State regulators on Friday suspended a permit for a new Massey Energy coal silo near a Raleigh County elementary school after being told that the project was outside the company's original permit area.
The state Department of Environmental Protection also hired a surveying crew to try to clear up major questions about the location of two Massey silos and the legal permit boundaries for the company's Goals Coal Co. operation.
"We need to establish exactly where [the silos] are and then compare that to the different permit boundary lines that we have and we're not to that point yet," said Randy Huffman, director of the DEP Division of Mining and Reclamation.
Over the last two weeks, DEP Secretary Stephanie Timmermeyer and Gov. Joe Manchin have been under fire for approving Massey's permits for the new silo and continued operation of a huge slurry impoundment just up the hollow from Marsh Fork Elementary School.
Under state and federal law, no new mining operations are allowed within 300 feet of a school.
In 2003 and again last month, Timmermeyer approved the Massey silos anyway. Agency officials said that the silos were exempt from the 300-foot limit because they were within the permit boundary of an operation that existed prior to passage of the federal Surface Mining Control and Reclamation Act on Aug. 3, 1977.
But Massey's Goals Coal Co. subsidiary built one silo and is constructing a second one on land that appears to have been added to permit maps over the last eight years, a Gazette-Mail investigation has found.
Massey never specifically asked for the permit changes, and DEP never approved them. Instead, the changes showed up on maps that company engineers filed periodically with DEP.
Agency officials did not notice the permit boundary changes until the newspaper pointed them out a week ago.
"We had no clue we had a boundary adjustment," said Keith Porterfield, a deputy director in DEP's regional mining office in Oak Hill. "We clearly made a mistake."
On Friday, Huffman ordered Goals Coal to immediately halt work on the second new, 168-foot-tall silo.
In a two-page order, Huffman suspended "Permit Revision 8," which DEP had approved on June 30 to allow the second silo.
Coal River Valley residents had opposed the permit revision, which allowed the silo to be built 220 feet from the property boundary of Marsh Fork Elementary School near Sundial.
In his Friday order, Huffman said that "the boundaries of this permit depicted on the proposal and drainage map for this revision are clearly inaccurate in an area that may [be] subject to the prohibitions" on new mining operations within 300 feet of a school.
"A comparison of the boundaries depicted in the area of the western end of your preparation plant site on the proposal and drainage map for Revision 8 to boundaries in the same area on maps submitted with previous permit transactions shows that the boundaries depicted on the Revision 8 map have been extended, without the approval of this agency," Huffman wrote.
Huffman added that "the area in which the boundaries have been extended may lie within 300 feet of Marsh Fork Elementary School."
Also, Huffman noted that Massey, in its permit application, "did not attempt to demonstrate that you are entitled to an exemption from the 300-foot prohibition in the application for Revision 8 or in any other permit applications in which unapproved, extended permit boundaries are depicted."
Various Massey officials did not return phone calls Thursday and Friday.
Late Friday, Massey spokesman Jeff Gillenwater told The Associated Press that he was not aware of DEP's order and could not comment on it.
Meanwhile, a lawyer for Coal River Mountain Watch on Friday filed a formal notice of intent to sue DEP over the silo approvals.
In the notice, Joe Lovett of the Appalachian Center for the Economy and the Environment said that his clients believe that both Massey silos are "within 300 feet of the school on land that was not part of the [original] permit boundary."
The permit boundaries, Lovett wrote, "have apparently been slowly and purposefully moving in the direction of Marsh Fork Elementary School."
"There is a reason why the law says that they aren't allowed to mine within 300 feet of a school, and Massey and the supposed 'protection' agency ignored it," said Judy Bonds, a leader of Coal River Mountain Watch.
Massey's Goals Coal operation is part of the Richmond, Va.-based company's Performance mining complex, along Marsh Fork near the Raleigh-Boone County line.
In December 1994, nonunion Massey took over the facility from Peabody Coal, which had operated for about a decade with United Mine Workers members.
The preparation plant, just north of Sundial along W.Va. 3, was originally built and operated by Armco Steel's mining division.
Marsh Fork Elementary School was originally built in 1968 and underwent major expansions in 1982 and 1995, according to the Raleigh County Board of Education.
In October 1975 and again in May 1977, Armco obtained a water pollution permit for the coal preparation facility from the state Division of Natural Resources.
So in 1982, the preparation plant and some related facilities were grandfathered in so they could obtain permits under the 1977 federal strip mining law.
But the company's original application from 1982 indicates that the permit boundary stopped short of the western corner where Massey now wants to operate the two silos.
DEP officials say that they could never approve a permit expansion into that area, because it is within 300 feet of Marsh Fork Elementary. Early in its operation of the site, Peabody in 1988 moved back a proposed coal stockpile area when residents objected that it was within 300 feet of a home.
The first hint of a permit boundary change appears on a 1997 map filed when Massey obtained its five-year permit renewal.
Then, during review of an unrelated permit change in July 1998, DEP employee Dave Dancy noted, "There are several errors in how the bonded area is shown on the proposal map."
Dancy did not explain the errors, and DEP permit files do not indicate what if anything was done at the time to fix them.
DEP officials said Friday that they were not aware of Dancy's memo.
But the maps related to that permit revision clearly show a change that pushed the permit boundary closer to Marsh Fork Elementary.
The Gazette-Mail raised questions about the permit boundary on July 8, and asked DEP spokeswoman Jessica Greathouse for an agency explanation.
As late as Tuesday, top DEP officials insisted that there had been no change — either approved or unapproved — in the permit boundary near the school.
"The agency is not aware of any boundary change," Porterfield said.
Asked about the issue that same day, DEP legal service chief Perry McDaniel said, "We're trying to track down a map."
Told about the map inconsistencies, Huffman said, "That's a pretty basic issue that is at the heart of this. That's a big deal."
During a meeting Friday afternoon, DEP officials said that the first boundary change near the school that they see in the permit file was on a map submitted in a more recent and unrelated permit change.
That map, submitted earlier this year, was meant to show parts of the permit boundary being deleted because they had also been covered by an adjacent Massey permit.
But the boundary also appears to have been altered — at least slightly — on a map submitted in 2003 when Massey obtained DEP approval for the first of the two Goals Coal silos.
"They don't appear to match up," Huffman said when he reviewed that map and compared it to a previous version during Friday's meeting.
DEP officials also provided copies of aerial photos that they say may indicate that the silos are built further east than they are shown on Massey's maps.
If this is true, DEP officials said, then it is possible that they may be within the company's original permit boundary, even though they appear on maps not to be.
"Clearly, we had an inaccurate map submitted," Huffman said. "[But] We're talking to you in the middle of our investigation.
"We're not in the position to say today whether either or both of the silos is on the original permit boundary."