Arch Coal hasn’t responded to my requests for comment about what’s going on down at Blair Mountain, but they did apparently provide a statement to the folks at E & E’s Greenwire … here’s what is being reported by that subscription-only publication:
Arch spokeswoman Kim Link dismissed the concerns that mining activity is imminent.
“We are not currently conducting any mining-related activities in the area in question,” she wrote in an email, “and we have no immediate plans to do so.”
Well, the folks at the Sierra Club just issued a press release headlined, “Is Arch Coal About to Mine Historic Blair Mountain? Local and National Groups Rally to Townspeople’s Defense.” They say:
Residents of Blair, West Virginia have noticed increased activity from mining company Arch Coal around the historic Blair Mountain Battlefield site. Members of the town have become more and more concerned about Arch’s activities and fear they are moving forward with plans to mine the Blair Battlefield site. There have been reports of proposed buy outs of resident’s property, increasing industrial activity in the area and other preparations indicative of a move towards mining operations on the battlefield itself. Blair Mountain is the site of the largest civil insurrection in American history since the Civil War. In 1921 more than 10,000 coal miners fought forces backed by mining interests in an attempt to organize unions in Logan and Mingo County.
It’s interesting … because nearly a dozen people I’ve talked to today — including some with close ties to the Sierra Club and other environmental groups — have told me when I asked that they don’t really know what’s going on. Even local folks who are watching developments very closely aren’t sure that the increased activity is any indication that strip-mining of the site is imminent. (One even told me it’s possible that the movement is in preparation for planned longwall mining underground).
I first heard about this yesterday from filmmaker-activist Mari-Lynn Evans, who told me to get more information from retired miner-activist Joe Stanley. And Joe told me I should really talk to Brandon Nida, the executive director of Friends of Blair Mountain. I talked to Brandon today, and what he told me he’s witnessed himself and heard from residents was pretty close to what the Sierra Club recounted in its press release:
There’s been a huge amount of activity in Blair, with equipment and logging trucks. It does look like Arch is going to be doing something.
Here in West Virginia, most political leaders can’t say enough nice things about CONSOL Inc.’s plan for the Buffalo Mountain Surface Mine, a project associated with construction of the much-touted King Coal Highway from Bluefield to Williamson.
But officials from the U.S. Environmental Protection Agency have always had questions about this particular mining proposal, having objected to it from President Obama’s first day in office. And now, top EPA officials have issued another major new letter about the Buffalo Mountain Surface Mine, basically challenging state regulators and the company to come up with ways to reduce the operation’s projected environmental impacts:
The EPA’s review of the mining operator’s proposal indicates that feasible, cost effective steps are available to be incorporated into the operation to avoid and minimize the significant, adverse environmental and water quality impacts associated with the Buffalo Mountain mine. Unlike Buffalo Mountain’s mine design, modern, technically feasible and cost-effective mining practices are being proposed and incorporated by many mining companies into their mine designs with the intent to significantly reduce the adverse effects to the aquatic ecosystem.
That’s from this letter, sent last week to WVDEP mining director Tom Clarke by Jon Capacasa, director of EPA’s water protection division at Region III headquarters in Philadelphia.
EPA said that this permit — a 2,308-acre proposal for the area between Belo and Delbarton in Mingo County — “is among the largest single mining projects ever proposed in Appalachia” and that “the scale and magnitude of environmental and water quality impacts from the mine as currently proposed are as significant as any mining operation we have reviewed in the pats 20 years.”
Federal officials noted that the mine will bury nearly 10 miles of streams with waste rock and dirt, and the Clean Water Act pollution discharge permit at issue in this letter (as opposed to the Section 404 permit from the Army Corps of Engineers, which EPA previously questioned) includes 159 water pollution outfalls, including 12 outfalls to handle discharges from the 13 proposed valley fills.
Citing its 2011 report, The Effects of Mountaintop Mines and Valley Fills on Aquatic Ecosystems of the Central Appalachian Coalfields and the 2005 Environmental Impact Statement on mountaintop removal, EPA said in its letter:
The current scientific literature has increasingly documented the adverse water quality, environmental, and public health effects of Appalachian surface coal mining. Mountaintop mines and valley fills (MTM-VF) generally lead directly to five principal alterations to stream ecosystems: (1) springs, ephemeral, intermittent streams and small perennial streams are permanently lost with the removal of the mountain and from burial under fill; (2) concentrations of major chemical ions are persistently elevated downstream; (3) degraded water quality reaches levels that can be lethal to stream life; (4) selenium concentrations are elevated, reaching concentrations that have caused toxic effects in fish and birds; (5) macroinvertebrate and fish communities are consistently and significant degraded.
(Not for nothing, but it’s interesting that EPA noted in passing impacts on “public health,” but provided no additional details, not citing the recent papers that link living near mountaintop removal to increased rates of birth defects and cancer. The agency has previously testified to Congress about these studies and cited them in rejecting the Spruce Mine permit.)
In a much-followed motion on a major permit challenge, U.S. District Judge Robert C. Chambers has refused to allow citizen groups to argue that the federal Army Corps of Engineers wrongly failed to consider the growing scientific evidence that links living near mountaintop removal mining operations to increases risks of serious health problems, such as birth defects and cancer.
Judge Chambers issued his ruling on Monday, and I’ve posted a copy of his six-page opinion and order here. Readers may recall that Alpha Natural Resources was fighting an effort by the Ohio Valley Environmental Coalition and other groups to present testimony about the long list of West Virginia University studies that have raised serious questions about mountaintop removal’s public health impacts. OVEC and the other groups are challenging a Clean Water Act permit the Corps issued for Alpha’s proposed Reylas Surface Mine in Logan County.
The judge cited the provisions of one of the Federal Rules of Civil Procedure, and a U.S. Supreme Court case that says that lawsuits like this one should generally be allowed to be amended or supplemented unless the proposed amendment would be “futile.” He also cited case law that describes how the National Environmental Policy Act purports to apply to these situations (see here, and here, for example).
Judge Chambers made two central points in this short decision.
