This article originally provided by The Charleston Gazette

March 16, 2004

W.Va.'s high court upholds crackdown on Massey for spills

 By Ken Ward Jr.
STAFF WRITER

The state Supreme Court on Monday reinstated the Wise administration's effort to crack down on Massey Energy for repeated blackwater spills and other environmental violations.

Justices overturned a Raleigh County judge's ruling that the state Department of Environmental Protection violated Massey subsidiary Marfork Coal Co.'s due process rights.

In a 4-1 decision, the court said that the DEP mining director could legally preside over an agency enforcement hearing.

Writing for the court, Justice Joseph Albright said state law clearly allows members of an agency - including the director - to serve as hearing officers in administrative proceedings.

Chief Justice Elliott Maynard dissented. DEP lawyer Tom Clarke had asked the court to reinstate a DEP order to close a Marfork coal-waste impoundment in Raleigh County for repeated reclamation and water pollution violations.

In January 2002, Matthew Crum, then director of DEP's mining division, suspended the permit for 14 days.

DEP inspectors had cited the company for seven violations in 12 months. The case was the first in a series of similar actions against Massey operations to reach the state Supreme Court.

In late 2001, the Wise administration launched an enforcement crackdown after repeated blackwater spills and other problems at Massey mines, preparation plants and slurry impoundments.

The crackdown was the first significant use by DEP in years of rules that allow the agency to shut down mining operations with repeat violations.

Under these rules, mining companies are subject to fines for individual violations.

After two similar citations in a 12-month period, DEP can close the mine for three days or more.

Ultimately, repeat offenders can lose their permit and be subject to a nationwide mining permit block.

Before permits are suspended, coal companies may ask for "show case" hearings in which they argue that their mines should not be closed. Bob McLusky, a lawyer for various Massey subsidiaries, argued that it was wrong for Crum, who also supervised mining inspectors, to serve as a judge in the DEP show-cause hearings.

In the Marfork case, the state Surface Mine Board agreed. Board members found that Crum's involvement "tainted" the show-cause hearing.

They reduced the suspension period from 14 days to nine days. Later, Raleigh Circuit Judge Harry Kirkpatrick threw out the suspension altogether.

In his ruling, Kirkpatrick cited a DEP news release in which Crum said that Marfork's violations were "serious" and that the show-cause method of enforcement "has a much greater potential for getting an operator's attention and compelling compliance."

In his 28-page opinion, Albright said the news release was simply reciting "pre-existing, prior violations of Marfork" and announcing DEP's "intention to rely upon the law to address the continuing pattern of those offenses."

The court sent the case back to Kirkpatrick for further review.

In its appeal to circuit court, Marfork argues that the citations at issue do not constitute a "pattern of [unwarranted] violations" under state and federal regulations.

"The record is absolutely devoid of any evidence produced by DEP that Marfork could have done anything more to prevent the violations that occurred," Marfork argued in its circuit court briefs.

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