State regulators on Friday suspended a permit for a new Massey Energy coal silo near a Raleigh County elementary school after being told that the project was outside the company's original permit area.
The state Department of Environmental Protection also hired a surveying crew to try to clear up major questions about the location of two Massey silos and the legal permit boundaries for the company's Goals Coal Co. operation.
"We need to establish exactly where [the silos] are and then compare that to the different permit boundary lines that we have and we're not to that point yet," said Randy Huffman, director of the DEP Division of Mining and Reclamation.
Over the last two weeks, DEP Secretary Stephanie Timmermeyer and Gov. Joe Manchin have been under fire for approving Massey's permits for the new silo and continued operation of a huge slurry impoundment just up the hollow from Marsh Fork Elementary School.
Under state and federal law, no new mining operations are allowed within 300 feet of a school.
In 2003 and again last month, Timmermeyer approved the Massey silos anyway. Agency officials said that the silos were exempt from the 300-foot limit because they were within the permit boundary of an operation that existed prior to passage of the federal Surface Mining Control and Reclamation Act on Aug. 3, 1977.
But Massey's Goals Coal Co. subsidiary built one silo and is constructing a second one on land that appears to have been added to permit maps over the last eight years, a Gazette-Mail investigation has found.
Massey never specifically asked for the permit changes, and DEP never approved them. Instead, the changes showed up on maps that company engineers filed periodically with DEP.
Agency officials did not notice the permit boundary changes until the newspaper pointed them out a week ago.
"We had no clue we had a boundary adjustment," said Keith Porterfield, a deputy director in DEP's regional mining office in Oak Hill. "We clearly made a mistake."
On Friday, Huffman ordered Goals Coal to immediately halt work on the second new, 168-foot-tall silo.
In a two-page order, Huffman suspended "Permit Revision 8," which DEP had approved on June 30 to allow the second silo.
Coal River Valley residents had opposed the permit revision, which allowed the silo to be built 220 feet from the property boundary of Marsh Fork Elementary School near Sundial.
In his Friday order, Huffman said that "the boundaries of this permit depicted on the proposal and drainage map for this revision are clearly inaccurate in an area that may [be] subject to the prohibitions" on new mining operations within 300 feet of a school.
"A comparison of the boundaries depicted in the area of the western end of your preparation plant site on the proposal and drainage map for Revision 8 to boundaries in the same area on maps submitted with previous permit transactions shows that the boundaries depicted on the Revision 8 map have been extended, without the approval of this agency," Huffman wrote.
Huffman added that "the area in which the boundaries have been extended may lie within 300 feet of Marsh Fork Elementary School."
Also, Huffman noted that Massey, in its permit application, "did not attempt to demonstrate that you are entitled to an exemption from the 300-foot prohibition in the application for Revision 8 or in any other permit applications in which unapproved, extended permit boundaries are depicted."
Various Massey officials did not return phone calls Thursday and Friday.
Late Friday, Massey spokesman Jeff Gillenwater told The Associated Press that he was not aware of DEP's order and could not comment on it.
Meanwhile, a lawyer for Coal River Mountain Watch on Friday filed a formal notice of intent to sue DEP over the silo approvals.
In the notice, Joe Lovett of the Appalachian Center for the Economy and the Environment said that his clients believe that both Massey silos are "within 300 feet of the school on land that was not part of the [original] permit boundary."
The permit boundaries, Lovett wrote, "have apparently been slowly and purposefully moving in the direction of Marsh Fork Elementary School."
"There is a reason why the law says that they aren't allowed to mine within 300 feet of a school, and Massey and the supposed 'protection' agency ignored it," said Judy Bonds, a leader of Coal River Mountain Watch.
Massey's Goals Coal operation is part of the Richmond, Va.-based company's Performance mining complex, along Marsh Fork near the Raleigh-Boone County line.
In December 1994, nonunion Massey took over the facility from Peabody Coal, which had operated for about a decade with United Mine Workers members.