments at 7 (emphasis in original).

unfettered discretion to reject § 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

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

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 § 404 fill permit (and thus possibly exempt from the § 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

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

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 § 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 § 402 permitting requirements.’’ 102

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
59

should be able to apply for a § 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 § 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 § 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
60

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 δ 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’ § 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.
61

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
62

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 § 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 com-
63

ments; 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 § 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 § 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

§ 402 of the Act. At the time, the EPA and Corps argued that the proposed ‘‘effectsbased’’ 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.
64

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 coun-
65

try’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
158

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.
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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 coalproduced 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.
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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:

• Environmental studies scholarships for college students

• Environmental education hikes, trips and camping excursions

• Sponsoring kids to attend environmental camps

• Educating people on the importance of being involved in political processes

• Clean-up and recycling events throughout the United States

• An educational video and classroom study guide

• An environmental television series for kids and their families

• Water and soil testing in potentially hazardous areas

• Research into alternative and renewable energy sources

• 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 com-
161

munity 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).

Parameter Un-mined

sites Valley Fill Filled/Unmined

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.
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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 re-
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ceive 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
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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).

Parameter Un-mined

Sites Valley Fill Filled/Unmined

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 μL (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 μg/L were at valley fill sites and many of those are several

times greater than the detection limit of 3 μg/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 μg/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-μg/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 μg/L and the more appropriate level should be a water quality criterion of 2

μg/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):

• Swelling of gill lamellae

• Elevated lymphocytes

• Reduced hemoglobin (anemia)

• Eye cataracts as well as exopthalmus (popeye)

• Pathological effects on liver

• Reproductive failure

• 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:
165

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 μg/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:

• The EPA’s standard to protect aquatic species is 5 μg/Liter but is being reevaluated as a standard of only 2 μg/Liter is being applied to protect wetland grasslands

in the San Joaquin Valley, CA (note 5 μg/L versus over 11 μg/L was the median

value below valley fills in WV.

• Selenium is taken up by vegetation.

• Selenium is toxic to small mammals as longevity has been reduced on diets

with only μg/g in diets of rats, deleterious effects to the hair, nails, live, blood, heart,

nervous system, and reproduction have been documented.

• 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.

• The potential of additional exposure to selenium of beef cattle, dairy cattle,

swine and poultry wastes production is apparently increasing.

• 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) § 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:

• 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).

• 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).

• 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).

• The level of 250 mg/L or less, appears appropriate to insure adequate protection

of drinking water with respect to taste (p. 23).
166

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
167

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
168

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.

State

1980 1990

Mining

counties

Statewide

average

Percent of

State

Mining

counties

Statewide

average

Percent of

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, indus-
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tries, 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 . . .

• The Mingo County Wood Products Industrial Park (Exhibit A)

• Located on a reclaimed surface mine site

• 28 million total project cost

• 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.

• Presently 90 employees

• 100 new jobs by the end of 2002 (estimate)

• The Mingo County Agriculture Demonstration Project (Exhibit B)

• Located on a reclaimed surface mine site
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• Enabled the Mingo County Board of Education to provide a Horticultural

Curriculum

• Operated and maintained by the students through the new horticultural program

• The Fish Hatchery (Exhibit C)

• Utilizing underground mine water to hatch and raise Arctic Char fingerlings

• Created a new industry in southern West Virginia

• Will provide for an Aquaculture Curriculum to be available to the students

through the Mingo County School system

• The Grow-out Facility for Arctic Char (Exhibit C)

• Utilizing underground mine water to grow Arctic Char fingerlings to market

size (2lbs)

• $3.5 million private investment

• Pro-fish is the distributor of Arctic Char into the Washington, DC area.

• Twisted Gun Golf Course (Exhibit D)

• 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 . . .

• King Coal Highway/I73–74 (Exhibit E)

• 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

• Airport (Exhibit F)

• 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.

• Fish Processing Plant

• 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 . . .

• The mining industry must continue ...

• Our partnership with the private/public sectors must continue ...

• Post mining land use creating developable property for future jobs must continue ...

• 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:
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‘‘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 eco-
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systems, 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. § 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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