[Senate Hearing 107-1000]
[From the U.S. Government Printing Office]



                                                       S. Hrg. 107-1000

                  CLEAN WATER ACT: REVIEW OF PROPOSED
                  REVISIONS TO SECTION 404 DEFINITIONS
                    OF ``FILL'' AND ``DREDGED FILL''

=======================================================================

                                HEARING

                               before the

        SUBCOMMITTEE ON CLEAN AIR, WETLANDS, AND CLIMATE CHANGE

                                 of the

               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

                              JUNE 6, 2002

                               __________

  Printed for the use of the Committee on Environment and Public Works



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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                      ONE HUNDRED SEVENTH CONGRESS
                             SECOND SESSION
                  JAMES M. JEFFORDS, Vermont, Chairman
MAX BAUCUS, Montana                  BOB SMITH, New Hampshire
HARRY REID, Nevada                   JOHN W. WARNER, Virginia
BOB GRAHAM, Florida                  JAMES M. INHOFE, Oklahoma
JOSEPH I. LIEBERMAN, Connecticut     CHRISTOPHER S. BOND, Missouri
BARBARA BOXER, California            GEORGE V. VOINOVICH, Ohio
RON WYDEN, Oregon                    MICHAEL D. CRAPO, Idaho
THOMAS R. CARPER, Delaware           LINCOLN CHAFEE, Rhode Island
HILLARY RODHAM CLINTON, New York     ARLEN SPECTER, Pennsylvania
JON S. CORZINE, New Jersey           PETE V. DOMENICI, New Mexico

                 Ken Connolly, Majority Staff Director
                 Dave Conover, Minority Staff Director
                              ----------                              

        Subcommittee on Clean Air, Wetlands, and Climate Change

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
HARRY REID, Nevada                   GEORGE V. VOINOVICH, Ohio
THOMAS R. CARPER, Delaware           JAMES M. INHOFE, Oklahoma
HILLARY RODHAM CLINTON, New York     MICHAEL D. CRAPO, Idaho
JON S. CORZINE, New Jersey           PETE V. DOMENICI, New Mexico


                            C O N T E N T S

                              ----------                              
                                                                   Page

                              JUNE 6, 2002
                           OPENING STATEMENTS

Corzine, Hon. Jon S., U.S. Senator from the State of New Jersey, 
  prepared statement.............................................    12
Jeffords, Hon. James M., U.S. Senator from the State of Vermont..     5
Lieberman, Hon. Joseph I., U.S. Senator from the State of 
  Connecticut....................................................     1

                               WITNESSES

Callaghan, Mike, cabinet secretary, West Virginia Department of 
  Environmental Protection, Charleston, WV.......................    16
    Prepared statement...........................................   157
Dunlop, George S., Deputy Assistant Secretary of the Army for 
  Policy and Legislation, Office of the Assistant Secretary of 
  the Army for Civil Works.......................................     6
Grumbles, Benjamin H., Deputy Assistant Administrator, Office of 
  Water, Environmental Protection Agency.........................     7
    Prepared statement...........................................    24
    Responses to additional questions from Senator Lieberman.....    31
Mulhern, Joan, senior legislative counsel, Earthjustice Legal 
  Defense Fund, Washington, DC...................................    13
    Prepared statement...........................................    43
    Responses to additional questions from Senator Lieberman.....    59
Richardson, Kevin, founder and president, Just Within Foundation, 
  Lexington, KY..................................................    18
    Prepared statement...........................................   158
    Responses to additional questions from Senator Lieberman.....   159
Wallace, J. Bruce, professor of entomology, University of 
  Georgia, Athens, GA............................................    20
    Prepared statement...........................................   160
    Responses to additional questions from Senator Lieberman.....   161
Whitt, Mike, executive director, Mingo County Redevelopment 
  Authority, Williamson, WV......................................    21
    Prepared statement...........................................   170

                          ADDITIONAL MATERIAL

Article, The Silence, by Katheryne J. Hoffman....................   198
Charts:
    Bulgar Hollow in Raleigh Co., WV............................. 67-68
    Mingo County................................................173-179
    Mountaintop Mining EIS Presentation..........................98-106
    Valley Fills at Mountaintop Removal Mines in Kentucky and 
      West Virginia..............................................    66
Declaration, John S.L. Morgan...................................137-143
Letters from:
    American Rivers, Defenders of Wildlife, Earthjustice, 
      Endangered Species Coalition, Friends of the Earth, Mineral 
      Policy Center, League of Conservation Voters, National 
      Audubon Society, National Parks Conservation Association, 
      National Wildlife Federation, Natural Resources Defense 
      Council, Physicians for Social Responsibility, Scenic 
      America, Sierra Club, The Coast Alliance, Trout Unlimited, 
      U.S. Public Interest Research Group, World Wildlife Fund...    64
    Bonds, Julia.................................................   187
    Bradford, Richard............................................   190
    Bradford, Sylvia and Charles.................................   189
    Bush, President George W.....................................   225
    Canterberry, Pauline.........................................   203
    Cooper, David................................................   216
    Daniel, Mickey R.............................................   191
    Gallimore, Johnnie and Ruth..................................   193
    Griffy, Judy Turner..........................................   196
    Hamilton, David and Sue......................................   202
    Henderson, Lisa..............................................   184
    Hendrix, Regina M............................................   217
    Henry, Dorothy A.............................................   221
    Holstein, William............................................   192
    Hufford, Mary................................................   223
    Liston, Sister Anne-Marie....................................   200
    McGee, David.................................................   220
    Miller, Mary.................................................   205
    Moore, Amanda................................................   212
    Nease, Janice H..............................................   197
    Oaks, Katherine..............................................   224
    Pentecost, Sister Robbie.....................................   214
    Rank, Cindy..................................................   183
    Sebok, Patty.................................................   185
    Smith, Barbara Hutchison.....................................   222
    Stacy, Pauline...............................................   211
    Taylor, Elinore..............................................   218
    White, Harry and Jewel.......................................   204
    Wood, Betty..................................................   210
Memorandums:
    Izzo, Dominic, Office of the Assistant Secretary, Civil Works 74-82
    Lishman, John, Wetland and Aquatic Resources Regulatory 
      Branch, Environmental Protection Agency....................   144
Reports:
    Characterization of Building-Related Construction and 
      Demolition Debris in the United States....................152-156
    Economic Consequences, Environmental Impact Statement: 
      Mountaintop/Valley Fill Mining in Central Appalachia......107-136
    Managing Industrial Solid Waste From Manufacturing, Mining, 
      Oil and Gas Production and Utility Coal Combustion........146-151
    Permitted Stream Losses Due to Valley Filling in Kentucky, 
      Pennsylvania, Virginia, and West Virginia: A Partial 
      Inventory, September 1998.................................. 83-96
Resolutions:
    Delegates at the United Methodist Church Annual Conference at 
      Buckhannon, WV.............................................   208
    Diocesan Council, Episcopal Diocese of West Virginia.........   209
    Mountain Top Removal/Valley Fill Strip Mining................   215
    The Commission on Religion in Appalachian....................   206
Statements:
    Coakley, Doyle, chair, board of directors, Citizens Coal 
      Council....................................................   180
    Phillips, Charles, Central States Organizer Endangered 
      Species Coalition..........................................   194
    Plumart, Perry, Director of Government Relations, Audubon....   181
    Transcript, Patricia Braggs v. Colonal Dana Robertson........ 69-73

 
     CLEAN WATER ACT: REVIEW OF PROPOSED REVISIONS TO SECTION 404 
              DEFINITIONS OF ``FILL'' AND ``DREDGED FILL''

                              ----------                              


                         THURSDAY, JUNE 6, 2002

                               U.S. Senate,
         Committee on Environment and Public Works,
                      Subcommittee on Clean Air, Wetlands, 
                                        and Climate Change,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10:14 a.m. in 
room 406, Senate Dirksen Building, Hon. Joseph I. Lieberman 
(chairman of the subcommittee) presiding.
    Present: Senators Lieberman, Carper, Clinton, Corzine, and 
Jeffords [ex officio].

  OPENING STATEMENT OF HON. JOSEPH I. LIEBERMAN, U.S. SENATOR 
                 FROM THE STATE OF CONNECTICUT

    Senator Lieberman. The hearing will come to order.
    I express my apologies to all those here for being late. I 
was in a meeting with several of my colleagues and President 
Mubarak, who is in town in regard to the crisis in the Middle 
East, and the meeting went on for a while. As a matter of fact, 
it is still going on. Thank you for your patience.
    I want to welcome you to this hearing of the Environment 
and Public Works Committee's Subcommittee on Clean Air, 
Wetlands, and Climate Change.
    We are here today to discuss what on its face is a very 
technical subject, which is, changes in the definition of 
``fill material'' under the Clean Water Act. This is, in fact, 
a matter of critical importance to the health of America's 
rivers and America's streams.
    Streams and rivers provide drinking water for people, and 
habitats for many aquatic species, not to mention places of 
recreation and tranquility. They also provide a means of 
transporting water during heavy storms. Waterways are our 
planet's circulatory system and we should no sooner allow them 
to be unnaturally blocked than we would accept such blockages 
in our own veins or arteries.
    In 1972, Congress passed the Clean Water Act, one of the 
landmark pieces of environmental legislation in our Nation's 
history; one of the most successful governmental initiatives in 
the last century. As a result of that Act, our lakes, rivers, 
and streams are today much cleaner than they otherwise would 
have been.
    Under the Act, the Federal Government has allowed industry 
to put some materials into our rivers and streams. The idea 
there was that limited deposits of certain materials in 
particular places would not harm our water supply and our 
bodies of water. Sometimes the deposits can even serve a useful 
or constructive purpose, such as providing the foundation for a 
building or a bridge. When that is the case, what is dumped is 
not called waste, it is called ``fill.''
    Ever since the passage of the Clean Water Act, the Army 
Corps of Engineers has, in fact, given industry permits for 
such deposits on a case-by-case basis. We now know that the 
Army Corps has also been issuing permits to companies which 
allow them to dump vast quantities of blasted rubble, literally 
tons and tons of rock, dirt, and toxic materials, right into 
our rivers and our streams. The environmental consequences of 
this short-sighted policy, in my opinion, have been severe. 
Water has been polluted, aquatic life has been terminated, and 
ecosystems have been drastically, and perhaps irreparably, 
damaged.
    As is well known, mountaintop removal is the most prominent 
activity associated with and allowed under the changing 
definition of ``fill material'' under the Clean Air Act. If 
this type of activity and the mining associated with it is to 
continue, the waste created by this practice and others must be 
disposed of in compliance with the Clean Water Act. That is the 
law. For years, in my opinion, it has been shameful that our 
own Government was not following the law. Unfortunately, the 
Bush administration is not looking for ways to stop the dumping 
allowed under the current definition of ``fill material.'' It 
seems to be looking for ways to continue it indefinitely and, 
in fact, to expand it in the future.
    Just last month, when my colleague, Senator Jeffords of 
Vermont, who is the chairman of the full committee, the 
Environment and Public Works Committee, and I learned that the 
Administration was on the verge of finalizing rule changes 
which would do just that, which is to say not only continue the 
current definition of ``fill material'' but expand it, we sent 
a letter to the President urging him to reconsider. We asked 
for the opportunity, particularly through this committee, to 
work with the Administration and others to fully assess the 
environmental and other effects of the changes before they went 
into effect. Two days later, unfortunately, despite not only 
our request but that of many other people, the Administration 
changed the rule anyway.
    I am honored to note the presence of the chairman of the 
full committee, Senator Jeffords, who has worked very closely 
with me in this matter, as I just mentioned.
    I believe that the new rule actually violates the Clean 
Water Act. Just days after the rule was issued, a Federal 
District Court in fact agreed with that belief, stating that 
the Clean Water Act does not allow filling the waters of the 
United States solely for waste disposal, and that Agency policy 
that holds otherwise is beyond the power conferred by the Clean 
Water Act.
    The new EPA/Corps rule not only puts a seal of approval on 
the dumping of mountaintop removal waste in our waters, but 
effectively invites new kinds of waste to be put in our rivers 
and streams, because the rule redefines ``fill material'' so 
broadly that it seems to me it would include mining overburden, 
wood chips, and even construction debris. It no longer requires 
those seeking permits to demonstrate that the dumping would 
serve any useful purpose.
    Now, if this Administration wants to change the Clean Water 
Act to allow such dumping, it seems to me that the way to do it 
is to come to Congress and ask us to change the law, not to do 
it through the administrative fiat that has been carried out. 
As long as the Clean Water Act is the law of the land, this 
practice cannot be permitted and should literally not be 
permitted by the Army Corps of Engineers.
    We are going to hear testimony this morning on the 
relevance of the fill definition to the health of the 
environment and local economies, how this problem has been 
addressed at the State level, and the impacts mountaintop 
removal waste have had on the waters in Appalachia.
    Now let me just say a word about an unfortunate dispute 
that has occurred between Senator Voinovich and me about one of 
the witnesses, Kevin Richardson. It is a serious matter, 
although I must say perhaps affected by my teenage daughter, 
and I cannot resist saying that when it came to the question of 
one of the Backstreet Boys testifying here this morning, 
Senator Voinovich and I were not ``in sync.''
    [Laughter.]
    Senator Lieberman. I could not resist.
    Look, Senator Voinovich, the Ranking Republican on this 
committee, and I have had a good relationship and this dispute 
began with a misunderstanding I am afraid between our staffs. 
It was my staff's understanding that as we negotiated and 
discussed witnesses for this hearing, we retained the right to 
call at least one more witness. When we found that Mr. 
Richardson was available today, we chose to exercise the powers 
that I have as a subcommittee chair to call him. Senator 
Voinovich's staff obviously felt that that was not the case. We 
offered them the opportunity to call another witness on the 
other side. They turned down that opportunity. So, as I presume 
most of you know, Senator Voinovich has decided not to be at 
the hearing and to exercise the right he has as a Senator to 
terminate this hearing at approximately noon.
    I do want to say that Mr. Richardson is here as much more 
than just a well-known celebrity. He is a native of the State 
of Kentucky, which is directly affected by the question of the 
definition of fill material under the Clean Water Act. He is 
knowledgeable on this issue and, in fact, has worked to protect 
the environment in his home State through the Just Within Reach 
Foundation that he founded and on whose behalf he will testify 
today. So I believe his voice will add to our understanding of 
the issue before us today, and I am grateful that he could be 
here.
    [The prepared statement of Senator Lieberman follows:]

          Statement of Hon. Joseph I. Lieberman, U.S. Senator 
                     from the State of Connecticut

    Good morning, and welcome to this hearing of the Environmental and 
Public Works Committee's Subcommittee on Clean Air, Climate Change and 
Wetlands. We're here today to talk about a matter of critical 
importance to the health of America's rivers and streams, the changing 
of the definition of fill material under the Clean Water Act.
    Streams and rivers provide drinking water for people and habitats 
for many aquatic species. They also provide a means of transporting 
water during heavy storms. Waterways are our planet's circulatory 
system, and we should no sooner allow them to be disrupted than we 
would accept blockages in our own veins or arteries.
    In 1972 Congress passed the Clean Water Act, one of the landmark 
pieces of environmental protections in our nation's history. Under the 
Act, and under the careful oversight of government ever since, our 
lakes, rivers and streams have been cleaned and safeguarded for us and 
for future generations.
    Under the Act, the Federal Government has allowed industry to put 
some materials in our rivers and streams. The idea is that limited 
deposits of certain materials in particular places do not harm our 
water supply. Sometimes, the deposits serve a useful and constructive 
purpose--such as providing the foundation for a building or a bridge. 
When that's the case, what's dumped is not called waste--it's called 
``fill.'' Ever since the passage of the Clean Water Act, the Army Corps 
of Engineers has given industry permits for such deposits on a case-by-
case basis.
    But we've learned that the Army Corps has been issuing permits to 
companies which allow them to dump vast quantities of blasted rubble--
literally, tons and tons of rock, dirt, and toxic materials--right into 
our rivers and streams. And the environmental consequences of this 
shortsighted policy have been severe: water has been polluted, aquatic 
life has been terminated, and ecosystems have been irreparably changed.
    Mountaintop removal is the most prominent historical and current 
activity associated with the fill issue under the Clean Water Act. It 
is an important industry on which many American communities depend.
    But if this type of mining must continue, the waste created by this 
practice and others must be disposed of in compliance with the Clean 
Water Act. That's the law--and for years, it's shameful that our own 
government wasn't following it.
    Unfortunately, the Bush administration isn't looking for ways to 
stop the dumping. It is looking for ways to allow it to continue 
indefinitely and expand it in the future. Just last month, when EPW 
Committee Chairman Jeffords and I learned that Bush administration was 
on the verge of finalizing rule changes that do just that, we sent a 
letter to the President urging him to reconsider. We asked for the 
opportunity to work with the Administration and others to fully assess 
the environmental and other effects of the changes first.
    Two days later, despite the concern we and many others had 
expressed, the Administration changed the rule anyway. I believe that 
the new rule violates the Clean Water Act. And just days after the rule 
was issued, a Federal district court agreed with that belief--stating 
that the Clean Water Act does not allow filling the waters of the 
United States solely for waste disposal, and that agency policy that 
holds otherwise is beyond the power conferred by the Clean Water Act.
    What's doubly disturbing is that the new EPA/Corps rule not only 
puts a seal of approval on the dumping of mountaintop removal waste in 
our waters, but effectively invites many new kinds of waste to be put 
in our rivers and streams. The rule redefines ``fill material'' so 
broadly as to include mining overburden, woodchips, and even 
construction debris. And it no longer requires those seeking permits to 
demonstrate that the dumping would serve any useful purpose.
    If the EPA wants to change the Clean Water Act to allow this 
dumping, not to mention new dumping, it should seek to change the law, 
but not through administrative fiat. As long as the Clean Water Act is 
the law of the land, this practice cannot be permitted--and must 
literally not be permitted by the Army Corps of Engineers.
    We will hear this morning testimony on the relevance of the fill 
definition to the health of the environment and local economies, how 
this problem has been addressed in the State of West Virginia, and 
impacts mountaintop removal waste has had on the waters in Appalachia.
    Before starting the hearing I must address an issue that has caused 
some controversy regarding the hearing. I am sorry to report that my 
good friend Senator Voinovich is not here today to hear testimony on 
this important topic. There was a misunderstanding between our staffs 
over witnesses, specifically our calling Mr. Kevin Richardson to 
testify, that led him to boycott this hearing and invoke a Senate rule 
that requires this hearing to end 2 hours after the Senate opens for 
business. Forgive the pun but Senator Voinovich and I were not 
``N'Sync'' with about having a Back Street Boy testify today. I am 
sorry about this, especially because I know so many of you have 
travelled so far to be here today.
    Mr. Richardson, I am sorry that you have been subjected to 
criticism about your coming here to testify. I know that you were born 
in Kentucky and raised on the edge of the Daniel Boone National Forest, 
and still own a farm there. You have family and friends throughout the 
Appalachian region. I understand that you are the founder and president 
of the Just Within Reach Foundation. Your foundation promotes personal 
responsibility and promotes environmental education, including the 
granting of scholarships. Finally, you have been involved in the issue 
before us today, and have flown over the coal fields in Kentucky, West 
Virginia, and Tennessee, so you have seen first hand the consequences 
of the granting of fill permits to allow the disposal of waste from 
mountaintop removal.
    Mr. Richardson is here as more than a well-known celebrity. He is 
knowledgeable on this issue and has in fact worked to protect the 
environment in his home State. I believe his voice will add to our 
understanding of the issue.

    Senator Lieberman. Senator Jeffords.

OPENING STATEMENT OF HON. JAMES M. JEFFORDS, U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Senator Jeffords. Good morning. I would like to thank and 
commend Senator Lieberman for holding this hearing today, and 
thank the witnesses for being here.
    The reason we are all here is because we all care about 
clean water. The Clean Water Act is a great success story in 
the country's short history of environmental legislation. It 
has served as a model for how States and the Federal Government 
can work together to be more responsible stewards of our 
precious resources. During the past 30 years, significant 
progress has been made in attaining the goals set in the Clean 
Water Act--the primary goal of zero discharge, and the interim 
goal of fishable/swimmable water conditions.
    The issue we are considering today is the impact that 
changes in the rule defining ``fill material'' and the 
``discharge of fill material'' will have on achieving the goals 
of the Clean Water Act. Concerns have been raised that the new 
definition will take us a step backward from achieving the 
goals, while others believe the revised definitions will 
eliminate confusion caused by EPA and the Corps having 
different definitions of ``fill material.''
    I look forward to hearing from our witnesses today about 
why the changes are being made and their opinions as to what 
the impacts of the new rules will have on our Nation's waters. 
Thank you, Mr. Chairman.
    [The prepared statement of Senator Jeffords follows:]

 Statement of Hon. Jim Jeffords, U.S. Senator from the State of Vermont

    Good morning. I would like to thank Senator Lieberman for 
holding this hearing today and thank the witnesses for being 
here.
    The reason we are here today is because we all care about 
clean water. The Clean Water Act is a great success story in 
this country's short history of environmental legislation. It 
has served as a model for how States and the Federal Government 
can work together to be more responsible stewards of our 
precious resources.
    During the last 30 years, significant progress has been 
made in attaining the goals set in the Clean Water Act--the 
primary goal of zero discharge and the interim goal of fishable 
and swimmable water conditions.
    The issue we are considering today is the impact that 
changes in the rule defining ``fill material'' and the 
``discharge of fill material'' will have on achieving the goals 
of the Clean Water Act.
    Concerns have been raised that the new definition will take 
us a step backward from achieving the goals, while others 
believe the revised definitions will eliminate confusion caused 
by EPA and the Corps having different definitions of ``fill 
material''.
    I look forward to hearing from our witnesses about why the 
changes are being made and their opinions on what the impacts 
of the new rule will be on our nation's waters and the quality 
of the water.
    Thank you, Mr. Chairman.

    Senator Lieberman. Thank you, Senator Jeffords. Mr. 
Chairman, thanks for your leadership on this and so many other 
environmental questions.
    Senator Carper of Delaware.
    Senator Carper. I am just happy to be here and look forward 
to the testimony of our witnesses, and delighted to be in your 
company.
    Senator Lieberman. Thank you, Senator Carper.
    Our first panel is composed of Mr. Benjamin Grumbles, 
Deputy Assistant Administrator, Office of Water, U.S. 
Environmental Protection Agency, who is accompanied by Mr. 
George Dunlop, Deputy Assistant Secretary of the Army for 
Policy and Legislation, Office of the Assistant Secretary of 
the Army for Civil Works, which is to say the Corps of 
Engineers.
    Mr. Grumbles, I gather that you will deliver the testimony 
for the Administration, and both you and Mr. Dunlop are 
available for questioning.
    Mr. Grumbles. If the chairman would yield, I would simply 
say that, if it is OK, the way we were going to proceed was 
that Mr. Dunlop was going to give a 5-minute presentation and 
then I would give a 5-minute presentation.
    Senator Lieberman. Go right ahead. Do you want to go first, 
Mr. Dunlop?
    Mr. Dunlop. Yes, sir, thank you very much.

        STATEMENT OF GEORGE S. DUNLOP, DEPUTY ASSISTANT 
       SECRETARY OF THE ARMY FOR POLICY AND LEGISLATION, 
         OFFICE OF THE ASSISTANT SECRETARY OF THE ARMY 
                        FOR CIVIL WORKS

    Mr. Dunlop. We welcome the opportunity to be here and thank 
you very much for enabling us to present this testimony which 
provides our views about the way we have come to the 
circumstance at which we are at.
    Mr. Chairman, as you explained at the outset, the Clean 
Water Act involves definitions of ``pollutants'' and includes 
in those definitions ``dredge'' and ``fill materials'' that are 
regulated by the Corps of Engineers under Section 404 of the 
Clean Water Act as those materials have the effect of changing 
the bottom elevation of the waters of the United States or to 
convert wetlands into dry lands. Under Section 404 of the Clean 
Water Act, the EPA regulates all other pollutants that have 
degradation effects through various programs that the EPA 
administers.
    Under the Section 404 program, unlike the Section 402 
program, the Section 404 program specifically provides for 
circumstances in which the waters are converted to non-waters, 
to use the technical term, in ways that avoid, minimize, and 
compensate for the impacts of such conversions. We do that by 
requiring specific mitigations. That is found only in the 
Section 404 authorities.
    Further, Section 404 of the Act provides for the regulation 
of discharges of fill materials, but Congress never really 
defined what fill material is. They left that up to the 
Agencies. The way we have gotten into this fix is that prior to 
1977, for their respective programs, both Agencies, that is, 
the Corps and the Environmental Protection Agency, used the 
same effect-based definition of fill material that is found in 
the Act. However, in 1977, the Corps of Engineers amended its 
404 definition of fill material to add this primary purpose 
test, to which the chairman alluded, and this focused on 
whether or not the primary purpose of the material was, in 
fact, to raise the bottom elevation or to convert wetland into 
dry land.
    It is important to note that the Corps, so as not to find 
itself regulating garbage, which had been a certain practice in 
certain areas in the United States at that time, specifically 
excluded waste from those 1977 definitions. At that time, the 
EPA retained the original effects-based definition in its 402 
program governing the discharge of pollutants that have the 
water quality degradation effect.
    Over time, these two differing definitions of what 
constituted ``fill'' pertaining to the purpose of what the fill 
material was put created uncertainty, both for the regulators 
and for the regulated community. In an effort to resolve that, 
in 1986 the EPA and the Corps of Engineers entered into a 
Memorandum of Agreement that sought to clarify these 
circumstances.
    Well, that Memorandum of Agreement did not clarify very 
much because all these differing opinions continued. The 
consistency of the Federal approach by the different Agencies 
did not exist; it was not always consistent. Of course, as you 
can well imagine, what did that lead to? Litigation. As you 
well know, there are a variety of cases; the RII case, the 
Bragg v. Robertson case, and of course the Rivenburgh case, 
which the chairman referred to, which even as we speak is 
before the courts.
    So, because virtually all of the projects that place fill 
in the waters of the United States have some purpose other than 
raising the bottom elevation or turning wetland into dry land, 
one court's interpretation of the primary purpose test, if 
taken to an extreme, could exclude all traditional fill 
material in the waters of the United States from regulation of 
Section 404. Mr. Chairman, that is why all of these things were 
modified and changed.
    The bottom line of what we have done in our newly 
harmonized May 2002 rule is to define ``fill material'' for the 
404 program in terms of its effect on raising the bottom 
elevation of waters of the United States, regardless of the 
purpose that caused that fill to exist. It specifically 
excludes garbage from the definition. It leaves the pollution, 
that is, the water degradation effects, to be regulated by 
EPA's Section 402 program.
    Mr. Grumbles will then pick up from there how we got into 
this present circumstance.
    Senator Lieberman. Thanks, Mr. Dunlop.
    Mr. Grumbles.

      STATEMENT OF BENJAMIN H. GRUMBLES, DEPUTY ASSISTANT 
         ADMINISTRATOR, OFFICE OF WATER, ENVIRONMENTAL 
                       PROTECTION AGENCY

    Mr. Grumbles. Thank you, Mr. Chairman. I would like to 
focus specifically on a brief history of how EPA developed its 
``effects-based test'' and has applied this long-standing 
approach to defining ``fill material,'' and also the steps that 
we are taking to ensure that the Clean Water Act Section 404 
program continues to provide protection for human health and 
the environment.
    Mr. Chairman, I know that you and your colleagues know that 
there are essentially two basic issues that are involved here. 
One is a jurisdictional issue. The question is whether Section 
404, which has traditionally been designed to regulate the 
discharge of dredged or fill materials, should apply, or 
Section 402 of the Clean Water Act, which traditionally has 
been, and continues to be, focused more on industrial and 
municipal waste and all other pollutants under the Clean Water 
Act. So there is an important jurisdictional question, and our 
rulemaking, which George Dunlop has just described, is an 
attempt to resolve and to harmonize the Agencies' differing 
definitions.
    The other issue is implementation. How do we implement the 
404 program? How can we be responsive to the concerns that have 
been raised in the past and that continue to be raised about 
mountaintop mining and other practices that are subject to the 
404 program?
    So what I would like to do is focus more on the history of 
the jurisdictional question, and essentially the difference, 
after 1977, between having an ``effects-based test,'' which is 
what EPA has had since then, and a ``primary purpose test,'' 
which is what the Corps had, where you might end up having to 
look into the minds of those who are going to do the discharge 
and figure out what was their purpose. The rule that we 
finalized adopts the long-standing EPA approach of an effects-
based test: Look to see what the effect of a discharge is on 
the environment.
    Now, as George talked about, the 404 program under the 
Clean Water Act specifically says you need a permit issued by 
the Corps of Engineers for the discharge of dredged or fill 
material. As George mentioned, the statute does not define 
dredged or fill material; it was left to the Agencies. Mr. 
Chairman, our view has been, and continues to be, both under 
the previous Administration and this Administration, the 
lawyers looking at the Act, looking at the congressional 
intent, the consistent implementation, the bottom line legal 
conclusion is that we believe that when you look at fill 
material in the definition, that mining material overburden is 
more appropriately consistent with the Clean Water Act 
regulated under the Section 404 program as opposed to the 
Section 402 program which traditionally regulates industrial 
and municipal waste, of a liquid nature, in particular.
    I just want to point out a couple of things about the 404 
program that we have, and the difference with 402. Under 402, 
there are no statutory or regulatory provisions designed to 
address discharges that convert waters of the United States to 
dry land. That is a fundamental concept to keep in mind. If we 
were told to start regulating mountaintop mining discharges 
under 402, it would require a comprehensive overhaul of the 
existing 402 program. The program is simply not designed, and 
has not been implemented, to regulate that type of material. In 
essence, the view is that regulations under 402 would result in 
an up-front, categorical ban of any type of discharge 
associated with that type of mining because you are, in 
essence, converting waters of the United States into dry land. 
That is precisely what the 404 program, in our view, was 
intended to regulate, that type of discharge.
    What are some of the protections under 404? Specifically, 
under the 404 program, the Corps of Engineers issues the 
permits and follows EPA guidelines. ``Guidelines'' is really a 
misnomer. These are binding regulations. It also is called the 
``404(b)(1) guidelines,'' and the whole exercise there is to go 
through an analysis where you look at the practicable 
alternatives to the discharge. You have to go through a process 
of minimizing the effects of the discharge, and then, finally, 
provide for what is called ``compensatory mitigation.'' If 
there are no practicable alternatives to the discharge of the 
fill material into the waters of the United States, then you 
have to minimize the effects, and then, finally, provide for 
compensatory mitigation.
    As George said, there has been in the past no single 
definition. Over time, again and again there was controversy 
and confusion that has arisen. I think one of the key points to 
highlight is that this rule is not just about mining, it is 
also about the regulation of placement of materials in wetlands 
and other waters of the United States for the construction of 
solid waste landfills. A 9th-circuit case in 1998 is one of the 
primary motivations behind this rulemaking. It is to clarify 
that, yes, safeguards under the Clean Water Act, not just under 
RCRA but under the Clean Water Act as well, would apply to that 
type of activity, of putting sand and gravel in a wetland for a 
liner or a leachate collection system. So one of the points is 
that the rulemaking that we are finalizing is attempting to 
address that concern as well; to try to harmonize the differing 
definitions between the Corps and the EPA.
    Finally, I just want to talk about implementation. We are 
not here to defend mountaintop mining practice, we are not here 
to defend any type of practice that is regulated under the 
Clean Water Act. We recognize that there have been in the past, 
and there continue to be problems and environmental impacts 
associated with a wide range of activities regulated under the 
Clean Water Act. Our purpose was to clarify, to resolve the 
different definitions and also to make clear in the rulemaking 
that trash and garbage was not something that could be subject 
to the Section 404 permitting program. These are materials, 
that, traditionally, we have never authorized permits for nor 
tolerated in any form or substance.
    So, one of the purposes of the rulemaking was to clarify 
the landfill issue and the role of 404 in activities related to 
landfill liners and leachate collection systems, but also to 
harmonize the differences between the Corps and EPA. The EPA 
and the Corps are working to do several things to strengthen 
the regulatory protections under the nationwide permit program 
as it relates to mountaintop mining. We are working to include 
numeric thresholds as to the acreage limits that might come 
into play with respect to a nationwide permit for mountaintop 
mining. The Corps District Engineers in each of the Districts 
throughout Appalachia will be looking specifically at the 
cumulative impacts of mountaintop mining in the context of 
permits or authorizations. We are also involved in a multi-
agency effort looking at the cumulative impacts, reviewing 
these, in particular for mountaintop mining.
    So, Mr. Chairman, I appreciate your allowing me to go over 
time. I guess the bottom line is that we believe that our 
current interpretation of the Act and the intent of Section 404 
is the correct one, and that the rulemaking, nothing more, 
nothing less, is intending to harmonize that difference in 
definitions. We also look forward to more regulatory efforts to 
make sure that cumulative impacts and safeguards are in place 
with respect to mountaintop mining.
    Senator Lieberman. Thanks, Mr. Grumbles.
    Senators will have 5-minute rounds of questioning of you.
    Look, the concern here is that in the clarification that 
you have done, as you describe it, you have legitimized a 
practice that is in fact harmful to the Nation's waterways. I 
looked over some of the files in that 1998 case Bragg v. 
Robertson, and it was interesting to read the testimony of 
several of the Army Corps of Engineers officials who were 
deposed and acknowledged, as I read it, that the Corps did not 
have the legal authority to issue permits for valley fills 
because the Corps' own regulations prohibited the use of waste 
as fill. One of the Corps officials, when asked why the Corps 
did issue such approvals without legal authority, said that the 
Corps ``sort of oozed into that.'' That is the concern.
    So let me ask this question. Is it not possible that 
Congress in adopting the Clean Water Act and the President 
signing it did not anticipate allowing such discharges under 
either Section 402 or Section 404? In other words, you have 
clarified the interpretations, according to your testimony, but 
it seems to me that there is an argument to be made pursuant to 
the obvious intention of the Act, which was to clean up our 
waterways, that under 402 or 404 Congress did not intend such 
discharges to be legal.
    Mr. Grumbles. If I may, Mr. Chairman, I think there are a 
couple of things to keep in mind. One of them is that while the 
Act does have as its overarching objective to restore and 
maintain the chemical, physical, and biological integrity of 
the Nation's waters, and it does have some non-binding 
important goals at the front of the Act about specifically 
reducing and eliminating discharge over a period of time, any 
discharges, the whole purpose of the Act is to have the two 
primary operative regulatory programs, 402 and 404, to allow 
for the addition of pollutants under stringent conditions and 
requirements.
    Specifically, Section 404 does allow for the discharge of 
dredged or fill material into specified ``disposal sites.'' It 
is specifically contemplated. It is part of the Act that there 
will be disposal of waste and other materials, dredged or fill 
material into the waters, but they need to be regulated and 
there need to be safeguards and controls.
    The point you mentioned about the confusion over whether or 
not the Corps had the legal authority to be authorizing these 
activities I think is the precise reason why we felt, and why 
the previous Administration felt, there was a need to clarify 
the different definitions that were in the regulations. The 
Corps had a specific provision that said if it is the primary 
purpose to dispose, that is what you look at, and there was a 
waste provision, an exclusion that waste would not be under 
404. Our definition was different. To our lawyers in reading 
through the Act, it seemed very clear that you should look at 
the effect of the discharge into the waters of the United 
States and then that should be the primary test. If you change 
the bottom elevation of a waterbody, what you needed to do was 
to have to go through the 404 permit program.
    Senator Lieberman. Just on a non-legal basis, is it really 
possible to think of the dumping of millions of tons of debris 
into valleys as ``strictly controlled,'' to use the words of 
the statute?
    Mr. Grumbles. I do not know what the precise number is. 
There is no doubt that there has been a lot of material, 
whether it is mountaintop mining overburden or other materials, 
that have over the years been discharged into the Nation's 
waters. The safeguards, the attractiveness of the 404 permit 
program, as opposed to the 402 program, is that it is 
specifically designed to take the permit right through an 
analysis where they look at practicable alternatives and they 
also look at the cumulative impacts.
    One of the things that we are committed to doing is to look 
in a very rigorous way at the individual and cumulative impacts 
of those discharges. Since 1998, we understand that the number 
of valley fills has been reduced by 30 percent, and that the 
overall size impact of the valley fills has been reduced by 
approximately 20 or 25 percent.
    The bottom line is that these discharges do have an effect. 
We do not believe that the statute, the current reading and 
correct reading of the statute, would impose an absolute 
categorical ban on the discharge of this type of waste. We do 
believe it needs further restrictions both under the nationwide 
permit program and the individual program, and there needs to 
be continued analysis of cumulative impacts of such activities.
    Senator Lieberman. OK, Mr. Grumbles, my time is up.
    Senator Corzine.
    Senator Corzine. Thank you, Mr. Chairman. I must admit that 
I am not a lawyer, so this language seems overdrawn. Filling up 
valleys strikes me as not necessarily consistent with what a 
non-lawyer would read in looking at the Clean Water Act.
    Senator Lieberman. Your status as a non-lawyer may, in 
fact, give you clearer vision in this case.
    [Laughter.]
    Senator Corzine. So I am having a little problem with coal 
mining overburden and placement of overburden as confusing the 
issue.
    Let me switch gears a little bit and maybe show some of my 
ignorance. This is actually very troubling relative to a common 
sense interpretation of what, at least my understanding, the 
Clean Water Act was all about. Are there any changes in these 
definitions that have anything to do directly with the dredging 
activities in New York-New Jersey Harbor and the definitions of 
what will be appropriate fill material, both for this and for 
other activities?
    Mr. Grumbles. Well, we are not attempting in the rulemaking 
to define ``dredged'' material. In terms of the definition of 
``fill material,'' I want to check with the lawyers and will 
get back to you for the record. The HARS, I believe is 
regulated under the Marine Protection Research and Sanctuaries 
Act. So that is a different statute.
    [The referenced material follows:]

          Clarification on the Effect of the rule on the New York/New 
        Jersey Harbor HARS: ``Placement of dredged material from New 
        York/New Jersey Harbor at the Historic Area Remediation Site 
        (HARS) is regulated under Title I of the Marine Protection, 
        Research, and Sanctuaries Act (33 U.S.C. 1401 et seq.). The 
        rulemaking to clarify the definition of 'fill material' under 
        Section 404 of the CWA thus does not affect the HARS.''

