Air Date: Week of March 29, 2002

The Bush administration is changing a subtle but important part of the Clean Water Act, and it could have a big impact on the streams of Appalachia. Guest host Pippin Ross discusses the issue with Living on Earth’s Washington correspondent Anna Solomon-Greenbaum.

Transcript

ROSS: The Bush administration is getting set to finalize a rule that environmental groups warn would give mining companies approval to destroy streams in coal country. At issue is the material that's left over from mountaintop mining. That's the process in which the tops of hills are blasted off to uncover coal underneath. The residue from these blasts is dumped into nearby valleys. And studies by the Environmental Protection Agency show that more than 500 miles of streams have already been filled in in Appalachia. Joining me to talk about the administration's rule change is Living on Earth's Washington Correspondent Anna Solomon-Greenbaum. Anna, what's at stake here?

SOLOMON-GREENBAUM: Well, Pippin, you might want to get out your dictionary for this one. It's all about definitions, specifically about how you define something called "fill." As it's written now, the Clean Water Act defines fill as material meant for construction, for filling up water bodies when things like parking lots and shopping malls get built. In this case, we're talking about the dirt and rocks and other stuff that gets blown off the top of the mountain during a mountaintop removal mining operation and then pushed into the valleys and streams. Now some people, including some federal judges, define this material as waste. And under the Clean Water Act, waste can't be dumped in the streams. The Administration's proposed rule, in affect, would change the definition of fill to include waste. And so it would make these valley fills legal.

ROSS: You know, we've been hearing about these valley fills for years now. But it turns out then that, technically, they're not legal?

SOLOMON-GREENBAUM: Well that's what some citizens' and environmental groups argue. They say the government's been violating the Clean Water Act for decades by granting permits for these valley fills. Right now, there's a Kentucky group that's suing to block a permit the Army Corps of Engineers gave a mining company last year. It was for 27 new valley fills that would cover over about six miles of streams. Jim Hecker is an attorney with Trial Lawyers for Public Justice. He's representing the Kentucky group. And he had this to say about the proposed rule change.

HECKER: Our argument in opposition to that change is that the Clean Water Act was never designed, never intended to allow the disposal of waste in streams. So, if the Corps changes its rule to allow the dumping of waste in streams, they're changing the law to conform to current practice rather than changing current practice to conform to the law.

ROSS: Anna, explain to me exactly what happens to these streams when there's a valley fill. Does it affect water quality?

SOLOMON-GREENBAUM: When all this material that's blown off the top gets pushed into the valleys, the whole area just becomes sort of one-level field. So, it's not really a question of whether the practice harms the stream's water quality. It's a question of whether there are any streams left period.

There was a federal judge, in 1999, who ruled quite strongly on this issue. He was a very conservative Republican judge, Charles Hayden. And he agreed with the citizens’ group, saying, yes, these valley fills could not be permitted under the Clean Water Act. In his opinion, he wrote, "Under a valley fill, the water quality of the stream becomes zero. Because there is no stream, there is no water quality." His ruling, eventually, was overturned on a technicality. But it was enough to get the coal industry really worked up. Here's Ben Green. He's chairman for the West Virginia Coal Association.

GREEN: Well, it would have been devastating. You couldn't have opened a mine. You couldn't have built a road. You couldn't have had a shopping center. When you ban the excess material’s disposal from any hollows, ravines, or valleys in West Virginia, you have shut down our basic activities.

SOLOMON-GREENBAUM: So, it was in part this pressure from the mining industry and from some very powerful West Virginia lawmakers that prompted the Clinton administration to get involved and propose this rule change in the first place.

ROSS: But the Clinton administration never finalized that rule change. So now, the Bush administration is going ahead with it?

SOLOMON-GREENBAUM: Well that's right. But there's a big difference between what the Bush administration wants and what the Clinton folks had on the table. Former Clinton administration officials tell me they were working on putting a broader set of environmental protections in place so that the rule change wouldn't become a kind of free-for-all license for the mining industry to fill streams anywhere they wanted. The Bush administration, on the other hand, is pursuing the narrow definition of the rule change without any additional protections. Critics say that will weaken the Clean Water Act by merging the definitions between what's waste, which is harmful, and what is fill, which is more benign.

ROSS: So Anna, now what?

SOLOMON-GREENBAUM: Well we could see a ruling in the Kentucky case any day now and same with the Bush administration. They say they'll come out with their final rule in April. Once that happens, I think we're going to see environmental groups move pretty quickly to bring the whole issue back to court.

ROSS: Living on Earth's Washington Correspondent, Anna Solomon-Greenbaum. Thanks, Anna.

SOLOMON-GREENBAUM: You're welcome, Pippin.

ROSS: California's Central Valley is a fertile basin more than 300 miles long, and filled with acre after acre of nut trees, vineyards, orchards and cotton fields. Highways dissect the valley. But rural life is still very much alive there. So it's not exactly the kind of place you'd expect to find a lot of smog. But, as Tamara Keith reports, the air in the Central Valley is so polluted it actually rivals Los Angeles. And many people say it's affecting their health.