OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 1 of 3

COALEX STATE COMPARISON REPORT - 316

February 1995

Lee Cohen

Bureau of Mining & Reclamation

Department of Environmental Resources

P.O. Box 8461

Harrisburg, Pennsylvania 17105-8461

TOPIC: COAL REFUSE DISPOSAL IN VALLEYS WITH STREAMS

INQUIRY: A recent Pennsylvania statute allows the disposal of coal refuse waste in 

valleys with streams under certain conditions. Do other states allow this? If so, how do 

they relate this disposal to the requirements of the Clean Water Act - must they comply 

with Section 402 or 404 of the CWA? 

SEARCH RESULTS: Due to the short lead time on this request, only a very limited 

survey was conducted: West Virginia was contacted by phone and some 

COALEX/LEXIS research was conducted. A federal court case was identified that 

discusses compliance with Section 402 versus Section 404 when disposing of surface 

coal mining waste in small streams.

Results of the survey and research are discussed below. Copies of the materials listed 

below are attached.

WEST VIRGINIA

How the requirements of the CWA are applied depends on certain factors, e.g., is the 

stream perennial or intermittent and is the coal refuse acid producing? Mitigation is 

required if disposal is in-stream. The mitigation policy requires the state to be paid for 

rendering the stream unusable.

West Virginia Reg. Sec. 38-2-22 (1991). Coal Refuse; 22.3 Permit Requirements -

General. 

"(s) Underground Disposal. Plans for underground refuse disposal shall be submitted to

and approved by the Commissioner and the Mine Safety and Health Administration. All 

plans must include:

...

(10) The method of treatment of water if released to surface streams".
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 2 of 3

Sections 22.4 Permit Requirements - Impounding Structures and 22.5 Performance 

Standards are enclosed for background. 

WEST VIRGINIA COAL ASSN. v REILLY, 1991 U.S. App LEXIS 9401; 33 ERC (BNA) 

1353; 22 ELR 20092 (4th Cir 1991). WEST VIRGINIA COAL ASSN. v REILLY, 728 F 

Supp 1276 (SD WVa 1989).

The court considered "the question of who has authority over the placement of fill 

material or water treatment ponds in small streams in West Virginia for the disposal of 

waste associated with surface coal mining operations": the EPA or the state given 

NPDES permitting authority under Section 402 of the CWA versus the Army Corps of 

Engineers under Section 404 of the CWA.

Citing to the memorandum of agreement (MOA) which the EPA and Army Corps of 

Engineers entered into in 1986 to resolve confusion over which agency had jurisdiction 

over fill material in-stream treatment procedures, the court stated:

"Paragraph B.4.a. provides that a fill material will be subject to Sec. 404 if its 'discharge 

has as its primary purpose or has as one principle purpose of multi-purposes to replace 

a portion of the waters of the United States with dry land or to raise the bottom 

elevation.' By contrast, paragraph B.5 provides that fill will be subject to Sec. 402 if it is 

a discharge in liquid, semi-liquid, or suspended form or if it is a discharge of solid 

material of a homogeneous nature normally associated with single industry wastes, and 

from a fixed conveyance, or if trucked, from a single site and set of known processes. 

These materials include placer mining wastes, phosphate mining wastes, titanium 

mining wastes, sand and gravel wastes, fly ash, and drilling muds. As appropriate, EPA 

and the Corps will identify additional such materials.

"It is apparent from the MOA that the types of fills and discharges at issue in this case 

fall under the B.5 definition and are subject to the EPA's permitting authority under Sec. 

402. The discharge of fill material at issue here is expressly for the purpose of disposing 

of waste or spoil from the mining operations. The EPA concedes that the Secretary of 

the Army may have some jurisdiction over the use of fills in the construction of the 

embankment for the ponds since such embankment may be said to be constructed for 

the 'primary purpose' of 'changing the bottom elevation' or the stream in which it is 

constructed in order to create the pond."

The circuit court affirmed "the district court's conclusion that the in-stream treatment 

ponds and the waters above such ponds fall within the definition of 'waters of the United 

States,' see 40 C.F.R. Sec. 122.2(d), and the EPA did not act beyond its statutory 

authority in regulating these waters."

ATTACHMENTS
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 3 of 3

A. Excerpts from 1994 Pa. ALS 114; 1994 Pa Laws 114; 1994 Pa HB 1075 

amending the Coal Refuse Disposal Control Act. 

B. WEST VIRGINIA Reg. Sec. 38-2-22 (1991). Coal Refuse 

1. 22.3 Permit Requirements - General. 

2. 22.4 Permit Requirements - Impounding Structures 

3. 22.5 Performance Standards 

C. WEST VIRGINIA COAL ASSN. v REILLY, 1991 U.S. App LEXIS 9401; 33 ERC 

(BNA) 1353; 22 ELR 20092 (4th Cir 1991). 

D. WEST VIRGINIA COAL ASSN. v REILLY, 728 F Supp 1276 (SD WVa 1989).