First, he ruled that the Corps had already issued the permit, so that any federal action requiring NEPA review was over and done with — despite the fact that the actual, on-the-ground mining work that the plaintiffs are concerned about hasn’t started yet. Commenting on what citizen groups were trying to do, the judge wrote:
… The Corps’ duty to supplement [its analysis of the proposed permit] would continue so long as environmental impact remains to be realized from the permit decision. This position simply cannot be correct in a world where the impacts of permitting decisions are potentially permanent … Once the proposed action [which the judge defines as permit issuance -- not mining activity] is completed, an agency’s duty to supplement terminates.
Second, the judge concluded that even if he allowed the citizen group lawyers to get the health studies into the case, they would still not be able to prove that the Corps’ failure to consider them in the permit review was arbitrary and capricious, the legal standard for overturning a Clean Water Act permit issuance. According to Judge Chambers:
Where, as here, the new claim is based on studies first published after the agency has met its initial NEPA obligation, the inquiry ‘must be framed in terms of information available during a specific time period, with recognition of the fact that an agency cannot have acted arbitrarily unless it has had a reasonable time to consider the alleged new information.
More specifically, Judge Chambers argued:
Having been presented with the newly published Hendryx studies for the first time in this lawsuit, the Corps has not had a reasonable opportunity [to] consider them, let alone to take action that could be found to be arbitrary and capricious.
Photo by Vivian Stockman, Ohio Valley Environmental Coalition
In federal court down in Huntington, attorneys for the Sierra Club and other groups have just filed copies of a major lawsuit settlement that insiders are saying could require Patriot Coal to spend hundreds of millions of dollars to treat selenium pollution from three of the company’s major mountaintop removal mining complexes here in West Virginia.
The deal will require Patriot to build and operate new treatment systems for 43 water discharge outfalls on 10 different permits — far more than 14 outlets covered in a previous deal with Alpha Natural Resources or the five outfalls included in a settlement with Arch Coal.
And think about it — the most recent financial filings from Patriot say the company was already expecting to pay $95 million to install treatment systems for just four outlets at two of its mines, under a 2010 ruling in which U.S. District Judge Robert C. Chambers held the company in contempt for not moving quickly enough to end its selenium pollution violations (see here, here and here for more on that case)
Attorney Joe Lovett, executive director of Appalachian Mountain Advocates, which is representing citizen groups in selenium cleanup litigation, told me today:
This is the culmination of years of work on this issue. We’re very pleased that the coal industry will have to pay the costs of its business and clean up polluted waters.
This new settlement — which I’ve posted online here – covers water pollution outlets at Patriot’s Hobet 21 complex along the Boone-Lincoln border (where selenium pollution has been previously documented here and here), the Samples Mine complex in the Cabin Creek area, and the Ruffner Mine in Logan County. According to the Sierra Club:
The settlement requires Patriot to install treatment technology on a set schedule to bring selenium discharges within acceptable levels. In addition, the company will pay penalties of $7.5 million, with the vast majority of those funds directed to the West Virginia Land Trust. Patriot will be subject to significant additional penalties for any violations that occur after the compliance date for each source of pollution.
Jim Sconyers, chair of the West Virginia Chapter of the Sierra Club, said:
Several years ago, the coal industry said that there was no way to treat selenium pollution from their mines. But now they’re agreeing to treat that pollution. This settlement, and other recent actions against Arch Coal and Alpha Natural Resources, shows that mining companies can do far more than they admit to clean up their pollution.
Dianne Bady with the Ohio Valley Environmental Coalition said:
West Virginia coal mines are finally starting to address their legacy of selenium pollution. Mine operators and regulators in Kentucky, Tennessee, and Virginia need to follow suit.
Interestingly, the deal also requires Patriot to drop any future plans for mining a major permit — and creating significant selenium pollution — at its Jupiter-Callisto Mine in Boone County, which is located near the home of anti-mountaintop removal activist Maria Gunnoe, who won the Goldman Environmental Prize in 2009 for her work to protect West Virginia mountains, streams and communities.
Cindy Rank, mining chairwoman for the West Virginia Highlands Conservancy, said:
Although treatment may be sufficient to address these existing selenium problems, ultimately the industry and regulators need to recognize that it’s not appropriate to mine coal where disturbing selenium laden rock strata will release harmful amounts of pollution.
UPDATED: Here is a statement just issued by Patriot Coal —
Patriot Coal Corporation (NYSE: PCX) today announced that it has entered into a consent decree with the Ohio Valley Environmental Coalition, Inc., the West Virginia Highlands Conservancy, Inc. and the Sierra Club to resolve claims under the Clean Water Act relating to Patriot’s mining activities in West Virginia.
“Selenium is an issue that many companies involved in coal mining must confront. Today’s settlement by Patriot represents a strategic response to this challenging issue. We are pleased that this settlement provides a comprehensive framework for Patriot to address selenium across our properties going forward,” stated Patriot President and Chief Executive Officer Richard M. Whiting. “We believe the consent decree serves the interests of both the public and our stockholders.”
As a result of the negotiated settlement, the Company has agreed to a comprehensive plan which provides for the necessary time and flexibility in the development, selection and implementation of emerging technologies to meet compliance deadlines in the future. To resolve claims related to the consent decree, the Company will pay $7.5 million in civil penalties, to be allocated between the federal government and the West Virginia Land Trust for land preservation projects within the Kanawha River and Guyandotte River watersheds.
The consent decree, which has been filed with the U.S. District Court for the Southern District of West Virginia, is subject to a public comment period and must be approved by the Court before it becomes effective.
There’s an op-ed in this weekend’s Gazette-Mail that is worth a look — and worth a detailed read by our region’s political leaders. It’s by West Virginia native Lou Martin, who teaches history now in western Pennsylvania at Chatham University. Lou writes of a “crisis in the making” in Boone County, where coal is such a big part of the economy, yet good coal seams are playing out and competition from other regions threatens future production levels:
In May, CNN Money reported that 3,800 of the county’s 8,600 employed people worked in the mining industry. And a report by economists at WVU and Marshall titled “The West Virginia Coal Economy 2008″ reported that 60 percent of the county’s roughly $35 million in property tax revenue came from coal. While those figures certainly speak to the importance of coal to Boone today, they also represent the potential for devastation when the coal companies leave. Imagine when half of those jobs and tax revenues disappear as Downstream Strategies predict they will. Boone County will be left with slurry ponds, “reclaimed” mountains and dirty water.
