Coal River Mountain as seen from nearby Kayford Mountain. Photo courtesy of Coal River Mountain Watch.

Massey Energy has scored another victory in the battle over whether Coal River Mountain should be blown up as part of a mountaintop removal operation, or turned into a wind energy facility.

The state Surface Mine Board has issued a ruling in favor of the company and the state Department of Environmental Protection on a key permit revision for Massey subsidiary Marfork Coal Co.’s Bee Tree Surface Mine.

I’ve posted the ruling, entered on March 10, but not made public until today, here. (By way of explanation, it seems the board sent the ruling to the parties via regular mail last Wednesday, it took a couple days to get there, and lawyers for citizen groups provided me with a copy early this afternoon).

Lawyer Joe Lovett of the Appalachian Center for the Economy and the Environment said his clients are considering an appeal of the board’s ruling.

“We’re disappointed with the board, and I think it’s not taking its responsibility to protect communities and carefully review this permits seriously,” Lovett told me this afternoon.

The Coal River mine site has been involved in the growing peaceful civil disobedience by coalfield residents and other activists who oppose mountaintop removal.

A majority of board members upheld the DEP’s decision to approve the permit change without requiring Massey to recalculate the amounts of waste rock and dirt to be sure the revised permit complied with the state’s Approximate Original Contour, or AOC, formula and regulations.

Coal River Mountain Watch and the Sierra Club appealed the DEP permit approval as part of a campaign aimed at saving the area from strip mining, and instead having it be turned into the Coal River Wind Project.

The permit appeal itself had little to do with the wind project.  Instead, citizen groups appealed a permit change needed by Massey before it can begin mining. The change eliminated one valley fill, and allowed Massey to used waste rock and dirt from it to reclaim an existing highwall on the property.

Lovett said the permit change appeared aimed at allowing Marfork to begin mining the Bee Tree site before it obtains a federal Clean Water Act permit needed if it wanted to dump that waste in an on-site valley fill. Lovett and Peter Morgan, a Sierra Club lawyer, argued in their appeal that Marfork did not properly revise its mining and reclamation plan to meet the state’s AOC formula and minimize environmental damage.

In its ruling, the board cited testimony from a Feb. 10 hearing that the DEP-approved change increased the quantity of waste going into another valley fill from 22.9 million cubic yards to 26.3 million cubic yards. Board members concluded the change “does not create a substantial difference large enough to require additional evaluations or calculations of the proposed mining activities beyond the calculations made when the [original] permit was issued.”

Board members concluded “that the mining phases and reclamation plan was lawful and reasonable and commonly done by the industry and applicants.” Board members also said “the mining plan anticipates contingencies and the need and ability to seek a permit revision if necessary and that is a common and legal permitting practice.”

Board Chairman Tom Michael cast a dissenting vote, saying “it was wrong of WVDEP not to require calculations for the additional backfill to be placed on top of the fills to seek further reduction in the size and impacts of the fills.”

The board’s ruling also said that “although some of the sediment control structures will not be in place prior to the initiation of mining activities, the board finds the drainage and sediment controls comply with the performance standards and that there are adequate provisions in the permit …” Oddly, though, the board added there is also “the opportunity for Marfork to seek future permit revisions if necessary, to prevent hydrologic balance within the permit and adjacent areas.”