If the Corps can't permit valley fills, the fills must comply with state water quality standards. One of those standards prohibits activities which degrade existing uses of streams. DEP has routinely permitted valley fills, even though they bury streams and destroy their existing uses, the lawsuit alleges.
Valley fills violate federal rules that prohibit strip mining within 100 feet of a stream. This "buffer zone" requirement may only be waived after regulators make a series of specific findings that allowing the mining will not violate state or federal water pollution limits.
Since 1990, the lawsuit alleges, the DEP "has granted buffer zone variances for dozens of surface coal mining operations without making the required findings."
Mountaintop removal mines are being illegally authorized by permits that neither require mine operators to reclaim mined land to its approximate original contour, nor include a post-mining land use development plan required by federal law.
Bill Raney, president of the West Virginia Coal Association, said, "It will be interesting to see the evidence they present. I don't think there's much evidence to support those allegations."
Among other things, the lawsuit cites a March study by Dan Ramsey, a U.S. Fish and Wildlife Service biologist, which found that "469.3 miles of streams have been lost in just five West Virginia watersheds as a result of surface mining valley fills."
The suit also outlined a study by the plaintiff lawyers of 48 large mountaintop removal jobs permitted since 1991. It said those mines were not properly permitted.
Those mines, each covering more than 225 acres, proposed to strip a total of 40,000 acres, or about 63 square miles. According to the lawsuit, the permits proposed more than 200 valley fills that would contain 2 billion cubic yards, or about 3.5 billion tons of rock and dirt.
Russ Hunter, a lawyer for the state DEP Office of Mining and Reclamation, said he had hoped the agency would be able to resolve citizen complaints about mountaintop removal without going to court.
"I liken the regulatory environment to a moving picture. There are times when things need to be adjusted," Hunter said.
"I think that there are corrections that occur to all regulatory processes based on the technological development of the regulated activity," he said.
"As far as anything being patently amiss, we think that the agency can defend its actions," he said. "But if there are improvements to be made, we're willing to do that."