Coal Tattoo

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Buried in a new Rolling Stone magazine profile of Obama EPA Administrator Lisa Jackson is some potentially huge news for coal mining in Appalachia … it seems that EPA has quietly begun re-examining the definition of “fill material” in its Clean Water Act rules and may make some changes.

But if you look closely at what EPA has said, it’s not clear that they’re really going to do what environmentalists would like to … we’re a long way from knowing if this is a big deal.

Here’s the deal: The Rolling Stone story, by Tim Dickinson, reported:

… Jackson tells Rolling Stone, the EPA is reviewing the infamous Bush “fill rule” that allows mining companies to bury streams and lakes with mining rubble in the first place. “Staff is working on it now,” she says. “We haven’t put anything about it out publicly.” Jackson says the primary goal is to reform gold mining in Alaska — where miners have begun dumping toxic waste into a pristine lake near Juneau — but adds that the move may also “curtail” mountaintop-removal mining.

I picked up on this in my friend Elizabeth Bluemink and her Pebble Blog for the  Anchorage Daily News (for more on what Alaska and the fill rule has to do with mountaintop removal, go back and read this Coal Tattoo guest blog by Derek Teaney), and her piece prompted me to check in with EPA officials, who gave me this statement:

EPA is currently considering administrative options for improving the Clean Water Act review of proposed mining related discharges in waters of the U.S., including discharges associated with hard rock (mineral) and coal mining.  Among the options, we are specifically evaluating potential revisions to the definition of “fill material” and clarification of how this regulation is interpreted and implemented.  EPA is coordinating with the Department of the Army and Corps of Engineers in this evaluation of our joint regulations.  The goal is to improve the Clean Water Act review of mining related discharges to reduce environmental, water quality, and human health impacts.  While we are eager to move ahead quickly with improvements in our CWA programs, EPA has not made any final decisions.  We anticipate that the process of revising CWA mining reviews will likely include the opportunity for public notice and comment to provide maximum transparency and public participation in our decision-making.

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I say it might be huge news because, well, EPA hasn’t proposed anything yet and it’s hard to tell sometimes what is just a trial balloon or where these sorts of things might eventually lead.

But folks who have followed mountaintop removal for a while know how potentially explosive this is for the issue. Remember that Section 404 of the Clean Water Act allows the Corps of Engineers to issue permits to fill streams and wetlands.  Under the law, the Corps can issue such permits for material that is dredged from the stream bottoms, or with “fill material.”

Environmental group lawyers argued that mining “spoil” — the rock and dirt that used to be the Appalachian mountains — is not “fill material,” and is instead “waste,” which is not allowed to be dumped in streams with a 404 permit. To summarize a lengthy court battle, the Clinton administration proposed to rewrite — and the Bush administration ultimately did rewrite — the Corps-EPA rules for Section 404 so that the definition of “fill material” now specifically includes:

… Overburden, slurry, or tailings or similar mining-related materials.

A move to get rid of that language altogether — or even change it significantly — would have even more impact on mountaintop removal than other steps being considered by the Obama administration, such as rewriting the “stream buffer zone rule” under the Surface Mining Act.

Don’t forget: Sen. Robert C. Byrd led the West Virginia congressional delegation in an effort to write mountaintop removal valley fills into the 404 program after one of Judge Haden’s rulings to limit mining. See previous posts on that here and here. An effort by EPA to revisit the fill rule will certainly put to the test Sen. Byrd’s advice that West Virginians and their leaders need to “embrace the future.”

Look closely at what EPA said, though, and you see a lot of words that are hedging:

EPA is currently considering administrative options for improving the Clean Water Act review of proposed mining related discharges in waters of the U.S., including discharges associated with hard rock (mineral) and coal mining.  Among the options, we are specifically evaluating potential revisions to the definition of “fill material” and clarification of how this regulation is interpreted and implemented.  EPA is coordinating with the Department of the Army and Corps of Engineers in this evaluation of our joint regulations.  The goal is to improve the Clean Water Act review of mining related discharges to reduce environmental, water quality, and human health impacts.  While we are eager to move ahead quickly with improvements in our CWA programs, EPA has not made any final decisions.  We anticipate that the process of revising CWA mining reviews will likely include the opportunity for public notice and comment to provide maximum transparency and public participation in our decision-making.

So … stay tuned. We’ll see where this actually goes.