    Senator Corzine. The same material that would be dredged 
from that harbor then deposited in coal mine shafts in 
Pennsylvania would be subject to 404?
    Mr. Grumbles. That is correct. If you were putting it into 
other waters or inland waters, then the Section 404 program 
would apply.
    Senator Corzine. Would you consider coal mine shafts water 
sources?
    Mr. Grumbles. I do not know about coal mine shafts. I was 
thinking you were going more in terms of other streams or 
waters.
    Senator Corzine. So there are concerns about using these 
dredged materials as pollutants that undermine the water tables 
and seepage into them. I am just curious as to whether these 
same issues of definition apply to that discussion and debate 
as they do here.
    Mr. Chairman, I am going to plead ignorance on my legal 
ability, but I have serious trouble at a common sense level of 
the juxtaposition of these kinds of overdrawn legal definitions 
blocking what I think is the clear intent of the Congress with 
regard to the Clean Water Act. I am pleased to hear that we 
have fewer filled-in valleys. Somehow or other, that does not 
seem good enough relative to at least the limited study I have 
given to this particular issue. I think it is very worthy that 
we dig deeply into this and challenge some of these definitions 
because, frankly, I am troubled, and I think the American 
people would be, with regard to the usage of these statutes to 
justify those purposes.
    [The prepared statement of Senator Corzine follows:]

            Statement of Hon. Jon S. Corzine, U.S. Senator 
                      from the State of New Jersey

    Thank you Mr. Chairman for holding today's hearing on the issue of 
the Army Corps' change to their definition of ``fill'' material. This 
may seem like a minor technical change. But as we will hear today, 
there are much broader and potentially damaging implications that such 
a change may have.
    I want to start by noting that this year marks the 30th anniversary 
of the Clean Water Act. The Act's objective is clear: ``to protect and 
restore the physical, chemical and biological integrity of the nation's 
waters.'' The Clean Water Act has resulted in many successes since 
1972. Thirty years ago, only 30-40 percent of the nation's rivers, 
lakes and coastal waters were estimated safe for swimming and fishing. 
Today that percentage has risen to over 60 percent. In my home State of 
New Jersey--which has over 120 miles of ocean coastline, 6,450 miles of 
rivers, and 24,000 acres of public lakes--considerable progress has 
been made as well. All coastal beaches from Sandy Hook South to Cape 
May are fully swimmable, 73 percent of the monitored estuary waters and 
76 percent of the monitored ocean waters fully support shellfish 
harvesting--this wasn't the case 30 or even 20 years ago.
    These are good achievements, but there is still a lot of work to be 
done in New Jersey and across the country. So in this year of the 30th 
anniversary of the Clean Water Act, I think we ought to be taking steps 
to strengthen the Act to address remaining water quality problems. We 
certainly shouldn't be weakening the Act, or making changes to 
regulations that will create new water quality problems. Unfortunately, 
that's exactly what the Administration is doing with this change to the 
wetlands program.
    It is my understanding that the new ``fill'' definition is such 
that any material that has the effect of replacing portions of waters 
with dry land or changing the bottom elevation of a water body is 
permissible for use as ``fill'' material. As my colleagues have pointed 
out, the effect of this change is that many types of wastes--including 
hardrock mining waste, coal mining waste, and construction and 
demolition debris--will be allowed to be dumped in our Nation's 
waterways.
    Needless to say, Mr. Chairman, this could be devastating to 
streams, lakes and wetlands across the country. And it goes against the 
heart of the Clean Water Act, whose purpose is to clean up the nation's 
waterways, not to dump waste into them. So I'm extremely dismayed by 
the Administration's actions.
    Thank you, Mr. Chairman. I look forward to hearing the testimony.

    Senator Lieberman. Thank you, Senator Corzine. I agree with 
you.
    Gentlemen, I have a couple of other questions, but I am 
going to leave the record open and submit them to you in 
writing.
    I gather, under the Senate rules and Senator Voinovich's 
objection, we are going to have to adjourn by 11:30. Some folks 
have come from some distance on the second panel and I want to 
give them an opportunity to testify.
    So, thank you for your testimony.
    Mr. Dunlop. Mr. Chairman, as a matter of housekeeping, may 
we ask that our prepared formal statement be inserted in the 
record.
    Senator Lieberman. Without objection, the full statements 
will be included in the record, as they will for those who 
testify on the second panel. I thank you.
    I now call the second panel. The panel is composed of Mr. 
Kevin Richardson, founder and president of the Just Within 
Reach Foundation, from Lexington, KY; Joan Mulhern, senior 
legislative counsel, Earthjustice Legal Defense Fund; Mike 
Callaghan, secretary, West Virginia Department of Environmental 
Protection; J. Bruce Wallace, Ph.D., professor of entomology 
from the University of Georgia, Athens, GA; and Mike Whitt, 
executive director, Mingo County Redevelopment Authority, 
Williamson, WV.
    I thank you all for being here. Obviously, this is a very 
important hearing on a very important subject and your 
testimony is of significance to us.
    We are going to start with you, Ms. Mulhern, then we are 
going to go to Mr. Callaghan, Mr. Richardson, Mr. Wallace, and 
Mr. Whitt.

         STATEMENT OF JOAN MULHERN, SENIOR LEGISLATIVE 
           COUNSEL, EARTHJUSTICE LEGAL DEFENSE FUND, 
                         WASHINGTON, DC

    Ms. Mulhern. Chairman Lieberman and members of the 
subcommittee, thank you for holding this hearing to review one 
of the most destructive changes to Clean Water Act regulations 
in decades. My name is Joan Mulhern. I am senior legislative 
counsel for Earthjustice Legal Defense Fund, a national non-
profit law firm.
    Present for your hearing today, Mr. Chairman, are citizen 
groups and individuals from the coal field who are among the 
people who will be most directly hurt by the Administration's 
weakening of the Clean Water Act rules. I have some statements 
from these individuals and others, as well as from local groups 
and religious leaders in the region, and with your permission, 
Mr. Chairman, I would like to ask that these be entered into 
the record for the hearing.
    Senator Lieberman. Without objection, they will be entered. 
Thank you.
    Ms. Mulhern. On May 3, the Bush administration eliminated 
from the Army Corps of Engineers' Clean Water Act regulations a 
25-year old legal prohibition on using waste material to fill 
waters of the United States. This change in the definition of 
fill material was made to give the Corps authority to permit 
any industry to bury any waterway under almost any kind of 
solid waste. The rule change is indefensible as a matter of law 
and policy. It is directly contrary to the Clean Water Act, 
which, as you stated, Mr. Chairman, has the central purpose of 
protecting the integrity of our Nation's waters. No activity is 
more inconsistent with the goal of protecting the integrity of 
waters than allowing them to be buried forever under piles of 
industrial waste.
    The EPA has declared this to be the ``Year of Clean Water'' 
in honor of the Clean Water Act's thirtieth birthday, which 
happens this year on October 18. Opening the Nation's waters 
for obliteration in the way that this rule change does is a 
perverse way of marking an important milestone in this landmark 
law's history.
    Much of the attention on the new waste dump in water rule 
has been on mountaintop removal and the destruction of streams 
into which the coal companies dump enormous quantities of 
waste. This is because of not only the unparalleled destruction 
that this practice causes, but it is precisely for the coal 
companies that the Bush administration adopted this rule.
    Estimates vary, but most suggest in West Virginia and 
Kentucky alone where mountaintop removal is most concentrated 
more than 1500 miles of streams have already been destroyed 
under valley fill waste dumps. It is impossible to overstate 
the harmful effects of mountaintop removal on the surrounding 
environment and communities. Not only are the waters buried 
under tons of rubble, the forested mountains become barren 
moonscapes. Mining complexes can be 10 or even 20 square miles 
in size. The communities below these massive operations are 
devastated. People are forced from their homes by blasting, by 
dust, noise, flying rocks, and the degradation of stream and 
well water. Life near mountaintop removal operations become so 
unbearable that generations old communities are forced to move 
away.
    Many people, including some coal field residents who have 
lost homes and loved ones in the recent floods, believe 
flooding is made worse by mountaintop removal. It is a 
reasonable conclusion. When mining strips the land bare of all 
trees and vegetation and the natural water courses are filled 
under tons of rubble, stormwater will come rushing down more 
quickly into communities and valleys. In the floods last month, 
nearly a dozen people lost their lives and four West Virginia 
counties were declared Federal Disaster Areas.
    As you noted, Mr. Chairman, recently a Federal District 
Judge, Charles Haden, ruled that the Administration's rewrite 
of the Clean Water Act regulations was beyond its legal 
authority. He wrote:

          ``To read the Clean Water Act otherwise presumes Congress 
        intended the Act to protect the Nation's waterways with one 
        major exception: the Army Corps was to be given authority to 
        allow the waters of the United States to be filled with 
        pollutants and destroyed, even if the sole purpose is waste 
        disposal.''

    He wrote:

          ``Amendments to the Act should be considered and accomplished 
        in the sunlight of open congressional debate, not within the 
        murk of administrative after-the-fact ratification of 
        questionable regulatory practices.''

    Earthjustice could not agree more. The questionable 
regulatory practice referred to is the fact that the Corps, 
without legal authority, has been permitting this filling of 
streams with coal mining waste for many years. This was not a 
matter that was unclear, as Mr. Dunlop suggests. The waste 
exclusion that has been in the Corps' regulations for 25 years 
was all too clear. In fact, it was only when citizens moved to 
enforce the Clean Water Act against the Federal and State 
Agencies that were permitting it that the Bush administration 
tried to change the rule.
    The coal industry and the Bush administration argue that 
companies must bury streams and that forbidding them from doing 
so would cause economic havoc both regionally and nationwide. 
Yet the evidence shows neither of these claims is true. Most 
mining operations do not require valley fills. For the others 
there are alternatives to dumping waste in waters. According to 
an economic study recently prepared for the Bush 
administration, even severe restrictions on the size of valley 
fills would only add one dollar to the price of a ton of coal 
and a few cents to the cost of a megawatt of electricity.
    Some proponents of mountaintop removal claim it is needed 
to create flat land for development. While there are a few such 
examples, it is extremely unlikely that any significant 
percentage of any of the hundreds of square miles that have 
already been flattened will ever be developed. According to one 
estimate, less than 1 percent of mine land is currently used 
for any development purpose.
    It is important to understand that the way that the rule 
was changed would also allow almost any other industry to seek 
approval from the court to dump any kind of waste into 
waterways. As the chairman noted, plastics, construction 
debris, along with wood chips, overburden, slurry tailings, and 
similar mining materials would all be allowed to be permitted 
in water, including wastes that are chemically contaminated.
    Perhaps the most startling thing about the Administration's 
change to the regulations is it was done without any study or 
analysis of the environmental or societal consequences. If you 
look at the Environmental Analysis prepared by the Corps, Mr. 
Chairman, you will find that it lacks one thing--an 
environmental analysis. The document cites not one study, 
report, or fact of any kind to support the Agency's conclusions 
that there will be no environmental effects from this rule 
change. Not only does common sense tell us otherwise, but 
recently released documents from the EPA and Corps show that 
the effects already caused by mountaintop removal are 
significant and likely irreversible.
    I am over my time, so I will just say that I could not 
disagree more with Mr. Grumbles and Mr. Dunlop's explanation of 
the Clean Water Act and the reasons that they give for changing 
this rule. It is one thing to fill a stream or wetland because 
a constructive use needs to be made of a certain area. It is 
something else altogether to allow it to be filled with waste 
just because that is the cheapest means of disposal.
    Because Judge Haden enjoined the Corps from issuing any new 
permits, our waters are protected from this rule change for 
now. As the courtroom battles on the rule change continue, as 
they undoubtedly will, it makes sense for Congress to step in 
and settle this matter once and for all by reconfirming what 
the Clean Water Act already says, that it forbids the use of 
our Nation's waters as dumps.
    Thank you again, Mr. Chairman, for the opportunity to 
testify.
    Senator Lieberman. Ms. Mulhern, I agree with you. One of 
the questions I was going to ask the previous panel was exactly 
the one you stated, which is, there was no Environmental Impact 
Analysis that I can see, it was just asserted. Second, it is my 
intention to introduce legislation to do exactly what you have 
said, which is to assert in law the original intention of the 
Congress, which is not to allow this kind of dumping in our 
waters.
    Senator Lieberman. Secretary Callaghan, secretary of the 
West Virginia Department of Environmental Protection. Thanks 
for being here.

     STATEMENT OF MIKE CALLAGHAN, SECRETARY, WEST VIRGINIA 
     DEPARTMENT OF ENVIRONMENTAL PROTECTION, CHARLESTON, WV

    Mr. Callaghan. Thank you, Mr. Chairman, and thanks for 
having me back. You might recall I testified on some air issues 
several months ago.
    Senator Lieberman. I do.
    Mr. Callaghan. At that stage, I blamed my premature balding 
on air issues. Today, I am going to blame it on mountaintop 
mining.
    [Laughter.]
    Mr. Callaghan. As you mentioned, I am Mike Callaghan, 
cabinet secretary for West Virginia DEP. What I want to relate 
to you is West Virginia's perspective on what is happening in 
the coal fields with respect to valley fills and mountaintop 
mining.
    To put it in some kind of perspective, I am a fifth 
generation West Virginian. So I go back to when the State was a 
State. I have been around the issue of coal mining all my life. 
We have discussed the benefits and the burdens that that has 
brought to our State, and it has brought both.
    When you look at mountaintop removal, it is, as the name 
suggests, a mining method in which the soil and rock are 
basically pulled from the top of the mountain, the coal seam is 
extracted, and then the materials tried to be placed back into 
the fields and into the mountain in as best condition as 
possible. The excess soil and rock, which they refer to as 
``spoil,'' is commonly placed in the nearby valleys and 
hollows, creating large sloped areas called ``valley fills.''
    Mountaintop removal is one of the most economical ways to 
mine coal in a steep sloped terrain, such as in southern West 
Virginia, but it does have the consequence of filling miles of 
mountain streams with rock and dirt. The practice of 
mountaintop mining has increased because the demand for low 
sulphur coal has been steadily increasing over the last decade. 
So that is what is driving the more mountaintop mining.
    From a regulatory standpoint, the State of West Virginia 
issues mining permits through a federally approved program and 
we have primacy of our program through the Department of 
Interior. Basically, we apply the Surface Mine Control and 
Reclamation Act and its regulations dictate most aspects of the 
permitting process implemented by the State of West Virginia, 
which includes a permitting of valley fills. In West Virginia, 
among other requirements, every permit for a mining operation 
which proposes filling a stream must include detailed 
provisions for minimizing the amount of excess spoil material, 
a stormwater runoff analysis to prevent flooding, and detailed 
engineering requirements to ensure structural stability of the 
valley fills themselves.
    As you have seen today, in addition to State approval, the 
Army Corps of Engineers must issue a Section 404 permit before 
any waters of the United States can be filled.
    Over the last 20 years, West Virginia and the Federal 
oversight Agencies, which include EPA, the Army Corps of 
Engineers, the Office of Surface Mining, have issued permits 
that authorized the construction of more than 4,000 valley 
fills in West Virginia. Those fills have ranged in size from a 
few hundred yards to over 2 miles in length and affected 
approximately 750 miles of our streams, creeks, and drainage 
ways.
    One conclusion about mountaintop mining and valley fills 
that is certain though is that the use of these practices has 
enabled the mining industry to flourish and has put thousands 
of West Virginians to work. In numerous communities in southern 
West Virginia the coal mining industry has for many years 
formed the backbone of the economy. The industry draws its work 
force from the local population and many additional jobs are 
sustained through businesses that support mining industry.
    Currently, market factors are having a significant impact 
on West Virginia coal. Western coal competition, depletion of 
reserves, economies of scale, and industry mergers all will 
likely lead to a decline in the employment in the mining 
industry in Appalachia. This is going to leave our region, and 
especially West Virginia, with an economic void.
    Ironically, when you look at these valley fills and 
mountaintop removal sites, they can serve as effective 
development tools for filling the gap left by the mining 
industry when they move on. That is, when properly planned, 
mountaintop mining sites have proven ideal locations for 
industrial, commercial, residential, and recreational 
development. The flat topography of mountaintop removal sites 
in areas typically devoid of prime building locations has 
already proven beneficial to several businesses, including a 
large wood products factory, a world-class golf course, a 
multi-faceted recreational park, and residential development.
    My department is working closely with the State economic 
development office to more fully utilize these surface mining 
sites. Individuals such as Mike Whitt, sitting here at the 
table with me, have been very instrumental in providing a 
vision for West Virginia's future post-mining. Unfortunately, 
former mining sites historically have been under-utilized as 
economic tools. Of the several hundred surface mining sites 
with valley fills in West Virginia, less than two dozen have 
been used for economic or community development.
    Let me conclude by saying that prior to joining DEP, I was 
a Federal prosecutor with pretty extensive experience in 
prosecuting people who committed environmental violations. One 
of the first things I did was to appoint an environmental 
prosecutor from the Department of Justice here in Washington to 
come and run our coal program. I say that, in West Virginia 
sometimes we like to talk in phrases, but basically I want you 
to understand that there is a new sheriff in town. We are 
running our program and we are doing a good job of enforcing 
the rules and regulations as they are written.
    Please know that I am fully committed to the enforcement of 
the existing laws and regulations, and we want to demonstrate 
steady progress in improving our oversight of the coal industry 
in West Virginia. We certainly welcome the companies to mine 
our coal, but we also intend to do our jobs as regulators and 
enforce the law. Thank you.
    Senator Lieberman. Thanks, Secretary Callaghan.
    Mr. Richardson, thanks for being here. As I indicated in my 
opening statement, I regret the dispute over your appearance. I 
am grateful that your schedule allowed you to be here. You have 
got a proven record of being involved in environmental 
protection. You come from a part of the country that is 
affected by this discussion. So I look forward to your 
testimony now.

  STATEMENT OF KEVIN RICHARDSON, FOUNDER AND PRESIDENT, JUST 
             WITHIN REACH FOUNDATION, LEXINGTON, KY

    Mr. Richardson. Thank you, sir. Mr. Chairman, honorable 
committee members, and guests, my name is Kevin Richardson. I 
was born in Lexington, KY, and I was raised in the Appalachian 
Mountains of eastern Kentucky. My father managed a camp and 
conference center that hosted retreats for religious groups and 
businesses from all over the world. There at the camp I mowed 
the grass, swept the cabins, cleaned the toilets, and led hikes 
all over the thousands of acres that border the Daniel Boone 
National Forest that we lived on. Our entire water supply was 
supplied from a natural spring.
    I am here today to talk about a systematic destruction of 
one of the most beautiful, productive, and historical regions 
of our country--my home State of Kentucky, the mountains of 
West Virginia and Tennessee, and the other areas of Appalachia 
where the practice of mountaintop coal mining has taken over.
    In the midst of their giant lakes of coal sludge that 
sometimes burst without warning, their constant dynamiting that 
shakes homes from their foundations, their transformation of 
forested mountain ranges into flat, gravel-covered moonscapes, 
and their contamination of well water and natural springs, coal 
companies engage in the practice of valley fill, our purpose 
for being here today.
    For years, the Corps of Engineers has routinely issued 
permits to coal companies in the Southeast and Appalachia 
allowing them to fill valleys and waterways with overburden 
from the mountaintop removal coal extraction operations. 
Overburden, along with coal sludge, are the byproducts of 
extracting and washing coal, before shipping it to electric 
generating plants across the country.
    EPA officials, residents living in the shadows of mines, 
and citizen groups have questioned the validity and legality of 
the Corps' decision to issue such permits--permits for an 
activity that dumps mining waste into the region's streams, 
rivers, and valleys. Hundreds of millions of tons of industrial 
mining byproducts are pushed into the valleys surrounding coal 
extraction sites, to date burying over 1,500 miles of headwater 
streams in West Virginia and my home State of Kentucky. Valley 
fills destroy spawning grounds that support our recreational 
fishing industry, they contaminate our drinking water, and they 
trash our thriving tourist industry that relies on the natural 
beauty of our area. In addition, these stripped lands can no 
longer absorb the seasonal rainfall, causing massive flooding 
and loss of life. People should not have to die when it rains.
    In April, a Federal District Court judge finally brought 
some needed attention to this issue by ruling that the Corps' 
practice of issuing valley permits violates Congress' intent in 
the Clean Water Act and its restrictions on using waterways for 
industrial waste disposal. The Administration's recent attempt 
to circumvent the Clean Water Act by rewriting the rules to 
define coal extraction waste as ``fill'' is a nice gesture to 
their friends in the industry. It clearly exceeds the 
Administration's legal authority granted under the Act. Such a 
gesture cannot alter the meaning of the law. I urge you to make 
this clear to the President and his Agencies.
    The bottom line is that we have an industry that has 
thrived, not from honest business practices in a free market, 
but from passing its real costs to the people of Appalachia and 
the rest of the United States--with subsidies in the form of 
illegal permits from the Corps of Engineers and other Agencies 
that are supposed to protect us. Ending the practice of valley 
fills and making coal companies manage their industrial waste 
like any other industry is not about hugging trees and 
worshipping mountains. It is about making coal companies 
compete for our energy dollar on an equal playing field with 
natural gas, hydroelectric, solar, and wind. It is about 
recognizing that we own the streams and rivers of this country 
and that we own the fish and other resources in those 
waterways. Destroying the rivers, the fisheries, the forests 
and mountains through irresponsible coal extraction, as well as 
coal-produced acid rain deposition in your home State, Mr. 
Chairman, is no different than kicking down the doors of our 
homes and walking away with an armful of our valuables. Theft 
is theft.
    I am not a scientist, but I know what I have seen on 
flights over the coal fields. My first flight was in Spring 
2001. The historic resources that sustained Daniel Boone, the 
original Cherokees, and generations of mountain people are 
being converted on a mammoth scale into flat, lifeless 
plateaus. The first time I ever flew over the area at about 
5,000 feet, I thought I would see a few scarred peaks. Instead, 
I saw the entire horizon filled with mountains with their tops 
blown off, huge lakes of toxic sludge, and piles of waste 
filling every valley around the mines. I was sick to my 
stomach.
    I came here today to bring attention to an Administration 
policy and a Corps of Engineers practice on valley fills that 
is completely misguided and gives no consideration to the 
generations to come. When I move back home to Kentucky to raise 
my family on my farm, I would like my kids to be able to swim 
and fish in the same places I did when I grew up. I ask you, as 
our leaders, to look beyond the political clout of the coal 
lobby and do what is right for the forgotten Appalachian 
region.
    In closing, I would like to personally invite each of you 
to take a flight with me over the coal fields and see firsthand 
how future generations are being robbed.
    Mr. Chairman, I thank you for your invitation to speak here 
today before the committee and for your willingness to bring 
this difficult issue to light. Thank you very much.
    [Applause.]
    Senator Lieberman. The hearing will come to order.
    Thanks, Mr. Richardson. Your testimony vindicated my 
confidence that you would add something to the hearing, and you 
did. You have unique personal appearance and strong testimony 
to offer, and I thank you for it.
    Senator Clinton, I thank you for being here. A cloture vote 
has started on the floor. We are under a threat of being closed 
off at 11:30. I wonder if we can do a tag team; I will run over 
now and vote and then come back. Next is Dr. Wallace and then 
Mr. Whitt. I will be right back. I really appreciate your being 
here.
    Senator Clinton [assuming the chair]. Thank you, Mr. 
Chairman.
    Dr. Wallace.

    STATEMENT OF J. BRUCE WALLACE, PROFESSOR OF ENTOMOLOGY, 
               UNIVERSITY OF GEORGIA, ATHENS, GA

    Mr. Wallace. Thank you. Senators, ladies, and gentlemen, 
thank you for the opportunity to offer testimony on changing 
definitions of fill as it relates to central and southern 
Appalachian streams. Judge Charles Haden has concluded that 
these changes can only be allowed to stand if the U.S. Congress 
alters the intent of the Clean Water Act and allows fills so 
that waste from mining operations can be deposited in headwater 
streams. Based on more than 30 years of experience of working 
in Appalachian stream, I strongly urge you not to allow such 
changes.
    The impacts of coal mining are significant and detrimental. 
We are burying streams and creating potential long-term 
environmental consequences as well as economic consequences 
that will haunt us into the future. Over 900 miles of 
Appalachian streams were buried between the years 1986 and 1998 
alone because of mountaintop removal and valley fill coal 
mining activities, and that is an underestimate because those 
values were made from maps that do not show all of the smaller 
streams.
    The significance of headwater streams is widely accepted by 
the scientific community, as demonstrated by an attached letter 
I submitted signed by 44 senior aquatic scientists as well as 
excerpts from a peer-reviewed publication. The message from the 
scientific community is clear: (1) headwater streams provide 
vital ecological goods and services, and (2) they are being 
destroyed at an extremely high rate by human activities.
    Much of the diversity of aquatic biota in the Appalachians 
is found in the small streams such as those being buried. These 
streams receive most of their energy inputs from leaves, wood, 
et cetera, called detritus, from surrounding forests. This 
organic detritus is stored and processed by biota and physical 
processes into smaller particles and dissolved organic matter. 
This material is subsequently transported downstream to serve 
as food for invertebrates and ultimately fish. Destroying the 
linkage between headwaters and downstream areas alters the 
availability of organic matter as fuel for downstream animals.
    One of the fundamental concepts of stream ecology is 
linkage of upstream to downstream segments. Former streams 
covered by valley fills no longer serve as a source of organic 
matter for downstream areas. Recent studies have shown that 
small streams in the drainage network are the sites of the most 
active uptake and retention of dissolved nutrients. Burying 
small streams results in increased downstream loading of 
nutrients and degradation of water resources and the loss of 
valuable ecosystem services.
    Our potable water supplies will be harmed many years into 
the future because of large increases in concentrations of 
several chemicals, as recently found by the USEPA below valley 
fills. The large increases in concentrations of chemical 
elements, which I show in Table I of the things I submitted 
earlier, combined with increased discharge below valley fills 
increases the rate of downstream nutrient loading. Altered 
chemistry, altered temperature regimes contribute to the 
elimination of many species of invertebrates. EPA studies have 
shown that many sensitive species are absent from streams below 
valley fills. Who pays for this long-term pollution of our 
waterways? Unfortunately, those of us who live downstream pay.
    This deliberation really boils down to short-term economic 
gain for long-term environmental degradation. However, the 
question should not be how can we extract coal resources with 
the minimum expense and maximum short-term profit for the 
mining companies. The question we should really be asking is 
how can we extract coal resources in a wise manner which 
ensures long-term environmental integrity, productive forests, 
unburied and unpolluted streams, and long-term productive 
economies for our children and grandchildren. Thank you for 
your attention.
    [Applause.]
    Senator Clinton. Thank you very much, Dr. Wallace.
    Mr. Whitt.

   STATEMENT OF MIKE WHITT, EXECUTIVE DIRECTOR, MINGO COUNTY 
            REDEVELOPMENT AUTHORITY, WILLIAMSON, WV

    Mr. Whitt. Thank you Senator Clinton, members of the 
committee. I appreciate the invitation to speak about this very 
important issue in southern West Virginia. I appreciate your 
willingness to learn about the positive projects that are 
coming to fruition in the southern West Virginia coal fields.
    The Mingo County Redevelopment Authority's mission is to 
create jobs, improve the quality of life, and increase the tax 
base throughout the next generation for the future of our 
children and grandchildren. We cannot meet these challenges 
unless mine sites are provided to us for the purposes of 
economic development.
    The Authority brought together a very diverse group of 
citizens to develop the Mingo County land-use master plan. The 
Mingo County commission approved this plan after holding a 
public hearing and receiving the citizen's input to this plan. 
Now, for the first time in history, we have a road map to 
achieve economic development opportunities. Any company who 
volunteers will be provided with this post-mine land-use that 
will ensure that we have economic development sites once mining 
is complete. Prior to our plan, Mingo County lost many economic 
development opportunities because most of the property that was 
mined was put back to the approximate original contour, leaving 
no suitable land for economic development. Our plan affords 
opportunities to change that.
    Through the leadership of the Authority, we have developed 
an excellent partnership with private and public sectors. Mike 
Callaghan, the Director of DEP, and Governor Bob Wise have been 
very instrumental in our efforts to encourage post-mine land-
use sites for proposed and ongoing surface mine activities. We 
have listened to the concerns of our citizens and one thing 
that everyone agrees on is the fact that we must diversify our 
economy. We must stop the cycle of schools being closed, we 
have lost 16 schools since 1991; good teachers having to leave, 
we have lost 120 teachers since 1993; major industry jobs 
vanishing, we lost over 800 jobs since 1990. Our county's 
population has dropped from 37,000 in 1980 down to 28,000 in 
the year 2000. That is a loss of over 1,800 students in our 
school systems.
    One of our schools, 95 percent of the kids qualify for the 
free lunch program. The best case scenario, we have in our 
county seat one of our high schools where over half of their 
kids qualify for the free lunch program. That is very 
disheartening. We have not done a very good job down there 
providing opportunities for our folks.
    The Redevelopment Authority has worked hard to form a team 
relationship between private and public sectors, and with the 
dedication of our board of directors we have achieved an 
excellent display of teamwork within our county. Everyone has 
come together to help save our county from economic 
devastation. We cannot wait to diversify the economy after the 
coal is depleted. We must diversify in conjunction with the 
ongoing and future mining activities, and our efforts must 
continue.
    I would like to mention some projects that have come to 
fruition utilizing opportunities that have been created by the 
mining industry. We had three projects on reclaimed surface 
mine land:
    The Wood Products Industrial Park. It is a $28 million 
capital investment. We have 90 employees there and expect 
another 100 by the end of this year. The first major 
diversification project ever in our county from coal.
    We have an Agriculture Demonstration Project. For the first 
time, our kids have a horticulture curriculum and now they are 
maintaining and operating this facility. It broadens their 
education values.
    The Twisted Gun Golf Course. The coal industry constructed 
an 18-hole PGA-type golf course, with a breathtaking view of 
our natural surroundings. This project will enhance our 
recreation opportunities.
    We have two projects utilizing underground mine water, and 
that has created a new industry in southern West Virginia, 
particularly in my county. We have a fish hatchery which 
hatches and raises arctic char fingerlings and a grow-out 
facility is now in operation. That is a $3.5 million investment 
from the private sector which takes arctic char fingerlings and 
grows them to market size, about two pounds. Pro Fish is the 
distributor of our arctic char in the Washington, DC. area and 
I would encourage you to try some for dinner. It is excellent.
    Some of our potential projects in conjunction with ongoing 
mining that will help diversify our economy, save millions of 
tax dollars, and enhance the quality of life for Mingo County 
citizens are:
    The King Coal Highway, I-73/74 corridor. In cooperation 
with the Department of Highways, the Department of 
Environmental Protection, and a local mining company, the coal 
industry plans to construct 5 miles of this road to rough grade 
and put two connectors in. That is an estimated savings of $90 
million of taxpayer money.
    We do not have an airport that will let any kind of 
corporate executive land there. In cooperation with Mingo 
County Airport Authority, the coal company has agreed to 
construct to rough grade an area to provide the county with an 
airport runway of 6,000 to 10,000 feet, with sufficient acreage 
for ancillary future development. That is an estimated savings 
of $30 million.
    As you can see, the mining industry and our efforts to 
diversify the economy in southern West Virginia are connected 
in a substantial manner. I am not a lawyer, I am not an 
engineer, and I am not a chemist. I am just a local citizen who 
loves my county and its citizens. We care about our kids and 
our grandkids and opportunities that are provided to them. We 
want a county that will allow people who have had to move away 
to come back home to live and work. We care about our schools 
and the opportunities provided to our kids. We are working hard 
to make southern West Virginia economically viable.
    The mining is necessary. The valley fills are needed for 
the continuation of surface, contour, and underground mining to 
create economic opportunities for Mingo County. We have found a 
solution to stop the downward plunge and it is not just a 
fleeting mission. It is reality. It is attainable. It works. We 
want it to continue.
    Now you have a better understanding of our situation, and 
we can see the importance of diversification during the mining 
process in southern West Virginia. If there is anything that I 
can do to help ensure that our progress is not hindered, please 
feel free to contact me. I, like Mr. Richardson, I would like 
to invite you down to my county and I will personally take you 
around and show you the progressive steps that we have made. 
Then you can make a decision for yourself if we are on the 
right track.
    I would like to leave you with a very powerful quote from 
former President John F. Kennedy. It sort of summarizes my 
county. The citizens down there is the first part, and I think 
the Redevelopment Authority and the teamwork we have put 
together is the second part of his phrase. He said: ``Some 
people see things as they are and ask why.''--and I am asked 
all the time why don't we have this kind of industry, or why 
don't we have this, and why don't we have that--``But I,'' I 
want to paraphrase here--``But [we] dream of things that never 
were and ask why not.'' We are answering the ``why nots'' down 
there right now. It has been very difficult. It is hard to turn 
a big ship around. But with your help and support, we are going 
to accomplish our goals.
    With that, I thank you for giving me time to testify before 
you today.
    Senator Clinton. Thank you very much, Mr. Whitt.
    Unfortunately, as you know, we have to end this hearing 
because of the disagreement that arose. I join Chairman 
Lieberman in thanking all of the panelists for being here, and, 
Mr. Richardson, we are very pleased that you were able to be 
part of this important hearing.
    I think we will keep the record open because we did not get 
a chance to ask any questions. I have to leave to go vote. If 
Senator Lieberman gets back, he will have maybe 5 minutes 
before he has to close the hearing down because of the 
objection of one of our members. So at this point, I will 
adjourn the hearing and ask if all of you would be available 
for us to submit written questions, since we did not get a 
chance to orally.
    I want to thank the audience which has come to demonstrate 
its concern, particularly everybody from West Virginia. I thank 
you very much for making the trip to be here. We look forward 
to working on this very difficult problem with you. I look 
forward to coming to see the area. I have enjoyed my visits to 
West Virginia and I look forward to coming back. Mr. 
Richardson, I will talk to Senator Lieberman and we may take 
you up on that offer to take a fly over and we will go over 
Kentucky as well as West Virginia and Tennessee and take a look 
at what is happening. Because the costs of this can no longer 
be borne by the people alone and we have to do more to make 
sure that we have a good relationship between economic 
development, which everyone knows is important, but if you do 
not protect the environment you are not going to have much of 
an economy in the future.
    So thank you all very much.
    [Applause.]
    Senator Clinton. The hearing is adjourned.
    [Whereupon, at 11:22 a.m., the subcommittee was adjourned, 
to reconvene at the call of the chair.]
    [Additional statements submitted for the record follow:]

  Statement of Benjamin H. Grumbles, Deputy Assistant Administrator, 
  Office of Water, U.S. Environmental Protection Agency and George S. 
 Dunlop, Deputy Assistant Secretary of the Army, Policy and Legislation

    Good morning, Mr. Chairman and members of the Committee. We welcome 
the opportunity to present joint testimony on the national implications 
of the recent Department of the Army (Army) and U.S. Environmental 
Protection Agency (EPA) Clean Water Act (CWA) rulemaking defining the 
terms ``fill material'' and ``discharge of fill material'' for the 
Section 404 program.
    In today's testimony, we will explain the rule, its history, and 
how it will result in more effective regulation of activities under the 
CWA, leading to a reduction in environmental impacts. We also will 
address the ramifications of the May 8, 2002, decision in Kentuckians 
for the Commonwealth, Inc. v. Rivenburgh [No. 2:01-770 (S.D.W.Va.)] for 
the rule and how the agencies intend to proceed. Army and EPA are 
committed to protecting this nation's aquatic resources consistent with 
the requirements of the CWA and the final fill rule enhances our 
ability to do just that.

