Energy and Environment Monitorwww.eem.jacksonkelly.com

West Virginia Governor Issues Executive Order To Regulate Marcellus Shale Development

On July 12, 2011, West Virginia’s Governor Tomblin announced the issuance of an Executive Order (“Order”) requiring the WVDEP to immediately promulgate emergency rules to regulate the development of unconventional oil and gas in West Virginia to protect the public health, safety and welfare of the citizens of West Virginia, while underscoring the importance of oil and gas production to the economy of the State.  The Executive Order focuses primarily on protection of water during withdrawal and disposal, well pad construction and reclamation, well safety plans, disclosure of chemical additives in frack fluids, disposal of drill cuttings and drilling mud, and public notice when drilling near a municipality. The substantive provisions of the Order are as follows: 

(1)        The WVDEP Return Fluids Memorandum dated July 30, 2010, prohibiting operators from utilizing land application of any return fluids from completion activities in the Marcellus Shale formation, is to continue in full force and effect. 

(2)        Disposal of return fluids into any publicly-owned wastewater treatment plant is prohibited without the prior written approval of the WVDEP. 

(3)        WVDEP must increase regulatory oversight of practices and equipment to ensure that no pollutants are disposed of or discharged into the water in violation of any applicable water quality standards and effluent limitations. 

(4)        WVDEP must promulgate emergency rules governing the following: 

a.         Erosion and sediment control plans for well sites disturbing an area of three acres or more of surface, excluding pipelines, gathering lines, and roads (the “Surface Disturbance Threshold”) must be certified by, and constructed under the supervision of, a registered professional engineer; 

b.         Applications for permits involving well sites that exceed the Surface Disturbance Threshold must be accompanied by a site construction plan certified by, and sites must be constructed under the supervision of, a registered professional engineer; 

c.         Applications for well work permits must provide an estimate of the volume of water that will be used for drilling, fracturing or stimulating (“fracking”) and, if the well requires water withdrawals of water in excess of 210,000 gallons during a single month (the “Water Withdrawal Threshold”), the applicant must also file a water management plan.  The water management plan can be submitted on either an individual well basis or a watershed basis, and must include the following information: 

(i)         The type and exact location of the water source;

(ii)        The anticipated volume of each withdrawal;

(iii)       The anticipated months when withdrawals will be made;

(iv)       The planned management and disposition of wastewater from fracking and production activities;

(v)        A listing of the anticipated additives that may be combined with water for fracking the well, and upon well completion, a list of the additives actually used in fracking must be submitted as part of the completion report;

(vi)       For all surface water withdrawals, the water management plan must include documentation of measures that will be taken to allow the State to manage the quantity of its waters for present and future use and enjoyment and for the protection of the environment, including: (1) the identification of the current designed and existing water uses, including any public water intakes within one mile downstream of the withdrawal location; (2) a demonstration that sufficient in-stream flow will be available immediately downstream of the point of withdrawal; and (3) the methods to be used to minimize significant adverse impact to aquatic life; 

d.         Applications involving well sites in excess of the Surface Disturbance Threshold must include a well-site safety plan addressing the measures to be employed for the protection of persons on the site, the general public and the environment.  The plan must encompass all aspects of the operation, including the actual well work, completion, and production activities.  Operators will be required to provide the safety plan to the local emergency planning committee; 

e.         Operators must protect the quantity and quality of water in surface and groundwater systems by:  

(i)         Withdrawing water by approved methods to maintain sufficient in-stream flow immediately downstream;

(ii)        Casing, sealing or otherwise managing wells to keep fluids or natural gas from entering ground and surface waters;

(iii)       Conducting operations using best management practices to prevent additional contributions of suspended or dissolved solids to streamflow or runoff outside the permit area; and

(iv)       Registering all water supply wells with the Office of Oil and Gas and plugging all such wells; 

f.          Operators withdrawing more than the Water Withdrawal Threshold must: 

(i)         Within a limited timeframe, identify the location of water withdrawal and verify that sufficient flow exists to protect designated uses of the stream; and

