Federal Agencies Propose Clarifying Regulation Regarding CWA 404 Permitting Jurisdiction
Hoping to finally put an end to decades of inter-governmental warfare over which agency has jurisdiction to issue Clean Water Act § 404 permits for fills associated with mining operations or other waste disposal activities, in a notice published in the Federal Register on April 20, 2000, the EPA and US Army Corps of Engineers jointly proposed a new definition of the term "fill material," under which the Corps of Engineers would continue to assume jurisdiction to issue § 404 permits for such material regardless of the purpose of the filling activity. 65 Fed. Reg. 21292 (Apr. 20, 2000). The current Corps regulation defining "fill material" focuses on the purpose of the particular project for which a permit is sought and allows § 404 permits to be issued by the Corps only where the primary purpose is to replace an acquatic area with dry land, and not where the purpose of the project is waste disposal. By contrast, the current EPA definition of "fill material" is defined broadly to include any pollutant which replaces portions of waters of the United States with dry land "for any purpose." In addition to eliminating the Corps' "purpose" test, the proposed new definition of "fill material" would specifically exclude any discharges subject to existing or proposed effluent limitation guidelines applicable to permits issued under Clean Water Act § 402 (the NPDES permit program).

Because of this conflict in the regulations, there has long been uncertainty about whether the Corps has jurisdiction under the § 404 permit program to issue such permits for mining-related and other fills. This conflict was raised indirectly in a lawsuit heard by U.S. District Court Judge John T. Copenhaver in Charleston, West Virginia, in 1989, and was raised directly by the plaintiffs in the pending Bragg v. Robertson (mountaintip mining) lawsuit, in which Chief Judge Haden ruled on October 20, 1999, that the Corps may not issue § 404 permits for such projects. In doing so, Judge Haden specifically determined that a "Memorandum of Understanding" amongst the relevant federal agencies allowing the permitting process to proceed as under the proposed rule was not sufficient to override what he found to be statutory prohibitions against those procedures. The proposed rule published on April 20, 2000, is intended to address Judge Haden's legal rulings, and was specifically discussed in this context by the federal agencies in their appeal brief recently filed with the Fourth Circuit Court of Appeals in the Bragg case.

In a related development, by letter dated April 17, 2000, Acting OSM Director Kathrine Henry and Interior Solicitor John D. Leshy notified WVDEP Director Mike Castle that OSM has reversed its position with respect to the effect of issuance of § 404 permits on the need for buffer zone variance findings under SMCRA. Specifically, OSM indicated that because of Judge Haden's October 20, 1999 decision in Bragg v. Robertson, OSM has determined that the § 404(b) guidelines which are applied in issuing Clean Water Act § 404 permits "do not in fact establish standards that are equivalent to those found in OSM's stream buffer zone rule." In doing so, both federal officials invited the WVDEP to engage in "some serious discussions" with respect to how this determination affects the State's implementation of its own stream buffer zone regulation.

For more information, please contact Kip Power at (304) 347-8303 or by e-mail at cbp@ramlaw.com.

EPA Decides to Keep All Fossil Fuel Combustion Wastes Non-Hazardous
In a press release dated April 25, 2000, EPA announced that it plans to issue a regulatory determination under RCRA, finding that the remaining category of fossil fuel combustion (FFC) wastes which have not previously been classified (including waste from non-utility coal boilers and fluidized bed combustion wastes) will remain exempt from hazardous waste regulation. EPA issued its announcement after a federal court declined to grant it a further extension on such a determination, despite EPA's statements that it wished to utilize "upcoming major scientific analysis" in order to make a more complete determination. EPA has indicated that it will continue to evaluate any new information that it receives, and in the meantime will issue standards under RCRA for the non-hazardous treatment and disposal of such FFC wastes in landfills, surface impoundments and when used as fill in mine reclamation. In addition, EPA has stated that if the states and industry do not take steps to address these wastes adequately within a reasonable amount of time, or if EPA identifies additional risk to public health, it will "revisit this decision, to determine whether a hazardous waste approach is needed."

A copy of the regulatory determination is to be published shortly in the Federal Register. A copy of that determination, as well as background materials, should also appear soon on the internet at: www.epa.gov/epaoswer/other/fossil/index.htm.

For more information, please contact Kip Power at (304) 347-8303 or by e-mail at cbp@ramlaw.com.

OSM Announces Public Comment Period on Proposed Changes to WV Mining Program
In a notice published in the Federal Register on April 25, 2000, OSM has opened the public comment period on proposed changes to West Virginia's regulatory program under SMCRA, all of which were passed during the 2000 Legislative Session and recently signed into law by Governor Underwood. Under SMCRA, despite their status as approved state law, no such changes to a state mining program may become effective until approved by OSM.

The statutory and regulatory changes which are the subject of the public notice are driven by the Consent Decree entered into between the WVDEP and plaintiffs in the Bragg v. Robertson (the so-called "Mountaintop Mining") litigation. Among other changes, the statutory revisions include the substitution of "commercial forestry" for "woodlands" as an approvable post-mining land use; the deletion of "fish and wildlife habitat" as an approvable post-mining land use; and the addition of a new provision establishing special requirements applicable to bond release for sites with an approved variance from the "approximate original contour" or "AOC" restoration standard.

Among other revisions, the changes to the mining regulations which are subject to comment include: new definitions for the terms "commercial forestry," "forestry," and re-naming "commercial woodland" as "commercial forestry;" detailed new provisions establishing standards applicable to operations which receive a variance from the AOC requirement and propose a post-mining land use of commercial forestry or forestry; and detailed standards applicable to AOC variance sites with a proposed post-mining land use of homesteading. Approval of a proposed commercial forestry or forestry post-mining land use will require submission of numerous plans, including a planting and management plan prepared by a registered professional forester; a commercial species planting plan and prescription, maps and descriptions of soils in the permit area prepared by an approved certified professional soil scientist; and a certified geology map prepared by an approved geologist. Other standards include landscape criteria, soil and soil substitutes, soil placement and grading, ground cover vegetation, liming and fertilizing, tree species and compositions, and standards of success for bond release. In addition, before the WVDEP Director may approve a proposed post-mining land use of commercial forestry, he or she must find that all required plans have been submitted and approved by the appropriate personnel, and that the proposed land use is obtainable "according to data regarding expected need and market." The standards applicable to homesteading as a proposed post-mining land use are perhaps even more detailed and onerous. They include provisions with respect to construction and conveyance of homestead parcels, required infrastructure, soil placement and grading, community associations, and bond release. The minimum area for a homestead must be at least one-half of the permitted area, and before this land use may be approved, the permittee must enter into a contract with the WVDEP binding the permittee to complete the homestead use no later than two years after the completion of mining.

In the notice, OSM makes the standard disclaimers regarding a takings analysis, regulatory flexibility, and SBREFA. For example, OSM states that the proposed rules "will not cause a major increase in costs or prices for consumers, individual industries, or other entities," on the basis that the state submittal is similar to "counterpart federal regulations for which an analysis was prepared" and a similar determination made. OSM does not identify those counterpart rules. Given the litigation-related aspect of this proposal, it is also uncertain as to what OSM's response will be if comments are submitted that cause the agency to believe that the regulations should be significantly revised before finalization.

For more information, please contact Kip Power at (304) 347-8303 or by e-mail at cbp@ramlaw.com.