Breaking news: Court OKs Massey silo near school

June 9, 2009 by Ken Ward Jr.


Massey Energy got one coal silo near Marsh Fork Elementary School built before activists and the press noticed the silo site wasn’t within the permit boundary shown in company maps. Photo by Britney Williams, courtesy Coal River Mountain Watch.

The West Virginia Supreme Court just issued a long-awaiting opinion that, in effect, says that Massey Energy’s plans for another coal silo adjacent to Marsh Fork Elementary School in Raleigh County is OK.

Justices unanimously affirmed an earlier ruling by Kanawha Circuit Judge Duke Bloom, who previously upheld a decision by the state Department of Environmental Protection to authorize the silo construction.

At issue in the case was whether permit maps approved by DEP or permit markers located on the ground at a mine site are the official, legal boundary of a surface mining permit.

Writing for the court, Justice Menis Ketchum made it abundantly clear that the court was ruling only on that very narrow legal issue:

This case involves the interpretation of several statutes. The sterile, narrow legal question presented by CRMW’s appeal is simple: under the West Virginia Surface Coal Mining and Reclamation Act and the federal Surface Mining Control and Reclamation Act,  is the “permit area” of a surface mine operation defined solely by the maps submitted with the original permit application? Or may the permit area be defined by reference to the maps and markers buried or installed on the mining site?

 This case does not involve the public policy effects of these Acts. We are aware of the extensive public concern about appellee Goals Coal’s decision to construct a second coal silo less than a football field’s length from an elementary school. The DEP has determined it must allow the construction to occur in deference to statutory law. The wisdom or desirability of these decisions are outside the province of the judicial branch.

Our law is clear that:

 This Court does not sit as a superlegislature, commissioned to pass upon the political, social, economic or scientific merits of statutes pertaining to proper subjects of legislation. It is the duty of the legislature to consider facts, establish policy, and embody that policy in legislation. It is the duty of this court to enforce legislation unless it runs afoul of the State or Federal Constitutions.

On that narrow — but very significant — legal issue, Ketchum sided with lawyers for DEP and Massey, who argued that the key is where the permit markers are on the mine site:

According to the provisions of W.Va. Code, 22-3-3(q) and 30 U.S.C. § 1291(17), a surface mine “permit area” is the area that is indicated on the approved map submitted with the permit application and is identifiable by appropriate markers on the mine site.

For the record, Chief Justice Brent Benjamin recused himself from this particular Massey case. He was replaced by Marion County Circuit Judge Fred Fox.

The case has been going on for about four years, since the Gazette revealed in July 2005 that DEP had approved a permit for Massey to build the silo on a spot that was outside the permit area shown on the site’s official maps.

For more background, see previous posts here, here and here,  or read earlier Gazette stories, here, here, here, and here. The Supreme Court ruling is posted here, and the briefs are available here.

19 Responses to “Breaking news: Court OKs Massey silo near school”

  1. […] This post was Twitted by jwrandolph – […]

  2. Josh Thomas says:

    One more for Massey!!! This is a corrupt organization,and the sooner that everyone sees that the better,but it appears that no one really cares! The destruction that these surface mines do to the enviroment will be evident alot longer than Massey Energy will be “boosting our economy”!!! I can promise you that if this silo were to be built beside Holz Elementary in South Hils,then it we wouldn’t have waited 4 hours for a judgement,and definately not fours years! Children deserve to be safe at school no matter where their school is located,or how wealthy their famiies are!

  3. eastwood78 says:

    Massey wins again, but naturally that was expected. To those poor children that now will have to live under the threat of two silos now, which doubles the coal dust, chemicals that they must face again until the Lord takes a hand and sends lightning to take care of the silos. The State Supreme court judges should be made to hold court in the school house and when the sludge dam breaks it will send their dirty a—- down coal river to Charleston, and then maybe they will see the light. God bless and watch over all the little children at Marsh Fork Elementary School. Maybe Obama will solve the problem for the people on Coal River when he shuts down ALL Dirty Mountain Top Mining. Keep the deep mines, but away with MTR.

  4. This is a sad day for our country and for Massey Energy.

    Our children will shake their heads and wonder WHAT were we thinking?

  5. Art N. Livestock says:

    This weekend I’m going to move my fence and give myself a bigger backyard. ‘Cause it’s not what’s shown on the county assessor plats, it’s where the posts are.

  6. Austin Hall says:

    I am deeply saddened by the WV Supreme Courts decision to allow another coal silo to be built adjacent to Marsh Fork Elementary School. It is difficult to even type that previous sentence, it is so obviously wrong it is hard to grasp.

    I learned of the decision today in the halls of the North Carolina General Assembly, where I have been lobbying in support of a bill that would ban the import of mountaintop removal mined coal into our state. I expressed my concern and disappointment to several members of the legislature. Regardless of party affiliation the reaction was universal, one of complete disbelief that children would be exposed to such an obvious health and safety risk. The world outside of the coalfields is paying attention to this decision. Safety for children is a concept that knows no political or regional boundaries.

    My thoughts tonight are with the children who attend Marsh Fork Elementary School. It is my deepest hope that their tenuous safety can be maintained until a safe, local community supported school can be built as a replacement.

  7. blue canary says:

    Wait, but coal is good for West Virginia! So that must mean that coal dust is also good for us or Massey wouldn’t be making school children breathe it! Maybe we should go to Charleston and start blowing coal dust through the court and state house so that the politicians and judges can also get all the good healthy benefits of coal dust too! We don’t want to be stingy.