Lou warns:
As a society, we do not plan well for economic transitions; nor do we tend to plan for the long term. Our elected officials have a vested interest in helping businesses and industries that are here now, not imagining future businesses and industries. Coal companies focus only on this year’s profits. Unions protect current members’ jobs. Planning the future of Boone County is too important to leave up to the president of the West Virginia Coal Association, the CEO of Alpha Natural Resources, the president of the United Mine Workers, or even government officials like Sen. Manchin and Gov. Tomblin.
This time, the people need to plan out their own future. What do we want the future economy to look like? I propose that we try to create a society that will last for another 100 years, 200 years, or maybe even 1,000 years. But under the current plan, Boone County will face utter devastation –economic and environmental — in just 25 years.
For those who don’t know him, Lou Martin has written extensively about the working-class people of Appalachia, with a focus on the steel and pottery country of West Virginia’s Northern Panhandle (see here, for example). And, he’s observed what has happened in those parts of the world in recent years, writing in his West Virginia University doctoral dissertation:
Beginning in the 1960s, local potteries began closing up shop until only Homer Laughlin remained. When Weirton Steel showcased its “mill of the future” in 1967, that moment proved to be the high point for the company and its workers. Thereafter, foreign competition, mismanagement, and global economic forces beyond any individual company’s control undercut Weirton Steel’s position in the market. By the 1980s, working families in Hancock County were faced with many tough decisions and sad realities as the winds of “creative destruction,” in the words of economists, picked up thousands of industrial jobs and carried them to the distant frontiers of industrial capitalism. The county’s population declined from about 40,000 in 1980 to about 30,000 in 2000. Many of those who remain are retirees who have watched helplessly as pensions and health insurance evaporated amidst bankruptcy hearings and corporate takeovers.
The deindustrialization of Hancock County underscores the ongoing nature of the industrial restructuring that brought new industries and industrial jobs to the county a century before. Workers struggled for decades to achieve a modest, dependable income and a decent life. During those decades, they continually adapted to new technologies, shifting markets, and changes within the working class. At the height of their influence locally, the rural-industrial workers of Hancock County also joined with like-minded Americans around the country to roll back the New Deal order and transform postwar America. The wrenching economic changes of the last quarter of the twentieth century, however, have left many working families to wonder what it was all about.
Dave Thearle, a member of the United Mine Workers of America, waves an American Flag during a labor rally in Waynesburg, Pa., Friday, April 1, 2011. (AP Photo/Keith Srakocic)
As I read, I was reminded of passages from the speech AFL-CIO President Richard Trumka gave on Friday at the United Nations:
Now, some people’s response is to demand that we end all coal production now—they say “End Coal.” Never mind that such a thing is simply not going to happen—there is no substitute now for metallurgical coal and if we stopped burning coal this afternoon and cut the power in the U.S. grid by 50 percent, as Mayor Bloomberg advocates, he’d be reading handwritten memos by candlelight this evening. Given that reality, it’s important to think about how that slogan is heard in places like my hometown of Nemacolin, Pennsylvania.
Nemacolin lives on coal—the coal mine my grandfather and my father went down to every day of their working lives, the power plant the mine feeds, the rail lines that carry coal to other plants. When these folks hear “End Coal,” it sounds like a threat to destroy the value of our homes, to shut our schools and churches, to drive us away from the place our parents and grandparents are buried, to take away the work that for more than a hundred years has made us who we are.
So why, in an economy without an effective safety net, would the good men and women of my hometown and a thousand places like it surrender their whole lives and sit by while others try to force them to bear the cost of change.
The truth is that in many places – and not just places where coal is mined – there is fear that the “green economy” will turn into another version of the radical inequality that now haunts our society—another economy that works for the 1% and not for the 99%.
You can read the speech for yourself here and you can also see the initial reactions from a couple of the most outspoken anti-mountaintop removal activists in the comments section.
It’s certainly true that Rich Trumka didn’t mention mountaintop removal — and there’s no doubt we haven’t heard much from the Rich’s old friends at the United Mine Workers about the growing body of science that links living near mountaintop removal to serious health problems, to increases risks of cancer and birth defects among coalfield children. I’ve asked the question on Coal Tattoo before, “Exactly what sort of environmental protection does the UMWA support?” At the same time, I’m not sure that the way to build strong coalitions is to do what citizen groups did a few years back when the UMWA’s media spokesman, Phil Smith, took part in a roundtable aimed at trying to find common ground on heated and complicated coal industry issues.
And gosh, to hear the president of the AFL-CIO to speak so eloquently about what is without a doubt a much larger global crisis — climate change — was a truly remarkable moment. Just go back and read part of it:
Today, as we meet together, scientists tell us we are headed ever more swiftly toward irreversible climate change—with catastrophic consequences for human civilization. We must have a stable climate to feed the planet, to ensure there is drinking water for our cities but not floodwaters at our doors. A stable climate is the foundation of our global civilization, of our global economy—the prerequisite for a profitable investment environment.
And to those who say climate risk is a far off problem, I can tell you that I have hunted the same woods in Western Pennsylvania my entire life and climate change is happening now—I see it in the summer droughts that kill the trees, the warm winter nights when flowers bloom in January, the snows that fall less frequently and melt more quickly.
And what about economic transformation, about green jobs and a stronger economy? Rich Trumka said:
Even so, some will ask, why should investors or working people focus on climate risk when we have so many economic problems across the world? The labor movement has a clear answer: Addressing climate risk is not a distraction from solving our economic problems. My friends, addressing climate risk means retooling our world—it means that every factory and power plant, every home and office, every rail line and highway, every vehicle, locomotive and plane, every school and hospital, must be modernized, upgraded, renovated or replaced with something cleaner, more efficient, less wasteful.
Taking on the threat of climate change means putting investment capital to work creating jobs. It means building a road to a healthier world and a healthier world economy–one less dependent on volatile energy prices, one where many more of us have the things that modern energy makes possible.
