Just a little more than two weeks before Christmas now, and Pittsburgh-based CONSOL Energy drops a bomb on 500 West Virginia families.
As a Coal Tattoo reader pointed out — and has now been reported by The Associated Press as well – CONSOL plans to lay off workers at its Fola Coal operations near Bickmore. The move affects 104 workers at the Little Eagle Coal Company and 378 at the Fola Coa. Layoffs are scheduled to start Feb. 7 and occur over a 14-day period.
Scott 14, a frequent Coal Tattoo reader and commenter, is one of those impacted, and he deserves his say — I’ll repeat it again here:
Well It had to happen sooner or later. Just yesterday the employees at CONSOL’s FOLA operations were issued a WARN notice. In 60 days all employees, about 300, will be wards of the state. This is brought about by a radical few who have found a liberal Judge and challenged our permit on a technicality. 300 people will now be out of work because a few thought a entire permit should be published in the paper. The economy of Clay county will be devestated. Nicholas county will like wise be harsly effected by loss of coal severence taxes . Just this year 10 teacher positions in Nicholas County are going to be eliminated because of declines in coal severence taxes. Just think of how many will now be effected because this permit in question lies on the border of Clay and Nicholas. This layoff includes all of our underground brothers because they dont mine enough coal to justify the expence of the plant and loadout. Well I hope everyone is happy that a mountain and a hollar that your have never seen. A creek that salmanders wouldnt live in, and trees that have all ready went up in smoke are going to be saved. Please dont give me any of the green economy stuff this morning, Im not in the mood. Im a surface miner, like my father before me. I plan on continuing to be a surface miner. Be it in Wyoming, Nevada, Arizona, Montana or Northern Canada, Ill be tearing up mother earth somewhere.
But what really caused these layoffs?
In its news release, CONSOL said:
CONSOL Energy attributed the idling at Fola Operations to the appeal of its approved permits to mine brought by the Ohio Valley Environmental Coalition (OVEC). Subsequent to that appeal, Judge
Robert C. Chambers, of the United States District Court for the Southern District of West Virginia, Huntington Division, recently issued an order suspending Fola Coal Company’s Clean Water Act Section 404 permit for the Ike Fork portions of Fola Operations effective January 23, 2009. Without this permit, neither Fola Coal Company nor Little Eagle Coal Company can satisfy the required specifications of its coal sales contracts.
The release quoted Nicholas J. DeIuliis, a CONSOL executive vice president:
It is unfortunate that, at a time when reliable and affordable energy is so desperately needed to reinvigorate our economy, that the nation’s energy industries are coming under repeated assault from nuisance lawsuits and appeals of environmental regulations. It is CONSOL Energy’s policy to operate our coal and gas assets safely and within the framework of the laws regulating our industry, but we oppose any efforts to use them to unnecessarily impede our ability to sustain our operations.
To put it into human terms, we are talking about the jobs of nearly 500 of our employees at the Fola Operations, and the impact such legal interpretations will have on their quality of life and that of their families.
While it’s obviously true that U.S. District Judge Robert C. Chambers suspended one of Fola’s key permits, it’s worth looking more closely at why he did so — and what the judge noted could have been done to avoid such a ruling.
This particular mountaintop removal case, brought by the Ohio Valley Environmental Coalition, was about the U.S. Army Corps of Engineers’ practice of not giving the public an opportunity to comment on the “mitigation plans” that are an integral part of Clean Water Act permits for mining operations. As the judge explained in his decision, the Corps justifies issuing mining permits by arguing that these mitigation plans — which often include building man-made streams to replace the natural ones buried by mining — compensate for potential environmental impacts, reducing the end-result impacts to less than significant.
As Coal Tattoo has reported before, the weight of current scientific evidence suggests that these mitigation plans don’t really accomplish what the industry and the Corps say they do. So, when permits are being issued based on those mitigation plans, there’s a clear interest by the environmental community in being able to comment on those plans.
But, the Corps has tried to avoid letting that happen, by putting the permits out for public comment before the mitigation plans are available.