(ii)        Post signs at water withdrawal points. 

g.         Operators must implement record keeping and reporting requirements for all water used in connection with fracking activities and for all produced  water from production activities: 

(i)         For production activities, the well operator must record the quantity of flowback water from fracking the well; the quantity of produced water; and the method of management or disposal of both the flowback and produced water;

(ii)        For transportation activities, the operator must record the quantity of water transported; the collection and delivery or disposal locations; and the name of the water hauling company.

 h.         Applicants seeking to drill the first horizontal well on a well pad located in an area (1) within the boundaries of any municipality or (2) within a one-mile radius of any municipality, must publish public notice sufficient to apprise the public of the applicants’ intent to drill. 

(5)        All drill cuttings and drilling mud from regulated sites must be disposed of in an  approved West Virginia solid waste facility or managed in an otherwise approved manner.  

(6)        The WVDEP must evaluate its overall regulatory authority over drilling activities related to horizontal wells and identify additional areas of critical regulatory concern, such as well construction and design standards, air emissions, drill cuttings management, recycling of produced fluids, and water management.  Upon completing its review, the WVDEP shall exercise its emergency rulemaking authority to promulgate any additional emergency legislative rules necessary to address areas of environmental concern requiring immediate attention. 

This article was authored by Steven M. Green, Jackson Kelly PLLC. For more information on the author see here. 

To view the Executive Order, please click here.

The Latest on USEPA’s Hydraulic Fracturing Study

Congress has required U.S. EPA to study the impacts of hydraulic fracturing, to determine whether hydraulic fracturing can impact drinking water resources, and if so, what conditions the impact could cause. In February of this year U.S. EPA created the "Draft Plan to Study the Potential Impacts of Hydraulic Fracturing on Drinking Water Resources," which outlined the steps and process that EPA's scientists will follow in the study. EPA, Draft Plan to Study the Potential Impacts of Hydraulic Fracturing on Drinking Water Resources (Feb. 2011) (available at http://water.epa.gov/type/groundwater/uic/class2/hydraulicfracturing/upload/HFStudyPlanDraft.  The plan identified proposed research for each stage of the hydraulic fracturing water lifecycle, starting with water acquisition, going through the mixing of chemicals, the actual fracturing process, and ending with the post-fracturing production. The study is expected to include the management of flow-back and produced water and the ultimate treatment and disposal of water. 

On June 23, 2011, U.S. EPA announced it has selected seven sites for its case studies of the potential impacts of hydraulic fracturing on drinking water resources.  These case studies will be further broken down in to prospective case studies and retrospective case studies.  The prospective studies will take place in Haynesville Shale – DeSoto Parish, La. and Marcellus Shale – Washington County, Pa. and will evaluate the hydraulic fracturing process throughout the lifecycle of the well.  The retrospective case studies will examine whether hydraulic fracturing has impacted drinking water resources and are located in Bakken Shale – Kildeer, and Dunn Counties, N.D.; Barnett Shale – Wise and Denton Counties, Texas; Marcellus Shale – Bradford and Susquehanna Counties, Pa.; Marcellus Shale – Washington County, Pa.; and Raton Basin – Las Animas County, Colo. 

For more information go to http://www.epa.gov/hydrualicfracturing 

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

Recent Developments in Local Hydraulic Fracturing Regulations

EPA is preparing to study the impacts of hydraulic fracturing, to determine whether hydraulic fracturing can impact drinking water resources, and if so, what conditions the impact could cause. In February of this year EPA created the “Draft Plan to Study the Potential Impacts of Hydraulic Fracturing on Drinking Water Resources,” which outlined the steps and process that EPA’s scientists will follow in the study.¹ The plan identifies proposed research for each stage of the hydraulic fracturing water lifecycle, starting with water acquisition, going through the mixing of chemicals, the actual fracturing process, and ending with the post-fracturing production. The study will include the management of flow-back and produced water and the ultimate treatment and disposal of water. 

