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Confluence: June 2002, Vol. 4, No. 4
Interesting Individuals

Bill Hoffman - Director,
Office of Environmental Programs for the US EPA
Bill Hoffman has been the EPA's contact for mountaintop removal issues for the past three years. The office is responsible for NEPA activities such as preparing and reviewing environmental impact statements for EPA projects and reviewing dredge and fill permits under Section 404 of the Clean Water Act. Mr. Hoffman has been with the EPA for over 25 years and holds a master's degree in public administration. Confluence asked him several questions regarding mountaintop mining earlier this month.

CONFLUENCE: What, specifically, is at issue regarding the dispute over mountaintop removal and the Clean Water Act?

HOFFMAN: The EPA has long considered the disposal of waste material from mountaintop removal mining an activity that creates dry land, which would mean that the activity should be regulated under Section 404 (the Dredge and Fill rule) of the Clean Water Act. The Army Corps of Engineers, however, contends that the primary purpose of the activity is to dispose of waste materials. Using this definition, the activity would be regulated under Section 402 of the Clean Water Act. Under Section 402, dredge and fill activities could never be permitted because it would exceed the allowable level of disposed solid waste materials, while under Section 404, the same activity would be reviewed and its permissibility decided upon based on its effects on aquatic resources.

CONFLUENCE: What is the EPA's position on regulating valley fills? What effect would the rule change have on the permitting system for such operations?

HOFFMAN: Prior to the rule change, the Army Corps of Engineers (COE) was determining that if the material was waste, Section 402 of the Clean Water Act (CWA) governed it. EPA's position was that if the action had the effect of raising the bottom elevation of the waterway and had the effect of creating dry land, it was governed under Section 404. The new definition is closer to the EPA interpretation.

CONFLUENCE: Why is mountaintop removal such a necessary activity for mining corporations? Why are they so in favor of the proposed rule change?

HOFFMAN: Because of the topography of areas in West Virginia and Kentucky, where this is practiced, narrow coal seams cannot be one hundred percent recovered with contour mining. To reach the base seam, the top layers of the mountain - what is referred to as "overburden material" - must be removed. The effect of this is that all the soil and rock materials from the mountain are broken up into smaller pieces, which means the volume of the material increases, often by as much as twenty-five percent. When the mountain is reconstructed, there is simply not enough room to include this excess material in the reconstruction, and so it must be disposed of in some way. The only place to dispose of the material is in the valleys between mountains. In these areas of West Virginia and Kentucky, the valleys are much more narrow, and so the likelihood of the waste filling streams is much greater than in areas with wide valleys over which the materials can be spread. The mountaintop removal method is put to use in this region because it is simply the only way to get to the highly prized low-sulfur coal found specifically in these areas. The economic advantages of continuing with this method are too high for mining companies to just give in to the concerns of those opposed to the rule change.

CONFLUENCE: What sort of precedent would broadening the definition of "fill" materials set for future permit reviews?

HOFFMAN: The EPA has considered Section 402 to govern effluent waste material (waste material coming from a pipe) into an aquatic resource, while Section 404 governs the conversion of an aquatic resource into dry land. The clarification of the definition, in which Section 404 permits would be implemented solely for the creation of dry land out of the dredge-and-fill waste materials, does not necessarily mean that the EPA would be permitting the discharge of waste material as that material is defined by the EPA. The Section 404 permitting system was put into place to regulate the discharge of materials that have the effect of creating dry land, and this permit system, if it is implemented properly and takes into consideration the effects of the discharge, would consider any adverse effects on the aquatic ecosystem and would not issue permits if those effects exist. The EPA would still review the effects of the discharge in the same way, so if the effect of the discharge is adverse from an ecosystem standpoint, there are procedures in place for the permit not to be issued.

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