Coal Tattoo

Friday roundup, Oct. 29, 2010

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In this photo released by China’s Xinhua news agency, a worker stands outside the flooded Dapo coal mine in Anshun city, southwest China’s Guizhou province, on Thursday Oct. 28, 2010. State media says the coal mine flood in southwestern China has killed at least 12 people, adding more casualties to the thousands killed each year in mining accidents. The official Xinhua News Agency reported Thursday that 50 miners were working at the Dapo mine in Anshun city in Guizhou province when it flooded Wednesday morning, killing at least 12 miners. (AP Photo/Xinhua, Liu Xu)

Twelve miners were killed earlier this week in a flood at a coal mine in southwestern China.  According to this report from Xinhua:

Dapo Mine in Puding County, Anshun City, was operating illegally when the accident occurred. It had been ordered to suspend its operations on Aug. 20, according to a statement from the rescue headquarters.

“This is a typical accident caused by breaches of production regulations and coal mine safety procedures,” said Sun Guoqiang, vice governor of Guizhou near the flooded mine.

In addition, one person was electrocuted to death in the mine on Sept. 2, about a month after the suspension order, according to the statement.

And, there was more bad news this morning from China:

At least seven miners were killed on Friday when a gas explosion hit a coal mine in southwest China, state-run media reported.

The blast at the Zhaojiahe Mine in Wanyuan City, in the country’s Sichuan Province, happened at around 11 a.m. local time when 13 miners were working down the shaft. Few details about the accident itself, except that it was a gas explosion, were not immediately available.

The state-run Xinhua news agency reported that rescuers initially saved six miners. but one of them passed away while en-route to a local hospital. The rescuers also recovered six bodies, while one is still unaccounted for.

Here in the United States, it’s quarterly earnings time … we’ve already had coverage on Coal Tattoo on the earnings statements from Massey Energy and Patriot Coal.  Other companies with recent earnings statement releases included Arch Coal Inc., CONSOL Energy Inc., International Coal Group and Peabody Energy.

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U.S. Mine Safety and Health Administration officials said today that “approximately 15 Massey upper management employees” have asserted their “5th Amendment right not to provide potentially self-incriminating evidence during the interview process” in the investigation of the Upper Big Branch Mine Disaster.

That tidbit — which increases from 11 to 15 the number of Massey officials known to have refused to answer questions — is part of a new MSHA update on its investigation of the April 5 explosion that killed 29 miners. Other information in the update:

— Massey’s accident investigation plan has been approved and the company began its investigation on Monday, October 25, 2010. The investigation is currently focused on the longwall face and tailgate entries. MSHA and State officials are also underground as Massey conducts during their investigation.

—  As of October 26, 2010, the shoreline of the water in HG22 is at crosscut 33. It appears that at this rate, it will take 2 more weeks to complete the pumping of HG22.

— The completion of the MSHA investigation is pending the pumping of the water in HG22 as well as evaluating the refuge chambers and testing the shearing machine.

— Testing of the electrical equipment is ongoing.

On the 5th Amendment issue, MSHA did not name the Massey employees and the Manchin administration has so far refused to release most of the names of those who have refused to answer questions about the disaster.

Stay tuned …

The New York Times reports today:

The coal industry, facing a host of new health and safety regulations, is spending millions of dollars in lobbying and campaign donations this year to influence the makeup of the next Congress in hopes of derailing what one coal industry official called an Obama administration “regulatory jihad.”

Political spending by the coal industry is on track to exceed what it spent in the 2008 cycle, when the presidency was at stake and Congress appeared determined to move forward with a national energy policy designed to address climate change by cutting back on the use of coal and petroleum.

The report continued:

Coal industry spending on campaigns and lobbying is substantial and growing, although it is dwarfed by the far better-financed oil and gas, electric utility, financial services and health care lobbies.

Among the largest recipients of coal money are Republican and Democratic members who have sponsored or voted for measures to block new E.P.A. regulations on global warming pollution from the burning of coal and oil and who are most likely to support efforts to block other new rules.

