 |
REGULATION OF VALLEY FILLS
Backgrounder
Why is a rule defining "fill material"
necessary?
The rule is in response to a 1982 court order requiring the
U.S.
Army Corps of Engineers (COE) and the Environmental
Protection Agency (EPA) to issue a joint rule reconciling
the differences in the two agencies' regulations. It provides
needed clarification that materials such as mining overburden,
rock from road building and construction, etc.-are appropriately
considered "fill material" and are legally authorized for permanent
placement by Section 404 of the Clean Water Act.
The rule makes no changes in the underlying Section 404 regulatory
framework of the Clean Water Act.
Prior to 1977, the COE and EPA had consistent
regulatory definitions for "fill material." In 1977, the COE
amended its definition by adding a new test (the "primary purpose
test") to its definition, but EPA made no such revisions. This
definitional difference created ambiguities in the regulatory
program-resulting in inefficient permitting decisions and extensive
litigation-making the clarifying rule necessary.
What are valley fills?
Valley fills are carefully engineered earth
and rock structures designed and constructed to safely and
permanently hold excess rock and other native material generated
from excavation activities such as mining, road building
and large construction projects in rugged, steep terrain.
Diagram of Valley Fill
Valley fills are regulated by the COE and the EPA based
on provisions of the Federal Surface Mining Control and
Reclamation Act (SMCRA) and Section 404 of the Clean Water
Act. The COE and EPA must issue a permit prior to the commencement
of any valley fill activity.
Why are valley fills necessary?
The availability of valley fills for the permanent placement
of large volumes of naturally occurring excess material makes
coal mining-as well as road building and construction-possible
in terrain with steep slopes and narrow valleys such as is found
throughout Central Appalachia.
Valley fills are the safest way to permanently place and secure
this material , and a recent analysis by the West Virginia governor's
office concludes that, because of the amount of material involved
and the nature of the overall landscape, there are no realistic
alternatives for permanent disposition.
Specifically for coal mining in central Appalachia, low sulfur
coal seams lie in numerous horizontal layers relatively near
the surface in the upper portion of mountainous areas. To reach
the coal, layers of sedimentary rock (mostly sandstone and shale)
are removed. Because of the normal expansion that occurs when
large volumes of excess rock, earth and other natural material
are excavated, there is insufficient room to return it to the
excavated area.
What are the benefits of mining in areas
where valley fills are necessary?
In West Virginia alone, the low sulfur
coal that was mineable last year because of the valley fill
option provided electricity for
millions of American homes and businesses-mainly
in the eastern U.S. In West Virginia, 99 percent of the electricity
is provided by coal.
When reclaimed, valley fills create valuable
level land areas above the Appalachian flood plain that have
long been used for construction of schools, government facilities,
housing and recreational areas, for example.
|
The FBI complex in Clarksburg (above)
provides more than 3,000 West Virginia
jobs. Completed in 1995, the complex is located on 986 acres
of reclaimed land. |
|
Mount View High School
was built on an area that once was a mountaintop mining site.
With McDowell County more than 90 percent hillside, land available
for economic development is in short supply. |
| |
In June 2000, Marshall University
conducted a nine-county study of the economic impact of restrictions
on the use of valley fills in association with surface mining
in the region. The study concluded
that within five years, coal production would be cut by over
41 percent and more than 15,000 jobs would be lost in coal mining
and related industries.
How are valley fills regulated?
Valley fills must meet a series of federal
and state regulatory requirements designed to protect water
resources. These protections are unchanged by the rule, which
simply clarifies what constitutes suitable "fill material."
Section 404 of the Clean Water Act specifically authorizes
issuing permits for the placement of material at "specified
disposal sites" and outlines explicit and coordinated responsibilities
for EPA and the COE.
In addition, states require mitigation of any stream or wetland
loss due to mining, and that certification must accompany
any 404 permit. Finally, EPA may raise objections to the issuance
of Section 404 permits and may also veto a COE permit on the
grounds that the activity will have an unacceptable adverse
effect on downstream aquatic resources.
In order to receive a permit, a fill design must consider
site-specific soil characteristics, geology, physical and
chemical properties of the material going into the fill, locations
of springs or seeps, etc. The structure must be free draining,
and the fill design must provide a permanent factor of safety
that ensures stability.
Generally, these fills are located at high elevation ephemeral
stream segments that flow only when it rains. Any intermittent
stream (flows during parts of the year) impact must be mitigated
in accordance with Section 404, as enforced by the COE. EPA
also has oversight authority over these mitigation plans (Section
402 of the Clean Water Act), and the state regulatory authority
must certify the mitigation plan is consistent with state
water quality standards, including sampling of aquatic life.
As a result, valley fills have been successfully constructed
and operated over the last 25 years.
How do valley fills impact the environment?
Any potential downstream impact of valley fills is carefully
regulated by the federal government and state water quality
requirements.
Despite the overall dependence upon valley fills throughout
Appalachia, the government estimates fills actually impact less
than 55 acres of stream segments-all of which must be mitigated
under the law.
What is the bottom line?
Valley fills are carefully constructed and have a long history
of successful environmental compliance with strict state and
federal laws and regulations. They are the only viable option
for the disposition of large volumes of material from road building,
construction and mining. They create accessible flat land above
the flood plain-a rarity in Appalachia-and provide needed jobs,
transportation and a reliable energy source to the entire region.
The regulatory confusion resulting from differing definitions
needed to be clarified. The rule makes the necessary clarification,
while preserving the underlying regulatory framework designed
to protect water resources.
|
|