                               BACKGROUND

    Before discussing the specifics of the rulemaking, let us first 
explain the underlying context. The definition of ``fill material'' has 
a long history that reflects the complexity associated with the 
purposes of the CWA. The CWA reflects a national commitment to protect 
the nation's aquatic resources, but it establishes that commitment in a 
context that also recognizes that our waters are used for a variety of 
purposes. The CWA establishes permitting programs that are designed to 
strike the appropriate balance between those competing purposes. The 
definition of ``fill material'' is indicative of the challenge that 
exists in ensuring that all of the goals of the CWA are met.
    The CWA governs the ``discharge'' of ``pollutants'' into 
``navigable waters,'' which are defined as ``waters of the United 
States.'' Specifically, Section 301 of the CWA generally prohibits the 
discharge of pollutants into waters of the U.S., except where such 
discharges are authorized under either CWA Section 404, which regulates 
the discharge of dredged or fill material, or CWA Section 402, which 
regulates all other pollutants under the National Pollutant Discharge 
Elimination System (NPDES) program.
    These two permit programs are designed to address different types 
of materials. In keeping with the fundamental difference in the nature 
and effect of the discharge that each program was intended by Congress 
to address, Sections 404 and 402 employ different approaches to 
regulating the discharges to which they apply. The Section 402 program 
is focused on (although not limited to) discharges such as wastewater 
discharges from industrial operations and sewage treatment plants, 
stormwater and the like. Pollutant discharges are controlled under the 
Section 402 program principally through the imposition of effluent 
limitations, which are restrictions on the ``quantities, rates, and 
concentrations of chemical, physical, biological and other constituents 
which are discharged from point sources into navigable waters'' [CWA 
Section 502(11)]. Section 402 permits must include effluent limitations 
that reflect treatment with available pollution control technology, and 
any more stringent limitations necessary to meet water quality 
standards for the receiving water [CWA Section 301(b)]. There are no 
statutory or regulatory provisions under the Section 402 program 
designed to address discharges that convert waters of the U.S. to dry 
land. Moreover, the Section 402 permitting process does not require an 
evaluation of alternatives to a proposed discharge or mitigation for 
unavoidable impacts.
    In contrast, the Section 404 permitting program does specifically 
contemplate the possible conversion of waters to non-waters and is 
designed, therefore, to evaluate and provide for ways to avoid, 
minimize, and compensate for the impacts of such conversions. Just 
because material is characterized as ``fill material'' does not mean 
that a Section 404 permit will necessarily authorize a particular 
discharge--the permit process carefully screens proposed discharges and 
applies the 404(b)(1) Guidelines, which provide a comprehensive means 
of evaluating whether any discharge of fill, regardless of its purpose, 
is environmentally acceptable. First, a discharge is categorically 
prohibited if it would significantly degrade a water of the United 
States. In addition, no discharge may be allowed if there is a less 
environmentally damaging practicable alternative to placing the 
material in waters of the United States. Finally, where there is no 
other alternative, the discharge may be allowed if the permit applicant 
has taken all practicable steps to minimize the amount of material 
discharged, and compensate for the remaining, unavoidable impacts 
through mitigation.
    This comprehensive environmental evaluation is specifically suited 
to addressing activities whose effect is to convert waters to dry land, 
because it ensures the associated habitat modification is avoided, 
minimized and compensated for to the maximum extent practicable. The 
sufficiency of this permitting process to provide appropriate 
environmental protection for waters of the U.S. does not depend on the 
purpose of the discharge of fill material. The Section 404(b)(1) 
Guidelines also provide for consideration of the effects of chemical 
contaminants on water quality in a number of ways, specifically 
requiring compliance with applicable State water quality standards [40 
CFR 230.10(b)(1)], toxic effluent limits or standards established under 
CWA Section 307 [40 CFR 230.10(b)(2)], and appropriate use of chemical 
and biological testing to evaluate contaminant effects [40 CFR 
230.11(d) and (e); 230.60]. However, because Section 404 was intended 
by Congress to provide a vehicle for regulating materials whose effects 
include the physical conversion of waters to non-waters or other 
physical alterations of aquatic habitat, the Section 404(b)(1) 
Guidelines go beyond such a water quality based approach to require 
careful consideration of the effects of the discharge on the aquatic 
ecosystem as a whole, as well as evaluation of alternatives to the 
discharge and measures to minimize and compensate for unavoidable 
adverse effects.
    Although Section 404 provides for the regulation of discharges of 
fill material, Congress did not define ``fill material'' in the Act, 
leaving it to the agencies to define the term consistent with the 
overall goals of the Act. Prior to 1977, the Corps and EPA had the same 
``fill material'' definition. We both defined ``fill material'' as 
``any pollutant used to create fill in the traditional sense of 
replacing an aquatic area with dry land or of changing the bottom 
elevation of a water body for any purpose. . . .'' [40 FR 31325 (July 
25, 1975); 40 FR 41291 (September 5, 1975)].
    In 1977, the Corps amended its definition of ``fill material'' to 
add a ``primary purpose test,'' which focused on whether the primary 
purpose of the material was to raise the bottom elevation of a water or 
convert wet to dry land. The definition also specifically excluded 
material that was discharged primarily to dispose of waste [42 FR 37130 
(July 19, 1977)]. This change was adopted by the Corps because it 
recognized that some discharges of solid waste materials technically 
fit the definition of fill material; however, the Corps believed that 
such waste materials should not be subject to regulation under the CWA 
Section 404 program.\1\ For example, the Corps sought to exclude the 
disposal of trash and garbage from regulation under section 404.
---------------------------------------------------------------------------
    \1\ The Corps' definition of ``fill material'' adopted in 1977 
reads as follows: (e) The term ``fill material'' means any material 
used for the primary purpose of replacing an aquatic area with dry land 
or of changing the bottom elevation of an [sic] water body. The term 
does not include any pollutant discharged into the water primarily to 
dispose of waste, as that activity is regulated under section 402 of 
the Clean Water Act.'' 33 CFR 323.2(e) (2001) (emphasis added).
---------------------------------------------------------------------------
    However, the definition of ``fill material'' is not just 
significant to the Section 404 program. Because Section 402 is 
applicable to all pollutants other than dredged or fill material, the 
definition of what does or does not constitute ``fill material'' 
impacts on the 402 program as well. Rather than change its regulations 
to adopt a ``primary purpose test'' similar to that adopted by the 
Corps, the EPA regulations retained a focus on the effect of the 
material (an ``effects-based test'') in determining whether a discharge 
would be subject to Section 404 or Section 402. The EPA regulations 
provided that any material that has the effect of raising the bottom 
elevation of a water body or converting wet to dry land is ``fill 
material.'' \2\ EPA retained the effects-based approach because it 
avoids the need to ascertain the ``purpose'' of a project in order to 
determine regulatory requirements, and ensures that discharges with 
similar environmental effects receive similar regulatory treatment.
---------------------------------------------------------------------------
    \2\ 40 CFR 232.2 defines ``fill material'' 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'' (emphasis added).
---------------------------------------------------------------------------
    Over time, the agencies began to see evidence that their differing 
definitions created uncertainty among both regulators and members of 
the regulated public. In 1986, the agencies entered into a Memorandum 
of Agreement (1986 MOA)\3\ in an effort to clarify when Section 402 
versus Section 404 was the appropriate framework. Nevertheless, there 
continued to be regulatory uncertainty.
---------------------------------------------------------------------------
    \3\ Memorandum of Agreement Between the Assistant Administrators 
for External Affairs and Water, U.S. Environmental Protection Agency, 
and the Assistant Secretary of the Army for Civil Works, Concerning 
Regulation of Discharges of Solid Waste Under the Clean Water Act.
---------------------------------------------------------------------------
    In addition, the purpose test lends itself to the possible 
exclusion of materials from Section 404 that are most commonly used for 
the very purpose of raising the elevation of an area (i.e., of filling 
a water of the U.S.) if the materials are a waste product of some other 
activity, and thus can lead to incongruous results. For example, some 
might argue that test would preclude the Corps from allowing the excess 
rock and dirt that is generated on road construction projects in steep 
slope areas to be used as ``fill material'' because it is a waste by-
product of that activity. Nevertheless, the very same material that is 
discharged under different circumstances would be generally regulated 
as fill material.
    The uncertainty caused by differing definitions, in general, and 
the ``primary purpose test,'' in particular, has also engendered 
litigation. We are concerned that if inconsistencies and ambiguities in 
the regulatory definitions of ``fill material'' are not corrected, 
further litigation will arise and future court decisions could reduce 
the ability of the CWA Section 404 program to protect the quality of 
the aquatic environment, and the overall public interest.
    The court decision that most clearly illustrates the serious 
problems caused by the ``primary purpose test'' is the Ninth Circuit 
Court of Appeals decision in Resource Investments Incorporated v. U.S. 
Army Corps of Engineers, 151 F.3d 1162 (9th Cir. 1998) (the RII case). 
This case involved a CWA Section 404 permit application for a solid 
waste landfill proposed to be built in waters of the U.S. located in 
the State of Washington. The Corps' Seattle District Engineer denied 
the Section 404 permit, on the grounds that a solid waste landfill at 
that location could contaminate an important ``sole source'' aquifer, 
and on the basis that environmentally safer, practicable alternatives 
were available to handle the region's solid waste. When the permit 
applicant sued, the District Court upheld the Corps' permit denial, but 
the Ninth Circuit Court of Appeals reversed.
    One of the Ninth Circuit's conclusions in the RII decision was that 
the ``primary purpose'' test in the Corps' definition of the term 
``fill material'' meant that the Corps could not require a CWA Section 
404 permit for pollutants that the applicant proposed to discharge into 
waters of the U.S. for construction of a proposed landfill. Based on 
the Corps' definition of fill material, the Ninth Circuit determined 
that the layers of gravel, low permeability soil, and synthetic liner 
that would underlie the solid waste landfill did not constitute ``fill 
material.'' The Court reasoned that the ``primary purpose'' of these 
materials (e.g., soil and gravel) to be placed in the waters of the 
U.S. was not to change the bottom elevation of a water body or replace 
an aquatic area with dry land, but to create a leak detection and 
collection system.
    The Ninth Circuit's decision in the RII case illustrates the 
inherent problems in the ``primary purpose'' test. In RII, the litigant 
was successful in excluding from regulation under the CWA Section 404 
program traditional fill material, by alleging an alternative primary 
purpose. Typically fill serves some purpose other than just creating 
dry land or changing a water body's bottom elevation. Thus, if this 
approach to interpreting the Corps' ``primary purpose test'' were to be 
taken to its extreme conclusion, the unreasonable end result could be 
that almost any traditional fill material proposed to be placed in 
waters of the U.S. does not need a Section 404 permit. Such an 
interpretation would be clearly contrary to the intent of Congress 
expressed in the plain words of CWA Sections 404 and 301, which require 
that any ``fill material'' to be placed in any water of the U.S. must 
be legally authorized by a permit under CWA Section 404.
    Similarly, Bragg v. Robertson, 54 F. Supp. 2d 563 (S.D. W. VA. 
1999) (and now the Rivenburgh case) are further evidence of how the 
uncertainty in the regulatory context resulted in a misinterpretation 
of the legal framework governing this program. In Bragg, despite its 
previous approval of a settlement agreement recognizing use of Section 
404 to regulate overburden, the District Court, in a decision 
addressing claims under State law, stated in dicta that under the then-
existing Corps regulations Section 404 was not the appropriate 
framework for regulating overburden because it was waste material. 
Although that decision was ultimately vacated by the Fourth Circuit 
Court of Appeals on jurisdictional grounds, the same court in its May 
8, 2002, decision in the Rivenburgh case went even further and 
concluded that the CWA itself did not contemplate regulation of waste 
discharges under Section 404. We will further discuss the Rivenburgh 
decision later in our testimony, but decisions such as these underscore 
why a clear statement of regulatory policy, which the agencies have 
attempted to do in our recent rule, is essential.
    For some time, there has been strong public concern surrounding the 
fill rule and related issues. In the past, both industry and 
environmental groups have urged the agencies to reconcile their 
differing definitions of ``fill material.'' Industry was frustrated by 
the confusion and additional time that was sometimes necessary to 
process applications as the agencies sorted out their different 
regulatory perspectives. At one time, environmental groups believed 
that EPA's effects-based approach to the definition of fill material 
was more environmentally protective and went so far as bring suit in 
1982 to have the Corps definition declared unlawful and invalid and to 
enjoin its implementation.

                          APRIL 2000 PROPOSAL

    For the reasons just characterized, the Clinton Administration, on 
April 20, 2000, proposed a joint rule to revise the Army and EPA 
regulations defining the term ``fill material.'' Consistent with the 
terms of the settlement agreement entered in the Bragg litigation 
between the Federal defendants and the plaintiffs, the proposal made 
clear that discharges into waters of the U.S. of coal mining 
overburden, and berms, dams, or roads associated with the sedimentation 
ponds would continue to be regulated as ``fill material.'' In 
developing the regulatory revisions, the Army and EPA sought to improve 
regulatory clarity in a manner that is generally consistent with EPA's 
long-standing definition and current practice. The goal was to maintain 
or improve existing environmental protections in a manner that would 
avoid major disruptions or reallocations of responsibilities between 
the ongoing Section 404 and 402 programs and to ensure that no new 
types of pollutant discharges would now become allowable. The approach 
adopted by the proposal, and ultimately the final rule, best protects 
the environment, minimizes potential program disruptions, and properly 
reflects the differing regulatory approaches established by Sections 
402 and 404 of the CWA.
    The proposal was to amend both the Army and EPA definitions of 
``fill material'' to provide a single definition of that term. The 
proposal, which was consistent with EPA's long-standing definition and 
the current practice of the agencies, would result in material that has 
the effect of filling waters of the U.S. being deemed ``fill material'' 
and thus subject to evaluation under the CWA Section 404(b)(1) 
Guidelines, which were specifically written to address material with 
that type of effect. At the same time, the proposal would have 
specifically excluded from the definition of ``fill material'' 
discharges subject to EPA proposed or promulgated effluent limitation 
guidelines and standards under CWA Sections 301, 304, and 306, or 
covered by a NPDES permit issued under CWA Section 402. The proposed 
revisions also contained a change to the definition of the term 
``discharge of fill material,'' in order to provide further 
clarification that landfill construction and placement of coal mining 
overburden are regulated under Section 404. In addition, the preamble 
to the proposal sought comment on whether to amend the Corps' 
regulations so as to provide a definition of ``unsuitable fill 
material'' that could not receive a Section 404 permit, and set out a 
potential definition for that term.
    The proposal originally was issued with a 60-day public comment 
period. However, in response to requests from the public, the agencies 
extended the comment period for an additional 30 days, providing a 
total comment period of 90 days, which closed on July 19, 2000. We 
received over 17,200 comments on the proposed rule, most of which 
consisted of identical or substantially identical e-mails, letters, and 
postcards opposing the rule and generated from websites that enabled 
the sender to submit an e-mail or fax by simply typing in their name 
and clicking a button. Approximately 500 of the comments consisted of 
more individualized letters, with a mixture of those comments 
supporting and opposing the rule.
    The comments of environmental groups and the various form letters 
were strongly opposed to the proposal, in particular, the elimination 
of the waste exclusion and the discussion in the preamble regarding 
treatment of unsuitable fill material. Except for several 
representatives of landfill interests, comments from the regulated 
community generally supported the proposal, in particular, the fact 
that the rule would create uniform definitions of ``fill material'' for 
the Corps' and EPA's rules and maintain regulation of certain 
discharges under Section 404 as opposed to Section 402 of the CWA.

                          MAY 2002 FINAL RULE

    The comments on the April 2000 proposal addressed a number of 
issues briefly discussed below, including adoption of a single 
consistent EPA and Corps definition of ``fill material,'' the use of an 
effects-based test for defining ``fill material,''and the elimination 
of the waste exclusion from the Corps' definition. This latter issue 
was a matter of particular concern to the environmental community.
    With regard to adoption of a single EPA and Corps definition, the 
majority of the comments from both the environmental and industry 
perspectives expressed the general view that the agencies should have 
the same definitions for the key jurisdictional terms ``fill material'' 
and ``discharge of fill material.'' Many such comments also noted that 
the differences between the Corps' and EPA's rules have historically 
caused confusion for the regulated community. The final rule, like the 
proposal, provides for a consistent Corps and EPA definition of these 
key terms.
    Most of the comments that addressed use of an effects-based test 
for defining ``fill material'' expressed support for its use, as well 
as for elimination of the ``primary purpose'' test from the Corps' 
definition. However, there were some commenters who disagreed with such 
an approach. They gave a variety of reasons for their opposition, 
believing elimination of the primary purpose test from the Corps' 
definition was unnecessary, that purpose-based tests were successfully 
used in other statutes and elsewhere in the Section 404(b)(1) 
Guidelines, that alternative ways of resolving the issue without a rule 
change were available, and that the proposal represented an expansion 
of Section 404 jurisdiction.
    We carefully considered such comments, but concluded that the 
objective standard created by an effects-based test will yield more 
consistent results in determining what is ``fill material'' and will 
provide greater certainty in the implementation of the program. An 
objective, effects-based standard also helps ensure that discharges 
with similar environmental effects will be treated in a similar manner 
under the regulatory program. As previously discussed, the subjective, 
purpose-based standard led in some cases to inconsistent treatment of 
similar discharges, a result which hampers effective implementation of 
the CWA. In addition, despite previous efforts to resolve the 
uncertainties resulting from the differing Corps and EPA definitions 
without rulemaking (e.g., the 1986 MOA), regulatory uncertainties 
continued to arise. Thus, the final rule, like the proposal, uses an 
effects-based approach to provide a single definition of the term 
``fill material.''
    In particular, the final rule defines ``fill material'' as material 
placed in waters of the U.S. where the material has the effect of 
either replacing any portion of a water of the United States with dry 
land or changing the bottom elevation of any portion of a water. This 
approach is similar to EPA's long-standing definition of the term 
``fill material.'' For purposes of increased clarity, the final rule 
also contains specific examples of ``fill material'' including rock, 
sand, soil, clay, plastics, construction debris, wood chips, overburden 
from mining or other excavation activities, and materials used to 
create any structure or infrastructure in waters of the U.S.
    With regard to elimination of the waste exclusion from the Corps' 
definition, comments from the environmental community and general 
public strongly opposed its elimination. Some of these comments 
recommended that the agencies include in the regulation a general 
exclusion from the definition of ``fill material'' for any discharge of 
``waste.'' Some commenters expressed the view that deletion of the 
waste exclusion language from the Corps' regulations violates the CWA, 
and pointed to the decisions in RII and Bragg to support that view. 
Many of these comments acknowledged, however, that when waste is 
discharged for a purpose other than mere disposal, (e.g., to create 
fast land for development), review under the Section 404 permit process 
in accordance with the Section 404(b)(1) Guidelines adequately protects 
the environment and is consistent with the CWA.
    We believe that a categorical exclusion for waste would be over-
broad, and the final rule thus does not contain such an exclusion. 
Simply because a material is disposed of for purposes of waste disposal 
does not, in our view, justify excluding it categorically from the 
definition of ``fill material.'' Some waste (e.g., mine overburden) 
consists of material such as soil, rock and earth, that is similar in 
its characteristics and effects to ``traditional'' fill material used 
for purposes of creating fast land for development. In addition, other 
kinds of waste having the effect of fill (e.g., certain other mining 
wastes, concrete, rubble) also can be indistinguishable either upon 
discharge or over time from structures created for purposes of creating 
fast land. Given the similarities of some discharges of waste to 
``traditional'' fill, we declined to categorically exclude all wastes 
from the definition, allowing the appropriateness of the material to be 
assessed in the permit review process. The final rule, however, was 
modified in light of the comments to specifically exclude trash or 
garbage.
    The proposed rule's preamble addressed a related issue of whether 
to define ``unsuitable fill material,'' and contained an example 
definition of that term. The comments on that proposal expressed almost 
unanimous opposition to this ``unsuitable fill material concept,'' in 
some cases viewing it as too limited and an inadequate substitute for 
the elimination of the waste exclusion, in others' opinion, leaving too 
much discretion as to what is ``unsuitable fill material,'' and 
impermissibly rejecting materials out of hand that might be acceptable 
when actually evaluated under the permitting process.
    However, many of the comments received did assert that various 
types of trash or garbage are not appropriate to use, as a general 
matter, for fill material in waters of the U.S. We believe these 
impacts can be generally avoided because there are alternative clean 
and safe forms of fill material that can be used to accomplish project 
objectives and because there are widely available landfills and other 
approved facilities for disposal of trash or garbage. In light of this, 
the final rule was modified to add an exclusion of trash and garbage 
from the definition of ``fill material.''
    In addition to the foregoing issues, the final rule itself, unlike 
the proposal, does not contain an exclusion from ``fill material'' for 
discharges covered by effluent limitation guidelines or standards or 
NPDES permits. This change was made in light of comments expressing 
concern that the proposed rule language regarding the exclusion was 
susceptible to differing interpretations and would result in 
uncertainty with respect to the regulation of certain discharges. 
However, while the language in question does not appear in the final 
rule itself, the preamble does emphasize that the effects-based 
definition is consistent with EPA's long-standing approach to defining 
fill material, and generally is intended to maintain our existing 
approach to regulating pollutants under either Section 402 or 404 of 
the CWA. In particular, as noted in the preamble, the final rule does 
not change any determination EPA has made regarding discharges that are 
subject to effluent limitation guidelines and standards, which will 
continue to be regulated under Section 402 of the CWA. In addition, the 
preamble notes the final rule does not alter the manner in which water 
quality standards currently apply under the Section 402 or the Section 
404 programs.
    With regard to solid waste landfills and the RII case, comments 
from the regulated community asserted that the regulation under Section 
404 of discharges for creation of infrastructure associated with solid 
waste landfills (e.g., roads, liners, berms, dikes) was inconsistent 
with the court's decision in RII. However, as explained in considerable 
detail in the preamble to the final rule, we do not agree, and instead 
believe that an effects-based test is the appropriate means of 
evaluating whether a pollutant is ``fill material.'' Like the proposal, 
the final rule thus makes clear that discharges having the effect of 
raising the bottom elevation of a water or replacing water with dry 
land, including fill used to create landfills such as liners, berms and 
other infrastructure associated with solid waste landfills are 
discharges of fill material subject to the Section 404 program. These 
types of discharges have been consistently subject to regulation under 
Section 404, and the final rule clarifies that the important 
environmental protections of the Section 404 program continue to apply 
to such discharges.

           RELATIONSHIP OF RULEMAKING AND MOUNTAINTOP MINING

    We recognize that this rulemaking has been the subject of 
considerable public attention and controversy, largely because 
opponents of the practice of mountaintop mining have viewed this issue 
as an opportunity to halt that practice. Notably, neither this rule nor 
the CWA are the principal vehicle provided by Congress for regulating 
mountaintop mining activities. Rather, the responsibility was delegated 
to the Secretary of the Interior, through the Office of Surface Mining, 
under the Surface Mining Control and Reclamation Act (SMCRA). 
Nevertheless, this rulemaking has been incorrectly painted as being 
designed to facilitate the continuation of mountaintop mining. In 
actuality, it was undertaken in light of years of past experience in 
order to enhance regulatory clarity and improve environmental 
protection. However, because this rulemaking has been depicted as 
linked to promotion of mountaintop mining, we would like to take this 
opportunity to briefly discuss the Administration's efforts to provide 
for more effective and environmentally sound management of that 
practice under the existing regulatory framework.
    Consistent with the Bragg settlement agreement, we are continuing 
to develop a programmatic Environmental Impact Statement (EIS) that 
will consider appropriate changes to agency policies, guidance, and 
coordinated agency decisionmaking processes to reduce the adverse 
environmental effects to waters of the U.S. and to fish and wildlife 
resources from mountaintop mining operations, and to other 
environmental resources that could be affected by the size and location 
of fill material in valley fill sites. This is an inter-agency activity 
being undertaken by EPA, the Corps, the Office of Surface Mining (OSM), 
and the U.S. Fish and Wildlife Service (FWS), in cooperation with the 
State of West Virginia.
    In addition, on January 15, 2002, the Corps modified nationwide 
Permit 21 (NWP 21), which is the CWA Section 404 general permit most 
often used to authorize discharges of dredged or fill material 
associated with surface mining activities. Under the revised NWP, the 
District Engineer will make a specific determination on a case-by-case 
basis that the proposed activity complies with the terms and conditions 
of the NWP and that adverse effects to the aquatic environment are 
minimal both individually and cumulatively. Under revised NWP 21, the 
Corps also has clarified that it will require appropriate mitigation 
for impacts to aquatic resources.
    In light of regional concerns about impacts in Appalachia from 
surface mining activities, Corps Headquarters has requested the 
relevant District Engineers to establish regional conditions in 
Appalachian States on the use of NWP 21 that are consistent with the 
provisions of the Federal District court approved settlement in the 
Bragg litigation in West Virginia, which generally limits use of NWP 21 
for valley fills to watersheds draining 250 acres or less. As part of 
this, the Corps will make a project-specific evaluation of the 
cumulative loss of aquatic resources within the affected watershed. We 
believe these NWP changes, and continued development of the 
programmatic EIS, will further improve environmental protection with 
regard to surface mining activities in Appalachia.
    In addition to the CWA-related activities described above, the 
Office of Surface Mining is responsible for developing the rules that 
govern mountaintop removal coal mining under the Surface Mining Control 
and Reclamation Act (SMCRA). Most Appalachian States administer these 
rules through programs delegated to them by OSM.

                          RIVENBURGH DECISION

    The regulatory uncertainty associated with the differing Corps and 
EPA fill material definitions most recently has arisen again in 
Kentuckians for the Commonwealth, Inc. v. Rivenburgh, in which 
plaintiff challenged a Corps' Section 404 authorization under the then-
existing regulations for the discharge of overburden associated with a 
mountaintop mining coal operation. Following initiation of this 
lawsuit, the plaintiff moved for summary judgment on several grounds, 
including the claim that the Corps lacked authority under the then-
existing Corps definition of fill material to authorize the placement 
of valley fill in waters of the U.S. for purposes of waste disposal. 
The government argued that the Corps' longstanding practice of 
regulating valley fills under Section 404 was consistent with the CWA, 
particularly in light of EPA's then-existing definition of fill 
material as any pollutant that replaces a water with dry land or raises 
the water's bottom elevation for any purpose. On May 6, the Government 
informed the court that the Corps and EPA had completed rulemaking 
reconciling the agencies' differing definitions which adopted an 
effects-based approach to defining the term.
    On May 8, 2002, the court issued a decision finding that the Corps 
lacks the statutory authority to regulate any material discharged 
solely for purposes of waste disposal. While the new regulation was not 
challenged in this case, the court nonetheless stated that it was 
inconsistent with the CWA and exceeded the agencies' legal authority. 
The court decision enjoins the Corps from ``issuing any further Sec. 
404 permits that have no primary purpose or use but the disposal of 
waste.''
    We believe that the court misconstrued the CWA and its legislative 
history. EPA and the Corps explained in detail in the recent rulemaking 
the legal and policy basis for the agencies' revised definition of fill 
material, and we continue to believe that new definition is in full 
accord with the CWA. In light of this, USDOJ has requested a stay of 
the court's injunction because its economic and social impacts warrant 
such a stay pending appeal. In addition, we have argued we will likely 
prevail on the merits because (1) the Corps does have authority to 
issue permits under CWA 404 to allow for the discharge of mining 
overburden; (2) the court's approval of the Settlement Agreement in 
Bragg bars relitigation of that issue; and (3) the Court's injunction 
is overly broad. We also have requested that the court clarify the 
scope of its injunction. In addition, intervenors, including the 
Kentucky Coal Association, have moved to stay the injunction. 
Plaintiffs oppose the stay and seek to expand the injunction. Briefing 
was completed on May 28 and we are monitoring a decision now.

                               CONCLUSION

    This rulemaking is about the need to reconcile differing regulatory 
definitions so as to provide consistency and regulatory predictability. 
In order to achieve that goal, the definition adopted is fully 
consistent with EPA's existing definition and the Corps' longstanding 
practice, and further ensures that material with the effect of filling 
waters of the U.S. is regulated under the regulatory regime best 
designed to deal with those effects--Section 404 of the CWA. This 
concludes our testimony and we would be pleased to answer any questions 
you might have.
                                 ______
                                 
        Responses by Benjamin H. Grumbles and George S. Dunlop 
             to Additional Questions from Senator Lieberman

    Question 1a. In your testimony, you described the revised 
definition of fill material as ``consistent with the current practice 
of the agencies.'' According to the final rule, examples of wastes now 
eligible for Sec. 404 permits include, but are not limited to ``rock, 
sand, soil, clay, plastics, construction debris, wood chips, [and] 
overburden from mining or other excavation activities'' in addition to 
``placement of overburden, slurry, or tailings or similar mining-
related materials'' are also to be permitted.
    Does the Corps currently allow all of the types of waste material 
listed in the new definition to be permitted under Sec. 404?
    Response. Both under prior and current regulatory definitions, a 
project proponent could apply for Sec. 404 permit to discharge any of 
these materials into waters of the U.S.; however, the discharge of 
these materials would not be authorized without a thorough review of 
their potential impacts on the environment, as well as other aspects of 
the public interest. Authorization would have to be conveyed either 
through compliance with a Corps Nationwide Permit or Regional General 
Permit, the terms and conditions of which are designed to ensure that 
impacts are no more than minimal, or through an individual permit 
process in which the effects are individually assessed. Please note 
that the revised definition of the term ``fill material'' only 
describes the materials that qualify for regulation under Sec. 404. It 
does not confer any inherent authorization. All requirements of the CWA 
fully apply to the review of applications for Sec. 404 permits.

    Question 1b. Please provide the Committee with copies of all 
individual and nationwide permits it has issued in the past 5 years 
that allow these wastes to be placed in waters of the U.S. as ``fill.''
    Response. The Corps maintains centralized permit data on the 
acreage of waters of the U.S. that of any fill material, we can not 
provide this information in response to this request, or the several 
that follow. Although Corps District Offices might be able to produce 
copies of the requested permits, this would have to be accomplished 
through hand-searches of several hundred thousand file documents, which 
would be prohibitively time-consuming and expensive.

    Question 1c. Using your most recent available data, how many acres 
of wetlands, ponds and lakes and miles of streams and rivers does the 
Corps annually permit to be filled by coal mining overburden waste 
material?
    Response. See response to 1b above.

    Question 1d. Using your most recent available data, how many acres 
of wetlands, ponds and lakes and miles of streams and rivers does the 
Corps annually permit to be filled by hardrock mining tailings or 
similar mining-related materials?
    Response. See response to 1b above.

    Question 1e. Using your most recent available data, how many acres 
of wetlands, ponds and lakes and miles of streams and rivers does the 
Corps annually permit to be filled by other excavation waste material?
    Response. See response to 1b above.

    Question 1f. Using your most recent available data, how many acres 
of wetlands, ponds and lakes and miles of streams and rivers does the 
Corps annually permit to be filled by construction and demolition 
debris?
    Response. See response to 1b above. In addition, we know from 
experience that the inclusion of construction and demolition debris as 
fill material is not uncommon. Demolition debris such as brick, 
concrete, and various quarry products is often used as stable fill 
material in both aquatic and non-aquatic construction projects.

    Question 1g. Using your most recent available data, how many acres 
of wetlands, ponds and lakes and miles of streams and rivers does the 
Corps annually permit to be filled by waste wood chips?
    Response. See response to 1b above.

    Question 1h. Using your most recent available data, how many acres 
of wetlands, ponds and lakes and miles of streams and rivers does the 
Corps annually permit to be filled by slurry waste material?
    Response. See response to 1b above.

    Question 2a. As the new definition states, this is not an 
exhaustive list. What other types of wastes does the Corps already 
permit to be dumped into waters as fill?
    Response. Under the former Corps purpose-based definition of fill 
material, any material proposed for a construction-related purpose 
would have qualified for consideration for a Section 404 permit, 
regardless of whether or not it was a `waste' by-product of some other 
activity.

    Question 2b. The preamble to the final rule even states that wastes 
that may be ``chemically contaminated'' would be eligible for a 
Sec. 404 permit. What chemically contaminated wastes does the Corps 
currently permit to be placed in waters under the Sec. 404 program?
    Response. The discharge of chemically contaminated dredged material 
into waters of the U.S. has long been eligible for authorization under 
Sec. 404 provided the discharge will comply with the applicable 
environmental criteria. Although the Corps is obliged to accept such 
applications, the subsequent permit process normally focuses on the use 
of appropriate material testing (e.g., chemical and biological tests) 
to identify the potential for adverse physical, chemical and biological 
effects associated with the proposed discharge, and on exploring 
methods of avoiding or ameliorating these adverse effects. If there is 
reasonable assurance that adverse effects can be sufficiently avoided, 
including chemically contaminated materials that are proposed for 
discharge into waters of the U.S. as fill under the new definition.

    Question 3. Did either of your agencies do an assessment of all the 
likely or potential sources and amounts of all waste streams that 
would, under the new definition, qualify for disposal as fill material 
in waters of the U.S.? Please provide the Committee a list of the 
universe of potential waste dischargers under the definition and the 
amount of waste they generate each year.
    Response. It is important to recognize that there were two 
definitions of ``fill material'' at issue when this rulemaking was 
undertaken. EPA's long-standing definition already used an effects-
based test to define fill material. Thus, the new rule, which also uses 
an effects-based test, generally does not alter status quo from the 
perspective of EPA's previous definition. The Corps' previous 
definition used a primary purpose test in defining fill material. As a 
result, the very same material being discharged as fill material in one 
circumstance, under the Corps definition, would not be deemed fill 
material when discharged for the primary purpose of waste disposal. The 
consequence is that under the purpose-based definition virtually any 
discharge or material has the potential to be either fill material or 
excluded waste depending on the purposes/intentions of the discharger. 
As explained in the preambles to the proposed and final rules, the 
agencies undertook this rulemaking to eliminate uncertainties 
associated with such a purpose-based test and to eliminate differences 
in the agencies' definitions in a manner consistent with their general 
practice in program implementation. In light of the above, we did not 
definitions of a key jurisdictional term.

    Questions 4a-b. You testified ``[s]ome waste (e.g., mine 
overburden) consists of material such as soil, rock and earth, that is 
similar in its characteristics and effects to `traditional' fill 
material used for purposes of creating fast land for development. In 
addition, other kinds of waste having the effect of fill (e.g., certain 
other mining wastes, concrete, rubble) also can be indistinguishable 
either upon discharge or over time from structures created for purposes 
of creating fast land.''
    Do the agencies agree or disagree that allowing mining overburden, 
other mining wastes, concrete, rubble, construction and demolition 
debris, tailings, slurries and other materials placed in waters for the 
purpose of waste disposal will result in more streams, wetlands and 
other waters being filled than if these materials were not permitted in 
waters for disposal purposes?
    How many more acres of wetlands, ponds and lakes and miles of 
streams and rivers will be filled with waste under the new rule as 
compared to a rule that retained (and enforced) a waste disposal 
exclusion?
    Response. As we have indicated, the agencies do not believe that 
the revised rule will significantly alter current practice or result in 
more regulated waters being filled than was the case prior to the 
rulemaking. In fact, the agencies continue to take steps to improve the 
implementation of the Section 404 program in an effort to enhance 
protection for the Nation's waters. The Corps is currently moving to 
adopt regional conditions on the use of NWP 21 in Appalachian states 
consistent with the Bragg settlement agreement currently in place in 
West Virginia until the interagency stream assessment protocol is 
available for use throughout the entire Appalachian region. Since those 
limits were adopted in West Virginia in 1998, as indicated in our 
testimony the average size and number of valley fills has been reduced 
by nearly 25 percent. In addition, the agencies will continue to 
prepare their programmatic environmental impact statement evaluating 
the environmental effects of mountaintop coal mining practices in 
Appalachia. As a ``programmatic'' evaluation, the EIS is intended to 
identify areas where we can improve the implementation of Federal 
programs under the Surface Mining Control and Reclamation Act (SMCRA) 
and the Clean Water Act (CWA) applicable to the environmental review 
and permitting of surface coal mining operations. We are confident that 
this EIS will provide the technical and scientific bases to implement 
more effective measures for protecting human health and the 
environment.

    Question 5a. When asked by a reporter on April 22 about the then-
imminent rule change Administrator Whitman stated that the rule change 
``would codify what's going on and wouldn't allow any new activity . . 
. it wouldn't allow anything new, any new operations.'' (Emphasis 
added.)
    What did the Administrator mean by that?
    Response. The Administrator's quote is emphasizing two key aspects 
of the ``fill material'' rule that were discussed in the preamble to 
that rule and our recent testimony before the Subcommittee. First, the 
rule does not substantively alter the agencies' current regulatory 
practice. In adopting EPA's longstanding effects-based approach for 
defining fill, the agencies' intent was to minimize changes in the 
nature of discharges that were being regulated under the Section 404 
and 402 permit programs. Moreover, the agencies' revision to the 
definition of fill material is not intended to allow any new categories 
of discharges to take place. The Administrator's statement is 
consistent with these two points.

    Question 5b. Is EPA saying that not a single new individual, 
company or industry will seek to take advantage of this rule change to 
apply for waste disposal permits from the Army Corps in any water of 
the U.S.? That no waste fill will occur in any waterway not already 
filled? Is that what EPA means by ``no new activity?''
    Response. Any party may seek to apply for a permit under Section 
404 that does not mean any party will obtain a Section 404 permit, 
because the environmental criteria under Section 404 and the Corps 
public interest review must be satisfied. Nonetheless, for the first 
time, the rule clarifies that the term ``fill material'' does not 
include trash or garbage. The Corps will, however, continue to accept 
applications under Section 404 for proposed discharges of material that 
fall under the definition of ``fill.'' The characterization of ``no new 
activity'' means, as we have previously stated, that the rule change 
will not generally allow new categories of discharges to take place.

    Question 6a. NEPA requires agencies of the Federal Government to 
prepare an environmental impact statement (``EIS'') for all ``major 
Federal actions significantly affecting the quality of the human 
environment'' including ``new or revised agency rules, regulations, 
plans, policies, or procedures.'' NEPA requires that the environmental 
impacts of a major Federal action must be evaluated before the agency 
decides whether or how to proceed.
    I am concerned that the Corps appears not to have complied with 
these basic requirements of NEPA. It did not prepare an environmental 
impact statement for this rule despite its nationwide effect and the 
obvious harm caused when wastes bury waters. Instead, the Corps 
prepared an Environmental Assessment (EA) concluding--without reference 
to anything other than its own unsubstantiated assertions--that the 
rule change does not constitute a major Federal action significantly 
affecting the quality of the human environment. Not a single study or 
fact about the environmental effects of this rule is cited to support 
this conclusion.
    Please provide the committee with copies of all studies, reports, 
data or other facts relied on to support the claim that the rule change 
will have ``no significant effect on the human environment.''
    Response. First, as previously noted, the rule does not 
substantively alter current regulatory practice. Furthermore, the Corps 
concluded that since the rule change only defines the kinds of 
materials that are subject to regulation under Sec. 404 of the CWA as 
``fill material,'' it does not authorize any activity, or cause or 
allow any change in the environment. Effects on the human environment 
may occur when the new definition is applied in actual Sec. 404 permit 
situations, when the issuance of the Corps permit is actually being 
contemplated. At those times, regulated activities that the Corps 
intends to authorize under Sec. 404, including the discharge of 
materials that qualify as 'fill material' under the new definition, are 
subject to applicable NEPA requirements. The definition change does not 
convey any exemption from NEPA requirements in any Sec. 404 situation. 
In light of this, determination regarding whether an EIS will be 
required typically does not take place until all project modifications 
designed to avoid, minimize and mitigate potential adverse effects on 
the environment have been considered--the point at which the 
prospective environmental effects are no longer merely speculative. 
believes that, in the same way, determinations related to the need for 
an EIS should be conducted at the point where the new definition of the 
term ``fill material'' is actually applied in a permit situation, when 
actual environmental effects are reasonably predictable.

    Question 6b. The EA states one of the reasons the Corps concluded 
it did not need to do an EIS is that the rule change would be 
consistent with current agency practice. Please provide the committee 
with copies of all studies, reports, data or other facts relied on to 
support the claim that all of the waste materials that would be allowed 
to be disposed of in waters under the new rule are already permitted by 
all Corps districts under the Sec. 404 program.
    Response. The statement referred to was based on the considered and 
informed professional judgment of the Corps officials who prepared and 
approved the rule under discussion. Collectively, these officials have 
decades of experience in overseeing and directing the implementation of 
the Section 404 regulatory program. This experience includes frequent 
contact with District-level personnel regarding issues that arise in 
individual permit applications and preparation of periodic regulatory 
guidance to ensure consistent practice across Districts. Also see 
response to 6a.

    Question 6c. Please provide any legal analyses or court decisions 
relied on by the Corps in preparing the EA that support the theory that 
a change in long-standing regulations, even if ``consistent with agency 
practice,'' does not require a true environmental analysis--one that 
actually analyzes the effects on the environment--or an EIS.
    Response. As explained in the proposed and final rule's preamble, 
the new definitions are consistent with EPA's long-standing effects-
based definition and are generally consistent with current practice. 
Moreover, the revised definitions do not authorize or allow any 
discharges to waters of the U.S., or cause environmental effects of any 
sort. These facts fully support decision not to prepare an EIS for the 
rulemaking. See response to 6a for further discussion.

    Question 6d. The EA states one of the reasons the Corps concluded 
it did not need to do an EIS is that the Corps prepares an EIS for each 
of its permit decisions. Currently, what percentage of permits and 
approvals for activities under the Sec. 404 program are subject to an 
EIS? What percentage of the approvals under the nationwide permit 
program are subject to an EIS? Currently, the Corps is working on a 
draft programmatic EIS for the NWP program. Does this programmatic EIS 
study the environmental effects of allowing waste materials, including 
but not limited to coal mining wastes, to be placed in waters as 
``fill''?
    Response. As stated in the EA, the Corps prepares appropriate NEPA 
documentation for all of its permit decisions. The percentage of Corps 
Sec. 404 permit authorizations that require the preparation of an EIS 
under NEPA is low (i.e., less than 1 percent). This is because most 
permitted activities do not result in significant environmental impacts 
and hence do not require an EIS under NEPA. However, all permit 
decisions are subject to NEPA requirements. It is through the 
application of these requirements that the need for an EIS, or other 
appropriate NEPA documentation is decided.
    The purpose of that programmatic EIS is to evaluate the NWP program 
processes and procedures to ensure that NWP program authorizes only 
those activities with minimal adverse effects on the aquatic 
environment, individually and cumulatively. The programmatic EIS will 
also examine and compare programmatic and procedural alternatives to 
the NWP program. However, the programmatic EIS does not examine impacts 
associated with specific NWPs, or impacts of individual activities 
authorized by NWPs. The Corps, together with EPA and other Federal and 
State agencies, is also developing a programmatic EIS on mountaintop 
mining/valley fills to provide environmental impact information as well 
as recommendations for appropriate program revisions to address these 
impacts and strengthen environmental protection.