Reading the Trumka speech and the reactions to it also reminded me of the wise words of the late Sen. Robert C. Byrd:
Change is no stranger to the coal industry. Think of the huge changes which came with the onset of the Machine Age in the late 1800’s. Mechanization has increased coal production and revenues, but also has eliminated jobs, hurting the economies of coal communities. In 1979, there were 62,500 coal miners in the Mountain State. Today there are about 22,000. In recent years, West Virginia has seen record high coal production and record low coal employment.
And change is undeniably upon the coal industry again. The increased use of mountaintop removal mining means that fewer miners are needed to meet company production goals. Meanwhile the Central Appalachian coal seams that remain to be mined are becoming thinner and more costly to mine. Mountaintop removal mining, a declining national demand for energy, rising mining costs and erratic spot market prices all add up to fewer jobs in the coal fields.
These are real problems. They affect real people. And West Virginia’s elected officials are rightly concerned about jobs and the economic impact on local communities. I share those concerns.
Remember that Sen. Byrd also told us that “the time has come to have an open and honest dialogue about coal’s future in West Virginia.” Of course, that is exactly the oppose of what we heard last week from Gov. Earl Ray Tomblin, in a State of the State address that mentioned coal only to cheer-lead, as opposed to actually leading. And it’s exactly the opposite of what other political leaders are doing when they dodge questions about the mountaintop removal health studies.
Even for those political leaders who support mountaintop removal — or who are afraid not to support it — go back and read Lou Martin’s op-ed piece:
… Even if we cannot agree on mountaintop removal, change is still coming. A 2010 report by Downstream Strategies predicts that coal mining in Central Appalachia will decline by more than half over the next 25 years (from 234 million tons in 2008, down to 99 million tons in 2035) for reasons ranging from competition from natural gas to depletion of the most productive reserves.
There’s a crisis in the making … what are we going to do about it?
Is it really all that surprising that, as we reported in the Gazette this morning, Alpha Natural Resources is trying hard to keep any discussion of West Virginia University’s studies linking mountaintop removal to human health problems out of a pending lawsuit over one of the company’s Clean Water Act permits?
I mean, come on … nobody else — except the people who live near mountaintop removal operations — wants these studies to be part of a public conversation about the future of the Appalachian coal industry. Sen. Jay Rockefeller won’t hold a Science Committee hearing on the subject. Sen. Joe Manchin doesn’t have time to talk common sense about what these studies show. Gov. Earl Ray Tomblin doesn’t want anything to do with the topic. Rep. Nick Rahall, while he did agree to an interview on the subject, can’t figure out what agency of the government should examine the issue.
And the only time you see much in most of the state’s media outlets on this topic, it’s to allow coal industry officials to spread half-truths and misinformation about the findings of WVU’s Michael Hendryx and his colleagues.
So maybe it’s not that big a deal that Alpha doesn’t want these health studies considered in the context of a challenge to its Highland Reylas permit … the really interesting thing now will be to see if U.S. District Judge Robert C. Chambers — who has presided over a bunch of significant mountaintop removal cases, and shown a willingness to listen to the science from both sides in those matters — will allow these issues to be heard in his courtroom.
Photo of Hobet 21 mountaintop removal mining complex, by Vivian Stockman, Ohio Valley Environmental Coalition
A major new study out today in one of the most respected scientific journals around confirms the pervasive and irreversible impacts of mountaintop removal coal mining here in Appalachia. The study is called Cumulative impacts of mountaintop mining on an Appalachian watershed, and it appears online today in the Early Edition of the Proceedings of the National Academy of Sciences.
The conclusion by Duke University researcher Ty Lindberg and colleagues, including Emily Bernhardt:
Our results demonstrate the cumulative impact of multiple mines within a single catchment and provide evidence that mines reclaimed nearly two decades ago continue to contribute significantly to water quality degradation within this watershed.
As explained in a Duke news release:
To assess the cumulative impact of the more than 100 permitted discharge outlets draining approximately 28 square kilometers of active and reclaimed mountaintop coal mines in the Upper Mud watershed, the Duke researchers collected 152 sets of samples from 23 sites – including two sites upstream of any active or reclaimed surface mines – between May and December 2010. They sampled for electrical conductivity, a measure of salinity and for concentrations of major ions and trace elements derived from coal or its matrix rock.
The Upper Mud flows through sparsely populated sections of Boone and Lincoln counties in southern West Virginia as a headwater stream until reaching its impoundment in the Mud River reservoir 25 kilometers downstream. For about 10 kilometers, the river passes through the Hobet 21 surface mining complex, which has been active since the 1970s and is among the largest in the Appalachian coalfields region.
Here’s a figure they used in the paper:
Map of study area depicting Upper Mud River and associated tributaries with aerial photo on right. Sampling sites consisted of 15 mainstem (circles)
and eight named tributary locations (triangles). Sites 1 and 2 were located upstream of current and historic MTM activity. The remaining sites were chosen so as to bracket each confluence of the Upper Mud River and an MTM-affected tributary. Marker color denotes median conductivity level in mainstem during survey (green <300, orange 301 to 500, red 501 to 1,000, and dark red >1;000 μS cm−1). Brown shaded areas reflect surface mining with darker area representing reclaimed mines. Aerial photo on right shows location of 105 active surface-mining-related outlets within the watershed that are regulated through eight NPDES permits. Inset of US mid-Atlantic states shows Appalachian coalfield region as gray shaded area with relative location of study site in red (not to scale).
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Their findings:
All conductivity measurements taken downstream of mine discharge outlets exceeded levels known to be harmful to aquatic life, said Richard Di Giulio, professor of environmental toxicology. At the two sampling sites upstream of any mines, conductivity levels were within an acceptable range. Concentrations of selenium, a known fish toxin, followed a similar trend, Di Giulio said. The researchers also observed deformities typical of selenium exposure in fish collected from downstream waters.
Co-author Avner Vengosh, professor of geochemistry and water quality, said:
As eight separate mining-impacted tributaries flowed into the Upper Mud, conductivity and concentrations of selenium, sulfate, magnesium and other inorganic solutes increased proportionately. Nearly 90 percent of the variation in trace elements and salinity could be explained by the amount of upstream surface mining.
