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.

The West Virginia Highlands Conservancy and other citizens argue that OSM is trying to derail their separate federal court lawsuit to curb mountaintop removal.

Lawyers for the Conservancy and seven individuals sued Interior Secretary Bruce Babbitt, who oversees OSM, in U.S. District Court for the District of Columbia.

The suit, filed June 4, focuses on OSM's public statement that federal stream buffer zone rules do not apply to mountaintop removal valley fills.

Mountaintop removal blasts off entire hilltops to uncover coal reserves. Leftover rock and earth is dumped into huge waste piles called valley fills, which bury streams.

In July 1998, the Conservancy and others sued in U.S. District Court in Charleston to try to curb mountaintop removal.

Among other things, the suit alleged that the state Division of Environmental Protection issues permits that do not require companies to comply with the 100-foot stream buffer zone rule.

Lawyers for DEP and the coal industry argue that the buffer zone rules do not apply to valley fills.

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.