These members include Representatives Roy Blunt of Missouri and Joe L. Barton of Texas, both Republicans, and Nick J. Rahall II of West Virginia and Rick Boucher of Virginia, both Democrats. Each had received more than $25,000 in contributions as of early October, according to the Center for Responsive Politics, a nonpartisan group that tracks campaign spending.

Two Senate candidate, Rob Portman, Republican of Ohio, and Gov. Joe Manchin III, Democrat of West Virginia, have also received sizable industry donations.

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Nearly six months ago, MSHA chief Joe Main issued a news release announcing a plan for a series of public meetings he said would “bolster transparency” of the investigation into the Upper Big Branch Mine Disaster.

Now, let’s be clear: The meetings MSHA announced really weren’t a “public hearing” of the sort most mine safety advocates believed Congress had in mind when it passed the mine safety act. MSHA and Labor Secretary Hilda Solis weren’t willing to go so far as to conduct their actual investigation in public. Instead, they announced plans for a series of staged hearings and town hall meetings where various issues about Upper Big Branch would be discussed.

But now that nearly a dozen Massey Energy officials — including the company’s top corporate safety officer, Elizabeth Chamberlin — have refused to cooperate with the joint state-federal probe into the disaster, you have to wonder … is it time for Joe Main to finally convene a real public hearing?

The six Massey officials whose 5th Amendment “assertion letters” have been made public all alleged to various degrees that investigators have acted improperly in the investigation interviews conducted so far. Chamberlin went so far as to allege that members of special investigator Davitt McAteer’s team have “bullied or abused” some of the witnesses, though Chamberlin’s lawyer refused to provide any specific examples of that behavior. Of course, the Massey officials have also targeted MSHA, alleging the agency is using its investigation to cover up any role its own actions might have played in the explosion and the 29 deaths it caused.

So, if the real issue for Massey and some of its employees here is that they believe MSHA and the McAteer team are not and will not conduct a proper investigation, wouldn’t a public hearing put that issue to the test?

If McAteer’s team members are bullying Massey witnesses, perhaps the presence of reporters, television cameras and the public would serve to moderate any such bad behavior. Or, if the investigators continued to act improperly, then the media and the public could see that for themselves, and put pressure on the government teams to behave themselves.

Or, if the investigation is actually being conducted properly, but is just uncovering inconvenient truths that Massey would rather not have known, we could all see that for ourselves as well.

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Just as he enters the final stretch in his race for the U.S. Senate, West Virginia Gov. Joe Manchin yesterday resumed promoting the TransGas coal-t0-liquid plant he hopes will locate in Mingo County.

The governor’s office sent out this press release, which was certainly gushing over Gov. Manchin:

After four years of continuous effort, Gov. Joe Manchin and TransGas Development Systems President Adam Victor, along with several state and local representatives, today announced that the company has selected its Engineering Procurement Contractor (EPC) and technology provider for its coal to gasoline facility that will be built in Mingo County, West Virginia.

During today’s meeting, [TransGas president Adam] Victor reminded officials that four years ago, he was on the verge of relocating his operations overseas after facing years of challenges while trying to convince officials across the Northeast to make the tough decision to support necessary energy infrastructure development. Only after Mr. Victor met Governor Manchin did he realize that West Virginia could be a place where energy infrastructure could be built and supported by state and local officials.

But the real news for West Virginians was buried in the release:

Victor praised the governor for bringing the construction trades union together with his chosen contractor and technology provider to ensure that this project will be built by skilled West Virginia workers, on time and under budget.

Coal Tattoo readers will remember that the Affiliate Construction Trades Foundation had been concerned that TransGas might not hire local unionized workers to build the plant, a fear that led the ACT Foundation to take a closer look at the company’s air pollution permit.

That permit has been the subject of appeals hearing this week before the state Air Quality Board, in a challenge filed by the Sierra Club.  And of course, serious concerns remain about the fact that — without carbon capture and storage equipment TransGas is not proposing — liquid coal will generate twice the greenhouse gas emissions of regular gasoline.

Stay tuned …

Massey Energy continues to promote the notion that the company wants a thorough, complete and open investigation of the April 5 explosion that killed 29 miners at the company’s Upper Big Branch Mine in Raleigh County.

