Senator Joseph Lieberman
Thursday, June 6, 2002
Good morning, and welcome to this hearing of the Environmental and Public Works Committee’s Subcommittee on Clean Air, Climate Change and Wetlands. We’re here today to talk about a matter of critical importance to the health of America’s rivers and streams, the changing the definition of fill material under the Clean Water Act.
Streams and rivers provide drinking water for people and habitats for many aquatic species. They also provide a means of transporting water during heavy storms. Waterways are our planet’s circulatory system, and we should no sooner allow them to be disrupted than we would accept blockages in our own veins or arteries.
In 1972 Congress passed the Clean Water Act, one of the landmark pieces of environmental protections in our nation’s history. Under the Act, and under the careful oversight of government ever since, our lakes, rivers and streams have been cleaned and safeguarded for us and for future generations.
Under the Act, the federal government has allowed industry to put some materials in our rivers and streams. The idea is that limited deposits of certain materials in particular places do not harm our water supply. Sometimes, the deposits serve a useful and constructive purpose—such as providing the foundation for a building or a bridge. When that’s the case, what’s dumped is not called waste—it’s called “fill.” Ever since the passage of the Clean Water Act, the Army Corps of Engineers has given industry permits for such deposits on a case-by-case basis.
But we’ve learned that the Army Corps has been issuing permits to companies which allow them to dump vast quantities of blasted rubble—literally, tons and tons of rock, dirt, and toxic materials—right into our rivers and streams. And the environmental consequences of this shortsighted policy have been severe: water has been polluted, aquatic life has been terminated, and ecosystems have been irreparably changed.
Mountaintop removal is the most prominent historical and current activity associated with the fill issue under the Clean Water Act. It is an important industry on which many American communities depend.
But 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. 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. It is looking for ways to allow it to continue indefinitely and expand it in the future. Just last month, when EPW Committee Chairman Jeffords and I learned that Bush Administration was on the verge of finalizing rule changes that do just that, we sent a letter to the President urging him to reconsider. We asked for the opportunity to work with the Administration and others to fully assess the environmental and other effects of the changes first.
Two days later, despite the concern we and many others had expressed, the Administration changed the rule anyway. I believe that the new rule violates the Clean Water Act. And just days after the rule was issued, a federal district court agreed with that belief —stating that the Clean Water Act does not allow filling the waters of the United States solely for waste disposal, and that agency policy that holds otherwise is beyond the power conferred by the Clean Water Act.
What’s doubly disturbing is that the new EPA/Corps rule not only puts a seal of approval on the dumping of mountaintop removal waste in our waters, but effectively invites many new kinds of waste to be put in our rivers and streams. The rule redefines “fill material” so broadly as to include mining overburden, woodchips, and even construction debris. And it no longer requires those seeking permits to demonstrate that the dumping would serve any useful purpose.
If the EPA wants to change the Clean Water Act to allow this dumping, not to mention new dumping, it should seek to change the law, but not through administrative fiat. As long as the Clean Water Act is the law of the land, this practice cannot be permitted—and must literally not be permitted by the Army Corps of Engineers.
We will hear this morning testimony on the relevance of the fill definition to the health of the environment and local economies, how this problem has been addressed in the State of West Virginia, and impacts mountaintop removal waste has had on the waters in Appalachia.
Before starting the hearing I must address an issue that has caused some controversy regarding the hearing. I am sorry to report that my good friend Senator Voinovich is not here today to hear testimony on this important topic. There was a misunderstanding between our staffs over witnesses, specifically our calling Mr. Kevin Richardson to testify, that led him to boycott this hearing and invoke a Senate rule that requires this hearing to end two hours after the Senate opens for business. Forgive the pun but Senator Voinovich and I were not “N’Sync” with about having a Back Street Boy testify today. I am sorry about this, especially because I know so many of you have travelled so far to be here today.
Mr. Richardson, I am sorry that you have been subjected to criticism about your coming here to testify. I know that you were born in Kentucky and raised on the edge of the Daniel Boone National Forest, and still own a farm there. You have family and friends throughout the Appalachian region. I understand that you are the founder and president of the Just Within Reach Foundation. Your foundation promotes personal responsibility and promotes environmental education, including the granting of scholarships. Finally, you have been involved in the issue before us today, and have flown over the coal fields in Kentucky, West Virginia, and Tennessee, so you have seen first hand the consequences of the granting of fill permits to allow the disposal of waste from mountaintop removal.
Mr. Richardson is here as more than a well-known celebrity. He is knowledgeable on this issue and has in fact worked to protect the environment in his home state. I believe his voice will add to our understanding of the issue.