In the case of the Fola permit now at issue, the public comment period took place from April 13, 2005, to May 14, 2005. But Fola didn’t submit even an initial mitigation plan to the Corps until October 2006 — a year and a half after the comment period.
Interestingly, as Judge Chambers pointed out, in this particular instance, the Corps took the unusual step of writing Fola — way back in November of 2004, less than a month after the permit application itself was filed – and asked Fola to submit its mitigation plan. But the Corps went ahead and held the public comment period without the mitigation plan, and then never made details of the mitigation plan public until after the permit was issued in March 2008.
Judge Chambers ruled that, because the Corps never included details of the mitigation plan in its public notice, the agency “failed to provide the public an adequate opportunity to comment.” The judge found:
… The failure to subject any substantive information on mitigation to public review and comment had the effect of shielding the essential data and the agency’s rationale from public hearing and comment.
And, in a concluding note, the judge observed:
… The Court finds it prudent to note that this litigation could have
easily been avoided and the flaw in the original Loadout and Fola Notices easily remedied if the Corps had issued supplemental notices in the instant case. With regard to the Loadout and Fola applications there were periods of approximately nine months and nearly a year and a half, respectively, between the time the company submitted a CMP and permit approval.
Such notice would have apprised Plaintiffs and the public in general of the truly significant issues raised by each proposal, therefore providing the public an opportunity to comment intelligently thereon. Consequently, such supplemental notice would have conserved judicial and other government resources, meanwhile, preventing the expenditure of time, money and stress on the part of Plaintiffs as well as both mining companies.
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[...] Blogs @ The Charleston Gazette – » CONSOL to lay off 500 miners … but who is to blame? blogs.wvgazette.com – view page – cached Just a little more than two weeks before Christmas now, and Pittsburgh-based CONSOL Energy drops a bomb on 500 West Virginia families. [...]
So it is the fault of Consol for not submitting a timely mitigation plan and the fault of the Corps for not issuing a supplemental notice but not the environmentalists that forever are searching for creative legal ways to stop mining permits from being issued, which in turn eliminates good paying jobs and positive economic impact in WV. I’m not buying it.
Perhaps Fola could avoid laying off some of those workers by speeding up its reclamation of its Powellton strip job near Jodie. Maybe they could cut their 18 month reclamation plan in half by giving some of these miners a job.
I have yet to see an article where Ken Ward takes a balanced view. He is merely the wvgazzete extension of these environmental groups.
Try taking a true hard look at the economic impact this is having on our state Ken …. just take a good HONEST look at the people who are losing these jobs. There ARE no ‘green’ jobs coming to replace them. You mr ward with your one sided reporting, are NOT doing your job. You are writing with an agenda.
This is a great article and I thank Mr Ward for looking at the FACTS with this case. I am disappointed and dismayed to read comments insulting the good journalistic work here.
I am proud to be an American and proud that I have the opportunity to comment on permits that companies submit. Unless anyone wants to give the coal industry a blank check to do whatever it wants by eliminating a public comment period of these permits, we’ve got to recognize that OVEC is acting to keep the coal companies to the law. If Fola Coal actually submitted the mitigation plan on time and allowed for public comment & review of the permit, these workers would have a job.
Recognize the facts that Fola Coal violated the law and should be held responsible for the companies actions. If the coal company gave a damn about the workers on this site it would do everything possible to ensure that they don’t get shut down for violating the law. It is Fola Coal who tried to skirt the law and got caught. Irresponsible coal company at its best.
Thank you Mr. Ward for taking the time to do the research and spread this important information.
“But there must be the look ahead, there must be a realization of the fact that to waste, to destroy, our natural resources, to skin and exhaust the land instead of using it so as to increase its usefulness, will result in undermining in the days of our children the very prosperity which we ought by right to hand down to them. . . ”
“I hate a man who would skin the land!”
Teddy Roosevelt
This is a very informative article that Ken has written. It is Fola that broke the law period. Don’t go blaming anyone but the company for this. The judge was correct in his ruling and the coal company was wrong. Now all these families are going to have to suffer for the wrongdoing of their own employer.
