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Haden Dug into History for Ruling on Valley Fills

By KEN WARD, JR.
Charleston Gazette (W. Va.)
Sunday, May 19, 2002; Page B1

Mountaintop removal mines and valley fills scar the landscape, fill streams with waste, and destroy forest habitat in West Virginia. Photo courtesy of U.S. News & World Report.

In 1972, the U.S. Senate passed major amendments to the Federal Water Pollution Control Act.

By a vote of 52-12, senators agreed to override a veto by President Nixon. Sens. Jennings Randolph and Robert C. Byrd, D-W.Va., voted to override. Thirty-six senators did not vote.

The objective of the law, better known as the Clean Water Act, was "to restore and maintain the chemical, physical and biological integrity of the nation's waters."

Since the law was passed, federal regulators have authorized coal operators to dump millions of tons of waste rock and dirt into valleys, burying hundreds of miles of Appalachian streams.

On May 8, Chief U.S. District Judge Charles H. Haden II ruled that allowing those valley fills wasn't at all what Congress had in mind.

In a landmark ruling, Haden blocked the Army Corps of Engineers from generally issuing any new permits for mountaintop removal valley fills.

Haden said that the corps could permit new valley fills only if they are proposed as part of a post-mining land development plan.

In doing so, Haden drew on the long legislative history of federal water pollution laws, going back to the Rivers and Harbors Act of 1899.

"Some may believe that reasonably priced energy from coal requires cheap waste disposal of the vast amounts of waste material created when mountaintops are removed to get at the natural resource," Haden wrote in a 47-page opinion. "For them, valley fill disposal is the most efficient and economic solution.

"Congress did not, however, authorize cheap waste disposal when it passed the Clean Water Act."

Jack Gerard, president of the National Mining Association, said that his group was "startled by the scope" of Haden's decision, and called the ruling "a terrible human tragedy."

But environmental groups have praised the decision as the correct reading of a 30-year-old federal law.

"Judge Haden's decision is based on a common-sense and straight-forward reading of the Clean Water Act," said Jim Hecker, environmental enforcement director for the group Trial Lawyers for Public Justice, which represented the Kentucky citizens group that brought the case.

Last week, federal Department of Justice lawyers, representing the corps, asked Haden to suspend his ruling pending an appeal to the 4th U.S. Circuit Court of Appeals.

In a legal motion, Justice Department lawyers said that Haden's ruling is "an extreme result ... and one that Congress could not have intended."

But they said that "time and our sense of urgency that this decision creates does not afford the United States an opportunity to respond fully to the Court's analysis."

Late Friday, lawyers for the Kentucky Coal Association filed their own motion asking Haden to suspend his ruling pending an appeal. Among other things, they argued that they "will likely succeed on the merits of the appeal."

Coal association lawyers Jim Snyder and Bob McLusky noted that Haden "observed that Congress did not expressly define 'fill material"' allowed to be dumped under corps permits.

"[Haden] used this silence as an open invitation to conduct a wide-ranging review of the legislative history of the Clean Water Act," Snyder and McLusky wrote. Snyder and McLusky argued that the court instead should have deferred to EPA and corps definitions, as long as those definitions were reasonable.

In fact, before the judge ruled, lawyers on both sides of the lawsuit had not submitted detailed legal briefs to challenge valley fills as illegal under the Clean Water Act itself.

When it filed the lawsuit last year, Kentuckians for the Commonwealth argued mostly that valley fills were not permitted under regulations that the corps had written to implement the Clean Water Act.

But in their original complaint, lawyers for the group also alleged that, in issuing a permit for a valley fill in Kentucky, the corps also violated "Section 404 of the Clean Water Act."

Two types of permits, two agencies

In his new ruling, Haden took it from there. First, Haden explained two major pollution permit programs created by the 1972 law.

Section 402 created the National Pollution Discharge Elimination System to permit the discharge of pollution. Pollutant was defined to include dredged spoil, solid waste, rock, sand, cellar dirt and industrial waste.

Section 404 authorized permits for dredged or fill material. Neither dredged material nor fill material was defined in the law.

Congress gave the U.S. Environmental Protection Agency authority over NPDES permits.

Lawmakers gave the corps authority over 404 permits for dredged or fill material.

Initially, however, drafts of the Clean Water Act treated the discharge of dredged spoil like any other pollutant.

The American Association of Port Authorities complained about this language. The group said that ports depend on channel and pier-side dredging. Historically, this dredging was regulated by the corps. The association wanted to keep it that way.

