This article originally provided by The Charleston Gazette

March 13, 2007

Split board grants Massey silo permit

Second silo near school approved

By Ken Ward Jr.
Staff writer

Massey Energy can build a second coal storage silo within 300 feet of a Raleigh County elementary school, a state appeals board ruled Tuesday.

In a split decision, the state Surface Mine Board overturned a Department of Environmental Protection order that blocked the silo.

The ruling is the latest move in a nearly two-year fight between DEP and Richmond, Va.-based Massey.

DEP and Massey began battling over the silo in July 2005, when agency officials revoked a permit for the second of two coal silos Massey proposed for its Goals Coal Co. preparation plant near Marsh Fork Elementary School at Sundial.

DEP acted after the Gazette revealed that the silo was proposed to be built outside the permit area shown on the site maps submitted by company engineers.

Last year, the mine board upheld that DEP decision, finding that Massey’s maps contained “inconsistencies, conflicts and ambiguities, to the extent that those maps cannot be used to determine whether or not the second silo is within or outside the permit.”

Responding to the board’s order, Massey submitted a new permit application. This time, the company based its permit area not on previous permit maps, but on a boundary marker found on the ground at the Goals site.

Massey lawyers had argued that the boundary marker — and not the maps — established the legal permit outlines.

DEP reviewed that application, and agreed with Massey that the boundary marker was the proper permit outline.

But DEP mining director Randy Huffman still turned down the company’s application. This time, he ruled that the new silo violated state and federal laws that prohibit new mining operations within 300 feet of a school.

In a 15-page ruling released Tuesday, the mine board ruled that state law “calls for the permit boundary to be determined by reference to both the approved proposal map and boundary markers at the site, not upon the map alone.”

Board members unanimously overturned DEP’s interpretation that “even the slightest modification or modernization” of a mining operation is prohibited if it is within 300 feet of a school.

Citing a 1988 state Supreme Court case, the board said, “Activities within areas already permitted may be altered provided they are part and parcel of the same ‘existing operation.’”

Board members said, “The appropriate analysis is to determine if the activity exists anywhere on the property, then the question is whether it can be moved into the protected area without placing a significant burden on public health and the environment.”

Board members split on this analysis.

A majority of the board — members Henry Rauch, Stephen Capelli, Michael Hastings and Randy McMillion — sided with the company.

They found “the construction of a silo is a tool for decreasing and minimizing dust in high dust areas” and “the construction of the silo will not place a significant burden on public health.”

Board Chairman Tom Michael and members Paul Nay and Ed Grafton disagreed. They found, “the construction of the silo less than 300 feet from the school places a significant burden on the public health and the environment of the local community.”

The case could now be appealed to Circuit Court and then to the state Supreme Court.

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