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This article originally provided by The Charleston Gazette
August 15, 2002
Board reduces Massey suspensions
By Ken Ward Jr.
STAFF WRITER
The state Surface Mine Board on Wednesday overturned permit suspensions for a Massey Energy deep mine and waste impoundment in Boone County.
Board members upheld 12 days of a 16-day Department of Environmental Protection order for a related Massey coal preparation plant.
But in an unusual move, the board also proposed that DEP give Massey subsidiary Independence Coal a way around the preparation plant suspension.
The board said if DEP would agree, Massey could cut or eliminate the suspension by paying a $50,000 fine for each day the closure is reduced.
Board Chairman Tom Michael said the board would delay its suspension order for 30 days, to give both sides time to negotiate a deal.
Michael said board members hoped to avoid closing Massey operations, a move he said would hurt coal miners who would lose work during the shutdown.
The deal, however, could also draw scrutiny from the federal Office of Surface Mining.
When the Underwood administration made a similar deal with Massey subsidiary Elk Run Coal Co. in 2000, OSM said the state rules didn’t specifically allow the arrangement.
The board’s Wednesday ruling on three Independence permits is the latest in a series of high-profile enforcement actions by DEP against Massey subsidiaries in the state’s southern coalfields.
In August 2001, the Wise administration announced a crackdown on Massey because of repeated blackwater spills and other environmental violations.
Earlier this year, the mine board upheld a 30-day suspension DEP ordered for Massey subsidiary Green Valley Coal.
The board also threw out a three-day suspension for a different Green Valley operation, and reduced from 14 days to nine days a suspension for Massey’s Marfork Coal Co. in Raleigh County.
DEP has also scheduled enforcement hearings for alleged “pattern of violations” orders on Massey’s Peerless Eagle and Omar Mining subsidiaries.
Under state and federal mining rules, DEP may suspend or revoke permits for coal operators that receive two or more citations in any 12-month period. Under previous administrations OSM has criticized DEP for not properly enforcing those rules.
In the Independence Coal case heard Wednesday, DEP had ordered permit suspensions totaling 35 days for three permits covering parts of the company’s mining complex on Robinson Run, southeast of Madison in Boone County.
The suspensions, ordered in April by DEP mining director Matt Crum, were:
“I’m pretty disappointed with the ruling, particularly on the Justice and Jake Gore facilities,” Crum said of the board’s Wednesday action. “We believe there was a pattern of violations, and that the suspensions were appropriate.”
During Wednesday morning’s hearing, Massey lawyer Robert McLusky said Independence had cleaned up its act since the incidents a year ago.
“This was not a situation where there was a chronic problem,” McLusky told board members.
Independence Coal President Mark Clemens testified that closing the Liberty plant would cost the company $25,000 per day in profits.
McLusky argued that the mine board should throw out the suspensions for the Justice mine and Jake Gore impoundment.
As for the preparation plant, McLusky said, the board should suspend its permit for no longer than six days.
McLusky also urged board members to let Independence pay a $25,000 per day of suspension fine, rather than actually being closed down.
DEP lawyer Perry McDaniel noted that four of the 14 enforcement actions at Independence were “imminent harm cessation orders,” the most serious citations that the agency issues.
“Not only did they violate the law, they were way out of line with the rest of the industry,” McDaniel said.
In cross-examining DEP supervising inspector Joe Hager, McLusky said, “You are obviously uncomfortable with this suspension.”
“I didn’t say that,” Hager replied. “In this case, I would say a suspension is warranted.”
McLusky asked, “But you’re uncomfortable with the length of this suspension?”
“Not necessarily,” Hager replied.
To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.
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