National Citizens' Coal Law Project
A Project of the Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2845 fax
July 7, 2000
U.S. Army Corps of Engineers
20 Massachusetts Avenue
Washington D.C. 20314-1000
U.S. Environmental Protection Agency
Office of Wetlands, Oceans and Watersheds (4502F)
Ariel Rios Building
1200 Pennsylvania Avenue NW Washington D.C. 20460
Re: Proposed Revisions to the Clean Water Act Regulatory
Definitions of "Fill Material" and "Discharge of Fill Material"
65 Fed. Reg. 21292 (April 20, 2000)
These comments are submitted on behalf of the National Citizens' Coal Law Project, a project of the Kentucky Resources Council, Inc., regarding the extended comment period on the proposed rulemaking revising the definitions of "Fill Material" and "Discharge of Fill Material."
The Kentucky Resources Council, Inc., is a non-profit environmental advocacy organization whose membership includes numerous individuals and organizations across the Commonwealth of Kentucky who share a common interest and concern for environmental responsibility, and conservation of natural resources. Council members include individuals who reside, work, live or recreate in areas affected by surface coal mining operations, and who have been adversely affected and aggrieved within the meaning of the law, by the failure of mining operators to dispose of overburden and coal waste materials in a manner that is protective of public health, safety and the environment, and to minimize the effect of spoil handling and disposal on water quality and supply. To the extent that the proposed rule revisions propose to authorize dumping of coal mine overburden and waste materials into waters of the United States, the Council and its membership will be aggrieved by the final rulemaking.
In summary, the Council opposes the adoption of revised definitions for "fill material" and "discharge of fill material" and believes:
(1) that the EPA and U.S. Army Corps of Engineers (USACE or Corps) must defer further action on this rulemaking pending development of an Environmental Impact Statement (EIS) analyzing the proposed action and all reasonable alternatives to the action, and the environmental effects of each alternative;
(2) that the proposed rule is irrational, since it makes an arbitrary distinction between coal mining overburden and coal mine wastes, which it would allow to be dumped in streams, and placer, titanium, phosphate, sand and gravel mining wastes, which would not be allowed to be dumped into streams;
(3) that the proposal, which would legalize the burial of streams under tons of coal mining overburden and coal mine processing wastes is contrary to the goals of the Clean Water Act; and
(4) that allowing streams to be converted into sites for waste disposal and allowing placement of spoil material for construction of sediment ponds instream is an improper private appropriation of public waters.
The comments that follow amplify and provide textual support for the Council's opposition to the proposed rule.
The Clean Water Act provides that except where it is in compliance with the Clean Water Act, "the discharge of any pollutant by any person shall be unlawful." A "discharge of a pollutant" includes any addition of any pollutant to navigable waters "from any point source." "Pollutant" includes, among other things, dredged spoil, solid waste, garbage, sewage, rock, sand, and industrial waste.
Section 402 of the Clean Water Act authorizes EPA or delegated states to issue pollutant discharge permits for discharges into navigable waters, provided that they meet applicable effluent and water quality standards. Section 402 recognizes an exception from this authority in Section 404 of the Act.
Section 404 authorizes the Corps of Engineers to issue permits "for the discharge of dredged or fill material into the navigable waters at specified disposal sites." The Secretary of the Army is authorized to deny or restrict the use of areas for disposal if it is determined that the discharge of such materials into such area "will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas[,] wildlife, or recreational areas."
Section 404 contains several exemptions from the restrictions on placing dredged or fill material without a permit, none of which affect or authorize placement of mine-related overburden or mine waste material in waters of the United States.
A primary concern to coalfield residents that is presented by these two sections of the Clean Water Act and their interaction is whether the discharge of mine overburden (so-called "excess spoil") and coal mine-related wastes, into navigable waters through the dumping of these materials into "head-of-hollow" or "valley fills" is an activity authorized under the Corps of Engineers Section 404 program, in which case a permit to conduct that activity can be approved provided that the Section 404(b)(1) guidelines are met. If the activity is not authorized by Section 404, the discharge would fall under EPA's authority over discharges under Section 402 of the Act and would be prohibited, since the placement of such material would necessarily violate water quality standards' prohibition against degradation of the water quality.
The current Corps of Engineers regulations defining the scope of their 404 permitting program define "fill material" as any material used for the primary purpose of replacing an aquatic area with dry land or of changing the bottom elevation of a waterbody. The Corps regulation specifically excludes the discharge of any pollutant into water primarily to dispose of waste.
