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View Diary: 30 Days to Save the Mountains (80 comments)

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  •  Thanks for your response, prankster. (0+ / 0-)

    The statute will make it impossible for mining companies to obtain 404 permits for valley fills.

    Yes, that seems clearly the intent.  Although I can think of ways---albeit convoluted---that it might indirectly still be done [e.g. sell the "waste" to residential developers as fill material and coordinate activities.  Perhaps unlikely, but that's just one idea off the cuff, and trust me, I've seen weirder stuff happen. But I digresss...]).

    Section 301 of the Clean Water Act prohibits the discharge of pollutants into waters without a permit.

    Mining waste is without doubt a pollutant.  It just cannot be used as fill material.  Think of "fill material" as a class of pollutant.

    Yes, "fill material" is without a doubt a class of CWA "pollutant."  Indeed, it's a major one with special considerations---that's why there's the 404 carve-out in the CWA dedicated solely to the discharge of dredged or fill material.  However, the assumption in your statement above is not that fill material = a pollutant, but rather that mining waste is "without a doubt" also a CWA "pollutant" in its own right, distinct from fill material.  Is there case law specifically supporting that contention (if so, I sure hope it's pretty robust)?  

    Indeed, the entire premise of this new legislation---that "fill" can be a lot of things, but it can't be "waste"---and the history behind the "primary purpose" business (i.e. that the CWA wasn't meant to deal with waste) would seem to argue against calling mining waste a CWA "pollutant" at all.  So, what happens if you're wrong?  What if you legislate mine waste right out of pollutant-land altogether?  What happens then?

    So, mining waste is a pollutant.  You can no longer get a 404 permit.  And a 402 permit is impossible because the discharge, as you rightly note, cannot violate water quality standards.  

    Hence, no Clean Water Act permit available, no valley fills.  Game. Set. Match.

    I want Game-Set-Match, I really do.  But just for example, as with 402, the 404 program does not allow discharges that violate water quality standards (see 404(b)(1) Guidelines at 40 CFR 230.10(b)(1) and (2)).  As you know all too well, this hasn't stopped the march of the permits.  So tell me how would it be any different?  Even if a more responsible party issued them, your argument seems to rely on the impossibility of permit issuance under 402.

    There is no deregulation here.  The statute is strong--no discharge without a permit.  If you take the 404 permit away, it would be laughable for EPA to issue a 402 permit.

    On the contrary, if you take the 404 permit away, you arguably leave no choice but for EPA and delegated states to issue 402 permits.  "Laughable?"  This seems really shaky ground to rest one's hopes upon---do we really want to get into the "laughable" things that have indeed come to pass under this administration (or indeed others)?  The entire strategy seems to me to hang on the hope that the courts will allow us to have it both ways: mine waste is not "fill material," but is a regulated "pollutant" that in every other functional respect seems like...fill material.

    So, as I understand it, it's like this: We don't like how the Corps is managing this pollutant under its charge (no argument from me!), and we've actually got the mojo to affect a legislative fix.  So what should we do?  Should we advocate new, or modifying existing, legislation specifically dealing with this industry, or at least this industry practice?  Should we take it out of the Corps' hands and put it in an agency's hands with...oh, I don't know...an actual environmental mission (snark there directed at Congress c.1972 [or 1899, I suppose] not you!)?  

    Nah.  Let's address our beef with the Corps' practices by removing the entire shebang from 404 regulation (and who knows, perhaps CWA regulation entirely)!

    I'm sure these (or similar) tacks have been tried or at least discussed.  But I'm sorry, with CWPA I'm still. Just. Not. Seeing it.

    Think of it this way.  Things like refrigerators have always been excluded from the definition of fill material.  That has not made it open season to discharge refrigerators (or chicken bones) into the waters of the United States.  

    LOL!  Friend, that's only because there ain't no coal under them thar ice boxes!!  

    I'd be willing to bet that if there were a major industry whose multi-billion-dollar business practices depended upon dumping refrigerators full of chicken bones into waters, Appalachia would be flat as Kansas---a veritable superhighway of Frigedaires and KFC buckets (and by the way, if you take a walk in, say, southern Arizona, you'll see that it actually IS open season on dumping appliances, car bodies, etc. in rivers.  Right now.  No messin' with fill definitions required.).

    As far as deregulation goes, it's still pretty difficult not to see it that way.  As you point out above, the CWPA would make 404 irrelevant to the MTR universe.  Do you only consider it deregulation if the entirety of the CWA no longer applied (which, actually I argue remains a possibility)?  At the very least, an entire regulatory program is being scrapped as it pertains to MTR here.  Sounds like deregulation to me.

    No, the logical approach is to stick with the effects-based definition, and address the implementation.  The CWA may not have been geared at litterbugs, but it was geared at "maintaining and restoring the physical, chemical, and biological integrity of the nation's waters."  Does the buried river (or the folks losing ecosystem services like decent drinking water and flood control) "care" what "purpose" the discharger had in mind when they dumped tons of earth and rock on it?  Of course not.  If we want to protect the integrity of the nation's waters, as the Act sagely directs, getting wrapped around the axle on "primary purpose" is (and always was) a big mistake.  

    The CWPA manages deftly to contradict itself in it's all-too-brief span by at once saying it's the effect that matters most....and that the effect matters not at all (if it happens to result from this one particular discharge purpose).

    As you can see, I'm still very troubled by this!  Thanks for taking the time to consider my questions and discuss.  :-)

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