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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

REDEFINITION OF "FILL" MATERIAL  Posted: March 21, 2002

National Citizens' Coal Law Project

A Project of the Kentucky Resources Council, Inc.

Post Office Box 1070

Frankfort, Kentucky 40602

(502) 875-2428

(502) 875-2845 fax

e-mail: FitzKRC@aol.com

June 23, 2000

REDEFINITION OF "FILL" MATERIAL

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.

The issue of 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 regulations for such discharge (called the Section 404(b)(1) guidelines) are met, or whether the activity is not authorized by Section 404, in which case 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, their definition focuses on the effect of the placement of fill material rather than the primary purpose of the activity.

On April 20, the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers proposed a change in the definition of "fill material" for purposes of Sections 402 and 404 of the Clean Water Act. The 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.

Is there a problem that needs "fixing?"

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. 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 illustrated the need to provide better implementation guidance on the interaction of the RCRA program and Section 404.

Is there a need to change the Corps definition?

EPA and the Corps claim 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.

But there is a more basic and unstated agenda behind this rule change. The change is intended to avoid any more challenges to valley fills and 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.

EPA and the Corps want 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, because if regulated under Section 402, they 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.

Are coal mining overburden, coal combustion wastes, coal processing wastes and fines, wastes that are currently prohibited from disposal in valley fills under Section 404?

Under the Corps' current regulatory definition and the 1986 MOA, there is a strong argument to be made that they 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 Section 404 is consistent with past EPA and Corps policy as well. 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 difference 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 disposal regulation."

This letter was followed by a 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 3089 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 agreement[.]" 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 their belief that the 1986 MOA is still in effect. That being the case, it is difficult to understand how the proposed rule change squares 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.

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. The treatment of such wastes under Section 402 was reinforced in a memorandum from Lawrence Jensen to Regional Administrators transmitting the MOA.

The effect of the Corps adoption of the EPA definition of "fill," by contrast, will 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.

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, how, then do EPA and the Corps propose to address cases of placement of mining wastes?

* The new regulation would contain no prohibition on fills created for waste disposal. Instead, the agencies propose to 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 new regulation specifically excludes 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.

* 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.

* The regulation 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. Remarkably enough, the proposed rule believes that the Corps should have authority to allow unsuitable material to be directly discharged into water bodies.

Conclusion:

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.") The supposed problem could be readily resolved by clarifying 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. We suggest that they be banned, as Kentucky does, from wetlands, since there is no more water "aversive" activity than placement of garbage in wetlands.

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 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 proposed rule fails to comply with the National Environmental Policy Act. 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. 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, 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.

The 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, and 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.

The 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 in light of 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.

Sanctioning dumping of coal mining overburden and coal mine processing and underground development wastes in headwater streams is contrary to the goals of the Clean Water Act. Allowing headwater 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 failure to include a prohibition on waste disposal in waters of the United States, and instead proposing to allow 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 distinction drawn between placement of coal mine wastes, coal refuse, coal combustion wastes, and underground development wastes and "unsuitable fill materials" is arbitrary and unrelated to the legitimate goals of the Clean Water Act, since such waste materials and overburden can generate a number of pollutants which are known to leach pollutants, including numerous unregulated metals, into waters of the United States.



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