The West Virginia Highlands Conservancy plans to argue that Miano illegally issued the permit. Among other things, the group contends that the DEP can't issue the mining permit unless Arch Coal has first received an NPDES permit. The Highlands Conservancy also contends that the Arch Coal permit has a variety of other problems, including inadequate water-quality studies and the lack of an approximate original contour reclamation variance.
Under the federal surface mining law, all surface-mine permits must comply with the Clean Water Act. The Highlands Conservancy contends that the DEP can't know Arch Coal's proposed mine will comply unless the company has received an NPDES permit.
Last week, the OSM field office in Charleston reviewed Miano's action and said he did nothing wrong.
Tom Morgan, a spokesman for the office, said that OSM thinks it is fine for Arch Coal to receive the mining permit before the NPDES permit is approved.
The OSM actually has no written policy on the issue.
In January 1995, environmental groups filed a formal notice of intent to sue the OSM and the DEP alleging that mining permits could not be issued without NPDES permits.
No lawsuit was ever filed. In response to the notice of intent to sue, OSM drew up a draft policy. The policy would have allowed mining permits to be issued without NPDES permits being approved first. The policy was never approved or subjected to public scrutiny.
But in Tennessee, where the OSM - not the state - oversees mine permitting, Arch Coal would not have been able to receive its mining permit yet.
Brock said her office would not issue a mining permit if the EPA had an unresolved objection to the associated NPDES permit.
"If there's any problem with that NPDES permit, then we will not issue a surface-mining permit," Brock said. "We would stop that process."