The state Surface Mine Board on Friday postponed next week’s scheduled hearing in a case over a controversial Massey Energy coal-storage silo adjacent to a Raleigh County elementary school.
Board members delayed the hearing after the state Department of Environmental Protection sought a court order to block Massey lawyers from interviewing DEP mining chief Randy Huffman prior to the hearing.
In the case, Massey is challenging a DEP order that blocked construction of one of two new silos at its Goals Coal Co. subsidiary near Sundial.
Board members had been scheduled to consider the case Tuesday and Wednesday.
Fran Ryan, the board clerk, said board members would probably reschedule the hearing for their monthly meeting in either October or November.
On Thursday, DEP lawyer Perry McDaniel asked Kanawha Circuit Judge Duke Bloom to halt Massey’s planned Friday afternoon deposition of Huffman.
McDaniel argued that Huffman should not have to answer questions about his discussions with DEP staff or the governor’s office about the order blocking the Massey silo.
In late August, the mine board had denied McDaniel’s request to prohibit Massey from asking Huffman such questions.
McDaniel told Bloom in court papers that if Huffman were forced to answer, “executives at the DEP will be chilled in future communications.
“All discussions will be held as if totally in the public eye,” McDaniel wrote. “While some may argue that public agencies should be totally open, the result will be sterile communications.
“No idea or regulatory option that may create public concern or disagreement will even be discussed,” McDaniel wrote. “Totally public deliberations will create inaction, not more democracy.”
McDaniel also argued Massey lawyers were trying to use their appeal of the silo order — and their deposition of Huffman — to aid a civil rights lawsuit that company President Don Blankenship filed against Gov. Joe Manchin.
In his lawsuit, filed July 26, Blankenship alleged that Manchin violated his free speech by threatening to selectively enforce laws against him and his business interests. Blankenship alleged that Manchin was retaliating against Massey for Blankenship’s opposition to the governor’s pension bond proposal, which was voted down by state residents on June 25.
The lawsuit specifically cited the DEP’s decision to revoke the Goals Coal silo permit.
But just five days after the pension bond was defeated, DEP Secretary Stephanie Timmermeyer approved a permit for the silo.
The DEP later suspended the permit on July 15 and rescinded it on July 26. The agency took those actions only after The Charleston Gazette and a citizens group lawyer pointed out the silo was planned outside the company’s legal permit area.
The Goals Coal operation is next to Raleigh County’s Marsh Fork Elementary School, and the second silo is just 220 feet from the school’s property line.
Under state and federal law, no new mining operations are allowed within 300 feet of a school.
After the first silo was built and when the second one was proposed, coalfield residents and activists objected, saying the facilities were too close to the school.
DEP officials dismissed those complaints and said the silos were exempt from the 300-foot limit because they were within the permit boundary of an operation that existed prior to the passage of the federal Surface Mining Control and Reclamation Act on Aug. 3, 1977. But before they approved the silo permits, DEP officials did not go back and check original permit maps to make sure that was correct.
Maps submitted to the DEP, and a subsequent site survey funded by the agency, show that both silos are located outside the company’s legal permit area, DEP officials now say.
Bloom did not issue a final ruling on McDaniel’s request. The judge asked both sides to submit more detailed legal briefs on the issue.