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Surface Mine Board did not abuse discretion in affirming mining permit for quarry in Gerrardstown, W.Va

December 21, 2012|By MATTHEW UMSTEAD | matthewu@herald-mail.com

MARTINSBURG, W.Va. — A circuit judge ruled Thursday that the state Surface Mine Board did not abuse its discretion and did not make an arbitrary decision when it affirmed the issue of a mining permit for a 100-acre quarry site in Gerrardstown, W.Va.

Substantial evidence supports the Surface Mine Board’s “rational” decision to affirm the West Virginia Department of Environmental Protection’s issuance of the permit to North Mountain Shale LLC, 23rd Judicial Circuit Judge John C. Yoder concluded in a 11-page order.

Yoder also ruled that Potomac Riverkeeper, Inc., Gerrardstown Presbyterian Church and George Washington Heritage Trail failed to show the “predicate prejudice to their substantial rights because many of the petitioners’ concerns are addressed by the conditions imposed by the SMB.”

The mining permit issued by the West Virginia Department of Environmental Protection in January 2011 allows North Mountain Shale to mine shale in a 100-acre quarry site off Dominion Road near W.Va. 51 in Gerrardstown. The shale would be hauled to Continental Brick Co. in Martinsburg for brick manufacturing. North Mountain Shale, a subsidiary of Continental Brick, purchased 421 acres at the Gerrardstown site in January 2008.

Yoder said in his order that the state Surface Mine Board considered and addressed the petitioners’ concerns regarding potential impacts to historic, cultural and aesthetic resources by allowing evidence to be presented, requiring the state to present evidence and conducting a site visit.

Yoder ruled that evidence in the case supports the state Surface Mine Board’s findings that the quarry’s impact would be minimal, but noted the board went on to impose additional conditions in its final order in Janaury 2012.

Restrictions added to the quarry permit include the limit of trucks hauling shale from the quarry site to no more than 10 per day and 5 per work shift.

Among other restrictions, the final order requires that shale extracted from the mining area would done in 5-acre increments, with reclamation required to begin in a mined area before new areas are mined, according to the Surface Mine Board’s order. Wooded areas also have to be reclaimed by planting 400--450 “stems” per acre and hayfield/pasture areas must be reclaimed by planting grasses, according to mining board’s order.

The petitioners in the case asserted that the Surface Mine Board committed factual and legal error by concluding that the sediment control structures would adequately control sediment discharges, according to court documents.

The appeal also asserted that the Surface Mine Board committed legal error by preventing the petitioners from challenging the state DEP’s decision regarding historic, cultural and aesthetic impacts, according to court documents.

The DEP and North Mountain Shale has maintained the project has complied with the state’s review and permitting process.

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