Thanks Ken for writing this, and taking such heat for a problem that you did not cause.
Mike mentioned the economics of the matter. I Googled “consol profits” and learned that just last year (as the economy elsewhere was tanking) CONSOL posted their best profits in 15 years (Pittsburgh Tribune-Review, Oct. 24, 2008). July of this year, they reported a “double-digit increase in second-quarter profits” (Pittsburgh Tribune-Review, July 30, 2009).
I then Googled “consol ceo salary”. MarketWatch.com says that CONSOL CEO Brett Harvey makes $3.47M in compensation. I assume that is padded with plenty of stock options. Two subsidiary Presidents make over $4M in compensation.
What does all this mean in light of these layoffs? Business as usual in the coal industry.
Thank you Ken for your story. My sympathies to scott14.
For very sure, my sympathies are with the miners and their commmunities that will be the ones to suffer from this action.
More than a tenth of our country’s workforce is not employed which continues to be a national tradegy as banks and other businesses prosper.
IF Consol wanted to keep these mines open, it would pursue temporary relief and other remedies.
Bottomline is that there more coal being mined than is being bought.
In other fora we have been discussing points of agreement between various otherwise opposing camps. A topic that remains in conversation is whether it would be a good idea to scale a full-scale reclamation assault on pre-law strips and MTR ‘pastures’. We know that the attainment targets for reclamation don’t really resemble anything useful from biological or cultural (think ethnobotanical, for one) perspectives. But that doesn’t mean that these things aren’t possible. If we can not only reclaim but RESTORE, say, a mixed mesophytic hardwood forest (in terms of species diversity and ecosystem function) then many many many arguments will be moot.
As many have said, there are many folks now out of work. While companies post record profits and CEOs don’t feel the pinch. Stopping an MTR permit is a hollow victory if we can’t take care of our people. Even if all surface coal mining (or, really, any other environmental concern) ended today we would still be a long ways from putting the pieces of the puzzle back together to have a system with any sort of ecological integrity similar to pre-disturbance.
This sort of endeavor would have broad support across the scientific and conservation community, I think. The ethical implications could be very serious, however, but from my point of view increasing the number of ramp patches and ginseng hollers in the world is a very very important thing.
Thoughts?
I agree that the mitigation plans should be commented on in FUTURE permits. I stand by our plans and our permit. What gets me is that we have been mining on this permit for 2 years. If you want to comment on this permit, I would sugest that you visit the work force wv office in summersville on feb 8 2010
Scott 14 –
OK … so, in May 2005, when the comment period was going on, environmental groups submitted comments that noted, among other things, that the corps had not made public a mitigation plan yet — and said that the public should be able to comment on that before the permit was issued.
CONSOL and its lawyers knew in early 2005 that this was a legal issue they would have to contend with … so, why didn’t you guys insist that the Corps issue a new public notice and allow public comments on the initial mitigation plan that was submitted October 2006?
That would have meant this legal argument was not an issue for your permit.
Ken.
Also, Scott 14, here’s a link to my Gazette print story:
http://wvgazette.com/News/200912080753
It points out, among other things, that the permit at issue in front of Judge Chambers was not issued until March 2008. If that’s true, you could not have been mining on it for two years.
Ken.
You are taking the things that these miners don’t have control over and telling them Well if your company did this or did that you may still have a job. Or you say that the Corp. didn’t do its job. You tell me and everyone in the next year that is going to lose their jobs what will the government do about all the employee’s they won’t need. They could have a huge lay-off right now because we are having inspectors on top of inspectors come on our job because they don’t have any other jobs to go to. Our inspections have tripled in the last six months. Lets go get rid of them too. Where is compromise when you take my job with a smug grin on your face.
Just an obseration about the accusations of Ken Ward’s so called “bias”. I have been watching the channel 11 news, and they don’t seem to have much problem in only reporting part of the story, focusing only on the job loss and effectively stirring up the fears associated with that. They even go on an editorial rant within the story talking about “out of state” influences trying to shut down MTM, effectively marginalizing West Virginians with real concerns about MTM. I am surprised that it wasn’t implyed that this closure was a direct result of yesterday’s rally.
