Kanawha circuit court sides with Massey on Marsh Fork

Kanawha circuit court sides with Massey on Marsh Fork

By Ken Ward Jr.Staff writer

A Kanawha Circuit judge has upheld a decision that allows Massey Energy’s Goals Coal Co. subsidiary to build a new coal silo at its operation near Marsh Fork Elementary School at Sundial in Raleigh County.Judge Duke Bloom agreed with the state Surface Mine Board that the Department of Environmental Protection was wrong to deny Goals Coal’s permit application for the new silo
.DEP Secretary Stephanie Timmermeyer had appealed the board’s decision, as had the citizen group Coal River Mountain Watch.The DEP and Massey began battling over the silo in July 2005, when agency officials revoked a permit for the second of two coal silos Massey proposed for the operation near Marsh Fork Elementary.
The DEP acted after the Gazette revealed the silo was proposed to be built outside the permit area shown on site maps submitted by company engineers.The case before Bloom focused on the DEP’s interpretation that construction of the silo would violate a prohibition on new surface mining operations within a 300-foot protected area around the school. In March, the mine board threw out the DEP decision, ruling the agency interpretation meant that “even the slightest modification” of a mining operation is prohibited if it is within 300 feet of a school.In a 21-page decision, Bloom noted that Goals Coal and previous owners had used the Sundial site as a coal processing and loadout facility since the late 1970s. Mining operations which existed when the federal strip mine law was passed in 1977 were exempt from the 300-foot buffer zone, the judge noted.Bloom ruled that the DEP’s decision that the new silo would constitute new mining operations not exempt from the buffer zone was a “recently derived litigation position” and therefore not entitled to deference from the court.“DEP has pointed to no instance in which it has ever construed the existing operations provision to limit future mining in the protected zones to certain specific activities,”
Bloom wrote.Bloom added that the DEP previously applied the existing operations exemption to allow both of the silos proposed by Massey.“DEP’s permit supervisor advised the DEP Director that limiting the existing operation provision to precisely the same activities that historically occurred in a permitted area was contrary to DEP’s long-standing policy,” Bloom wrote.Bloom also ruled against Coal River Mountain Watch. He upheld a mine board ruling that the actual permit boundaries are governed by both on-the-ground markers and outlines shown on company maps. Coal River Mountain Watch had argued that map boundaries were controlling.Massey President Don Blankenship said “...Given the concern that this case generated in the community, we will not construct the silo until we have met with the governor’s office and with officials from Marsh Fork Elementary School.“Our objective will be to get their input and to better explain the environmental benefits of the silo,” Blankenship stated.Jessica Greathouse, spokeswoman for the DEP, said she was not aware of the court decision. To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.