But we’ve confirmed through a public records request that Massey’s top safety officer — Vice President of Safety Elizabeth Chamberlin (above photo) — and five other management personnel have informed the state they were invoking their 5th Amendment rights to not answer any questions about the disaster.

I’m posting here a copy of a document that Managing Deputy Attorney General Tom Smith titled “Supplement to Case Resolution Statement,” which includes 5th amendment “assertion letters” from Chamberlin and from Massey officials Rick Foster, Rick Nicolau, Gary May, Jamie Ferguson and Wayne Persinger.

Readers may recall that these were the six Massey employees who filed suit in Raleigh Circuit Court last month to try to block subpoenas issued to them by the West Virginia Office of Miners Health, Safety and Training.   The Manchin administration settled that litigation by agreeing to allow these six officials to invoke their 5th Amendment rights by letter, rather than showing up and doing so in person on the record — a situation that could have forced them to repeatedly cite their rights in refusing to answer multiple questions from government investigators.

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Another coal miner killed in Kentucky

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This just in from the U.S. Mine Safety and Health Administration:

At about 7:50 am today, a continuous miner helper was struck and run over by a shuttle car at the Alliance Coal’s River View Mine.

The Evansville Courier and Press identified the miner as Jeffery Falk, 39, of Webster County, Ky.

This makes 46 coal miners killed on the job in the country this year.

Massey Energy CEO Don Blankenship and other Massey executives updated industry analysts today on the company’s financial picture in the wake of yesterday’s announcement that Massey lost $41.4 million in the third quater of 2010.

Among other things, analysts asked a lot of questions about Massey’s assertion that “increasingly stringent enforcement” by the U.S. Mine Safety and Health Administration “resulted in lost shifts and significant loss of productivity.” Some analysts asked Blankenship if his company was being targeted for special attention by MSHA and, if so, what Massey was doing about it.

Blankenship responded that increase focus on Massey was to be expected following the deaths of 29 miners at the company’s Upper Big Branch Mine in that terrible explosion back on April 5. But Blankenship also had this to say:

We have a totally clear conscience in that we know what we have done relative to safety … We don’t believe we contributed in any way to the accident.

Once they’ve prepared the audio files for on-demand listening, you can hear the whole call with industry analysts for yourself on Massey’s Web site.

Only a few days left until next Tuesday’s election, and there was a flurry of stories today about coal issues.

First, Democratic Rep. Nick J. Rahall continued to allow his re-election battle with Republican Spike Maynard to be about which of them would give the coal industry more of what it wants from Congress. Tim Huber of The Associated Press covered their debate last evening in Beckley:

Before a crowd of about 150 in Beckley, Rahall’s hometown, the Democratic incumbent blasted Maynard over ads being run by his supporters that attack his Lebanese ancestry. And he attacked Maynard for his ties to Don Blankenship, who is the chief executive of troubled coalmine operator Massey Energy Co.

Rahall called the ads disingenuous, dishonest and “outright” despicable. A non-party group, the West Virginia Conservative Foundation, has so far pumped $567,645 into anti-Rahall ads this fall.

Maynard fired back, angrily labeling Rahall a steadfast supporter of President Obama and House Speaker Nancy Pelosi. Obama failed to carry West Virginia in 2008 and is disliked by many for policies aimed at curbing surface coal mining in Appalachia.

You’re friends at the EPA just shut down, vetoed another permit,” Maynard told Rahall, referring to the U.S. Environmental Protection Agency. “Go talk to those 300 coal miners, ask ’em if that’s gloom and doom.”

Maynard said Rahall has voted with Pelosi 98 percent of the time in Congress.

“The generals in the war on coal today are Barack Obama and Nancy Pelosi and the folks at the EPA,” Maynard said. “The want to abolish surface mining.”

Of course, Tim didn’t explain what mine permit Maynard might have been talking about … if it was the Spruce Mine, it might have been nice to clarify that it hasn’t been vetoed yet, that the limited operations there haven’t yet been shut down, or that there are no 300 coal miners who have been put out of work there at this point.

