Feds are now the real enemy in Appalachian coal wars

The coal wars in Appalachia could eventually alter the definitions and regulation of mine waste for both coal and hardrock mining companies, coal mining attorney Robert McCluskey suggests.

RENO, NV - 

Notwithstanding, the protestors who chain themselves to mining equipment or the Hollywood types arrested during demonstrations, in the on-going coal wars in Appalachia, mining attorney Robert McCluskey says "The enemy has kind of shifted from the anti-mining groups to the [federal] government."

During a presentation to the Northwest Mining Association meeting in Reno, McCluskey noted the EPA is threatening to veto Clean Water Section 404 permits that had already been approved and issued to coal mining operations by the U.S. Army Corps of Engineers.

Meanwhile, what McCluskey called a "significant fight" is now brewing between state and federal governments as to who makes and implements Section 404 standards regulating coal mining operations. In Appalachia, waste material from coal surface mining operations is deposited or discharged into U.S. waters.

Historically, the Corps of Engineers has regulated coal mining waste discharge as fill in Section 404. However, environmentalists argue that depositing coal mining waste is more of a polluting activity rather than a filling activity, which should be regulated by the EPA under CWA Section 202.

The coal mining industry supports regulating mountaintop mining discharges under Section 404.

To compound the situation, environmentalists are pushing regulators to apply the National Environmental Policy Act (NEPA) and the Clean Water Act (CWA) to the entire mining site, instead of concentrating on stream buffer zones.

In his presentation, McCluskey suggested the term "mountaintop mining" no longer simply applies to mining mountaintops for coal. Rather, any mining in Central Appalachia that requires valley fill is now considered to be mountaintop mining.

The bad news is "every one of those valleys has water in it," which then puts that valley under the jurisdiction of 404 CWA regulations. McCluskey called this situation coal mining's "Achilles' heel."

The Section 404 program focused on the discharges of dredged material and fill material. Discharges from material that would have significant adverse effects on aquatic ecosystems are not allowed.

H.R. 1310, the Clean Water Protection Act, has been introduced in Congress. It is intended to add a definition of fill material to the Clean Water Act plus a statement that the definition does not include any pollutant discharges that replaces portions of U.S. waters with dry land or change the bottom elevation of a water body.

McCluskey argues mining waste treatments systems or ponds should not be considered waters of the United States.

In a response to a question by Mineweb, McCluskey said the coal mining industry has not offered any recent mountaintop mining legislation "because they think it would not go anywhere" in Congress.

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