By: M. Shane Harvey
During surface mining, rock and dirt (known as “overburden” or “spoil”) is removed to access coal seams. This rock and dirt swells, leaving the mining operator with excess material after mining and regrading. In the steep slopes of Appalachia, the only place to safely store this excess material is in valleys and hollows in the form of valley fills.
Typically, the valley fill material is placed in a stream that runs along the valley floor. Under Clean Water Act (“CWA”) Section 404, mine operators must obtain a fill permit from the US Army Corps of Engineers to place fill material in streams. The Corps also typically permits the placement of fill material downstream to form instream ponds to capture sediments from the valley fill and other mining activity. Discharges from the pond are, by contrast, regulated by NPDES permits issued by the States or EPA under CWA Section 402.
After mining, the reclamation process begins and erosion ends as the mine site is revegetated. Usually, the instream pond is removed because it is no longer needed to capture sediment from the mining operation. In conjunction with the pond removal, the NPDES permit is normally released by the permitting agency. Reclamation bonds for the property are likewise released and control of the fully reclaimed property is typically returned to a mineral lessor. It has been this way for nearly 40 years. But the Sierra Club aims to change that.
In 2013, the Sierra Club announced a campaign to hold “corporate landowners” responsible for what they allege are lingering impacts of surface mining. As part of this campaign, the Sierra Club deployed agents to gather water samples downstream of valley fills on reclaimed mine sites. If the water samples showed evidence of water pollution, the Sierra Club brought suit against the landowner who owned the site of the valley fill, whether or not the landowner conducted the initial mining. Roughly a dozen of these suits have been filed.
The Sierra Club has based these suits on Section 301 of the CWA, which requires a permit for “any discharge” of “any pollutant” from “a point source” to “Waters of the United States.” According to the Sierra Club, valley fills are “point sources” discharging “pollutants” such as selenium and conductivity. The CWA defines “point source” as any “discernible, confined and discrete conveyance” from which pollutants are discharged, including pipes, ditches and tunnels. According to the Sierra Club, the definition is broad enough to include valley fills, which the Sierra Club claims “channel” or “convey” pollutants to streams.
The Sierra Club’s position is inconsistent with the manner in which valley fills have long been regulated. In addition to the Corps, valley fills are closely scrutinized by the EPA, the federal Office of Surface Mining (“OSM”) and various state agencies throughout Appalachia. Not one of these agencies has found a valley to be a point source in nearly 40 years of valley fill regulation.
While the Sierra Club argues that other mining features, such as “waste piles” and similar structures, have been found by courts to be point sources, there is a big distinction between the “point sources” in those cases and valley fills. In the cases relied upon by the Sierra Club, the waste piles or other structures conveyed pollutants to the stream through a ditch or similar method. Here, valley fills are placed directly in the stream, pursuant to a permit from the Corps. In litigation to date, the Sierra Club has been unable to point to any structure that requires both a permit from the Corps under Section 404 and an NPDES permit for any water percolating over or through the fill material.
Indeed, if the Sierra Club is successful, there could be serious ramifications for other filling projects permitted by the Corps. Under the Sierra Club’s theory, if a developer or municipality builds a boat ramp, road culvert or causeway pursuant to a permit from the Corps, a separate NPDES permit may be required if water percolates through the fill material or pollutants migrate from the fill material. One can only imagine regulatory nightmare that would ensue.
To complicate matters, drainage from past mining operations has historically been addressed with funding dedicated for nonpoint source pollution. EPA has identified a number of “success stories” where pollution draining from past mining has been addressed by grant money available under Section 319 of the CWA for nonpoint source pollution. The drainage from these sites is often more “discernible, confined and discrete” than drainage from valley fills. See here. Nevertheless, groups affiliated with the Sierra Club have sought funding to treat these older mine sites as sources of nonpoint source pollution.
To date, no court has ruled on whether or not valley fills are point sources. But, many observers are watching the issue closely. There are likely hundreds of reclaimed valley fills throughout Appalachia on property owned by landowners who conducted no mining and who presumed that their property was fully reclaimed, based on the release of permits and bonds by the permitting agencies. Many of these valley fills are in remote areas that are heavily wooded or vegetated, with little or no road access. Establishing monitoring (or treatment) at these locations will be costly and might set other reclamation efforts back substantially. Stay tuned.
This article was authored by M. Shane Harvey, Jackson Kelly, PLLC.