In his ruling, Haden quoted from the association's congressional testimony: "We respectfully point out that [additional restrictive legislation in the dredge spoil disposal area] would inhibit the orderly
development of a national port system which handled 559 million tons of foreign trade in 1970 [and] will be expected to handle the potentially vast increases in trade resulting from our nation's new trade policies with China and the Soviet Union."

In Senate floor debate, Sen. Allen J. Ellender, D-La., offered an amendment to take care of the port group's concerns. The corps would issue permits for the discharge of dredged materials.

Ellender, Haden explained, argued that, "The disposal of dredged material does not involve the introduction of new pollutants; it merely moved the material from one location to another."

Sen. Edmund S. Muskie, D-Maine and chief sponsor of the legislation, urged that dredged spoil not be regulated differently than other pollutants.

Muskie, Haden recounted, said, "mission-oriented agencies" - presumably, such as the corps - "whose mission is something other than concern for the environment simply do not adequately protect environmental values."

The Senate compromised. The corps would authorize 404 permits, but EPA would have some oversight over them.

Meanwhile, the House had passed its own version that kept regulatory authority over dredged material with the corps under its existing permit program.

A Senate-House subcommittee adopted the House version.

Haden noted in this ruling that "throughout Congressional consideration, dredged spoil was the single pollutant of concern.

"Section 404 was enacted to allow harbor dredging and dredged spoil disposal to continue expeditiously under the then-existing dredge and fill permit program administered by the corps," the judge said.

Rivers and Harbors Act of 1899

That existing corps program was established under Section 10 of the Rivers and Harbors Act of 1899.

So in his ruling, Haden next analyzed that law. Section 10, the judge said, was passed to cover excavation and construction in navigable waters.

"For example, the location and plans of dams and dikes across navigable waters must be approved," the judge said. "In addition, plans for wharves, piers, dolphins, booms, weirs, breakwaters, bulkheads, jetties, or other structures, and excavation or fill in navigable waters must be recommended by the Chief of the Engineers and approved by the Secretary of the Army."

But, the judge said, Section 10 "does not control waste or refuse disposal."

Permits for that were issued under another part of the Rivers and Harbors Act, Section 13, the judge said.

In 1972, the corps wrote regulations to implement Section 10.

"Throughout the dredge and fill permitting section are references to 'work and construction in navigable waters' ... that support the conclusion that the fill operations contemplated were for work, construction, structure building, and improvement, and never for waste disposal," the judge wrote.

In short, Haden concluded that Section 404 of the Clean Water Act was modeled on Section 10 of the Rivers and Harbors Act.

Because Section 10 doesn't cover waste, neither does Section 404, the judge said.

In 1977, Congress amended the Clean Water Act again.

Among other things, lawmakers sought to clarify whether certain activities, such as farming, ranching and maintenance of existing dikes and dams, needed Section 404 permits.

To exempt these activities from needing permits, Congress added new language to Section 404.

The new language said that, "Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previous subject ... shall be required to have a permit under this section."

Haden wrote, "According to Congress, the definitive characteristic of dredge and fill discharges requiring Section 404 permits is that they have a purpose for which the discharge is undertaken, to use the land created."

Haden concluded that this Clean Water Act language matches the terms of the 1977 Surface Mining Control and Reclamation Act.

Under the surface mining law, coal operators are generally required to return mined land to its approximate original contour. They can ignore that requirement, and flatten the land with mountaintop removal, only if they propose a post-mining development plan.

"In SMCRA, when Congress dealt specifically with coal mining overburden, it reinforced its plan that fills were appropriate where, and only where, they were justified by some constructive end use and purpose served by the fill itself," the judge wrote. "Otherwise, such overburden is just waste, to be returned to the mine site to re-create the [approximate original contour] of the landscape mined."

Haden also said that, because the law itself bans waste disposal under Section 404, EPA and the corps cannot write a new regulation to allow it.

"The Court is led inexorably to the conclusion [that] Section 404 of the CWA authorizes permits for fill material only for a constructive primary purpose, not solely for waste disposal," the judge said.

"Authorization of Section 404 permits for waste disposal generally, and specifically for coal mining overburden at mountaintop removal mines is ultra vires, exceeding the statutory authority granted of EPA and the corps," the judge said. "Only Congress can rewrite the Clean Water Act to allow otherwise."

To contact staff writer Ken Ward Jr., use e-mail <kward@wvgazette.com> or call 348-1702.