DEP ignores mine stream buffer rule
State regulators ignore a rule that requires 100-foot buffer zones between strip mines and streams, a permit supervisor for the state Division of Environmental Protection said under oath.
Larry Alt, permit supervisor at the DEP Office of Mining and Reclamation's Logan field office, said that permit reviewers exempt mountaintop removal valley fills from the rules without showing that the fills won't cause serious environmental damage.
Lawyers for environmentalists filed portions of Alt's legal deposition in federal court on Wednesday as part of an effort to halt the largest mountaintop removal mine in state history.
"DEP has a pattern and practice of routinely granting buffer zone variances without the findings required by this regulation," the lawyers stated in court filings. "Larry Alt testified that he had reviewed 8,000 mining permits and could not identify a single time that he or his permit teams had ever recommended denying such a variance."
Arch Coal Inc. wants to mine 3,100 acres near Blair, Logan County. Chief U.S. District Judge Charles Haden has scheduled a hearing for Wednesday on the permit challenge.
The Arch Coal mine would bury large portions of Pigeonroost Branch and parts of two other streams with waste rock and earth.
Federal and state surface mining laws generally prohibit mining within 100 feet of streams.
That requirement can only be waived if regulators find the mining won't adversely affect the flow of the stream, the migration of fish, the water quality and quantity, and will not violate state water quality standards.
In November, DEP Director Michael Miano approved a buffer zone waiver for the Arch Coal mine, based on recommendations from Alt and permit engineer Ken Stollings.
Stollings wrote that "steep slopes and limited usable land for necessary construction of facilities can only be accomplished with this variance."
Alt said, "The steep slopes in the area make it advisable that we allow for disturbance within 100 feet of a stream since they are going to be placing designed valley fills for the 15 percent overburden excess spoil in the valley fills for in-stream drainage structures in order to control the disturbance of the valley fills."
During his December deposition, Alt testified that, when they receive a buffer zone variance request, DEP permit reviewers, "make sure that the fill and the location and the size is adequate for what's needed."
"Once it's determined that ... there's going to be a fill, then they go ahead and design and give a variance to allow them to construct that fill in a stream," Alt said.
Patrick C. McGinley, a lawyer for the Conservancy, asked Alt, "So, in essence, if the permit applicant tells DEP that they are using mountaintop removal mining methods and they have to put excess spoil in stream segments and that the placement of that excess spoil will be stable, you and your permit review team dispense with the [buffer zone regulations]?"
Alt replied, "Yes."
In a later deposition, DEP assistant chief for permitting Lewis A. Halstead testified that buffer zone variances are not supposed to be granted on the basis outlined by Alt.
DEP officials refused further comment Thursday afternoon.
Industry lawyers have argued that the buffer zone requirement does not apply to valley fills because the fills are specifically authorized by other parts of the strip mining law.