FOSTER

(September 2001. See update May 2003 at bottom)

    Dickie and Tressie Judy thought they had found the perfect place for their dream home. They bought the close to 100 acres at the end of Foster Hollow in Boone County. Several acres of flat land would be an ideal setting for the house and an expansive lawn. Forested hills rose on either side, providing a home for deer, bear and other wildlife. Dickie is a contractor, and he built them a stately white house. Everything was going to be perfect. He even let the house settle for a year before moving in.            

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    Dickie had lived around the coal fields most of his life so he knew that mines were usually close by. There were some old deep mines in the hills, but they were mined out. What he didn't know, though, was that A.T. Massey planned to mine the mountains within half a mile of his home--and they would be there for at least a decade.

    The first he heard about the mining was when he received a notice that he qualified for a pre-blast survey because he lived within half a mile of the mine. The survey was done in September 1994, along with one of he rental house nearby. Within a few months, he had moved into the house and filed his first of what would become years of complaints.

    Dickie Judy could be the poster child for blasting. For six years, he has gone to every level of state and federal agency and governing body. Amazingly, most agree that the blasting from the mine is causing problems. Yet, none want to order something done.

    Bill Cook has been the DEP inspector the entire time. He jumped right in and issued a violation: "failed to prevent damage to private property outside of the permit areaź Elk Run Coal Co. must provide a list of repairs that it is willing to make and a time frame for such repairs by Friday 3/24/95."

    On March 30, 1995, OSM inspectors Mike Superfesky and Richard Frazier inspected the Judy’s two houses along with Bill Cook. About the older house, OSM found: "I totally agree with the WV DEP that it is obvious that the paneling separations in three different rooms of the house was caused by blasting. It is also obvious that the age, type of construction, and type of foundation make this older structure more vulnerable to both air and ground-induced loading. The dynamic response of non-conventional pier or rock footings and non-conventional floor and wall framing to ground vibration is different from that normally expected in the more conventional system; therefore a larger scaled distance factor is required to insure protection of a non-conventional structure."

    About the Judy’s new house, OSM wrote: "has also sustained additional cracking from the time of the pre-blast survey conducted in September, 1994. Currently many of these cracks are considered minor or threshold cracks, particularly the cracks in the room corners and at the intersection of walls and ceilings; however, there are documented changes in the size and number of cracks since blasting commenced. Based on the age and the excellent quality of the design and construction of this house, it is evident that this house can resist greater air or ground-induced loading than the older, non-conventional house. It is also very possible that in addition to air blast, this house is being subjected to low-frequency ground vibration that are near the natural frequency of single family frame structures and particle velocities could be amplified within the structure." And this was happening when the blasting was 5,000 feet away.

    DEP inspector Cook issued three violations for blasting, which forced DEP to issue a cessation order. Massey appealed to the Surface Mine Board, which overturned the blasting violations in July 1995.

    Next OSM issued a Ten Day Notice on August 8, 1995, saying that Elk Run failed to conduct blasting operations so as to prevent damage to private property outside the permit area. In December 1995, OSM issued a violation and ordered Elk Run to improve its blasting designs. In March 1996, Federal District Court ruled in Elk Run’s favor and overturned the OSM order.

    Meanwhile Judy had gone to Washington, D.C., to testify before Congress about the harm of cutting OSM’s budget, which happened anyway.

    Interestingly, his case became a dilemma for OSM’s Nationwide Blasting Work Group in early 1996. OSM had found damage at the older house at a vibration of .2 inches/second. Blasting regulations are based on the theory that no damage will occur below 1 inch/second. Since the Work Group has not issued a final report, the resolution is a mystery.

    OSM made another inspection on April 2, 1997. After finding two air blast readings of 128dB, the inspector recommended more stemming (cover over the explosives in the holes) and smaller diameter holes. It appears that holes were reduced from 9 inches in diameter to 7 and 7/8 inches only about a third of the time.

    In the summer of 1998, Dickie Judy hosted a tour of the legislative committee studying blasting. He also lobbied the legislature for better laws.

    After a series of particularly hard blasts in the fall of 1999, DEP Director Mike Castle issued an order that air blasts should be reduced. However, Massey threatened to sue, and DEP backed off the order. Instead, Darcy White and Jim Miller of the Office of Explosives and Blasting convinced the mine to submit a revised blasting plan, which included longer delays and shots in sections. In March 2000, the mine got a new manager, Mike Snelling. He said he could minimize the complaints, but not eliminate them. However, from the Spring through November, the blasting and mining was being done in an area of the mine far away from the Judy’s home. Inspector Bill Cook said they won’t be able to determine how much the new blasting plan has helped until the blasting comes closer to the homes in a few months.

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    Most recently, the engineering expert for Bailey & Glasser found that Judy’s home has $5,000 in damage from blasting. However, it is too small an amount for them to take on as a lawsuit. Mike Mace, director of DEP’s Office of Explosives and Blasting, refused to order the mine to fix the damage based on the engineer’s finding.

    During the first six months of 2001, the blasting finally let up. In fact, the mine management actually apologized the one time there was a hard blast. Dickie Judy is hopeful that the mine is trying to curtail the blasts. DEP inspector Bill Cook is more dubious. He said that people living near another part of the mine are having problems. Soon the mining will be close to the Judy's again. Cook is anticipating more problems. Let's hope he's wrong.

(May 2003)

    In the course of six months, the blasting went from unbearable to the best it's probably been in the eight years of mining behind the Judys' home. In the fall of 2002, the mining had finally returned to the area on the hill just behind the house. The blasting was horrible, Judy said. He called DEP; an inspector came; but nothing seemed to improve.

    Then he and Tressie were in a car accident, when a car slammed into theirs as they turned out onto Route 3. Tressie's feet were broken. Meanwhile the blasting continued. And when they had somewhat recovered from the accident, Judy started complaining again--emphatically. He called the mine and DEP.

    DEP sent a new inspector, Dallas Runyon, who jumped right on the problem. (Bill Cook left DEP late in 2001. He died of a heart attack while jogging in November 2002) Soon DEP and Elk Run had both set up seismographs. Next came the rock and coal dust, since the mine was at the edge of their property. The dirt was so thick on the house and cars that DEP wrote the date in the dust on a car and took a photograph.

    Occurrences seemed to conspire in the Judys' favor this time. DEP had asked to see some of the dust. Then a cloud descended on the house. Dickie called DEP, and they were there in time to see it. Now the mine is under orders not to blast when the wind is out of the southeast since that carries the dust over the Judys' property. The mine has also installed a weather station on the Judys' hillside.

    If that weren't enough, the company that supplies the blasting powder and helps design the blasts came down to the Judys' house to look at the seismograph and see what could be done to stop the shaking. It was late in the day, and the mine had said it was through blasting. While the man was talking with Dickie, a huge blast went off. "It makes a lot of noise," he told Dickie. He then began to experiment and finally changed the frequency of the blasts. That seemed to work. The house doesn't shake anymore.

    This time the blasting and dust have been so bad that Judy's neighbors have been asking him what they can do to stop it. He tells them he doesn't know. "I asked them years ago to get involved," he said. "They didn't want to do it."

    Soon the mine will move back away from Judy's house, probably for the last time. There will no more mining nearby. Elk Run has applied for a permit on the mountain in front of the Judys's home. Dickie doesn't think that blasting will impact the house.

    There's just one outstanding problem: the $5,000 in damages. The Office of Explosives and Blasting still hasn't ordered Elk Run to pay. However, they are working on it. An official asked Dickie for another copy of the findings of damage. Perhaps that will settled soon. Dickie's not counting on it.