There is a shale quarry just across the dirt road that is just past our barn — to the right you see the view of this quarry from our veranda, the same view as from our bedroom; note the backhoe, the grader/loader, and the bulldozer all working it this day. The quarrying has been escalating since 1999 and we believe that this quarry should be shut down as it does not meet requirements set forth in the West Virginia State Code. The enforcement agency for quarrying, the West Virginia Department of Environmental Protection Office of Mining & Reclamation (WVDEP-OMR) has been consistently uncooperative with our efforts. We have also dealt with the Division of Water Resources (WVDEP-DWR) in trying to get this site compliant with the terms of the WV/NPDES General Permit (a requirement that any construction site of sufficient size contain runoff water).
Ultimately, we would like to get WVDEP-OMR to properly enforce the law as it pertains to this shale quarry. Their position (that it is not a surface mine needing regulation) seems two be based on two things: (a) when the law says “mineral” it really means “regulated mineral”, and (b) that since the West Virginia Department of Highways (WVDOH) uses it, it is therefore totally exempt as a “borrow pit” from any surface mine regulations (even though the vast majority of the quarrying has nothing whatsoever to do with highway work).
Our small slice of Almost Heaven, West Virginia is marred by one annoying problem: a shale quarry just across the dirt road that is just past the barn. The owner of this so-called “shale pit” used to own our land, too, and we had chatted with him before we made our purchase offer in 1998. He characterized the activity at the shale pit as “occasional” use by the WVDOH. We beg to differ; over the years this site has increasing use by a number of private contractors for non-highway use as well as varying use by WVDOH — anywhere from one to six dump dump trucks, up to two loaders, up to six days per week, up to six weeks in a row. This is not occasional.
We approached the owner in late 1999 about the level of activity at the quarry and he seemed quite indifferent to our concerns. We then
contacted the WV Department of Environmental Protection (DEP) about it, and over five years later we are still getting the run-around from them.
We’ve been handed a variety of excuses as to why DEP isn’t going to do anything about this quarry. Over the years we’ve been told, on different occasions, by employees of DEP:
- That this shale quarry does not have a permit but the law “is about to change” and that this change would allow this particular operation to be allowed without a permit
- The State Department of Highways (DOH) could do anything it wanted at any site without a permit
- That the operation was under one acre in size and so is allowed under a quarry personal use exemption
- The owner and an excavating contractor had signed affidavits attenting that the shale was all being used on the owner’s property so this falls under the quarry personal use exemption
- The owner isn’t charging money for the shale so this falls under a non-commercial quarry exemption
- The DEP has “interpreted” the law such that this operation isn’t a quarry at all, it’s a “borrow pit” and “We [WVDEP] don’t regulate borrow pits”
Pictures – Newest First
||Tracking Mud 11-Jan-2006
There are now at least 2, perhaps 3, different contractors quarrying shale. Here is the road in front of our house after only 1 day of this activity.
|Muddy Runoff 18-Dec-2005
… They suggested that we could sue the owner; we suggested that they should fix their ‘features’.
||Muddy Runoff 18-Dec-2005
We called the 800 number on the NPDES Storm Water sign to complain about the muddy water coming off this site, running down the road, and depositing road gravel onto our pastures. …
In the fall of 2005 activity picked up. For about 6 weeks, 5 or 6 days a week, 1 or 2 trucks, for 6 – 8 hours per day they have been quarrying shale. Here you see erosion that has been caused by storm water runoff coming out of this site. So much for their ‘features’.
||Storm Water Compliance ‘Features’ 27-Jul-2005
Here are two signs they added. Note how even though they are only 100 feet apart they refer to this shale quarry by two different names.
|Storm Water Compliance ‘Features’ 27-Jul-2005
In early 2005 the shale quarry owner, with the assistance of WVDOH, submitted a Notice Of Intent to WVDEP to work under the Construction Storm Water WV/NPDES General Permit. This was granted by WPDEP with the required contacting of WVSHPO. As part of this they added the detention pool ‘feature’ seen here. Note that prior to this there had been about a year of very little quarrying activity at the site.
||WV DOH Shale Use 26-Apr-2002
The DOH used the 200 truckloads of shale that they took February 25 – March 1. It is our contention that this use is not simply “unspecified materials used as fill,” as DEP contends, but rather this shale is being used specifically because the properties of shale make it suitable for use as roadbed and as road surface.
