This article originally published by The State Journal

April 12, 2007

Miners Out of Work as Massey Asks for Stay

Mining at the Camp Branch mine in Logan County was idled this week after recent court rulings rescinded valley fills permits.

Story by Beth Gorczyca Ryan

The employment future of about 120 miners is up in the air this week after Massey Energy informed workers at the Camp Branch mine that they may be laid off.

Massey spokesman Jeff Gillenwater said the company had not yet laid off any workers but said 66 employees currently were not working and not receiving pay while the company tried to get a stay from a series of federal court decisions affecting that site.

"If the company does not get a stay, then another 55 employees will no longer be active workers," he said.

He said the employees have not officially been laid off because they were still on the payroll and covered by health insurance. However, the employees were not going to work and not being paid. He said the company is hopeful it can find other opportunities for the employees at other mines.

The Camp Branch mine in Logan County employs about 120 workers. Mining there was idled this week after recent court rulings rescinded valley fills permits at Camp Branch and three other Massey-owned mines -- Black Castle, Republic No. 2 and Laxaire.

As a result, Massey subsidiaries Aracoma Coal Co., Elk Run Coal Co., Alex Energy Inc. and Independence Coal Co. filed a motion April 10 to stay the rulings pending an appeal to the Fourth Circuit Court of Appeals.

The first ruling occurred March 23, when U.S. District Judge Robert "Chuck" Chambers ordered the mines' valley fill permits be rescinded immediately and prohibited the operations from engaging in activities authorized under those permits. In addition, Chambers remanded the permits to the U.S. Army Corps of Engineers.

That ruling stemmed from a two-year-old lawsuit filed by three environmental groups -- the Ohio Valley Environmental Coalition, Coal River Mountain Watch and West Virginia Highlands Conservancy -- against the U.S. Army Corps of Engineers, alleging the federal agency failed to properly enforce the Clean Water Act and National Environment Policy Act. The West Virginia Coal Association and Massey Coal intervened in the lawsuit, which included six days of courtroom testimony in October.

Between the October testimony and March ruling, Camp Branch asked Chambers to allow mining activities to continue on 72.10 acres, saying the work being done would not fill streams or result in the construction of additional valley fills or sediment ponds.

Instead, according to court records, the company said it planned to "clear, grub and mine ridge tops, limiting these activities to elevation above the streams located within the mine site." Camp Branch representatives said they would place any excess soil from the clearing and mining process in two existing valley fills, which had been partially constructed while the lawsuit had been working its way through the courts. The permits for those two valley fills were among the permits that Chambers rescinded in March.

According to court records, the Corps and mining company argued that since the additional mining activities did not affect any additional waterways, then the Corps has no jurisdiction over the activities and Chambers' ruling did not affect it.

Chambers did not agree, and he issued an opinion April 6 banning the company from further filling either valley fill.

"The court finds the Corps' assertion difficult to accept," Chambers wrote. "Clearly the Corps did not lose jurisdiction the moment the streams were filled. The filling of these streams during the construction of the valley fills represented an integral part of the overall project that the Corps reviewed during the permit process."

He said construction on the two valley fills was allowed to go on while he court reviewed the Corps' decision but said now that the permit has been rescinded, the company has no authority to complete the fills.

"As a result, the rescission of the Clean Water Act permit precludes (the company) from further filling of waters, whether this fill occurs in newly constructed fills or in valley fills previously constructed under this permit," Chambers wrote.

However, in the same ruling, Chambers granted a 21-day stay to the Republic No. 1 mine. He said the stay was granted so the company accurately could assess how the ruling would affect that Fayette County mine.

This week, the coal companies filed a motion to stay both the March and April rulings pending appeal. The coal companies said they are seeking a stay "so as to avoid the harm which the Intervenor-Defendants, their employees and the public (in the form of lost tax revenues, indirect employment and material, equipment and service sales) will suffer during the pendency of an appeal."

If that didn't suffice, the companies said they would seek a limited stay of Chambers' orders insofar as they apply to the use of valley fills that have already buried waters.

"This will lessen, but may not avoid, all of the harms that will occur during the pendency of an appeal," attorneys for the coal companies wrote. "Perhaps, more importantly, it will permit the recall of 66 employees who were sent home from the Aracoma Camp Branch mine on April 9, 2007, as a result of the April 6, 2007 Order."