In a separate story, the AP profiled Maynard’s campaign, and described EPA’s actions on strip mining this way:

Under President Obama, the agency has adopted policies designed to curb surface mining in the region. The changes have slowed the flow of water-quality permits for surface mines to a trickle.

OK … am I the only one who wonders if AP asked Maynard to respond to the growing body of science that shows that mountaintop removal’s impacts on Appalachian communities and the environment is  “pervasive and irreversible”  or about the projections that show a major decline in Central Appalachian coal production regardless of any restrictions on mountaintop removal or greenhouse gas emissions? How about asking Spike exactly what problem he has with EPA permits that have reduced environmental impacts, while allowing coal mining to continue?

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MSHA hits Alpha with ‘imminent danger’ order

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Federal inspectors have issued an “imminent danger” order to Alpha Natural Resources according to this Securities and Exchange Commission filing by the company:

On October 19, 2010, Brooks Run Mining Company, LLC (“Brooks Run”), a subsidiary of Alpha Natural Resources, Inc., received an imminent danger order under section 107(a) of the Mine Act alleging that mining had advanced into unmapped old works at the Horse Creek No. 1 Mine. The abandoned mine was inadvertently encountered due to its location being inaccurately shown on available maps of the old works, which were mined and mapped by a non-affiliated third party. No injuries occurred and no harmful or hazardous conditions were encountered as a result of the event described in the order. In response to the order, mine personnel completed the work the inspector requested and the order has been terminated.

MSHA inspectors issued the order just a week after coal miner William Dooley was killed at Alpha’s Kingston No. 1 Mine in Fayette County, W.Va.

While the company’s SEC filing said “no harmful or hazardous conditions were encountered as a result of the event described in the order,” remember that the statute only allows MSHA to issue this type of order for “the existence of any condition or practice in a coal or other mine which could reasonably be expected to cause death or serious physical harm before such condition or practice can be abated.”

Now that federal law requires mine operators or their parent companies to disclose these safety orders to the SEC and shareholders, it might be helpful if MSHA made it a regular practice of posting a copy of each “imminent danger” order on its Web site immediately after it is issued, so the public can see exactly what conditions prompted the orders …

Well, folks, only a week to go now before Election Day … and I thought I would point out that our races here in West Virginia are not the only place where coal and the climate bill are playing a role.

As a Wall Street Journal online story pointed out yesterday, Rep. Rick Boucher, D-Va., is under fire for voting in favor of the Waxman-Markey climate bill that passed the House last year:

Rep. Rick Boucher (D., Va.) took a risky bet when he voted last year for a cap-and-trade bill to reduce greenhouse gases. Now, the decision is coming back to haunt him.

Hoping to unseat Mr. Boucher in Virginia’s 9th District, Republican candidate Morgan Griffith is hammering away at the congressman’s vote on the cap-and-trade bill.

Mr. Griffith characterizes Mr. Boucher’s vote as a betrayal of the coal industry and the mining companies that provide much-needed jobs in the district. Unemployment in 9th District counties has reached 9.1%, which is higher than the state average of 7%, according to the Virginia Employment Commission.

Keep in mine that American Electric Power supported the Waxman-Markey bill, and the United Mine Workers union said the legislation ensured the future of the coal industry. And Boucher himself offered a detailed discussion of what was in the bill that was good for coal:

This is a responsible measure. It is carefully balanced; it reduces greenhouse gases by 83 percent by the year 2050 as compared to 2005 levels; it keeps electricity rates affordable; it enables coal usage to grow as the demand for electricity increases nationwide; and it opens the door to a more secure energy future and the creation of millions of new jobs, innovating, deploying and exporting to the world the new, low-carbon-dioxide-emitting technologies that will power our energy future.

This is the part of that story that really jumped out at me:

“The cap-and-trade bill has been enormously unpopular in places like the 9th district because it appears—like it or not—to be anti-coal,” said Larry Sabato, director of the University of Virginia Center for Politics.

So … like it or not, politics — and in large part, political journalism — is not about facts or truth, but about how things appear. It’s all about the race-horse coverage, and about which “message” is winning voters, not whether that message has any basis in fact.