|Shale Quarry 18-Apr-2002
This is the view from our upper veranda. It gives a good overview of this shale quarry and how much of the mountain they are removing. The area being quarried has expanded in the last several years.
||Contractor Use 18-Apr-2002
This is one of the several individuals that have taken shale recently. The area he is taking from has “blue shale” that is desired as a nice-looking driveway surface.
|WV DOH Equipment 03-Apr-2002
The DOH dropped off this dozer after they had taken about 200 truckloads of shale for use on Kump Road (see next picture). DEP used this dozer and one truck for several days to dump shale elsewhere on the owner’s property. It is our understanding that DOH dumps 1 load for the owner for every 4 that they take.
Documents and Correspondence
Click or Rght-Click on any file name below to view or download that file. Most files are pdf format and require a pdf viewer. We recommend the free Foxit PDF Reader.
The names of files representing correspondence are in the format: “[date]–[originator]–[recipient].pdf”; they are listed oldest to newest.
West Virginia Code Chapter 22, Article 4 – The Quarry Reclamation Act.
This is the section of WV law that deals with surface mining — essentially all mining that is not coal mining. Relevant portions:
“Quarrying” means any breaking of the ground surface in order to facilitate the extraction of minerals.
“Minerals” means natural deposits of commercial value found on or in the earth, whether consolidated or loose, including clay, flagstone, gravel, sand, limestone, sandstone, shale, chert, flint, dolomite, manganese, slate, iron ore and any other metal or metallurgical ore. The term does not include coal or topsoil.
“Borrow pit” means an area from which soil or other materials are removed to be used, without further processing, as fill for activities such as landscaping, building construction or highway maintenance and construction.
Exemptions [include:] activities of the West Virginia department of transportation … or borrow pits owned, operated, or maintained solely in connection with the construction, repair and maintenance of the public roads system or other public facilities… [or e]xcavation or grading conducted solely in aid of on-site farming or on-site construction for purposes other than quarrying
West Virginia Legislative Rule Title 3, Series 38: Rules for Quarrying and Reclamation.
Storm water means any water flowing over, around, or through the permitted area in response to a precipitation event. This includes all surface run off.
This is orginal agreement between the shale quarry owner and WVDOH to allow WVDOH to “get bank shale for the purpose of fixing roads. (At no cost to the Department of Highways).” We obtained a copy of it as part of our 04/24/2002 request to WVDEP.
Before we made an offer to buy this place, as part of our ‘due diligence’ we sopke with the owner of the shale quarry (the son of the long-time owners of this place). When we asked about the shale quarry he allowed as how the state highway department ‘occasionally’ took shale from it. After a year living here we observed that the use was more than ‘occasional.’ We spoke with the shale pit owner about it and he dodged the issue entirely. After some poking around, we called WVDEP to enquire about any relevant laws or licensure requirements. They sent a Mr. Combs out to investigate, and this is the ‘MR-35’ form that must be completed for each and every investigation.
Since we were really only trying to find out what laws might apply in this case, we remained officially anonymous on this report. This report concludes:
Complainant enquired as to whether a small shale pit … was legal…
Located shale pit … No one on site. Took pictures. Disturbed area approximately one (1) acre. Landowner will be sent a Disturbed Land Inquiry letter.
The letter sent to the shale quarry owner by WVDEP as a result of our inquiry. A boilerplate letter asking for “convincing documentation” that the operation is not subject to Chapter 22 Article 4 (the Quarry Act), or get a permit under this article, or “cease and desist.”
Our letter to investigator Combs reiterating our desire to see this quarry closed. At this point we had received no official feedback from DEP.
A letter from WVDOH to WVDEP saying that DOH “has for several years used the material, at no cost from this pit, … and continues to do so.”
DEP to owner: “As part of your response, I received written information dated 20 January 2000 from the WV Division of Highways on 16 February 2000. I have relied upon this information to determine that your activity at this time is associated with pursuits other than mining and in conjunction with the WV Division of Highways. Therefore, the Office of Mining and Reclamation (OMR) plans no further actions in this matter.”
