Massey Energy has won another round in a fight over its plans to build a second coal silo near a Raleigh County elementary school.

Massey said Wednesday that a Kanawha County Circuit judge has upheld the state Surface Mine Board's decision allowing construction of the silo. But Massey says it won't begin construction until it confers with Governor Joe Manchin and officials at Marsh Fork Elementary School.

Massey says it's waiting because of concern the case has generated.

The ruling is a loss for the state Department of Environmental Protection.

The agency had denied a permit for the silo, then appealed to circuit court after the Surface Mine Board overruled that decision.

The board determined D.E.P. had no basis for rejecting the permit.

A D.E.P. spokeswoman did not have an immediate comment on the ruling