CHARLESTON -- The West Virginia Supreme Court has unanimously ruled that a Massey Energy subsidiary can build a coal silo near a Raleigh County school.

In an opinion filed Tuesday, the court upheld a ruling in Kanawha Circuit Court that said Goals Coal Company's plans to build a second silo less than 300 feet away from Marsh Fork Elementary School.

There already was a silo planted 240 feet from the school.

A group called Coal River Mountain Watch had sought to stop the building of the second silo, saying it fell outside the area the coal company had a permit to mine in.

The group argued that a 2006 ruling by the state Department of Environmental Protection that said the location of the proposed silo was within the permit area was wrong.

The group said state law defines a permit area as only that which is shown on a map, and not by physical boundary markers.

The DEP had previously rejected the company's request to build the second silo in 2005 because of inconsistencies in the permit area maps that had been prepared over the years. Surface coal mining had gone on at the site since 1974.

Justice Menis Ketchum, in writing for the majority, said it is important to explain what the case is and is not about.

"This case involves the interpretation of several statutes," Ketchum wrote.

He added: "This case does not involve the public policy effects of (state and federal surface mining and reclamation 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."

Ketchum said the court rejects Coal River Mountain Watch's "quixotic" argument that the very structure of the sentence in the state law -- that everything after a comma, including the language about site markers, is a non-restrictive clause.

The language in the state law reads: "'[P]ermit area' means the area of land indicated on the approved map submitted by the operator with his application, which area of land ... shall be readily identifiable by appropriate markers on the site."

Ketchum wrote that a plain reading of the law shows that a permit area includes both the area shown on a map at the time of application and physical markers at the site.

Justice Brent Benjamin recused himself from hearing the case.

Supreme Court case number: 34138

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