Again we complain, this time over over 125 truckloads of shale that had been used on a neighbors property. As soon as that project seemed to be done the WVDOH rolled in. This report states:
State road equipment on site hauling today. Talked to [neighbor] who lives near by & he said he was having some of the shale hauled to his residence part of which was going to be put on a road that crossed [owner’s] property.
Actually, none of the 125+ loads went onto theowner’s property; it seemed to us that WVDEP was actively trying to force this quarry into one of the exceptions listed in the Quarry Act.
After several years of spratic, relatively small jobs, the quarrying heated up again. This time it was a massive, week-long operation taking 200 loads of shale. “DOH hauling today from shale pit to Mt. Airy Rd (23/9) & Kump Rd (23/10)”.
They keep quarrying, we keep complaining.”State road (WVDOH) hauling from property today. [Owner] on site today. [Owner] says he does not sell the shale. Neighbors use it. Our (WVDEP) policy this date is that since the material is being used for fill or “borrow” as unspecified materials then it is not quarrying by definition. It is a borrow pit. We don’t regulate ‘borrow pits’.” Funny, though, the Quarry Act only exempts “borrow pits owned, operated, or maintained solely in connection with the construction, repair and maintenance of the public roads system or other public facilities.” [emphasis added] And, again, who cares that the owner does not charge money for the shale, unless one is trying to force this quarry into a exempt category.
During the timewhen the quarry was sporatically used, we kept up our pressure. We followed some of the contractor loads to non-road, non-owner sites. We spoke with the operator who naturally resented our interference in his work but who in turn saw no problem with his interference in our life and work (we both worked part-time from home during this period). We wrote to our elected representatives who in turn wrote to WPDEP, who in turn wrote back with some more detailed information on this quarry. Up until this point the only offical info we had was what Mr. Combs wrote in the MR-35’s. So we wrote this FOIA letter requesting “1. A copy of the permit for the quarry site at the junction of Hooks Mill Road (13/3) and Cacapon River Road (14) as specified in Article 4 ‘Quarry Reclamation Act’, §22-4-5 of the West Virginia State Code, including the supporting items 1 through 11 enumerated in that section,” and “2. The Reclamation Plan for this site as specified in §22-4-17 of Article 4.”
A coincidence, I am sure, that WPDEP revised their “Wildcat Operations” policy between the time of getting our FOIA request and responding to that request. Relevant sections:
Breaking of the ground surface in order to facilitate the extraction of regulated minerals .. requires a quarry permit from DEP … An area from which soil, non-classifed minerals or other materials are removed without further processing is a borrow pit and does not require a quarry permit. Non-classifed minerals means the mineral being extracted is not required to meet any standards or specifications (such as site specific construction or ASTM Standards. [Emphasis added]
Note that they refer to “regulated minerals” whereas the law (the Quarry Act) refers only to “minerals” and they further explicitly state that no borrow pit needs a permit whereas the law only exempts borrow pits used “solely” for road maintenance (and why exempt a specific class of borrow pits if you did not intend for all others to be regulated?).
WVDEP’s formal response to our FOIA request. They included several of the documents listed above, and summarize:
The site has historically viewed as an exempt activity both under the old quarry law and the new (June 2002) quarry law at 22-4-29.
As we read 22-4-29 of the the Quarry Act we see none of the listed exemptions fitting this site.
After several years of relative quite following our flurry of correspondence in 2002, quarrying activity again picked up so we once again complained. We were told that “shale from borrow pits not subject to WV code 22-4.” Mr. Combs suggested that we “contact Fleishman WVDEP Romney” about whether this quarry is in complaince with construction site stormwater management regulations.
In response to our telephone enquiry, WVDEP-EE in Romney sent the owner this letter, which states, in part:
This property has been used as a shale pit and no sediment and erosion control has been installed. The West Virgina department of Environmental Protection requires land disturbances of 1 acre or greater to be covered under a Construction Stormwater Permit.
The own responded with this Notice of Intent to apply for resigistration to work under the general permit; it includes the Storm Water Pollution Prevention Plan (SWPPP) which was prepared by D. A. Jennings of WVDOH in Romney. We did not get a copy of this until later, after a round of frustrating phone calls to WVDEP-EE and WVDOH.
