Senate Democrats vowed on Thursday to introduce legislation that would affirm a federal court ruling to limit mountaintop removal coal mining.Sen. Joe Lieberman, D-Conn., said his bill would also overturn a Bush administration rule that sought to legalize mountaintop removal valley fills.“I believe that the new rule violates the Clean Water Act,” said Lieberman, chairman of a Senate subcommittee that oversees water pollution regulation.In early May, the US Environmental Protection Agency and the Corps of Engineers finalized changes to the definition of “fill material” that the corps can legally authorize to be dumped into streams.
Under the change, the agencies would specifically redefine mountaintop removal waste as “fill material” that the corps can permit to be dumped.In his opening statement at the hearing, Lieberman noted that federal Judge Charles H. Haden II of the Southern District of West Virginia ruled May 8 that EPA and the corps don’t have authority to redefine mining waste as fill.“If this type of mining must continue, the waste created by this practice and others must be disposed of in compliance with the Clean Water Act,” Lieberman said. “That’s the law — and for years, it’s shameful that our own government wasn’t following it.“Unfortunately, the Bush administration isn’t looking for ways to stop the dumping,” he said. “It is looking for ways to allow it to continue indefinitely and expand it into the future.”In their final rule, EPA and the corps said that certain types of garbage — such as porcelain bathroom fixtures — would be dumped into streams. If cleaned first, the agencies said, those fixtures would not be trash, and could be used to create artificial reefs.Lieberman’s Air Quality, Wetlands and Climate Change Subcommittee held a hearing Thursday morning to investigate the rule change.Sen. Jon Corzine, D-N.J. and a subcommittee member, said, “I have serious troubles at a common sense level with these overdrawn legal definitions blocking what I think is the clear purpose of the Clean Water Act.
“I am troubled, and I think the American people would be troubled, about the use of these definitions to justify this type of activity,” Corzine said.Thursday’s hearing was shortened, and included few questions from senators, because of a procedural move by GOP Sen. George Voinovich of Ohio.Voinovich, the subcommittee’s ranking Republican, boycotted the meeting after Lieberman scheduled pop star and Kentucky native Kevin Richardson of the group Backstreet Boys to testify.Voinovich invoked a Senate rule that forced the hearing to end at 11:30 a.m., two hours after the Senate floor session began. Other GOP subcommittee members joined Voinovich in not attending the hearing.
In his testimony, Richardson said, “The bottom line is that we have an industry that has thrived, not from honest business practices in a free market, but from passing its real costs to the people of Appalachia.”Sen. Hillary Rodham Clinton, D-N.Y., presided over part of the hearing. She promised to take Richardson up on an offer to fly over the coalfields to view mountaintop removal damage from the air.
During the hearing, Benjamin Grumbles, deputy assistant EPA administrator for water, tried to convince lawmakers that the rule change wasn’t aimed at helping the mining industry.“We’re not here to defend mountaintop mining,” Grumbles said. “Our purpose was to clarify, to resolve the different definitions.”But Grumbles acknowledged that Haden’s ruling would make things more difficult for companies involved in mountaintop removal.“That would result in an upfront, outright, categorical ban on that type of mining,” he said.
Joan Mulhern, a lawyer and lobbyist with the group Earthjustice, said that EPA’s own studies show that mining can continue with much more strict limits on valley fills.“Coal mining wastes should not be dumped into streams, and it does not have to be dumped into streams,” Mulhern said.Michael Callaghan, secretary of the West Virginia Department of Environmental Protection, argued that the administration of Gov. Bob Wise has stepped up strip mine enforcement.“There’s a new sheriff in town,” Callaghan said.“Please know that I am fully committed to the enforcement of the existing laws and regulations to demonstrate steady progress in improving oversight of the coal industry in West Virginia,” Callaghan said. “While the industry is welcome to mine coal in the Mountain State, we intend to do our job as regulators and enforce the law.”Callaghan said, “Over the past several years, we have seen a decline in mining-related employment, as increasingly large-scale technology and automation facilitate the mining or larger tracts of land with fewer people.“We anticipate that this trend will increase over the next 15 years as the most accessible reserves of coal are mined out and additional automation becomes available to the mining industry,” Callaghan said.“Market factors such as western coal competition, depletion of reserves, economies of scale and industry mergers will likely lead to a decline of employment in the mining industry in Appalachia,” he said. “This will leave this region, especially West Virginia, with an economic void.”In his ruling, Haden said that valley fills are allowed only if they are proposed as part of post-mining land development plans.Callaghan said that this rarely happens.“Unfortunately, former mining sites historically have been underutilized as economic development tools,” Callaghan said. “Of the several hundred surface mining sites with valley fills, less than two dozen have been used for economic or community development.”To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.