Mountaintop removal mines blast apart hilltops to uncover valuable low-sulfur coal seams underneath. Leftover rock and earth is dumped into nearby hollows, burying streams in waste piles called valley fills.
These mines must receive two state permits: mining permits under the state and federal Surface Mining Control and Reclamation acts, and a National Pollution Discharge Elimination System, or NPDES, permit under the state Water Pollution Control Act and the federal Clean Water Act.
Under federal law, the U.S. Environmental Protection Agency is supposed to make sure the state issues proper NPDES permits. The federal Office of Surface Mining is supposed to make sure the state follows the law when it issues mining permits.
The NPDES permit for the Dal-Tex Spruce No. 1 Mine expansion has been held up since June.
EPA officials objected to the state issuing it. They said DEP permit writers did not do enough studies to conclude the mining would not violate the Clean Water Act. EPA officials also said the huge valley fills Hobet Mining proposes would violate federal prohibitions against degrading stream quality. The NPDES permit cannot be issued until EPA drops its objections.
On Wednesday, Miano issued the mining permit requested by Hobet Mining.
A federal court lawsuit filed in July by the West Virginia Highlands Conservancy alleged that DEP cannot issue mining permits before the associated NPDES permits are approved.
The lawsuit states that the 1977 federal Surface Mining Control and Reclamation Act requires all strip mine permits to comply with the Clean Water Act. If an NPDES permit has not yet been issued, the lawsuit alleges, there is no way for DEP to know if the mine will comply with the Clean Water Act.
Russ Hunter, chief lawyer for the DEP Office of Mining and Reclamation, said Wednesday that Miano issued the mining permit on the condition that mining not start until the NPDES permit is approved.
"It's a chicken and egg thing," Hunter said. "We've tried to have them on a dual tract so they were both issued at the same time. That wasn't happening in this case."
Tom Morgan, a spokesman for the OSM field office in Charleston, said his agency reviewed the matter Wednesday and found DEP did nothing wrong.
"It does comply with federal mining law and there is no violation," Morgan said. "We don't see a problem with the permit."
In a formal notice of intent to sue filed in June, the Highlands Conservancy alleged a variety of specific problems with the Spruce No. 1 permit.
The notice alleged that DEP had not conducted proper studies to grant Hobet Mining a waiver of a law prohibiting mining within 100 feet of streams. The notice also alleged DEP did not require the company to submit a hydrologic reclamation plan.
Miano said Wednesday that DEP officials did not change the permit to address any of those concerns.
"This permit could have been issued in July," Miano said. "This office has reviewed the permit and found it meets all the requirements of the state."
The mine expansion must also receive approval from the U.S. Army Corps of Engineers. On Wednesday, a Corps moratorium on issuing those permits expired, paving the way for the agency to begin reviewing Hobet's application.
Cindy Rank, mining chairwoman of the Highlands Conservancy, said, "It's incredible that DEP thinks they can issue this permit, when a part of this permit is an invalid NPDES permit.
"We might as well hang up all the regulatory agencies and regulations and laws in the state of West Virginia and the United States of America if this is the way it's going to be," Rank said.
"I don't know that we've ever had a DEP director split the community over jobs has much as Mr. Miano did today," she said. "That is not the issue and should not be the issue Mr. Miano makes his decisions on."