A Boone County resident, Randy Hager, appealed the matter to the state Surface Mining Board.
In December 1997, the board ruled that the project did require a permit, but that DEP should have granted a permit for the road construction.
The day after the board ruled, OSM issued a 10-day notice, a regulatory vehicle that requires the state to explain to OSM why it did not take a particular enforcement action.
Under the 1977 Surface Mining Control and Reclamation Act, states have primary authority to regulate strip mining.
OSM is supposed to make sure states do a good job.
When OSM wasn't happy with DEP's response to the 10-day notice, OSM inspector Sam Turner issued a federal notice of violation. Federal NOVs are rare. In West Virginia, OSM issued only 14 NOVs in 1996. Figures for 1997 were not available on Friday.
On Wednesday, Independence Coal filed a lawsuit in U.S. District Court in Charleston.
OSM Director Kathy Karpan and OSM are named as defendants. Also named as defendants are the U.S. Department of Interior and Interior Secretary Bruce Babbitt. OSM is part of the interior department.
In the company's suit, Massey lawyer Bob McLusky cited a 1996 ruling in which Haden ruled that OSM can only intervene in such cases if the state does not show "good cause" for its action or inaction.
McLusky said that the Surface Mine Board's ruling justified DEP having a good cause to take no further action against Massey.
The Massey case has not been assigned to a judge.