Currently EPA does not directly regulate hydraulic fracturing. EPA’s central authority to regulate water quality stems from the Safe Drinking Water Act (SDWA), but the SDWA currently excludes hydraulic fracturing. The SDWA does however govern the use of diesel fluid in the process, and any well that uses diesel fuel must receive prior authorization.²   Legislators from Colorado and New York have repeatedly attempted to pass the FRAC ACT, which would both remove this exemption for hydraulic fracturing from the SDWA and require energy companies to disclose what chemicals they use in the hydraulic fracturing process.³  The FRAC Act was introduced to Congress for the third time on March 15, 2011. As of date, it has not passed into law. As such, most regulation concerning the hydraulic fracturing process is implemented by states. 

The nonprofit organization, State Review of Oil & Natural Gas Environmental Regulations, STRONGER, has been conducting a review of individual state regulations of the hydraulic fracturing process in several of the oil and gas producing states.   STRONGER’s review is conducted by a nine-member board, comprised of three groups of three representatives from state regulatory bodies, environmental interest groups, and the oil and gas industry. Within the last year, STRONGER has reviewed the regulations of Louisiana, Pennsylvania, Ohio, and Oklahoma.⁴  Colorado recently volunteered to have its hydraulic fracturing rules and regulations reviewed by STRONGER. The organization’s review should be completed by August or September of this year. 

Pennsylvania has recently formed the Marcellus Shale Advisory Commission, which will be responsible for overseeing the efficient development of the state’s fracturing industry while protecting lands, water, and air.⁵   While the Marcellus Shale Advisory Commission has not yet reported any findings, it is expected to issue a report by the end of the summer.  

West Virginia does not currently directly regulate hydraulic fracturing, but does have varying regulations that control aspects of the process.⁶ Many of the energy companies currently mining in the state have begun voluntarily disclosing what chemicals they use in their processes on a new website, FracFocus.org, which was launched on April 11 of this year. Companies in the state are not currently required to disclose information on the website.⁷

It will be interesting to see the results of the various studies being performed by EPA, states, and other organizations.   

This article was co-authored by Laura G. Swingle, Jackson Kelly PLLC and law student, Chris Petersen.  For more information on the author (Swingle) see here. 

_______________

¹EPA, Draft Plan to Study the Potential Impacts of Hydraulic Fracturing on Drinking Water Resources (Feb. 2011) (available at http://water.epa.gov/type/groundwater/uic/class2/hydraulicfracturing/upload/HFStudyPlanDraft_SAB_020711.pdf). 

² Regulation of Hydraulic Fracturing by the Office of Water, http://water.epa.gov/type/groundwater/uic/class2/hydraulicfracturing/wells_hydroreg.cfm(last visited June 12, 2011). 

³ See S.587: FRAC Act, 112th Cong. (2011) (proposed). 

⁴ STRONGER, Inc., http://www.strongerinc.org/reviews/reviews.asp(last visited June 12, 2011). 

⁵ Press Release, Pennsylvania Office of the Governor, Governor Corbett Announces Formation of Marcellus Shale Advisory Commission (Mar. 8, 2011) (available at http://www.portal.state.pa.us/portal/server.pt/community/marcellus_shale_advisory_commission/20074). 

⁶ See Press Release, West Virginia Department of Environmental Protection, Large Water Volume Fracture Treatments (Jan. 8, 2010) (available at http://www.dep.wv.gov/oil-and-gas/GI/Documents/Marcellus%20Guidance%201-8-10%20Final.pdf). 

⁷ Press Release, Colorado Oil and Gas Conservation Commission, New Website to Provide Data on Hydraulic Fracturing Chemicals in Colorado (Apr. 7, 2011) (available at http://cogcc.state.co.us/Announcements/Fracking_disclosure_doc.pdf).