I guess this is no big news, but there it is, anyway.

Massey rewrites Blankenship severance package

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With rumor reports flying left and right about possible sales of the company (see here, here and here), Massey Energy on Friday disclosed that it had re-written its severance agreement with CEO Don Blankenship.

Massey filed this disclosure with the U.S. Securities and Exchange Commission saying:

On August 17, 2010, and as recommended by the Compensation Committee, the Board of Directors approved the elimination of the gross-ups of excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties pertaining to such tax, for any payments made under the Change in Control Severance Agreements with Don L. Blankenship and certain other executive officers of the Company, the Employment and Change in Control Agreement with Baxter F. Phillips, Jr., the Retention and Employment Agreement with John Christopher Adkins and the Employment Agreement with Michael K. Snelling (collectively, the “Agreements”) to be effective upon execution by such individuals and the Company of the amended and restated Agreements. In addition, as recommended by the Compensation Committee, the Board of Directors approved the amendment of the Agreements to clarify that the Company is not liable to an executive in the event any compensation or benefits provided to, or for the benefit of, the executive are subject to any additional income tax, interest or penalties imposed under Section 409A of the Code.

As I understand it, this basically means that Massey will no longer pay any federal taxes due on any severance compensation paid to Blankenship and other executives should they leave the company because of a change in ownership control.

It comes as little surprise that the West Virginia Coal Association endorsed Republican Spike Maynard’s bid for Congress, or as the AP’s Larry Messina documented, that contributors with ties to Massey Energy provided half of the campaign cash Maynard raised so far this month.

But as time passes, events overtake us, and sometimes we have little space in our brains or our news coverage for the details of things. Take exactly what happened with Maynard and the big case Massey Energy had on appeal to the Supreme court. The AP story describes the situation this way:

Massey Chief Executive Don Blankenship has been a major supporter of Maynard’s campaign. Their longtime friendship became an issue during Maynard’s unsuccessful re-election campaign for state Supreme Court in 2008. Photos surfaced showing the two sharing drinks and socializing in Monaco, at a time when Massey had appeals before Maynard’s court.

Heck, the Daily Mail managed to endorse Maynard without even mentioning the whole thing, let alone trying to explain it away.

But it’s worth taking a look at the timeline and remembering how the events transpired…

— Back on Aug. 1, 2002, a Boone County jury returned a more than $50 million verdict against Massey Energy, finding that the company had forced Harman Mining out of business and into bankruptcy by illegally taking away its major long-term coal contract.

— On Oct. 24, 2006, after a long delay in obtaining a trial transcript Massey appealed to the state Supreme Court. The case was argued on Oct. 10, 2007, and an opinion issued on Nov. 21, 2007 — finding in favor of Massey and overturning the jury verdict.

— On Jan. 7, 2008, Harman Mining owner Hugh Caperton’s lawyer, Bruce Stanley, filed this Motion for Disqualification aimed at then-Justice Maynard. The motion asked Maynard to either disclose the nature of any  meetings or discussions with Don Blankenship or to disqualify himself from participating in a motion for rehearing. The m0tion explained:

… Caperton has been advised that Justice Maynard was observed dining with Massey Energy Company and A.T. Massey Chief Executive Don L. Blankenship on or about Nov. 8, 2007, in Logan, West Virginia, less than three weeks before this Court issued its majority opinion, in which Justice Maynard joined, overturning the judgment against A.T. Massey Company Inc. and the other Appellants.

While Caperton has been unable to independently verify such a dinner meeting, surely Justice Maynard can do so, and it is incumbent upon him, in order for the public to maintain its confidence in the appearance of the impartiality of this state’s highest legal tribunal, of which Justice Maynard will be serving as Chief Justice, to offer the full and complete details of the nature of his personal relationship with Mr. Blankenship, as well as the nature of the discussions had by them at his or any other meeting during the pendency of this matter before the Court.

