This news story originally provided by The Charleston Gazette

Citizens group intervenes in Massey silo case

New suit filed over Sundial operation

By Ken Ward Jr.
Staff writer

The state Surface Mine Board has allowed a Raleigh County citizens group to intervene in a case over a Massey Energy coal silo under construction adjacent to a local elementary school.

Whitesville-based Coal River Mountain Watch sought to join the case to defend a state order that blocked the silo at Massey’s Goals Coal Co. subsidiary near Sundial.

In a motion filed Tuesday, lawyer Joe Lovett said several group members have children who attend Marsh Fork Elementary School or are teachers or other employees of the school.

Lovett said that the state Department of Environmental Protection “likely will not adequately represent these local interests.

“Coal River Mountain Watch knows too well that it cannot rely on the DEP to protect the interests of local citizens and that a conflict of interest may develop between the DEP and Coal River Mountain Watch in this action,” Lovett wrote.

In a related action, Lovett, director of the Appalachian Center for the Economy and the Environment, had already filed a formal notice of intent to sue the DEP over its approval of the Massey silos.

Lovett alleged the silo permit approvals were “part of a pattern and practice” by DEP Secretary Stephanie Timmermeyer of “promoting the interests of coal operators at the expense of the state’s citizens and natural environment.”

Earlier this week, Massey lawyers appealed the DEP’s decision to revoke the silo permit and order the facility’s foundation ripped up and the area reclaimed.

Massey lawyers Terry Sammons and Bob McLusky asked the mine board to suspend the DEP order until board members can hear a full appeal of the matter.

A hearing on that motion is scheduled for 11:15 a.m. Tuesday in Charleston. The full appeal hearing is expected to be scheduled for mid-September.

In papers filed with the mine board, Sammons and McLusky said Massey has already spent about $400,000 on the silo construction. The facility was to be completed by mid-August, they told the board.

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 loadout facility near Sundial.

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.

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 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.

DEP officials have said they missed problems with the permit maps and silo locations, and that they have instituted reforms to avoid such mistakes in the future.

In the appeal, mine board members will consider whether Massey appears likely to win the broader appeal. They will also weigh the potential harm to the company and the environment of suspending the DEP’s order until the full appeal is heard.

Massey lawyers argue, “The silo foundation poses no threat of harm to the public health, safety or the environment.

“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,” Sammons and McLusky wrote. “In addition, unless temporary relief is granted, this appeal will be, in effect, mooted since the silo foundation at issue will have been destroyed.”

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