According to the news release:
The Duke team selected the Upper Mud watershed for their field survey because water-quality impacts from other potential sources are largely absent. Historically, surface rather than underground mining has been the dominant form of coal extraction in the Upper Mud’s river basin, and there are very few people now living within the Hobet mine’s permitted boundary. This helped to minimize other factors that might account for changes in water quality.
Emily Bernhardt, associate professor of biogeochemistry, said:
This is a remarkably clean dataset and that’s why it’s so powerful. We see these incredibly strong patterns, which previously have not been well established.
Past studies have shown that individual mines profoundly impact stream water quality, biological community structure and ecosystem function immediately downstream of valley fills, but empirical data on the cumulative impacts of multiple mining operations on larger downstream rivers has been lacking, she said, adding:
Individual permitting decisions are typically made without consideration of the extent of historic mining impacts already occurring within a watershed. Our survey helps fill that gap.
There’s an interesting settlement that’s just been filed in U.S. District Court here in Charleston in a case brought by the Sierra Club and other groups against CONSOL Energy’s Fola Coal Co. subsidiary.
Environmentalists sued CONSOL back in October 2010, alleging the company was violating water quality standards at Fola’s Surface Mine No. 3 in Clay and Nicholas counties. The suit alleged the mine was “discharging pollutants … which cause acute and chronic toxicity, ionic stress, and biological impairment” in Boardtree Branch. It cited the narrative water quality standard for biological integrity and aquatic life and problems with conductivity pollution.
Under the settlement, CONSOL is going to conduct a major stream restoration project that company officials believe will resolve Boardtree Branch’s water quality problems. But if that project doesn’t work, the company is going to be on the hook for building an expensive new treatment system that will fix the problem.
Joe Lovett of the Appalachian Mountain Advocates represented environmental groups in the case, and he told me that the proposed settlement — which needs court approval — should be thought about in the context of the U.S. Environmental Protection Agency’s water quality guidance on conductivity and the West Virginia Environmental Quality Board’s ruling to require conductivity limits in a strip-mining permit. Lovett said:
It’s significant because for the first time a coal operator has agreed to comply with the narrative water quality standard related to a valley fill. It’s scientifically indisputable that valley fills cause high conductivity and impair life in streams. This coal company has agreed to remedy that.
I’ve posted a copy of the settlement here.
Last week’s release of an EPA Inspector General’s report on the agency’s mountaintop removal permit crackdown doesn’t seem to have gotten a lot of media attention, given the timing on the day before Thanksgiving.
But Sen. James Inhofe, R-Okla. and requester of the IG study, certainly thought the report was a major slap at the Obama administration:
The report released today by the EPA Office of Inspector General confirms my concerns that EPA, through its own actions, is systematically slowing the pace of permit evaluations in Appalachia. Even more troubling is that as our nation works to find ways to cut our national debt, EPA has increased its budget and staff to evaluate these permits.
Instead of spending more and more taxpayer dollars to wage this war on affordable energy, the Obama-EPA should be processing and approving these permits to spur job creation, especially in areas such as the Appalachia that have significant employment needs. Equally important is the potential domestic energy production that these permits would provide.
Are the IG’s findings as big a deal as Sen. Inhofe makes them out to be? Well, you can read the entire report here, and see what you think.
But there are a few things to consider here … first, Sen. Inhofe’s staff makes much out of one particular statistic in the report, when they say in his statement:
Unfortunately, this report proves that the regulated community cannot depend on the Obama EPA to have an open and transparent permit process. EPA has a job to do and they need to do it. But taking 731 days to complete a 144 [-day] task only further demonstrates the Obama Administration’s determination to shut down the development of our vast domestic fossil fuels.
A 144-day task? Let’s be clear on what that figure is. The IG report (on page 14) explains:
Corps regulations govern the permit application process and allow 60-90 days for IP application review and processing. However, the Corps stated that it has an internal goal to process permit applications within 120 days. In contrast, EPA informed us that, on average, review and processing of an IP application for all types of activities (not specific to surface coal mining) takes 144 days.
Sen. Inhofe’s press release makes this statement:
Almost half of the 185 permits have taken at least 731 days to evaluate.
Here’s the part of the IG report where that comes from:
… Out of a universe of 185 projects, the Corps issued 56 permits (or 30 percent). Of these 56 issued permits, the Corps reviewed and processed 23 within its stated goal of 120 days. Table 4 also shows that 31 of the 56 took longer than the IP average review time of 144 days. Of the 66 pending applications, 41 applications (62 percent) have been in process for over 1 year. In fact, table 4 shows that 110 permit activities (59 percent)—whether issued, withdrawn, or pending—have taken a year or longer to process, with 75 out of 185 activities (or 41 percent) exceeding 2 years.
It’s interesting to note, though, that of the 185 permits examined by the IG’s office, the status is roughly equally split three ways among permits that have been issued, permits that the company withdrew, and permits that are pending — hardly the permit moratorium that the coal industry and their political friends constantly talk about. And of the permits that have been issued, nearly half were issued within 90 days, and two thirds were issued in less than a year.
Well, West Virginia Gov. Earl Ray Tomblin has made it pretty plain that one of his absolute top priorities is to defend the state’s coal industry and to perpetuate the practice of mountaintop removal coal mining.
So perhaps it shouldn’t come as a surprise that on Friday — less than a week after he was sworn into office — Gov. Tomblin quietly replaced two of the five members of the state Environmental Quality Board.
Records at the Secretary of State’s office confirm that Tomblin appointed Charles Somerville, a biologist and dean of the College of Science at Marshall University and Mitch Blake, manager of coal programs for the state Geological Survey, to the EQB. They replace Charleston businessman and conservation advocate Ted Armbrecht and James Van Gundy, a retired professor of biology and environmental sciences at Davis & Elkins College.
Now, these changes come at a time when the EQB is set at its December meeting to sort out how it will respond to a circuit court ruling that sent back to it the appeal of an Arch Coal mountaintop removal mine in Monongalia County.