A "discharge of fill material" is defined by both the Corps and EPA to include, among other structures, site-development fills for recreational, industrial and other uses and road fills.
EPA's definition of "fill material" does not contain a "primary purpose" test, but instead defines as fill material, for purposes of what activities are regulated under the Section 404 program, as any pollutant which replaces portions of the waters of the United States with dry land or which changes the bottom elevation of a water body for any purpose. Thus, according to EPA, its definition focuses on the effect of the placement of fill material rather than the primary purpose of the activity.
The April 20 proposed rule would do away with the "primary purpose" test and make the Corps definition consistent with the EPA definition of "fill material." The stated purpose is to eliminate inconsistencies, however the stated goal does not justify the dramatic reversal of agency policy effected by this rule change.
I. The Proposed Rule Provides Insufficient Justification For
Eliminating The "Primary Purpose" Test and The Prohibition
On Disposal of Waste And Fails To Consider Reasonable
Alternatives To Eliminating Abuse of that Test
EPA and the Corps point to the case of Resource Investments Incorporated v. U.S. Army Corps of Engineers, 151 F.3d 1162 (9th Cir. 1998) as showing the "inherent problems" with the primary purpose test, and as justification for the rulemaking proposal. In that case, according to EPA, the plaintiff was able to avoid Section 404 by arguing that the primary purpose of placing a solid waste landfill liner in a water of the United States was not to change the bottom elevation of the water body or to replace an aquatic area with dry land.
Actually, the conclusion of the 9th Circuit decision that the siting of solid waste landfills in wetland areas was not regulated by the Corps of Engineers under Section 404, was based in large part on the regulation of such activities under RCRA, including a comparable "alternatives analysis" required under the RCRA regulations that parallels the Section 404 process. While it is true that the Court noted in passing that the placement of gravel, clay and the synthetic liner in the wetlands was not "fill" because the "primary purpose" was to serve as a leak detection and collection system, that conclusion was not critical to the court's decision. The court had also determined that the activity was excluded from 404 because it involved placement of material "primarily to dispose of waste." Far from "illustrat[ing] the inherent problems in the `primary purpose' test", the case illustrates the need to provide better implementation guidance on the interaction of the RCRA program and Section 404.
The proposed rule asserts that because an applicant can claim a "primary purpose" other than elevating the streambed or creating dry land, it is subject to abuse and a more clear "effects" test is needed.
The rulemaking fails to consider other, less drastic alternatives that would satisfy the goal of eliminating the potential abuse of a "primary purpose" test without the dramatic adverse effects of elimination of the test itself and the categorical waste ban. An EIS would consider and evaluate such alternatives.
By way of example, the stated goal of avoiding the subjectivity of the "primary purpose" standard, could readily be resolved through guidance indicating, as has been done with the "project purpose" component of the 404(b)(1) guidelines, that the agency must independently determine the "primary purpose" rather than accepting the self-serving representations of the applicant. This is done routinely in the alternative analysis under the Section 404(b)(1) guidelines, where the agency independently determines the project purpose.
The EPA and Corps have identified only one case other than the West Virginia litigation in which the "primary purpose" test of the Corps regulation has arguably caused a regulatory problem (if regulation under Section 402 rather than Section 404 could be considered a "problem.") Another approach that would resolve the supposed problem arising from the RII decision would be to clarify how placement of heterogeneous solid wastes and landfill liners are to be regulated under RCRA, Section 402 and 404 with respect to waters of the United States. The Council suggests that they be banned from wetlands entirely, as Kentucky does, since there is no more water "aversive" activity than placement of garbage in wetlands.
II. The Real Goal Of The Rule Change, To Authorize Dumping
Of Mine Spoil and Wastes Into Streams in Refuse and Valley
Fills, Is Improper And Cannot Be Accomplished Under This Arbitrary Rule
There is a more basic and unstated agenda behind this rule change aside from the stated goal of removing the possible abuse of the "primary purpose" test. The rule change is intended to avoid any more challenges to valley fills and coal mine waste disposal. In the West Virginia litigation, the coalfield plaintiffs argued that coal mine overburden placement in valley fills was primarily for waste disposal and was a prohibited activity under Section 404. The plaintiffs settled that claim and agreed not to oppose Corps regulation of such fills under the Section 404 program in return for additional safeguards and controls regarding when an individual permit was required and minimizing the amount of material needed to be placed in the fills.
