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Ruling on Dumping of Mine Waste Stuns Coal Industry

By Eric Pianin
Washington Post Staff Writer
Friday, May 10, 2002; Page A04

The coal industry was reeling yesterday from a federal court ruling that would end a long-standing practice of filling rivers and streams with waste rock and dirt from mountaintop mining operations.

The ruling, issued Wednesday by Chief U.S. District Judge Charles H. Haden II in West Virginia, immediately blocked the Army Corps of Engineers from issuing new permits to mining companies that dump waste in Appalachian waterways and valleys. Mining officials warned that if the ruling stands, it will seriously harm the region's economy, forcing utility costs up and possibly eliminating 15,000 mining jobs in the next five years.

"It has the potential impact to shut down the majority of coal mining operations in Appalachia," said Bill K. Caylor of the Kentucky Coal Association, an industry group that intervened in the suit in Haden's court. "It applies to all surface and underground operations, and it stops them from having [valley] fills -- and you can't mine without putting that fill somewhere."

The 47-page ruling also rebuked the Bush administration, which last week issued rules removing a legal impediment to mining companies dumping dirt and rock waste into waterways. Officials of the Environmental Protection Agency and the Army Corps of Engineers, who jointly regulate the dumping of dredge spoil and other materials into waterways, had characterized the rule changes as largely a technical matter that would not significantly alter current practices.

However, since 1977, the Army Corps' own regulations have prohibited mining companies from disposing of materials considered waste, including rock and dirt, in nearby waterways. Haden described the government rule change as a special favor to the mining industry that effectively would codify what he characterized as nearly 20 years of illegal dumping condoned by the Army Corps of Engineers.

"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," Haden wrote. "The agencies' attempt to legalize their long-standing illegal regulatory practice must fail. . . . The regulators' practice is illegal because it is contrary to the spirit and the letter of the Clean Water Act."

A Justice Department spokesman said yesterday the government would petition the court for a stay of the injunction pending an appeal of Haden's ruling.

"We are surprised at the judge's ruling . . . and believe the court misinterpreted the Corps of Engineers' authority to issue permits under the Clean Water Act," Charles Miller, the spokesman, said. "We also believe the court erred when it seemingly invalidated -- without briefing by the parties -- a new Clean Water Act rule . . . to address the definition of fill material."

Jack Gerard, president of the National Mining Association, said that "we are startled by the scope of this decision, which appears to call into question" the Army Corps' permitting activities under the Clean Water Act.

Haden ruled in 1999 in a similar case that dumping mine waste in streams violated federal law. But the 4th U.S. Circuit Court of Appeals overturned that ruling, saying Haden lacked jurisdiction because the underlying lawsuit involved a state agency.

This time, Kentuckians for the Commonwealth, a group of environmentalists and community activists, sued the Army Corps' Huntington, W.Va., district office, which has been responsible for approving the vast majority of the nation's "valley fills" in West Virginia and portions of Ohio, eastern Kentucky and western Virginia.

Modern mining techniques make it possible to shear off the tops of mountains to reach veins of valuable, low-sulfur coal and bulldoze the leftover rock and dirt into nearby valleys. It is a profitable, if ecologically controversial, venture.

In the past decade, mining companies have obtained permits resulting in the leveling of hundreds of square miles of Appalachia and the covering of more than 1,000 miles of streams, according to environmental groups. Caylor said most of the waterways covered were dry drainage channels, not free-flowing streams.

Environmentalists hailed Haden's ruling as a lethal blow to mountaintop mining. "This is a great victory for citizens living in the shadow of these huge mines," said Joseph M. Lovett, a lawyer in Lewisburg, W.Va., and executive director of the Appalachian Center for the Economy and the Environment.

According to detailed March 5 EPA briefing material obtained by Lovett and James M. Hecker of Trial Lawyers for Public Justice, the administration has been considering further steps to expedite mountaintop mining -- including shifting all permitting responsibility to the states -- despite clear evidence of environmental damage.

The EPA documents and consultant analyses showed, for example, that 1 percent of all streams in the four-state Appalachian region studied have been eliminated by valley fill; that mining operations have harmed downstream aquatic life and boosted the levels of sulfates and other pollutants; and that land restoration activities promised by the mining companies were "not occurring as envisioned."

An EPA consultant's report also concluded that the economic effects of restricting mining would not be as severe as claimed by industry.

The Huntington office issued 257 of the 306 valley fill permits issued nationwide in 2000. Ten federal permit applications are pending in the Appalachian region. The West Virginia Department of Environmental Protection also has put on hold 87 state-issued permits that require federal approval.