EPA Releases Company Confidential Information

In a highly unusual and precedent setting action June 8, 2011, U.S. EPA made public the identities of more than 150 chemicals contained in 104 health and safety studies required by the Toxic Substances Control Act (TSCA).  A few companies had voluntarily declassified information, but most chemical identities were unilaterally made public by EPA.  Apparently all of the companies had made appropriate confidentiality claims which were fully accepted by U.S. EPA;  there is no mention of a claim by EPA that the claims of confidential business information were unwarranted (see 3/24/11 action described below).  EPA’s rationale for releasing this confidential data was the need to provide the public has as much information as possible about the health and the environmental impacts of chemicals, the U.S. Environmental Protection.

The chemical identity composition data for these 104 TSCA studies will no longer be redacted from the public report.  The chemicals involved are used in dispersant formulations and consumer products such as air fresheners, non-stick and stain resistant materials, fire resistant materials, nonylphenol compounds, perfluorinated compounds, and lead. 

Under the Obama Administration, EPA has taken a series of unprecedented actions to provide the public with greater access to information on the chemicals that are manufactured and used in the United States. In 2010, EPA challenged industry to voluntarily declassify allegedly “unwarranted” claims of confidential business information (CBI). The agency also issued new guidance (Jan. 21, 2010, 75 FR 3462) outlining plans to deny confidentiality claims for chemical identity in health and safety studies under the TSCA. Based on this guidance, EPA notified a number of companies in February, 2011, that the agency had determined that their CBI claim was not eligible for confidential treatment under TSCA and that EPA intended to make the information public. On March 24, 2011, EPA made 42 health and safety studies that had been claimed and treated as confidential available to the public.  EPA is committed to posting new declassified materials under TSCA on the agency website on a regular basis. 

The release of this confidential data submitted by companies pursuant to TSCA is of significant concern because of all of the environmental programs, the most detailed information regarding product composition is submitted pursuant to TSCA. This type of information makes reverse engineering of the product possible and when TSCA was implemented, industries’ greatest concern was the probability for product infringement. EPA assuaged these concerns via the mechanism of “confidential business information” (CBI), with the assurance that CBI would be maintained and the information would not be disclosed to the public. 

It is certainly possible that EPA will be taking similar actions in regard to the claims for CBI made pursuant to the Clean Air Act, the Clean Water Act and RCRA. The most important of these is the Clean Air Act since the type of information required by EPA often requires submittal of detailed process information. 

Over the past several months EPA has taken a number of other steps to make chemical information more readily available.  December 22, 2010, EPA made available the new Chemical Data Access Tool available on Data.gov to find health and safety data that has been submitted to the Agency, under authorities in sections 4, 5, and 8 of TSCA.  On May 17, 2010, EPA added more than 6,300 chemicals and 3,800 chemical facilities regulated under TSCA to EPA's public Envirofacts database. The Envirofacts database is EPA's single point of access on the Internet for information about environmental activities that may affect air, water and land, and provides tools for analyzing the data. It includes facility name and address information, aerial image of the facility and surrounding area, and the map location of the facility. Envirofacts links to other EPA information on the facility, such as EPA's inspection and compliance reports that are available through the Enforcement Compliance History Online (ECHO) database, which includes historic information.   

This article was authored by Barbara D. Little, Jackson Kelly PLLC. For more information on the author see here.

EPA Issues Draft Guidance to Identify Waters Protected by the Clean Water Act

On April 27, 2011 the United States Environmental Protection Agency (USEPA) and the United States Army Corps of Engineers (Corps) issued its long awaited guidance for determining whether a particular “water” is protected by the Clean Water Act.  Following the United States Supreme Court decision in Rapanos v. United States & Carabell v. United States there has been increased uncertainty regarding the interpretation of whether a waterbody meets the definition of “waters of the United States” and is subject to regulation under the Clean Water Act.  This Draft Guidance on Identifying Waters Protected by the Clean Water Act is designed to reduce the uncertainty.

