DEP Denies Public Hearing For Edwight Show Cause

Contact: Judy Bonds 304-854-2182, Vernon Halton 304-913-4113

WHITESVILLE, W.Va. — The West Virginia Department of Environmental Protection (DEP) has denied local citizens a public hearing regarding a show cause order on the Edwight Surface Mine.  According to state law, show cause orders, intended to be the last step before the DEP shuts down a mine site, are supposed to be settled in public hearings.  Despite the law, the DEP has decided not to hold a public hearing, and is instead privately negotiating a consent order with the mine operator, Alex Energy, a subsidiary company of Massey Energy.

After repeated requests, the DEP has granted CRMW the right to submit comments on the drafted consent order but is still refusing to hold a public hearing.  CRMW is asking community members to submit comments to them, as well as suggesting they file for their own right to comment.

Due to the DEP’s continual failure to follow the law, CRMW is now looking to the Office of Surface Mining Reclamation and Enforcement (OSMRE). 

“Massey Energy’s Edwight permit is one of the most flagrant examples of the DEP failing to regulate this outlaw company. The OSMRE needs to act now to takeover the duties that this failed agency refuses to perform,” said Vernon Haltom, co-director of Coal River Mountain Watch.

Other community members are also expressing frustration with the violations on Edwight. Last April, local citizen Bo Webb took his case all the way to Washington, D.C. after he observed violations going unnoticed by the West Virginia DEP. As a result, OSMRE shut down that area of Edwight until the violations were issued. 

Currently, there have been 33 cited violations on the Edwight Surface Mine.  Besides the violations mentioned in the show cause, there are nine others that exhibit a negative pattern, a label given by the DEP when at least three violations of the same type occur within 12 months of each other.  The current show cause order was issued in November for six repeated violations.  

As these violations continue and the DEP refuses to enforce the law, community members are left to deal with the consequences.  As local resident Tom Beckner said in reference to Edwight, “We used to have some of the best drinking water. Now it’s nothing but a slush pond.”

Nick Martin locked himself to the actual drill itself, refusing to unlock, and was charged with trespassing , conspiracy, obstruction and littering.  He was also accused of violating his bail agreement by failing to appear for an earlier court date; however, he never received notice of his court date due to postal service mistakes.  Magistrate Massie refused to return the $2000 bail unless Martin plead guilty to trespassing and obstruction, which he did.  Martin was sentenced to seven days in jail and $55 in fines for the two charges, while the conspiracy and littering charges were dropped.  He began serving his sentence immediately.  Martin had faced up to two and a half years in jail and thousands of dollars in fines.

Josh Graupera provided initial direct support to the treesitters on Coal River Mountain and was charged with trespassing and conspiracy.  He plead guilty to both charges today and received a sentence of $100 in fines and no jail time.

Also, Mike Roselle and Tom Smyth were bailed out of jail yesterday and are back home.

According to the Raleigh County Magistrate’s office, they have no record for Steepleton and that it’s likely a Circuit Court case, which means no news will come till open of business in the morning.

Steepleton’s arrest happened the same day that Mike Roselle and Tom Smyth, the last remaining jailed Marfork Office arrestees, were released on bail.

UPDATE:

Heard from Laura and spoke with the Kanawha Co. Magistrate’s office.  The latter said she was taken in on a capias warrant for violating the bond agreement from the DEP action.  The criminal case from her charges in that action have been completely resolved.  The magistrate’s office said that Mag. Yeager will arraign Steepleton when he receives paperwork from Raleigh County, who arrested and hold her in the Southern Regional Jail.

PRESS RELEASE

Contact:

Charles Suggs 304 854 1937   Antrim Caskey 917 349 0422   Roger Forman  304 346 6300

ACTIVISTS APPEAL TO WV SUPREME COURT

ROCK CREEK, WV —  Attorneys for four Climate Ground Zero activists and independent photojournalist Antrim Caskey are to file a Petition for Appeal to the West Virginia Supreme Court over civil disobedience activities in Raleigh County in the Circuit Court this morning.

“We are petitioning the West Virginia Supreme Court to review rulings which we consider erroneous and look forward to presenting the petition to the Supreme Court,” said attorney Roger Forman, partner at Forman and Rist, from his office in Charleston, WV.

Attorneys for the plaintiff, Alex Energy, Inc, a subsidiary of Massey Energy, will have thirty days to file a response, after which time the West Virginia State Supreme Court will then decide  to hear the case or not.

Activists William Wickham, Madeline Gardner, Charles Suggs IV and Jordan Freeman are named on the appeal in conjunction with an April 16, 2009 protest on Massey Energy-owned Goals Coal Company.  The activists hung a banner over a highwall at an active blast site on the Edwight mountaintop removal site just above Clays Branch. The homes of Naoma were clearly in view.

“The coal companies are blasting just above the homes of Coal River Valley residents, like the Webbs in Peachtree.  It’s unbelievable what the coal companies get away with.  Everyone I know down here is determined to stop them,” said photojournalist Antrim Caskey, who moved from New York City to Rock Creek to cover mountaintop removal.

From February 3, 2009, more than one hundred activists have been arrested for trespass or obstruction on Massey Energy mountaintop removal mines in dozens of actions of non violent civil disobedience.

Will Wickham and Glen Collins and Willie Dodson used U-Locks to attach themselves to a massive dump truck on the Patriot Coal mountaintop removal site at Kayford Mountain. Eight activists were arrested on the site in total. Interestingly, the authorites recognized Caskey's standing as a journalist in this May 23, 2009 protest; Caskey was not arrested while documenting this protest. photograph by Antrim Caskey

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Upon release, Hamsher expressed concern for his fellow comrades still held in Southern Regional Jail and stressed the need for additional funds for the campaign. “We’ve put the pressure on Massey and they’re not making it easy, but that’s just proof we need to continue what we’re doing,” Hamsher said.

