Coal companies can obtain a waiver of the buffer zone rule. To do so, they must show that mining within 100 feet of a stream doesn't degrade the stream.
In their July 1998 lawsuit, environmentalists allege DEP issues buffer zone waivers for valley fills without showing that the streams won't be degraded. They also allege that waivers for valley fills are impossible, because dumping millions of tons of rock and earth into streams obviously degrades them.
"If the buffer zone doesn't apply to the footprint of valley fills, I don't know where it does apply," said Cindy Rank, the conservancy's mining chairwoman.
Coal industry lawyers argue that this reading contradicts other parts of the law that describe how valley fills can be permitted in streams.
In a recent legal brief, industry lawyer Roger Wolfe also told Haden that if the buffer zone rules are applied to valley fills it "would end all coal mining in Southern West Virginia by eliminating virtually all valley fills."
Last week, DEP lawyer Ben Bailey filed a brief that noted the U.S. Office of Surface Mining plans to issue an opinion on the buffer zone/valley fill issue by July 2. In several recent reports, OSM has indicated it will probably rule that the buffer zone does not apply, Bailey claimed.
"Thus, when all is said and done, plaintiffs' attacks on the State's processes, designed to halt permitting and mining, have been or will be substantially negated," Bailey wrote.
But last week, OSM officials said that their agency applies the buffer zone rule to valley fills in Tennessee. In Tennessee, OSM, not the state, regulates surface mining.
George Miller, director of the OSM field office in Knoxville, Tenn., said that his agency requires coal operators to obtain waivers from the buffer zone rule if they want valley fill permits.
In their court filings, environmental lawyers argue that applying the buffer zone rule will outlaw valley fills in larger perennial and intermittent streams, not in smaller, ephemeral streams.
"Although it is true that many recent fills have grown so large that they often bury intermittent and perennial streams, bringing fills back to a reasonable size will not bring mining to a grinding halt," wrote lawyer Joe Lovett, who represents coalfield residents.
For example, an expert hired by the plaintiffs found 4 miles of ephemeral streams that could be used for valley fills at the Dal-Tex expansion site.