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March 1, 2002
Fat King Coal
Polluters rewrite the Clean Water Act.

Charleston, West Virginia—As early as April, the Bush administration plans to make it legal for the coal industry to bury hundreds of miles of aboveground Appalachian streams with waste rock and dirt from strip mines.

With a simple change in federal Clean Water Act regulations, the administration will make legal what has been illegal for 25 years. “There is nothing more inconsistent with the purpose of the Clean Water Act than permitting waters to be permanently buried under tons of industrial wastes,” says Joan Mulhern, senior lawyer for Earthjustice, a Washington-based environmental group. “Yet that is exactly what this rule would allow.”

In 1977, the Army Corps of Engineers defined the “fill material” that could be dumped into streams under the Clean Water Act. The law allows the Corps to authorize the burial of streams and wetlands through “dredge-and-fill” permits. That authority was meant to be very limited. In the 1977 rules, fill material was meant to exclude “any pollutant discharged into the water primarily to dispose of waste.” But since the rules were written, the Corps has used dredge-and-fill permits to approve hundreds of miles of coal industry waste piles.

In mountaintop-removal mining, coal operators explode entire hilltops to uncover valuable, low-sulfur coal reserves. Huge dozers and shovels shove waste rock and earth left over from the mining into nearby valleys, burying streams. These waste piles, called valley fills, grew dramatically in size and number as strip mining mechanized.

A 1998 report by the Fish and Wildlife Service found 470 miles of valley fills in West Virginia and 355 miles in Kentucky. In 2000 alone, the Corps approved permits for 85 miles of streams in southern West Virginia and eastern Kentucky, according to agency records. All of these fills were illegal, according to a series of court rulings.

In 1989, a U.S. District Court ruled that valley fills are made of waste, which isn’t fill material. The 4th U.S. Circuit Court of Appeals upheld that decision in 1991. But injunctions to block new fills were not issued by the courts.

In 1999, the West Virginia Highlands Conservancy sued the Corps over its illegal permits, and received a similar ruling from another U.S. District Court. The Highlands Conservancy settled its claims, however, dropping the argument in exchange for promises of stricter permit reviews and a detailed study of mountaintop removal’s environmental impacts. Again, the court did not issue an injunction.

The Clinton administration moved quickly to help the coal industry avoid any damage from the 1999 decision. In April 2000, the Environmental Protection Agency and the Corps proposed to legalize valley fills. The Clinton administration never finalized the plan. In October 2001, the Bush administration said it would publish a final rule in December. That never happened either.

Last August, another environmental group, Kentuckians for the Commonwealth, filed a new challenge to the Corps in the same West Virginia U.S. District Court that heard the 1999 case. On February 7, lawyers for the Kentucky group asked the court for an injunction to block the Corps from approving any new valley fills.

Bush administration officials quickly announced that they planned to finalize the rule change sometime in April. “We want to protect the environment but also be sure that we can continue with the production of coal,” says Mike Parker, whom Bush appointed to head the Corps.

Today, the environmental impact study is more than a year overdue, and the Corps has forgotten its promises to more closely review valley fill permit applications. “This issue is not going away,” says Jim Hecker, an attorney with Trial Lawyers for Public Justice, which represents the Kentucky citizens. “Coal field residents in Appalachia will continue to seek to enforce the law and prevent the destruction of their land, streams and quality of life.”

Earthjustice and other groups say that people like Parker are part of the problem. Parker is a former lobbyist for CSX Transportation, a railroad that hauls much of the coal produced in Appalachia. (In an unrelated dispute with the White House over the Corps’ budget, Parker was forced to resign on March 6.) The groups also point to J. Steven Griles, a former National Mining Association lobbyist who is deputy secretary of the Interior Department, and a host of other former industry lawyers and lobbyists appointed by Bush to regulatory agencies.

“The Bush administration’s pockets are lined with coal money,” says Maria Weidner, policy advocate for Earthjustice. “The political appointees key to deciding this issue built careers as lobbyists and executives for coal interests. The stage is set for King Coal to have its way with the Clean Water Act over the public’s protests.”


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