This article originally provided by The Daily Mail

January 14, 2003

Coal giant wants end to punishment

Reimbursements, fines, shut downs hurt, Massey says

Brian Bowling <brianbowling@dailymail.com>
Daily Mail staff

While a state agency contends a hearing examiner should suspend one of Omar Mining Co.'s permits because it repeatedly polluted Robinson Creek during the summer of 2001, the company argued that it has been punished enough.

DEP officials testified Monday that the Massey Energy Co. subsidiary had inadequate drainage controls, failed to maintain the drainage controls it did have and violated the conditions of its permit by pumping water to a pond not approved to receive the water.

As a consequence, the Chesterfield preparation plant near Uneeda discharged blackwater or coal sediment at least four times between May 2001 and August 2001 and once dumped enough caustic chemicals to kill fish for several miles in Robinson Creek and Pond Fork down to Madison.

Gary Sanders, the DEP inspector who investigated the August 2001 fish kill, said he followed the trail of dead fish and minnows to the preparation plant's discharge point. By that time, it was obvious the plant had dumped something into the creek, he said.

"Robinson Creek was stained white for several hundred feet," he said.

The caustic chemical came from a treatment system designed to remove heavy metals from water being discharged from the coal cleaning facility.

DEP lawyer Perry McDaniel argued that Omar should have updated the 1970s drainage controls at the plant and kept control of its chemical treatment system.

Charleston lawyer Bob McLusky, representing the Massey Energy Co. subsidiary, said Omar had no reason to believe the drainage controls were a problem until the violations started in May 2001.

The drainage controls predated the federal 1977 Surface Mining Control and Reclamation Act and, because of a grandfather provision, didn't have to be updated. McLusky said Omar had no reason to believe the controls were inadequate because the plant hadn't been cited for drainage problems before May 2001.

Sam Kitts, who now works for Coastal Coal of West Virginia, was president of Omar during the summer of 2001. He testified that the company started plans to improve the drainage controls after the May rainfall showed that they were inadequate.

The company spent about $500,000 on the improvements, which were approved by the DEP, he said.

"I don't know of anything we could have done differently," Kitts said.

As for the fish kill, Kitts said the company was never able to determine how so much caustic chemical ended up being dumped into the creek.

The company paid the DEP a $25,000 fine and reimbursed the state Division of Natural Resources for the cost of restocking the area. The company has also pled guilty to violating the U.S. Clean Water Act and faces up to $200,000 in fines when it is sentenced in February.

McLusky said the company also lost considerable money when the preparation plant was shut down for six days during that summer to correct the violations.

"Our position is that we've been punished enough," he said.

Retired Cabell County Circuit Judge L.D. Egnor, the DEP's hearing examiner for mining cases, has 60 days to issue a decision in the case.