Massey Energy will appeal an order that blocked construction of one of two coal storage silos near a Raleigh County elementary school, company lawyers told state regulators Thursday.Massey lawyers also are expected to seek an emergency ruling from the West Virginia Surface Mine Board, state Department of Environmental Protection officials said.A hearing could be held as early as Aug. 8, according to board clerk Fran Ryan. Board members already have hearings scheduled on Aug. 9, and could be in town the previous afternoon to hear the silo case, Ryan said.Earlier this week, DEP officials gave Massey’s Goals Coal Co. until Aug. 8 to actually begin to rip up the silo foundation and reclaim the area.In a letter dated Wednesday and disclosed by the DEP on Thursday, agency deputy mining chief Keith Porterfield ordered Massey to submit a demolition and reclamation plan by Aug. 5.DEP spokeswoman Jessica Greathouse said agency lawyer Perry McDaniel was told by Massey lawyer Shane Harvey that the company will file and appeal.Harvey did not return a phone call Thursday.Greathouse said McDaniel turned down a request that the DEP agree to suspend its silo order until the mine board could hear a full appeal.She said the DEP would respond in writing to any Massey request that the board suspend the order. She also said the DEP plans to vigorously defend its order.On Tuesday, the DEP revoked its June 30 permit approval for the second of two new silos Goals Coal planned for its preparation and loadout facility near Sundial.
The DEP said an agency investigation had found that the silo was “permitted based on inaccurate maps and may be outside the legal permit boundary.”The Goals Coal operation is adjacent to Raleigh County’s Marsh Fork Elementary School, and the second silo is just 220 feet from the school property line.Under state and federal law, no new mining operations are allowed within 300 feet of a school.After the first silo was built and when the second one was proposed, coalfield residents and activists objected, saying the facilities were too close to the school.DEP officials dismissed those complaints, and said the silos were exempt from the 300-foot limit because they were within the permit boundary of an operation that existed before passage of the federal Surface Mining Control and Reclamation Act on Aug. 3, 1977. But before they approved both silo permits, DEP officials did not go back and check original permit maps to make sure that was correct.
This week, DEP officials learned from a survey that both silos are located outside the permit boundary marked on official coal company maps. The DEP has not taken any action about the first silo, which was approved in 2003.In a letter to the DEP on Monday, Massey argued that the silos are within the permit boundary, based on a boundary marker that agency inspectors found on the ground at the site.Massey says the marker, not its permit maps, is the correct way to judge where the legal operation boundary is located.The environmental group Coal River Mountain Watch has filed a formal notice of intent to sue the DEP to overturn permit approvals for both of the Massey silos.