A recent ruling in federal district court casts doubt over a Bush administration plan that would allow dumping of dirt and rock waste from mountaintop mining into valley rivers and streams. In the May 8 decision (Kentuckians for the Commonwealth v. Corps of Engineers, S.D. W.Va., No. 2:01-0770, May 8, 2002), Judge Charles H. Haden blasted a new "final rule" by the Army Corps of Engineers and the Environmental Protection Agency (discussed in the last issue of the Watcher) to expand the Corps' definition of allowable "fill material," saying it addresses "political, economical, and environmental concerns to effect fundamental changes in the Clean Water Act (CWA) for the benefit of one industry" -- the mining industry. The rule, which was published in the Federal Register a day after Haden's decision, would allow the Corps to approve dumping from mining companies in river valleys -- virtually inevitable in mountaintop mining -- under Section 404 of the CWA. However, Haden found that Section 404 does not permit such dumping for the sole purpose of waste disposal. "'Fill material,' as regulated under Sec. 404, refers to material deposited for some beneficial primary purpose: for construction work, improvement and development in waters of the United States, not waste material discharged solely to dispose of waste," Haden wrote. "Accordingly, approval of waste disposal as fill material under Sec. 404 is … beyond the authority of either administrative agency, the Corps or the Environmental Protection Agency (EPA). To approve disposal of waste other than dredge and fill regulations rewrites the Clean Water Act." However, EPA spokesperson Joe Martyak told BNA (a Washington trade publication) that agency officials disagree with the decision and would seek a stay in the ruling pending an appeal; a lawyer for the plaintiffs, Kentuckians for the Commonwealth, countered that the court's decision "effectively invalidates the rule." Such changes suggested by the Corps' rule, fundamental to the CWA, "should be accomplished and considered in the sunlight of open Congressional debate and resolution, not within the murk of administrative after-the-fact ratification of questionable regulatory practices," Haden declared. Yet Congress does not seem likely to side with the Corps. In fact, Rep. Christopher Shays (R-CT) and Frank Pallone (D–NJ) recently announced legislation, The Clean Water Protection Act (H.R. 4683), which would reinstate the original definition of fill material. Although expressly prohibited, the Corps has still permitted the dumping of mining waste in streams and rivers over the years -- with devastating consequences. A 1998 study by the U.S. Fish and Wildlife Services, for instance, found that through July 1995, 345 miles of Kentucky streams already had been destroyed by such "valley fills," as noted by Kentuckians for the Commonwealth. OMB Watch had suggested that John Graham, administrator of OMB's Office of Information and Regulatory Affairs (OIRA), which acts as regulatory gatekeeper across agencies, reject the joint rule from the Corps and EPA. After all, Graham has said that he would stand up for regulation where it's needed, that contrary to his critics, including OMB Watch, he has no anti-regulatory bias. Nonetheless, OIRA granted approval to the dumping rule after a review of just one day. In comparison, it took OIRA an average of 45 days to approve EPA rules proposed in the first four months of this year.