The draft guidance is available at http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters_guidesum.cfm  The following is a summary of the draft guidance as provided on the U.S. EPA website:

Summary of Key Points in the Proposed Guidance

Based on the agencies' interpretation of the statute, implementing regulations and relevant caselaw, the following waters are protected by the Clean Water Act:

•Traditional navigable waters

•Interstate waters

•Wetlands adjacent to either traditional navigable waters or interstate waters

•Non-navigable tributaries to traditional navigable waters that are relatively permanent, meaning they contain water at least seasonally

•Wetlands that directly abut relatively permanent waters 

In addition, the following waters are protected by the Clean Water Act if a fact-specific analysis determines they have a "significant nexus" to a traditional navigable water or interstate water:

•Tributaries to traditional navigable waters or interstate waters

•Wetlands adjacent to jurisdictional tributaries to traditional navigable waters or interstate waters

•Waters that fall under the "other waters" category of the regulations. The guidance divides these waters into two categories, those that are physically proximate to other jurisdictional waters and those that are not, and discusses how each category should be evaluated.

The following aquatic areas are generally not protected by the Clean Water Act:

•Wet areas that are not tributaries or open waters and do not meet the agencies' regulatory definition of "wetlands"

•Waters excluded from coverage under the CWA by existing regulations

•Waters that lack a "significant nexus" where one is required for a water to be protected by the CWA

•Artificially irrigated areas that would revert to upland should irrigation cease

•Artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing

•Artificial reflecting pools or swimming pools created by excavating and/or diking dry land

•Small ornamental waters created by excavating and/or diking dry land for primarily aesthetic reasons

•Water-filled depressions created incidental to construction activity

•Groundwater drained through subsurface drainage systems and

•Erosional features (gullies and rills), and swales and ditches that are not tributaries or wetlands.

Id.

Once the notice is published in the Federal Register, the public will have 60 days to provide comment to the agencies. 

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

EPA Plans to Publish Guidelines For Companies Using Diesel Fuel in the Hydraulic Fracturing Process

According to a statement made by Lisa Jackson, U.S. Environmental Protection Agency (U.S. EPA), on April 26, 2010 during a conference convened by the U.S. Energy Information Administration, U.S. EPA plans to publish guidelines for companies using diesel fuel in the hydraulic fracturing process.  See Ryan Tracy, US EPA To Publish Guidelines On Diesel In Fracturing Fluid, available at http://www.smartmoney.com/news/ON/?story=ON-20110426-000250&.  Hydraulic fracturing involves injecting a liquid mixture of water, chemicals and sand underground to break up shale rock and release natural gas.

Currently, U.S. EPA does not regulate the injection of fracturing fluids under the Safe Drinking Water Act (SDWA).  The 2005 Energy Policy Act excludes hydraulic fracturing from the SDWA legislation.  The Underground Injection Control (UIC) Program was established in 1982 when Congress passed the SDWA, requiring U.S. EPA to develop minimum standards to ensure that drinking water sources, actual and potential, would not be rendered unfit by underground injection of contaminants.  Thus regulation of hydraulic fracturing fluids has been primarily left to the states with minimal federal oversight.  

However, according to the article, Jackson said fracturing fluid containing diesel is not exempt and thus guidance is needed.  Id.  The article suggests that U.S. EPA is communicating with the regulated community to inform its guidance.  It is not known when the public will have an opportunity to review it. 

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

Pennsylvania DEP Calls on Natural Gas Drillers to Stop Sending Wastewater To Centralized Treatment Facilities

On April 19, 2011, Pennsylvania DEP called on all Marcellus Shale natural gas drilling operators to cease by May 19 delivering wastewater to those centralized treatment facilities that were grandfathered from the application of last year’s Total Dissolved Solids (TDS) regulations. The agency based its decision what it described as more definitive scientific data, improved technology and increased voluntary wastewater recycling by industry. The previous administration in Pennsylvania had chosen to allow facilities that had historically accepted drilling wastewater to continue to accept it, as long as they did not increase their input load of wastewater. DEP cited recent surface water sampling as having found elevated levels of bromide in streams in Western Pennsylvania in support of its change in position. 