This appeal by the Sierra Club is one of two pending permit challenges (the other is in federal court) that focus on trying to force state and federal regulators to include the U.S. Environmental Protection Agency’s new water quality guidance into mining permits issued in West Virginia.
WVDEP Secretary Randy Huffman had said this about the EQB’s ruling in the case concerning the New Hill West Mine:
This was the worst ruling I’ve ever seen out of the EQB as far as a lack of respect for the rule of law.
EQB members had unanimously ruled that the WVDEP had wrongly failed to set certain water quality limits (see here and here). While Kanawha Circuit Judge James Stucky sent the case back to the board, the judge did not overturn the foundation of the EQB ruling. And while the EQB recently refused to continue a legal stay on the mining project, board members have also indicated that they would stick by their decision that WVDEP needed to include these limits in any future permit for the mine.
Gov. Tomblin’s action removes from the board two of the members generally considered most friendly to citizen groups. Keep in mind, now, though — the terms of the other three board members (including longtime chairman Ed Snyder) have expired, and the governor could still take some action to replace those folks as well … stay tuned …
We’re about to be treated to another episode in the continuing story of the attacks by the coal industry and its friends in Congress on any effort by the Obama administration to reduce mountaintop removal’s impacts on coalfield communities, protect the world from greenhouse gas pollution and ensure mining industry workers make it home to their families after each workday.
That’s right the House Natural Resources Committee is set to hold a hearing later this morning on what Ohio Republican Bill Johnson’s bill called the “Coal Miner Employment and Domestic Energy Infrastructure Protection Act”. Basically, this is a bill to stop the federal Office of Surface Mining Reclamation and Enforcement from rewriting the federal stream buffer zone rule, but it’s actually much broader, prohibiting OSMRE from taking any actions that would do any of the following:
– Adversely impact employment in coal mines in the United States;
– Cause a reduction in revenue received by the Federal Government or any State, tribal or local government, by reducing through regulation the amount of coal in the United States that is available for mining;
– Reduce the amount of coal available for domestic consumption or export;
– Designate any area as unsuitable for surface coal mining and reclamation operations; or
– Expose the United States to liability for taking the value of privately owned coal through regulation.
Now, to hear Rep. Johnson talk, there’s a major crisis in the nation’s coalfields, with workers and their families already suffering because of actions by the Obama administration’s Environmental Protection Agency:
Every day thousands of hardworking coal miners go to work to put food on their families’ tables and keep millions of American families supplied with reliable, low cost electricity. The Obama Administration has actively sought ways to put an end to the coal industry through onerous regulations and activist rulemaking. This bill will ensure that this Administration cannot continue its efforts to increase the cost of energy for millions of Americans and put thousands of coal miners and coal industry related workers out of work.
The federal government should not be in the business of blocking production of one of America’s most abundant natural resources and the source of livelihoods in communities across the country.
And not so long again, in celebrating a partial court victory over EPA, the National Mining Association’s president, Hal Quinn, said this:
With this decision, coal communities can get back to the business of producing affordable energy for Americans and put more Americans back to work.
So imagine my surprise to see the chart I’ve posted above right there at the top of the National Mining Association’s website, along with this fascinating bit of text:
Mining added 11,000 men and women to our payrolls over the last year, along with 17,000 new support jobs. In fact, U.S. mining added thousands more jobs over the last decade-America’s first job-loss decade in 75 years.
Jobs at U.S. metals mines climbed by 10 percent and coal mining employment rose by 8.5 percent since 2001 . . . mining support jobs grew by an astounding 32 percent.
Here are their specific numbers:
Of course Matt Wasson at Appalachian Voices has been trying to make the point that government data indicates that coal-mining jobs in West Virginia specifically are on the rise since EPA began its crackdown on mountaintop removal — and lawmakers should know this, since Joe Lovett of the group Appalachian Mountain Advocates made this very point during a previous hearing:
Since 2007, as production in Central Appalachia has shifted away from mountaintop removal and back toward underground mining, the increase in employment at underground mines has more than offset declines at other types of mines. Although mountaintop removal may benefit the bottom lines of big coal operators, it does not increase the number of coal mining jobs.
Since mountaintop removal permits have been slowed by litigation and EPA regulation, mining jobs have actually increased in the region.
Sometimes little things I see in our newspaper catch my attention, and take me off in unexpected directions. Take today, for instance … There was a little display advertisement headlined, “Department of Homeland Security to Hold Public Meeting on Ammonium Nitrate Proposed Rule.” The ad continued:
The U.S. Department of Homeland Security is holding a public meeting in Charleston, West Virginia, on the proposed rule for the Ammonium Nitrate Security Program. The purpose of the rule is to prevent the use of ammonium nitrate in an act of terrorism by regulating the chemical’s sale and transfer.
The meeting will provide the public with the opportunity to be briefed on the basics of the proposed rule and enable DHS to consult with the public and other interested parties on the proposed rule.
What’s this all about? Well, it turns out that back in 2008, Congress passed appropriations language that requires the Department of Homeland Security to:
… Regulate the sale and transfer of ammonium nitrate by an ammonium nitrate facility … to prevent the misappropriation or use of ammonium nitrate in an act of terrorism.
Well, Homeland Security officials didn’t get around to proposing this rule until August 2011, and now they’re accepting comments on the proposal. As an Associated Press account explained:
More than 15 years after a fertilizer bomb was used to blow up a government building in Oklahoma City, killing 168 people, the federal government is proposing to regulate the sale and transfer of the chemical ammonium nitrate.
The proposal comes nearly four years after Congress gave the Homeland Security Department the authority to develop a program to regulate the compound.
Ammonium nitrate is one of the most common farm fertilizers in the world, and instructions for turning it into a bomb are available on the Internet. Its deadly potential was once again realized on July 22, when a Norwegian man allegedly blew up a government building in his country, killing eight people with a bomb that investigators believe was made with ammonium nitrate.
Here’s the latest from the Friends of Blair Mountain:
On November 1st, a variety of citizens are coming together to raise awareness of the Battle of Blair Mountain and to call on our state agencies and politicians to preserve the Blair Mountain battlefield and develop it as the significant national historic site that it truly is.
