In an April 17 response to a Gazette Freedom of Information Act request, EPA environmental engineer Dan Sweeney wrote that, the state anti-degradation policy says "that at a minimum all waters of the State are to be designated for the propogation and maintenance of fish and other aquatic life.
"Since valley fills cover stream beds and smother any aquatic life present in the stream beds, such filling would be an apparent violation of the anti-degradation policy."
Greene questioned how EPA can conclude the fills violate the law, but then permit them if companies show they can't mine the coal any other way.
"How do you overcome that by doing alternate site studies and benthic studies?" Greene said. "Either it's right from the beginning or it needs to be changed is our position."
Libby Chatfield, technical adviser to the board, said lawsuits threatened by environmental groups over mountaintop removal mining could settle the issues Greene raised.
The West Virginia Highlands Conservancy and a group of coalfield residents have filed several formal notices of intent to sue state and federal regulators. They allege valley fills are not legal under the Clean Water Act.
During Wednesday's board meeting, lawyers for other industries also asked that the anti-degradation policy's implementation plan be delayed.
David Yaussy, a lawyer for the West Virginia Manufacturers Association, said the plan did not clearly state what agencies are to implement the plan.
"There's still a real problem with trying to see who is going to be carrying this out," Yaussy said.
Chatfield said that problem can be cleared up during a public comment period.
Shane Harvey, a lawyer from the industry firm Jackson & Kelly, said there was no reason for the state to rush into the implementation plan.
"I'm unsure if all this isn't premature," Harvey said. "Do we have to do this at all?"