Word just in from CONSOL Energy Inc. that will be welcome news for 500 coal miners and their families up in the Clay County area of West Virginia.
U.S. District Judge Robert C. Chambers has granted CONSOL an extension, allowing the company to continue operating at its Ike Fork Mine, despite the lack of public input on a mitigation plan for the company’s Clean Water Act permit.
In a three-page order signed yesterday, Chambers granted CONSOL subsidiary Fola Coal’s request for the extension, giving the company authority to continue to operate “pending further order of the court.”
Recall that earlier this month, Chambers blocked Fola’s permit after ruling that the U.S. Army Corps of Engineers wrongly denied the public a chance to comment on the mitigation plan, a key part of large surface mining permits. The ruling prompted CONSOL to announce that it planned to lay off 378 workers at Ike Fork and 104 workers at the related Little Eagle Coal Co. underground mine.
In a news release, CONSOL vice president Nicholas J. DeIuliis said:
We are very pleased by Judge Chambers’ ruling, which is welcome news to our nearly 500 Fola employees and their families, especially during this Holiday Season. This ruling will allow us to re-focus our attention on operating the Fola Complex safely, efficiently and in an environmentally sound manner.
According to court documents, the relief granted by Judge Chambers will allow Fola to continue mining for at least another 12 months.
Chambers ruled favorably on a motion Fola Coal lawyers filed about a week before Christmas, asking the judge to allow them to continue mining in certain valley fills at the operation. They argued that Fola had already begun these fills — under previous agreements with environmental groups and the court — and that continuing those filling operations would not result in “significant environmental harm”:
With regard to each of these fills, clearing and grubbing has been completed, the existing streambeds have been removed, the substrate has been collected and stockpiled, and [Surface Water Runoff Analysis] structures have been constructed in the former stream channels within each of these valley fills.
Lawyers for the Ohio Valley Environmental Coalition filed a brief in which they did not oppose Fola’s request to continue operations in those areas. (In fact, if you read the Fola motion on this matter, you’ll see that this isn’t the first time that citizen groups and Judge Chambers both bent over backwards to allow Fola to keep mining coal, despite legal questions about the company’s permit. Oddly, CONSOL executives, coal industry lobbyists and local politicians haven’t mentioned that fact in any of their rhetoric over this mine).
Subscribe to the Coal Tattoo
[...] Blogs @ The Charleston Gazette – » Judge Chambers allows Fola Coal to keep mining blogs.wvgazette.com – view page – cached Word just in from CONSOL Energy Inc. that will be welcome news for 500 coal miners and their families up in the Clay County area. [...]
It may or may not be good news for the strip miners.
According to Platts Coal Trader, “A federal judge has allowed Consol Energy to continue working on six valley fills at its Fola Coal mining operationsnear Bickmore, West Virginia, lifting an earlier ruling that ordered mining to cease January 23. But that doesn’t mean that Consol will lift a layoff notice it imposed on the operations in early December, a Consol spokesman told Platts on Tuesday (PCT 12/9). If Consol goes through with the layoffs, as originally planned, 482 workers at Consol’s Ike Fork operations could lose their jobs. Now, they will be working at the operations at least through the first week of February, when the original layoff notice would have taken effect. “Now that we’ve got the ruling that we could mine in those six areas, we’re just going to mine as long as it takes to complete” the job, company spokesman Joe Cerenzia said.
DaisyMay,
The Associated Press included some similar quotes in its account:
http://wvgazette.com/ap/ApTopStories/200912290427
Consol spokesman Joseph Cerenzia said while Chamber’s ruling averted any immediate layoffs, the company would not lift its WARN notice. The federal Worker Adjustment and Retraining Notification Act requires employers to give employees 60 days notice before layoffs or plant closings occurs.
“The WARN notice is still in place because there are other issues in place,” he said. “There are still outstanding permits … maybe there might be some other environmental challenges.”
I don’t know about the Platts story you refer to, but the AP story failed to point out something very significant which I tried to make clear in my print story:
http://wvgazette.com/News/200912290374
“… The move will allow CONSOL to continue to operate for at least 12 months, according to a sworn affidavit signed by Fola general superintendent John Goroncy.”