In 1921, ten thousand coalminers joined together to fight for their basic human rights to live and work in safe conditions. They fought for five days on the steep ridges of Blair Mountain until finally federal troops quelled the conflict peacefully.
Currently, Blair Mountain is threatened by imminent destruction from MTR, an extremely destructive form of coal extraction. A broad range of citizens including community members, union coalminers, environmentalists, academics, and many other people have been working to preserve the battlefield.
We have already taken constructive steps to show that heritage tourism is profitable, with the establishment of Coal Country Tours that features Blair Mountain as a stop along a multi-day tour through the coalfields. We have also established a Community Center and Museum in the town of Blair, WV, to celebrate the struggles of coalminers at Blair Mountain as well as larger coalfield culture.
We will continue to build local business around the Blair Mountain battlefield, and to continue to honor the heritage of coal mining families. With this press conference and rally at the State Historic Preservation office at the Cultural Center, we are asking our state government to step up and help us preserve and develop Blair Mountain.
We realize it is a difficult political decision due to pressure from the coal industry, but is it one that will preserve a piece of heritage for future generations as well as building local business now. We believe that with all of us working together we can come up with a viable solution where the jobs of coalminers are protected, new and diverse business opportunities are generated in the communities around the battlefield and coal companies can still underground mine the battlefield.
Come join us on November 1, 2011, at 12:00 as we discuss the importance of Blair Mountain and present a petition with over 26,000 signatures from people around the world to the West Virginia State Historic Preservation Officer. Speakers will include noted scholars, mining families, activists, and community members. All are welcome to attend.
The Gazette’s Dr. Paul Nyden did a piece the other day about a hearing that was being held by the Senate Committee on Commerce, Science and Transportation about growing concerns regarding concussions being suffered by young athletes, and about the safety of the equipment those kids use. Paul explained:
Sen. Jay Rockefeller, W.Va., held a hearing Wednesday about the growing number of brain concussions suffered by athletes, particularly in high school, and the questionable marketing of “anti-concussion” or “concussion-reducing” sports equipment.
Rockefeller, chairman of the Senate Committee on Commerce, Science and Transportation, said, “Every afternoon at the end of the school day, millions of our children head to playing fields, gymnasiums or hockey rinks to participate in team sports.
Now, this is clearly and important issue, and West Virginians can be proud that our now-senior senator is taking a role in trying to dig into and deal with the issue. But frankly, it reminded me of the fact that my good friend Sen. Rockefeller doesn’t want to talk about the growing body of peer-reviewed studies about a potential link between mountaintop removal and increased rates of cancer, birth defects and other illnesses among his constituents who live near these giant mining operations. You remember the studies, like the one that found:
The odds for reporting cancer were twice as high in the mountaintop mining environment compared to the non-mining environment in ways not explained by age, sex, smoking, occupational exposure, or family cancer history.
There are 1.2 million people who live in mountaintop coal mining counties in central Appalachia based on 2010 US Census data. If the rates found in this study represent the region, a 5% higher cancer rate (14.4% vs. 9.4%) translates to an additional 60,000 people with cancer in central Appalachian mountaintop mining counties.
Remember that not so long ago I asked to interview Sen. Rockefeller about the West Virginia University studies on this issue, and was told by his staff:
I doubt we can make it happen, Ken. Another time.
Well, how about another time?
You see, the committee that Sen. Rockefeller chairs, while perhaps not having direct oversight over EPA or OSMRE or other mining regulatory agencies, does indeed have broad jurisdiction over “science, engineering, and technology research and development and policy.”
Wouldn’t it be a public service for Sen. Rockefeller to have WVU’s Dr. Michael Hendryx and other experts – perhaps including the University of Maryland’s Dr. Margaret Palmer — come and testify about their work looking into the science of mountaintop removal impacts? Officials from EPA and OSMRE could come, too. And folks from the coal-mining industry could provide a witness who could explain exactly what the industry thinks is wrong with the data or methodology of these studies.
Yesterday, lawyers for several citizen groups filed papers to renew their effort to block a U.S. Army Corps of Engineers permit for the the Reylas Surface Mine, proposed by Alpha Natural Resources and its subsidiary, Highland Mining Co.
We just recounted the history of this permit, and an earlier legal challenge by the Ohio Valley Environmental Coalition, the West Virginia Highlands Conservancy and the Sierra Club, in this previous Coal Tattoo post.
This new legal filing, from Joe Lovett and Derek Teaney of Appalachian Mountain Advocates and Jim Hecker of Public Justice, does a couple of interesting things.
First, it puts Alpha Natural Resources — despite all of CEO Kevin Crutchfield’s talk about “Running Right” (see here, here, here and here) — smack in the middle of a major legal case over mountaintop removal permitting.
Second, if you read the new legal papers filed by the citizen group lawyers, you’ll see that in this case, they’re putting the growing science indicating public health concerns related to mountaintop removal front and center.
Now, the renewed legal challenge recounts variety of concerns previously raised about this permit: Conductivity pollution, inadequate mitigation, cumulative impacts, public notice and selenium discharges.
But this time, the lawyers attached three of the landmark WVU studies by Dr. Michael Hendryx (see here, here and here) concerning general health impacts, birth defects and cancer — all things that Dr. Hendryx found in higher rates among residents living in mountaintop removal mines.
The citizen groups allege that the Corps of Engineers clearly was aware of this research, but did not consider it when issuing the Reylas permit. They asked U.S. District Judge Robert C. Chambers to order the Corps to perform a new analysis, in which agency officials examine these health studies and what they mean for this particular permit. Their legal papers explained:
The three studies described above present a seriously different picture of the impacts of mountaintop mining on human health than what the Corps found. The Corps found no human health impacts at all, while these studies found an increase in unhealthy days and birth defects and a potential doubling of cancer risk.
No word on a hearing yet before Judge Chambers … so stay tuned …
Legal wrangling over Patriot Mining’s proposed New Hill West mountaintop removal mine in Monongalia County is set to resume this week, following a ruling by Kanawha Circuit Judge James Stucky on a company appeal.
