This news story originally provided by The Charleston Gazette

DEP right to block Massey silo, board rules

By Ken Ward Jr.
Staff writer

State regulators were right to revoke a permit for a new Massey Energy coal silo proposed adjacent to a Raleigh County elementary school, the state Surface Mine Board ruled Wednesday.

In a unanimous decision, board members found that “inconsistencies” in mine maps submitted by Massey made those maps unfit for determining accurate permit boundaries.

The board ordered Massey’s Goals Coal Co. subsidiary to promptly provide the state Department of Environmental Protection with a “corrected map showing the location of the permit boundaries.”

“We’re not suggesting that the permit boundary will be changed by this process,” Chairman Tom Michael said in announcing the board’s decision.

“We just want a map that shows the correct permit boundaries and we want those boundaries to be marked on the ground,” Michael added.

Still, the board also found that the discovery of a boundary marker — a pipe stuck in the ground — at the mine site was “significant.” Board members said the location of that marker “should be considered by the company and the DEP in coming up with the corrected map.”

Bob McLusky, a Goals Coal lawyer, had argued that the permit marker proved that two new Massey silo locations are within the company’s legal permit boundary.

After Wednesday’s board ruling, Michael said the board was not concluding that the marker legally establishes the proper permit boundary, but just believes it should be considered.

“We chose our words very carefully,” Michael said.

Joe Lovett, a lawyer for the group Coal River Mountain Watch, said the case boiled down to a legal dispute over which constitutes the true permit boundary: the area shown on the original permit map submitted by the company, or the boundary marker found at the mine site.

In a closing argument, Lovett noted that state law defines “permit area” to mean “the area of land indicated on the approved proposal map submitted by the operator as part of the operator’s application showing the location of perimeter markers and monuments.”

“The map controls,” Lovett said. “The law and the regulations point only to the maps and we’ve seen what a mess the maps are.”

After the board announced its ruling, DEP mining director Randy Huffman said the agency would be closely examining that legal issue once Massey submits whatever new map company engineers come up with.

“This time, there will be a considerable amount of research into the legality of where the boundary is allowed to be, and whether it is where they say it is,” Huffman said in an interview.

Board members ruled following about 90 minutes of deliberations after a 1 1/2-day hearing that started Tuesday in Charleston.

Massey appealed a July 2005 decision by DEP to revoke a permit for the second of two 168-foot-tall coal storage silos at the Goals Coal preparation and shipping complex in Sundial, Raleigh County. The first silo has already been completed.

The Goals complex is adjacent to Marsh Fork Elementary School. Both silos would be less than 300 feet from the school, and a huge coal-waste impoundment sits just upstream from the school building.

DEP revoked the silo permit after the Gazette revealed agency permit maps showed it was proposed to be built outside the operation’s original permit boundary.

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

Initially, the DEP said the Massey site was exempt from the rule because the area was part of a permit boundary before the 1977 federal strip mine law was passed. Later, a DEP-funded survey found the silo that has already been built is also outside the legal permit area shown on company maps. DEP has declined to take any action over that silo.

Massey lawyers spent much of a seven-hour hearing Tuesday with expert witnesses on map-making and surveying.

Those witnesses, consultants Lance Rankin and Linda Torre, testified that topographic maps used for mine mapping in the 1980s — when the Goals site was originally permitted — are not very accurate for showing permit boundaries. Also, they said, those maps become more inaccurate as they are blown up to show more details or transferred to computer format.

“They treat everything on a map as if it’s magic,” McLusky said in his closing argument. “It’s just a sketch. It is a crude instrument.”

Then, at the end of Tuesday’s hearing, Massey engineer Paul McCombs admitted for the first time that he expanded the Goals permit boundary when he drew maps for the second silo permit application, submitted in March 2005.

McCombs said he expanded the map boundary lines to include disturbed area that he believed should be part of the permit.

On Wednesday, DEP assistant mining director Keith Porterfield testified that Massey never told the agency about the changes, even when Porterfield asked him about inconsistencies in the silo maps.

Porterfield said DEP officials did not notice the changes until after they had approved both silos.

“It was a mistake made by the department,” Porterfield said. “We should have caught that permit adjustment at the time, and we didn’t.”

Huffman testified that he reviewed mine maps going back to the site’s original permits, and found repeated problems.

“I had certified maps that were all different,” Huffman said.

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