I’ve posted a copy of that affidavit here:
http://wvgazette.com/static/coal%20tattoo/fola_affidavit1.pdf
And to quote the important part:
“If the stay requested in Fola’s motion is granted, the ability to continue using the six previously approved fills is anticipated to provide the Ike Fork Surface Mines with an additional 12 months or more or mining activity.”
So … if the layoffs continue anyway, perhaps that means that the court case and Judge Chambers’ ruling didn’t have a darned thing to do with it, huh? If that turns out to be the case, will political leaders criticize CONSOL for misleading everyone about the situation?
Ken.
How exactly could the company be accused of being misleading? Shouldn’t it be allowed to do everything within its legal power to maintain its ability to operate the mine? If CONSOL continues with the layoffs as planned, even though it could mine longer than that, it would likely be a market-driven decision, and let’s face it, the market for coal is still not very good right now because of low demand and very high coal inventories at electric utilities.
But CONSOL still has to the operate like the market could improve at any time, and that means keeping as many options open as it can, including running its Fola operations if it needs to.
Also, what is the harm in keeping the WARN notices active, at least from a business perspective? If the company needs to proceed with the layoffs, for whatever reason, it still can, and if it doesn’t need to it doesn’t make the layoffs. If it pulls the notices now and then something changes, which is definitely possible in the breakneck speed of the current regulatory climate for coal, then the WARN process would have to start all over.
Mike,
When it initially announced the layoffs, CONSOL specifically blamed the legal action and Judge Chambers’ order — and ONLY the legal action and Judge Chambers’ order. See their press release here:
http://phoenix.corporate-ir.net/phoenix.zhtml?c=66439&p=irol-newsArticle&ID=1363391&highlight=
If there were other factors, it was misleading for the company not to mention them as well.
And in their legal filings seeking this extension from Judge Chambers, they certainly did not mention any possibility that the layoffs would occur regardless of what Judge Chambers did. If that was a possibility — or if it was likely — they should have mentioned it to the judge.
The coal industry and its political supporters are playing a nice game of demanding “certainty” from regulators … what about the company providing that same “certainty” to the public, regulatory agencies and, oh, I don’t know, it’s workers …
Ken.
By the way, Dear Readers, this particular Web site might be of interest to folks following the story of Fola Coal:
http://unitedwebargain.org/FOLA.html
It explains why some workers at Fola want to join the United Mine Workers union, and gives some examples of the company’s actions toward its workforce.
It also links to this AFL-CIO blog post:
http://blog.aflcio.org/2009/04/17/mine-worker-punished-for-trying-to-form-a-union/
Ken.
And didn’t Governor Joe Manchin visit the Fola website because he wanted to make sure that Fola would continue working if they got this permit? Didn’t you do a story on that, Ken?
Sorry — worksite, not website.
I asked Matt Turner, Gov. Joe Manchin’s communications director, for a reaction from the governor on this development … here’s what he said:
The governor is pleased with the decision. He said we can’t control market conditions, but without the permits, there is no incentive for the company to develop a permanent plan or to commit to investing there.
He understands they are working to fix a lot of problems from the past and that we must mine responsibly and in an environmentally conscious fashion. The extension hopefully can give them an opportunity to work through the concerns of the judge and the groups that brought the suit. This all must be worked out for the longevity of the mine and the jobs that it creates.
Our concern is that the company doesn’t pull its assets and if the previous ruling left them uncertain and they didn’t have a chance to run this operation in a responsible manner, then that was a possibility.
That’s what the governor would ask for – is that they keep their assets there and work for the longevity of the mine. We can’t control market conditions with the current downturn in demand for coal, but we will do all we can to assist. We believe this market will change and demand will pick up and get them back to work, and the opportunities for future jobs in Clay County would still be there.
Rumor has it, that after the first of the year, Consol plans to change the work schedule, to reduce the number of workers needed and lay off around 33%. We currently have a union organizing drive underway, and those of us supporting the union are concerned that this may not be done the correct way…by seniority and qualification. Most employees feel that a layoff will occur, and the way it stands, now, those who may be laid off have no call back rights. If Consol Energy truly cared about their employees, why did they state in the warn notice that these lay offs would be permanent instead of stating that if the issues were resolved the workers would be reinstated?
[...] It turned out, for example, that CONSOL had already started the valley fill in question and — as company officials undoubtedly knew — all they had to do was ask Judge Chambers to stay his ruling if they wanted to keep operating. [...]