"DEP has failed to demand compliance with two of the most important requirements of the Surface Mining Act: protection of 100-foot buffer zones around perennial and intermittent streams and restoration of valley fill areas to their approximate original contour," the motion stated.
Lovett's motion alleges that DEP cannot exempt valley fills from the buffer zone requirement because dumping millions of tons of rock and dirt into streams does not meet federal water quality standards. "Such an exemption violates both the clear language and intent of the regulation," Lovett's motion alleges.
The motion states that, "The enforcement of the buffer zone rule will not prevent valley fills or mountaintop removal mining, although it will reduce the size of the larger fills currently being approved."
According to the motion, enforcement of the buffer zone rule would still allow fills to be permitted in the upper reaches of streams, called ephemeral streams. A report filed by one of Lovett's scientific experts, Charles Norris, states that there are many miles of such streams that could be used for valley fills.
Also in his motion, Lovett argues that DEP has misinterpreted the law to exempt valley fills from the AOC reclamation requirement.
Other parties to the lawsuit have until Friday to respond to Lovett's summary judgment motion.