Coal Tattoo

Breaking news: Court OKs Massey silo near school


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.