So between Ken’s “bias” and channel 11′s “bias”, does that make it even?
Scott 14
Don’t worry Scott help is on its way. There is a young Bush getting ready for the White House. 2010 should make some changes too so hold on you are not alone.
STEVE makes you wonder about companies that run their business that way.
The Enviros stated goal is to end strip mining. They spend every waking hour contesting permits on every imaginable legal nuance, covert trespass operations and constant protests. Now, when 500 men lose their jobs as a direct result of their hard work they spend hours and hours and pages and pages of text to try to convince us that they had nothing to do with it, typical spineless, milquetoast environmentalists.
scott14,steve,olly and mike,thanks for some of your comments.i quit commenting here,but had to poke in here this time just to give kudos to you guys that see it the same way i do.
Im so sorry ken. I meant to say 21 months. Please forgive me. By the way, of the about 500 employees that are about to get it in the neck about 10 had any say in how the permit was submitted.
Here’s an interesting story that might be relevant to this issue:
http://www.statejournal.com/story.cfm?func=viewstory&storyid=64297
Despite posting a $113.3 million net profit for the second quarter, CONSOL Energy CEO J. Brett Harvey said the coal industry needs to show production restraint going forward.
Harvey said coal prices have been seriously impacted by the economic downturn: Demand is down, and mine operators, as well as utility customers, are stockpiling inventory. That excess will need to be burned off before prices can begin to rebound, he said.
Ken.
There is more to the story, the umwa has an active organizing drive at fola coal. This is a legal manuvere to rid the workforce of union supporters. They have a mill. tons on the ground to fill the orders they have for early 2010. Because the workers at fola have no union contract, they are at the whim of consol. therfore when they call back workers they will eliminate the union activist. The umwa will not sit idley by and let this happen. we will take this to a vote and win the right for the workers to bargain a call-back procedure that is fair and just. Did Consol permit experts screw up? YES. But why should the employees and their families suffer? And to all you coal haters (enviros) the miners at fola live in the area they are mining and they go that extra mile to mine coal safe and work hard to mine coal in a environmentally responsible way. The hard working miners at fola suffer and the big whigs at consol are laughing all the way to the bank. The mine will re-open and you can take that to the bank, but it will be with a umwa contract and all the protections that come with it. Please spend more time attacking operators who have a proven record of violating the permitting process and you know who that is. God Bless the fola miners and their families.
I just want to clear up a few misconceptions that you all have been floating around on this blog. First, Ken, Consol and its lawyers did not know that this “was a legal issue they would have to contend with”. Why? Two reasons. First, Consol did not own Fola Coal in 2005. Check your news archives. I speak the truth. Additionally, Fola Coal didn’t do anything wrong that would warrent lawyers thinking that there was a legal issue they would have to contend with in terms of public notice and mitigation plan. At the time, and remember this was four years ago, the USACE routinely issued public notices based on conceptual mitigation plans. It wasn’t until this issue was brought forth by the OVEC lawsuit that the USACE finally said, no, we need complete applications to go to public notice. So people need to stop blaming Fola and Consol. Fola didn’t do anything “illegal”. They weren’t trying to HIDE anything from OVEC or any other environmental group. Perhaps they submitted an application prematurely, but this isn’t illegal and the regulatory climate at the USACE is such that companies are always playing catch-up anyway.
So let’s address this issue as it should be addressed. Chambers found fault with the way the USACE was doing business, not Fola. It is no ones fault at Fola that the miners are being served with lay-off notices. Fola and its employees are victims of circumstance. They are caught in the middle. OVEC needed to make a point, and Fola was there to be used as an example. I personally don’t think that the USACE believed they were doing anything wrong either. They were doing there jobs and following the regulations as interpreted in Washington. Not here in Huntington (or Pittsburgh). So yes, Chambers says their interpretation was incorrect, but that doesn’t mean that anyone was “breaking the law” or trying to do things illegally. Remember, Fola wasn’t the only company caught up in this “public notice” ruling. Loadout was too. And you can be certain as a result of it there will no longer be any public notices that are based on anything other than a complete permit package.
