EPA Reportedly Re-examining Definition of “Fill Material” For Clean Water Act

There are rumors that EPA is considering changes to the regulatory definition of “fill material” to further regulate surface coal mining in the East and mine tailings disposal in the West. In the rugged terrain of central Appalachia, the coal industry needs to place excess spoil and coal refuse in the headwaters of small drainages, and requires a Clean Water Act Section 404 permit from the Corps of Engineers to do so. Last year, the Supreme Court ruled that the Corps could permit the disposal of tailings from gold processing in “waters of the United States” despite a “no discharge” provision in the effluent limitation guidelines applied to NPDES-regulated discharges in the industry. See Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 129 S.Ct. 2458 (2009); and 173 L.Ed.2d 1154.  

For over a decade prior to 2002, the Corps and EPA had inconsistent definitions of “fill material.” The Corps, for the purpose of narrowing the scope of its authority over unpopular landfills and the like, defined “fill” with a “primary purpose” test. If the purpose was to create dry land, then it was “fill.” But if the purpose was waste disposal, the material was not “fill” and, theoretically, you would have to get an NPDES permit rather than a Corps permit. EPA maintained a broader definition in the hope of tossing landfills, etc. back to the Corps. Its definition of “fill” used an “effects” test. If the effect of the discharge was to fill, regardless of the discharger’s purpose, then the material was considered “fill,” and the Corps was the appropriate permitting agency. Throughout the 1990s, anti-mining forces in the East sought to exploit this inconsistency as a vehicle for banning the issuance of 404 permits by the Corps.  See Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F. 23d 425 (4th Cir. 2003) (reversing district court decision holding that only material discharged with a “constructive purpose” may be considered “fill material” under Section 404 of the Clean Water Act). 

In 2000, the Corps and EPA, under the Clinton administration, proposed a joint definition using the “effects” test, and sought to make clear that spoil and refuse were “fill” regardless of the discharger’s purpose. 65 Fed. Reg. 21,292 (April 20, 2000). The rule was finalized in May 2002 under the Bush administration. 67 Fed. Reg. 31,129 (May 9, 2002) (codified at 33 C.F.R. Pt. 323 and 40 C.F.R. Pt. 232). Now it appears that EPA wants to tinker with it to address both the tailings issues in Alaska and surface coal mining.  

This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author see here.