Increasing Pennsylvania is moving in the direction of West Virginia which is strongly discouraging stream discharges of oil and gas wastewater. In part this effort is in furtherance of USEPA's zero discharge effluent guideline adopted in the 1970s and in part in furtherance of a new round of water quality standards. 

These and related developments will focus additional attention on the development reuse/recycle and UIC options for the management of wastewater from these operations. 

This article was authored by David M. Flannery, Jackson Kelly PLLC. For more information on the author see here.

Vice President and Two Managers of Indianapolis Waste Treatment Facility Sentenced for Clean Water Act Felony Pleadings

The US EPA announced on April 6, 2011 the sentencing of three officials form an Indianapolis, Indiana, oil reclamation company, Ecological Systems, Inc. (ESI). The three were sentenced in U.S. District Court, Southern District of Indiana for felony violations of the Clean Water Act resulting from ESI's intentional discharges of untreated wastewater and stormwater from its facility directly into the Indianapolis sewer system.

Joe Biggio, Mike Milem, and Mark Snow, ESI's former Operations Manager and Executive Vice President, Operations Manager, and Lab Manager, respectively, were sentenced after pleading guilty to criminal violations of the Clean Water Act.

The Indiana Department of Environmental Management (IDEM) received complaints from several Indianapolis homeowners that thick, oily wastewater was flowing into their yards from sewer manholes after a heavy rainfall on February 11, 2009. Subsequently, IDEM found that ESI did not have the required sufficient storage capacity to handle wastewater from this type of wet weather event. Milem and Snow were found to have decided to pump untreated oily wastewater directly into the Indianapolis sewer system by bypassing ESI's treatment processes in order to handle the large amount of storm water. IDEM determined that approximately 300,000 gallons of untreated wastewater were discharged over a period of about eight hours. The oily sludge waste back flowed from several sewer manholes downstream of the ESI facility after the discharge and contaminated residential properties. 

The subsequent investigation by EPA's Criminal Investigation Division, IDEM, and the Indiana Department of Natural Resources also determined that ESI had not been adequately treating the waste it took from customers for reclamation for a significant period of time, that ESI had misrepresented to EPA and Indiana the storage capacity it had, and that Biggio knew that ESI was hiding its noncompliance in several ways. For example, he reported only low analytical sampling results instead of reporting all wastewater sample results to the city as required by ESI’s permit and he collected wastewater after rainfalls to dilute samples to report the lower levels. Submitting false sampling results and making false statements to the authorities was a knowing attempt to disguise the fact that permit limits were being exceeded on a regular basis.

This article was authored by Skipp Kropp, Jackson Kelly PLLC. For more information on the author see here.

Court Rules Non-Discharging CAFOs Do Not Need to Apply For NPDES Permits Under EPA’s 2008 Regulations

On March 15, 2011, the U.S. Court of Appeals for the Fifth Circuit ruled in National Pork Producers Council v. EPA that EPA does not have the authority to require farmers to apply for National Pollution Discharge Elimination System (NPDES) permits unless they are actually discharging manure or other pollutants into waters of the U.S.   The court’s decision overturns portions of the Concentrated Animal Feeding Operations (CAFO) regulations that EPA promulgated in 2008. 

Under the 2008 regulations, EPA required any CAFO that “proposes to discharge” to apply for a NPDES permit.  A facility “proposed” to discharge if, in EPA’s estimation, it was designed, constructed, operated or maintained in such a way that it was likely to discharge at some indefinite point in the future.  A CAFO could only avoid applying for a permit by conclusively demonstrating that the facility would never discharge.  A facility that failed to apply for a NPDES permit and was later caught discharging pollutants would not only be subjected to penalty for the illegal discharge, but would also receive an additional punishment for failing to apply for a permit in the first place. Soon after the 2008 regulations went into effect, a coalition of agriculture interest groups that represent the poultry, pork, and dairy industries challenged the regulations in numerous courts across the country. 

