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This news story originally provided by
The Charleston Gazette
By Ken Ward Jr.
Staff writer
State regulators may have taken the wrong enforcement
action to stop construction of one of two Massey Energy coal
storage silos near a Raleigh County elementary school, a
citizens group said Tuesday.
In a new notice of intent to sue, Coal River Mountain
Watch said “it is still unclear under what legal authority”
the state Department of Environmental Protection rescinded
the silo permit.
Instead, the group said, DEP Secretary Stephanie
Timmermeyer should have cited Massey subsidiary Goals Coal
Co. for mining outside its legal permit boundary.
With a formal notice of violation, the DEP could have
required Massey to rip up the silo foundation — and tear
down an adjacent silo that is already built, the group said.
Joe Lovett, lawyer for the Coal River group, wrote, “We
fear that DEP does not understand well its powers and
obligations” under the state strip-mining law.
“Its rescission of the Goals authorization was the result
of its desire to avoid the bad publicity associated with its
failure to protect Marsh Fork Elementary from the Goals Coal
operation and not the result of its commitment to protect
the citizens of the state,” wrote Lovett, who is also
director of the Appalachian Center for the Economy and the
Environment in Lewisburg.
“Indeed, even in a climate of heightened regulatory
scrutiny, DEP did not discover on its own that Goals Coal
had redrawn its permit boundaries,” Lovett wrote. “A
vigorous agency that is committed to protecting the citizens
of the state would not have overlooked such a fundamental
flaw in a permitting action that was bound to be so
controversial.”
Randy Huffman, director of the DEP Division of Mining and
Reclamation, said his agency could still cite Massey for
mining outside its permit boundary.
“We haven’t closed the door on that yet,” Huffman said
Tuesday afternoon.
“We didn’t discuss any specific statutory language, but
we felt like we had the authority to rescind a permit that
we believed was wrongly issued,” he said.
On Friday, the DEP agreed to suspend the permit until a
full appeal is heard of its order that Goals Coal rip up the
foundation of its second silo. An appeal hearing at the
state Surface Mine Board is expected in mid-September.
Two weeks ago, Huffman ordered Goals Coal 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 next to Marsh Fork
Elementary, 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.
But when they approved the silos in 2003 and in late June
this year, DEP officials never compared the company’s
application maps with the operation’s original permit
boundary, shown on earlier company maps. The Goals Coal
site, then owned by Armco Steel, obtained state water
pollution permits in 1975 and 1977, and then was granted its
first strip-mine permit in 1982, DEP records show.
In mid-July, a Charleston Gazette investigation found
that maps that Goals Coal filed with the DEP showed that one
silo was built and the other was under construction on land
that appeared to be added to the company’s legal mine
boundary over the last eight years.
Massey never specifically asked for the permit changes,
and the DEP never approved them. Instead, the changes just
showed up on maps that company engineers filed periodically
with the DEP.
In its appeal to the state Surface Mine Board, Massey
argued that the DEP should not rely on old, imprecise maps
to determine a formal permit boundary. Instead, the company
argued, the agency should use a boundary marker found on the
ground at the Goals operation.
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.
State and federal mining laws require citizen groups to
notify regulatory agencies before they file an actual
lawsuit over lax strip-mine enforcement.
On July 15, Lovett filed an initial notice that alleged
the DEP had wrongly approved permits for the two Goals Coal
silos. On behalf of Coal River Mountain Watch, Lovett also
intervened in Massey’s appeal of the DEP silo order.
In his new legal notice, Lovett cited a section of state
law that says mining companies “shall conduct surface coal
mining and reclamation operations only on those lands that
are specifically designated as the permit area on the maps
submitted with the application and authorized for the term
of the permit.”
“The law is absolutely clear,” Lovett wrote. “The statute
and its regulations focus on the permit boundaries on the
maps submitted by the company.”
Lovett said the DEP has ignored its legal duty to cite
Massey for mining outside the permit boundary shown on
company maps.
The company should also be cited for submitting
inaccurate maps and a variety of other related violations,
Lovett alleged.
“We hope that DEP will defend its rescission of the Goals
Coal silo with more care than it has shown until now,”
Lovett wrote. “Finally, we hope that DEP will come to
recognize that its duty to direct Goals Coal to abate its
violations and cease operating the first silo is just as
mandatory as was its duty to abate the violations associated
with the second silo.”
To contact staff writer Ken Ward Jr., use e-mail or call
348-1702.
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