Haden Fill Ruling Right, Group Says

KEN WARD, JR.
The Charleston Gazette (W. Va.)
September 25, 2002

Valley fills have scarred the landscape and buried more than 500 miles of Appalachian mountain streams. Photo courtesy of U.S. News & World Report.

A federal judge was right to generally ban coal operators from burying streams with waste rock and dirt, a citizens group has told an appeals court.

Lawyers for the group Kentuckians For The Commonwealth agreed with Chief U.S. District Judge Charles H. Haden II that the Clean Water Act prohibits most valley fills.

In a legal brief, the citizen lawyers said that valley fills violate water quality standards and contradict "the central objective" of the Clean Water Act.

"It is undisputed that valley fills have already destroyed the physical integrity of over 500 miles of streams by burying them under millions of tons of mining waste," they said.

"The basic objective and policy of the CWA is to restore, maintain and enhance water quality, to prevent degradation of existing uses, and to prohibit designating waters as waste dumps," they said. "As Judge Haden stated, Congress 'did not ... authorize cheap waste disposal when it
passed the Clean Water Act.' "

Late Monday, Kentuckians For The Commonwealth filed their 56-page brief with the 4th U.S. Circuit Court of Appeals in Richmond, Va.

Lawyers for the citizen group are defending a May 8 ruling by Haden.

The Bush administration and the coal industry are appealing Haden's decision. They allege that Haden misread the Clean Water Act, and that Haden went too far in issuing an order to block new valley fills.

In the case, the citizens are represented by Joe Lovett of the Appalachian Center for the Economy and the Environment, Jim Hecker of Trial Lawyers for Public Justice and Lexington lawyer Joe Childers.

In his May 8 opinion, Haden ruled that the Clean Water Act generally prohibits coal operators from burying streams with waste rock and dirt from mountaintop removal mining.

Haden said that valley fills may only be permitted when coal operators propose them as part of a post-mining development plan.

In his decision, Haden traced the legislative history of the Clean Water Act and an earlier law, the Rivers and Harbors Act of 1899.

Haden said that history, including remarks by lawmakers, clearly shows that Congress did not intend to allow waste piles to bury streams.

In their appeal brief, citizen group lawyers agreed that fills violate the law. But they said that they reached that conclusion "on grounds that differ, in part, from those relied on by the district court."

Rather than tracing legal history, the citizen group lawyers outlined two key Clean Water Act standards that they said valley fills violate.

One is the "waste assimilation" standard, which says that rivers and streams are not to be used for waste disposal.

"Valley fills that bury waters of the United States with millions of tons of waste cannot achieve this water quality standard," the citizen group lawyers said. "As Judge Haden has stated, 'valley fills are waste disposal projects so enormous that, rather than the stream assimilating the waste, the waste assimilates the stream.' "

The other is the antidegradation standard, which says that existing uses of streams and existing water quality must not be diminished.

This standard, the citizen lawyers said, "cannot be reconciled with the continued filling of hundreds of miles of streams with mining waste."

The citizen lawyers also said that a new Clean Water Act regulation, issued by the corps and the U.S. Environmental Protection Agency, aimed at legalizing fills does not match the goals of the law.

"The corps' interpretation is also illegal because it has no limiting principal," they said.

"It opens the door to the designation of an unlimited length of rivers and streams for waste assimilation, whether it is 500 miles or 5,000 miles," they said.

"It is hard to imagine a result more inconsistent with the CWA's purpose and its 'central' water quality standards requirement."

Both sides have asked the 4th Circuit to hear oral arguments. No date for that had been scheduled as of Tuesday.

To contact staff writer Ken Ward, Jr., use e-mail or call 304-348-1702.