This news story originally provided by The Daily Press

November 1, 2005

Massey mine returns to Supreme Court over permit suspension

By LAWRENCE MESSINA
Associated Press Writer

CHARLESTON, W.Va. -- State regulators went overboard when they briefly suspended a permit that a Massey Energy Co. subsidiary needed for a coal operation, a lawyer for the company told the state Supreme Court on Tuesday.

"It was out of whack in terms of the appropriateness of the penalty," said Bob McLusky, a lawyer for Marfork Coal Co.

Marfork wants the Supreme Court to revisit the state Department of Environmental Protection's 2001 decision to suspend its permit for a coal waste pond.

Regulators sought to yank the permit for 14 days after the waste pond breached its dam and polluted the Little Marsh Fork of the Coal River six times in seven months. While upholding the suspension, the Surface Mine Board later reduced it to nine days.

McLusky alleged the suspension cost Marfork $5.4 million in lost revenue. Blaming the spills on a defective dam, he asked the justices to consider whether such a suspension should be reserved for repeated, "willful and wanton" violations.

The justices first ruled on the matter last year, when it reversed a circuit court ruling upending the suspension. But the justices also ordered Raleigh County Circuit Judge H.L. Kirkpatrick to review Marfork's objections. Kirkpatrick upheld the suspension in March, setting the stage for Tuesday's appeal hearing.

Justice Larry Starcher took part in Tuesday's hearing, after refusing a second motion by Marfork that he remove himself from the case.

Marfork alleges that Starcher has shown a bias against Massey with comments about it and Don Blankenship, its multimillionaire CEO and chairman. Most recently, Starcher told a Charleston Gazette reporter that Blankenship was "stupid."

Starcher's comment came Friday before he gave a speech to the West Virginia Political Science Association in Charleston, which Blankenship attended. A day earlier, Blankenship had given a speech at West Virginia University, where he vowed to target Starcher for defeat if he runs for re-election in 2008.

Blankenship spent more than $3 million last year to unseat Justice Warren McGraw, a Democrat, and support Republican Brent Benjamin, who won. Benjamin also took part in Tuesday's hearing.

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