In recent court filings, DEP lawyers Ben Bailey and Brian Glasser noted the two OSM permit review reports released in April concluded that, "the footprint of valley fill areas is excluded from the stream buffer zone requirements."
In the environmentalists' suit against OSM, lawyer Jim Hecker argued that this conclusion amounts to a new federal rule that requires public comment and hearings.
"The ... rule amendment is arbitrary, capricious, or otherwise inconsistent with law because the Secretary promulgated it in violation of applicable procedural requirements ... and because the rule amendment deprives the residents of America's coalfields of the full protection of the hydrologic balance, fish, wildlife and related values," Hecker wrote in the suit.
On Friday, OSM responded to a Charleston Gazette Freedom of Information Act request for information about the buffer zone-valley fill policy.
In a letter, Charleston OSM director Roger Calhoun said, "The Office of Surface Mining [OSM] has not formulated an agency determination of how the buffer zone requirements apply to streams that are filled with excess spoil during a mining operation."
Calhoun said OSM has promised DEP to provide such a determination by July 2.
"Since this issue will be decided by OSM in the near future and the Charleston Field Office [CHFO] was under time constraints to conduct its review, the CHFO Director orally instructed the reviewers of the Vandalia and Road Fork permits to focus on other hydrologic issues and to assume the position that you quoted," Calhoun wrote.
"Accordingly, the statement that you referenced only applied to the technical review of the Vandalia Resources Inc. permit [No. S-2007-98] and the Road Fork Development Company Inc. permit application [No. S-5017-98], which were completed April 5 and 9, 1999, respectively."
To contact staff writer Ken Ward Jr., call 348-1702.