— Then, nothing happened … until a week later, when Hugh Caperton’s lawyer filed this Amended Motion for Disqualification directed at Maynard. This time, the motion said:

… Mr. Caperton has become aware of the existence of thirty-four (34) photographs which depict chief Justice Maynard and Mr. Blankenship vacationing together in the Kingdom of Monaco during the time period of July 3-5, 2006. Copies of twenty-four (24) of these photographs are attached hereto as Exhibit “A.”

Ten (10) of the photographs also depict, in addition to Chief Justice Maynard and/or Mr. Blankenship, two females apparently traveling with them as companions.

By the time of this trip to the Kingdom of Monaco, this Honorable Court had already given considerable attention to this case, having ruled upon numerous petitions and motions, and was in the process of finalizing the record for purposes of entertaining Massey’s Petition for Appeal … However, at no time during the pendency of any of these lengthy proceedings has Chief Justice Maynard ever made a voluntary disclosure to Mr. Caperton regarding the depth, extent or nature of his personal relationship with Mr. Blankenship.

It wasn’t until four days after this Amendment Motion was filed that Maynard issued this three-paragraph memo announcing that he would recuse himself from any further participation in the case, saying:

The issue, because of the controversy surrounding this case, is no longer an issue of whether I can be fair and impartial. Rather, it is now has become an issue of public perception and public confidence in the courts. Above all else, I am very concerned about how the public views this court.

Without question, the Judicial Branch of state government should always be held in the highest public confidence and trust. The mere appearance of impropriety, regardless of whether it is supported by fact, can compromise the public confidence in the courts. For that reason — and that reason alone — I will recuse myself from this case.

Anti-mountaintop removal protesters wave as they begin to plant trees at a Kayford Mountain strip mine. Gazette photo by Chip Ellis

The Gazette’s Zac Taylor has the story today about Sunday’s big mountaintop removal protest action, in which activists planted trees on a mine site near Kayford Mountain out in eastern Kanawha County.

Climate Ground Zero reports that there were no arrests, and they explain the reasons for choosing tree-planting as a peaceful protest action:

The standard reclamation practiced by mining companies is inadequate, which involves regrading high walls into gentle, highly-compacted slopes and seeding the rocky soil with grass. Some plant trees but rarely return to tend them–most trees don’t survive long. The extremely diverse mixed mesophytic forests of Central Appalachia, which rely upon folded land that creates lots of micro-climates, cannot regrow on reclaimed surface mines. Native plants like ginseng require the steep north-facing slopes of Appalachia that retain moisture, and will never grow on the gentle slopes of a reclaimed strip mine.

Friday roundup, Oct. 22, 2010

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In this photo distributed by China’s Xinhua news agency, rescuers rescuers are ready to go underground after an explosion at the state-run Pingyu Coal & Electric Co. Ltd mine in Yuzhou city, central China’s Henan province, on Saturday Oct. 16, 2010. Rescuers battled dangerous levels of gas, tons of coal dust and the risk of falling rocks as they worked to free miners after the explosion at the mine in central China early Saturday. (AP Photo/Xinhua, Zhu Xiang)

The death toll rose to 37 in the latest coal-mining disaster in China, when bodies of the last five workers unaccounted for were recovered.  The U.K. Telegraph had an interesting piece comparing the disaster to the rescue of those Chilean miners.

A young relative of a miner who was killed by an explosion grieves on a van near the state-run Pingyu Coal & Electric Co. Ltd mine in Yuzhou city, central China’s Henan province on Sunday, Oct. 17, 2010. (AP Photo/Ken Teh)

In other international news, the U.K. Telegraph also reported about Chinese executives opened fire on workers protesting against poor pay and conditions at the Collum coal mine in the southern Sinazongwe province of Zambia.

And Jeff Biggers writes for The Huffington Post:

As the world continues to hail the wonderful rescue of the Chilean copper and gold miners, 37 coal miners died from a gas leak in China this week, bringing that nation’s death toll on track for a record year.

Peabody Energy, the world’s largest coal provider, just announced its quarterly profits have doubled due to international operations. Despite major concerns over water supplies, desertification, and workplace safety, Peabody recently announced its intention to open some of the largest mines in Mongolia.

