This news story originally provided by The Charleston Gazette

November 2, 2005

Massey wants justices to toss DEP’s suspension of permit

By Ken Ward Jr.
Staff writer

Massey Energy Co. is trying again to block state regulators from suspending one of its permits for repeated environmental violations.

On Tuesday, Massey lawyer Bob McLusky asked the state Supreme Court to consider throwing out the “unprecedented” nine-day suspension of a coal-waste impoundment permit for Massey’s Marfork Coal Co.

McLusky said that suspension was too harsh a penalty and was part of an ongoing pattern of state Department of Environmental Protection harassment of Massey Energy.

Massey is appealing a March ruling by Raleigh Circuit Judge H.L. Kirkpatrick that upheld the permit suspension.

But the controversy goes back farther. In 2001, then-Gov. Bob Wise’s administration kicked off a crackdown on repeated blackwater spills and other violations at Massey mines, preparation plants and slurry impoundments.

In a response filed with the court, DEP lawyer Tom Clarke said that Massey “is in a state of denial” over the company’s “abysmal compliance history.”

“Marfork was unwilling to spend the time and money and put forth the effort to do what was necessary to comply, as its law-abiding competitors in the coal industry have done,” Clarke wrote.

The Marfork case has already been to the Supreme Court once before, on procedural issues, since it began in late 2001.

Under state and federal mining law, the DEP can shut down coal operations that repeatedly violate environmental rules. Until the Wise administration crackdown on Massey, the agency had seldom used that authority.

The Marfork case focuses on repeated violations at the company’s huge Brushy Fork slurry impoundment south of Whitesville.

Between July 1999 and February 2001, DEP inspectors cited the operation for seven violations for spills and related water pollution violations.

Initially, then-DEP mining director Matthew Crum suspended the Marfork permit — covering the slurry impoundment and a nearby strip mine — for 14 days. The state Surface Mine Board reduced that suspension to nine days.

In new court filings, McLusky told the Supreme Court that the DEP did not take similar enforcement actions against other companies with repeated violations.

McLusky said that Massey’s in-house lawyer, Shane Harvey, reviewed DEP files and found 50 “other operations with apparent patterns of violations” with no permit suspensions.

With his appeal petition, McLusky also gave justices copies of photographs Massey officials took of blackwater spills, hazardous-waste violations and “many examples of conditions at non-Massey operations that received none of the attention visited upon Marfork and other Massey subsidiaries.”

In response, Clarke said that the DEP analyzed how often the agency issues “show cause orders,” the enforcement vehicle used to being the process of suspending a permit.

Statewide, Massey accounts for 18 percent of mining permits, but only 10 percent of the show-cause orders.

Also, across the coal industry, DEP managers issued show-cause orders in 73 percent of the cases where inspectors requested them. For Massey operations, DEP managers issued show-cause orders in 50 percent of the cases where inspectors requested them.

“Massey again appears to have received more favorable treatment than the coal industry as a whole,” Clarke wrote. “Its claim that it has been selectively targeted is simply not true.”

The justices did not immediately announce whether they would consider the Marfork case.

Justice Larry Starcher took part in Tuesday’s hearing after turning down a request from Marfork to recuse himself.

Marfork alleged that Starcher is biased against Massey, pointing to recent comments in which Starcher called Massey CEO Don Blankenship “stupid” and “a clown.”

Starcher made his comments Friday, after Blankenship vowed to target Starcher for defeat if the justice seeks re-election in 2008.

Last year, Blankenship spent more than $3 million to unseat Justice Warren McGraw. McGraw lost his race against Justice Brent Benjamin, who also took part in Tuesday’s hearing.

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