GOP omnibus rider keeps administration from tightening mining rule

A GOP rider in the $1 trillion omnibus racing to President Obama’s desk would prevent the administration from tightening rules on what mining companies can dump in streams.

The language would keep the U.S. Army Corps of Engineers from working on a new rule this year on “fill material” — the waste left over from mining operations like mountain top removal.

House Appropriations Committee Chairman Hal Rogers (R-Ky.) inserted the language and said he acted to help the coal industry and prevent a backroom rule from being implemented.

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“The omnibus bill includes provisions to help protect and revive our struggling coal mining communities,” Rogers said in an email to The Hill. “It is my understanding that the EPA and the Corps have been crafting a rule behind closed doors to tighten the definition of ‘fill material’ in such a way as to essentially ban new mining projects under the Clean Water Act.

“Some Members of this House have even written letters urging the Agency to issue that rule. As a result, this bill prohibits such rule-making, to protect the hundreds of thousands of mining jobs and more than a million other jobs in related industries that would be threatened by additional regulatory attacks."

Democrats on the Appropriations panel say the language won’t actually prevent the Environmental Protection Agency from writing a new rule since the EPA isn’t named in the language.

“Nothing in the omnibus prevents the Environmental Protections Agency from working on a rule to change the definition of fill material should it choose to do so,” said Matt Dennis, a spokesman for Democrats on the House Appropriations panel.

But green groups have cried foul, arguing the language makes it politically untenable for the EPA to redefine what is considered fill material.

“I don't see a scenario where EPA would get out in front of [the rider],” said Jan Goldman-Carter, senior manager of wetlands and water resources at the National Wildlife Federation.

She said the Army Corps and EPA work in conjunction on the issues.

“We won't get to a place where one would act out of line with the other,” she said.

Goldman-Carter also noted that initial appropriations language from Rogers sought to include the EPA specifically in the fill material language. She said she expected Rogers would push to include the EPA again in language in next year’s appropriations bill.

The rider on fill material is one of several that made it into the final bill.

While the Obama administration has downplayed their importance, environmental groups have argued they represent a huge victory for business and mining interests.

They also have sought to tie the issue to West Virginia, where roughly 300,000 residents were without clean water for five days last week because of a chemical leak from a storage facility.

The fill material rider locks in a Bush administration “loophole,” allowing the coal industry to keep dumping industrial waste in rivers and streams, said Dalal Aboulhosn, of the Sierra Club.

The National Mining Association says that's not the case. The rider simply makes sure that existing law will carry on.

The rider “says the agency can’t spend money to change the definition that was originally written by EPA,” a spokesman for the organization said.

The NMA has also pushed back strongly at any linkage between the West Virginia leak and the riders.

“Despite the implication of some, the fill rider as applied to mining has nothing whatsoever to do with a chemical spill like the one occurring in West Virginia, and any suggestion to the contrary is very misleading,” the spokesman said.

The leak in Elk River, West Va. came from a storage facility held by Freedom Industries, a full-service provider of chemicals for the mining industry. The rider on fill would not affect the facility.

But environmental groups say it’s valid to bring the two issues up together.

“Regardless, that chemical spill highlighted the huge extent of the water pollution and public health crisis in this country with ties back to the coal industry, and also highlights the need for more oversight of these chemical storage areas,” Goldman-Carter said.

The fight over the fill rule goes back to 2002, when the EPA and Army Corps of Engineers under President George W. Bush’s administration changed the definition under the Clean Water Act, so it could include mining waste material.

The administration has been looking at tightening a number of rules from the Bush era in Obama’s second term, including rules meant to protect streams from such waste.

Other GOP riders included in the bill weaken the EPA’s ability to regulate permits for coal companies by giving it less time for reviews and cut its power to enforce chemical pollution standards by limiting the agency’s access to evidence of violations.

Another rider cuts back the EPA’s funding and abilities to conduct aerial monitoring of mining related facilities, like chemical treatment plants, under the 402 section of the Clean Water Act, which covers chemical pollution.

The National Wildlife Federation argues that the current definition of fill material allows industry to get a 404 fill permit instead of a 402 chemical pollutant discharge permit under the Clean Water Act.

They say the 404 permits give companies more flexibility, while the 402 permits require the company to keep in line with specific chemical limits or state water quality standards.

The NMA counters that whether it’s a 404 or 402 permit, they are not handed out haphazardly.

"If what you are discharging is rock and dirt that may ‘fill a water body, or raise the bottom of one, you must go through the lengthy 404 permit process,” the mining association said.

With the omnibus now passed by the House and Senate, none of the language will be changed.

The White House suggested it largely won the battle over environmental riders.

“All of the many ideological riders House Republicans attempted to include that would have gutted the President’s Climate Action Plan were eliminated from the bill,” said Matt Lehrich, a spokesman for the White House.

“While some limited environmental riders were included, our ability to continue to move our environment and climate agenda forward is very much intact.”

West Virginia Sen. Jay Rockefeller (D-W.Va.), who is retiring at the end of this Congress, seemed resigned to the GOP riders becoming law

“Everything is more or less intertwined with coal; that is one of our problems,” he said of his state. “We are a one-industry state, and that grinds a bit and hurts a lot in instances like this.”

This story was updated with new and corrected information at 7:25 p.m. It was originally posted at 6 a.m.