This news story originally provided by The Charleston Gazette

August 20, 2005

Public radio’s dam story was a ‘scare tactic,’ Massey says

Spokesman’s memo alleges report ‘defames’ company

By Ken Ward Jr.
Staff writer

Massey Energy says that a radio report about safety concerns at one of its coal waste impoundments was intended “to scare people with misinformation.”

Late Thursday, Massey spokesman Jeff Gillenwater released a two-page memo attacking the story aired earlier in the week by West Virginia Public Broadcasting.

Gillenwater said the story consisted of “scare tactics” that wrongly suggested the impoundment had safety problems.

“Your story only spread false rumors intended to scare the general public,” Gillenwater wrote. “We also feel your story defames Massey, was intentional and we are considering legal action.”

In its radio story, public broadcasting cited federal inspection reports that found “widespread” leaks from Massey subsidiary Goals Coal Co.’s Shumate Impoundment near Sundial in Raleigh County.

The impoundment is located just upstream from Marsh Fork Elementary School and is part of a Massey coal processing operation that local residents are worried is unsafe.

Since late June, the Goals Coal site has been under increasing scrutiny from regulators and coalfield residents.

On June 30, state Environmental Protection Secretary Stephanie Timmermeyer renewed permits for the impoundment and approved construction of the second of two new coal silos at the site.

Last month, the DEP rescinded the silo permit, after learning that the structure was built outside the operation’s original permit boundary.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 Goals site was exempt from that rule because the area was part of a permit boundary before the 1977 federal strip mine law was passed.

Massey has appealed the DEP action on the silo permit to the state Surface Mine Board.

In a related development, a group of Raleigh County residents on Aug. 12 filed a lawsuit seeking to force Massey to fund medical testing for students and staff at the Marsh Fork school.

The class-action suit, filed in Raleigh Circuit Court, also seeks “the abatement of the public nuisance caused by” the Massey silo and damages for injuries from exposure to toxic chemicals used at the Massey operation.

Charleston lawyer Kevin W. Thompson filed the suit on behalf of Carolyn Beckner, Sherry Pettry, Connie Elkins and all students and staff of the school.

In his memo, Gillenwater said coal waste impoundments are intended to allow some seepage, and that nothing unusual or problematic was found in MSHA inspections of the Shumate site.

Gillenwater said both the MSHA and the state Department of Environmental Protection have said the Goals Coal impoundment is safe. In his story, public radio reporter Dan Heyman included quotes saying as much from both agencies.

Gillenwater wrote that “the sole person to disagree with MSHA, DEP, our consultant engineers and company engineers is Davitt McAteer.”

McAteer, a longtime mine safety advocate, was head of the MSHA during the Clinton administration and is currently leading the Coal Impoundment Project, a public education effort about slurry dam safety.

“It is obvious that McAteer, a lawyer, is not an impoundment expert nor a registered professional engineer,” Gillenwater wrote. “The Shumate impoundment was continually inspected by MSHA when McAteer led MSHA and he did not find reason to be concerned.”

Over the last decade, MSHA inspectors cited Goals Coal for impoundment safety violations about once every six months, according to agency records.

Four of the 19 violations issued since January 1995 were deemed by MSHA inspectors to be “significant and substantial,” according to the agency’s data.

Five of those citations were issued in the last two years. The most recent violation was cited in March 2004.

Results of an ongoing MSHA inspection of the impoundment, started on July 25, are not yet available, according to MSHA data.

All but one of the violations involved Massey subsidiary Goals Coal’s failure to comply with its own approved plan for the design and construction of the impoundment. The other violation involved failing to file a required report about impoundment conditions.

Massey did not challenge the citations, and paid the $2,447 in fines that the MSHA sought for the violations, agency data shows.

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