On Wednesday, U.S. District Court Judge Charles Chamber rendered a decision regarding the legality of relying on the “waste treatment exclusion” for the construction of in-stream sediment ponds. The waste treatment exclusion refers to a long-standing regulatory interpretation by the U.S. Army Corps of Engineers and the federal Environmental Protection Agency where both agencies have treated sediment ponds and any area of stream between the toe of a valley fill and the inlet of a sediment pond as part of a water compliance or waste treatment system. The plaintiffs in the case have argued that the agencies application of this exclusion was in error, and that any stream segment between the toe of the fill and the inlet to the sediment pond remained “waters of the United States” for purposes of the Clean Water Act and that any discharge from the toe of a fill should be subject to Section 402 NPDES effluent limitations even before it enters the sediment pond. Judge Chambers sided with the plaintiffs in the case, disregarding 30 years of regulatory application by state and federal agencies, the most recent enunciation of which was published jointly by the Corps and EPA in March of 2006.
The challenge to the water compliance exclusion was part of a larger case challenging the Corps’ issuance of four Section 404 Individual Permits to subsidiaries of Massey Energy Company. Judge Chambers issued an adverse ruling on the four permits in March 2007. Motions to add several other Individual permits to the litigation are still under consideration by the Court. The Corps, the Massey subsidiaries and the Coal Association have already appealed the March 2007 decision to the Fourth Circuit Court of Appeals in Richmond, and we anticipate similar filings on this most recent decision. The Association is discussing the ramifications of the decision with counsel and the agencies involved, and we hope to have better guidance next week. For a copy of the decision, please contact jbostic@wvcoal.com