Interestingly, Peabody CEO Gregory H. Boyce recently called for global energy access by 2050 as a “human right,” saying:

Energy is as essential as food, shelter and clothing. It helps people live longer and better. And it is a human right, just as increasing electricity intensity is a global reality.

Also this week, my buddy Michael Hawthorne at The Chicago Tribune reported about a study that found:

Pollution from Chicago’s two coal-fired power plants costs neighboring communities $127 million a year in hidden health damages …

… Environmental groups and Chicago aldermen have been fighting for years to force the aging Fisk plant in Pilsen and the Crawford plant in Little Village to either clean up or shut down. The former ComEd plants, now owned by Midwest Generation, also are tangled in anti-pollution lawsuits filed by the U.S. Environmental Protection Agency and Illinois Attorney General Lisa Madigan.

While pollution problems at the two plants have been well-documented — both are major sources of lung-damaging soot and other noxious chemicals — this is the first time anyone has tried to calculate the economic costs of the steady stream of coal smoke that churns out of the smokestacks.

Chicago Public Radio also had a story about this, and you can read the full report by the Environmental Law and Policy Center here.

In other coal news and commentary:

— The Beckley Register-Herald reports on the news that a long-ago shuttered coal mine in Raleigh County is reopening:

A Raleigh County coal mine idled more than 20 years ago is reopening, projecting millions of dollars of investment and hundreds of new jobs. Production is expected by July 1.

A groundbreaking ceremony for United Coal’s newly formed Affinity Coal Co., just outside Sophia, was held Thursday. Politicians and business leaders gathered to discuss the re-opening of the mine, closed for over two decades, and the importance of coal in West Virginia’s energy portfolio.

United Coal is a division of Metinvest, and according to its website, the sixth-ranked U.S metallurgical coal producer.

With 40 million clean tons of coal reserves, Dale Birchfield of Affinity said the mine would produce coal for about 25 years. The average coal mine, he said, is typically mineable for about nine to 10 years.

“It’s a large body of reserves to be mined from one portal,” Birchfield said. “It will be a lot of work for a lot of years.”

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Lawyers for Arch Coal just filed their response to the latest U.S. Environmental Protection Agency request for more time to process a potential veto of the Spruce Mine.

I’ve posted a copy of their filing here. The bottom line, according to Arch Coal subsidiary Mingo Logan Coal:

There is simply no justifiable reason to deny Mingo Logan its day in court on the issues raised in this case.

Remember: Environmentalists challenged the issuance of this permit by the Army Corps of Engineers. The litigation was on hold while a related case made its way through the 4th U.S. Circuit Court of Appeals. Since then, it’s been on hold in front of U.S. District Judge Robert C. Chambers while EPA considers whether it will veto the Corps permit approval.

Lawyers for the U.S. Environmental Protection Agency have filed a fascinating legal brief responding to the National Mining Association’s request for a preliminary injunction in the industry’s lawsuit challenging EPA’s crackdown on mountaintop removal coal mining.

I’ve posted a copy of the brief, filed on Wednesday, here.

Among other things, EPA makes the expected legal arguments that its tougher permit reviews and new water quality guidance are not formal rules or regulations, and therefore did not have to go through the public comment that NMA alleges the agency illegally ignored.

EPA also made clear something that is seldom mentioned by political leaders and industry officials in charging the Obama administration is engaged in a “war on coal” — that is, these enhanced permit reviews EPA is conducting of Army Corps of Engineers Clean Water Act permits are not being performed on every mining permit that is sought. In fact, the process only applies to the “backlog” of permits that had built up while the industry appealed an adverse federal court ruling.

As EPA’s lawyers explained:

The EC Memo does not address the substantive criteria for review of CW A Section 404 permit applications. It merely establishes procedures designed to allow the agencies to work efficiently through the backlog of pending permit applications.

But for folks following these lawsuits and the broader issue they’re part of, the most interesting part of the EPA legal memo is where the agency addresses the mining association’s claims that its members are “irreparably harmed” by the EPA actions — a showing necessary for obtaining a preliminary court injunction.

Keep in mind, as EPA lawyers explain, that a preliminary injunction is considered a drastic remedy … parties seeking such court orders must make a “clear showing” that such relief is necessary. The burden of proof here is “considerable” and the harm must be “certain, great and actual — not theoretical — and imminent, creating a clear and present need for extraordinary relief from the courts.