    Question 7. You state in your testimony ``The CWA reflects a 
national commitment to protect the nation's aquatic resources, but it 
establishes that commitment in a context that also recognizes that our 
waters are used for a variety of purposes. The CWA establishes 
permitting programs that are designed to strike the appropriate balance 
between those competing purposes. ``
    Section 301 of the Act prohibits the discharge of pollutants into 
waters of the U.S., except where such discharges are authorized under 
either Sec. 402 or Sec. 404.
    Is it your testimony that all types of discharges of pollutants 
into the nation's waters are to be allowed under one of the permitting 
programs, but that no categories of discharges--such as filling waters 
completely with waste materials--should be flatly prohibited under 
Sec. 301 and the goal of protecting the integrity nation's waters?
    Response. We agree that Section 301 prohibits discharges except 
where such discharges are authorized under either Sec. 402 or Sec. 404. 
Our testimony did not indicate that all types of discharges are 
allowable under the CWA, but rather that the permitting programs are 
designed to evaluate when the discharge of certain pollutants may be 
appropriate. Specifically, the Section 402 program is not designed to 
address discharges that have the effect converting waters of the U.S. 
to dry land, nor does it require an evaluation of alternatives to a 
proposed discharge or mitigation for unavoidable impacts. In contrast, 
the Section 404 permitting program is designed to address the potential 
conversion of waters to non-waters and thus specifically addresses such 
effects as well as ways to avoid, minimize, and compensate for such 
impacts. Because of such provisions, Section 404, is the appropriate 
regulatory regime for discharges that have the effect of filling waters 
of the U.S.

    Question 8. One of the goals of the Clean Water Act is to eliminate 
the discharge of pollutants into waters of the U.S., including the 
discharge of dredged materials into waters as soon as possible. The 
permitting programs are exceptions to the ``no discharge'' goal, but 
clearly Congress intended discharges would not just be permitted to 
continue but that they would be eliminated whenever technically 
feasible. Discharges that threaten the physical, chemical and 
biological integrity of waters should not be allowed. How does your 
recent change to the definition of fill help to achieve this goal?
    Response. The revised definition of fill material is generally 
consistent with EPA's long-standing effects-based approach and past 
regulatory practice. Moreover, because various types of trash or 
garbage are generally not appropriate to use for fill material in 
waters of the U.S., and landfills and other approved facilities for 
disposal of trash or garbage are widely available, the final rule was 
modified to add an exclusion of trash and garbage from the definition 
of ``fill material.'' Section 404 and its implementing regulations 
provide for evaluation of impacts associated with filling waters of the 
U.S., as well as whether there are practicable alternatives to such 
discharges, and authorize discharges only where they will not cause or 
contribute to significant environmental degradation. The revised 
definition of ``fill material'' is consistent with the goals of the 
Act, and as indicated in our testimony, the use of an objective 
``effects-based'' standard will yield more consistent results in 
determining what is ``fill material'' and provide greater certainty in 
the implementation of the Act.

    Question 9. Federal regulations require the States to designate 
water quality standards, which include appropriate water uses that are 
to be achieved and protected. 40 C.F.R. Sec. 130.3. A state may not 
adopt water quality standards that are less stringent than the Federal 
standards established by the Clean Water Act. This is because the Clean 
Water Act ``provides a Federal floor, not a ceiling on environmental 
protection.'' Dubois v. U.S. Dept. of Agriculture, 102 F.3d 1273, 1300 
(1st Cir. 1996), cert. denied, 521 U.S. 1119 (1997). Thus, Federal 
water quality standards are the floor below which state water quality 
standards may not fall. Federal regulations clearly state that ``[i]n 
no case shall a State adopt waste transport or waste assimilation as a 
designated use for any waters of the United States.'' 40 C.F.R. 
Sec. 131.10(a). As a result, no waters of the United States, regardless 
of their location, may be used for waste transport or assimilation.
    How do EPA and the Corps reconcile the new rule--which would allow 
so much waste in waters that the waters are buried--and the Federal 
rule forbidding waste transport or waste assimilation as a designated 
use for any water?
    Response. The definition of fill material clarifies what types of 
material are subject to the Section 404 permitting program and does not 
alter State water quality standards or Federal water quality standards 
regulations dealing with designated uses. Section 404 was designed to 
address discharges that have the effect of filling waters of the U.S., 
i.e., converting waters to non-waters. In adopting Section 404, 
Congress recognized that such filling of waters could be permitted, but 
wanted to ensure that it was conducted in a manner that minimized 
adverse environmental impacts. This is why, among other provisions, the 
Act requires that before a Section 404 permit can be issued, any 
potentially affected state must certify that the permit will not result 
in a violation of its water quality standards. The revised regulation 
does not, in any way, alter this requirement. Under the revised 
regulation, as previously stated, discharges of material that have the 
effect of filling waters of the U.S. are only allowed if all relevant 
provisions of the CWA are satisfied and a Section 404 permit obtained.

    Question 10. Is it your testimony the Army Corps of Engineers and 
the U.S. Environmental Protection Agency are unable to discern when a 
business or other entity is trying to dispose of waste as opposed to 
filling a wetland or a stream for a constructive purpose?
    Response. No. The agencies are often required to make a 
determination of project purpose (in the evaluation of alternatives, 
for example) but this determination can be difficult to make and the 
government and applicant sometimes disagree. The more relevant concern 
regarding the waste versus fill debate, however, is what is the most 
environmentally effective and programmatically consistent way to 
determine how discharges are to be regulated under the Act. Our strong 
conclusion, based on over 30 years of program administration, is that 
defining fill based on its physical effect ensures the most effective 
environmental review of proposed discharges, provides the most 
consistent and predictable application of CWA permit programs, and has 
the added benefit of avoiding the often difficult determination of the 
applicant's intent. EPA and the Corps also believe that this approach 
best reflects the purposes of the Clean Water Act as it seeks to 
distinguish discharges of dredged or fill material under Section 404 
from all other point source discharges.

    Question 11. You testified that the Section 404(b)(1) Guidelines 
``require . . . evaluation of alternatives to the discharge.'' How do 
the agencies consider ``alternatives to the discharge'' if they are not 
able to discern the purpose of the discharge? In other words, if you 
cannot tell if the purpose of a proposed ``fill'' is waste disposal or 
construction, how can you evaluate alternatives--such as sending the 
materials to a landfill or construction of the facility in an dry, 
upland area?
    Response. The agencies are required, in the context of an 
individual permit review, to evaluate project purpose as a part of the 
Section 404(b)(1) Guidelines alternatives analysis. The Corps issues, 
on average, 3,000--4,000 individual permits annually where this 
analysis is required versus nearly 80,000 General permits each year 
where the Corps is not making that kind of evaluation. The 
determination of project purpose is often difficult and contentious 
because it is a critical aspect of establishing the scope of 
alternatives review. As we stated above, however, our decision to rely 
on EPA's long-established effects based definition of fill material was 
not based on the difficulties associated with discerning project 
purpose. Rather, it was based on our firm belief that this approach 
provides for the most effective environmental review of proposed 
discharges and ensures greater consistency and predictability in EPA 
and Corps permit programs. We also made the point in the preamble to 
the rule, however, that this approach has the additional programmatic 
benefit of avoiding the often difficult and contentious determination 
of an applicants project purpose in every case.

    Question 12. You testified that ``because Section 404 was intended 
by Congress to provide a vehicle for regulating materials whose effects 
include the physical conversion of waters to non-waters or other 
physical alterations of aquatic habitat, the Section 404(b)(1) 
Guidelines go beyond . . . a water quality based approach to require 
careful consideration of the effects of the discharge on the aquatic 
ecosystem as a whole, as well as evaluation of alternatives to the 
discharge and measures to minimize and compensate for unavoidable 
adverse effects.'' You also testified that the Sec. 404 the permit 
process ``carefully screens proposed discharges and applies the 
404(b)(1) Guidelines, which provide a comprehensive means of evaluating 
whether any discharge of fill, regardless of its purpose, is 
environmentally acceptable.''
    Please describe in detail how these provisions have been applied to 
the permitting of the disposal of coal mining overburden in streams. 
Specifically, what effects on the aquatic ecosystem as a whole does the 
Corps consider when it issues permits or authorizations under Sec. 404 
for valley fills? What alternatives does the Corps require the coal 
companies to utilize? How do the coal companies ``compensate for 
unavoidable adverse effects''?
    Response. When processing any Section 404 permit, potential direct 
and indirect impacts to the aquatic ecosystem are included in the 
evaluation. Coal companies, like any other applicant for a Section 404 
permit, must show that they have avoided and minimized adverse effects 
to the maximum extent practicable. Those impacts that are unavoidable 
must be mitigated. mining coal is constrained by the fact that a mine 
must be located at a coal source. However, coal companies are expected 
to consider alternative sites for placement of excess overburden and to 
select sites that minimize adverse impacts to the aquatic environment. 
The Corps stream assessment protocols currently under development will 
assist this analysis. In addition, coal companies are required to 
mitigate for permanent impacts to the aquatic resource and various 
options are available for mitigation. Specific examples include: 
streams that have been degraded due to previous mining activities can 
be restored (e.g., sediment ponds removed, channels reconstructed), 
sources of sediment can be controlled, riparian and wetland vegetation 
planted, and sources of acid mine water can be neutralized to improve 
the overall watershed.
    As discussed above, while compensatory mitigation may include 
restoration of degraded streams or creation of new ones, it may also 
include other activities (e.g., elimination of acid mine drainage from 
previously abandoned mine sites) that enhance general watershed health.

    Question 13. A document prepared by the MTM/VF EIS Steering 
Committee, ``Problems Identified/Confirmed/Inferred by Technical 
Studies,'' (August 15, 2002 working draft) concludes that it is 
``difficult if not impossible to reconstruct free flowing streams on or 
adjacent to mined sites.''
    Do the EPA and Corps agree with this conclusion? If not, please 
explain how you think new, free flowing streams can be created to 
compensate for the stream miles filled and please provide to the 
Committee the scientific literature you rely upon for your conclusion? 
If you do agree that this is impossible, how does (or will) the Corps 
ensure that the miles of streams filled are compensated for? 
(Preserving other streams or waters offsite does not replace lost 
streams and would still represent a net loss of waterways.) How is this 
destruction of streams consistent with the goal of maintaining or 
restoring the physical, biological, or chemical integrity of streams?
    Response. In the course of generating technical information for the 
ongoing EIS, the agencies have been evaluating the potential for stream 
restoration and creation on or adjacent to mines sites. Certain 
circumstances in Appalachia lend themselves more to successful 
restoration of stream function than others. As part of the EIS process, 
the agencies plan to publish for public comment the information 
relevant to stream impacts and potential restoration and creation, 
including relevant literature citations. Avoidance and minimization 
practices will be discussed as well. As discussed above, while 
compensatory mitigation may include restoration of degraded streams or 
creation of new ones, it may also include other activities (e.g. 
elimination of acid drainage from previously abandoned sites) that 
enhance general water shed health.

    Question 14. According to the Mountaintop Mining EIS Presentation 
to the EPA Office of Water on March 5, the EIS studies show that 
macroinvertebrate indices indicate that stream segments located 
downstream of valley fills are being impaired, stream chemistry 
monitoring efforts show significant increases in conductivity, 
hardness, sulfate, and selenium concentrations downstream of valley 
fills. Other documents indicate that EPA's stream chemistry study found 
``The selenium data clearly show 'hot spots' with higher concentrations 
of selenium in each of the five watersheds [that were studied] and 
located downstream of 'Filled' sites ONLY. There are 66 violations of 
the stream water quality criteria identified and each is at a Filled 
site. No other category of site had violations of selenium!'' Email 
from Gary Bryant (EPA WV) to William Hoffman (EPA Region 3), March 27, 
2002 (capitalization and exclamation point in original). Selenium is a 
metalloid that is released to water from both natural and anthropogenic 
sources; it can be highly toxic to aquatic life at relatively low 
concentrations, according to EPA.
    How has the Corps ``carefully considered'' these kinds of effects 
on the aquatic ecosystems when it issues Sec. 404 approvals for valley 
fills? Has the Corps issued permits or approvals for valley fills even 
when downstream, water quality standards will be violated?
    Response. Section 404 permits address the placement of rock and 
other material in the heads of valleys, as well as material placed for 
the berms, or dams, used to create associated sedimentation ponds. 
Under the Act, Section 404 permits are subject to State certification 
under Section 401 as to compliance with, among other things, State 
water quality standards, and the Corps primarily relies on the Section 
401 certification process to address such impacts (see 33 320.4(d)). 
The actual effluent discharges into waters of the U.S. from 
sedimentation ponds requires a CWA section 402 permit, and such permits 
are to contain effluent limitations consistent with applicable State 
water quality standards.
    Issues specifically related to selenium are being considered as the 
Draft EIS is developed, and will be available for public comment.

    Question 15. Dr. Bruce Wallace testified ``Elimination of small 
streams from the drainage network results in increased downstream 
loading of nutrients and degradation of water resources. We should be 
most concerned with the valuable ecosystem services that are lost when 
streams are buried.''
    Do EPA and the Corps agree with Dr. Wallace's conclusion? If not, 
please provide the Committee with studies relied on by the agencies 
that reach a contrary conclusion.
    Response. EPA and the Corps are concerned with the impact of the 
potential loss of small streams, including such potential results as 
increased loadings of downstream nutrients. Review of such potential 
impacts is incorporated in the CWA evaluations that are conducted when 
discharges of this nature are proposed. Several programmatic analyses 
along these lines are also being carried out as part of the EIS 
process. The agencies are evaluating a suite of potential impacts to 
streams for review and comment by the public when the Draft EIS is 
published.

    Question 16. Please describe in detail what studies the Corps 
usually performs or requires the coal mining companies to perform and 
submit as part of its application for a permit or approval under 
Sec. 404 for a valley fill to meet the requirements of the 404(b)(1) 
Guidelines (effects on the aquatic ecosystem, alternatives, 
minimization, compensation).
    Response. The Surface Mining Control and Reclamation Act already 
requires a substantial amount of the information necessary for 
Guidelines compliance evaluations as part of the application package. 
This includes information on water quality, hydrology (flooding), 
endangered species, and historic properties, as well s a reclamation 
plan. While the information required to facilitate the Corps 
determination regarding project compliance with the Guidelines and the 
public interest is in the regulations, the Corps is currently preparing 
specific guidance for coal companies, consultants, etc., that outlines 
the information which is currently not part of the SMCRA permit review. 
This additional information includes wetlands linear feet of ephemeral, 
intermittent, and perennial streams proposed to be impacted (both 
temporary and permanent), locations of sediment control structures, and 
a summary of the condition of the aquatic resources on the site. This 
summary includes stream assessments using consideration of foreseeable 
future actions (e.g., logging and road construction), and results of 
benthic studies. Information obtained through application of the Corps 
stream assessment protocols will also be incorporated into this 
summary, when completed no practicable alternatives to the proposed 
discharge. Compliance with Sections 402 and 401 of the Clean Water Act 
is also required.

    Question 17. Of the 5858 valley fills constructed since 1985, 
according to the March 5 Mountaintop Mining EIS Presentation, how many 
received individual permits from the Corps under Sec. 404? How many 
were approved under the general permit, Nationwide Permit (NWP 21)?
    Response. There are 5 Corps districts (Huntington, Pittsburgh, 
Louisville, Norfolk and Nashville) that regulate the discharge of fill 
material associated with mountaintop mining in the Appalachian coal 
region. Until recently, authorizations for valley fills occurred almost 
exclusively under NWP 21. However, this Administration is working to 
improve regulation of valley fills. For example, the settlement 
agreement for the court case Bragg v. Robertson generally limited the 
use of NWP 21 in West Virginia by setting an impact threshold of 250 
acres (valley fills extending to that point where the stream drained 
more than 250 acres generally require an individual permit). Under this 
Administration, the five Corps districts listed above will be placing 
three special conditions on NWP 21 which: (1) set the aforementioned 
250 acre threshold for all valley fills not just those in West Virginia 
(until additional information is obtained via the Corps Stream 
Assessment Protocols), (2) evaluate cumulative impacts to aquatic 
resources as part of the application process and (3) require 
appropriate mitigation, over and above any that may be required under 
SMCRA or other State authorities, for all permanent fills. We also are 
continuing with efforts that were previously underway to develop a 
programmatic EIS evaluating further ways to improve regulation of 
mountaintop mining.

    Question 18. Does the Corps apply the Sec. 404(b)(1) Guidelines to 
valley fills approved under NWP 21 as part of the ``careful screening 
`` process for proposed discharges described in your testimony?
    Response. On a case-by-case basis, when evaluating whether a 
project may be authorized under NWP 21, the Corps must determine that 
the discharge of excess overburden fill material into higher value 
streams, etc. has been avoided and minimized to a degree that supports 
the Corps conclusion that the site specific and cumulative impacts to 
the aquatic environment are minimal. The Corps Stream Assessment 
Protocols, currently under development, will further support these 
determinations. In addition, the Corps has improved NWP 21 by further 
requiring additional mitigation for aquatic resource impacts (i.e, 
beyond that required by the SMCRA process) to assure that impacts are 
within the minimal effects threshold.

    Question 19. Is it the position of the EPA that the valley fills 
approved by the Corps under NWP 21 has no more than a minimal adverse 
effect on the environment, both individually and cumulatively? Is it 
the position of the EPA that the effect of valley fills is 
``environmentally acceptable''?
    Response. While EPA has raised concerns, in specific circumstances, 
about the environmental impacts associated with the placement of valley 
fills in waters of the U.S., the Agency has consistently concluded that 
valley fills involve the discharge of fill material and are 
appropriately regulated by the Corps under CWA Section 404. EPA has 
worked with the Corps to improve the application of NWP 21 to the 
regulation of mining related discharges, and is continuing those 
efforts. We have also coordinated with the Office of Surface Mining 
(OSM) to improve the environmental review of proposed coal mines under 
the Surface Mining Control and Reclamation Act, the review upon which 
NWP 21 relies to a great extent. Current data show that, as a result of 
this coordination, the number and size of valley fills, and their 
associated environmental impacts, have been reduced. The Corps is 
conducting more reviews of proposed coal mines under their individual 
permit program. The first Environmental Impact Statement under the 
National Environmental Policy Act for an individual surface coal mine 
in West Virginia is being prepared by the Corps to support its Section 
404 permit process. In addition, EPA, the Corps, OSM, U.S. Fish and 
Wildlife Service and the State of West Virginia are currently 
developing a programmatic environmental impact statement to evaluate 
the environmental effects of surface coal mining and to make 
recommendations for improving the Federal programs responsible for 
environmental review of these mining operations. EPA and the Corps have 
committed to making improvements to the Section 404 permit program in 
response to this evaluation, including further revision, if necessary, 
of NWP 21.

    Question 20. In your testimony, you state, ``this rulemaking has 
been incorrectly painted as being designed to facilitate the 
continuation of mountaintop mining. In actuality, it was undertaken in 
light of years of past experience in order to enhance regulatory 
clarity and improve environmental protection.'' What formal activities 
to change the definition of ``fill material'' did the Corps and EPA 
undertake prior to the court's decision in Bragg v. Robertson? In 
actuality, didn't the Department of Justice file affidavits from EPA 
and the Corps with the Federal district court hearing the Kentuckians 
For The Commonwealth v. Rivenburgh case stating that the agencies were 
in the process of changing the fill rule in order to convince the court 
that it need not rule on the question of whether valley fills were 
being permitted in violation of the existing regulatory decision? How 
then could the rule change not be directly related to the concerns over 
mountaintop removal coal mining waste disposal practices?
    Response. EPA and the Corps have worked for many years, virtually 
from the point that the Corps adopted a different definition of ``fill 
material'' in 1978, to reconcile for their field staff and the public 
how the differing definitions would be applied. The agencies have 
prepared guidance, written MOA's, and defended their regulations in 
court in an effort to apply their differing definitions in a 
consistent, fair and environmentally protective manner. These efforts 
were proceeding long before concerns regarding the regulation of 
mountaintop removal mining gained attention. It is correct that in 
April, 2000, the previous administration proposed the ``fill'' rule to 
resolve the various problems that were continuing to arise as a 
consequence of the differing definitions of fill, including the 1998 
9th Circuit decision in Resource Investments, Inc. v. U.S. Army Corps 
of Engineers involving the regulation of a solid waste landfill, and 
the settled Southern District of West Virginia case, Bragg v. 
Robertson, which challenged the Corps regulation of a mountaintop coal 
mine. That case was settled, in part, on the basis that the Corps would 
continue to review mining associated discharges in waters of the U.S. 
under CWA Section 404. As with the positions the government took in 
those cases as well as more recently in KFTC v. Rivenburgh, the goal 
was to defend successfully the most environmentally effective 
administration of our programs, not to facilitate the continuation of 
any particular practice.

    Question 21a. In your testimony you say ``neither this rule nor the 
CWA are the principal vehicle provided by Congress for regulating 
mountaintop mining activities. Rather, the responsibility was delegated 
to the Secretary of the Interior, through the Office of Surface Mining, 
under the Surface Mining Control and Reclamation Act (SMCRA).'' 
Notably, SMCRA was passed by Congress with a savings clause specifying 
that nothing in SMCRA limits or preempts any provision of the Clean 
Water Act, so clearly, by passing SMCRA, Congress did not intend to 
limit the responsibility of the EPA to protect the nation's waters from 
the potentially harmful effects of coal mining.
    What role, if any, did officials from the Department of Interior 
play in the change of the regulatory definition of fill material?
    Response. Two agencies from the Department of the Interior, the 
U.S. Fish and Wildlife Service and the U.S. Office of Surface Mining, 
participated in informal discussions during the rulemaking process to 
define the term ``fill material.'' Neither agency, however, submitted 
written comments to EPA or the Corps in response to draft versions of 
the rule and preamble circulated for review among the Federal agencies. 
The only group within the Department to submit written comments was the 
Bureau of Reclamation, Yuma Area Office, who wrote in response to the 
April 2000 Federal Register notice of proposed rulemaking.

    Question 21b. Did any Interior Department official formally or 
informally advocate for the change in the definition of fill material 
within the administration or to the Corps or EPA? If so, please 
identify the individual(s) and describe the circum-
stances.
    Response. Department of the Interior representatives participated 
in informal discussions that occurred among the Federal agencies during 
the process to develop the definition of ``fill material,'' including 
discussions regarding the development of the agencies' April 2000 
proposed rule and the May 2002 final rule. Informal coordination among 
the Federal agencies is a valuable and routine aspect of the 
preparation of national wetlands policies, guidance, rules, etc. There 
was general agreement among the Federal agencies, including Department 
of the Interior representatives, with regard to the Corps and EPA 
decision to develop a single definition of fill. The only written 
comments received from the Department of the Interior in association 
with the interagency discussions or in response to versions of the rule 
and preamble circulated among the agencies for review, were comments 
sent by the Bureau of Reclamation, Yuma Area Office, in response to the 
agencies April 2000 Federal Register notice of proposed rulemaking.

    Question 21c. Did any Interior Department official prepare any 
documents, analysis, memoranda, draft response to public comments, or 
other materials in connection to this rule change? If so, please 
identify the individual(s) and provide the Committee with all such 
documents.
    Response. The only document, analysis, memoranda, draft response to 
public comments, or other materials in connection with the rule change 
prepared by an Interior Department official that was received by EPA or 
the Corps is a comment letter sent by the Bureau of Reclamation, Yuma 
Area Office, in response to the agencies' April 2000 Federal Register 
notice of proposed rulemaking. That letter is dated June 8, 2000, and 
is enclosed for your consideration.

    Question 22. In your testimony you state: ``In light of regional 
concerns about impacts in Appalachia from surface mining activities, 
Corps Headquarters has requested the relevant District Engineers to 
establish regional conditions in Appalachian States on the use of NWP 
21 that are consistent with the provisions of the Federal District 
court approved settlement in the Bragg litigation in West Virginia, 
which generally limits use of NWP 21 for valley fills to watersheds 
draining 250 acres or less. As part of this, the Corps will make a 
project-specific evaluation of the cumulative loss of aquatic resources 
within the affected watershed. We believe these NWP changes, and 
continued development of the programmatic EIS, will further improve 
environmental protection with regard to surface mining activities in 
Appalachia.''
    Response. The language is an accurate quotation taken from our 
written testimony.

    Question 23. In the economic study prepared recently for the EIS, 
limits on valley fills to 250 acres and 35 acres had similar almost 
imperceptibly different economic effects on the price of coal, the 
price of electricity and the amount of coal that could be mined during 
the 10-year study period.
    Given that limiting valley fills to 35 acres or less would 
undoubtedly have a greater environmental benefit than limiting them to 
250 acres in size, on what scientific or economic basis is the Corps 
recommending the 250-acre limit?
    Response. The 250 acre limit for valley fills is the threshold 
currently being applied by the Corps on the use of NWP 21. Proposed 
valley fills larger than 250 acres are reviewed under the Corps 
Individual Permit process. This threshold was implemented as part of 
the 1998 settlement agreement in Bragg v. Robertson and was accepted by 
the Corps, plaintiffs, and the Federal District court as the most 
appropriate threshold based on the information available at the time. 
Data on valley fills available since 1998 indicate that the average 
size and number of valley fills have decreased in West Virginia with a 
commensurate reduction in stream impacts when compared to data prior to 
1998. The interagency team currently developing the draft programmatic 
EIS on mountaintop mining is considering several studies that compare 
the economic impacts and environmental effects of alternative 
limitations on the allowable size of valley fills. The agencies 
continue to evaluate the results of these studies and have thus far not 
reached any conclusions about an appropriate final threshold.

    Question 24a. On Monday, June 3, the owners of the mine that is the 
subject of the Kentuckians For The Commonwealth lawsuit wrote to the 
Corps stating that they could mine the entire site without any new 
valley fills in waters of the U.S. In its letter, Beech Fork Processing 
Inc. said it could comply with Chief US District Judge Charles H. Haden 
II's ruling. Along with the letter, Beech Fork submitted to the Corps a 
pre-construction notice stating the company's intent to re-engineer its 
mine site without dumping waste into streams. The manager of 
engineering for Beech Fork said in the letter that his company had 
purchased an old mine site in the middle of its eastern Kentucky 
property that ``provides substantial acreage for spoil disposal out of 
the waters of the United States.'' This letter raises several 
questions.
    How is it that the Corps, which you have testified studies 
alternatives to placing waste in waters of the U.S. and requires fills 
to be minimized when they cannot be avoided, permitted this mine to 
have 27 valley fills that would, in total, bury 6.3 miles of streams? 
In the careful permitting process you described in your testimony, how 
is it that the existence of alternative sites for waste disposal was 
not discovered earlier?
    Response. The Corps original authorization to the Martin County 
Coal Company, the original project proponent, was based on 
jurisdiction/impact information that proved to be inaccurate. 
Subsequent negotiations with Beechfork Processing, Inc., the new 
project proponent, resulted in reduced and/or mitigated impacts to the 
aquatic environment, in recognition of additional information on 
jurisdiction and aquatic resource impacts. The NWP 21 Beechfork 
verification letter was modified to reduce the permanent impacts to 
aquatic resources to two valley fills. When Beechfork's original 
verification letter was modified in October of 2001, the company looked 
for land to purchase that they did not own at the time to provide a 
practicable site for waste disposal. The Beech Fork letter to the Corps 
of Engineers Huntington District dated June 3, 2002, does not suggest 
that they expect to ``mine the entire site without any new valley fills 
in waters of the United States'' as this question states. Instead, that 
letter states in paragraph 2 that ``Using old mining area, and the fact 
that twenty-three of the twenty-seven drainages in the existing 
permitted area already hold fill from either prior highway construction 
or the old mountain top removal operation, Beech Fork has confidence 
that it may be able to mine the entire reserve by placing fills with a 
constructive purpose in waters of the United States.'' (Emphasis added)

    Question 24b. According to John Morgan, a mining engineer who 
submitted an affidavit on behalf of the plaintiffs in the current 
lawsuit, potential alternative sites for placing waste include 
previously mined areas that were not returned to their approximate 
original contour, previously disturbed areas such as old refuse 
impoundments, side hill fills, and more distant disposal locations; in 
addition, companies can redesign the fill configuration and change 
their mining equipment to reduce fill impacts. To what extent has the 
Corps of Engineers studied these alternatives, either on a case-by-case 
basis or regionally? If these alternatives were maximized at every 
potential valley fill site, to what extent could dumping coal mining 
waste in waters be avoided or minimized? Please provide the Committee 
with all studies prepared by or for the Corps analyzing these 
alternatives.
    Response. The Army Corps of Engineers Standard Operating Procedures 
for the Regulatory Program (October 15, 1999) outlines the appropriate 
nature and extent of information and review that is necessary on a 
project specific basis for determining compliance with the Section 
404(b)(1) Guidelines' alternatives analysis. For activities covered by 
a Nationwide permit, the Corps requires, as a condition to the use of a 
Nationwide authorization, that the applicant take all practicable steps 
to ensure that potential impacts are avoided and minimized. In 
addition, the agencies are coordinating in the context of the 
development of the programmatic mountaintop mining EIS to use the SMCRA 
permit review process to ensure that environmental impacts associated 
with valley fills are avoided and minimized. The agencies recognize 
that considerable mining expertise is available in State SMCRA programs 
upon which the Corps can better rely to examine effective opportunities 
for avoiding and minimizing mining related environmental impacts. These 
kinds of programmatic improvements will continue to help us to 
strengthen the Section 404 review of proposed mining projects and 
ensure more effective environmental protection.
    The Beechfork situation was somewhat unusual in that there was a 
site immediately adjacent to the active site that the company could 
acquire. If other proposed mines have this same opportunity, then the 
mine company would be required to evaluate this upland alternative and 
to use it as an alternative to placing overburden in waters of the U.S. 
unless the company demonstrated that it was not practicable within our 
definition of ``available in terms of cost, logistics and technology''

    Question 24c. The company states in its letter ``If it has the 
right, Beech Fork would like to operate as originally authorized. If it 
is determined that Judge Haden's order only applies prospectively and 
not to Beech Fork's original authorization, or should Judge Haden's 
decision be reversed on appeal, Beech Fork intends to operate as 
initially planned to operate pursuant to its original authorization.'' 
How can the Corps allow the company to operate as initially planned--
burying over six miles of streams--after the company has admitted that 
it has alternatives to dumping its wastes in the waters of the U.S.? 
Would the Corps allow Beech Fork to operate under its initial approval 
in the wake of this new information?
    Response. As these questions correctly recognize, the Beech Fork 
permit and the Corps review of that project are issues that go to the 
heart of ongoing litigation in the Federal District Court of the 
Southern District of West Virginia. We respectfully defer these 
questions until that litigation is resolved. We would emphasize, 
however, that efforts to avoid and minimize the placement of coal 
mining materials in waters of the U.S. have improved in recent years, 
and we expect those improvements to continue.
    The Beech Fork letter to the Corps of Engineers Huntington District 
dated June 3, 2002, does not suggest that they expect to ``mine the 
entire site without any new valley fills in waters of the United 
States'' as this question states. Instead, that letter states in 
paragraph 2 that ``Using old mining area, and the fact that twenty-
three of the twenty-seven drainages in the existing permitted area 
already hold fill from either prior highway construction or the old 
mountain top removal operation, Beech Fork has confidence that it may 
be able to mine the entire reserve by placing fills with a constructive 
purpose in waters of the United States.'' (Emphasis added) Beechfork is 
in the process of redesigning it's entire project to reduce impacts to 
the aquatic resource. We have not yet seen their new plan, however, we 
must be satisfied that their aquatic resource impacts have been reduced 
to the fullest extent practicable and those adverse impacts which 
remain must be fully mitigated.

    Question 25a. I understand that the EPA, together with the Office 
of Surface Mining (OSM), the Army Corps of Engineers, the U.S. Fish and 
Wildlife Service, and the West Virginia Department of Environmental 
Protection had spent or committed to spend about $4.5 million preparing 
an Environmental Impact Statement on the environmental, social, and 
economic impacts of mountaintop removal mining. I also understand that 
in January 2001 Preliminary Draft EIS and extensive technical studies 
included an inventory of valley fills, and analyses of the impacts of 
valley fills on streams, wildlife, land use and the economy. I further 
understand that the findings of this study included adverse impacts on 
significant amount of stream lengths, aquatic life, stream chemistry. 
The summary of technical studies found ``no scientific basis could be 
established for arriving at an environmentally 'acceptable' amount of 
stream loss.
    How does the EPA reconcile this statement with the May 3 rule, 
which essentially puts many more stream lengths at risk?
    Response. The EIS agencies are in agreement that the status of the 
preliminary draft EIS and technical studies are, as the title suggests, 
both ``draft'' and ``preliminary'' and, as such, there is considerably 
more work that is necessary before we would be comfortable reaching 
conclusions about the nature and extent of environmental impacts that 
can be correctly attributed to surface coal mining practices in 
Appalachia. The quote from the study summary used in this question 
refers to the selection of a ``minimal impact'' threshold under NWP 21 
as a potential alternative to the 250 acre figure used currently and 
the technical challenge of selecting a single, scientifically 
supportable number that is appropriate for that threshold. It is not a 
broad reference to the environmental acceptability of placing mining 
materials in streams. The agencies are eager to complete this EIS and 
to implement improvements to our programs to address environmental and 
social concerns that are identified. Until this public process is more 
complete, however, we are not in a position to reach final conclusions 
on what changes to implement.
    The relationship of the definition of ``fill material'' rulemaking 
and the EIS is an important one and we appreciate the opportunity to 
clarify this question. The decision to prepare this EIS is a provision 
of the 1998 Settlement Agreement in Bragg v. Robertson that was 
accepted by the court and settled plaintiffs' claims against the Corps. 
One of those claims was that the Corps lacked the authority to regulate 
coal mining waste under CWA Section 404 as ``fill material'' and that 
these discharges should instead be regulated under CWA section 402. In 
settling this issue, the plaintiffs and court explicitly recognized 
that the agencies would continue to regulate, as they had for many 
years, discharges of coal waste as ``fill material'' under Section 404. 
This recognition would, in turn, be a fundamental basis for the 
evaluation conducted under the EIS. As such, the EIS has been prepared 
on the basis that discharges of excess spoil and similar mining 
materials in waters of the U.S. will continue to be subject to review 
by the Corps under the Section 404 permit program.

    Question 25b. Please explain the status of this Environmental 
Impact Statement when is it going to be finalized--and the role of its 
technical studies in the recent rule change. When was this impact 
statement supposed to be finished?
    Response. The decision to prepare this programmatic EIS was 
incorporated as a provision of the 1998 settlement agreement in Bragg 
v. Robertson. In that settlement, the government indicated its goal to 
complete the EIS within 2 years. That goal has not been met for several 
reasons. First, the EIS has proved to be a complex undertaking, 
entailing a comprehensive evaluation of both environmental and economic 
effects and procedures, policies and regulations that covers coal 
mining operations over the whole of Appalachia. Second, as envisioned 
in the Settlement Agreement, the review has focused on the practice of 
mountaintop removal coal mining and the placement of excess spoil from 
these operations in waters of the United States. In his recent decision 
in Kentuckians for the Commonwealth v. Rivenburgh, Federal District 
court Judge Charles Haden enjoined the Corps from issuing Clean Water 
Act permits for discharges of excess spoil and other mining waste in 
waters of the U.S., in most circumstances, raising questions about the 
relevance of this focus. Prior to the Haden ruling, the agencies 
indicated that a draft EIS would be released for public review and 
comment by late this summer. We are currently evaluating the 
appropriate focus of the EIS in light of the Rivenburgh decision, prior 
to releasing it for public comment.

                               __________
        Statement of Joan Mulhern, Senior Legislative Counsel, 
                    Earthjustice Legal Defense Fund

    Chairman Lieberman, Senator Voinovich and members of the 
Subcommittee, thank you for holding this hearing today to review one of 
the most significant and destructive changes to Clean Water Act 
protections in decades. My name is Joan Mulhern. I am Senior 
Legislative Counsel for Earthjustice Legal Defense Fund, a national 
non-profit law firm founded in 1971 as the Sierra Club Legal Defense 
Fund. Earthjustice represents, without charge, hundreds of public 
interest clients, large and small, in order to reduce water and air 
pollution, prevent toxic contamination, safeguard public lands, and 
preserve endangered species and wildlife habitat.\1\
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    \1\ Earthjustice does not represent parties in the recent 
mountaintop removal cases; those groups and individuals are represented 
by the Appalachian Center for the Economy and the Environment, Trial 
Lawyers for Public Justice and private attorneys. Earthjustice 
submitted an amicus brief in the Bragg case on Clean Water Act issues 
and prepared comments on the proposed revisions to the definition of 
fill on behalf of several national environmental groups.
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    Present for today's hearing are many representatives of groups from 
Appalachia and individuals who live in the coalfields and who are among 
the people that will be most directly hurt by the Bush administration's 
change to the longstanding Clean Water Act rules that are the subject 
of this hearing. While I am not testifying on their behalf, I hope my 
comments today will help convey the seriousness of the Bush 
administration's weakening of Clean Water Act rules and the real 
impacts it will have not only on our nation's waters but also on many 
people's lives.
    The Bush administration's change to Clean Water Act rules is 
intended to allow wastes especially mountaintop removal coal mining 
waste, but also hardrock mining waste, construction and demolition 
debris, and other industrial wastes to bury and fill streams, wetlands, 
lakes, rivers, ponds and other water bodies around the country.\2\ This 
new rule eliminates a 25-year prohibition on the issuance of Sec. 404 
permits for waste disposal.
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    \2\ Final Revisions to the Clean Water Act Regulatory Definition of 
``Fill Material'' and ``Discharge of Fill Material'', 67 Fed. Reg. 
31129 (May 9, 2002).
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    Earthjustice, along with 17 of the nation's largest environmental 
and conservation organizations,\3\ many State and local groups, tens of 
thousands of individuals across the country and dozens of Members of 
Congress strongly oppose this rule change. The rule change is 
indefensible as a matter of law and public policy, and is directly 
contrary to the intent of Congress when it passed the Clean Water Act 
three decades ago. Our nation's streams, lakes, wetlands, ponds, 
rivers, and coastal waters should not be used as waste dumps.
---------------------------------------------------------------------------
    \3\ See Letter to President George W. Bush from 18 national 
environmental organizations, March 8, 2002.
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  USING THE NATION'S WATERS AS WASTE DUMPS VIOLATES THE VERY PURPOSE 
                         OF THE CLEAN WATER ACT

    Elimination of the waste exclusion from the longstanding definition 
of ``fill material'' is intended to give the Corps new authority to 
allow the disposal of refuse directly into the nation's waters.
    It will give the Corps authority to permit any industry, 
governmental agency, or individual to bury rivers, streams, lakes, and 
wetlands all across the country under tons of mining waste, waste from 
other excavation activities, mining tailings, construction and 
demolition debris, plastic waste or almost any other sort of solid 
waste.\4\ In short, it will allow the Corps to issue permits for the 
disposal of virtually any waste in any waters of the United States, 
opening up waters all across the country to significant degradation, 
and possible obliteration as waste dumps. This directly violates the 
central purpose of the Clean Water Act.
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    \4\ The only exception in the final rule is for ``trash or 
garbage.'' 67 Fed. Reg. at 31142. But the preamble to the rule asserts, 
in specific circumstances, ``certain types of material that might 
otherwise be considered as trash or garbage may be appropriate for use 
in a particular project to create a structure . . . in waters of the 
U.S. In such situations, this material would be regulated as fill 
material.'' Id. at 31134.
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    The purpose of the Clean Water Act is to ``restore and maintain the 
chemical, physical, and biological integrity of the Nation's waters.'' 
33 U.S.C. Sec. 1251(a). State water quality standards under the Act 
must ``protect the public health or welfare, enhance the quality of 
water and serve the purposes of this chapter.'' Id., 
Sec. 1313(c)(2)(A). To achieve this purpose, the Clean Water Act 
established a regulatory regime that was intended to achieve the 
national goal of eliminating the discharge of pollutants into the 
navigable waters by 1985. Id. Sec. 1251(a)(1).
    As Congress made clear in 1972, the Clean Water Act establishes 
that there is no ``inherent right to use the nation's waterways for the 
purpose of disposing of wastes.\5\ Indeed, Congress passed the Clean 
Water Act to ensure that pollution would continue only where 
technological limitations prevented its elimination. In 1983, EPA 
reissued its antidegradation regulation, which mandates that all 
existing stream uses be protected.\6\ In doing so, EPA rejected 
proposals to allow exceptions to this principle ``as being totally 
inconsistent with the spirit and intent of both the Clean Water Act and 
the underlying philosophy of the antidegradation policy.\7\ EPA also 
stated ``[a] basic policy of the standards program throughout its 
history has been that the designation of a water body for the purposes 
of waste transport or waste assimilation is unacceptable..'' \8\
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    \5\ S. Rep. No. 92-414, at 2 (1972), reprinted in 1972 U.S.C.C.A.N. 
3668.
    \6\ 48 Fed. Reg. 51400 (Nov. 8, 1983); 40 C.F.R. Sec. 131.12(a).
    \7\ Id. at 51408-09.
    \8\ Id.; see 40 C.F.R. Sec. 131.10(a).
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    The language, history and purpose of the Clean Water Act and its 
implementing regulations fully support a prohibition on dumping masses 
of solid waste in waterways as ``fill.'' \9\
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    \9\ When it adopted the Clean Water Act, Congress intended that 
even the dumping of dredged spoil into waters of the United States 
should end as soon as possible. See 118 Cong. Rec. 33699 (1972), 1 
Legis. Hist. 177-78 (``the Committee expects the Administrator and the 
Secretary to move expeditiously to end the process of dumping dredged 
spoil in water''). This obviously would require potential dischargers 
to transport spoil dredged from a waterbody away from the water to a 
dry land disposal site. Surely Congress could not have intended that 
waste materials obtained from dry land should be transported to waters 
for disposal.
---------------------------------------------------------------------------
    Now, almost 30 years after the Clean Water Act was passed and 17 
years after the zero discharge goal was to have been met, the Bush 
administration is attempting to greatly expand the legal authority of 
Corps of Engineers so that it may issue Sec. 404 permits for waste 
disposal activities that will obliterate more waterways. By eliminating 
the waste exclusion provision in the definition of ``fill material,'' 
the Corps would be authorized to issue Sec. 404 permits to allow the 
nation's lakes, rivers, streams, and wetlands to be used as waste 
dumps.
    a west virginia federal district court has found that the bush 
administration's ``waste in waters'' rule violates the clean water act 
                 and is beyond the agencies' authority
    On May 8, 2002, Federal district court judge Charles Haden III 
ruled that the Corps' existing definition of ``fill material'' 
expressly prohibits that agency from issuing Clean Water Act Sec. 404 
permits for fills comprised of waste.\10\ The court also found that the 
Federal agencies' rewrite of the rules to eliminate this express 
prohibition was beyond the Corps' and EPA's authority under the Clean 
Water Act:
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    \10\ That ruling was issued in response to a challenge by a citizen 
group, Kentuckians For The Commonwealth, to the Corps' approval under a 
Sec. 404 nationwide permit of a mountaintop removal operation in Martin 
County, Kentucky that proposed to create 27 valley fills and bury 6.3 
miles of streams. Kentuckians For The Commonwealth v. Rivenburgh, 
S.D.W.V.No. 2:01-770 (May 8, 2002).

