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Great Lakes
Article:
Bush
Administration Told By Congress and Court: Changing
Environmental Rules to Allow Waste Dumps in Waters Violates
the Clean Water Act
Ken Goldman
Earthjustice Newsroom
05/08/2002
Washington, DC-- The Bush
administration’s efforts to allow coal mining companies
and other industries to dispose of their wastes in waters
was dealt a double blow today as both Congress and a federal
court came out in opposition to the administration’s recent
changes to Clean Water Act regulations.
"Today, both the legislative and judicial branches
of government came out in opposition to what the executive
branch did to the Clean Water Act on May 3," said
Joan Mulhern, senior legislative counsel for Earthjustice.
"This should send a strong message to the Bush administration
and the public that the administration’s attempt to undermine
the Clean Water Act is not only wrong, it is illegal."
Members of Congress today announced a proposal to overturn
the Bush administration’s recent assault on laws that
protect the nation’s waters - specifically, the adoption
last Friday by EPA and the US Army Corps of Engineers
of a new rule to allow the Corps to permit wastes to fill
and destroy streams, rivers, wetlands and other waterways.
Representatives Chris Shays (R-CT), Frank Pallone, Jr.
(D-NJ), and a bipartisan group of House members announced
at a Capitol Hill press conference that they will introduce
legislation to counteract this destructive rule change.
Earthjustice supports the legislation and expressed its
appreciation for the Representatives’ efforts to protect
water quality.
Also today, the federal district court for the southern
district of West Virginia ruled against the Bush administration
in a citizen suit challenge to the Corps’ permitting of
valley fills associated with mountaintop removal coal
mining. That ruling stated: "The Court holds that § 404
of the Clean Water Act does not allow filling the waters
of the United States soley for waste disposal. Agency
rulemaking or permit approval that holds otherwise is
ultra vires, beyond agency authority conferred by the
Clean Water Act. Only the United States Congress can rewrite
the Act to allow fills with no purpose or use but the
deposit of waste."
The lawsuit was brought by a Kentucky group, Kentuckians
for the Commonwealth, who were represented by Joe Lovett
of the Appalachian Center for the Economy and the Environment
and Jim Hecker of Trial
Lawyers for Public Justice.
"To approve disposal of waste other than dredged spoil,
in particular mountaintop removal overburden, in waters
of the United States under § 404 dredge and fill regulations
rewrites the Clean Water Act. Such rewriting exceeds the
authority of administrative agencies and requires an act
of Congress," the court’s ruling said.
"Nothing is more inconsistent with the Clean Water
Act than allowing the nation’s waterways to be filled
and destroyed by industrial wastes-yet that is precisely
what the Bush administration’s new regulation is intended
to permit," said Mulhern. "It seems the court
and Congress agree."
The legislation announced today would amend the Clean
Water Act by enacting to the law the key portion of a
regulation, first adopted in 1977, that prohibits the
Corps from permitting industries - including coal mining
companies - from filling waters with waste material. It
is this ‘waste exclusion’ that the EPA and Corps removed
from long-standing clean water regulations with the new
rule they adopted last Friday.
In March, a dozen senior House Republicans, led by Representative
Chris Shays (R-CT), wrote to President Bush, urging him
to reconsider "this ill-advised and dangerous rulemaking"
to allow waste disposal in waters.
They were joined on April 30 by fifty-seven Members of
the House of Representatives, led by Frank Pallone (D-NJ),
who sent a letter to EPA Administrator Whitman conveying
their "strong opposition" to the proposed rule.
"This rule change is a clear attempt to legalize
the destructive practice of mountaintop removal coal mining,
where coal companies literally blow the tops off of mountains
and dump the waste into nearby valleys and streams,"
stated the letter.
On May 1, Senators James Jeffords (I-VT) and Joseph Lieberman
(D-CT) sent a letter to President Bush asking him to stop
immediately his administration’s efforts to overturn this
important Clean Water Act rule. The letter from the Environment
and Public Works Committee Chair and the Wetlands Subcommittee
Chair, respectively, stated, "the proposed rule would
jeopardize the health of the nation's streams, wetlands,
lakes, rivers and other waters."
The link to Judge Hayden’s decision is available at:
http://www.wvsd.uscourts.gov/opinions/kftcvace.pdf
Copies of the Congressional letters are available by
contacting Earthjustice.
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