This news story originally provided by The Charleston Gazette

November 4, 2005

Court to hear Massey shutdown appeal

By Ken Ward Jr.
Staff writer

The state Supreme Court has agreed to hear Massey Energy Co.’s appeal of an order that would temporarily suspend one of its permits because of citations issued for repeated environmental violations.

Justices voted 4-1 to consider the appeal, filed by Massey subsidiary Marfork Coal Co. Justice Joseph Albright voted not to take the case.

Massey is appealing a nine-day suspension of the permit for Marfork’s Brushy Fork coal-waste impoundment south of Whitesville. The company wants the court to overturn a March ruling by Raleigh Circuit Judge H.L. Kirkpatrick that upheld the permit suspension.

The suspension was the result of a 2001 effort by the Wise administration to crack down on repeated blackwater spills and other violations at Massey mines, preparation plants and slurry impoundments in Boone, Logan and Raleigh counties.

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.

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

Matthew Crum, who was DEP mining director, initially 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.

Earlier this week, Marfork lawyer Bob McLusky said that suspension was too harsh a penalty and was part of an ongoing pattern of DEP harassment of Massey companies.

Tom Clarke, a DEP lawyer, told justices in court papers that Massey “is in a state of denial” over the company’s “abysmal compliance history.”

In court documents, Massey alleged that the original 14-day suspension would cost Marfork $9 million. In response, the DEP noted that the company told its shareholders that the DEP enforcement action would not have a material impact on corporate finances.

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