Mining decision not expected soon

June 06, 2011|By MATTHEW UMSTEAD |

MARTINSBURG, W.Va. — An appeal challenging the state’s decision to issue a mining permit for a 100-acre quarry site in southwestern Berkeley County is not expected to be decided for several more weeks.

West Virginia Assistant Attorney General Wendy Radcliff said Monday that a decision in the case between the West Virginia Department of Environmental Protection and three organizations who appealed the DEP’s decision to permit North Mountain Shale LLC to mine in Gerrardstown, W.Va., might not be made by the state Surface Mining Board until after late August or early September.

Members of the Surface Mining Board and Radcliff, who serves as the panel’s legal counsel, toured the proposed quarry site in the small historic community off W.Va. 51 after hearing several hours of testimony Monday at the Holiday Inn in Martinsburg.

The board’s trial court-like hearing is expected to continue Tuesday.

Challenging the state DEP’s decision to issue the mining permit are Potomac Riverkeeper Inc., Gerrardstown Presbyterian Church and Washington Heritage Trail Inc.

Potomac Riverkeeper also has challenged the National Pollutant Discharge Elimination System permit that the state issued for North Mountain Shale’s project and the state Environmental Quality Board is expected to begin hearing testimony in that appeal Wednesday in Martinsburg.

Radcliff, who presided over Monday’s proceedings in the absence of board President Don Michael, said additional testimony in the Surface Mining Board case will be heard July 11 in Charleston, W.Va., because of witness availability.

Board member Jon Blair Hunter, a former state senator, also was absent Monday and Radcliff said there is one vacancy on the seven-member panel, which convened before an audience of more than 60 people for Monday’s proceedings.

In his opening statement, attorney R. Judge Gregg said residents opposed to the quarry had legitimate concerns and were not “CAVE” people, or “Citizens Against Virtually Everything.”

Gregg argued that the DEP failed to do its job in analyzing the quarrying operation’s impact on Gerrardstown, one of Berkeley County’s oldest communities. He highlighted the proximity of North Mountain Shale’s property to the grave site of Ward Hill Lamon, Abraham Lincoln’s confidante and body guard, and said trucks hauling shale would pass by 25 historic resources of the Gerrardstown Historic District.

Lamon’s grave is in the Gerrardstown Presbyterian Church cemetery along Destiny Drive, which North Mountain Shale owns and intends to use as a haul road, attorneys said in the hearing Monday.

DEP legal counsel Jennifer Hughes countered that “extreme hyperbole” had been aired by quarry opponents. Concerns about the quarry’s impact on historic resources were addressed by conditions attached to North Mountain’s permit, said Hughes, citing a prior review by the state Historic Preservation Office.

Hughes said the state’s historical analysis concluded the operation would have no “adverse affects” on the community and that the DEP’s viewshed study showed the vast majority of the town would not see the quarry operation.

The five-year mining permit is for a 100-acre site, but attorney Robert McLusky said in his opening statement that mineral removal was only being eyed for 41 acres in two pit sites by North Mountain Shale and that no blasting would be employed for extraction.

McLusky also said the company, a subsidiary of Continental Brick Co., was agreeable to limiting the number of truckloads of shale hauled daily from the quarry site to the company’s plant near Martinsburg to five per eight-hour shift, with a maximum of 10 per day.

“In all likelihood, it’s going to be five,” McLusky said.

He acknowledged concerns raised about dust caused by the trucks, but said the company was prepared to mitigate that by using water on the haul road, which opponents have called woefully inadequate for industrial use.

McLusky also urged Mine Surfacing Board members to see the proposed industrial site for themselves.

“DEP did what it was supposed to do,” McLusky said.

The first witness to testify, Harriet Kopp of Gerrardstown Presbyterian Church, said the proposed quarry was essentially in the church’s “backyard,” and the congregation’s main concern was flooding, given persistent problems with drainage over the years.

Church members also are concerned about dust, truck traffic and the visual impact of the quarry on the view of North Mountain from the cemetery, which she said offers a lot of comfort to those who have lost loved ones.

While appreciative of the North Mountain Shale’s willingness to work around funeral services, Kopp said undefined general assurances by the company were not satisfactory.

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