          ``The Court holds that Sec. 404 of the Clean Water Act does 
        not allow filling the waters of the United States solely for 
        waste disposal. Agency rulemaking or permit approval that holds 
        otherwise is ultra vires, beyond agency authority conferred by 
        the Clean Water Act. Only the U.S. Congress can rewrite the Act 
        to allow fills with no purpose or use but the deposit of 
        waste.'' \11\
---------------------------------------------------------------------------
    \11\ Id. at 1-2.

    The court then enjoined the Corps from issuing any new Sec. 404 
permits that have no primary purpose or use but the disposal of waste 
and stated: ``In particular, issuance of mountaintop removal overburden 
valley fill permits solely for waste disposal under Sec. 404 is 
ENJOINED.'' \12\
---------------------------------------------------------------------------
    \12\ Id. at 42 (emphasis in original).
---------------------------------------------------------------------------
    The court ruled:

          ``To approve disposal of waste other than dredged spoil, in 
        particular mountaintop removal overburden, in waters of the 
        United States under Sec. 404 dredge and fill regulations 
        rewrites the Clean Water Act. Such rewriting exceeds the 
        authority of administrative agencies and requires an act of 
        Congress.'' \13\
---------------------------------------------------------------------------
    \13\ Id. at 5.
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          ``To read the Act otherwise presumes Congress intended the 
        Clean Water Act to protect the nation's waterways and the 
        integrity of its waters with one major exception: the Army 
        Corps was to be given authority to allow the waters of the 
        United States to be filled with pollutants and thus destroyed, 
        even if the sole purpose were disposal of waste. This obviously 
        absurd exception would turn the ``Clean Water'' Act on its head 
        and use it to authorize polluting and destroying the nation's 
        waters for no reason but cheap waste disposal.'' \14\
---------------------------------------------------------------------------
    \14\ Id. at 42 (emphasis added).
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          ``The agencies' new final rules address political, economic 
        and environmental concerns to effect fundamental changes in the 
        Clean Water Act for the benefit of one industry. However 
        important to the energy requirements of the economy and to 
        employment in the region, amendments to the Act should be 
        considered and accomplished in the sunlight of open 
        congressional debate and resolution, not within the murk of 
        administrative after-the-fact ratification of questionable 
        regulatory practices.'' \15\
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    \15\ Id. at 44.

    Earthjustice agrees with Judge Haden's interpretation of the Clean 
Water Act, as his analysis and conclusion are strongly grounded in the 
history, letter and purpose of the Act. Because of this decision, the 
Corps is currently enjoined from issuing any new Sec. 404 permits for 
fills comprised of waste material.\16\
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    \16\ In discussing the intended or likely environmental impacts of 
the Bush administration's rule change in this testimony, it is with the 
caveat that these harms can only occur if the court's decision in the 
Kentuckians For The Commonwealth is stayed or narrowed, which we hope 
will not happen. In any case, because we believe that the Clean Water 
Act and its regulations forbid the Corps from permitting mountaintop 
removal valley fills and other waste dumps as ``fill,'' if the Corps 
does issue any new permits allowing waste disposal as fill, such 
permits would be illegal and vulnerable to legal challenge. The Bush 
administration is currently seeking a stay of the court's decision and 
arguing that the scope of the injunction be narrowed to only cover the 
Martin County mine that was the immediate subject of the litigation. 
The plaintiff in the case, Kentuckians For The Commonwealth, is 
opposing these motions.
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  THE BUSH ADMINISTRATION'S ARGUMENTS IN DEFENSE OF THIS RULE CHANGE 
                           ARE WITHOUT MERIT

    One of the administration's frequently repeated justifications for 
changing the definition of fill material to allow waste to be dumped 
into waterways is that considering only the ``effect'' of a fill, not 
its ``purpose'' will result in more effective regulation.\17\ It argues 
that the ``primary purpose'' test and the ``waste exclusion'' in the 
rules adopted in 1977 are confusing, subjective and have led to 
inconsistent treatment of similar discharges.\18\ The preamble to the 
final rule states: ``There is no environmental basis for contending 
that the sufficiency of the permitting process to protect waters of the 
U.S. depends on the purpose of the discharge.'' \19\ In sum, it argues 
that the purpose of a discharge into waters is always irrelevant.\20\ 
But when it comes to waste disposal, that conclusion is wrong on 
several counts.
---------------------------------------------------------------------------
    \17\ See, e.g., 67 Fed. Reg. at 31131 (``The agencies believe that 
an effects-based definition is, as a general matter, the most effective 
approach for identifying discharges that are regulated as ``fill 
material'' under section 404''). See also id. at 3132-31133.
    \18\ Id.
    \19\ Id. at 31134.
    \20\ Comments prepared by Earthjustice and supported by several 
national environmental groups supported the agencies' proposal to 
reconcile the agencies differing definitions, while disagreeing with 
the claim that those definitions were confusing, and supported dropping 
the ``primary purpose'' test as a general matter, as long as the 
language that explicitly excludes waste materials as ``fill'' was 
retained.
---------------------------------------------------------------------------
    First, that conclusion ignores the goal of the Clean Water Act. The 
purpose of a discharge of pollutants into waters matters very much in 
the context of the Act, which Congress enacted with a purpose that of 
protecting the nation's precious water resources. As stated above, the 
very first sentence of the law declares this purpose clearly and 
concisely: ``It is the objective of this chapter to restore and 
maintain the chemical, physical, and biological integrity of the 
Nation's waters.'' No activity could be more inconsistent with the 
purpose of protecting the integrity of waters than burying them forever 
under piles of waste.
    Second, the conclusion that purpose is always irrelevant ignores 
the fact that waste disposal is an activity that is entirely different 
in kind from those that fill waters for a constructive purpose. It is 
one thing to fill a stream or wetland because, after ensuring there are 
no non-water dependant alternatives, a constructive use needs to be 
made of a certain area to build a road or other facility; it is 
something else altogether to allow waters to be filled with waste just 
because that is the cheapest means of disposal. Using the nation's 
waters for cheap waste disposal is exactly what the Clean Water Act is 
supposed to prevent.
    Third, the administration's conclusion ignores the undeniable fact 
that allowing our waters to be used for waste dumps will significantly 
increase the number of waters destroyed under the Sec. 404 program. By 
allowing coal mining companies, hardrock mineral mining interests, 
construction and demolition outfits and others to dump their wastes 
into waters, burying them, the inevitable effect will be that more 
streams, wetlands, rivers, ponds, lakes and coastal areas will be 
filled. As Judge Haden succinctly put it in his recent decision, ``As a 
child could explain, the effect of filling things is that they get 
full.'' \21\ Allowing destruction of more streams, rivers and wetlands 
is flatly inconsistent with the Clean Water Act's goal of ending the 
discharge of pollutants into our country's waterways.
---------------------------------------------------------------------------
    \21\ Kentuckians For The Commonwealth at 39-40.
---------------------------------------------------------------------------
    The administration's assertion that it makes no difference whether 
industries are allowed to fill waters for constructive purposes only or 
for any reason whatsoever--including using our waters as waste dumps--
demonstrates this administration's disregard for the Clean Water Act as 
well as for the natural resources and communities the law was enacted 
to protect.
    The Corps and EPA also contend that the rule change is justified 
because it will allow the Corps' regulations to conform to its 
practices.\22\ This appears to be a reference to the fact that the 
Corps has been violating the law for years by allowing mountaintop 
removal coal mining ``valley fills'' to bury streams and wetlands. 
(Perhaps the Corps has also been permitting other waste disposal 
operations to destroy waters; if so, it does not identify those 
practices in the proposed rule.) In short, instead of requiring the 
Corps to conform its permitting activities to the law, the Bush 
administration is trying to change the law to accommodate the Corps' 
unlawful and destructive practices undertaken on behalf of the coal 
companies. As Judge Haden explains in his order:
---------------------------------------------------------------------------
    \22\ 67 Fed. Reg. at 31130.

        ``[F]or the past 20 years, particularly in the Huntington Corps 
        District, Sec. 404 permits have been issued for mountaintop 
        removal overburden disposal in valley fills that have 
        obliterated and destroyed almost a thousand miles of streams, 
        by the Corps' own account. The valley fills are used solely to 
        dispose of the waste rock and dirt that overlies the coal. Past 
        Sec. 404 permit approvals were issued in express disregard of 
        the Corps' own regulations and the CWA. As such, they were 
        illegal. When the illegitimate practices were revealed by court 
        decisions in this district, the agencies undertook to change 
        not their behavior, but the rules that did not support their 
        permit process.'' \23\
---------------------------------------------------------------------------
    \23\ Id. at 42-43.

    In fact, several Corps' officials deposed in the earlier 
mountaintop removal case, Bragg v. Robertson,\24\ acknowledged that the 
agency did not have legal authority to issue permits for valley fills 
because their own regulations prohibited the use of waste as fill; one, 
when asked why the Corps did issue such approvals without legal 
authority said that they ``just sort of oozed into that.'' \25\
---------------------------------------------------------------------------
    \24\ 72 F.Supp. 2d 642 (S.D. W. VA 1999), rev'd, 248 F. 3d 275 (4th 
Cir. 2001).
    \25\ Deposition of Rodney Woods, Nov. 30, 1998, p. 23 (taken in 
Bragg v. Robertson).
---------------------------------------------------------------------------
  no review of the nationwide environmental effects of allowing waste 
dumps in waters was conducted by the corps or epa before finalizing the 
                                  rule
    The EPA and Corps concluded that elimination of the ``waste 
exclusion'' would have no environmental effect because they already 
allow waste dumps in waters. This conclusion has absolutely no basis in 
law or fact and demonstrates a callous disregard for the environment.
    By illegally issuing permits for mountaintop removal coal mining 
valley fills--5,858 of them since 1985 by the administration's own 
count--the Corps has allowed the complete destruction of well over 1000 
miles of streams in Kentucky and West Virginia, perhaps much more. To 
claim that changing the law to allow the continuation of such 
permitting practices will have no significant effect on the environment 
is absurd on its face.
    It is equally unreasonable to conclude that expanding this 
permitting practice to allow waters to be buried under hardrock mining 
tailings, other excavation wastes, construction and demolition debris, 
plastic waste and other refuse will not have a significant effect on 
the environment. Presumably the Corps is not already issuing Sec. 404 
permits to all of the industries that will be eligible to receive waste 
dump permits under the new rule; if they are allowing these industries 
to dump their wastes in waters, then the extent of the Corps' illegal 
permitting activities is greater than has been previously documented.
    In short, their conclusion that these waste disposal activities, 
whether previously permitted (illegally) or not, will not cause any 
significant environmental harm is not supported by fact--or logic. 
Indeed, all evidence is to the contrary.
    Allowing industries to bury and obliterate waterways with waste, a 
previously prohibited activity, will have severe adverse effects on 
water quality, water supplies, fish and wildlife habitat, flood control 
and floodplain management, as well as other health, safety, 
environmental and economic consequences for the communities where such 
waste fills are allowed. Whatever the number of waters the Corps has 
already allowed industries to bury with their waste, previously 
unaffected streams, wetlands, lakes, rivers, ponds and coastal waters 
will be filled and destroyed in the wake of this rule change.
    Nonetheless, the Corps and EPA completely failed to analyze the 
environmental consequences of eliminating the waste exclusion from the 
definition of fill material. The Bush administration conducted no 
studies or analyses whatsoever to measure these impacts.
    Worse, the administration even went so far as to ignore data 
currently in its possession regarding the known and devastating 
environmental impacts of mountaintop removal coal mining. The 
administration's utter disregard for the harm that would be caused by 
this rule change violates the National Environmental Policy Act of 1969 
(``NEPA'') \26\ as well as the agencies' general obligation to protect 
the environment.
---------------------------------------------------------------------------
    \26\ 42 U.S.C. Sec. 4321 et seq.
---------------------------------------------------------------------------
    NEPA is the basic national charter for protection of the 
environment. The law requires agencies of the Federal Government to 
prepare an environmental impact statement (``EIS'') for all ``major 
Federal actions significantly affecting the quality of the human 
environment.'' \27\ Federal actions include ``new or revised agency 
rules, regulations, plans, policies, or procedures.'' \28\ NEPA 
requires that the environmental impacts of a major Federal action must 
be evaluated before the agency decides whether or how to proceed.
---------------------------------------------------------------------------
    \27\ 42 U.S.C. Sec. 4332(2)(C).
    \28\ 40 C.F.R. Sec. 1508.18(a) (emphasis added).
---------------------------------------------------------------------------
    The Corps has not complied with these basic principles of NEPA. It 
did not prepare an environmental impact statement for this rule as 
required by law, despite its nationwide effect and the obvious harm 
that is caused when wastes bury waters.
    Instead, the agencies prepared an Environmental Assessment (EA) 
concluding--without reference to anything other than its own 
unsubstantiated assertions--that the rule change does not constitute a 
major Federal action significantly affecting the quality of the human 
environment.\29\ Not a single study or fact about the environmental 
effects of this rule is cited to support this conclusion.
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    \29\ ``Environmental Assessment (EA) and Finding of No Significant 
Impact for the Fill Rule,'' (May 9, 2002). Notably, the Corps did not 
complete and sign the EA until 6 days after they sent the rule to the 
Federal Register for publication. However, in a memo explaining this 
mistake, Dominic Izzo, Principal Deputy Secretary of the Army (Civil 
Works) assured readers that this did not indicate that the Corps 
treated the EA as an afterthought.
---------------------------------------------------------------------------
    In fact, at the time that the Corps and EPA first proposed to 
change the definition of fill material to eliminate the waste exclusion 
in the spring of 2000, the Corps admitted that it did not possess even 
one document that supported its initial determination that no 
environmental impact statement needed to be prepared.\30\ This initial 
finding of ``no significant effect on the quality of the human 
environment'' is nonetheless cited in the EA as supporting the final 
decision not to do an EIS.\31\ We can only assume that the Corps still 
does not have any evidence whatsoever to support their claim that no 
significant harm will come of this rule change.
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    \30\ Letter to Melissa A. Samet, Earthjustice Legal Defense Fund, 
from Richard L. Frenette, Counsel, U.S. Army Corps of Engineers (July 
5, 2000) (``no documents were located'' that satisfied a Freedom of 
Information Act (FOIA) request for all documents upon which the Corps 
based its determination that an environmental impact statement was not 
necessary).
    \31\ EA at 7.
---------------------------------------------------------------------------
    The Bush administration's assertions about ``no significant harm'' 
are flatly contradicted by the information collected by this 
administration that is not even mentioned in its discussion of the 
environmental effects of this rule change. The preliminary findings of 
an environmental impact statement (EIS) on mountaintop removal that is 
currently being prepared by the EPA and other agencies show the 
environmental destruction caused by mountaintop removal coal mining and 
its waste disposal practices is enormous.
    As of February 2002, the EPA, together with the Office of Surface 
Mining (OSM), the Corps, the U.S. Fish and Wildlife Service, and the 
West Virginia Department of Environmental Protection, had spent or 
committed to spend about $4.5 million preparing an EIS on the 
environmental, social, and economic impacts of mountaintop removal 
mining.\32\ In support of the EIS, EPA prepared a January 2001 
Preliminary Draft EIS (PDEIS) and extensive technical studies, 
including an inventory of valley fills, and analyses of the impacts of 
valley fills on streams, wildlife, land use, and the economy.\33\
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    \32\ Email from William Hoffman (EPARegion 3) to Gregory Peck (EPA 
DC) February 13, 2002.
    \33\ EPA recently disclosed this PDEIS and most of the studies to 
the public in response to a FOIA request from Kentuckians For The 
Commonwealth.
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    The studies conducted by EPA for the mountaintop mining EIS have 
confirmed and amplified the scope of the known harm from valley fills. 
A March 2002 slide show presentation\34\ to senior EPA officials in the 
agency's Washington, DC. headquarters summarizes the findings from 
these studies:
---------------------------------------------------------------------------
    \34\ Mountaintop Mining EIS Presentation, EPA Office of Water, 
Office of Federal Activities, and Office of General Counsel, March 5, 
2002.
---------------------------------------------------------------------------
     One percent of all streams in the study area (560 out of 
55,000 miles) have already been eliminated by valley fills.\35\
---------------------------------------------------------------------------
    \35\ Other studies, cited below, indicate that this 1 percent 
figure is likely to be a gross underestimation of the stream miles 
filled in the study area. These inventories rely heavily on 
topographical maps that often do not map ephemeral headwater streams, 
despite their ecological importance. Also, the 1 percent figure 
contains the entire study area; in watersheds where mining activity is 
occurring or has occurred, up to 30 percent of the headwaters have been 
filled.
---------------------------------------------------------------------------
     Macroinvertebrate indices indicate that stream segments 
located downstream of valley fills are being impaired (aquatic life 
use).
     Stream chemistry monitoring efforts show significant 
increases in conductivity, hardness, sulfate, and selenium 
concentrations downstream of [Mountaintop Mining/Valley Fill] 
operations.\36\
---------------------------------------------------------------------------
    \36\ EPA's stream chemistry study found that ``The selenium data 
clearly show `hot spots' with higher concentrations of selenium in each 
of the five watersheds that were studied] and located downstream of 
`Filled' sites ONLY. There are 66 violations of the stream water 
quality criteria identified and each is at a Filled site. No other 
category of site had violations of selenium!'' Email from Gary Bryant 
(EPA WV) to William Hoffman (EPA Region 3), March 27, 2002 
(capitalization and exclamation point in original). Selenium, ``a 
metalloid that is released to water from both natural and anthropogenic 
sources, can be highly toxic to aquatic life at relatively low 
concentrations.'' See www.epa.gov/ost/selenium/factsh.html.
---------------------------------------------------------------------------
     The Appalachian Highlands is characterized by some of the 
best forest habitat in the world.
     Current reclamation practices are converting these forests 
to grassland, which may significantly impact neotropical migrant bird 
populations and other sensitive species if left unchanged.
    Similar findings are contained in a draft summary of the EIS' 
technical studies, which finds that ``[n]o scientific basis could be 
established for arriving at an environmentally 'acceptable' amount of 
stream loss'' . . . it is ``difficult if not impossible to reconstruct 
free flowing streams on or adjacent to mined sites'' . . . there is 
``no evidence that native hardwood forests . . . will eventually 
recolonize large mountaintop mine sites using current reclamation 
methods'' . . . ``[p]opulations of forest birds will be detrimentally 
impacted by the loss and fragmentation of mature forest habitat'' . . . 
and that ``[l]arge-scale surface coal mining will result in the 
conversion of large portions of one of the most heavily forested areas 
of the country, also considered one of the most biologically diverse, 
to grassland habitat.'' \37\
---------------------------------------------------------------------------
    \37\ See MTM/VF EIS Steering Committee, ``Problems Identified/
Confirmed/Inferred by Technical Studies,'' August 15, 2002 working 
draft.
---------------------------------------------------------------------------
    Although the EPA and Corps had this information in hand well before 
they finalized the rule change on May 3, none of this data is even 
mentioned in the preamble to the rule or the extremely cursory 
Environmental Assessment that accompanied it.
    Further, the impacts of the ``waste in waters'' rule will be felt 
far beyond the coalfields of Appalachia, where the Bush administration 
wishes to be able to continue issuing Sec. 404 permits for the disposal 
of coal mining wastes with impunity.
    It is clear that the proposed rule change will have significant 
environmental consequences, both from mountaintop removal and other 
waste disposal activities. The proposed rule change would give the 
Corps new authority to allow the disposal of refuse directly into any 
river, stream, lake, wetland or coastal area in the country. These 
effects required preparation of an environmental impact statement 
before the rule change was ever proposed.

    THE CORPS' WILLINGNESS TO GRANT VIRTUALLY EVERY PERMIT REQUEST 
   DRAMATICALLY INCREASES THE ALREADY STAGGERING IMPACTS OF THE RULE 
                                 CHANGE

    The potential impacts of the rule change are staggering, 
particularly in light of the Corps' willingness to routinely grant 
virtually every permit request submitted to it for any project to fill 
waterways. For example, according to testimony submitted to this 
committee in March 2000, in one 3 year period, the Corps denied only 3 
out of every 1000 of all Sec. 404 permit requests:

        [T]he Corps received an average of 74,500 Section 404 permit 
        requests per year from fiscal year 1996 to fiscal year 1999. Of 
        those requests, 84.4 percent were authorized through a general 
        permit. Only 6.7 percent of all permit applications were 
        subject to the more detailed individual permit evaluation, 
        through which impacts are avoided and compensated. Because of 
        our effectiveness in avoiding and mitigating impacts, only 3 
        tenths of a percent of all Section 404 requests were denied. 
        Finally, it should be noted that thousands of additional 
        actions requiring authorization by Section 404 were allowed to 
        proceed under the authority of general permits that do not 
        require any notification to the Corps.\38\
---------------------------------------------------------------------------
    \38\ Testimony of Michael Davis, Deputy Assistant Secretary of the 
Army for Civil Works, Before the U.S. Senate Committee on Environment 
and Public Works, Subcommittee on Air Quality, Wetlands, Private 
Property and Nuclear Safety (March 28, 2000).

    The Bush administration provides no evidence at all to suggest that 
the vast majority of permit requests for waste disposal activities will 
not also be routinely granted by the Corps. In fact, the evidence is to 
the contrary: if the Corps' track record of granting approval for 
mountaintop removal valley fills is any indication of how the Corps 
will treat other applications for 404 permits for waste disposal, there 
is a great deal to be concerned about.\39\
---------------------------------------------------------------------------
    \39\ Even if one were to assume that the Corps would be more 
selective about issuing individual permits for waste disposal 
activities than they are when issuing permits for other fills, the 
majority of activities that are currently approved under the Sec. 404 
program occur under authority of general permits and require no 
individual approval from the Corps. If the same holds true when wastes 
are added to the list of acceptable filling practices, many waste 
disposal activities may occur under general permits without the need 
for Corps' approval.
---------------------------------------------------------------------------
 the adverse impacts on mining communities are enormous and unnecessary
    As the court notes in Kentuckians For The Commonwealth, the Bush 
administration's change to Clean Water Act regulations to allow waste 
disposal in waters was written to benefit one industry--the coal mining 
industry.\40\ In particular, the elimination of the decades-old 
language prohibiting the use of waste to fill waters was intended to 
accommodate the enormously destructive mining practice known as 
mountaintop removal.
---------------------------------------------------------------------------
    \40\ Kentuckians For The Commonwealth at 44.
---------------------------------------------------------------------------
    Mountaintop rremoval is conducted throughout the Appalachian 
region, but is especially concentrated in southern West Virginia and 
eastern Kentucky. In mountaintop removal operations, mine operators use 
explosives and enormous machines to rip hundreds of feet off the top of 
mountains to expose and remove the coal seams that lay underneath. In 
the process, millions of tons of waste (that was formerly the 
mountaintop) are generated.
    The current solution preferred by many mining operators for 
disposing of this waste rock and dirt is to dump it into nearby 
valleys; this dumping creates ``valley fills.'' Typically, there are 
networks of streams in the valleys that are filled with the excess 
mining waste. As a result of the valley fills, these streams and 
wetlands, and the aquatic and wildlife habitat they support, are 
destroyed by virtue of being buried by hundreds of millions of tons of 
rocks and dirt that was once part of the mountaintop.
Environmental Harm
    Mountaintop removal is destroying irreplaceable forests and 
streams. In March 1998, the U.S. Fish and Wildlife Service (FWS) 
estimated that nearly 500 miles of streams had been lost in only six 
West Virginia watersheds due to Mountaintop Removal valley fills.\41\ 
This estimate did not include five other major coal mining counties in 
West Virginia. West Virginia's forests are among the most productive 
and diverse temperate hardwood forests in the world. According to the 
US Fish and Wildlife Service, the forests are hotspots for migratory 
birds.\42\ The size of proposed mountaintop removal operations has 
grown significantly. Mining complexes often create holes of more than 
10 square miles in the forest canopy. For instance, Arch's Mountaintop 
Removal complex in Blair, West Virginia would have destroyed more than 
12 square miles of forests and streams. At least two other Arch 
operations in West Virginia now cover more than 20 square miles 
each.\43\ Such holes in the forest canopy have significant adverse 
impacts on bird migration.
---------------------------------------------------------------------------
    \41\ U.S. Fish & Wildlife Service, ``Permitted Stream Losses Due to 
Valley Filling in Kentucky, Pennsylvania, Virginia, and West Virginia: 
A Partial Inventory'' 6 (1998).
    \42\ U.S. Fish & Wildlife Service, ``A Survey of Aquatic Life and 
Terrestrial Wildlife Habitats on the Proposed Spruce No. 1 Surface Mine 
in Logan County, West Virginia'' 21 (1998).
    \43\ Hobet 21 and Samples.
---------------------------------------------------------------------------
    It is nearly impossible to overstate the destructive effects of 
mountaintop removal on the surrounding environment. Mountains and 
forests become barren moonscapes. Waters and aquatic life are buried 
under tons of rubble. In an order in the Bragg case, issued March 3, 
1999,\44\ Judge Haden, Chief Judge of the District Court for Southern 
District of West Virginia, described the view of mountaintop removal 
sites seen from the air, and assessed the potential damage posed by the 
mine.
---------------------------------------------------------------------------
    \44\ Bragg v. Robertson, 54 F. Supp.2d 635, 646 (S.D.W.V. 1999); 
also see photos: ``Valley Fills at Mountaintop Removal Mines in 
Kentucky and West Virginia--Aerial Views'', attached.

          ``The Court's helicopter flyover of all mountaintop removal 
        sites in southern West Virginia revealed the extent and 
        permanence of environmental degradation this type of mining 
        produces. On February 26, the ground was covered with light 
        snow, and mined sites were visible from miles away. The sites 
        stood out among the natural wooded ridges as huge white 
        plateaus, and the valley fills appeared as massive, 
        artificially landscaped stair steps. Some mine sites were 20 
        years old, yet tree growth was stunted or non-existent. 
        Compared to the thick hardwoods of surrounding undisturbed 
        hills, the mine sites appeared stark and barren and enormously 
        different from the original topography.
          ``If the forest canopy of Pigeonroost Hollow is leveled, 
        exposing the stream to extreme temperatures, and aquatic life 
        is destroyed, these harms cannot be undone. If the forest 
        wildlife are driven away by the blasting, the noise, and the 
        lack of safe nesting and eating areas, they cannot be coaxed 
        back. If the mountaintop is removed, even [the mine company's] 
        engineers will affirm that it cannot be reclaimed to its exact 
        original contour. Destruction of the unique topography of 
        southern West Virginia, and of Pigeonroost Hollow in 
        particular, cannot be regarded as anything but permanent and 
        irreversible.''

    Judge Haden expanded upon this assessment in his opinion issued on 
October 20, 1999:

          ``When valley fills are permitted in intermittent and 
        perennial streams, they destroy those stream segments. The 
        normal flow and gradient of the stream is now buried under 
        millions of cubic yards of excess spoil waste material, an 
        extremely adverse effect. If there are fish, they cannot 
        migrate. If there is any life form that cannot acclimate to 
        life deep in a rubble pile, it is eliminated. No effect on 
        related environmental values is more adverse than obliteration. 
        Under a valley fill, the water quantity of the stream becomes 
        zero. Because there is no stream, there is no water quality.'' 
        \45\
---------------------------------------------------------------------------
    \45\ Bragg, 72 F. Supp.2d at 661-62.

    EPA's draft cumulative impact study on mountaintop removal mining 
states that, if left unconstrained, mining will fill another 500 miles 
of streams and destroy 350 square miles of forests in Appalachia.\46\
---------------------------------------------------------------------------
    \46\ Gannett Fleming, ``Landscape Scale Cumulative Impact Study of 
Future Mountaintop Mining Operations,'' March 2002, pp. ii, iv.
---------------------------------------------------------------------------
Harm to Communities
    Not only do these massive valley fills destroy the watersheds in 
Appalachia, uncontrolled mountaintop removal operations destroy 
Appalachian coalfield communities.
    The environmental and social impacts resulting from mountaintop 
removal surface mining extend well beyond the streams that are actually 
filled. The quantity and quality of waters in the vicinity of these 
operations are often adversely affected and significant portions of the 
State's forests, mountains and streams are destroyed. The communities 
below these massive operations are often devastated. The people are 
effectively forced from their homes by blasting (which often cracks the 
walls and foundations of their homes), dust, noise, flyrock, the threat 
of flooding, fear that the valley fills above their homes are unstable, 
and the degradation of stream and well water. Life near mountaintop 
removal operations becomes so unbearable that generations-old 
communities are forced to move away.
    A 1997 article in U.S. News and World Report states that rather 
than fight constant complaints from homeowners, Arch Coal ``has bought 
more than half of the 231 houses in Blair through a subsidiary. Vacated 
and quickly stripped, at least two dozen have been burned down'' by 
arsonists.\47\ In Blair, West Virginia, the elementary school and the 
town's only grocery stores have closed.
---------------------------------------------------------------------------
    \47\ Penny Loeb, U.S. News & World Report, ``Shear Madness,'' 
(August 7, 1997).
---------------------------------------------------------------------------
    Many people, including some coalfield residents who have lost homes 
and loved ones in the floods of 2001 and 2002, believe flooding in the 
region is made worse by mountaintop removal mining. It is a reasonable 
conclusion. When mountaintop removal coal mining strips a landscape 
bare of all trees, and valley fills bury headwaters with tons of dirt 
and rock, storm water will come gushing down more quickly into the 
communities nestled in the valley. Preliminary Federal studies indicate 
that rain runoff at valley fill sites vary, but the studies indicate 
that runoff can surge anywhere from 3 percent to 42 percent, ultimately 
blending with the larger flood pattern.\48\ In the most recent floods, 
nearly a dozen people lost their lives and four West Virginia counties 
were declared Federal disaster areas.\49\ In McDowell County alone, 6 
people died, close to 200 homes were destroyed, and more than 2,000 
others were damaged by flooding.\50\
---------------------------------------------------------------------------
    \48\ Charleston Gazette, ``Flood Causes Get Serious With Studies,'' 
May 8, 2002; Ken Ward, ``Forests' Return Could Take Centuries Due to 
Mining,'' Charleston Gazette, May 3, 2002 (discussing the draft EIS 
studies obtained by Gazette by FOIA); see also photos: ``Valley Fill on 
the Headwaters of White Oak Creek in Raleigh Co.'', and ``July 2001, 
floods devastated Bulgar Hollow in Raleigh Co., W. Va.'', attached.
    \49\ Anderson, Mason. ``Appalachian Flood Victims Assess Damages,'' 
DisasterRelief.org, May 7, 2002.
    \50\ Francis X Clines, ``100-Year Flood, for the Second Straight 
Year,'' New York Times, May 9, 2002.
---------------------------------------------------------------------------
Economic Impacts
    Recently, the Bush administration filed a motion for a stay pending 
appeal of West Virginia district court's May 8 Order, which enjoined 
the Corps from issuing any further Sec. 404 permits that have no 
primary purpose or use but the disposal of waste. In its brief, the 
administration argues at length that this injunction will have 
``devastating'' economic effects. But the administration's allegations 
of impending economic doom are supported only by broad and conclusory 
affidavits by government officials, with no supporting expert analysis 
or studies.
    The Bush administration's and coal mining companies' claims about 
significant economic harm are flawed in at least four fundamental 
respects. First, the administration is again ignoring the results of 
its own studies that it commissioned in preparation of the EIS on 
mountaintop mining and valley fills. Second, according to these 
government studies, most mines do not require valley fills. Third, 
engineering analysis shows that there are alternatives to putting waste 
in valley fills. Fourth, according to these government studies, 
significant restrictions on the size of valley fills will not have 
significant economic impacts.
    The Government Is Ignoring Its Own Studies Showing Prohibition on 
Mining Waste Valley Fills in Waters of the U.S. Would Not Cause Serious 
Economic Harm
    As stated above, the EPA and other Federal and state agencies are 
preparing an EIS to study the environmental, social, and economic 
impacts of mountaintop removal mining.\51\ The PDEIS and studies 
directly contradict the claims of economic harm made by the Bush 
administration and others who insist that weakening Clean Water Act 
rules is an economic necessity.
---------------------------------------------------------------------------
    \51\ See 64 Fed. Reg. 5800 (Feb. 5, 1999) (notice on the EIS).
---------------------------------------------------------------------------
    As part of the EIS effort, EPA contracted with Hill & Associates 
(H&A), an economic modeling firm, to model the economic impacts of the 
various alternatives for restricting the size of valley fills. In a 
December 2001 final report to EPA, H&A concluded that even the most 
severe restriction on valley fills studied in the report--one that 
barred fills covering watersheds more than 35 acres--would raise the 
price of coal by only $1 per ton and raise the cost of electricity by a 
few cents per megawatt-hour.\52\ In the March 2002 slide show 
presentation to senior EPA officials in its Washington Headquarters, 
EPA Region 3 officials characterized these effects as ``a minimal 
impact on the price of coal'' and ``virtually NO impact on electricity 
prices.'' \53\ The presentation revealed that significant restrictions 
on valley fill size would not significantly affect coal supplies, coal 
prices, or electricity prices:
---------------------------------------------------------------------------
    \52\ Hill & Associates, ``Economic Impact of Mountain Top Mining 
and Valley Fills, Environmental Impact Statement,'' for U.S. EPA, 
December 2001. The H&A study assumed that valley fill restrictions 
would apply immediately to all existing mines, while the court's order 
only applies to future permits. The study therefore overstates the 
economic impacts of prohibiting any future Sec. 404 permits to dump 
waste into waters. On the other hand, the study evaluated a restriction 
on valley fills of no more than 35 acres, while a ban on the discharge 
of coal waste in any waters of the U.S. may be more restrictive in some 
watersheds. The study may therefore understate the economic impacts of 
enforcing the law in this respect.
    \53\ Mountaintop Mining EIS Presentation, EPA Office of Water, 
Office of Federal Activities, and Office of General Counsel, March 5, 
2002 (emphasis in original).

          ``Sufficient coal reserves appear to exist under the 250, 
        150, 75, and 35 acre restriction scenarios necessary to meet 
        demand during the 10 year study period . . .''
          ``Restricting valley fills to 250, 150, 75, or 35 acre 
        watersheds will increase the price of coal by only $1/ton under 
        each respective restriction scenario.''
          ``Restricting valley fills to 250, 150, 75, or 35 acre 
        watersheds will increase the price of electricity by only a few 
        cents/MWHr under each respective restriction scenario.'' \54\
---------------------------------------------------------------------------
    \54\ Id.

    Another EPA draft study, dated April 23, 2002, concludes that, even 
under the 35-acre watershed restriction, annual average impacts to 
total statewide employment in Kentucky and West Virginia are no more 
than 0.3 percent of total year 2000 employment. In addition, there are 
no ``notable differences in [wholesale electricity] prices or 
generation levels among the alternative [restrictions] . . . due to the 
competitive nature of the energy markets.'' \55\
---------------------------------------------------------------------------
    \55\ Gannett Fleming, Draft Economic Consequences Study for MTM/VF 
EIS, April 23, 2002.
---------------------------------------------------------------------------
    These studies indicate that severe restrictions on the size of 
valley fills, and even a prohibition of valley fills in waters of the 
US, would not cause serious economic harm, as the Bush administration 
claims.

