This article originally provided by The Charleston Gazette

March 16, 2007

DEP files appeal in Massey silo ruling

By Ken Ward Jr.
Staff writer

State regulators on Thursday challenged an appeals board decision that allows Massey Energy to build a new coal silo within 300 feet of a Raleigh County elementary school.

The state Department of Environmental Protection appealed the Surface Mine Board ruling to Kanawha Circuit Court.

DEP lawyer Tom Clarke filed the appeal Thursday afternoon, two days after the mine board announced its decision in the highly controversial case.

Earlier in the day, DEP Secretary Stephanie Timmermeyer had vowed to take whatever steps were necessary to fight the board’s ruling.

“We plan on moving for whatever kind of relief that we can, because we feel like our decision was a sound one,” Timmermeyer said in an interview.

In the agency’s appeal, Clarke argues that construction of the silo by Massey’s Goals Coal subsidiary would violate a prohibition on new surface mining operations within a 300-foot protected area around Marsh Fork Elementary School.

Clarke also argues that the board’s decision did not give Goals Coal authority to go ahead with construction. Board members, Clarke says, did not specifically grant the company’s permit. Instead, they simply overturned DEP’s denial of that portion of the Goals application.

“Goals has no legal authority to proceed with construction of the silo it sought approval to build in its application,” Clarke said.

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 preparation plant near Marsh Fork Elementary at Sundial.

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

In its latest ruling, the mine board unanimously overturned DEP’s decision that the 300-foot school buffer zone prohibited the silo.

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

Then, a split board voted 4-3 to allow the silo, deciding it would not cause a “significant burden on public health and the environment.”

This morning, the group Coal River Mountain Watch plans a protest at the state Capitol to demand that the state build a new Marsh Fork school farther from the coal operation.

The Whitesville-based group said Gov. Joe Manchin is “shirking his responsibility for the health and safety of the students” by not moving the school.

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