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This news story originally provided by
The Charleston Gazette
Massey Energy lawyers on Tuesday took on state regulators
again in longstanding battles over a storage silo and a coal
stockpile.
Massey challenged Department of Environmental Protection
orders blocking construction of a coal silo near a school
and requiring the company to cover a new stockpile adjacent
to the town of Sylvester.
State Surface Mine Board members held hearings on both,
but did not immediately rule on either case Tuesday
afternoon.
In the Sylvester case, Massey appealed an October 2006
DEP order that the company not resume use of a stockpile at
its Elk Run Coal Co. preparation plant without a dome or
other enclosure.
Local residents back DEP
Jennifer Fahey, a lawyer for several Sylvester residents,
told the board that her clients intervened in Massey’s
appeal to support the DEP action.
“There is still dust and they are greatly concerned about
having an open stockpile,” Fahey said.
The coal silo case is the latest maneuver in a fight that
started in July 2005, when DEP revoked a permit for the
second of two coal silos Massey proposed for its Goals Coal
Co. preparation plant near Marsh Fork Elementary School at
Sundial, Raleigh County.
DEP acted after The Charleston Gazette revealed that the
silo was proposed to be built outside the permit area shown
on site maps submitted by company engineers.
Last year, DEP mining director Randy Huffman turned down
another silo permit application, citing federal and state
laws that prohibit new mining operations within 300 feet of
a school.
The overall Goals Coal site was in place before those
laws were passed, but DEP lawyer Tom Clarke said the company
is still prohibited from building a coal silo there if one
was not part of the original permit. Previous owners of the
facility used the proposed silo location for other
activities, Clarke said.
‘Blind ponies’
“Armco and Peabody had enough sense not to stockpile any
local coal there,” Clarke said. “Apparently, Goals does
not.”
Massey lawyer Bob McLusky argued that the DEP decision
would mean that coal companies couldn’t change or update any
operations that are within 300 feet of a school.
“If you were using blind ponies, you can’t use modern
haulage,” McLusky said.
McLusky said that DEP was simply trying to find another
way to block the silo to punish Massey for company President
Don Blankenship’s political feud with Gov. Joe Manchin.
“It’s a concoction of DEP to treat this facility
differently than it’s treated every other facility in the
state of West Virginia,” McLusky said.
Joe Lovett, a lawyer for Coal River Mountain Watch, said
that DEP was making the silo rejection too complicated.
All agency officials had to do, Lovett told the board,
was rule that the silo location was not on the permit area
shown on maps submitted by company engineers.
Instead, DEP allowed Massey to submit a new application
with new maps that match a boundary marker found on the
ground at the preparation plant site, to correct problems
with maps that showed the silo outside the permit boundary.
Maps or boundary marker?
Permit maps submitted over the years clearly show the
silo location outside the permit area. But, DEP inspectors
found a pipe stuck in the ground that they say was the
original field marker at the site. It shows the silo
location inside the permit area.
Lovett argues that the maps — and not the boundary marker
on the ground — are the official, legal permit area.
State law defines permit area as “that area of land shown
on the approved proposal map submitted by the operator as
part of the operator’s application showing the location of
perimeter markers and monuments and shall be readily
identifiable by appropriate markers on the site.”
“The markers are there to identify the boundaries
established on the map,” Lovett said during a Tuesday
morning hearing.
In the Sylvester case, Clarke conceded that the dust
problem for area residents began a decade ago.
Ridge chopped off
At the time, DEP officials allowed Massey to chop off the
top of a ridge that had separated the Elk Run site from the
town. As a result, wind blew large amounts of dust from coal
stockpiles into homes.
“DEP didn’t perceive the problem that resulted from
that,” Clarke said.
In February 2003, residents won a nearly $500,000 jury
verdict in a nuisance suit against Elk Run. And in a
settlement with DEP, Massey agreed to put a huge dome over
its coal stockpiles.
Now, though, Massey wants to resume using another
stockpile that hasn’t been operated since the dome was
installed. The company does not believe it should be
required to cover that coal pile.
Leonard Knee, a Massey lawyer, said the dome is between
the stockpile and the town and would block any dust that
blows that way.
Bill Simmons, a DEP deputy mining director, said Massey’s
past problems at the site, “abundantly demonstrate that an
uncovered stockpile cannot be operated in this location
without violating the performance standards of state law
concerning dust and offsite damage.”
To contact staff writer Ken Ward Jr., use e-mail or
call 348-1702.
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