            Most Mines Do Not Require Valley Fills

    Almost two-thirds of coal mined in Appalachia comes from 
underground mines. While underground mines do create waste rock and 
dirt, the amount generated is considerably less compared to mountaintop 
removal mining. Both in the short and long term, alternatives to 
dumping these wastes into streams exist and are already utilized by 
many coal mining companies.\56\
---------------------------------------------------------------------------
    \56\ See Declaration of John S L Morgan, (May 18, 2002). Mr. Morgan 
has a degree in mining engineering from the Royal School of Mines and 
is President of Morgan Worldwide Consultants, a company specializing in 
providing technical support to the mining industry worldwide. Mr. 
Morgan participates on the West Virginia Department of Environmental 
Protection Quality Control advisory panel tasked with evaluating and 
improving quality control related to permitting,
---------------------------------------------------------------------------
    The mountaintop removal PDEIS contains an extensive inventory of 
the valley fills in the four-state region of Kentucky, West Virginia, 
Tennessee and Virginia where surface coal mining is concentrated. Over 
90 percent of the 5,585 valley fills approved between 1985 and 1999 are 
in Kentucky and West Virginia.\57\ During that time, only 1,271 out of 
6,234 mining permits in Kentucky (20 percent), and 305 out of 2,527 
mining permits in West Virginia (12 percent) were issued with valley 
fills.\58\ Thus, historically, most surface mining operations do not 
use valley fills, and a prohibition on fills in waters would not affect 
those mines. The same principle applies to pending permit applications, 
which are the only ones that would be affected by the Court's 
prospective order. According to WVDEP, only 59 of the 123 pending 
applications for mining permits in West Virginia, and only 11 out of 
157 applications for incidental boundary revisions and permit 
applications, contemplate filling waters of the United States.\59\
---------------------------------------------------------------------------
    \57\ January 2001 Preliminary Draft EIS (PDEIS) at III.K-21.
    \58\ Id. at K-22, K-28.
    \59\ See http://www.dep.state.wv.us/Docs/1449NR-CrumResponse.pdf.
---------------------------------------------------------------------------
    Furthermore, even for the coal mines that do apply for fills, a ban 
on new valley fills would not shut down all of those mines in the short 
term. The PDEIS states ``[a]n industry practice is to permit more 
surface area for disturbance than is likely to be affected by the 
operations planned. This allows the mining operation to respond more 
quickly to changing market conditions.'' \60\ Thus, there is surplus 
capacity that has already been permitted, and that would not be 
affected by a prospective ban on new valley fills in waters of the US. 
That was apparently the situation in 1999, when no valley fills were 
approved by West Virginia,\61\ yet statewide coal production was 
virtually the same in 1999 and 2000. Thus, the lack of fills does not 
necessarily have an immediate impact on coal production.
---------------------------------------------------------------------------
    \60\ PDEIS at III.K-13.
    \61\ Id. at III.K-28.
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            There Are Alternatives to Dumping Coal Mining Waste into 
                    Streams
    Coal mining waste should not be dumped in streams, and it does not 
have to be dumped into streams. Mining companies choose to dump their 
wastes in waters when it is the cheapest alternative, and regulatory 
prohibitions are not enforced.\62\ Coal companies seek to optimize 
maximum coal recovery at the least cost.\63\ But there are 
alternatives.
---------------------------------------------------------------------------
    \62\ Morgan Declaration.
    \63\ Id.
---------------------------------------------------------------------------
    The impact of valley fill restrictions varies from mine to mine, 
and requires a site-specific engineering analysis.\64\ Broad brush 
statements that the coal companies have no choice but to dump their 
wastes in streams are incorrect. Potential alternative sites for 
placing waste include previously mined areas that were not returned to 
their approximate original contour, previously disturbed areas such as 
old refuse impoundments, side hill fills, and more distant disposal 
locations; in addition, companies can redesign the fill configuration 
and change their mining equipment to reduce fill impacts.\65\ 
Underground mines generate much less waste rock and dirt than surface 
mines, and there are available alternatives for placement of that waste 
as well.\66\ These alternatives to placing mining waste in streams 
should be used instead of dumping waste in waterways.
---------------------------------------------------------------------------
    \64\ Id.
    \65\ Id.
    \66\ Id.
---------------------------------------------------------------------------
    Clean Water Act regulations require consideration of these 
alternatives. Where a proposed project to fill waters ``does not 
require access or proximity to or siting within the special aquatic 
site in question to fulfill its basic purpose (i.e. is not `water 
dependent'), practicable alternatives that do not involve special 
aquatic sites are presumed to be available, unless clearly demonstrated 
otherwise.'' \67\ Regardless of the definition of fill material, the 
Corps is not authorized to issue a Sec. 404 permit ``unless appropriate 
and practicable steps have been taken which will minimize potential 
adverse impacts of the discharge on the aquatic ecosystem.'' \68\ Since 
surface coal mining is not ``water dependent'' and alternatives to 
filling streams exist, granting of Sec. 404 permits for the disposal of 
waste in streams, as the Bush rule purports to do, is illegal for this 
reason as well.
---------------------------------------------------------------------------
    \67\ 40 C.F.R. Sec. 230.10(a)(3) (emphasis added).
    \68\ Id., Sec. 230.10(d).
---------------------------------------------------------------------------
Post-Mining Land Uses
    Some proponents of mountaintop removal coal mining claim that it is 
needed to create more flat land for development purposes. While there 
may be a few examples here and there of airports or factories being 
built on mountaintop removal sites, it is extremely unlikely that any 
significant percentage of mountaintop removal sites, including the 
valley fills, will ever support development. As noted above, EPA's 
draft cumulative impact study on mountaintop removal mining states 
that, if left unconstrained, mountaintop removal mining will destroy 
350 square miles of forested land;\69\ This is in addition to the 
hundreds of square miles that have already been flattened. According to 
one estimate, less than 1 percent of the mined land is reused for any 
development purpose.\70\
---------------------------------------------------------------------------
    \69\ Gannett Fleming study, pp. iv.
    \70\ Phone conversation with Jim Burger, Professor of Forestry, 
Virginia Tech, (June 3, 2002). Professor Burger studies post-mining 
land uses in Appalachia, including reforestation and development.
---------------------------------------------------------------------------
    The Bush administration's studies conclude that, in fact, post-
mining land uses are not occurring as envisioned. Remarkably, the 
Office of Surface Mining (OSM) appears to want to address this problem 
by deleting actions to ensure that post-mining land uses do occur from 
further consideration in the EIS:
    Post Mining Land Uses (PLMU) studies suggest that, in general, 
post-mining development is not occurring as envisioned when variance 
are requested from the requirements to return the land to a condition 
capable of supporting its prior use. Actions to ensure that PMLU 
development occurs as envisioned have been developed, but OSM 
recommends deleting these actions from further consideration in the 
EIS.\71\
---------------------------------------------------------------------------
    \71\ Mountaintop Mining EIS Presentation.
---------------------------------------------------------------------------
   UNDER THE BUSH ADMINISTRATION'S RULE, MANY OTHER WASTES WILL BURY 
                                 WATERS

    There is probably no region of the country that will be more 
adversely effected by this ``waste in waters'' rule change than the 
coal mining communities of Appalachia. But the Bush administration's 
rule change undoubtedly will have significant nationwide effects. While 
the ``waste exclusion'' in the Corps' clean water regulations was 
removed from the rules primarily for the coal mining companies, the 
final rule would give the Corps discretion to permit any industry, 
governmental agency, or individual to bury rivers, streams, lakes, and 
wetlands all across the country under tons of mining waste, waste from 
other excavation activities, mining tailings, construction and 
demolition debris, plastic waste or almost any other sort of solid 
waste.\72\
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    \72\ As noted earlier, the only exception in the final rule is for 
``trash or garbage.'' 67 Fed. Reg. at 31142. But the preamble to the 
rule asserts, in specific circumstances, ``certain types of material 
that might otherwise be considered as trash or garbage may be 
appropriate for use in a particular project to create a structure . . . 
in waters of the U.S. In such situations, this material would be 
regulated as fill material.'' Id. at 31134.
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    According to the final rule, examples of wastes now eligible for 
Sec. 404 permits include, but are not limited to ``rock, sand, soil, 
clay, plastics, construction debris, wood chips, [and] overburden from 
mining or other excavation activities.'' \73\ In addition, another part 
of the new definition makes clear that ``placement of overburden, 
slurry, or tailings or similar mining-related materials'' are also to 
be permitted.\74\ As the new definition states, this is not an 
exhaustive list. There are many other types of industrial wastes that 
the Corps could also try to permit to be dumped into waters. Even 
wastes that may be ``chemically contaminated'' would not be ruled out 
under this proposal; in fact, the administration argues that the 
provisions of Sec. 404 regulations and its related guidelines are 
adequate to address such cases.\75\
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    \73\ 67 Fed. Reg. at 31142 (emphasis added).
    \74\ Id. (emphasis added).
    \75\ 67 Fed. Reg. at 31133 (``We recognize that, some fill material 
may exhibit characteristics, such as chemical contamination, which may 
be of environmental concern in certain circumstances'').
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    The list of waste that would be considered ``fill material'' in the 
proposed rule, published in the Federal Register on April 20, 2000, was 
also not exhaustive, but the examples were far more limited: ``rock, 
sand and earth'' and ``placement of coal mining overburden.'' \76\
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    \76\ 65 Fed. Reg. 21299.
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    Below is a review of some of the wastes that are included in the 
new ``waste in waters'' rule.
Coal mining slurry
    Coal slurry, a cement-like substance generated during coal 
processing, is another waste material that would expressly be allowed 
to be dumped into waters under the Bush rule. As with valley fills, the 
Corps has been permitting coal companies to dump their slurry waste 
into impoundments created in streams for years.
    Slurry spills destroy homes, contaminate drinking water and kill 
wildlife; uncertainty over the long-term health and environmental 
effects associated with major spills leaves residents fearing the 
worst.\77\ During the devastating floods that hit West Virginia in May 
of 2002, a coal slurry impoundment in McDowell County--an area 
particularly hard-hit by floods--spewed blackwater slurry at a 5,000-
gallon-a-minute-rate.\78\ In October of 2000, an impoundment in eastern 
Kentucky spilled 250 million gallons of waste, adversely affecting at 
least 100 miles of streams creeks, and rivers.\79\ Perhaps the most 
devastating coal slurry spill is the famous ``Buffalo Creek Disaster'' 
of 1972, where the collapse of a Pittston Coal dam in West Virginia 
killed 125 people and left 4,000 homeless.\80\
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    \77\ Alan Maimon, ``Coal Slurry Spill Still Taints E. Kentucky, 
Residents Say,'' Kentucky Courier-Journal October 8, 2001.
    \78\ AP, ``W. Va. Seizes waste site in effort to control spill,'' 
The Herald-Dispatch, May 8, 2002.
    \79\ Geraldine Sealey, ``Coal Slurry Spill Hits Rivers Worst 
Regional Disaster in Years,'' ABCnews.com, October 23, 2000.
    \80\ Ken Ward, ``Alternatives to coal slurry ponds exist, study 
says,'' Sunday Gazette-Mail, October 14, 2001.
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    Coal slurry impoundments present a significant risk to downstream 
waters, communities, and wildlife. Its explicit inclusion in the 
definition of materials deemed suitable to use as ``fill'' in waters 
will continue this harm unnecessarily, particularly when the National 
Academy of Sciences concluded in an October 2001 study that there are 
alternatives to coal slurry impoundments and called for a ``broad study 
of ways to reduce or eliminate the need'' for the impoundments.\81\ 
There are numerous alternatives available for the disposal of coal 
slurry other than dumping that waste into streams.\82\
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    \81\ Id. (emphasis added).
    \82\ See Morgan Declaration (``Alternative disposal methods include 
the placement of fine refuse material in incised ponds that can be 
located on the bench of surface mined areas. In addition coarse refuse 
can also be placed in previously mined areas. Underground disposal of 
both coarse and fine refuse is technologically feasible and underground 
injection of fine refuse is currently conducted in West Virginia. Some 
of the backfilling methods used in the hard rock mining industry could 
be applicable to the underground disposal of coal waste and warrant 
consideration.'').
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Hardrock mining tailings and other wastes
    As noted in the 1999 National Research Council report, Hardrock 
Mining on Federal Lands, modern open-pit hardrock mining generates vast 
amounts of waste rock/overburden, tailings and beneficiation/processing 
wastes.\83\ Often, these facilities are located directly in riverine 
valleys, the so-called ``valley fills.'' As noted by the Council's 
report, ``Obviously, if a valley is filled, the vegetation in the 
valley will be destroyed. Once filled, the riparian vegetation that 
requires the conditions found at the bottom of the valley cannot be 
restored.'' \84\
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    \83\ National Academy of Sciences, ``Hardrock Mining on Federal 
Lands,'' (1999).
    \84\ Id. at App. B 163.
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    A 1992 Congressional Office of Technology Assessment report 
estimated that the mineral mining industry generated about 1.7 billion 
tons of extraction and beneficiation wastes in 1987 but cannot provide 
a comparable estimate for mineral processing wastes.\85\ This estimate 
does not even include the tonnage of waste rock and dirt overburden 
generated at hardrock mining sites. According to the EPA's most 
recently released Toxics Release Inventory, in 2000 alone, the metal 
mining industry release 3,315,896,409 (3.3 billion) pounds of toxics to 
land.
---------------------------------------------------------------------------
    \85\ U.S. Congress, Office of Technology Assessment, Managing 
Industrial Solid Wastes From Manufacturing, Mining, Oil and Gas 
Production, and Utility Coal Combustion--Background Paper, (February 
1992).
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    The threat to western stream and wetlands that the new ``waste in 
waters'' rule poses is obviously considerable, as these hardrock mining 
wastes are explicitly included in the new definition of fill.
Construction and demolition debris
    Waste is generated every time a building, road, or bridge is 
constructed, remodeled, or demolished. Known as construction and 
demolition (C&D) debris, this waste often contains bulky, heavy 
materials, including concrete, wood, asphalt (from roads and roofing 
shingles), gypsum (the main component of drywall), metals, bricks, and 
plastics. C&D debris also includes salvaged building components such as 
doors, windows, and plumbing fixtures.\86\
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    \86\ http://www.epa.gov/OSWRCRA/non-hw/debris/about.htm
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    The EPA estimates that 136 million tons of building-related C&D 
debris was generated in the United States in 1996.\87\ The majority of 
this waste comes from building demolition and renovation, and the rest 
comes from new construction.\88\ This figure does not include debris 
from road, bridge or land-clearing projects, which comprise a large 
(but in this report, unquantified) portion of the C&D waste stream.\89\
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    \87\ Franklin Associates (for the U.S. Environmental Protection 
Agency), Characterization of Building-Related Construction and 
Demolition Debris in the United States, (June 1998).
    \88\ Id. at 8.
    \89\ Id.
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    Currently, an estimated 30 to 40 percent of C&D ``is managed 
onsite, at [municipal solid waste] landfills, and unpermitted sites.'' 
\90\ Even a small fraction of this waste, if disposed of in wetlands, 
streams, ponds, or rivers, could have a significant negative effect on 
waters of the Nation.
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    \90\ Id. at 3.
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Other Wastes
    Other wastes specifically referenced in the final rule as being 
eligible for the new Corps waste dumping permits include overburden 
from other excavation activities, wood chips, and plastic. None of 
these categories is further defined, and each seems like it could 
encompass millions--if not billions--of tons of material nationwide. 
All waste rock and dirt from any type of excavation operation must be 
quite an enormous amount of waste. If the Corps allows excavation 
operations to now dump that wastes into streams or wetlands instead of 
moving it to a dry upland site, it is likely that thousands of acres of 
wetlands and miles of stream will be destroyed as a result. No 
explanation is provided in the final rule for including these 
categories of waste in the new definition of fill material. And as with 
all of the categories of waste fill, no environmental assessment of the 
effects of dumping excavation waste, waste wood chips, or plastic waste 
in waterways was conducted.
Garbage
    The only waste not permitted to be used as fill material in waters 
of the U.S. under the Bush administration's ``waste in waters'' rule, 
at least not as a general matter, is trash or garbage. It is worth 
noting that the agencies' rationale for this single exclusion should 
also make waste rock, sand, soil, clay, plastics, construction debris, 
wood chips, overburden from mining or other excavation activities, 
slurry, or tailings and similar mining-related materials ineligible to 
be used as fill--if the criteria enumerated by the agencies were fairly 
applied.

          ``The agencies have added an exclusion for trash or garbage 
        to the definition of ``fill material'' for several reasons. 
        First, the preamble to the proposed rule and many of the 
        comments recognized that trash or garbage, such as debris, junk 
        cars, used tires, discarded kitchen appliances, and similar 
        materials, are not appropriately used, as a general matter, for 
        fill material in waters of the U.S. In particular, we agree 
        that the discharge of trash or garbage often results in adverse 
        environmental impacts to waters of the U.S. by creating 
        physical obstructions that alter the natural hydrology of 
        waters and may cause physical hazards as well as other 
        environmental effects. We also agree that these impacts are 
        generally avoidable because there are alternative clean and 
        safe forms of fill material that can be used to accomplish 
        project objectives and because there are widely available 
        landfills and other approved facilities for disposal of trash 
        or garbage.'' \91\
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    \91\ 67 Fed. Reg. at 31134 (emphasis added.).

    The discharge of waste rock, sand, soil, clay, plastics, 
construction and demolition debris, wood chips, overburden from mining 
or other excavation activities, slurry, or tailings and similar mining-
related materials also results in adverse environmental impacts to 
waters of the U.S. by creating physical obstructions that alter the 
natural hydrology of waters and may cause physical hazards as well as 
other environmental effects, and their disposal in waters is also 
generally if not always avoidable.
    As the court rightly observed in Kentuckians For The Commonwealth:

          ``The obvious perversity of this proposal forced the agencies 
        to suggest baseless distinctions among wastes: ``trash'' and 
        ``garbage'' are out; plastic, construction debris and wood 
        chips are in. The final rule for ``discharge of fill material'' 
        highlights that the rule change was designed simply for the 
        benefit of the mining industry and its employees. Only one type 
        of waste is added to the otherwise constructive list: 
        ``overburden, slurry, or tailings or similar mining-related'' 
        waste are now permissible fill in the nation's waters.'' \92\
---------------------------------------------------------------------------
    \92\ Kentuckians For The Commonwealth at 43 (emphasis added).
---------------------------------------------------------------------------
              the national mining association gets its way
    Finally, there were two provisions of the proposed rule that 
somewhat limited the use of Sec. 404 fill permits for waste materials 
other than coal mining overburden. While neither of these two 
provisions were adequate substitutes for the broad-based waste 
exclusion in the existing regulations that was proposed for deletion, 
both of these provisions weighed against the permitting of processed or 
contaminated waste materials under Sec. 404.
    Both provisions were removed from the Bush administration's final 
rule at the request of the National Mining Association and its member 
groups, including both coal mining and hardrock mineral mining 
interests that wanted the final rule written to their 
specifications.\93\ In the final rule, the Bush administration gave 
them exactly what they asked for.
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    \93\ See Memorandum from John Lishman, Wetlands and Aquatic 
Resources Regulatory Branch, Office of Water, U.S. EPA, ``April 6, 
2001, Meeting with National Mining Association Representatives on 
Proposed Revisions to the Clean Water Act Regulatory Definitions of 
``Fill Material'' and ``Discharge of Fill Material,'' (April 12, 2001). 
This memo recounts for the rulemaking record a meeting between NMA 
representatives and EPA officials in which NMA objected to two 
provisions in the April 2000 proposal that would have limited the use 
of Sec. 404 fill permits for certain categories of waste, while 
reiterating their overall support for the rule.
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``Unsuitable Fill''
    First, the preamble to the April 2000 draft rule suggested that the 
final rule would contain a definition of ``unsuitable fill material'' 
and asked for public comments on this proposal. The proposal stated 
that the Corps could include within its regulations a definition for 
``unsuitable fill material'' that would read generally as follows:

          The term ``unsuitable fill material'' means any material 
        proposed to be discharged into waters of the United States that 
        would fall under the definition of ``fill material,'' but which 
        the District Engineer determines to have physical or chemical 
        characteristics that would make the material unsuitable for a 
        proposed discharge into waters of the United States, so that 
        there is no reasonable possibility that a section 404 permit 
        can be granted for the proposed discharge of that particular 
        material. For example the District Engineer may determine that 
        fill material is unsuitable because of the potential for the 
        leaching of contaminants from the fill material into 
        groundwaters or surface waters, or because the proposed fill 
        material is too light or unstable to serve reliably for its 
        intended purpose (e.g., bank stabilization or erosion control). 
        In most circumstances, heterogeneous solid waste, discarded 
        appliances, and automobile or truck bodies would qualify as 
        unsuitable fill material. In addition, material containing 
        toxic pollutants in toxic amounts (see section 307 of the Clean 
        Water Act) is unsuitable fill material.\94\
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    \94\ 65 Fed. Reg. at 21296-21297.

    In its comments to the proposed rule, NMA argued that the inclusion 
in the rule of a definition of unsuitable fill material ``could lead to 
the denial of permits that presently receive authorizations, and it 
would vest the District Engineer (``DE'') with unfettered discretion to 
reject Sec. 404 applications.'' \95\ Phelps Dodge, the country's 
largest copper mining company, complained ``the agencies are proposing 
to add a new definition to its 404 permitting regulation for 
'unsuitable fill material'. . . . Examples of unsuitable fill materials 
include materials that have the potential for the leaching of 
contaminants to groundwater or surface water or materials that contain 
toxic pollutants in toxic amounts. Phelps Dodge opposes the adoption of 
the proposed definition of unsuitable fill material . . . The vast 
majority of fill materials, including rock and dirt, has the potential 
to leach contaminants.'' \96\
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    \95\ National Mining Association, Re: Proposed Changes to the 
Definition of Fill Material, (July 17, 2000) at 2.
    \96\ Phelps Dodge Corporation Comments on Proposed Revisions to the 
Clean Water Act Regulatory Definitions of ``Fill Material'' and 
``Discharge of Fill Material,'' at 5.
---------------------------------------------------------------------------
    Apparently agreeing with the mining companies that no waste (other 
than trash or garbage) generated by any industry is unsuitable for 
dumping into waters of the United States, the Bush administration 
dropped the ``unsuitable waste'' category from the final rule.
Discharges with Effluent Limitations
    Second, the definition of fill in the April 2000 proposal contained 
an exception not included in the final rule: ``The term fill material 
does not include discharges covered by proposed or final effluent 
limitations guidelines and standards under sections 301, 304 or section 
306 of the Clean Water Act (see generally, 40 CFR part 401), or 
discharges covered by an NPDES permit issued under section 402 of the 
Clean Water Act.'' \97\
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    \97\ 65 Fed. Reg. at 21299.
---------------------------------------------------------------------------
    At that time, the EPA and Corps argued that the proposed ``effects-
based'' definition of fill material required this clarification 
``because, read literally, it could subject to regulation under CWA 
section 404 certain pollutants that have been, are being, and should be 
regulated by the technology and water quality based standards used in 
the section 402 program.'' \98\ Examples given were industrial waste or 
sewage that contain suspended solids which ultimately will settle to 
the bottom following discharge and could raise the bottom elevation of 
the water, potentially making them eligible for a Sec. 404 fill permit 
(and thus possibly exempt from the Sec. 402 permitting 
requirement).\99\ Therefore, the agencies reasoned, ``where such 
pollutants are covered by proposed or final effluent limitations 
guidelines and standards under section 301, 304, or 306 of the CWA or 
the discharge is covered by a . . . permit issued under section 402 of 
the CWA, the proposed rule would exclude the discharge from the 
definition of fill.'' \100\
---------------------------------------------------------------------------
    \98\ 65 Fed. Reg. 21295 (emphasis added).
    \99\ Id.
    \100\ Id.
---------------------------------------------------------------------------
    The Bush administration's rationale for deleting this language from 
the final rule states:

          Several of the comments raised concerns that the exclusion 
        included in the proposed definition for discharges covered by 
        proposed or existing effluent limitation guidelines or 
        standards or NPDES permits was vague and would result in 
        uncertainty with respect to the regulation of certain 
        discharges. Other comments stated that it was inappropriate for 
        rule language to allow reliance on proposed effluent limitation 
        guidelines or standards before they are promulgated as a final 
        rule. In addition, including the language in the actual rule 
        could raise questions as to whether the reference to effluent 
        guidelines was meant to refer only to those in existence at the 
        time today's rule was promulgated or whether the reference was 
        prospective.\101\
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    \101\ 67 Fed. Reg. at 31135. The agencies do go on to say 
``although we have removed the language in question from the rule 
itself, we emphasize that today's rule generally is intended to 
maintain our existing approach to regulating pollutants under either 
section 402 or 404 of the CWA.'' Id.

    Again, these were the concerns of the NMA and other mining 
companies. In their comments, the NMA said they saw ``a potential 
ambiguity arising . . . whereby discharged material that has the effect 
of replacing portions of waters of the U.S., or substantially raising 
the bottom elevation for such waters, could conceivably result in 
attempts to be excluded from Sec. 404 coverage simply due to the 
presence of constituents in the material that would be literally 
pollutants for which [effluent limits] exist if such constituents were 
discharged in waste water (i.e., mine drainage or process water) 
subject to Sec. 402 permitting requirements.'' \102\
---------------------------------------------------------------------------
    \102\ NMA comments at 7 (emphasis in original).
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    In other words, as long as they dump enough tailings or other waste 
``constituents'' into a waterway so that the waterway is filled, mining 
companies and others should be able to apply for a Sec. 404 ``fill'' 
permit from the Corps for the part of the waste discharge that would 
bury the water--even if the waste to be discharged has an effluent 
limitation and would otherwise be regulated under Sec. 402 of the law. 
This seems to create a potential loophole--most likely an illegal one--
that could give companies the incentive to dump more waste into waters 
instead of less. But, again, the mining companies got their way with 
the Bush administration.

                               CONCLUSION

    If it ever goes into effect, which Earthjustice hopes will never be 
the case, the ``waste in waters'' rule change would give the Corps 
discretion to permit any industry, governmental agency, or individual 
to bury rivers, streams, wetlands and other waters all across the 
country under tons of coal and hardrock mining waste, construction or 
demolition debris, tires, coal ash or almost any other sort of solid 
waste. It short, the Bush administration's rule would allow the Corps 
to issue permits for the disposal of virtually any waste in any waters 
of the United States.
    This is likely the worst thing to happen to the Clean Water Act and 
the future of our nation's waterways since the law was passed 30 years 
ago.
    What is most startling about the Bush administration's new rule is 
that it was finalized without any review whatsoever of the 
environmental and societal harm that eliminating the 25-year old 
prohibition on using waste as fill materials will have as our nation's 
wetlands, streams, lakes, ponds, rivers and coastal areas are 
obliterated under piles of industrial wastes.
    The administration ignored the information prepared by and for its 
own agencies in order to allow the destruction of mountaintop removal 
to continue. It gave in to all of the demands of the mining industry to 
open up the rule to allow virtually any kind of mining waste, including 
those contaminated with toxins, to be dumped in waterways. It conducted 
no environmental review of any kind about the potential, likely or 
known harm that this rule change will allow. In a word, what this 
administration has done is unconscionable.
    Appalachia is already treated as the country's sacrifice zone in 
pursuit of a backward-looking national energy policy too reliant on 
extracting non-renewable, polluting sources of power like coal from the 
Earth. Now, the Bush administration has added to this sacrifice the 
integrity of the nation's waters from coast to coast and everywhere in 
between.
    Because Judge Haden has enjoined the Corps from issuing any Clean 
Water Act permits for the purpose of waste disposal, there may not be 
an immediate need for Congress to act to overturn the administration's 
actions. But as the legal battles on this rulemaking continue, as they 
undoubtedly will for some time, it could make sense for Congress to 
step in and settle the matter once again by reconfirming that allowing 
waste dumps to bury waters is wholly inconsistent with the letter and 
the purpose of the law.
    In any event, Members of Congress who support the goal of 
protecting the integrity of the nation's waters as we near the 30th 
anniversary of the Clean Water Act, should take a stand publicly 
against the Bush administration's ``waste in waters'' rule change.
    Thank you again, Mr. Chairman, for the opportunity to testify on 
this important issue.
                                 ______
                                 
           Responses by Joan Mulhern to Additional Questions 
                         from Senator Lieberman

    Question 1. In testimony of EPA and the Corps, they described the 
revised definition of fill material as ``consistent with the current 
practice of the agencies.'' According to the final rule, examples of 
wastes now eligible for Sec. 404 permits include, but are not limited 
to ``rock, sand, soil, clay, plastics, construction debris, wood chips, 
[and] overburden from mining or other excavation activities'' in 
addition to ``placement of overburden, slurry, or tailings or similar 
mining-related materials'' are also to be permitted. What is your view 
of the claim that the revised definition is ``consistent with the 
current practice of the agencies''? What is your view of the examples 
of wastes cited by the agencies as now eligible for permits?
    Response. The claim by the EPA and Corps that the new definition of 
fill is ``consistent with the current regulatory practice'' is partly 
but not wholly true. To any extent that it is true, it is not a valid 
excuse for the administration's decision to change in the definition of 
fill in an attempt to make the rules conform to the agencies' past 
illegal practices.
    There is no exception to the Clean Water Act that gives polluters 
the right to continue to break the law just because it has been the 
practice of Federal regulators to allow them to do so. Neither do the 
past practices of the agencies give them the legal authority to create 
new exceptions to the Clean Water Act through regulatory revisions. 
Only Congress has the ability to amend the Clean Water Act.
    Earthjustice's view regarding all of the wastes listed in the May 
3rd rule as now eligible ``fill'' for Clean Water Act ' 404 permits is 
that there are no circumstances under which these kinds of wastes 
should be allowed to be placed into waters of the US for disposal. The 
inevitable and intentional effect of this rule change, if it is ever 
allowed to go into effect, will be to allow any industry to seek 
approval from the Corps to dump almost any kind of industrial waste 
into waterways--just as long as they dump enough waste to ``fill'' the 
water or at least raise the bottom elevation of the waterway. The fate 
of every wetland, stream, lake, river, pond and coastal water in the 
country is thereby placed at risk by the Bush administration's actions.
    It is true that the Corps and EPA have looked the other way for 
many years while coal mining companies have dumped millions of tons of 
waste rock, dirt and other materials generated by mountaintop removal 
into Appalachian streams, obliterating those waters.
    According to most estimates, over one thousand miles of streams in 
Kentucky and West Virginia have been destroyed forever by this 
violation of the Clean Water Act. As Senator Lieberman noted in his 
opening statement at the hearing, Corps officials have admitted under 
oath that they had no legal authority to permit this destruction but 
they routinely did so anyway, explaining that they just ``oozed'' into 
this lawless practice.
    As for all of the other wastes that the new rule would allow to be 
dumped into waters of the United States--rock, sand, soil, clay, 
plastics, construction debris, wood chips, overburden from other 
excavation activities, slurry, and tailings or similar mining-related 
materials--the Corps and EPA have provided no analysis whatsoever to 
substantiate their claim that allowing these wastes to be dumped into 
wetlands, streams, lakes, rivers and other waters protected by the Act 
is ``consistent with the current regulatory practice of the agencies.'' 
Both before and after the hearing, Earthjustice asked EPA to provide 
examples of where such waste dumping has been permitted. So far, we 
have not been provided with any documents to substantiate the agency's 
assertion that permitting such waste disposal is routine or has 
occurred at all under the Corps' Sec. 404 regulatory practice.
    The Bush administration contends that elimination of the ``waste 
exclusion'' will have no environmental effect because the agencies 
already allow waste dumps in waters. As noted above, it is not clear 
whether or to what extent this assertion is even true when it comes to 
wastes other than mountaintop removal waste. In any case, the claim 
that changing the rules to allow the continuation of waste dumping 
practices will cause no additional harm is absurd on its face. Whatever 
the number of waters the Corps may have already allowed industries to 
bury with their wastes, pristine streams, wetlands, lakes, rivers, 
ponds and coastal waters across the country will be filled and 
destroyed in the wake of this rule change. Obliterating waters has a 
very negative effect on the environment.
    The rule change to allow industrial wastes, including coal mining 
waste, to be dumped into waters is simply indefensible. It is directly 
contrary to the intent of Congress when it passed the Clean Water Act 
in 1972. The central purpose of the Act is to ``restore and maintain 
the chemical, physical, and biological integrity of the Nation's 
waters.'' No activity is more inconsistent with the goal of protecting 
the integrity of waters than allowing them to be buried forever under 
piles of industrial waste. It was precisely for the purpose of ending 
the use of our country's waterways as waste dumps to the exclusion of 
other uses that the Clean Water Act was adopted in the first place.

    Question 2. Please describe alternatives to the agencies allowing 
wastes to be placed in waters.
    Response. There are always alternatives to placing wastes in 
waterways for disposal. Disposal of solid waste materials is not a 
``water dependent'' activity. There is never any technological reason 
why such wastes should ever be placed into streams, wetlands, lakes, 
rivers or other waters--it can always be taken somewhere else. 
Ecologically, again there is never any justification for burying waters 
with waste, as the nation's waters are irreplaceable resources that 
protect communities from flooding, provide drinking water and 
recreational opportunities, sustain local economies and provide habitat 
and food for a wide variety of species. It is inexcusable, as well as 
illegal, to allow these resources to be forever destroyed by waste 
dumping.
    Alternatives to placing wastes in waterways include (1) not 
generating the waste (or such large amounts of waste) in the first 
place; and (2) disposing of any wastes that are generated in a dry 
upland area instead in a waterway.
    The EPA and Corps have not provided even a superficial 
justification for allowing construction and demolition debris, hardrock 
mining waste, or other wastes to be placed in waters. No rationale 
whatsoever is offered for including these wastes in the new ``waste 
dump in waters'' rule.
    For mountaintop removal mining wastes, the Bush administration and 
the coal mining companies claim that there are no alternatives, but 
again, provide no real analysis. In fact, there are alternatives. The 
first is to mine in a way that does not generate as much waste as 
completely blowing off the tops of mountains does. This is not the only 
way to mine coal, although some companies argue it is the cheapest. But 
the majority of existing mining permits in West Virginia and Kentucky 
have been issued without any valley fills.
    Even for coal mining operations that do seek approval to bury 
streams, alternatives are likely to be available. These alternatives 
include placing waste on previously mined areas that were not returned 
to their original contour or other previously disturbed areas such as 
old refuse impoundments; using side hill fills; and taking waste to 
other more distant disposal locations. In addition, coal companies can 
redesign the configuration of their operations and change their mining 
equipment to reduce fill impacts. According to mining engineer John 
Morgan, an expert witness in the ongoing litigation, the impact of 
valley fill restrictions would vary from mine to mine and requires 
site-specific engineering analyses, so broad brush statements that the 
coal companies have no choice but to dump their wastes in streams are 
likely to be incorrect at many sites.
    One recent example dramatically illustrates not only that 
alternatives are readily available, but also that the Corps will not 
require them nor will the coal companies utilize such alternatives 
unless forced to do so.
    On June 3rd, the company that now owns the very mine that is the 
subject of the Kentuckians For The Commonwealth lawsuit wrote to the 
Corps to say that they can mine their entire site without filling any 
waters of the US protected by the Clean Water Act. Originally, this 
mine sought and received approval from the Corps to create 27 valley 
fills that would bury 6.3 miles of streams--an extremely large 
mountaintop removal operation. In fact, this operation was so 
potentially devastating to the environment that the EPA threatened to 
use its authority under the Clean Water Act, seldom invoked, to veto 
the permit. But the Corps persisted in its plan to approve the 27 
valley fills, and under the Bush administration, the previously 
threatened veto evaporated and the Corps granted the approval for the 
project.
    Less than a month after Judge Haden's decision enjoining the 
``waste dump'' rule, Beech Fork mining company, the current owner of 
the site, wrote to the Corps to announce they determined they could 
mine the coal on their site--all of it--without creating any valley 
fills in waters of the US. The company's letter stated that they had 
bought an old mine site adjacent to theirs that ``provides substantial 
acreage for spoil disposal out of the waters of the United States.'' So 
this company that was proposing over two dozen valley fills--for which 
the Corps presumably determined that no alternatives existed--suddenly 
found a way to mine the entire site without the massive stream 
destruction originally proposed and approved.
    Underscoring the fact that this debate is not so much about the 
absence of alternatives as it is finding the cheapest waste disposal 
option available, Beech Fork went on to say in its letter that ``[I]f 
it is determined that Judge Haden's order only applies prospectively 
and not to Beech Fork's original authorization, or should Judge Haden's 
decision be reversed on appeal, Beech Fork intends to operate as 
initially planned to operate pursuant to its original authorization.'' 
(Letter attached.)
    Clearly, the Corps and EPA have never required coal mining 
companies to fully explore alternatives to dumping waste in streams. 
Because the agencies have not enforced the Clean Water Act, coal 
companies have found no reason to look elsewhere than the nearest 
valley and stream to dump their wastes. When citizens went to court 
themselves to enforce the Act, the Bush administration moved quickly to 
change the rules in an attempt to allow the companies to keep dumping 
their wastes in waterways rather than changing their practices, finding 
alternatives, and obeying the law.

    Question 3. Most of the testimony at the hearing revolved around 
mountaintop removal and subsequent placement of mine overburden into 
waters. Do you see the implications of this rule confined to specific 
regions and practices, or are there national implications for water 
quality? Please explain what implications, if any, you see on a 
regional and/or national basis?
    Response. While no other region of the country is likely to suffer 
the detrimental effects of this rule change as severely as the coal 
field communities of Appalachia, the destruction of wetlands, streams, 
rivers, lakes and other waters will occur nationwide. Section 404 of 
the Clean Water Act, which authorizes the Corps to permit certain 
activities that ``fill'' waters, applies to all waters of the United 
States covered by the Act. Changing the definition of ``fill'' material 
to delete the waste exclusion, as the administration has done, places 
every water in the country in jeopardy. In other words, any industry 
that generates waste--other than traditional garbage--can now seek a 
permit from the Corps to allow them to dump their waste into any 
waterway anywhere, a practice prohibited by the Corps' own regulations 
for the last quarter century.
    Expanding the Sec. 404 permitting jurisdiction to allow waters to 
be buried under hardrock mining tailings, other excavation wastes, 
construction and demolition debris, plastic waste and other refuse will 
have a significant destructive effect on the environment nationwide. 
Permitting industries to bury and obliterate waterways with waste will 
have severe adverse effects on water quality, water supplies, fish and 
wildlife habitat, flood control and floodplain management, as well as 
other health, safety, environmental and economic consequences for the 
communities wherever such waste fills are allowed.
    The Bush administration's new definition of ``fill'' says that 
waters can be used as waste dumps, so in the water is where a lot of 
these wastes will end up. Given the quantity of industrial waste 
generated in the country each year, the prospects for our nation's 
waterways are frightening. The enormous volumes of just two of the 
several categories of waste explicitly listed as ``fill'' in the new 
rule--construction debris and hardrock mining waste--reveal how 
damaging this rule change will be, if its implementation is not blocked 
by the courts or overturned by Congress.
    The EPA estimates that 136 million tons of building-related 
construction and demolition debris (C&D) was generated in the United 
States in 1996, and this is just one category of C&D waste. A 1992 
Congressional Office of Technology Assessment report estimated that the 
hardrock mineral mining industry generated about 1.7 billion tons of 
extraction and related wastes in 1987, and this does not include 
mineral processing and other related hardrock mining wastes.
    When companies are allowed to fill waters with waste, water quality 
is not only harmed, the waterway is obliterated. As Judge Haden 
explained in his opinion in the Bragg case in October 20, 1999:

          When valley fills are permitted in intermittent and perennial 
        streams, they destroy those stream segments. The normal flow 
        and gradient of the stream is now buried under millions of 
        cubic yards of excess spoil waste material, an extremely 
        adverse effect. If there are fish, they cannot migrate. If 
        there is any life form that cannot acclimate to life deep in a 
        rubble pile, it is eliminated. No effect on related 
        environmental values is more adverse than obliteration. Under a 
        valley fill, the water quantity of the stream becomes zero. 
        Because there is no stream, there is no water quality.

