State regulators may have taken the wrong enforcement action to stop construction of one of two Massey Energy coal storage silos near a Raleigh County elementary school, a citizens group said Tuesday.In a new notice of intent to sue, Coal River Mountain Watch said “it is still unclear under what legal authority” the state Department of Environmental Protection rescinded the silo permit.Instead, the group said, DEP Secretary Stephanie Timmermeyer should have cited Massey subsidiary Goals Coal Co. for mining outside its legal permit boundary.With a formal notice of violation, the DEP could have required Massey to rip up the silo foundation — and tear down an adjacent silo that is already built, the group said.Joe Lovett, lawyer for the Coal River group, wrote, “We fear that DEP does not understand well its powers and obligations” under the state strip-mining law.“Its rescission of the Goals authorization was the result of its desire to avoid the bad publicity associated with its failure to protect Marsh Fork Elementary from the Goals Coal operation and not the result of its commitment to protect the citizens of the state,” wrote Lovett, who is also director of the Appalachian Center for the Economy and the Environment in Lewisburg.“Indeed, even in a climate of heightened regulatory scrutiny, DEP did not discover on its own that Goals Coal had redrawn its permit boundaries,” Lovett wrote. “A vigorous agency that is committed to protecting the citizens of the state would not have overlooked such a fundamental flaw in a permitting action that was bound to be so controversial.”Randy Huffman, director of the DEP Division of Mining and Reclamation, said his agency could still cite Massey for mining outside its permit boundary.“We haven’t closed the door on that yet,” Huffman said Tuesday afternoon.
“We didn’t discuss any specific statutory language, but we felt like we had the authority to rescind a permit that we believed was wrongly issued,” he said.On Friday, the DEP agreed to suspend the permit until a full appeal is heard of its order that Goals Coal rip up the foundation of its second silo. An appeal hearing at the state Surface Mine Board is expected in mid-September.Two weeks ago, Huffman ordered Goals Coal to halt construction of the second of two new, 168-foot-tall coal storage silos at its preparation and loadout facility near Sundial.The Goals Coal operation is next to Marsh Fork Elementary, 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.
Originally, the DEP authorized both Massey silos because agency officials said they were part of the operation’s permit area before the 1977 federal strip mine law was passed.
But when they approved the silos in 2003 and in late June this year, DEP officials never compared the company’s application maps with the operation’s original permit boundary, shown on earlier company maps. The Goals Coal site, then owned by Armco Steel, obtained state water pollution permits in 1975 and 1977, and then was granted its first strip-mine permit in 1982, DEP records show.In mid-July, a Charleston Gazette investigation found that maps that Goals Coal filed with the DEP showed that one silo was built and the other was under construction on land that appeared to be added to the company’s legal mine boundary over the last eight years.Massey never specifically asked for the permit changes, and the DEP never approved them. Instead, the changes just showed up on maps that company engineers filed periodically with the DEP.In its appeal to the state Surface Mine Board, Massey argued that the DEP should not rely on old, imprecise maps to determine a formal permit boundary. Instead, the company argued, the agency should use a boundary marker found on the ground at the Goals operation.Under state rules, a mining operation’s permit area is defined as “the area of land indicated on the approved proposal map” submitted by a company as part of a permit application.State and federal mining laws require citizen groups to notify regulatory agencies before they file an actual lawsuit over lax strip-mine enforcement.
On July 15, Lovett filed an initial notice that alleged the DEP had wrongly approved permits for the two Goals Coal silos. On behalf of Coal River Mountain Watch, Lovett also intervened in Massey’s appeal of the DEP silo order.In his new legal notice, Lovett cited a section of state law that says mining companies “shall conduct surface coal mining and reclamation operations only on those lands that are specifically designated as the permit area on the maps submitted with the application and authorized for the term of the permit.”“The law is absolutely clear,” Lovett wrote. “The statute and its regulations focus on the permit boundaries on the maps submitted by the company.”Lovett said the DEP has ignored its legal duty to cite Massey for mining outside the permit boundary shown on company maps.The company should also be cited for submitting inaccurate maps and a variety of other related violations, Lovett alleged.“We hope that DEP will defend its rescission of the Goals Coal silo with more care than it has shown until now,” Lovett wrote. “Finally, we hope that DEP will come to recognize that its duty to direct Goals Coal to abate its violations and cease operating the first silo is just as mandatory as was its duty to abate the violations associated with the second silo.”