CHARLESTON, West Virginia, May 9, 2002 (ENS) - For a second time, a federal judge in West Virginia has ruled that mountaintop mining permits that allow the dumping of mine wastes into streams and valleys are illegal. The ruling comes within a week of a decision by the U.S. Army Corps of Engineers and the Environmental Protection Agency that would expand approval for such mining operations.

A mountaintop removal mine in West Virginia (Four photos courtesy Mountaintop Mining Lookout Group)

Haden also ruled that the new regulations signed by the Corps and U.S. Environmental Protection Agency (EPA) last Friday to legalize this practice are not within those agencies' authority under the Clean Water Act and contrary to both the letter and the spirit of the law.

"The Court holds that section 404 of the Clean Water Act does not allow filling the waters of the United States solely for waste disposal," wrote Haden in his decision. "Only the United States Congress can rewrite the Act to allow fills with no purpose or use but the deposit of waste."

Coal in the Appalachian mountains is found in narrow seams separated by dirt and rock, which the mining industry calls overburden or spoil. In mountaintop removal mining, this overburden is blasted with explosives and bulldozed pushed out of way to expose the coal.

A valley fill in progress.

Last Friday, the Corps and the EPA acknowledged that such valley fills are not legal under the Clean Water Act, explaining that the problem is one of differences between the two agencies' legal definitions of "fill material."

The agencies released a new rule, "clarifying" and "reconciling" their definitions to make valley fills legal.

Haden ruled that section 404 of the Clean Water Act "was enacted for the purpose and with the effect of allowing disposal of only one type of pollutant or waste: dredged spoil," such as that produced during channel deepening in waterways.

That waste does not include overburden from mining operations, Haden said.

As material is removed from the top of a hill, it must be moved carefully to prevent disturbing valleys - and towns - below.

"To approve disposal of waste other than dredged spoil, in particular mountaintop removal overburden, in waters of the United States under section 404 dredge and fill regulations rewrites the Clean Water Act," Haden concluded. "Such rewriting exceeds the authority of administrative agencies and requires an act of Congress."

Conservation groups applauded Haden's ruling.

"To avoid a citizen lawsuit aimed at protecting Appalachian residents and the environment, the administration declared that all waters across the country are now open to industry for waste disposal," said Daniel Rosenberg, staff attorney for the Natural Resources Defense Council (NRDC).

"This single act, described by the Environmental Protection Agency with Orwellian perfection as a 'clarification' that will 'enhance environmental protection of our wetlands and streams,' would have been the most significant weakening of Clean Water Act rules since the act was passed in 1972," Rosenberg added. "You can fool some of the people some of the time, and some of the people all of the time, but the Bush administration could not fool Judge Haden."

This is the second time that Judge Haden has ruled mountaintop mining permits to be illegal. In October 1999, Haden issued an injunction against any mining permits that violated a federal "buffer zone" regulation which prohibits coal operators from putting waste piles in perennial and intermittent streams.

A completed valley fill.

In that case, the West Virginia Highlands Conservancy and a group of West Virginia residents who live near coal mines filed suit against the state, charging that the state was not properly enforcing mining regulations which require a 100 foot buffer zone between mining activities and streams.

In the case on which Haden ruled this week, however, a conservation group, Kentuckians for the Commonwealth, sued the U.S. Army Corps of Engineers, a federal agency, avoiding the federal state conflict that undermined Haden's earlier ruling.

Members of Congress also attacked the Bush administration's attempt to legalize mountaintop removal mining this week. A bipartisan group of House members announced at a Capitol Hill press conference that they will introduce legislation to counteract the proposed rule change.

The legislation would amend the Clean Water Act by adding the key portion of a second regulation, first adopted in 1977, that prohibits the Corps from permitting industries - including coal mining companies - from filling waters with waste material.

Representative Chris Shays has led House opposition to the Bush administration's mountaintop mining stance. (Photo courtesy Office of the Representative)

They were joined on April 30 by 57 members of the House of Representatives, led by Frank Pallone, a New Jersey Democrat, who sent a letter to EPA Administrator Christie Whitman conveying their "strong opposition" to the proposed rule.

"This rule change is a clear attempt to legalize the destructive practice of mountaintop removal coal mining, where coal companies literally blow the tops off of mountains and dump the waste into nearby valleys and streams," stated the letter.

On May 1, two Senators sent a letter to President Bush asking him to stop his administration's efforts to overturn this Clean Water Act provision. The letter from Senator Jim Jeffords, the Vermont Independent who chairs the Environment and Public Works Committee, and Joseph Lieberman, the Connecticut Democrat who chairs the wetlands subcommittee, stated, "the proposed rule would jeopardize the health of the nation's streams, wetlands, lakes, rivers and other waters."

"Both the legislative and judicial branches of government came out in opposition to what the executive branch did to the Clean Water Act on May 3," said Joan Mulhern, senior legislative counsel for Earthjustice. "This should send a strong message to the Bush administration - and the public - that the administration's attempt to undermine the Clean Water Act is not only wrong, it is illegal."

Judge Hayden's decision is available at: http://www.wvsd.uscourts.gov/opinions/kftcvace.pdf