Last week, however, Sweeney said that EPA may be prepared to grant Hobet Mining a permit for the Dal-Tex expansion and its valley fills.
During a meeting Nov. 18, EPA proposed giving Hobet a permit for somewhat smaller valley fills. Sweeney would not say how much smaller the fills might be under the EPA proposal.
Under the proposal, Hobet would also have to continue studying the long-term impacts of the Dal-Tex expansion, which the company calls its Spruce No. 1 Mine.
Once the long-term impacts are studied more extensively, the company would probably come back and ask for the permit to be expanded to its original size, Sweeney said.
"They contended they ultimately would need all of the fills," Sweeney said. "So they would presumably be interested in coming back to apply for extension of the fills."
The Nov. 18 meeting in Huntington was attended by EPA officials, as well as representatives of DEP and the U.S. Army Corps of Engineers.
John McDaniel, chief of engineering for Hobet Mining, also attended part of the meeting. Representatives of environmental and citizen groups were not invited. Sweeney said McDaniel seemed receptive to the EPA proposal. David Todd, an Arch Coal spokesman, could not be reached for comment.
Even if EPA allows the state to issue Hobet's mining permit, the company may not be able to start mining.
Hobet must receive another permit from the Corps of Engineers before it can mine.
In July, the West Virginia Highlands Conservancy filed a federal court lawsuit alleging, among other things, that the corps cannot authorize valley fills under Clean Water Act "dredge and fill" permits. If the lawsuit is correct, as previous court rulings suggest it is, then valley fills would have to comply with the act's anti-degradation rules, which EPA says fills can't do.
Corps officials have said publicly that they agree with the lawsuit's allegations and have stopped issuing valley fill permits under the dredge and fill provisions.
A hearing on a motion for a preliminary injunction against new valley fill permits is scheduled for Thursday before Chief U.S. District Judge Charles Haden II.
Cindy Rank, mining chair of the Conservancy, said EPA should wait to see what happens with the corps permit matters before giving Hobet its water pollution permit.
"EPA can't do anything with this until that is resolved," Rank said. "It is ludicrous for them to go ahead and proceed with a partial permit when they don't know if this is legal in the first place.
"It would be refreshing to know there was some backbone in some agency that is supposed to protect the natural resources and people of this state without being blackmailed into violating the law," Rank said. "They don't have a clue what to do to enforce these laws."