These industry challenges were consolidated before the U.S. Court of Appeals for the Fifth Circuit, which ruled that EPA’s requirement that CAFO facilities “proposing to discharge” need a NPDES permit is in clear contravention to the plain language of the CWA, which states that only a “discharge of pollutants” triggers the requirements of the CWA and the oversight of EPA. The court also threw out EPA’s rules which applied extra liability to CAFOs that had never applied for a permit, finding that the CWA has a clear liability scheme that punishes only illegal discharges, not the refusal to apply for a permit.  

The Court reiterated, however, that the CWA does give EPA the authority to require a CAFO that is actually discharging pollutants into waters of the U.S. to have an NPDES permit.  It is important to note that while this court decision overturns portions of EPA’s 2008 CAFO regulations, it does not directly impact the legality of similar requirements that individual states have adopted.  For example, the West Virginia Code of State Rules § 47-10-13.1 currently requires that all CAFOs that “propose to discharge” apply for a NPDES permit.  Until this and similar state rules are amended or successfully challenged in court, they will continue to have legal effect.  

This article was authored by Aaron S. Heishman, Jackson Kelly PLLC. For more information on the author see here.

EPA Delays Change to “Fill” Rule

According to the news accounts, EPA has delayed or abandoned a change to the definition of “fill material” which would have further eroded the ability of the Corps of Engineers to issue permits under §404 of the Clean Water Act (“CWA”).  This is good news for the coal industry, which needs §404 permits for: excess spoil and refuse fills; pond construction; and surface mines which mine through streams.  

The CWA delegates the permitting authority for the discharge of “fill material” to the Corps’ §404 program.  NPDES permits, issued under CWA §402 for the discharge of non-fill pollutants, are administered by EPA and the States.  Unfortunately, the CWA does not define “fill material,” leaving the Corps and EPA free to issue their own regulatory definitions.  That failure of the CWA has long led to confusion and mischief between the two agencies. 

For many years, EPA and the Corps maintained inconsistent regulatory definitions of “fill material”—each trying to foist primary responsibility on the other for dealing with solid waste landfills.  EPA, seeking to narrow the scope of its §402 NPDES program and broaden the scope of the Corps’ responsibility, long defined fill material as that which displaces a waterbody or raises its bottom elevation regardless of the discharger’s purpose: fill was that which “fills.”  This was known as the “effects” test.  The Corps, seeking to narrow the scope of its program, defined fill in terms of the discharger’s intent: fill was that which was placed in a water for the “primary purpose” of creating dry land.  33 C.F.R. §323.2(e) (1977).  If the primary purpose was waste disposal, then material was not fill.  This was known as the “primary purpose” test.  

These definitions posed challenges to the mining industry, which must build excess spoil valley fills and refuse fills/impoundments to operate in the steep terrain of Central Appalachia.  The fills themselves were not constructed to create dry land and were, therefore, arguably outside the scope of the Corps’ regulatory program. 

In 2001, environmental groups sued the Corps seeking a declaration that the Corps lacked authority to approve §404 permits for excess spoil valley fills.  Simultaneously, the Corps and EPA acted to adopt a uniform definition of “fill material.”  In 2003, they both adopted a version of the “effects” test.  See 33 C.F.R. §323.2(e).  Notwithstanding that, a district court in West Virginia ruled that the CWA itself prohibited “waste” fills and thereby enjoined the Corps from approving permits for excess spoil fills.  Kentuckians for the Commonwealth v. Rivenburgh, 204 F. Supp. 2d 927 (S.D. W.Va. 2002).  The decision, however, was quickly overturned by an appeals court.  Kentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425 (4^th Cir. 2003). 

Ironically, even though EPA has long maintained the “effects” test under its rules, it has been the Obama EPA which has suggested that the Corps and EPA together re-visit the “fill” rule with the presumed goal of abandoning the “effects” test.  This rumored effort has been widely viewed by the coal industry as just another part of EPA’s unrelenting war on the coal industry in Central Appalachia that EPA may now be hesitating is a good thing. 

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