    The same effect--obliteration--will occur in other waters, 
including ephemeral streams, which are vitally important to downstream 
water quality, wetlands, and river segments when they buried under 
piles of mining tailings or construction debris or excavation wastes. 
While the destruction of waters is unlikely to occur elsewhere on the 
scale that it does in Appalachia, it is undeniable that the effect of 
``filling'' waters with waste is that the waters are destroyed.
    Nonetheless, the Corps and EPA completely failed to analyze the 
regional or nationwide environmental consequences of eliminating the 
waste exclusion from the definition of fill material. The Bush 
administration conducted no studies or analyses whatsoever to measure 
these impacts. Given the enormous quantities of these wastes generated 
every year across the country, we can only conclude that the nationwide 
effect of the rule change on the nation's waters will be significant.

    Question 4. Please describe your views of the EPA's and the Corps 
responsiveness to public comments following the April 2000 proposed 
fill rule definition change and public involvement in the changes to 
the rule announced on May 3, 2002.
    Response. Under the Clinton administration, the agencies were very 
responsive to the public's comment and concerns. In finalizing the 
change in the definition of fill, the Bush administration agencies were 
responsive to only one set of comments--those of the mining industry.
    The overwhelming majority of comments filed on the proposed rule--
over 17,000--strongly opposed deleting the waste exclusion from the 
definition of ``fill'' material. Fewer than a dozen comments--all from 
coal or hardrock mineral mining companies plus one from the asphalt 
manufacturers' association--supported the proposal to eliminate the 
waste exclusion to allow waste dumping in waters.
    The Clinton administration did not finalize the proposal to 
eliminate the waste exclusion from the rule, consistent with the 
comments of the overwhelming majority of commenters. In contrast, Bush 
administration completely ignored the public comments; not only did it 
finalize this destructive rule change, it did so exactly to the 
specifications of the mining industry.
    The response to public comments summarized in the preamble to the 
final rule and contained in a separate ``responsiveness'' document are 
not responsive at all to the vast majority of comments--those opposed 
to the rule change. Both documents are replete with unresponsive, 
conclusory, and unsubstantiated statements that repeat the same 
assertions over and over without providing any factual information or 
environmental analysis to support the administration's oft-repeated 
claims that this rule simply conforms to past practice and will not 
harm the environment.
    Not only did the Bush administration ignore the concerns of the 
public to heed the desires of the mining industry to get rid of the 
waste exclusion generally, but the only changes made in the final rule 
were changes the National Mining Association and its allies asked the 
agencies to make.
    Unfortunately, both of the NMA changes eliminated provisions that 
were in the proposed rule that would have excluded at least some 
categories of waste from being eligible as ``fill.'' That is, under the 
Clinton administration, there were two provisions in the proposed rule 
that would have kept at least some modest limits on dumping certain 
industrial waste into waterways under Sec. 404. While neither of these 
two provisions were adequate substitutes for the broad-based waste 
exclusion that was proposed for deletion, both would have restricted 
the permitting of processed or contaminated waste materials under 
Sec. 404.
    Both provisions were removed from the Bush administration's final 
rule at the request of the National Mining Association and its member 
groups, including both coal mining and hardrock mineral mining 
interests that wanted the final rule written to their specifications. 
In the final rule, the Bush administration gave them exactly what they 
asked for.
    First, the preamble to the April 2000 proposed rule suggested that 
the final rule would contain a definition of ``unsuitable fill 
material.'' The proposal stated that the Corps could include within its 
regulations a definition for ``unsuitable fill material'' that would 
read generally as follows:

          The term ``unsuitable fill material'' means any material 
        proposed to be discharged into waters of the United States that 
        would fall under the definition of ``fill material,'' but which 
        the District Engineer determines to have physical or chemical 
        characteristics that would make the material unsuitable for a 
        proposed discharge into waters of the United States, so that 
        there is no reasonable possibility that a section 404 permit 
        can be granted for the proposed discharge of that particular 
        material. For example the District Engineer may determine that 
        fill material is unsuitable because of the potential for the 
        leaching of contaminants from the fill material into ground 
        waters or surface waters. . . . In most circumstances, 
        heterogeneous solid waste, discarded appliances, and automobile 
        or truck bodies would qualify as unsuitable fill material. In 
        addition, material containing toxic pollutants in toxic amounts 
        (see section 307 of the Clean Water Act) is unsuitable fill 
        material. 65 Fed. Reg. at 21296-21297 (emphasis added).

    In its comments on the rule, the mining association argued that 
having a category of ``unsuitable fill material'' could lead to the 
denial of some permits--obviously not the outcome they desired. So the 
unsuitable category was dropped in the final rule.

    Second, the definition of fill in the April 2000 proposal contained 
an exception for discharges covered by proposed or final effluent 
limitations guidelines and standards of the Clean Water Act and 
discharges already covered by a permit issued under Sec. 402 of the 
Act. At the time, the EPA and Corps argued that the proposed ``effects-
based'' definition of fill material required this clarification 
``because, read literally, it could subject to regulation under CWA 
section 404 certain pollutants that have been, are being, and should be 
regulated by the technology and water quality based standards used in 
the section 402 program.''
    But the NMA did not like this proposal either, again because it 
might limit mining companies' ability to get ``fill'' permits for some 
waste discharges. So despite the agencies' earlier concerns, the Bush 
administration dropped this language from the final rule as well.
    In the final rule, the Bush administration took the position, in 
accordance with NMA's instructions, that no waste (other than trash or 
garbage) generated by any industry is unsuitable for dumping into 
waters of the United States, even if it is toxic. Both the ``unsuitable 
waste'' category and the effluent limitation language were gone from 
the final rule. The mining companies completely got their way; theirs 
were the only comments to which the Bush administration rule change was 
responsive.
     American Rivers, Defenders of Wildlife, Earthjustice, 
Endangered Species Coalition, Friends of the Earth, Mineral 
    Policy Center, League of Conservation Voters, National 
 Audubon Society, National Parks Conservation Association, 
   National Wildlife Federation, Natural Resources Defense 
     Council, Physicians for Social Responsibility, Scenic 
                 America, Sierra Club, The Coast Alliance, 
     Trout Unlimited, U.S. Public Interest Research Group, 
                                       World Wildlife Fund,
                                                     March 8, 2002.
Hon. George W. Bush,
President of the United States,
The White House,
1600 Pennsylvania Avenue, NW.,
Washington, DC.
    Dear Mr. President: Our organizations are deeply concerned that 
your Administration is poised to change an important Clean Water Act 
regulation in order to authorize the Army Corps of Engineers to permit 
coal mining companies and other industries to bury waters of the United 
States with waste materials. The proposal would eliminate from existing 
regulations a long-standing prohibition against using waste materials 
to fill streams, rivers, lakes and wetlands. Dropping the waste 
exclusion from the law would threaten bodies of water across the 
country and is flatly inconsistent with the goals of the Clean Water 
Act. We urge you to direct the Army Corps and the Environmental 
Protection Agency not to bury waters with waste dumps by changing clean 
water regulations.
    This rule change is primarily an effort to legalize the destructive 
practice known as mountaintop removal coal mining, in which the tops of 
mountains are literally blown apart to reach seams of coal and the 
millions of tons of waste generated are dumped into nearby streams. 
Just in West Virginia alone, over 1000 miles of streams have been 
destroyed or targeted for destruction by this form of mining. The 
extreme environmental consequences of this rulemaking would not end 
with mountaintop removal coal mining; the rule change would also 
sanction other waste disposal practices in waters of the United States, 
including the dumping of hardrock mining waste and other industrial 
wastes.
    At issue is the Army Corps' definition of ``fill,'' which 
determines the scope of the agency's jurisdiction to issue permits 
pursuant to section 404 of the Clean Water Act. Under the current 
definition, ``fill'' means any material ``used for the primary purpose 
of replacing portions of the waters of the United States with dry land 
or which changes the bottom elevation of a water body; except that the 
term does not include any pollutant discharge composed of waste.'' The 
proposed new definition would say that any material that has the effect 
of replacing portions of waters with dry land or changing the bottom 
elevation of a water body is permissible for use as ``fill'' material. 
While there are some environmental gains from changing from the 
``primary purpose'' to an ``effects'' test, the proposed rule is 
nonetheless completely unacceptable because it would open up waters 
across the Nation for filling with wastes by deleting the waste 
exclusion in the existing rule.
    Unifying EPA and Army Corps definitions of ``fill'' makes sense, 
and other changes to the definition could resolve some ambiguity in the 
current regulatory scheme, but the proposed rule change goes far beyond 
those legitimate goals. The rule would result in an unconscionable 
weakening of the Clean Water Act by allowing the Corps to permit waters 
to be turned into waste dumps--the very thing the Act was adopted to 
prevent.
    Changing the definition of ``fill'' was proposed by the Clinton 
administration in April 2000. During the notice and comment period, 
over 17,000 members of the public, over 20 national environmental 
groups and dozens of Members of Congress objected to the plan to strip 
the waste exclusion from the definition, while only a handful of mining 
companies and industry trade groups offered support for the new rule. 
As a result, the previous Administration never finalized the change. We 
ask you to reconsider this proposal as well. Instead of moving forward 
with this change, you should ensure that the Corps cannot permit 
disposal of millions of tons of industrial wastes into our waterways or 
take any similar action that would so dramatically compromise our clean 
water laws.
    In sum, we oppose any changes to Clean Water Act rules that would 
allow waters of the United States to be buried and forever destroyed by 
coal mining waste, hardrock mining waste, and other industrial wastes. 
We respectfully ask you to uphold the integrity of the Clean Water Act, 
which was passed 30 years ago with the goal of protecting the integrity 
of the nation's waterways and the health of the country's communities. 
Our organizations stand ready to work with you to achieve this goal.

            Sincerely,

        Mark Van Putten, President and CEO, National Wildlife 
        Federation; Thomas C. Kiernan, President, National Parks 
        Conservation Association; Brooks Yeager, Vice President, Global 
        Threats, World Wildlife Fund; John Flicker, President, National 
        Audubon Society; Rodger Schlickeisen, President, Defenders of 
        Wildlife; Rebecca R. Wodder, President, American Rivers; Meg 
        Maguire, President, Scenic America; Jackie Savitz, Executive 
        Director, The Coast Alliance; Robert K. Musil, PhD, MPH, 
        Executive Director and CEO, Physicians for Social 
        Responsibility; Deb Callahan, President, League of Conservation 
        Voters; Carl Pope, Executive Director, Sierra Club; Vawter 
        Parker, Executive Director, Earthjustice; John Adams, 
        President, Natural Resources Defense Council; Stephen 
        D'Esposito, President, Mineral Policy Center; Brent 
        Blackwelder, President, Friends of the Earth; Gene Karpinski, 
        Executive Director, United States Public Interest Research 
        Group; Brock Evans, Executive Director, Endangered Species 
        Coalition; and Charles Gauvin, President and CEO, Trout 
        Unlimited.
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   Statement of Michael Callaghan, Cabinet Secretary, West Virginia 
                 Department of Environmental Protection
    Thank you, Mr. Chairman, and members of the subcommittee, for this 
opportunity to come before you to speak on an important issue for 
Westirginia and southern Appalachia.
    My name is Michael Callaghan. I am the Cabinet Secretary for the 
West Virginia Department of Environmental Protection. I am here today 
to speak with you about the policy and practice of using valley fills 
in coal mining operations in West Virginia and southern Appalachia. 
While most of my testimony relates to impacts on the coal industry, the 
fill rule has significant implications in many areas that impact the 
economy throughout the country.
    I am a fifth generation West Virginian who grew up in the southern 
coalfields. As a citizen and an avid fisherman and outdoorsman, I 
appreciate both the benefits and the burdens brought upon West Virginia 
by more than one hundred years of coal mining. West Virginians have 
been debating both the costs and benefits of the mining industry for 
many years. Health, safety, employment and environmental issues are 
implicated by mining practices.
    Mountaintop removal mining is, as the name suggests, a mining 
method in which soil and rock are removed from the tops of mountains to 
expose a seam of coal. The excess soil and rock, known as spoil, is 
commonly placed in nearby valleys and hollows, thereby creating large 
sloped areas called valley fills. Mountaintop removal is the most 
economical way to mine coal in steep slope terrain, such as southern 
West Virginia, but it has the consequence of filling miles of mountain 
streams with rock and dirt. Other forms of mining such as underground 
mining and contour mining, also make use of valley fills, but to a 
lesser degree.
    The demand for low sulphur coal has been steadily increasing over 
the last decade, and the southern Appalachian coal fields, which 
includes West Virginia, are a critical source of low sulphur coal. In 
West Virginia in 2000, 169 million tons were mined through surface and 
underground operations. That increased to 175 million tons in 2001 and 
tonnage is expected to top 180 million in 2002.
    The state of West Virginia issues mining permits through a 
federally approved program and has primacy of its program through the 
Department of the Interior. That is, the Surface Mine Control and 
Reclamation Act (SMCRA) and its regulations dictate most aspects of the 
permitting process implemented by the state, including the permitting 
of valley fills. In West Virginia, among numerous other requirements, 
every permit for a mining operation which proposes filling a stream 
must include detailed provisions for minimizing the amount of excess 
spoil material, a storm water runoff analysis to prevent flooding and 
detailed engineering requirements to ensure structural stability. In 
other words, our state has a regulatory structure to analyze the impact 
of valley fills prior to the issuance of a state permit.
    In addition to state approval, before any waters of the United 
States can be filled, the mining company must obtain a Section 404 
permit under the Clean Water Act from the U.S. Army Corps of Engineers. 
The Corps has interpreted the Clean Water Act to authorize construction 
of valley fills.
    Over the last 20 years, the state of West Virginia and Federal 
oversight agencies, which include the Environmental Protection Agency, 
the Army Corps of Engineers and the Office of Surface Mining, issued 
permits that authorized the construction of more than 4,000 valley 
fills in West Virginia. Those fills have ranged in size from a few 
hundred yards to over 2 miles in length and affected approximately 750 
miles of our streams, creeks and drainageways.
    To better assess the practice of mountaintop mining, the Federal 
oversight agencies and the state of West Virginia have been working for 
3 years on an environmental impact statement to address mountaintop 
mining and valley fills. The parties are far from reaching a conclusion 
on the measurable, long term impact of mountaintop mining and valley 
fills upon the environment and the economy.
    One conclusion about mountaintop mining and valley fills that is 
certain though is that the use of these practices has enabled the 
mining industry to flourish and has put thousands of West Virginians to 
work. In fact, under challenging market conditions, production in West 
Virginia has steadily increased. In numerous communities in southern 
West Virginia, the coal mining industry has, for many years, formed the 
backbone of the economy. The industry draws its work force from the 
local population and many additional jobs are sustained through 
businesses that support mining, such as transportation, equipment sales 
and maintenance.
    However, over the past several years, we have seen a decline in 
mining-related employment as increasingly large scale technology and 
automation facilitate the mining of larger tracts of land with fewer 
people. We anticipate that this trend will increase over the next 15 
years as the most accessible reserves of coal are mined out and 
additional automation becomes available to the mining industry.
    Market factors such as western coal competition, depletion of 
reserves, economies of scale and industry mergers will likely lead to a 
decline of employment in the mining industry in Appalachia. This will 
leave this region, especially West Virginia, with an economic void.
    Ironically, valley fills and mountaintop removal sites can serve as 
effective development tools for filling the gap left by the mining 
industry. That is, when properly planned, mountaintop mining sites have 
proven ideal locations for industrial, commercial, residential and 
recreational development. The flat topography of mountaintop removal 
sites in areas typically devoid of prime building locations has already 
proven beneficial to several businesses, including a large wood 
products factory, a world-class golf course, a multi-faceted 
recreational park and residential development.
    My department is working closely with the state economic 
development office to more fully utilize former surface mining sites. 
And in the coal mining counties, individuals like Mike Whitt of the 
Mingo County Economic Development Authority have risen as leaders in 
the field, working closely with coal mining companies, state and local 
officials and prospective businesses, to successfully maximize the use 
of former surface mining sites as opportunities for growth. These 
efforts must be increased in the future to reinvorgate the economy of 
southern West Virginia.
    Unfortunately, former mining sites historically have been 
underutilized as economic development tools. Of the several hundred 
surface mining sites with valley fills, less than two dozen have been 
used for economic or community development. State and Federal law has 
not compelled mine operators to implement a beneficial post mining land 
use unless the company is seeking a variance from requirements to 
return a site to its approximate original contour. In such instances, 
the permit applicant must demonstrate that the post mining land use 
will be equal to or better than the premining use of the site.
    Currently, there are 69 applications pending with my agency that 
contemplate filling waters of the United States. Of those applications, 
only seven seek a variance and propose post-mining land uses that are 
equal to or better than pre-mining land uses.
    Prior to leading DEP, I was a Federal prosecutor with experience 
prosecuting environmental violations. When I assumed office a little 
more than a year ago, one of my first acts was to appoint an 
environmental prosecutor from the Department of Justice in Washington 
to take control of our mining regulatory program. Our agency is now 
focused upon the strict application of the law as it applies to our 
mining permits. We have restructured our mining program to be more 
efficient and responsive to the public. Additionally, we are making the 
best use of emergency Federal funding with a state match to upgrade our 
staff and to improve our technical ability.
    Please know that I am fully committed to the enforcement of the 
existing laws and regulations to demonstrate steady progress in 
improving oversight of the coal industry in West Virginia. While the 
industry is welcome to mine coal in the Mountain State, we intend to do 
our job as regulators and enforce the law.
    While I have addressed the limited role of the fill rule as it 
impacts mining in southern Appalachia, the rule has far reaching 
effects in other regions of the country and other sectors of the 
economy. The consistency in definitions of the fill rule between the 
Environmental Protection Agency and the Army Corps of Engineers is 
important to mining operations in West Virginia, but it is very 
important to other sectors throughout the country as well. I thank you 
for this opportunity today and look forward to your questions.

                               __________
         Statement of Kevin Richardson, President and Founder 
                  of the Just Within Reach Foundation

    Mr. Chairman, Honorable Committee members, guests . . . I'm here 
today to talk about the systematic destruction of one of the most 
beautiful, productive and historic regions of our country--my home 
state of Kentucky, the mountains of West Virginia and Tennessee, and 
the other areas of Appalachia where the practice of mountaintop coal 
mining has taken over.
    In the midst of their giant lakes of coal sludge that sometimes 
burst without warning, their constant dynamiting that shakes homes from 
their foundations, their transformation of forested mountain ranges 
into flat, gravel-covered moonscapes, and their contamination of well 
water and aquifers, coal companies engage in the practice of ``valley 
fill''--our reason for being here today.
    For years, the Corps of Engineers has routinely issued permits to 
coal companies in the Southeast and Appalachia, allowing them to fill 
valleys and waterways with ``overburden'' from their mountaintop-
removal coal extraction operations. Overburden, along with coal sludge, 
are the byproducts of extracting and washing coal, before shipping it 
to electric generating plants around the country. EPA officials, 
residents living in the shadows of the mines and citizen groups have 
questioned the validity and legality of the Corp's decision to issue 
such permits--permits for an activity that dumps mining waste into the 
region's streams, rivers and valleys. Hundreds of millions of tons of 
industrial mining byproduct are pushed into the valleys surrounding 
coal extraction sites, to date, burying over 1,500 miles of headwater 
streams in West Virginia and my home state. Valley fills destroy the 
spawning grounds that support our recreational fishing industry, they 
contaminate our drinking water and they trash our thriving tourist 
industry that relies on the natural beauty of our area.
    In April, a Federal District Court judge finally brought some 
needed attention to this issue by ruling that the Corps' practice of 
issuing valley fill permits violates Congress' intent in the Clean 
Water Act and its restrictions on using waterways for industrial waste 
disposal. The Administration's recent attempt to circumvent the Clean 
Water Act by rewriting the rules to define coal extraction waste as 
``fill'' is a nice gesture to their friends in the industry. But it 
clearly exceeds the Administration's legal authority granted under the 
Act. Such a gesture cannot alter the meaning of the LAW. I urge you to 
make this clear to the President and his agencies.
    The bottom line is that we have an industry that has thrived, not 
from honest business practices in a free market, but from passing its 
real costs to the people of Appalachia and the rest of the United 
States . . . with subsidies in the form of illegal permits from the 
Corps of Engineers and other agencies that are supposed to protect us. 
Ending the practice of valley fills and making coal companies manage 
their industrial waste like any other industry is not about hugging 
trees and worshipping mountains. It's about making coal compete for our 
energy dollar on an equal playing field with natural gas, 
hydroelectric, solar and wind. It's about recognizing that WE own the 
streams and rivers of this country and that WE own the fish and other 
resources in those waterways. Destroying the rivers, the fisheries, the 
forests and the mountains through irresponsible coal extraction, as 
well as the coal-produced acid rain deposition in your home state, Mr. 
Chairman, is no different than kicking down the doors of our homes and 
walking out with an armful of our valuables--theft is theft.
    I am not a scientist, but I do know what I've seen on flights over 
the coalfields. The historic resources that sustained Daniel Boone, the 
original Cherokees and generations of mountain people are being 
converted on a mammoth scale into flat, lifeless plateaus. The first 
time I flew over the area at 5,000 feet, I thought I would see a few 
scarred peaks. Instead, I saw the entire horizon filled with mountains 
with their tops blown off, huge lakes of toxic sludge and piles of 
waste filling every valley around the mines.
    I came here today to bring attention to an Administration policy 
and a Corps of Engineers practice on valley fills that is completely 
misguided and gives no consideration to the lives of generations to 
come. When I move back home to raise a family on my farm in Kentucky, I 
want my kids to be able to fish and swim in the same places I grew up. 
I ask you, our leaders, to look beyond the political clout of the coal 
lobby and do what's right for the forgotten Appalachian region.
    In closing, I would like to personally invite each of you to take a 
flight with me over the coalfields and see firsthand how our future is 
being robbed.
    Mr. Chairman, I thank you for your invitation to speak before the 
committee and your willingness to bring this difficult issue to light.

                                 ______
                                 
         Responses by Kevin Richardson to Additional Questions 
                         from Senator Lieberman

    Question 1. Please describe the activities of the Just Within Reach 
Foundation relative to the issues discussed in the hearing.
    Response. The Just Within Reach Foundation takes an immense 
interest in the education and well being of the young people and 
families in Appalachia--families that are affected by the operations 
and practices of coal extraction companies in the region, At every 
opportunity, JWR provides educational information and material to those 
citizens wishing to learn more about these issues. In addition, we 
serve as a voice for those in the region that do not believe they have 
a voice when it comes to sharing their concerns.
    JWR's mission is to provide environmental education and promote 
personal responsibility and accountability with regard to the health of 
the Earth. JWR serves as a resource that empowers people, particularly 
young people and families, with information and practical examples of 
environmental issues--knowledge that can be put into action at the 
local community level. Working together and with the proper tools, 
young people will be the driving force behind environmental progress, 
changing unfriendly behaviors into actions and practices that will 
conserve and preserve. The JWR Foundation believes we can have progress 
such as industry, jobs and business profits while also protecting 
resources, wildlife, our health and Earth's beauty. But in order to be 
motivated to solve environmental problems, we must first understand how 
those problems impact our daily lives. JWR brings these daily life 
issues to the forefront and helps point people in the right direction 
to learn more and inspire them to create an action plan of their own.
    Areas and Projects supported by JWR:
     Environmental studies scholarships for college students
     Environmental education hikes, trips and camping 
excursions
     Sponsoring kids to attend environmental camps
     Educating people on the importance of being involved in 
political processes
     Clean-up and recycling events throughout the United States
     An educational video and classroom study guide
     An environmental television series for kids and their 
families
     Water and soil testing in potentially hazardous areas
     Research into alternative and renewable energy sources
     Research into the link between the environment and cancer
    We are proud to share that the Just Within Reach Foundation just 
awarded $12,000 in scholarships for college students studying in the 
areas of Environmental Science and Marine Studies. Also, this year, JWR 
assisted the Waterkeeper Alliance in establishing a Kentucky 
Riverkeeper organization in the state of Kentucky, to monitor the 
health of the state's rivers and waterways.

    Question 2. Please describe the impacts associated with valley 
fills in the state of Kentucky.
    Response. The process of utilizing living valleys as a repository 
for mountaintop coal extraction waste has severe and devastating 
impacts on the people, wildlife and natural systems in Eastern 
Kentucky. These valleys serve as the historic and present day homes to 
the people of Appalachia and are the headwaters to all of the surface 
waters in the region. Valley fill wipes out the spawning grounds of 
Appalachia's fisheries by filling in streams and replacing them with 
concrete ditches. A vibrant fishing industry is crucial to the thriving 
tourist economy of Kentucky. Empty, murky streams created by valley 
fills will not attract tourist dollars.
    In addition to their impact on our fisheries, clearing forested 
valleys and filling them with mining wastes has destroyed the natural 
drainage systems in Kentucky. Every time the rain falls in Eastern 
Kentucky, flood waters roll down the denuded hillsides, wiping out 
homes and farms in the flood zones, sometimes killing residents that 
aren't able to escape.

                               __________
 Statement of J. Bruce Wallace, Professor of Entomolgy, University of 
                                Georgia

    Senators, ladies and gentlemen, thank you for the opportunity to 
offer testimony on changing definitions of fill material as it relates 
to central and southern Appalachian streams. These changes, as pointed 
out by Judge Charles Haden, can only be allowed to stand if the U.S. 
Congress alters the intent of the Clean Water Act and allows fills so 
that waste, from mining operations can be deposited in headwater 
streams. Based on more than thirty years of studying Appalachian 
streams, I strongly urge you not to allow this Act to be altered.
    The impacts of coal mining operations are significant and 
detrimental. We are burying streams and creating potential long-term 
environmental consequences that will haunt us into the future from both 
environmental and economic standpoints. Documentation shows at least 
900 miles of headwater streams have already been eliminated in the 
Central and Southern Appalachians between 1986 and 1998 because of 
mountain-top removal valley-fill (MTR/VF) coal mining practices. 
Because these data were derived from maps that do not show all 
headwater streams and spring brooks, I must tell you that this figure 
is a very low estimate.
    The significance of headwater streams is widely accepted by the 
scientific community as demonstrated by an attached letter signed by 44 
senior aquatic scientists and excerpts from a peer-reviewed 
publication. The message from the scientific community is clear: (1) 
headwater streams provide vital ecological goods and services, and (2) 
they are being destroyed at an extremely high rate by human activities.
    Much of the diversity of aquatic biota in the Appalachians is found 
in the small headwater streams. The degradation and elimination of 
headwater streams increase extinction vulnerability for aquatic 
invertebrates, amphibians and fish. Streams draining these forests 
receive most of their energy inputs from leaves, wood, etc. supplied by 
the surrounding forest. The organic matter (called detritus) deposited 
in headwater streams is stored and processed by biota and physical 
processes into smaller particles and dissolved organic matter. This 
detritus is transported downstream to serve as food for other microbes 
and invertebrates (and ultimately fish). Destroying the linkage between 
headwaters and downstream areas alters the availability of organic 
matter as fuel for downstream animals. These downstream reaches are 
often far removed from the headwater source of the detritus input.
    One of the fundamental concepts in stream ecology is the 
longitudinal linkage of upstream to downstream segments. Former streams 
covered by valley fills no longer serve as a source of input, storage, 
and conversion of organic matter for export to downstream areas. Recent 
studies have shown that small streams in the drainage network are the 
sites of the most active uptake and retention of dissolved nutrients. 
Elimination of small streams from the drainage network results in 
increased downstream loading of nutrients and degradation of water 
resources. We should be most concerned with the valuable ecosystem 
services that are lost when streams are buried. Uptake of nutrients by 
vegetation and the transformation of nutrients and chemicals by 
microbes in soils, riparian zones, and streams is an important 
mechanism controlling export of nitrogen from watersheds.
    Our potable water supplies will be harmed many years into the 
future because of large increases in concentrations of several 
chemicals as recently found by the USEPA below valley fills. The large 
increases in concentrations of chemical elements below valley fills 
(Table 1), combined with increased discharge will increase downstream 
pollution. Altered chemistry, and altered temperature regimes, 
contribute to the elimination of sensitive species of invertebrates 
(which also serve as food for higher animals such as fish) from 
downstream areas below valley fills. As shown by USEPA studies in West 
Virginia and Kentucky, many sensitive species are absent from streams 
below valley fills. Who pays for this long-term pollution of our 
waterways? Unfortunately, those of us who live downstream pay the bill.
    This deliberation really boils down to short-term economic gain for 
long-term environmental degradation. However, the question should not 
be ``How can we extract coal resources with the minimum expense and 
maximum short-term profit for the mining companies?'' but rather ``How 
can we extract coal resources in a wise manner, which ensures long-term 
environmental integrity, productive forests, unburied and unpolluted 
streams, and long-term productive economies for our children and 
grandchildren?''

 Table 1.--Median values (mg/L) for un-mined sites and valley fill sites
 for various water quality parameters in West Virginia during the period
            of October 1999 to February 2001 (Source USEPA).
------------------------------------------------------------------------
                                          Un-mined    Valley   Filled/Un-
               Parameter                   sites       Fill      mined
------------------------------------------------------------------------
Sulfate................................       12.6        524       41.7
Calcium................................        4.9        104       21.3
Magnesium..............................        4.1       86.7       21.2
Hardness...............................       29.1        617       21.2
Solids, dissolved......................       50.5        847       16.8
Manganese, total.......................      0.005      0.044        8.8
Conductivity (mhos/cm).................       66.4        585        8.8
Selenium...............................     0.0015     0.0117        7.8
Alkalinity.............................         20      149.5        7.5
Potassium..............................       1.58       8.07        5.1
Sodium.................................       1.43       4.46        3.1
Manganese, dissolved...................      0.005     0.0104        2.1
Chloride...............................        2.5        4.5        1.8
------------------------------------------------------------------------

                                 ______
                                 
         Responses by J. Bruce Wallace to Additional Questions 
                         from Senator Lieberman

    Question 1a. Please describe the specific types of aquatic species 
that are being eliminated as a result of the valley fills and their 
ecological importance.
    Response. The types of organisms whose habitats are being 
eliminated include many taxa of aquatic insects as well as other 
invertebrates, salamanders and some fish.
    The streams destroyed or harmed by valley fills associated with 
mountaintop removal mining range from perennial streams to small 
headwater springbrooks and headwater seeps and many of these seeps and 
springbrooks are year round. Much of the biological diversity of 
aquatic insects found in the Appalachians is found in the small 
springbrooks and headwater seeps. Headwater streams provide unique 
habitats for numerous species. Their degradation and elimination from 
the landscape increase extinction vulnerability for aquatic 
invertebrate (e.g. Morse et al. 1993, Kirchner et al. 2000), amphibian 
(Elliott et al., submitted), and fish species (e.g. Etnier 1997). Morse 
et al. (1997) recognized the southern Appalachian area, extending from 
Maryland and West Virginia southward to Georgia and Alabama, as an area 
of outstanding diversity. Many of the aquatic invertebrates such as 
mayflies, stoneflies, and caddisflies (EPT taxa) occur exclusively in 
the mountainous and foothill areas. For example, 104 species of 
caddisflies found in the Eastern Highlands (Cumberland Plateau, 
Appalachian plateaus, Appalachian Mountains, and Piedmont) do not occur 
anywhere else in the world. Morse and colleagues consider about 74 
species belonging to the EPT taxa to be vulnerable to extirpation in 
the southern Appalachians because many are known to occur from only one 
or two small headwater springbrooks or seepage areas. Morse et al. 
(1997) suspect the number of species potentially subject to extirpation 
may be considerably higher than the seventy-four they list because many 
small streams, seeps, and springbrooks have been poorly explored and 
insufficiently sampled. These areas represent the types of habitats 
that are being filled or proposed for valley fills.
    Studies in other regions suggest that many intermittent and 
temporary streams may contain a diverse assemblage of aquatic species. 
For example, in western Oregon, taxa richness of invertebrates (>125 
species) in temporary streams exceeded that found in a permanent 
headwater, ca. 100 species (Dieterich and Anderson 2000). Dieterich and 
Anderson (2000) found 13 previously undescribed taxa of invertebrates 
associated with one temporary headwater stream. In several northern 
Alabama streams, Feminella (1996) could find little difference between 
the numbers of invertebrate taxa found in permanent streams versus 
those found in intermittent stream reaches.
    Other than the knowledge that small spring brooks and spring seeps 
can be important sites for biodiversity, including unique and rare 
species, few attempts have been made to assess what is lost with valley 
fills. A recent survey conducted in stream habitats destined for valley 
fills in West Virginia and Kentucky (most of which do not appear as 
streams on existing USGS 1:24,000 maps) clearly indicates a diverse 
aquatic fauna extending into drainages with a watershed area of only 
100 to 150 acres (Kirchner et al. 2000). The upstream sampling 
locations started at points of contiguous flow with downstream areas 
(Kirchner et al. 2000). In fact, some watersheds of less than 50 acres 
had multiple (>10) taxa, which could be characterized as requiring at 
least a year or more to complete aquatic stages of their development 
(Kirchner et al. 2000). Mining operations like that proposed here may 
be destroying potentially valuable or unique habitats without knowing 
the consequences of their actions on biodiversity of the region 
(Kirchner et al. 2000)(also see below).
    In addition to these invertebrates there are several salamander 
species, including: Northern two-lined, dusky, spring, and longtail 
(aquatic) plus the breeding stages of Plethodons (woodland salamanders) 
and the Fowler's Toad (Buffo woodhouseii fowleri), which breed in 
streams (Green and Pauley 1987). The southern Appalachian region has 
the highest diversity of salamanders in North America (Duellman and 
Sweet 1999), and many of these are associated with streams (Elliott et 
al., submitted). Many stream salamanders require first order streams 
and their accompanying headwater seepages in order to maintain viable 
populations (Petranka 1998, Elliott et al., submitted). As noted in the 
introduction, a large portion of stream salamander habitat does not 
even appear on USGS 1:24,000 maps (Meyer and Wallace 2001, Hansen 2001, 
Elliott et al., submitted). In fact, these latter authors (Elliott et 
al.) noted that existing 1:24,000 USGS maps accounted for only 34 
percent of stream habitat suitable for salamanders in northern Georgia, 
as most of the smaller streams and seepages did not appear on the USGS 
maps. Hence, many more miles of aquatic habitat are being disturbed by 
the mining operations than measured from the USGS maps.

    Question 1b. What is the ecological importance of species being 
eliminated?
    Response. Loss of headwater streams is going to have more than 
minimal impacts, as well as cumulative and long-term impacts, on 
downstream reaches with respect to energy sources. Headwater streams 
draining eastern deciduous forest receive most of their energy inputs 
from leaves, wood, etc. supplied by the surrounding forest. The 
predominance of organic debris dams in headwater streams (e.g. Bilby 
and Likens 1980) provides sediment and organic matter retention, 
important habitat structure, and sites for critical metabolic activity 
(e.g. Steinhart et al. 2000). These important functions are eliminated 
when headwaters are filled. Organic matter inputs to headwater streams 
such as those affected by this mine average 345 grams per square meter 
of streambed area per year (= about 0.7 lb dry weight per square yard 
per year) in the eastern United States (Webster et al. 1995). This 
organic detritus, along with accompanying microbes such as fungi and 
bacteria, provide most of the energy, or food resources, to the stream 
invertebrates and ultimately to vertebrate populations such as fish and 
salamanders (Wallace et al. 1997, 1999). One of the fundamental 
concepts in stream ecology is the longitudinal linkage of upstream to 
downstream segments (Vannote et al. 1980).
    Organic matter from the surrounding forest is also processed into 
fine particulate organic matter (FPOM), as well as dissolved organic 
matter (DOM, Meyer et al. 1998) by physical abrasion, microbes, and 
invertebrates (Wallace et al. 1991). The FPOM and DOM are more easily 
transported by the water currents to downstream reaches where it serves 
as food for other microbes and invertebrates (and ultimately fish), 
which are often far removed from the headwater source of the detritus 
input from the surrounding forest (Vannote et al. 1980). These streams 
subjected to valley fills will no longer serve as a source of input, 
storage, and conversion of organic matter for export to downstream 
areas. Thus, destroying the linkage between headwaters and downstream 
reaches alters the availability of organic particles to downstream 
areas where the material serves as fuel for microbiota and 
invertebrates, which in turn serve as food to fish, and other higher 
animals. (As an example: based on data from the Coweeta Hydrologic 
Laboratory in the Appalachians of western North Carolina, the smallest 
streams [again, not even shown on USGS 1:24,000 maps of the region] 
export 36 kg of fine particles of organic matter per 100 m (about = 
79.4 lbs per 328 feet) each year for each length of headwater stream 
(Webster et al. 1992). Burying hundreds of miles of small headwater 
streams would reduce the fine particle export from these headwaters. 
Furthermore, dissolved organic matter export to downstream reaches, a 
significant portion of which is derived from organic matter from 
terrestrial detritus in the streambed (Meyer et al. 1998), would be 
greatly reduced.
    Dissolved organic matter is another source of energy for downstream 
areas (Kaplan et al. 1980)). Headwater streams should be viewed as 
important sites of organic matter input (from the surrounding forest), 
storage, and processing (or transformation to FPOM and DOM), which are 
important for entire drainage systems. In my opinion, burial of so many 
headwater streams is akin to trimming the roots of a tree and having 
the misguided view that this will not impact the tree.
    Another consequence of removing headwater reaches from their 
drainage basins is that these small streams are sites of production of 
aquatic invertebrates such as insects, which may drift downstream and 
become important sources of food to downstream predators such as 
various species of fish. These invertebrates are also sources of food 
to some headwater fish species, water shrews, and salamanders within 
the headwater reach. Additionally, emerging aerial adults of aquatic 
insects are often used as food by terrestrial species such as spiders 
and birds and they represent an important reciprocal link between 
streams and terrestrial biota (Gray 1993, Nakano and Murakami 2001, 
Sanzone 2001, Henschell et al., in press, Power et al., in press).