It is clear that EPA and the Corps are motivated by a desire to avoid any further claims that dumping mine overburden, coal refuse, coal combustion ash, and other activities whose primarily purpose is waste disposal, shouldn't occur in headwater streams under Section 404. EPA officials have admitted that, if regulated under Section 402, these activities would be prohibited.
The proposed rule would give the Corps authority to permit the dumping of mine "overburden" from coal and from hard rock mining as "fill material" and would allow other types of mining wastes as well. The rule would divide responsibility between the Corps and EPA over regulation of placement of other types of mining wastes.
The rule would be a dramatic reversal of current agency regulations. It is clear that under current law and regulation, coal mining overburden, coal combustion wastes, coal processing wastes and fines, are wastes that are currently prohibited from disposal in valley fills under Section 404.
The Corps' current regulatory definition and the 1986 MOA, present a strong argument that these materials are prohibited under the 404 program, because they are "pollutants" being discharged into a water of the United States "primarily to dispose of waste." As such, under the current Corps definition of fill material under 33 C.F.R. 323.2(e) it should be regulated under Section 402 of the Act by EPA as a point source discharge.
Prohibition of disposal of coal wastes under the Section 404 program is also consistent with past EPA and Corps policy. In the RII case, the 9th Circuit quoted from a 1984 letter from EPA Administrator to the Corps, regarding:
"the proper way to regulate garbage disposal and
other waste disposal in waters of the United States
. . . . . EPA has many solid waste responsibilities
under its RCRA programs and has developed expertise
in that area. Army has very limited expertise. Hence,
we would have to establish duplicative expertise which
may well result in policies and technical decisions which
differ from those of EPA. It would not be in the best
interests of Government for EPA to work with the states
under RCRA under one policy and Army to operate a 404
permit program for garbage disposal on a different basis.
It is logical to identify regulation of garbage disposal with
EPA's current and historic mission. It strains reason to
have the Army Corps of Engineers, with its primary
military and navigation missions, to lead this garbage
This letter was followed by the 1986 Memorandum of Agreement between the EPA and the Corps, published at 51 Federal Register 8871. That agreement was intended as an interim agreement
to ensure an effective enforcement program under
section 308 of the CWA for controlling discharges of
solid and semi-solid wastes into waters of the United
States for the purpose of disposal of waste. . . . If it
becomes necessary to determine whether section 402
or 404 applies to an ongoing or proposed discharge, the determination will be based upon criteria in the agree-
The agreement was to "automatically expire" when EPA finalized the Subtitle D waste regulations. While the 9th Circuit decision construed the interim agreement as having expired in 1991 when EPA published the revised Subtitle D regulations, a conversation with one of the authors of the current proposed rule indicates the EPA position is that the 1986 MOA is still in effect. That being the case, the proposed rule change cannot be squared with the 1986 MOA. For in the Section B5 of the 1986 Memorandum of Agreement, both agencies noted that:
a pollutant (other than dredged material) will normally be
considered by EPA and the Corps to be subject to section 402
if it is discharged in liquid, semi-liquid, or suspended form or if
it is a discharge of solid material of a homogeneous nature
normally associated with single industry wastes, and from a
fixed conveyance, or if trucked, from a single site and set of known processes. These materials include placer mining wastes, phosphate mining wastes, titanium mining wastes,
sand and gravel wastes, fly ash, and drilling muds. As appropriate. EPA and the Corps will identify additional such materials.
Id. (Emphasis added).
The definition of wastes that will typically be regulated under Section 402 in the above-quoted paragraph is fully consistent with the treatment of coal mining wastes under the waste exclusion in the Corps "fill" definition and with the suggestion in the 1984 letter from EPA Administrator Ruckelshaus that EPA was better able to address waste disposal in waters of the United States under Section 402 of the Clean Water Act. That it has been the joint policy of the Corps and EPA that these wastes should be managed under Section 402 was reinforced in a cover memorandum from Lawrence Jensen, then-Assistant Administrator of the Office of Water, to Regional Administrators transmitting the MOA ("In accordance with the MOA, wastes of a homogenous nature normally associated with a single industry and discharged from a fixed conveyance, or if trucked from a single site such as fly ash, are subject to the provisions oft (sic) the section 402 NPDES program.")