The notice from WVDEP-DWWM to the owner that “The Division of Water and Waste Management has received the Notice of Intent form for yiour construction activity and assigned the above referenced registration number. You are now authorized to operate under General Permit No. WV0115924.” We got this document in reponse to our second FOIA request which we initiated after seeing signage go up on the shale quarry.
When we were in the process of getting our house listed on the National Register of Historic Places, the kind folks at WVSHPO mentioned that WVSHPO was supposed to be contacted during the permitting process for borrow pits and construction projects in order to assess the impact of the site on any nearby historic properties. We wrote WVSPO this letter asking that they look into the matter of the permits for this shale quarry.
In response to our letter to WVSHPO they in turn wrote this letter to WVDEP. Money quote:
Ms. Weiblen owns and resides in the Captain David Pugh House in Hampshire County, listed in the National Register of Historic Places on August 23, 2004. She has concerns regarding the viewshed from the Pugh House being diminished as a result of a boundary increase by the mining operation. We have enclosed a copy of her letter to our office. We ask that you please contact Ms. Weiblen, in writing, regarding her concerns. Please copy our office on you response for our records.
L. Brent Wiles, Environmental Supervisor, Division of Mining and Reclamation, WVDEP, responds to the WVSHPO letter:
WV Department of Environmental Protection, Division of Mining and Reclamation policy concerning “Wildcat Operations” dated November 1, 2001, revised May 1 2002, (copy provided) has not changed since our last communication on or about 6 May 2002. …Your letter refers to the “NPDES Storm Water Permit”. NPDES Storm Water permits are reviewed and issued by WVDEP Division of Water Resources under Chapter 22, Article 11, Code of WV. Since this site has no Chapter 22, Article 4 (Quarry) permit, I must assume that the permit renewal of which you speak is for an NPDES Storm Water permit under Chapter 22, Article 11. Your questions regarding the applicability of SHPO review for this type of permit should be directed to WVDEP, Division of Water Resources Permitting Section. I have been advised that the NPDES permitting functions from the Romney area are being temporarily handled through the Fairmont DEP DWR Office, 2031 Pleasant Valley Road, Fairmont, WV, 26554, Attn: Andy Weaks, 304-368-3960. I am copying this correspondence to Mr. Weaks for his review and/or response.
Of course, we never heard anything from Mr. Weaks.
We decide the we want all the latest documents related to this shale quarry, so we FOIA’d WVDEP via email:
Pursuant to the West Virginia Freedom of Information Act (WV Code §29B-1-3), I am requesting copies of the following public records relating to General Permit Registration No. WVR101478 and General Permit No. WV0115824:
1. A copy of the legal advertisement for the renewal of this permit, including the date of advertisement and the identity of the newspaper(s) in which the ad was posted.
2. A copy of the original permit and any permits previous to the present permit.
WVDEP acknowledged the receipt of our request promptly:
As of 11-17-05, the West Virginia Department of Environmental Protection’s Public Information Office is in receipt of your Freedom of Information Act request. I have forwarded your request to the Division of Air Quality and the Office of Water Resources.
But it was three weeks before we got any actual infomation from them. It was a copy of this shale quarry’s general permit use confirmation that we already had, plus a boatload of newspaper ads and publication affirmations from 2002 when the general permit itself was renewed.
We have seen brown water coming off the quarry site leaving deep ruts in the road and depositing road material in one of our pastures. When we called the 800 number on the sign to complain, we were routed to WVDEP-EE in Romney. They said that they had installed ‘features’ to control the water (the SWPPP) and suggested that we could sue the owner; we suggested that they should fix their ‘features’. This file is an email that we sent to DEP’s citizen liason office about this matter.
Abbreviations & Acronyms
||The Compalint Investigation form used by WVDEP to respond to a citizen complaint.
||The owner of the shale quarry in question. While we stenuously disagree with his behavior in this whole matter, we recognize that he does seem to have WVDEP enforcement on his side. So we therefore have made a conscious decision to *not* put his name on this site in any searchable text form. His name does appear in in various photographs of public signs and pdf files of publicly-available government documents.
||Storm Water Polution Prevention Plan
||West Virginia Division of Highways (Department of Transportation)
||West Virginia Department of Environmental Protection
||WVDEP’s Division of Water and Waste Management
||WVDEP’s Environmental Enforcement
||WVDEP’s Office of Mining & Reclamation
||West Virginia State Historic Preservation Office