This article originally provided by The Associated Press

November 8, 2004

Massey subsidiary, state DEP settle Supreme Court case

By MARTHA BRYSON HODEL
Associated Press Writer

CHARLESTON, W.Va. -- A subsidiary of Massey Energy Co. and the state Department of Environmental Protection have agreed to settle out of court a lawsuit filed by the agency alleging the coal company had a pattern of environmental violations.

Although the agreement has not yet been signed, Richmond, Va.-based Massey subsidiary Independence Coal Co. has already met one of the settlement's terms: a seven-day closure of its Liberty preparation plant, said Bob McLusky, a Charleston lawyer representing the coal company.

The Liberty prep plant ceased operations from Saturday, Oct. 30, until Friday, McLusky said.

Also as part of the settlement, Independence is required to assess sediment damage to the Little Coal River, to identify parts of the stream where restoration is possible and then design measures to remove existing sediment and prevent future deposits.

A spokesman for DEP said the agency agreed to settle out of court to avoid prolonged litigation that would result if the Supreme Court sent the case back to circuit court, as it had done earlier with a similar case.

"Because we were looking at another year, or two years, of litigation over this, we decided that a suspension plus the assessment project was an appropriate sanction," said Perry McDaniel, head of DEP's legal department.

The settlement agreement became public Monday when the state Supreme Court agreed to postpone indefinitely hearing the initial presentation of the case, originally set for Tuesday morning.

The postponement will allow the parties to conclude their settlement talks, according to documents filed with the state Supreme Court.

In late 2001, at the direction of Gov. Bob Wise, DEP began an enforcement crackdown after repeated blackwater spills at Independence Coal Co. and other Massey operations.

The crackdown was DEP's first significant use in years of rules that allow the agency to close mining operations with repeated violations. Under the 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 permits to mine and can be subjected to a nationwide mining permit block.

Initially, the state Surface Mine Board proposed a 12-day suspension of operations at the Liberty plant. Massey appealed the ruling to Boone County Circuit Court, which overturned the SMB's actions. DEP appealed the case to the state Supreme Court. Get home delivery of the Daily Press for less than $3.33 a week.