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This article originally provided by The Charleston Gazette

W.Va. high court OKs Massey silo near elementary school

CHARLESTON, W.Va. -- Massey Energy can build a new coal silo next to a Raleigh County elementary school, despite permit maps that show the construction site is outside the company's mining boundary, according to a state Supreme Court ruling issued Tuesday.

Justices unanimously held that boundary markers at private mining sites -- and not the maps included in publicly available permit files -- constitute the official, legal limits on mining activities.

The ruling involves a four-year battle between Massey and coalfield citizens groups over a controversial operation where Massey processes and ships coal, and where the company maintains a huge coal slurry impoundment. Marsh Fork Elementary is located adjacent to the coal-processing and loading facility, and Massey's Shumate Impoundment is just upstream from the school.

Writing for the court, Justice Menis Ketchum said justices would not involve themselves in the heated debate over whether the school's location is safe, but would focus only on a narrow legal question of what constitutes a mine's permitted area under state and federal law.

"We are aware of the extensive public concern about [Massey subsidiary Goals Coal's] decision to construct a second coal silo less than a football field's length from an elementary school," Ketchum wrote.

"The DEP has determined it must allow the construction to occur in deference to statutory law," Ketchum wrote. "The wisdom or desirability of these decisions are outside the province of the judicial branch."

The 14-page opinion upholds a September 2007 decision by Kanawha Circuit Judge Duke Bloom, who ruled that boundary markers are the real legal test for a coal operation's permit area.

Controversy erupted after Massey had already built the first of two proposed silos at the Goals Coal site in Sundial.

DEP officials said that Massey wanted the second silo so that coal sold to power plants and steel makers could be stored separately before shipping. But permit records later showed that Massey also sought permission "for an increase in throughput" for the silos.

Coal River Mountain Watch opposed the silo, and objected to Massey's operation of the slurry impoundment. DEP initially approved the silo permit, but then revoked it in July 2005, after The Charleston Gazette revealed that it was built outside the permit boundary shown on the original maps in the agency's files.

Under state and federal law, no surface mining activities are allowed within 300 feet of certain public buildings, including schools. But mining activities are exempt from that buffer requirement if operators held a permit when the federal strip mine law was passed in 1977.

Massey challenged the DEP permit revocation, arguing that a pipe stuck in the ground at the mine site -- rather than the company's maps -- marked the real permit boundary. Since then, the case has been before the Surface Mine Board twice. On an appeal from the board, Bloom ruled that the permit map was not the sole guide to the permit boundary. Coal River Mountain Watch appealed that decision, but DEP sided with Massey on the legal issue involved.

West Virginia law defines permit areas as "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 and shall be readily identifiable by appropriate markers on the site."

Citizen group lawyers argued this definition means that the map outlines the legal permit area, and that markers on the ground simply corresponded to spots drawn on the map.

Ketchum rejected what he called "quixotic interpretations" of the law, and sided with DEP and Massey, both of which argued the definition means on-the-ground markers are the real permit boundary.

Chief Justice Brent Benjamin originally took part in the case, voting for the court to hear Coal River Mountain Watch's appeal. Benjamin later recused himself after the U.S. Supreme Court agreed to hear an appeal of whether he wrongly refused to step down from an unrelated Massey case because company President Don Blankenship spent millions of dollars on an independent campaign to help Benjamin win election in 2004. Marion Circuit Judge Fred Fox took part in Benjamin's place.

Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.

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