The Corps adoption of the EPA definition of "fill," by contrast, will dramatically and significantly enlarge the universe of Section 404 regulated activities involving waste disposal, because the change in regulation not only eliminates the "primary purpose" test for determining whether the fill is intended to elevate the waterbody bottom or create dry land to include any activity with that effect, but also removes the prohibition on use of fill that is discharged primarily to dispose of waste.
This proposed rule represents a drastic departure from existing agency policy and repudiates the 1986 MOA by proposing to regulate the homogeneous wastes associated with a single industry and typically generated from a single site (i.e. coal mining wastes) under Section 404 rather than Section 402. The agency has failed to adequately explain and justify the change in the regulatory philosophy which places the Corps, rather than EPA, in primary control of waste disposal in waters of the United States.
Additionally, the failure to consider alternatives to this proposed rule, and the environmental consequences of each alternative, and to justify such an abrupt and dramatic departure from historical interpretation of the Act by the agencies, requires that the rule be withdrawn.
III. The Proposed Rule Is A Result-Oriented Proposal That Rests
On Arbitrary Distinctions Among Types Of Wastes Suitable
For Disposal In Waters of The United States
Under the new definition, since discharges with the purpose of waste disposal are no longer excluded from Section 404 but could be permitted by the Corps, the question arises of how EPA and the Corps propose to address cases of placement of mining wastes?
If the rule were to maintain a semblance of internal consistency, it would create a test or standard based on the "effects" of the particular form of waste on waters of the United States, assessing the physical and chemical characteristics of the waste. Instead, the proposal reveals a clearly result-oriented, arbitrary distinction among types of mining wastes and between coal-related waste materials and non-mining related wastes without a rational basis for such distinctions other than to facilitate the desired practice within the coal industry of filling of streams with mining overburden and coal processing wastes.
The new regulation contains no prohibition on fills created for waste disposal. Instead, the agencies propose to categorically and specifically include as regulated fill, "placement of fill material for construction or maintenance of liners, berms, and other infrastructure associated with solid waste landfills; placement of coal mining overburden." Thus, coal mining overburden would be specifically authorized as a Section 404 activity. The regulation itself is silent on whether other materials which are associated with coal mining and are disposed of as wastes, will be regulated and allowed as fill. Fill discharge means the "addition of fill material," and if the material is no longer excluded as being discharged for waste disposal, it would appear to be presumptively included as suitable fill. The agencies suggest in the preamble that coal refuse would also be regulated under Section 404, as well as the dams associated with sedimentation ponds. As envisioned by the agencies, the downstream discharge from the sediment pond would be regulated under a discharge permit, with the placement of spoil, refuse and sediment ponds regulated under Section 404.
This categorical distinction drawn among disposal of coal mine wastes, coal refuse, coal combustion wastes, and underground development wastes in waters of the United States, and such disposal of other types of mining wastes and "unsuitable fill materials" is entirely arbitrary and unrelated to the legitimate goals of the Clean Water Act, since coal waste materials and overburden can generate a and leach a number of pollutants, including numerous metals unregulated under the NPDES program, into waters of the United States.
The new rule would specifically and categorically exclude from the definition of "fill material" discharges covered by effluent limitation guidelines, such as placer mining wastes, phosphate mining, titanium mining, sand and gravel mining, steam electric generation, and oil and gas extraction wastes, and other discharges covered by a discharge permit issued under Section 402 of the Act.
This proposed distinction between mining overburden and mine wastes generated from coal mining operations, and those from placer, titanium, phosphate, sand and gravel mining operations, which are to be regulated under section 402, is arbitrary and capricious, since it is unrelated to the impacts of these materials on water quality or the goals of the Clean Water Act.
The proposed distinction is also irrational and repudiates without explanation or justification the 1986 MOA indicating that "if it is a discharge of solid material of a homogeneous nature normally associated with single industry wastes, and from a fixed conveyance, or if trucked, from a single site and set of known processes" the waste discharge should be regulated under Section 402.
Beyond the lack of justification for distinguishing among types of mine-related wastes (since coal mining is subject to Section 402 effluent standards as are the other excluded forms of mining), the proposed rule provides inadequate legal or other basis for proposing to replace a categorical waste disposal ban with the discretionary authority of Corps officials to identify and bar other "unsuitable" materials as fill; an approach that could result in no exclusion of wastes or which, the agency admits, could result in intentional approval at the District level of the use of unsuitable materials for fill. The proposed rule suggests but does not propose, a limitation on other types of solid waste being placed as fill, suggesting that the Corps could amend its regulations to allow the District Engineer to prohibit the discharge of "unsuitable fill material" which would have "physical or chemical characteristics that would make the material unsuitable" such as heterogeneous solid wastes, appliances, automobile or truck bodies, and material containing toxic pollutants in toxic amounts. Finally, and remarkably, the proposed rule espouses the proposition that the Corps should have authority at the District level to allow unsuitable material to be directly discharged into water bodies.