  8. Dewey Sikh Justice says:

    Ketchum was copping out on this issue –totally, plain, and simple. Justices worthy of the name should embrace the fact that legislatures periodically fail to construe the facts, and to codify policy, in the furtherance of justice. The justice system exists for the purpose of stepping in where legislatures are bound to fail from time to time, and ameliorating the effects of those failures.

  9. Bo Webb says:

    Question: Why does Gov. Joe Manchin not stand up for these children? Is it because they live on Coal River? Are Coal River communities and lives deemed expendable, collateral damage? Would Governor Joe Manchin allow his grandchildren to attend Marsh Fork Elementary? Would these judges allow their children or grandchildren to attend Marsh Fork Elementary? Why doesn’t the Governor at the very least not order the WV Health Dept. to conduct a health study of the children and staff that have attended that school during the past 15 or so years since Massey Energy began blowing chemically treated fine particulate toxic coal dust into the school grounds and classrooms? Why are the teachers and staff not standing up for the children and themselves? Is it because a few of them have relatives that work for Massey? Massey Energy has been cited with over 4000 violations and is still allowed to operate in WV. Why is that? Why did the courts believe that Massey was telling them the truth when they suddenly said they found old boundary markers that allowed them to stretch their map and place these silos closer to the school? I mean over 4000 violations and you are going to believe anything they say? Massey Energy is a proven criminal and that is a fact the judges should have taken into consideration.
    And lastly, why do “WE THE PEOPLE” continue to stand idly by and watch this tragedy continue? Today, I am ashamed to be a West Virginian; I am ashamed to be an American. It all seems to come down to money; even if at the expense of little childrens health and possibly their lives.

    “If ye love wealth greater than liberty, the tranquility of servitude greater than the animating contest for freedom, go home from us in peace. We seek not your counsel, nor your arms. Crouch down and lick the hand that feeds you. May your chains set lightly upon you; and may posterity forget that ye were our countrymen.” — Samuel Adams

  10. eastwood78 says:

    I agree with Mr. Webb, and cannot add anything further to his comment, except that this part of coal river down route 3 toward Charleston has always been neglected by the people that run everything in Beckley. Time will tell if the right decision was made on the silos. God watches over His children, and He will watch over the children at Marsh Fork Elementary School.

  11. […] the state supreme court has now upped the ante, handing down a decision that will allow yet another coal silo to be built directly adjacent to Marsh Fork Elementary […]

  12. Scott 14 says:

    All the uproar over the silos, they are not the problem. I would be interested to see if any coal storage silos have ever failed. Silos are built to contain product and to limit dust exposure. In my opinion the trains that move past the school are more of a hazard than the silos.

  13. Ken Ward Jr. says:

    Scott 14,

    The silos at this particular site were proposed as part of a larger expansion of the coal-processing facility, and the entire project included a permit that would have increased the throughput of the silos — and doubled the particulate matter emissions from the site, according to a DEP permit application.

    Also, there was a fairly recent incident where a coal silo blew up, injuring six workers. It was covered in a very early Coal Tattoo post, here:


  14. eastwood78 says:

    This West Virginia State Supreme Court Decision may not work out so good for Massey Energy, Inc. after all. People across the nation are writing in about this, and as we all know President Obama is not a favorite fan of Mountain Top Mining. If I was Massey, I would not start building a new silo just yet. We know God loves the little children throughout the world, and West Virginia children are no exception. God made the beautiful West Virginia mountains and no where in the Bible does it mention that they were to be destroyed to get the “Black Diamond” (coal) off the top of the mountains. There is enough coal in underground mines to last for centuries, so don’t be fooled into believing that if MTR would be abolished that the lights would go out throughout West Virginia or any other state for that matter. God bless everyone, and that includes Massey Energy, Inc.

  15. […] Court OKs Massey Coal Silo Near West Virginia School (Coal Tattoo) […]

  16. OCC says:

    great Site and good Information , thanks

  17. Laitnitebob says:

    I think as long as people want their houses lit, kept warm or cool, energy consumption will remain at current needs. As far as coal mining, in any form, I don’t see why we should even think about stopping it until there is at least one proven source of environmentally friendly alternative. Not that I am advocating coal, I personally, along with the the country of France, think nuclear energy is the best way to produce electricity. Now that idea is probably unsatisfactory with some folk as well. We do not need to be paying higher electric bills, and the ones affected by that would be all of us, especially the lower and fixed income families. If we are really concerned about the children, why don’t we teach them energy science and and other emerging sciences that will be profitable and clean. Don’t, and can’t has to be replaced with do and can. I don’t see the logic in opposing one entity without showing credibility in the replacement one. Ken Ward does a fantastic job of reinforcing the negative effects of coal mining, especially when it has to do with increased particulate emissions on the children. How about the harmful effects of second hand smoke, Mr. Ward. How detrimental are those effects? Where are the children’s advocates for clean air at home?
    This debate about the bad results from mountain top coal mining has not produced one iota of progress toward alternate energy. People, you can’t just shut the lights out (either from no energy or cost prohibitive energy) and expect someone with pencil and paper reading by candle light will come up with any better option except making candles for a living.

  18. Jane Gilchrist says:

    I cried when I read this article. Apparently these little children have no one powerful on their side; five justices made such a cruel ruling, not taking into account the fact that the existing silo is outside the property Massey Destructive Energy owns? It’s a scandal. And an outrage. And they should not be judges.

  19. eastwood78 says:

    Jane: Yes to read what the Judges did is enough to bring tears to ones eyes, but the children at Marsh Fork Elementary School do have someone POWERFUL on their sides. That powerful one is God, and God in His own time and way will see that things work out for the children at Marsh Fork Elementary School and for all the good people that are being done wrong by Massey Energy, Inc.

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