EPA loses enthusiasm for swift rollback of Bush 'fill rule'

After vowing last year to revisit a controversial George W. Bush-era policy that made it easier for mining companies to dump debris into waterways, U.S. EPA may be having second thoughts.

The fate of the "fill rule" will largely hinge on the public's reception of another upcoming Clean Water Act regulatory move, the Obama administration's soon-to-be-released reinterpretation of Bush's guidance for federal wetland regulators, according to a senior administration official.

"There is some waiting to see how this guidance goes before we start throwing out new rules or proposed rules on the Clean Water Act," said the official, who was granted anonymity in exchange for speaking candidly on the behind-the-scenes deliberations.

Due for release any day, the Obama White House's wetlands guidance aims to clarify a confusing 2006 Supreme Court ruling in a major Clean Water Act case, Rapanos v. United States, by revamping the Bush administration's take on that decision (Greenwire, Feb. 17; Greenwire, Feb. 7). The guidance is anticipated to place more waterways and wetlands under federal protection than currently are under the more narrow Bush administration policy.

But with President Obama vowing to reduce unnecessary federal regulations and the Republican-led House in an anti-regulatory mood, the administration has increasingly downplayed its still-unofficial efforts to draft a rule to replace Bush's 2002 fill rule (Greenwire, Jan. 18).


That was not the case early last year. In a January 2010 interview with Rolling Stone magazine, EPA Administrator Lisa Jackson said the agency was considering a revision of the fill rule and that her staff was "working on it now." The intention, she said, was to clean up gold mining operations in Alaska, adding that the rule would also "curtail" mountaintop-removal coal mining in Appalachian states. Mountaintop removal is a controversial mining technique that involves the dynamiting of mountaintops to expose coal seams and the dumping of debris into adjacent valleys.

In a statement issued days after the magazine story to West Virginia's Charleston Gazette, EPA said work on the rule was under way, with a goal "to improve the Clean Water Act review of mining related discharges." EPA said it was "eager to move ahead quickly" with that effort and other Clean Water Act improvements.

But EPA backed off yesterday, issuing this statement: "We don't have plans to move forward at this time with guidance or rulemaking on the definition of fill material."

Top priority for enviro groups

At issue is whether the administration will bar the mining industry's disposal of debris as "fill material" in waterways using dredge-and-fill permits issued by the Army Corps of Engineers under Section 404 of the Clean Water Act.

Critics of the Bush fill rule -- which specifically added "overburden, slurry, or tailings or similar mining-related materials" to the definition of fill -- want mining spoils reclassified as waste, whose disposal would be overseen by U.S. EPA.

Killing the Bush rule topped the list of priorities that environmental groups submitted to the Obama administration transition team in 2008, said Joan Mulhern, senior legislative counsel for Earthjustice.

"We've been talking with them about this ever since," said Mulhern. "If the Obama administration and [EPA] administrator [Lisa] Jackson want to take actions to address these waste dump issues, they need to dig in and start now," Mulhern said in an interview. "We'll do what we can to try to support their actions. Taking a wait-and-see attitude is going to run out the clock."

There have been efforts on Capitol Hill to reverse the Bush fill rule, but they have failed to advance (E&ENews PM, March 4, 2009).

Carol Raulston, spokeswoman for the National Mining Association, said revisiting the rule now would kill jobs.

"This is unfortunate because after many years of litigation, this issue was finally resolved, and now it's thrown up in the air again," said Raulston. "In the end, you have a lot of impact on employment and the ability of mines to operate."

Outrage over the 2002 Bush-era definition of fill peaked in June 2009, when the Supreme Court -- citing ambiguity in the Clean Water Act -- upheld the right of gold miners at the Kensington Mine in Alaska to dump mine tailings -- wastes from the metals-extraction process -- into the Lower Salt Lake under a dredge-and-fill permit issued by the Army Corps.

In the wake of that ruling, EPA said it was "reviewing" the decision "and its potential implications regarding EPA's authority to ensure effective environmental protection under the Clean Water Act" (E&ENews PM, June 22, 2009).

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