Thanks for the opportunity to set things straight.
kds,
you have a point about the CONSOL purchase of Fola. This permit was applied for originally in October 2004. The public notice was April and May of 2005.
Our archives indicate CONSOL announced its purchase of Fola in June of 2007. The permit was issued in March 2008.
As I pointed out in my print story, http://wvgazette.com/News/200912080753 , Judge Chambers indicated that the procedural flaws with the Fola permit “did not stem from any wrongdoing” on the company’s part.
Environmentalists commented on the permit during the comment period in early 2005 and, among other things, asked to see the completed mitigation plan. Remember that the Corps actually asked Fola to provide the complete plan back in November 2004, just after the permit was issued.
The legal challenge to the Fola permit and was filed in April 2008, the month following the permit issuance.
No decision was made until November 2009. Judge Chambers’ point seemed to be that during all of that time — from April 2008 through November 2009 — there was plenty of time for the Corps to cure the procedural defects by issuing a new public notice. Or, Fola (CONSOL) could have asked the Corps to do so. But instead, the company and the Corps opposed the idea that they should have to include the mitigation plan in the public notice and public comment period.
No … this isn’t the miners’ fault. That should be obvious.
But everyone should get the facts straight as to what exactly went on here.
Ken.
Why would you cure a procedural defect if you didn’t think one had occurred? Of course no one made changes during that time frame because they believed what they had done was correct. Remember we are dealing with the agency’s and the judges (and OVEC’s lawyers) interpretation of the regs. It’s like grey/gray, it could go either way…. If you get pulled over, and you know you weren’t speeding, you don’t say, okay officer, just give me that ticket, and then I will pay that ticket, even though I know I wasn’t speeding, and then I will see you in court. NO, you take the ticket and you go to court and then you deal with what the judge hands down.
The bottom line is that it is going to be a rough Christmas for a lot of folks at FOLA. Whether you like mining or not, no one likes to see folks out of work and families hurting, particularly around such a special time of year.
unionman1 – Thank you for posting that information. Good luck to everyone who is working on organizing efforts there. I firmly believe that we are all much better off with union mines. If we are ever going to reach a day with zero fatalities in mines, it is going to be in large part because of the dedicated hard-work of UMWA.
There are no “winners” when a mass layoff like this occurs.
Kennedy put your hand down and look at the children who are loosing a chance for college, could loose the home they live in, not to mention the healthcare that i consider among the best around. I must say that that I am very proud of my husbands job , and what it provided my family. A good life that is about to end and there is absolutely nothing I or my children can do about it. This job provided hope for many children, not just mine, but all the children of Fola employees. “This is a moral issue,” he said. “We don’t have a right to destroy what we can’t re-create. Ok RFK you are right when these jobs are gone for the Fola employees they are gone forever. The winner here will likely be the state of WV when they have to subsidize these childrens lunches, medical care. Look out welfare and unemployment lines here we come.
Pam, I feel your pain. I am also a employee at FOLA. Hopefully all the positive press we have received will help put pressure on this adminastration and this judge. I have talked with a host of local elected officals here in Nicholas County. Most hit the roof when they heard the sad news of the layoffs. They have assured me that they have been in contact with the governor and our reps in Charleston and Washington. Rest assured that we may have lost in Federal Court but we are winning by a landslide in the court of public opinion!
