This news story originally provided by The Charleston Gazette

Both Massey silos off permit, DEP says survey shows

By Ken Ward Jr.
Staff writer

Both of Massey Energy’s controversial coal silos near Marsh Fork Elementary School are outside the original permit boundary shown on company maps, a state Department of Environmental Protection official says an agency survey has confirmed.

The site for the second silo — which has not yet been completed — sits entirely outside the permit boundary, according to the survey released Tuesday night.

The permit boundary line runs through the middle of the first silo, which was approved by DEP in June 2003 and is completed, the survey shows.

Massey argues that the original permit maps are not accurate and should not be used to judge the permit boundary.

On Tuesday, DEP revoked its June 30 permit approval for the second silo. Agency officials ordered Goals Coal to rip up the silo foundation and reclaim the area.

But DEP has taken no action and apparently plans no action concerning the first, 168-foot tall coal storage silo.

Jessica Greathouse, the DEP’s media spokeswoman, confirmed Wednesday evening the survey shows that the original silo is located partially on and partially off the operation’s approved permit boundary as shown on company maps.

“But, because the map is of poor quality, it is not suitable for making a regulatory determination,” Greathouse said.

Randy Huffman, director of the DEP Division of Mining and Reclamation, said the agency’s probe did not focus on the first silo.

“We’re not in a position to make a determination about the first silo,” Huffman said Tuesday. “It has been there for a couple of years and no one questioned it.”

Joe Lovett, a lawyer at the Appalachian Center for the Economy and the Environment, said his organization found problems with the first silo.

Lovett said he cited those problems in a letter to DEP on July 15 — the same day DEP suspended the silo permit and launched its investigation.

“We very specifically and clearly raised the issue of the first silo in our notice of intent to sue filed just two weeks ago,” said Lovett, who is representing the group Coal River Mountain Watch. “DEP was put on notice that the first silo was at issue, and any suggestion to the contrary is false.”

In their first detailed public comments on the issue, Massey officials dismissed any questions about the maps as minor technicalities.

“It’s a technicality much like being a mile over a speed limit,” company president Don Blankenship said on MetroNews Talkline. “They could apply this to every coal company in West Virginia and probably shut them all down.

“If all of us are going 56 miles per hour and I’m the only one getting a ticket for speeding, I have to be concerned about that,” Blankenship said.

DEP’s action Tuesday comes 11 days after the agency first suspended the permit for Massey to build the second of two, 168-foot-tall coal silos just 220 feet from the property line of Marsh Fork Elementary School near Sundial.

Under state and federal law, no new mining operations are allowed within 300 feet of a school.

After the first silo was built and when the second one was proposed, coalfield residents and activists objected, saying the facilities were too close to the school.

DEP officials said the silos were exempt from the 300-foot limit because they were within the permit boundary of an operation that existed prior to passage of the federal Surface Mining Control and Reclamation Act on Aug. 3, 1977.

On Tuesday evening, DEP announced that its investigation had found that “the [second] silo was permitted based on inaccurate maps and may be outside the legal permit boundary.”

Later Tuesday night, DEP released copies of maps prepared by a surveying crew hired by the agency. The surveyors located structures and other fixed objects in and around the permit area.

In a letter filed with DEP on Monday and disclosed by the agency Tuesday night Goals Coal argued that the original permit maps should not be used to determine the proper boundary.

At the time, in 1982, permit maps were drawn by company engineers onto topographic maps from the U.S. Geological Survey. Today, the coal industry uses computer mapping software programs that are much more accurate.

“We understand that the map accuracy standards to which [the original permit maps] are produced allow substantial variances in the relative location of mapped features,” wrote Thomas Cook, Massey’s director of environmental affairs.

Instead, Cook said, DEP should judge the permit boundary based on a field marker that an agency inspector found at the Goals Coal site on July 18.

Massey projected that marker’s location onto maps and found that, judged that way, both silos would be within the permit boundary.

Huffman said that DEP decided not to rely on the marker because its location today did not match its location as shown on early permit maps.

“The maps don’t match up with what we found on the ground,” Huffman said. “There’s no explanation for it.”

Lovett said his organization has reviewed a 1997 permit map made with computer software and submitted to DEP by Massey. That map also shows both silos outside the permit boundary, Lovett said.

“The first silo is in the same legal situation as the second silo,” Lovett said. “Both of them are outside the boundaries of the 1982 and 1997 maps.

“Whatever action DEP has taken about the second silo, they must also take about the first silo,” Lovett said. “They must rescind the permit for the first silo, and I expect that they will.”

To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.