This article originally provided by The Charleston Gazette

October 20, 2002

Massey subsidiary has history of problems

Repeated violations date back to purchase of Logan sites in '98

By Ken Ward Jr.
STAFF WRITER

Two weeks ago, Rum Creek in Logan County ran black with coal slurry.

On Oct. 8, coal waste and water poured from a cracked pipe at Massey Energy subsidiary Bandmill Coal Co.’s slurry disposal site near Dehue.

Blackwater flowed downstream into the Guyandotte River.

It wasn’t the first time.

In August 2001, Department of Environmental Protection inspectors cited Bandmill for a blackwater spill into Rum Creek.

Five months before that, in March 2001, DEP inspectors found a muddy discharge into Rum Creek. They cited Bandmill for not properly maintaining its haul road.

This year, Bandmill has been cited repeatedly for environmental problems on seven permits it holds in Logan County.

Repeated violations at the operations also date back to Massey’s purchase of the sites from Pittston Coal in 1998, according to DEP records.

Last month, DEP officials for the first time moved to suspend or revoke one of Bandmill’s permits for committing what state law calls a pattern of violations.

On Sept. 24, DEP gave Bandmill 30 days to ask for a hearing where company lawyers could try to prove that one of its strip-mine permits should not be revoked.

In that case, DEP officials cited five separate violations during a 10-month period, between September 2001 and July 2002, at an idle mountaintop removal mine near Lyburn.

Under state regulations, DEP officials can suspend or revoke a mining permit when a company is cited for two or more violations during a 12- month period.

Permit revocation is the most serious penalty a coal company can face. If a company has a permit revoked in West Virginia, it is blocked from receiving any new permits anywhere in the country.

In a February 2001 report, the federal Office of Surface Mining said that DEP routinely ignored patterns of violations by coal operators. DEP Secretary Michael Callaghan, who took office at about the same time the report was issued, has promised tougher enforcement of those rules.

Over the last year, DEP mining director Matt Crum has suspended permits of three Massey subsidiaries, and started suspension actions against several other companies.

Recently, Crum has required supervisors in DEP field offices to examine a monthly computer report to look for potential patterns of violation.

Under previous administrations, there was no clear requirement for such a review.

Last week, Crum said that he has nearly finished new guidance for inspectors and their supervisors about what constitutes a pattern of violations. “It’s not as easy sometimes as you might think,” Crum said. “That’s why we need some guidance.”

State rules allow DEP to suspend or revoke a permit whenever there are two or more violations in a 12-month period. If there are three or more violations during a 12-month period, DEP is required to review the company’s record, and consider whether the permit should be suspended or revoked.

In making such decisions, DEP is supposed to consider:

The number of previous violations cited on more than one occasion for the same or related mining rules. The number of previous violations, cited on more than one occasion, for different mining rules. The extent to which the violations were “isolated departures from lawful conduct.” In the case of Bandmill, the Lyburn strip mine has had two or more violations in a 12-month period several times.

This year alone, Crum could have moved to shut down the mine in May, after its second violation in 2002.

Then, after a heavy rain on July 19, parts of an unreclaimed valley fill at the operation eroded. Water and debris poured into a sediment pond at the bottom of the fill. The pond overflowed, sending floodwaters and debris down the hollow toward the community of Lyburn. More than a dozen homes were damaged.

DEP cited the company, and issued the order giving Massey a chance to argue why the Lyburn permit should not be suspended or revoked.

Also, DEP proposed to fine Bandmill $114,000 for a citation related to the flooding.

At the same time, however, OSM investigators said that DEP allowed Bandmill to go too long without reclaiming the Lyburn valley fill.

North of Lyburn, at the Bandmill Dehue operations, the company has so far escaped being accused of a pattern of violations.

In the Oct. 8 spill, more than 100,000 gallons of slurry poured into Rum Creek. The spill occurred at an operation where Bandmill pipes slurry from its preparation plant into an abandoned underground mine for disposal.

Joe Hager, a DEP supervising inspector in Logan, said that the leak occurred in one of two underground pipes that run to the underground mine. A larger pipe carries slurry and a smaller one carries water that is used to dilute the slurry before it is injected underground, Hager said.

Bandmill representatives told DEP officials that a company employee accidentally flipped a switch that pumped slurry into the smaller pipe. The pipe was too small to handle the pressure, and a crack formed, Hager said.

“The dirt was blown off the top of it, and it sprayed about 50 feet up the hill, and then flowed down the hill into the creek,” said Bill Simmons, another DEP supervising inspector.

In a prepared statement, Mas-sey spokesman Jeff Gillenwater said that, “Bandmill regrets that human error has led to this slurry leak.

“We have taken action to eliminate the possibility of this situation recurring,” Gillenwater said. “We apologize to the residents of Rum Creek and the surrounding area.

“West Virginia is home to over 75 percent of Massey Energy’s members, [and] we want to assure all interested persons that Massey Energy is focused on and committed to environmental stewardship.”

DEP cited Bandmill for the spill. The citation was only the second issued to that particular Bandmill permit so far this year.

But DEP records show that part of the refuse disposal facility is covered by another permit number that has been cited repeatedly for environmental problems. The other refuse permit has been cited three times this year for environmental violations. It was also the permit where DEP inspectors cited blackwater and muddy water in August and March 2001, according to agency records.

On Friday, Hager said that DEP officials in Nitro are reviewing the Logan field office’s recommendation to move to suspend or revoke that Bandmill permit as well. “It’s in the pipeline,” Hager said.

To contact staff writer Ken Ward Jr., use e-mail or call 348- 1702.