This news story originally provided by The Charleston Gazette

November 5, 2005

Massey hearing postponed again

By Ken Ward Jr.
Staff writer

The state Surface Mine Board on Friday postponed a major appeal hearing in the case of a Massey Energy Coal silo proposed next to a Raleigh County elementary school.

The move marks the third time in as many months that the board has delayed the hearing.

The latest schedule called for the hearing to begin Tuesday in Charleston. Hearings scheduled for September and October were also postponed.

This time, board members said that they would not hold the hearing until a legal battle is resolved over questions Massey wants to ask about Gov. Joe Manchin’s involvement in the silo dispute.

In a one-page order issued late Friday, board Chairman Tom Michael said it “would waste the board’s resources” to hold the hearing before that issue was settled.

Michael noted that the board ruled “on its own motion,” rather than in response to a delay request sought earlier Friday by Massey lawyer Bob McLusky.

In the case, Massey has appealed a Department of Environmental Protection order that blocked construction of a new coal storage silo at its Goals Coal Co. processing facility near Sundial.

Since late June, the Goals Coal site near Marsh Fork Elementary School has been under increasing scrutiny from regulators and coalfield residents.

On June 30, the 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 structure was proposed 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.

A DEP-funded survey found that the silo that has already been built is outside the legal permit area as well. The DEP has declined to take any action over that silo.

Last week and again this week, DEP lawyer Perry McDaniel asked a circuit judge to overturn a mine board ruling that the agency must answer the questions about Manchin’s role in blocking the second silo.

McDaniel urged two circuit judges — Judge Duke Bloom and Judge James Stuckey — to “halt an unwarranted invasion into privileged agency communications.”

No hearing in circuit court has yet been set.

DEP Secretary Stephanie Timmermeyer is trying to avoid having agency mining director Randy Huffman answer questions about her agency’s discussions with Manchin’s office.

Timmermeyer also wants to keep secret any documents concerning Manchin’s involvement in a DEP order that blocked the silo construction.

Lawyers for Massey want to ask questions and obtain documents about Manchin’s role as part of their appeal of that DEP order.

The DEP claims that the information is privileged and that Massey only wants it to use it against the governor in a separate civil rights lawsuit that Massey President Don Blankenship filed against Manchin.

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