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View Diary: 30 Days to Save the Mountains: A New Day (120 comments)

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  •  Hi Babakotia (3+ / 0-)
    Recommended by:
    faithfull, RosyFinch, babakotia

    I posted a comment to your theory.  You are right to be cautious here, but I think that the CWPA will work.

    Also note that the statute would stop valley fills, not MTR.  The two are probably inextricable linked, but in theory, the companies could truck every ton of overburden offsite (too expensive to be practical).  Plus, they would still need a permit to "mine through" streams, as these types of mines often do (when they blow up the headwaters).

    Don't think of MTR as ever having been regulated under section 402.  It hasn't been.  Rather, it has always been regulated under 404 by the Army Corps.  The Army Corps has been...less than faithful to the language and intent of the Clean Water Act.  That is, they permitted valley fills for waste disposal without a second thought.

    As you note, EPA and Army Corps had conflicting definitions of fill material until 2002.  My organization brought suit under the prior regime, and demonstrated to a federal judge that the Army Corps practice was contrary to the statute in that is permitted the disposal of waste under 404.  404 is for building dams, levees, marinas, etc.  It is not for waste disposal. (The intent test that you noted).

    Now there is the "effects test" under the 2002 rule.

    The CWPA essentially makes the effects test unlawful because it explicitly defines fill material (which the statute had not done previously, leaving it up to the agencies to define it).  Fill material does not include discharges for the purpose of waste material.  That is what a valley fill is.  There can be no pretending that a valley fill is anything else.

    The intent is not to get it back under 402/NPDES.  It was never there.  The intent is take it out of 404.  I suppose you could say the intent is to get it back under section 301, which prohibits the discharge of any pollutant without a permit.  If you take the 404 permit away, the only place that coal could turn from there would be 402, and a 402 permit for a valley fill would be struck down in a heartbeat.

    You are right to be skeptical of the agencies, to be sure.  There may even be some room around the edges for mischief. But those battles will be easier to fight than the battles under the scheme in place now.

    •  thanks (1+ / 0-)
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      If you take the 404 permit away, the only place that coal could turn from there would be 402, and a 402 permit for a valley fill would be struck down in a heartbeat.

      ...exactly! Well said prankster. And like you hint at in the last paragraph, the difficulty whenthe Clean Water Protection Act passes will be enforcement, as it is with so many laws in the coalfields.

      I've met your boss a time or two, and watched him stand up to Nick Rahall at a Congressional hearing a few months ago where Rahall was such an incredble ass to him in order to show off for Bill Caylor and his  buddies. Joe is an inspiration of mine (Joe L...not Nick Joe), even though we haven't gotten to work directly together as much as I would have liked. Yall keep up the good work.

      "If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide." Abe Lincoln

      by faithfull on Wed Oct 17, 2007 at 05:58:26 AM PDT

      [ Parent ]

    •  Thanks for your reply - and a (0+ / 0-)

      rebuttal/continuation of the conversation I just posted as well.  Had to wait to be home from work...

      Thanks for your attention to this!

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