This news story originally provided by The Charleston Gazette

October 13, 2005

Manchin did not order silo action, DEP says

By Ken Ward Jr.
Staff writer

Gov. Joe Manchin did not order state regulators to block construction of a new Massey Energy coal silo near a Raleigh County elementary school, a state Department of Environmental Protection lawyer said Wednesday.

Still, DEP officials do not want to answer questions or release documents about their discussions with Manchin’s office about the Goals Coal Co. silo.

DEP lawyer Perry McDaniel told the state Surface Mine Board that Massey is trying to spin a “theory of conspiracy” that Manchin overturned an agency decision to approve the new silo.

“It didn’t happen,” said McDaniel. “It wouldn’t be relevant if it did happen.”

After a hearing, McDaniel declined to elaborate. DEP spokeswoman Jessica Greathouse also declined to offer further information about the governor’s involvement.

“We didn’t divulge that to the board, so we will not divulge that anywhere else,” Greathouse said.

McDaniel is trying to block Massey from probing the governor’s involvement as part of the company’s appeal of an order that rescinded the silo permit.

Since late June, the Massey site near Sundial has been under increasing scrutiny from regulators and coalfield residents.

On June 30, DEP renewed permits for a huge slurry impoundment and approved construction of the second of two new coal silos at the site.

In July, the agency revoked the silo permit, after learning that the proposed structure was 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 that Massey site was exempt from that rule because the area was part of a permit boundary before the 1977 federal strip mine law was passed.

McDaniel showed mine board members large site maps, and explained that DEP “found inconsistencies in the maps that had been submitted by Goals Coal.

“This far corner has sort of been moved, and some would say it was just enough to fit the silos in,” McDaniel said.

Last month, the mine board postponed Massey’s appeals hearing after McDaniel went to circuit court to try to block the company’s questions about Manchin’s involvement.

DEP claimed that the information was privileged.

The agency also argued that Massey lawyers were trying to use their appeal of the silo order to aid a civil rights lawsuit that company President Don Blankenship filed against Manchin.

In his lawsuit, Blankenship alleged that Manchin was retaliating against Massey for Blankenship’s opposition to the governor’s pension bond proposal, which was voted down by state residents on June 25 — before DEP’s original approval of the silo permit.

Kanawha Circuit Judge Duke Bloom sent the legal dispute back to the mine board, and told members to determine if the information Massey wants is relevant to the appeal.

During a hearing Wednesday, Massey lawyer Jim Snyder told the board that the company is entitled to learn what information changed hands between Manchin’s office and DEP about the silo permit. At the time DEP revoked the permit, the governor’s office was conducting its own investigation of citizen complaints about the Massey operation.

“I don’t think there’s a court in the country who would deny me the right to look at those things,” Snyder said. “We do not have to accept DEP’s version of what might or might not be relevant.”

McDaniel said all that matters is whether DEP mining director Randy Huffman’s decision to rescind that permit was legal and reasonable.

“Let’s say for the sake of argument that there was pressure,” McDaniel told the board. “I would argue that is not relevant. His decision will stand or fall on its own.”

Board member Steve Capelli, a coal company engineer, asked McDaniel to respond to a “very ugly hypothetical” in which Manchin ordered DEP to find a way to block the Massey silo.

“You’re going into issues of motive,” McDaniel said. “Would the public be interested in knowing those kinds of things? Would the press be interested? Yes. But it’s not relevant to this board.

“If you open this up, we’re going to get questions about it on every case — ‘who did you talk to? What did they say?” McDaniel said. “You would be opening a Pandora’s Box.”

Board member Randy McMillion, a coal company executive, asked McDaniel if DEP had ever revoked other permit revisions for similar sorts of problems.

“I’m not aware of any,” McDaniel said. “I don’t know of any decisions quite like this.”

Board members did not immediately rule on the matter. A full hearing on Massey’s appeal is scheduled for Nov. 8.

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