The proposal to allow dumping of coal mining overburden and coal mine processing and underground development wastes in streams is contrary to the goals of the Clean Water Act, including the narrative standards of the Section 401 water quality standards, and the overarching goal of maintaining and enhancing water quality.
Additionally, the changed definition of "fill material" would sanction placement of spoil material in streams for in-stream sediment ponds; proposing to limit the application of Section 402 to the discharges from such structures. Allowing streams to be converted into sites for coal waste disposal and allowing coal overburden or other material to be placed in streams to construct in-stream sediment ponds is an improper private appropriation of public waters. These waters are held in public trust and are designated for beneficial uses, one of which is not waste transport. The usurpation of waters of the United States through placement of in-stream sediment ponds converts the stream segment upstream of the ponds to unauthorized "mixing zones" for treatment and dilution of mine-related pollutants and settling of sediment from contaminated stormwater runoff, in derogation of state and federal water quality standards.
Finally, failure to include a prohibition on waste disposal in waters of the United States, and instead proposing to allow the Corps to develop lists of suitable fill materials and to authorize placement of admittedly unsuitable materials in waters of the United States, is inadequate to meet the CWA goals. The agencies have provided no rational basis for the proposition that the suitability of fill materials varies by District, so as justify the replacement of a nationwide categorical ban on unsuitable materials and identification of such materials, with a regional, discretionary approach.
IV. The Proposed Rule Constitutes A Major Federal Action
Necessitating Preparation of an Environmental Impact Statement
The proposed rule fails to comply with the National Environmental Policy Act. The proposal to change a regulation is "federal action" within the meaning of NEPA, Calvert Cliffs' Coordinating Committee Inc. v. Atomic Energy Commission, 449 F.2d 1109 (D.C. Cir. 1971); and the significant and widespread environmental consequences of eliminating the categorical waste ban and sanctioning disposal of coal mine-related and other wastes in waters of the United States, plainly falls within the ambit of a "major federal action significantly affecting the human environment."
Deletion of the current prohibition in the Corps regulations for fills intended for waste disposal, and allowance of disposal of coal mining and coal processing wastes as fill, will have significant environmental consequences that must be evaluated under NEPA individually and cumulatively. Additionally, the proposal affects disposal of hardrock non-coal mine wastes throughout the nation, and the agency must first conduct an Environmental Impact Statement before undertaking such a dramatic departure from current regulation and policy concerning disposal of mine wastes.
It is not a sufficient response for the agencies to suggest that, at the program implementation level, environmental documentation will be required of individual permitting actions affecting waters of the United States. Such an argument was attempted by the Department of Transportation in order to avoid the responsibility for development of an environmental impact statement when adopting a rule change, and was soundly rejected by the District Court for the District of Columbia Circuit in American Public Transit Association v. Goldschmidt, 485 F.Supp. 811 (D.D.C. 1980) in words equally instructive in this context:
The fact that numerous individual . . . . [impact state-
ments] will be required for may particular projects initiated
pursuant to this national program does not diminish its
potential environmental effect nationwide; rather, it
attests to it. Moreover, it seems obvious that in addition
to what is conceded this program may have a cumulative
effect which is greater than the sum of its individual effects.
Id. at 833.
Particularly where the agencies' past practice has included utilization of "nationwide" permits to avoid the necessity of individual environmental review, the assumption that the individual and cumulative biological, qualitative, quantitative and ecological effects of this dramatic rule change need not be assessed en toto is insupportable.
The current EIS recognizes the significant impact of coal-related valley fills, and could be expanded to include and evaluate the effects of this proposed rule change on non-coal hardrock mining, or a separate EIS could be initiated, but no action should be taken on this rule in a vacuum and without thorough assessment of the dramatic environmental consequences under NEPA of the policy choices represented by this rulemaking.
Thank you in advance for your consideration of these comments.
Tom FitzGerald, Director & Counsel
National Citizens' Coal Law Project
Kentucky Resources Council, Inc.