Readers may recall that the state Environmental Quality Board in March ruled against the West Virginia Department of Environmental Protection, saying that WVDEP wrongly failed to include discharge limits for conductivity — and also for sulfates and total dissolved solids, or TDS — when it approved the permit. (See here, here and here for previous coverage).
Well, Patriot Mining (then part of International Coal Group, which has since been bought by Arch Coal) and WVDEP both appealed to Kanawha Circuit Court, and we now have this ruling from Judge Stucky. The judge did not overturn the EQB decision, but he didn’t really uphold it, either. Instead, the judge basically said the EQB didn’t make clear the reasons for its decision. He sent the case back to the board, with instructions that they:
… Provide written supplemental findings detailing a reasoned and articulate decision …
And now, the company has filed a motion asking the board to clarify its previous decision to block the permit pending the outcome of the case. Company lawyers explained:
The Court’s order did not expressly address the stay that has now been in place for over ten months, but because the original stay was intended to last only until the Board ruled on the merits, and because the Court effectively vacated the Board’s order, Patriot believes the Board’s stay is no longer in effect, and by this pleading notifies the Board and parties that it may commence operations in the near future. Should the Board disagree and believe the stay is still in effect, then Patriot hereby moves to dissolve the stay.
In the wake of yesterday’s federal court ruling blocking part of the Obama administration’s efforts to reduce mountaintop removal coal-mining’s impacts, there’s another potential legal showing looming …
Regular readers may recall the flurry of legal activity this past spring over the Reylas Surface Mine permit issued to then-Massey Energy subsidiary Highland Mining Co.
After the U.S. Army Corps of Engineers issued the permit, environmental groups filed a quick legal challenge. U.S. District Judge Robert C. Chambers scheduled hearings on the matter, but then the Corps of Engineers withdrew the permit for further review.
Now, I’ve learned this week that the Corps of Engineers reissued the permit late last month. Massey had described this particular permit — now controlled by Alpha Natural Resources — this way:
Massey said the 635-acre mine would eventually employ about 100 people for about six years, producing more than a million tons of coal a year. The company plans to create a 235-acre site with paved road and utilities that could later be used for temporary housing during flooding and other emergencies.
There don’t appear to have been any major changes in this permit to reduce its environmental impacts. But this new Corps of Engineers decision document does clear up the previously confusing question of exactly how much length of streams would be buried by the Logan County mine:
Instead of the original length of 12,510 feet listed in the original [public notice] and the 13,478 feet of impact in the [original decision document], a total of 13,378 feet of waters of the U.S. would be impacted by the activities described above.
For folks who aren’t keeping score at home, that’s about 2.5 miles of streams. Will environmental groups head back to court to try to block this permit? Stay tuned …
Appalachian political leaders — meaning friends of the coal industry — are certainly in a good mood tonight. Take what Sen. Joe Manchin, D-W.Va., had to say about a court ruling that takes a bite out of the Obama administration’s crackdown on mountaintop removal: (UPDATED, with this link to today’s print story)
I’m very hopeful that this will put us on the path of receiving the permits that are needed to provide the energy and the jobs not just for West Virginia but for this entire country. This is a great day for West Virginia.
Or look at what Rep. Shelley Moore Capito, R-W.Va., said in a prepared statement:
Today’s court ruling reaffirms what we’ve known all along in Appalachia, that the EPA has been overstepping its boundaries in the permit approval process in order to advance an anti-coal agenda. The EPA has tried everything, from abusing their regulatory authority to issuing “guidance” reports in order to overstep the bounds of its traditional role in the permitting process. It’s about time the Courts ruled “enough is enough” by reestablishing the Army Corps of Engineers’ role as the primary permitting authority.
But EPA’s effort to reduce the impacts of Appalachian coal mines on the local environment and the region’s residents is certainly far from over. In fact, most observers I talk to think the next round — legal arguments over EPA’s landmark water quality guidance — is far more signficant in the long run. And U.S. District Judge Reggie Walton has put off briefing on that matter until next spring, with a motions hearing not scheduled until June.
Even Randy Huffman, secretary of the West Virginia Department of Environmental Protection, made it clear that things are far from over:
Today’s ruling is only half the battle. The other major piece of the suit won’t be heard until next spring.
Really, the National Mining Association’s declaration of the ruling’s sweeping impact – “With this decision, coal communities can get back to the business of producing affordable energy for Americans and put more Americans back to work” — is probably more than a little over the top.
Regular readers of Coal Tattoo will certainly recall the incident in July when coal industry lawyers from the firm Crowell & Moring tried to blame the increased rate of birth defects among residents near Appalachian surface mining sites on inbreeding.
Remember what they said (without even being able to spell the word correctly)?
The study failed to account for consanquinity [sic], one of the most prominent sources of birth defects.
Crowell and Moring removed the material from its firm website and a spokeswoman issued an apology … But it appears the lawyers involved haven’t heard the last of this.
Earlier this week, a former West Virginia lawyer who now teaches at the Charlotte School of Law in North Carolina filed a formal ethics complaint against attorneys Clifford J. Zatz, William L. Anderson, Kirsten L. Nathanson, and Monica M. Welt over the matter.
Assistant law professor Jason Huber alleged that the four Crowell & Moring lawyers violated the Washington, D.C., Rules of Professional Conduct for lawyers because their web post “contained a materially misleading statement in an attempt to solicit business from the coal mining industry.” Huber wrote:
The advertisement perpetuates and exploits the empirically debunked notion that inbreeding is regularly practiced by the Appalachian People. Despite the firm’s frequently flaunted ‘ample’ and ‘significant’ experience in birth defect litigation, the authors failed to recognize the lack of scientific evidence to support their attempt to mislead the reader into believing that Appalachian incest, not mountaintop removal mining, caused the observed birth defects.
I’ve posted a copy of the ethics complaint and related materials here. Nicole Quigley, a spokeswoman for Crowell & Moring, issued this statement in response to my inquiry:
We again express our regret for any offense that might have been taken with the client alert, as it was meant only to relay a possible flaw with a scientific study. However, the complaint is without merit.
The complaint cited rules 7.1(a) and 8.4(c) of the D.C. Bar’s rules. Under those rules:
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it: Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading…
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