DEP criticized over Massey silo
Permit files for Massey Energy's Goals Coal preparation plant contain dozens of detailed topographic maps. There are color drawings, engineering diagrams and lengthy technical data sheets.
These documents once filled thick three-ring binders or were stuffed into accordion-style folders. Today, they are neatly stored on computer discs.
Files for the Goals Coal site near Sundial date back to 1982, when the operation obtained its first permit under the federal strip mine law.
But when Department of Environmental Protection officials approved two new Massey coal silos, they compared the company's plans only to the most recent site map submitted by a company engineer.
"We don't go back to earlier versions," said Randy Huffman, director of the DEP's Division of Mining and Reclamation.
If they had, the DEP might not have approved construction of two 168-foot-tall coal silos less than 300 feet from Marsh Fork Elementary School, agency officials now say.
Earlier maps submitted to the DEP by Massey indicate that the silos are not within the original, 122-acre permit boundary. Instead, the silos appear to be located on land that was added to the permit boundary over an eight-year period, without the DEP approving or even noticing the changes.
The boundary first appeared adjusted in a map submitted by Massey in 1997. Further changes, pushing it closer to the school, showed up on maps filed with the DEP by Massey in 1998 and 2003 and in two different maps earlier this year.
In all, the permit boundary line appears to have moved more than 125 feet west, toward the Raleigh County school, maps show.
"This area has gotten bigger," Huffman said Friday, pointing to large permit maps spread out on a conference table at the DEP's Charleston headquarters. "We don't have an explanation for that yet."
Today, one of Massey's silos already towers over Marsh Fork Elementary, just 220 feet from the school's property line. It has a 70-foot diameter, is about as tall as the Charleston Marriott and holds up to 10,000 tons of coal. The foundation for the second silo is complete, having been built before the DEP issued permits required for the project.
Under federal and state mining laws, no new surface coal mining operations are allowed within 300 feet of a school. Operations that existed or had approved permits prior to passage of the federal Surface Mining Control and Reclamation Act on Aug. 3, 1977, are exempt from the prohibition.
On Friday, DEP officials ordered Massey to immediately halt work on its second silo "pending a determination by this agency as to where the [silo] lies in relation to the approved permit boundaries."
The DEP hired a survey crew to help try to sort out the issue. Preliminary results might be ready later this week.
Huffman said DEP inspectors interviewed Paul McCombs, the Massey engineer who certified the company's maps, on Thursday, but got no answers about the permit boundary changes.
"We're not at the point of knowing whether anything was done intentionally," Huffman said.
McCombs did not return a phone call last week. Other officials from Massey have not returned repeated phone calls. A company spokesman told The Associated Press that he had not seen the DEP's order and could not comment on it.
The DEP took its actions Friday as the Saturday Gazette-Mail was preparing to publish a story based on a review of dozens of maps and other permit documents. As part of its review, the newspaper had several maps from various years converted to color transparencies so changes in the permit boundary over time could be more easily compared.
"Once again, the coalfield residents were left to fend for their communities," said Bo Webb, a spokesman for the group Coal River Mountain Watch. "We were abandoned by the DEP long ago."
In a formal notice of intent to sue, Joe Lovett, a lawyer for the group, alleged that the silo approval "is part of a pattern and practice" by DEP Secretary Stephanie Timmermeyer of "promoting the interests of coal operators at the expense of the state's citizens and natural environment.
"Secretary Timmermeyer jeopardized the public health, safety and welfare, by unlawfully subjecting the children of Marsh Fork Elementary School to increased levels of coal dust, coal processing chemicals, noise and increased traffic in very close proximity to the school building," wrote Lovett, who runs the Appalachian Center for the Economy and the Environment.
Lovett noted that residents and activists repeatedly complained about the silo and other parts of the Goals Coal operation.
"If the Secretary will not take citizen concerns seriously in such a highly charged situation, when will she?" Lovett wrote. "The Secretary's unwillingness to look carefully at an operation that will be built so close to an elementary school, when Congress intended to protect children in just such situations, is indicative of her general disregard of community interests when those interests conflict with the desires of powerful coal operators."
More than a year ago, Webb complained to the DEP that the first of Massey's two silos — built in 2003 — was within the 300-foot buffer zone around Marsh Fork Elementary.
In a May 14, 2004, investigation report, DEP inspector Manuel Seijo wrote, "This site has been permitted since 1982 and was operated prior to this date. This is why [the] permit is close to [the] school."
Later that year, Webb called the DEP's Division of Air Quality with a similar complaint and visited then-Gov. Bob Wise's mobile office with the same objection.
In a Sept. 27, 2004, response, Timmermeyer, a Wise appointee who kept her post after Gov. Joe Manchin took office, told Webb that the Goals plant "has been in operation since prior to 1977."
Earlier this year, members of Coal River Mountain Watch and the Ohio Valley Environmental Coalition made a surprise visit to the DEP's Kanawha City office and demanded to meet with Timmermeyer.