    Question 2. Please describe the alterations in stream chemistry as 
a result of valley fill--the kinds of chemicals being found, at what 
levels, and why should we worry about them?
    Response. The basic chemical composition of unpolluted streams 
draining a landscape is largely established in headwater streams (Gibbs 
1970, Likens 1999, Johnson et al. 2000). Biotic uptake by vegetation, 
transformation by microbes in soils, riparian zones, and streams, in 
the presence of available carbon is an important mechanism controlling 
export of nitrogen from watersheds (Hedin et al. 1998). Small streams 
in the network are the sites of the most active uptake and retention of 
dissolved nutrients (Alexander et al. 2000, Peterson et al. 2001, 
Attachment #5); hence elimination of small streams from the network 
results in increased downstream transport of nutrients. Downstream 
areas, reservoirs, rivers, and ground waters often have species that 
are sensitive to high nutrient concentrations and increasing 
conductivity associated with chemicals in the downstream waters. 
Increased concentration of chemicals, nutrient enrichment, and 
groundwater contamination are likely consequences of loss of the 
nutrient retention capacity afforded by headwater streams. I will 
address only a few chemical concerns that appear to be causing major 
difficulties below valley fills.
    The following table is from recent EPA data collected for the MTR/
VF Environmental Impact Statement currently being prepared. This table 
shows the concentrations of several chemicals and other physical 
properties of water below valley fills and compares them with un-mined 
areas. The last column shows the ratio of filled to un-mined (or times 
higher concentrations leaving filled sites is to un-mined sites).

 Table 1.--Median values (mg/L) for un-mined sites and valley fill sites
 for various water quality parameters in West Virginia during the period
            of October 1999 to February 2001 (Source USEPA).
------------------------------------------------------------------------
                                          Un-mined    Valley   Filled/Un-
               Parameter                   Sites       Fill      mined
------------------------------------------------------------------------
Sulfate................................       12.6        524       41.7
Calcium................................        4.9        104       21.3
Magnesium..............................        4.1       86.7       21.2
Hardness...............................       29.1        617       21.2
Solids, dissolved......................       50.5        847       16.8
Manganese, total.......................      0.005      0.044        8.8
Conductivity (mhos/cm).................       66.4        585        8.8
Selenium...............................     0.0015     0.0117        7.8
Alkalinity.............................         20      149.5        7.5
Potassium..............................       1.58       8.07        5.1
------------------------------------------------------------------------

    Selenium: is an essential nutrient at low levels of exposure. This 
inorganic chemical is found naturally in food and soils and is used in 
electronics, photocopy operations, the manufacture of glass, chemicals, 
drugs, and as a fungicide and a feed additive. In humans, exposure to 
high levels of selenium over a long period of time has resulted in a 
number of adverse health effects, including a loss of feeling and 
control in the arms and legs. EPA has set the drinking water standard 
for selenium at 5  L (versus 11.7 observed below valley fills, Table 1) 
to protect against the risk of these adverse health effects. Drinking 
water that meets the EPA standard is associated with little to none of 
this risk and is considered safe with respect to selenium. (However, 
see following paragraph.) The selenium data indicate numerous 
violations of the West Virginia stream water quality criterion related 
to MTM/VF mining. During the EPA study of water quality in 1999 to 2001 
there were 66 violations of the stream criterion exceeding Selenium 
water standards. All values above the stream criterion of 5  g/L were 
at valley fill sites and many of those are several times greater than 
the detection limit of 3  g/L. The elevated values of selenium appear 
to be closely related to MTM/VF mining activity.
    Selenium is essential for life in very small amounts but is highly 
toxic in slightly greater amounts (Lemly 1996, page 427). In 1987, the 
EPA lowered the recommended stream water quality criterion for selenium 
to 5  g/L to protect aquatic life. West Virginia has adopted that same 
limit as their stream criterion. Selenium is strongly bioaccumulated in 
aquatic habitats (Lemly 1996, page 435). ``Waterborne concentrations in 
the low- g/L range can bioaccumulate in the food-chain and result in an 
elevated dietary selenium intake and the reproductive failure of adult 
fish with little or no additional symptoms of selenium poisoning in the 
entire aquatic system. . . . The most widespread human-caused sources 
of selenium mobilization and introduction into aquatic ecosystems in 
the U.S. today are the extraction and utilization of coal for 
generation of electric power and the irrigation of high-selenium soils 
for agricultural production'' (Lemly 1996, page 437). However, Hamilton 
and Lemly (1999) have suggested that many effects on biota are 
documented for selenium levels of 5  g/L and the more appropriate level 
should be a water quality criterion of 2  g/L. Furthermore, Lemly 
(1999) has suggested that a selenium time bomb is in the making as a 
result of substantial impacts on fish populations. The effects of 
selenium on fish populations include the following from Lemly (2002):
     Swelling of gill lamellae
     Elevated lymphocytes
     Reduced hemoglobin (anemia)
     Eye cataracts as well as exopthalmus (popeye)
     Pathological effects on liver
     Reproductive failure
     Spinal deformities
    The West Virginia Geologic and Economic Survey has information on 
selenium posted on their website (http;//www.wvgs.wvnet.edu/www/
datastat/te/SeHome.htm). It notes:

          Selenium occurs in coal primarily within host minerals, most 
        within commonly occurring pyrite. . . . An unpublished study at 
        WVGES using SEM found selenium . . . in 12 of 24 coal samples 
        studied, mainly in the upper Kanawha Formation coals. . . . 
        Selenium in West Virginia coals averaged 4.20 ppm. . . . Coals 
        containing the highest selenium contents are in a region of 
        south central WV where Allegheny and upper Kanawha coals 
        containing the most selenium are mined. . . . Selenium is not 
        an environmental problem in moist regions like the Eastern U.S. 
        where concentrations average 0.2 ppm in normal soils.

    Summarizing this information, we see that in the region of MTM/VF 
mining, the coals can contain an average of 4 ppm of selenium, normal 
soils can average 0.2 ppm, and the allowable limits in the streams are 
5  g/L (0.005 ppm). Disturbing coal and soils during MTM/VF mining 
could be expected to result in violations of the stream limit for 
selenium.
    A fairly comprehensive review of Selenium is given in the Federal 
Register of 6 March, 2002 ( Vol. 67, No. 44 pages 10101 -10113). Some 
notes made from this document are as follows:
     The EPA's standard to protect aquatic species is 5  g/
Liter but is being reevaluated as a standard of only 2  g/Liter is 
being applied to protect wetland grasslands in the San Joaquin Valley, 
CA (note 5  g/L versus over 11  g/L was the median value below valley 
fills in WV.
     Selenium is taken up by vegetation.
     Selenium is toxic to small mammals as longevity has been 
reduced on diets with only  g/g in diets of rats, deleterious effects 
to the hair, nails, live, blood, heart, nervous system, and 
reproduction have been documented.
     There is evidence that animals such as insects, that feed 
on plants absorbing selenium from the environment, accumulate selenium 
in their bodies and this is biomagnified by larger animals such as 
shrews, which feed on these insects, have even higher levels of 
selenium.
     The potential of additional exposure to selenium of beef 
cattle, dairy cattle, swine and poultry wastes production is apparently 
increasing.
     Relatively small amounts of selenium have been shown to 
bioaccumulate in the eggs of waterfowl and resulted in egg deformities.
    Sulfate: Although sulfate is largely a benign constituent of most 
waters, the World Health Organization (WHO) guide is 400 mg/L, which is 
based on taste. The US EPA has proposed Sulfate levels of 250 mg/L in 
1979, subsequently raised to 400 mg/L in 1985, and 500 mg/L in 1994 (FR 
Vol. 64, no. 28, pp 7027-7037). However, according to National 
Secondary Drinking Water Regulations 40 CFR CH. 1 (7-1-00 Edition) 
Sec. 143.3, the recommended level of Sulfate should not exceed 250 mg/
L, whereas the median for sulfate concentration in streams below valley 
fills in WV is 524. Sulfate levels above 250 mg/L are often associated 
with taste and odor problems. Short-term, consequences (less than 1 
week) of elevated Sulfate concentrations did not support osmotic 
diarrhea in adults as reported previously (but see bullets, below); 
however, infants have not been tested sufficiently. There is limited 
data on acclimation to Sulfate, changes in Sulfate metabolism, and 
problems during growth of human fetuses. In 1999 the EPA assembled a 
panel of scientists who favored placing a health advisory in areas 
where Sulfate concentrations in drinking water exceed 500 mg/L or 
higher (FR Vol. 64, no. 28, pp 7027-7037). Clearly, many streams below 
valley fills have elevated sulfate concentrations (Table 1). 
Furthermore, according to Canadian and U.S. livestock industries high 
concentrations of sulfates can combine with magnesium (also very high 
below valley fills, Table 1) to form Epsom salt or with sodium salts to 
cause a laxative effect in poultry and the two should probably be 
evaluated together. According to US EPA (Drinking Water Advisory: 
Consumer Acceptability Advice and Health Effects Analysis on Sulfate--
External Review Draft EPA-R-02-033, April 2002) the following should be 
considered:
     Only 5 percent of waters tested across the US exceeded 250 
mg/L sulfate, and less than 3 percent of community water supplies had 
sulfate concentrations that exceeded 250 mg/L (p.5-6).
     In the presence of elevated magnesium (note levels ca. 87 
mg/L, below valley fills, Table 1), sulfate may form magnesium sulfate 
(milk of magnesia), which enhances laxative effect and produces an 
osmotic-induced diarrhea (p. 12-13).
     Above 250 mg/L sulfate concentrations, water has impaired 
taste properties (p. 19) and at levels of 320-480 mg/L magnesium 
sulfate has impaired taste, as well as 180-680 mg/L for calcium 
sulfate. Note that calcium levels are also elevated below valley fills 
(Table 1).
     The level of 250 mg/L or less, appears appropriate to 
insure adequate protection of drinking water with respect to taste (p. 
23).
    Conductivity and total dissolved solids are two separate measures 
of similar things. They measure the presence of anions and cations in 
water. High conductivity is often associated with water hardness and is 
not a health problem per se. Elevated levels of conductivity can be a 
nuisance in cases of high calcium and magnesium concentrations where it 
interferes with cleaning tasks such as laundering and dishwashing. 
Furthermore, films may be formed on showers, bathtubs, sinks, faucets, 
as well as inside pipes where water flow can be reduced. High 
conductivity is often associated with soil disturbance, mining, urban 
development, and agriculture. Thus, high conductivity is often 
associated with impaired biological conditions in streams. Higher 
discharge from valley fills (as a consequence of reduced evapo-
transpiration by plants and altered groundwater retention) results in 
increased chemical loading to downstream areas. Increases in 
concentrations of several chemicals and conductivity observed for 
valley fills at many West Virginia sites (EPA--EIS 2000, draft of MTR/
VF), combined with the increased discharge observed below fills, will 
increase downstream loading of chemicals and conductivity. This will 
result in excess loading of chemicals, and concomitant effects on 
conductivity, to downstream aquatic communities. The elevated 
downstream loading of chemicals will likely be detrimental to 
downstream animals, plants, microbiota, and potable water supplies for 
many years into the future.
    The effects of excessive chemical loading on sensitive taxa is 
clearly seen in data collected by the EPA in West Virginia and Kentucky 
(Draft EIS for MTR/VF). Streams draining valley fills have abnormally 
high conductivity compared to those draining un-mined sites. The high 
conductivities are probably the main factor contributing to the 
elimination of most species of mayflies below valley fills and altered 
community assemblages of stream-dwelling animals. A number of other 
chemical parameters were impacted by valley fills and in some cases 
these vary by several orders of magnitude between mined and un-mined 
sites. For example, sulfate concentrations differed greatly between 
mined and un-mined sites (Table 1 only has median values), while 
alkalinity, total calcium, and magnesium differ in the tens of mg/L 
range. In addition, chloride, total potassium, and sodium differed in 
the 
mg/L range. Because of altered chemistry and/or conductivity, a number 
of species of invertebrates (which also serve as food for higher 
animals such as fish) are eliminated from downstream areas, which drain 
valley fills. This is being clearly shown for Kentucky and West 
Virginia streams by the EPA in the MTR/VF EIS Draft.

    Question 3. Please provide any additional information that you 
think is relevant to the Committee as it evaluates the impacts of fill 
rule definitions.
    Response. Effects of Valley Fills Discharge and Hydrology.--In 
areas below valley fills a higher baseflow is maintained than typical 
forested headwater streams (Wiley et al. 2001). However, as evident 
from recent studies, the propensity to flood in downstream areas also 
increases below valley fills based on preliminary data being obtained 
in West Virginia. The alteration of stream flow is not surprising as a 
number of studies from forested catchments at the Coweeta Hydrologic 
Laboratory in the mountains of western North Carolina clearly show that 
loss of the hardwood forest results in increased levels of stream 
discharge because of the absence of evapo-transpiration (Swank and 
Crossley 1988). In addition to directly harming the biota via altered 
chemical composition, the potential increase in flooding is very 
important because floods can be detrimental to fauna and flora, and 
alter dynamics of both nutrients and organic matter in downstream 
reaches (see, Allan 1995, Wallace and Webster 1996). Furthermore, 
recovery by aquatic species from floods in temperate zone streams 
suggest faunal recovery may take up to a year or more following 
flooding (Thorup 1970, Hoopes 1974, Molles 1985), or up to 2 years 
following massive flooding (Minshall et al. 1983).
    Consequences of Altered Chemistry and Hydrology.--Higher discharge 
from valley fills (as a consequence of reduced evapo-transpiration by 
plants and altered groundwater retention) results in increased chemical 
loading to downstream areas. Increases in concentrations of several 
chemicals and conductivity observed for valley fills at many West 
Virginia sites (Table 1), combined with the increased discharge 
observed below fills, will increase downstream loading of chemicals and 
elevate conductivity. This will result in excess loading of chemicals, 
and concomitant effects on conductivity, to downstream aquatic 
communities. The elevated downstream loading of chemicals such as 
selenium may cause many problems to biota (including fish) and potable 
water supplies for many years into the future.
    Stream Sediments.--Organic debris dams in headwater streams, such 
as those provided by woody debris, (e.g. Bilby and Likens 1980) and 
other organic matter such as leaves from the surrounding forest, 
provides sediment retention, important habitat structure, and sites for 
critical metabolic activity, including denitrification (e.g. Steinhart 
et al. 2000, Attachment # 7). Loss of headwater streams by burying them 
under millions of cubic yards of sediment is going to greatly reduce 
these sites of high metabolic activity that are important in processes 
such as nutrient retention and denitrification.
    A recent study completed by the U.S.G.S. in West Virginia also 
indicates increased numbers of fine particles (<2mm in diameter) and 
smaller median particle sizes below valley fills than unmined sites 
(Wiley et al. 2001). Substrate particle size is often cited as one of 
the critical factors for stream invertebrate populations as finer 
particle sizes are indicative of more instability as well as lower 
invertebrate biomass (Hynes 1970, Minshall 1984, Allan 1995). Sediments 
have numerous negative effects on both benthos and fish in streams 
(Waters 1995).
    Terrestrial Considerations.--The Appalachian region is known for 
having some of the greatest temperate plant biodiversity in the world 
(Handel 2001). These diverse forests typically support diverse native 
terrestrial fauna. The revegetation plan calls for grasses as well as 
planting various tree species to achieve a certain density of stems per 
hectare without regard to whether these trees exhibit any growth. 
Recent studies conducted for the terrestrial portion of the MTR/VF EIS 
from West Virginia clearly show that significant vegetation with 
respect to stem diameter (a much better measure of growth and success 
than simply counting the number stems per unit area) is simply not 
returning to mined areas, even after 25 years post mining (Handel 
2001).
    According to a summary of Handel's (2001) findings: ``Invasion of 
native species onto mined sites and valley fills was very low and 
restricted to the first several meters from the adjacent forest edge. 
Most of the plants found on the mined site were in the smallest (<1'' 
diameter) size class, suggesting that the sites are very stressful to 
plant growth and survival.'' Furthermore, soil studies conducted during 
the study indicate that soil used for mining closure is poor quality 
and for forest species growth and productivity (Handel 2001). The heavy 
compaction of artificial slopes also contributes to slow invasion of 
forest species, and grassy vegetation installed in the reclamation 
process hinders the ability of native plant species to establish 
(Handel 2001). As noted by Handel (Attachment 17, page 13):

          ``Overall, the forest soils were consistently found to be 
        deeper, moister, and darker in color than the mine soils (Table 
        11). The mine soil consisted mostly of small rocks, and solid 
        impenetrable rock was hit at generally shallower depths''.

    Additionally, it is clear that the success standards for trees on 
disturbed areas are often based simply based on stem densities and 
height. This sampling scheme (stem counts) gives no indication of 
success in terms of forest biomass, growth, or productivity. As some 
trees grow faster than others, especially where local soil factors may 
differ, diameters should be measured to assess forest growth and 
productivity. Stem densities and measures such as dbh (diameter at 
breast height) yield very different results (Elliott et al. 1997). If 
one really wants information about restoration of the biomass of 
forests, dbh and calculations of basal areas per acre or hectare are 
really the appropriate units of measure, and not stem densities as 
currently being done.
    Terrestrial wildlife species, especially birds, are also impacted 
on fill sites. For example, bird species were higher in shrub/pole 
habitats, whereas fills (grasslands) had fewer bird species, as well 
as, reduced bird abundance (EIS--MTR/VF-draft). Furthermore, nest 
densities were so low for some grassland birds, WVU scientists could 
not assess whether or not mountaintop mine sites are even able to 
sustain viable populations of grassland bird species. Snake species 
increased in grasslands (fills), whereas salamanders decreased on 
valley fills. It may require a longer time for salamander populations 
to recover on fills than from forest clear-cutting. Combined with 
extremely slow ability of forests to regenerate on mined lands, lack of 
larger plants, suppressed growth and low survivorship of seedlings 
(Handel 2001), leads to the obvious question: What are the long-term 
impacts on native wildlife species? These prerequisite studies to 
answer this question have not been done.
    Reduction in Surface Area of Land.--Dr. Ben Stout of Wheeling 
Jesuit University has pointed out another feature of valley fills, that 
the state is losing surface area. This is best visualized as taking 
roofs of houses and flattening them (or from a pointed roof to a flat 
roof) as the mountainous contour of the countryside is lost. This will 
have some effect on number of plants (provided they could grow on 
valley fills--which they cannot in many cases) growing in a given area.
    Local and Human Economies Versus that Portrayed by Mining 
Interests.--Although out of my area of expertise, I consider the 
following table to be extremely important. We hear time and time again 
how important mining is to the economy of the region. I obtained the 
figures from an earlier version of the EIS for MTR/VF (some want to 
remove these data). If mining is so important why are all of the coal 
mining counties lagging behind in per capita income for each state? The 
natives of these mining counties are wonderful people. However, I get 
the distinct impression that they are being exploited by outside forces 
beyond their control.

     Per capita income for MTR/VF mining counties versus per capita income for the State  for 1980 and 1990.
----------------------------------------------------------------------------------------------------------------
                                                         1980                                1990
                                         -----------------------------------------------------------------------
                  State                     Mining     Statewide  Percent of    Mining     Statewide  Percent of
                                           counties     average      State     counties     average      State
----------------------------------------------------------------------------------------------------------------
Kentucky................................      $4,466      $5,978        74.7      $7,594     $11,153        68.1
Tennessee...............................      $4,462      $6,213        71.8      $8,200     $12,255        66.9
Virginia................................      $5,360      $7,478        71.7      $8,997     $15,713        57.3
West Virginia...........................      $5,340      $6,141        87.0      $8,766     $10,520        83.3
(Mingo Co.).............................      $5,058      $6,141        82.3      $8,328     $10,520        79.2
----------------------------------------------------------------------------------------------------------------

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                               __________
       Statement of Mike Whitt, Executive Director, Mingo County 
               Redevelopment Authority of Williamson, WV

    Chairman Lieberman, Ranking Member Voinovich, and members of the 
subcommittee, thank you for inviting me to testify. I commend you for 
your willingness to hear from the Mingo County Redevelopment Authority.
    With mining, Mingo County is diversifying the economy. We are 
creating good paying jobs with benefits for our citizens, and the 
opportunities for economic development are better than they have been 
in a long, long time.
    Our Mission . . . ``The Mingo County Redevelopment Authority is a 
public organization, established to promote and encourage the economic 
and civic welfare of Mingo County, and for the development, attraction 
and retention of business, industries, and commerce within the county, 
thus creating employment opportunities and increasing the area's tax 
base.''
    Because of mining and development sites created by mining, we have 
been able to create good jobs in the industries of wood, aquaculture, 
agriculture and recreation. The Mingo County Board of Education has 
established a Horticultural Curriculum through the use of our 
agriculture demonstration project. By growing excellent Arctic Char 
from mine water, we have created a new industry in southern West 
Virginia. We anticipate the county school system will add an 
Aquaculture Curriculum as a result of our fish hatchery, grow-out 
facilities and proposed fish processing facility. Without mining, these 
new jobs and economic opportunities would never have been possible in 
southern West Virginia!
    Our challenge is to achieve our mission to create new jobs, improve 
the quality of life for our citizens, and increase our tax base 
throughout the next generation for the future of our children and 
grandchildren. We cannot meet this challenge unless reclaimed mine 
sites are provided to us for the purpose of creating economic 
development.
    Diversifying the Mingo County economy through support of the mining 
industry is an important part of our future. Realizing this, the Mingo 
County Redevelopment Authority brought together a diverse group of 
citizens to develop the Mingo County Land Use Master Plan (Plan). The 
Plan was presented to the citizens of Mingo County at a public hearing, 
where public suggestions were incorporated into the Plan. The Plan has 
been approved by the Mingo County Commission. For the first time in 
history, Mingo County has a Plan that provides a road map to achieve 
economic development opportunities. Any coal company who volunteers up 
front and before mining commences to use our Plan will be provided with 
our proposed post mine land use for the property. After mining, the 
property will be (1) returned in a manner consistent to our Plan; (2) 
adequately supplied with infrastructure; and (3) used for the economic 
development purposes as stated in the post mine land use. Prior to our 
Plan, Mingo County lost many economic development opportunities because 
most of the property mined was put back to its Approximate Original 
Contour (AOC), leaving no land suitable for economic development. Our 
Plan affords opportunities to change that.
    Through the leadership of the Mingo County Redevelopment Authority, 
we have developed an excellent partnership with the private and public 
sectors. Mike Callaghan, Director of DEP, and Governor Bob Wise have 
been very instrumental in our efforts to encourage post mine land use 
development sites for proposed and ongoing surface mine activities. We 
have listened to Mingo Countians. The Land Use Master Plan is a grass 
root Plan of what we need to stop the downward economic spiral that we 
have been faced with. There is one thing that EVERYONE agrees on, and 
it is the fact that Mingo County must diversify.
    We must stop the cycle of schools being closed, good teachers 
leaving and major industry jobs vanishing. Our county population has 
dropped from 37,000 in 1980 to 28,000 in 2000. One of our schools has 
95 percent of our kids who qualify for the free lunch program . . . as 
a best-case scenario; we have nearly half our kids on the free lunch 
program at Williamson High School, which is located within our county 
seat.
    Before 1989 when the Mingo County Redevelopment Authority was 
formed, local economic development agencies did not exist in any of the 
southern West Virginia counties. Since our establishment, we have 
worked hard to form a team relationship between our private and public 
sectors, and with the dedication of our board of directors we have 
achieved an excellent display of teamwork within our county. Everyone 
has come together to help save our county from economic devastation. We 
cannot wait to diversify our economy after the coal is depleted . . . 
we must diversify in conjunction with the ongoing and future mining 
activities, and our efforts must continue.
    Here are some of the projects that the Mingo County Redevelopment 
Authority has accomplished by utilizing opportunities created by the 
mining industry . . .
     The Mingo County Wood Products Industrial Park (Exhibit A)
          Located on a reclaimed surface mine site
          28 million total project cost
          Includes a centralized lumber storage area, lumber 
        processing facility, lumber pre-drier, a battery of dry kilns, 
        boiler and silo. The first shell building (82,000 sq. ft.) 
        houses a hardwood flooring manufacturing facility.
          Presently 90 employees
          100 new jobs by the end of 2002 (estimate)
     The Mingo County Agriculture Demonstration Project 
(Exhibit B)
          Located on a reclaimed surface mine site
          Enabled the Mingo County Board of Education to 
        provide a Horticultural Curriculum
          Operated and maintained by the students through the 
        new horticultural program
     The Fish Hatchery (Exhibit C)
          Utilizing underground mine water to hatch and raise 
        Arctic Char fingerlings
          Created a new industry in southern West Virginia
          Will provide for an Aquaculture Curriculum to be 
        available to the students through the Mingo County School 
        system
     The Grow-out Facility for Arctic Char (Exhibit C)
          Utilizing underground mine water to grow Arctic Char 
        fingerlings to market size (2lbs)
          $3.5 million private investment
          Pro-fish is the distributor of Arctic Char into the 
        Washington, DC area.
     Twisted Gun Golf Course (Exhibit D)
          The coal industry has already constructed an 18-hole 
        golf course, with a breathtaking view of the natural 
        surroundings. This project will enhance the recreational 
        opportunities in Mingo County.
    Here are some of our potential projects that, in conjunction with 
ongoing mining, will help diversify and enhance the quality of life for 
Mingo County citizens . . .
     King Coal Highway/I73-74 (Exhibit E)
          In cooperation with the Department of Highways and 
        the Department of Environmental Protection, the coal industry 
        plans to construct (to rough grade) 5 miles of the new King 
        Coal Highway/ I73-74, with 2 connectors . . . saving the 
        taxpayers an estimated $90 million dollars
     Airport (Exhibit F)
          In cooperation with the Mingo County Airport 
        Authority, the coal industry will construct (to rough grade) an 
        area to provide the county with an airport runway of 6,000-
        10,000 feet, with sufficient acreage for ancillary future 
        development . . . saving the taxpayers approximately $30 
        million dollars.
     Fish Processing Plant
          The coal industry has provided site preparation as an 
        in-kind contribution toward the construction of a fish 
        processing facility, which will handle all the fish that is 
        hatched and raised in southern West Virginia
    As you can see, the mining industry and our efforts to diversify 
the economy in southern West Virginia are connected in a substantial 
manner. However, to continue to advance our plans . . .
     The mining industry must continue . . .
     Our partnership with the private/public sectors must 
continue . . .
     Post mining land use creating developable property for 
future jobs must continue . . .
     Our diversification efforts must continue . . .
    I am not a lawyer and I am not a chemist. I'm just a local citizen 
who loves my county and its citizens. We care about whether our kids 
and grandkids will be able to work and provide for their families in 
Mingo County. We want a county that will allow people who have been 
forced to move away to come back home. We care about all these issues. 
We care about our schools and the opportunities provided to our kids. 
We're working hard to make southern West Virginia economically viable.
    We have gone to great strides to achieve a better economy in Mingo 
County. We want to continue, and we will if the mining continues. The 
mining is necessary, and the valley fills are needed for the 
continuation of surface, contour, and underground mining.
    Again, without diversification during the mining of coal, there 
will be no opportunity for diversification after coal mining. We have 
found a solution to stop our downward plunge and it's not just a 
``fleeting vision'' . . . it's reality! It's attainable! It works! And 
we want it to continue.
    Now you have a better understanding of our situation and can see 
the importance of diversification during the mining process in southern 
West Virginia. If there's anything I can do to help ensure that our 
progress is not hindered, please feel free to contact me. Better yet, I 
would like to invite each of you to come to Mingo County. I'll 
personally take you around our county and show you first hand what 
progressive steps are being taken by Mingo County.

    ``Some people see things as they are and ask why . . . But I dream 
of things that never were and ask why not.''--John Kennedy

    Thank you very much.

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        Statement of Doyle Coakley, Chair, Board of Directors, 
                         Citizens Coal Council

    Mr. Chairman and members of the Subcommittee, thank you for the 
opportunity to submit this statement for the record on behalf of the 
Citizens Coal Council.
    Citizens Coal Council is a grass roots federation of citizen groups 
and individuals located throughout the coal-producing regions of 
America working for social and environmental justice. CCC and its 
members strive to protect people and their homes, water and communities 
from damage due to coal mining and combustion and waste disposal by 
focusing on enforcement of Federal and State laws. Many of our members 
suffer the direct impact of mountaintop removal coal mining and filling 
valleys with waste material associated with coal mining and processing.
    On March 3, 1999, the U.S. District Court of the Southern District 
of West Virginia preliminarily enjoined the Army Corps of Engineers 
(Corps) and the West Virginia Department of Environmental (WVDEP) 
protection from issuing a permit authorizing mountaintop removal 
surface mining at a site in Logan County, West Virginia.
    That suit charged the Corps and U.S. Environmental Protection 
Agency with a ``pattern and practice'' of violating the Federal Clean 
Water Act (CWA) National Environmental Protection Act (NEPA) and 
Surface Mine and Reclamation Control Act (SMCRA). Plaintiffs alleged 
the Corps consistently and without authority issued valley fill permits 
under Section 404 of the CWA, which prohibits the dumping of waste 
material into water bodies of the United States. Valley fill material 
is entirely waste material intended for disposal by the cheapest means 
possible--shoving it down the mountainside to bury land and streams 
below.
    Plaintiffs also charged that WVDEP routinely issued permits 
allowing valley fills that are in violation of SMCRA's so-called 
``buffer zone'' requirements prohibiting dumping of waste spoil within 
100 feet of a stream.
    Judge Charles Haden II issued his ruling October 29, 1999 that 
overturned decades of illegal mountaintop removal mining in West 
Virginia by permanently enjoining the WVDEP ``from approving any 
further surface mining permits under current law that would authorize 
placement of excess spoil in intermittent and perennial streams for the 
primary purpose of waste disposal''.
    Judge Haden's decision was appealed by the U.S. Justice Department 
in April 2000 and was overturned by the Fourth Circuit Court of Appeals 
in April 2001. The Appeals Court ruled on a jurisdiction issue and did 
not address the merits of the Haden opinion. Judge Haden was right then 
and in a subsequent and similar lawsuit he was right again.
    Kentuckians For The Commonwealth (KFTC) sued the Corps when it 
issued an area-wide permit authorizing Martin County Coal Corporation 
(MCCC) to operate a mountaintop removal coal operation designed to 
create 27 valley fills and thereby filling 6.3 miles of streams. KFTC 
claimed that the only purpose of valley fills is to dispose of waste 
material. The CWA allows only one form of waste disposal and that 
material is exclusively limited to dredge spoil.
    ``Fill material'' (dredge spoil) is deposited for some beneficial 
primary purpose (construction work and infrastructure) and not for the 
purpose of disposal. For the Corps to allow disposal of waste spoil is 
to rewrite the Clean Water Act. Judge Haden ruled such rewriting of a 
Federal law exceeds the authority of the Executive Branch and requires 
an act of Congress. The framers of our Constitution insisted on that 
separation of powers and the Judge upheld that principle.
    Sensing a second defeat of its illegal use of valley fill permits 
to authorize destruction of Appalachia's valleys and streams, the Bush 
administration issued a final rule a few days before Judge Haden's 
second opinion. It was intended to change the definition of ``fill 
material'' and silence Judge Haden's pending decision. The Judge would 
have none of that and issued his opinion in the KFTC case on May 8. It 
not only struck down the Corps' interpretation of its authority to 
issue valley fill permits to allow disposal of waste, it also 
challenged and essentially dismissed the President's final rule issued 
on May 3.
    Judge Haden reads the purpose of the CWA ``to restore and maintain 
the chemical, physical, and biological integrity of the nation's 
waters.'' No pollutants can be discharged into waters of the US without 
a CWA permit. All parties in the KFTC case agreed that overburden from 
mountaintop removal coal mining is a pollutant under the definition and 
requires a CWA permit under Section 404.
    This Committee debated and reported out the CWA in 1971 and 
legislative history makes it undeniably clear it did not intend 404 
permits to apply to fill discharges solely for waste or pollutant 
disposal, other than disposal of dredge spoil.
    Since 1977 the Corps has defined ``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 water body. The term does not include any pollutant 
        discharge into the water primarily to dispose of waste, as that 
        activity is regulated under section 402 of the Clean Water 
        Act.''

    Exactly as designated by this Committee 404 fill is material 
discharged into water for construction, development or property 
protection while waste disposal is regulated under section 402.
    The EPA definition of ``fill material'' and ``discharge'' while not 
identical to the definition used by the Corps, when considered 
together, point to the same use and purpose requirement. EPA defines 
``fill material'' as ``any `pollutant' which replaces portions of the 
water of the United States with dry land or which changes the bottom 
elevation of a water body for any purpose.'' And, that is an origin of 
the controversy between the Corps and EPA's interpretation of the same 
law used to permit valley fills.
    EPA has always said, until its May 3 final rule changing the 
definition of ``fill material'' the purpose for discharging 404 fill is 
the construction or development or use for which the fill is needed and 
not the purpose for which the material is discharged. EPA has never 
considered waste disposal as a proper purpose.
    When mountaintop removal overburden is dumped into valleys and 
streams to get rid of it that disposal method has the effect of 
creating dry land or elevating the level of a stream bottom but that 
was not the purpose of its disposal. Thus, the disposal does not fit 
the Corps' definition of ``fill material''.
    Longstanding regulatory interpretation by both the Corps and EPA 
leads to the conclusion that 404 fill permits are issued only for fill 
material with a constructive primary purpose, not waste disposal.
    SMCRA was written with great care and with the assurance that none 
of its provisions violate any other provision of Federal law. SMCRA 
could not have allowed the disposal of waste material into streams and 
water bodies of the United States because that is prohibited by the 
CWA--plain and simple. In fact, two provisions of SMCRA support the CWA 
protections for overburden disposal: approximate original contour (AOC) 
and the 100-foot buffer zone rule.
    Under SMCRA, coal mine operators cannot dump the excess spoil that 
is not needed to achieve AOC unless that disposal will make it possible 
to achieve ``an equal or better or public use'' of that land. SMCRA 
assumes overburden (waste material called ``spoil'') will be returned 
to the mountaintop to achieve AOC unless constructive and appropriate 
post-mining land use and purpose are designated for the valley into 
which the fill is to be disposed.
    Congress was clear about the disposal of overburden to achieve a 
purpose other than waste disposal. Finally, SMCRA does not allow 
disposal of overburden waste into streams and that is supported by the 
1977 ``buffer zone rule'' written to enforce the strip mine reclamation 
law.
    Coal companies that routinely ``practice'' valley fill or head-of-
the-hollow fill disposal are breaking the law. State and Federal 
agencies that permit this type of mining operation are violating the 
law. This lawlessness and wreckless disregard for the law and the 
health and safety of citizens must be challenged and stopped.
    Mr. Chairman, Judge Haden is determined to make the Bush 
administration obey the law. He challenged the Administration to resist 
overturning Federal laws by making rulemakings that ignore the intent 
of Congress and particularly this Committee.
    It does not require a law degree to understand the basics of this 
issue. Mountaintop removal and valley fills are destroying the 
environment, private property and quality of life in West Virginia and 
Central Appalachia. Floods are becoming more frequent and loss of life 
more prevalent as silt and mud wash down the steep inclines below the 
mining operations.
    Judge Haden is our only line of defense unless you take steps and 
exert your responsibilities to uphold the Federal Clean Water Act. We 
urge you to challenge the President's rulemaking on the ``fill 
material'' definition.
    Furthermore, we urge you and the Committee to travel to Central 
Appalachia to witness, firsthand, the lawless destruction of our 
communities and a part of the oldest mountains on the planet.

                               __________
 Statement of Perry Plumart, Director of Government Relations, Audubon

    Mr. Chairman, on behalf of over one million member and supporters 
of Audubon, thank you for this opportunity to testify on the affects of 
the Bush administration's revisions of the Clean Water Act regulatory 
definitions of ``fill material'' and ``discharge of fill material''. 
Audubon's mission is to conserve and restore natural ecosystems, 
focusing on birds, other wildlife, and their habitats in order to 
preserve the earth's biological diversity. The Bush administration's 
change to the Clean Water Act definitions would not only allow our 
nation's waters to be filled with waste, but the revisions would also 
destroy important bird and wildlife habitats crucial to bird species 
like the cerulean warbler that have been in significant decline in 
recent years.
    The purpose of the Clean Water Act is to ``restore and maintain the 
chemical, physical, and biological integrity of the Nation's waters.'' 
33 U.S.C. Sec. 1251(a). The elimination of the waste exclusion from the 
definition of ``fill material'' would allow the disposal of refuse 
directly into the nation's waters contrary to the intent of Congress 
when it passed the Clean Water Act almost thirty years ago. What does 
this change really mean? This change in the definition of ``fill 
material'' would allow waste, debris, and ruble known as ``overburden'' 
that comes from blowing off the tops of mountains for coal extraction 
to be dumped into nearby rivers and streams located in the surrounding 
valleys. These valley fills wipe out the fish, snakes, turtles, frogs, 
and other wildlife species that inhabit the rivers and streams that are 
used for dumping grounds.
    The practice of blowing off the tops of mountains for coal also 
destroys some of our nation's important forest habitat located in the 
Appalachian region. Not only are many lakes, rivers, and wetlands being 
buried by waste from mountaintop mining, but huge swaths of the forests 
that are home to many birds and other wildlife are cut down as well. 
These mining operations create barren areas, literally moonscapes, in 
the forest landscape. These sterile areas often exceed 10 square miles. 
In West Virginia and Kentucky alone, over 1,000 miles of streams have 
been destroyed along with countless acres of forests. Many birds, fish, 
and other wildlife depend upon these forests and streams for their 
survival. Among the many victims of this assault on nature is the 
cerulean warbler. The places these birds call home are being 
permanently destroyed. The coal extraction includes the use of powerful 
explosives obliterating the once lush mountain landscape.
    The cerulean warbler is an indicator species for the health of our 
eastern forests. Over the past 30 years, the cerulean warbler has 
declined by 70 percent. This is one of the most severe drops among the 
many declining songbird populations in this country. The reason for the 
deterioration of the cerulean warbler, particularly in areas like West 
Virginia and Kentucky, is due primarily to blowing off the tops of 
mountains for coal causing forest fragmentation.
    The cerulean warbler is a Neotropical migratory songbird, which 
depends upon mature, deciduous forests, often near streams to breed and 
survive. According to the US Fish and Wildlife Service, the forests 
found in the West Virginia and Kentucky regions are crucial areas for 
many migratory birds. While the cerulean warbler is high on Audubon's 
conservation priority list in areas where mountaintop mining activity 
occurs, there are other Neotropical migrants of the region, such as the 
Kentucky Warbler and the Prothonatory Warbler, that are also rapidly 
declining in population.
    The dramatic decrease of the number of cerulean warblers, and other 
songbirds like it, serves as a clear signal that the forests that these 
birds call home are in imminent danger. By allowing the Bush 
administration's regulatory changes to the Clean Water Act to go 
forward, the destructive process of blowing off the tops of mountains 
will continue to push birds like the cerulean warbler toward 
extinction. We need to stop these destructive acts that would deny our 
children and future generations the pleasure of listening to the unique 
song of the cerulean warbler.
    Mr. Chairman, we look forward to working with you and the other 
members of your committee to preserve birds, like the cerulean warbler, 
for future generations. Let's stop the Bush administration's regulatory 
changes that would permit the practice of mountaintop mining to 
continue. We need to work to keep the Clean Water Act for the purposes 
Congress intended. Thank you Mr. Chairman for this opportunity to 
testify before the Committee on such an important issue. Together, we 
can prevent the contamination of our nation's waters and safeguard the 
cerulean warbler from extinction. 

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