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This news story originally provided by
The Charleston Gazette
By Ken Ward Jr.
Staff writer
Lawyers for Massey Energy on Tuesday asked a state board
to temporarily suspend an order that requires the company to
rip up the foundation of a coal silo under construction
adjacent to a Raleigh County elementary school.
Massey lawyers urged the state Surface Mine Board to
block the order until board members can hear a full appeal
of the Department of Environmental Protection order.
“Temporary relief is particularly appropriate in the
appeal,” wrote Massey lawyers Terry Sammons and Bob McLusky.
“The silo foundation poses no threat of harm to public
health, safety or the environment,” they wrote. “It is made
of inert material, is not being used, and no further
construction will take place until a decision on the merits
of this appeal.
“In addition, unless temporary relief is granted, this
appeal will be, in effect, mooted since the silo foundation
at issue will have been destroyed,” Sammons and McLusky
wrote.
Board members scheduled a hearing for 11:15 a.m. Aug. 9
to consider the company’s request.
Originally, the DEP had told Massey to submit a
reclamation plan for the silo site by Aug. 5 and begin
foundation demolition by Aug. 8.
In a letter Tuesday, DEP lawyer Perry McDaniel told board
Chairman Tom Michael that the DEP would not enforce those
deadlines to give the board time to hear Massey’s request
for a stay.
The DEP declined to agree to a stay, but has not yet
filed legal papers to respond to the company request.
McDaniel said he has not decided if the DEP will file a
written response or simply argue against the stay at next
week’s hearing. A full hearing of the Massey appeal is
expected to be scheduled for mid-September, said board clerk
Fran Ryan.
Joe Lovett, a lawyer with the Appalachian Center for the
Economy and the Environment, said he would seek to intervene
in the appeal on behalf of the group Coal River Mountain
Watch.
Last week, DEP mining director Randy Huffman ordered
Massey’s Goals Coal subsidiary to halt construction of the
second of two new, 168-foot-tall coal storage silos at its
preparation and load-out facility near Sundial.
The DEP said the agency had concluded that the silo was
“permitted based on inaccurate maps and may be outside the
legal permit boundary.”
The Goals Coal operation is adjacent to Raleigh County’s
Marsh Fork Elementary School, and the second silo is just
220 feet from the school property line.
Under state and federal law, no new mining operations are
allowed within 300 feet of a school.
Originally, the DEP authorized both Massey silos because
agency officials said they were part of the operation’s
permit area before the 1977 federal strip mine law was
passed. The preparation facility was originally approved
under an old state water pollution permit in 1975.
Under state rules, a mining operation’s permit area is
defined as “the area of land indicated on the approved
proposal map” submitted by a company as part of a permit
application.
Last week, the DEP learned from a survey that both silos
are located outside the original permit boundary shown on
maps that company officials submitted to the agency.
In later permit maps submitted by Massey starting in
1997, the Goals Coal permit area appears to have been
enlarged to include the silo locations, according to DEP
officials.
The DEP blocked the second silo, which had received
agency approval on June 30. The DEP took no action
concerning the first structure, which was permitted in 2003
and is already built.
In papers filed with the mine board, Massey lawyers
argued that the maps the DEP relied on are inaccurate.
Instead, company lawyers say, the DEP should base the permit
area on a boundary marker found at the Goals Coal site.
“Goals will demonstrate at the hearing that the true
boundary is even more expansive,” the company argued.
“Accordingly, there is no incompleteness or inaccuracy in
the permit — the permit file being read as a whole discloses
the location of the silo and the fact that it is within the
permit boundaries.”
The permit marker at the site, an orange pipe driven into
the ground, was discovered last month by DEP inspector Mike
Furey.
In a July 19 memo, Furey said the marker was in the same
location as it was when he began inspecting the site in
1984.
On Tuesday, DEP officials revealed the permit marker was
not installed until early 1984 — nearly two years after
Armco Steel obtained its original strip mine permit for the
operation.
In December 1983, DEP inspector Lewis Halstead cited
Armco for not having boundary markers. Halstead ordered the
company to install them in locations shown on the permit map
by Dec. 22, 1983.
During an inspection in January 1984, Halstead noted that
the markers had still not been installed.
A month after that, on Feb. 9, 1984, Halstead inspected
the site and found that the markers had been installed.
To contact staff writer Ken Ward Jr., use e-mail or
call 348-1702.
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