I do feel sad about the lost jobs. That’s the human side of this that makes this such a complex issue. It had to be rough when the timber workers lost jobs because of the spotted owl and nothwesterners were all worked up about saving old-growth forests. It has been equally tough for thousands of Pittsburgh steel workers. And the Detroit car manufacturers…But has anyone ever driven up and waded in Leatherwood Creek where Fola valleyfills discharge too? Has anyone seen the black manganese scum and yellow gypsum crust all over the rocks? The kids playing in the creek catch black crawdads. It’s severely polluted. Did you know DEP data on the web shows conductivity >2500 below these Fola reclaimed jobs? Toxic Golden Algae (like in Dunkard and Cabin Creek) could thrive in water that salty. The Elk has endangered fish, and lots of rare mussels to kill by turning Lilly Fork (the disputed permit) into another Leatherwood and fostering the growth of toxic, fish killing algae. Fola pollutes Twentymile Creek too with even more toxic salts and manganese. Check out google earth and see the reclaimed footprint and look at the DEP trend stations data. This pollution in Leatherwood, Twentymile, and Lilly Creek might be the worst alkaline coal mines in WV. Just go there and see it. The mitigation/permitting problem at the heart of this litigation is arbitrary–because any mitigation offered by the industry is just a facade. Basically, now we have so many laid-off workers and and on top of that, severely polluted watersheds.. Maybe Consol didnt know what they were getting themselves into when they bought Fola coal. They should now pay all the laid-off employees to clean that mess up. Otherwise, clean up will be the eventual burden of good tax payers of WV (as well as the “outsider” tax payers-because most of the clean up dollars will come from federal funds). Coal executives are getting off sweet.
No one seems to note that the articles concerning the layoffs, though they do specifically blame environmentalists, also state ANOTHER cause.
From Senator Byrd’s recent opinion piece:
. . . “Let’s speak the truth. The most important factor in maintaining coal-related jobs IS DEMAND FOR COAL. Scapegoating and stoking fear among workers over the permitting process is counter-productive.”
From Consol layoffs articles:
500 CLAY MINERS FACING LAY-OFF – Environmental Groups Say Rules Ignored
(12/09/2009)
“ Consol says when the permits are corrected and THE MARKET IMPROVES, the mine will be reopened.”
Beckley Register-Herald
Consol blames activists for mine layoffs
From Staff and Wire Reports
“?In addition, DeIuliis said that the long-term economic viability of the Fola operations remains uncertain DUE TO ADVERSE MARKET CONDITIONS for the coal product mined there.”
jpd22, i have no idea what stream your talking about. Leatherwood creek is clear. I fished it last year. Nice trout in there. I know your going to think im biased. I am . But my Grandfather was raised on Leatherwood mountian. We sold the property to FOLA years ago. As for the alkaline discharges im not sure. i have never caught a black crawfish in there. I havent see black rock other than natural Kanawa black flint that is native to the geology of the area. We have a lot of people that live and play on Leatherwood, Lilly fork,(was deerhunting in there the other day), and Twentymile Creek(Was camping at the old twentymile church,where by the way my great grand parents are laid to rest). So when I tell you that I know the area and the creeks and the nook and crannies of these hollows. Believe me.
Scott, I appreciate and respect your words. Some of those hollers are indeed beautiful places. But dont you believe filling them in is causing the downstream damages? The DEP has listed all of the streams I mentioned as impaired and are on the 303d list. Go up Leatherwood above the last houses, and start picking up rocks. The manganese will coat your hands black. Same in Rt. Fork Leatherwood. Go up 20mile before the mine, and pick up the rocks and see the black. That same black is part of the reason the bugs (the indicators of stream health) are impaired. The water runs clear, but the toxins are invisible. The salty water is unacceptable to much of the native freshwater life. Some fish can handle it. Trout like rainbows and browns are very tolerant of alkaline mine pollution. I guess one’s idea of environmental health differs from someone elses. I respect that, but DEP (using pretty industry-friendly indexes and criteria) have found those 3 streams are impaired from mining.
Make no mistake fola will reopen. The only people going to suffer over this are the ones layed off. Please correct me if I am wrong, but to my knowlege no-one has put in print that these people layed of will be called back.
No Pam, the statement we recieved says that the layoffs are expected to be permanet.
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[...] it as proof that environmental lawsuits and regulations were putting good people out of work. But, as we have been through on Coal Tattoo, the reality in this instance — as in most of these disputes about coal — is a bit more [...]
[...] released this letter that the West Virginia Democrat sent to the Army Corps of Engineers regarding the potential layoffs of 500 CONSOL Energy miners in Clay County, W.Va.: On November 24, 2009, Judge Robert C. Chambers of the U.S. District Court for the Southern [...]