Organizers carried anti-mountaintop removal signs and posters critical of Timmermeyer and the DEP. Among other complaints, the citizens objected to the location of the silos so close to Marsh Fork Elementary. Timmermeyer promised to investigate.
In a Feb. 28 letter to the two groups, Timmermeyer recited the permit numbers and approval dates for the Massey operation, and told the citizens that she was "disappointed ... in the deceitful and dishonest method in which you set up this meeting.
"Further, I was insulted by the personal attacks including some sign messages and accusations by your members during the meeting," she wrote.
"In the future, if you expect to meet with me concerning an environmental issue, I welcome you to schedule a meeting, as do the other citizens of this state, and to act in a professional manner."
Last week, Massey Energy sent its own letter to Coal River Mountain Watch.
Massey demanded that the organization "immediately provide ... any information you have to support the claims that you have made regarding the safety of the [Goals Coal] facility."
Taking it to the steps
On June 21, Webb, Judy Bonds and other Coal River activists met with Manchin about the Goals Coal operation. The governor promised to look into their complaints.
Nine days later, the DEP approved permits for the new silo and for continued operation of the slurry impoundment.
"The proposed coal silo is to be constructed on previously bonded area of the permit," DEP permit supervisor Ed Wojtowicz wrote in a memo recommending the approval.
On July 5, Ed Wiley of Rock Creek, whose granddaughter attends Marsh Fork Elementary, took a seat on the state Capitol steps. Wiley said he would not leave until the governor promised to do something about the Massey operation.
Manchin sent his in-house lawyer, Carte Goodwin, out to talk to Wiley, and Wiley agreed to meet with the governor in his office.
Eventually, Manchin and Wiley appeared together in front of assembled television cameras. The governor promised to try to relocate Marsh Fork Elementary.
Manchin insisted that he did not want to second-guess decisions by the DEP, but also pledged to find out if the agency had done its job properly.
As late as last Tuesday, Goodwin said, "The governor trusts DEP and trusts the experts." By Friday, though, Goodwin was saying the DEP clearly had made a mistake.
"There has been an oversight, and the permit was approved when it probably should not have been," Goodwin said.
Goodwin said Friday's actions by the DEP were "good government," and that the governor could rightly take credit for them.
"An agency made its decision," Goodwin said. "Concerns were raised by the residents, and the governor asked the agency to go back and make sure they were right. They found a discrepancy, and they are correcting it."
A second look by the DEP
During a meeting Friday, DEP officials said their Manchin-ordered re-examination of the Goals permit did not include a look at the original permit maps. Instead, DEP staffers were focused on looking again at residents' concerns that dust and chemicals from the Massey facility were making students sick.
Keith Porterfield, a deputy director at the DEP's mining field office in Oak Hill, said his staff never thought to go back and compare the silo maps to the original permit maps.
"We do our best to minimize these things," Porterfield said. "But people are going to make mistakes.
"DEP is made up of human beings," he said. "And as long as we are on this side of eternity, no matter how honest and how sincere people are, they are just going to make mistakes."
How could it happen?
How could the DEP miss the fact that the Massey permit boundary had crept closer to an elementary school?
First of all, the technology for making permit maps has changed dramatically. This makes it hard to compare earlier drawings — especially 23-year-old ones — to newer, computer-generated diagrams.
Second, the DEP does not require actual surveys of permit boundaries when it issues permits or permit changes.
Third, DEP staffers do not prepare mine permit maps. Instead, they rely on maps that companies submit. Each map must be signed by a licensed engineer. Engineers also stamp maps with their seal, swearing that the permit boundaries and other details are accurate.
Finally, DEP permit reviewers do not go back and compare every proposed boundary change to original drawings in older permit files. Instead, they look to the most recent certified maps.
On Friday, Huffman ended that. He ordered two changes he said should keep such a problem from occurring again:
Every permit revision that includes activity within 300 feet of an existing permit boundary "must be thoroughly investigated to ensure no boundary encroachments will take place," Huffman said in a memo to permit supervisors. This investigation must "include a review of all previous maps of record to ensure no incidental boundary changes have occurred," Huffman said.
Whenever a proposed permit activity falls within 300 feet of a protected area such as a school, "a written statement must be made indicating all activity is contained within the existing permit boundaries" from the original permit.
"Due to the fact that permit boundaries are not always exact in the same manner as property boundaries, it is possible for a proposed activity close to an existing permit boundary to extend beyond the boundary, depending upon where the boundary is interpreted to be located," Huffman wrote. "It is also possible for subsequent permit maps to have unintentional but unapproved boundary changes that could impact future permit revisions, especially in cases where the proposed activity will be close to the boundary."
Huffman said he hopes these changes will begin to satisfy agency critics.
"We determined that we made a mistake on a small area of a permit boundary, but we're headed in the direction of correcting that mistake," Huffman said. "I would hope that would develop some trust that we want to do the right thing."