With the recent black water spill into Clear Fork River and the anniversary of the Buffalo Creek Disaster, we are reminded that neither coal companies like Massey Energy and Pioneer Fuel nor the West Virginia DEP have a history of adequately protecting public health and safety. Please contribute to the struggle by donating to Climate Ground Zero.

Activists Amber Nitchman and Isabelle Rozendaal, center and right, with friend EmmaKate Martin, left, walk out of the United States District Court for the Southern District of West Virginia on Wednesday, February 24, followed by Samuel Brock and the Marfork Coal Company counsel. Judge Irene C. Berger ruled to grant Marfork Coal a preliminary injunction against David Smith, Amber Nitchman, and Eric Blevins, the three treesitters who stopped work on the Bee Tree Mine Site in January, as well as Isabelle Rozendaal and Josh Graupera, who supported the sitters. Photo by Cheshire/Climate Ground Zero

In a decision and order issued today, Federal Judge Irene Berger of the Southern District granted Marfork Coal Co. a preliminary injunction against David Smith, Eric Blevins, Amber Nitchman, Isabelle Rozendaal, and Josh Graupera barring them from further trespasses on Marfork property.   An evidentiary hearing on the injunction was held Tuesday of this week at the Federal Courthouse in Beckeley, WV, but Judge Berger declined to issue a ruling at that time.

The form of the injunction is almost identical to the existing Raleigh County injunction.   The injunction applies to the named defendants and those “acting in concert with them” and only bars them from trespass on Marfork property.  Massey’s lawyers had sought a broader injunction that would have barred them from all mining properties in the Southern District of West Virginia and specifically named Climate Ground Zero and Mountain Justice.

You can read the opinion here.

According to the testimony of Marfork President Chris Blanchard, coal removal operations were halted in the area and equipment was idled for four days of the nine-day treesit leading Judge Berger to conclude, “Defendants efforts to thwart coal production were successful in this instance.”  Congratulations again to the sitters and their supporters for standing up against Massey Energy.   The defendants still face a federal civil suit for trespass, civil conspiracy, and tortious interference with business relationships and claims of over $100,000 in damages.

As Massey’s lawyers declare so loudly in their court filings, we will not be deterred.  Thanks for your continued support.

The Governor of West Virginia at the time, Arch Moore, formed an investigative commission, which consisted solely of coal industry supporters. After the commission denied a request that a coal miner be added to the commission, a Citizen’s Commission formed to perform their own independent investigation of the disaster. The citizen’s report concluded that Pittston Coal was guilty of the murder of at least 124 people.

Previously in 1966, after a coal-waste dump in South Aberfan, Wales gave way killing 147 people, a geologist from the U.S. Geological Survey and the Bureau of Mines conducted a survey of potentially dangerous slag heaps in the coal-mining regions of the U.S. In that survey the Buffalo Creek dam was reported to be ‘unstable’. Later, the U.S. Interior Department gave a report on 38 West Virginia Coal Waste Dams to the Governor. Those in need of immediate repair were fixed, but no other corrections or inspections were done. In February of 1968, concerned residents of Buffalo Creek wrote the Governor expressing their fears that the dams were in danger of collapsing, but the dams were merely looked at and no corrections were made. Dam 3 collapsed in February 1971 causing black water to bubble up in the impoundments behind the dam. More coal refuse was dumped in to fill the break in the dam.

Due to the negligence on the part of Pittston Coal, some 625 survivors sued the Pittston Coal Company for $64 million in damages. They settled for $13.5 million. A second suit by 348 child survivors sought $225 million and settled for $4.8 million. The State of West Virginia also sued the company seeking $100 million, but Governor Moore settled for a mere $1 million. Gerald M. Stern, an attorney with Arnold & Porter, the law firm that had represented the case, wrote a book dedicated to the victims of the flood, entitled, “The Buffalo Creek Disaster.” The West Virginia Division of Culture and History has also compiled information concerning the event on their website.

Buffalo Creek by T. Paige

The Clear Fork & Marsh Fork converge at Whitesville to become the Big Coal River. Note the difference in color between water flowing from both forks.

At approximately 2 p.m. the black water was seen 2.5 miles up Clear Fork Road, and continued to pour into the Big Coal River at Whitesville for several hours afterward. A Coal River Mountain Watch volunteer called the spill into the WVDEP around 4:20 p.m. The state agency later responded that it had been aware of the spill since 8 a.m. and that the black water output appeared to have stopped. It was verbally confirmed with WVDEP that the spill was sourced from the Horse Creek surface mine, owned by Pioneer Fuels.

A volunteer tests water in the Clear Fork, near the Whitesville confluence. You can see greenish water flowing from the Marsh Fork at the top portion of this photograph.

The Horse Creek mine has had similar incidents in the past, including a cessation order issued by the WVDEP in July 2007.

While the DEP claims that the spill is over, we do not know what chemicals have already leached into the drinking water supply.

“While we appreciate the DEP’s uncharacteristically swift action to halt this pollution, the minuscule penalties that they normally assess have not been effective in protecting our water sources,” said Vernon Haltom, co-director of Coal River Mountain Watch. “Our state government needs to begin making the protection of citizens’ safety and water sources a higher priority than coal company profits.”

Anyone who wishes to attend the hearing is welcome to come and watch. A valid photo identification is required for entry.