Huffman v. Goals Coal Co.
| Decision Date | 09 June 2009 |
| Docket Number | No. 34138.,34138. |
| Parties | Randy C. HUFFMAN, Secretary of the West Virginia Department of Environmental Protection, Appellee, v. GOALS COAL COMPANY, and Appellee, and Coal River Mountain Watch, Appellant. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. "On appeal of an administrative order from a circuit court, this Court is bound by the statutory standards contained in W.Va.Code § 29A-5-4(a) and reviews questions of law presented de novo; findings of fact by the administrative officer are accorded deference unless the reviewing court believes the findings to be clearly wrong." Syllabus Point 1, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).
2. 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.
3. According to the provisions of W.Va. Code, 22-3-3(q) [2000] and 30 U.S.C. § 1291(17) [1998], 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.
A.M. "Fenway" Pollack, Esq., Charleston, for the W.Va. Dept. of Environmental Protection.
Robert G. McLusky, Esq., Christopher M. Hunter, Esq., Jackson Kelly PLLC, Charleston, Terry R. Sammons, Esq., Sammons Law Offices, PLLC, Gilbert, for Goals Coal Company.
Derek O. Teaney, Esq., Joseph M. Lovett, Esq., Appalachian Center for the Economy and the Environment, Lewisburg, for Coal River Mountain Watch.
In this appeal from the Circuit Court of Kanawha County, we are asked to examine a circuit court ruling upholding an administrative decision by the West Virginia Surface Mine Board ("the Board"). The circuit court affirmed the Board's conclusion that under the West Virginia Surface Coal Mining and Reclamation Act, W.Va.Code, 22-3-1, et seq., a surface mine "permit area" is defined to include both the area which is indicated on the map submitted with the application for a surface mine permit, and which is identifiable by appropriate markers and monuments on the mine site.
As set forth below, we affirm the circuit court's decision.
Appellee Goals Coal Company operates a coal preparation facility at a site in Raleigh County near Sundial, West Virginia. This site has been in operation since 1974 when the previous owner of the site, Armco Steel Company, began constructing the coal preparation facility.
In 1977, Congress enacted the Surface Mining Control and Reclamation Act to "establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations[.]" 30 U.S.C. § 1202(a) [1977]. The federal Act encourages "cooperative federalism" by allowing a State to adopt its own comparable program for the regulation of mining. See 30 U.S.C. § 1253 [1977]. The State's "program need not be identical to the federal program, as long as its provisions are at least as stringent as those provided for in the federal act." Canestraro v. Faerber, 179 W.Va. 793, 794, 374 S.E.2d 319, 320 (1988). West Virginia adopted a comparable mining regulation program, the West Virginia Surface Coal Mining and Reclamation Act, which took effect in 1981. See 1980 Acts of the Legislature, ch. 87.1
In 1982, pursuant to the West Virginia Act, a "permit to engage in surface mining" (No. D-66-82) was issued by the West Virginia Department of Environmental Protection ("the DEP")2 to allow surface mining activities at the Goals Coal site.
The application for the 1982 permit included a map of the mining site intended to be covered by the permit (the "permit map"). The permit map was prepared by Clarence Waller, a registered professional engineer and licensed land surveyor. On the map, Mr. Waller intended to include within the boundaries of the permit those areas that had already been disturbed by the earlier development of the coal preparation facility at the site. Using a United States Geological Survey map, Mr. Waller sketched—by hand— the line enclosing the proposed permit area. None of the features Mr. Waller drew on the map were formally surveyed.
Before he prepared the permit map, Mr. Waller installed a permanent, end-of-mine-site marker at the western boundary of the area that had been previously disturbed (blasted, actually, to create flat land for the construction of a railway track) for the development of the coal preparation facility. Mr. Waller also sketched this permanent marker onto the permit map as a reference point showing the western boundary of the permit area. At a 2006 hearing regarding proposed revisions to the permit, Mr. Waller confirmed that the end-of-mine-site marker he had installed in 1982 was still in its original location.
In 2003, Goals Coal sought and—apparently without objection—obtained a revision to its 1982 surface mine permit, a revision that allowed it to construct a coal storage silo (the "first silo"), ostensibly within the boundaries of the permit area. However, the first silo was located approximately 240 feet from Marsh Fork Elementary School.3
In 2005, Goals Coal submitted another request to revise the surface mine permit ("Revision 8") seeking to build another coal silo (the "second silo") next to the first silo, and also within 300 feet of the elementary school. Initially, the revision was approved. However, the DEP later rescinded its approval based on inconsistencies in maps submitted over the years by Goals Coal in connection with the company's various permit revision requests. Essentially, because of conflicting map depictions of the boundary of the permit area, the DEP questioned whether the proposed second silo was truly within the boundary of the permit area.4
Thereafter, in June 2006 Goals Coal submitted yet another request to revise the permit ("Revision 9"), again seeking to construct the second silo. This request was accompanied by a newly-prepared map of the original permit area that relied upon the end-of-mine-site marker to define the western boundary of the site. Goals Coal again proposed building the second silo in the original permit area, but within 300 feet of Marsh Creek Elementary School.
In an order issued on August 11, 2006, the DEP determined that the location for the proposed second silo fell within the boundaries of the original permitted area, as reflected in Mr. Waller's 1982 permit map.
Intervenor-below and appellant Coal River Mountain Watch ("CRMW") is a non-profit organization concerned with social, economic and environmental justice in the southern coalfields of West Virginia. CRMW appealed to the West Virginia Surface Mine Board ("the Board") the DEP's determination that the end-of-mine-site marker installed in 1982, and sketched on the 1982 permit map, could be used to establish the western boundary of the permit area. CRMW argued that the permit boundary had to be determined solely by the lines drawn on the permit map, without reference to the end-of-mine-site marker.
In its final order dated March 13, 2007, the Board unanimously affirmed the DEP's determination. The Board concluded that the DEP's decision to rely upon both the permit map and the end-of-mine-site marker to determine the correct boundary of the Goals Coal mining site was supported by the Surface Coal Mining and Reclamation Act. CRMW subsequently filed an administrative appeal of the Board's decision to the Circuit Court of Kanawha County.
After hearing oral argument by the parties, the circuit court affirmed the Board's final order in a detailed order filed September 25, 2007.5
CRMW now appeals the circuit court's order.
The issue being appealed is entirely one of statutory construction. We therefore review the circuit court's order de novo. Syllabus Point 1, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996) (); Syllabus Point 1, Appalachian Power Co. v. State Tax Dept. of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995) ()
Before analyzing the parties' arguments, we feel that we should first delineate what this case is about, and what it is not about.
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...
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