Rep. Nick Rahall, D-W.Va., said Tuesday that he agreed with much of a new federal court ruling that could limit mountaintop removal coal mining.But Rahall also said that an appeal of the decision is needed. He said that parts of last week’s decision need to be clarified.Rahall is the first elected official to offer a detailed response to the May 8 ruling by Chief U.S. District Judge Charles H. Haden II.So far, Sen. Robert C. Byrd, D-W.Va., has declined to comment on the ruling. In 1999, Byrd led an effort by the state’s congressional delegation to pass legislation to overturn a similar ruling by Haden.
Gov. Bob Wise’s administration has also said little about the details of the ruling.In a prepared statement, Rahall criticized the response so far by the coal industry and the Bush administration.“There has been a good deal of hyperbole reflected in the statements by federal officials and certain industry leaders,” Rahall said. “In contrast, I want to commend the administration of Gov. Wise for taking a more calm and deliberative approach for that is what is needed here.“In this continuing tug of war over mountaintop removal mining, the people who are getting whip-sawed are the workers, the coal miners, and they do not deserve that,” Rahall said. “They need a responsible government, not heated rhetoric.”In his new, 47-page ruling, Haden said that coal mining valley fills are generally not allowed under the federal Clean Water Act.
Haden said Section 404 of the law allows such fills only if they are being proposed to serve a constructive purpose other than disposal of waste rock and dirt.Under the law, Haden concluded, the Corps of Engineers can only authorize valley fills if they are proposed as part of a post-mining land development plan.Currently, Rahall is the ranking Democrat on the House Resources Committee, which oversees the federal Office of Surface Mining. In 1977, Rahall served on the House-Senate Conference Committee that wrote the final version of the federal Surface Mining Control and Reclamation Act.Rahall represents the state’s 3rd Congressional District, which includes the coalfield counties where most mountaintop removal operations are located.In his statement, Rahall said, “The fact of the matter is that unless somebody waves a magic wand and the country goes solar, there will continue to be a demand for Southern West Virginia coal.
“I believe we will meet that demand, but in order to do so in as efficient [a] manner as possible, we must continue to make improvements in the surface coal mining regulatory program,” he said.
“For instance, a lot of controversy can be avoided through the minimization of excess spoil from mining operations,” he said. “This would result in less reliance on valley fills and where disposal of excess spoil is necessary, produce smaller fills. The technology is there, the engineering expertise is available, all that is required is the will and fortitude to implement these improvements.”Concerning Haden’s decision, Rahall said, “the question once again being raised is whether valley fills associated with mountaintop removal coal mining operations are legally permitted under federal law.“I maintain they are if there is compliance with the Surface Mining Control and Reclamation Act of 1977,” Rahall said. “The act says, quite clearly, that an operator does not have to reclaim the disturbed land to its approximate original contour — which is often necessary for a mountaintop removal operation — if the post-mining land use plan provides for some type of economic development of the reclaimed area, be it an industrial, commercial, agricultural, residential or other public use facility.“These are the very circumstances the court found to be legally permitted under the Clean Water Act,” Rahall said. “Certainly, we have the need for flat land in Southern West Virginia that can be put to productive uses, to enhance our economy, and to provide for new employment opportunities.“This should be a win-win scenario,” Rahall said. “And it can be accomplished by paying closer attention to what is being proposed in post-mining land use plans.”But Rahall continued, “Unfortunately, the court’s ruling left unanswered more questions than it sought to resolve.
“The preponderance of the opinion dealt specifically with the interrelationship between the statutory and regulatory authorities governing valley fills associated with mountaintop removal operations. That is only one element of the mining equation.“For instance, the ruling may conflict with provisions of law including SMCRA and the federal Coal Mine Health and Safety Act as they relate to the disposal of excess material from underground coal mines or for that matter, excess spoil material from standard contour mines,” he said. “And, there is a bona fide concern that the ruling may have ramifications far beyond mining, with the potential to impact highway construction and other public works activities.”Rahall said that he also believes “the federal government should have been given more deference” in writing new rules to legalize mining waste as “fill material” allowed to be dumped into streams.“Indeed, apparently, the court was not even briefed on this issue by the parties involved,” Rahall said.“For these reasons, I believe an appeal of this decision will flesh these issues out, provide clarification and give the public better guidance on what is and what is not permissible under the statutes in question.”To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.