So what does the National Mining Association offer as its proof?

Well, the group’s lawyers argue that its “small business members are likely to be driven out of business by the delays in permitting that are resulting from” the EPA water quality guidance. But as EPA’s lawyers point out, the NMA “relies exclusively on the situation of one company — and Alabama coal company known as Best Coal Inc.”  Randy Johnson, the President of Best Coal, states in a declaration filed by the NMA that his company will be out of business within 18 months if pending Clean Water Act permit applications are not granted.

EPA lawyers responded:

As an initial matter, even assuming everything NMA asserts is correct, the possibility that one small company may be forced to go 0ut of business in March of 2012 is flatly insufficient to warrant an injunction against EPA’s use of a guidance document in connection with review of hundreds of draft permits and permit applications associated with surface coal mining across the Appalachian states.

Indeed, the fact that NMA is unable to identify a single member company facing a present or imminent threat of shutdown is sufficient to demonstrate that preliminary injunctive relief  is unwarranted.

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The Pine Creek No. 1 Surface Mine in Logan County would cover 760 acres, or about 1.2 square miles — the equivalent of 575 football fields.

Coal industry readers of this blog might find it hard to believe, but folks in the environmental community aren’t always especially happy with what I write.

For example, I’ve heard from more than one person about this week’s two posts, “Wondering about the Spruce Mine” and “What about the alternatives?

The general beef is that environmentalists aren’t especially happy with the U.S. Environmental Protection Agency’s approval of several key mountaintop removal permits, including Hobet 45 and the Pine Creek No.1 Surface Mine, and don’t want EPA to also cut a deal that would get the Spruce Mine OK’d.

In fact, there’s no question that most — heck, probably all — environmental groups want to see mountaintop removal abolished or banned. Activists want to see legislation passed to do this, or they want EPA to reinstate the old “fill rule” language that would block most valley fills.

And while coalfield political leaders and industry folks insist that the Obama administration is undertaking a “war on coal,” the environmental community is just as convinced that the current leadership in Washington is not doing nearly enough about the vast damage being done by mountaintop removal.

Case in point: EPA’s decision earlier this year to allow Arch Coal’s Coal-Mac subsidiary to move forward with a permit for its Pine Creek No. 1 Surface Mine near Ragland in Logan County.

This is what the Sierra Club had to say about the EPA decision:

We had high hopes that the EPA’s more stringent guidance for mountaintop removal coal mining would mean protection for our communities, but apparently we were mistaken. It’s time to turn words into action and end this destructive practice.

And here’s how the Rainforest Action Network responded:

Pine Creek is the litmus test for the EPA’s new approach to mountaintop removal mining permits in Appalachia – and we can see that they are happy to see this devastating practice continue.

The massive Pine Creek Surface Mine and the neighboring communities and watershed suffer from the cumulative impacts of being surrounded by other mountaintop removal coal mines. This permit would allow Arch Coal Inc.’s Coal-Mac to dump toxic mining waste into three entire valleys.

Interestingly, the Rainforest Action Network hired the fine folks from Downstream Strategies in Morgantown to take a closer look at the Pine Creek permit and write a report about its potential impacts and whether it fits in with EPA’s stated guidelines for when such projects meet the Clean Water Act. The report by Rory McIlmoil and Anne Hereford is posted here, and I thought we would take a closer look at what it found.

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MSHA’s Joe Main: ‘We have made great strides’

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Here’s a message MSHA chief Joe Main sent today to agency employees:

A year ago today I was officially appointed by President Obama to serve as the Assistant Secretary of Labor for mine safety and health. I wanted to take this time to reflect on this past year and to thank you for the hard work and dedication that you have contributed.

Our jobs are more than enforcement of the Federal Mine Safety and Health Act. They are a deep commitment to improving the health, safety and very lives of those who work in the nation’s mines. The very first statements that Congress placed in the Mine Act capture the intent of Congress and our obligation: “Congress declares that . . . the first priority and concern of all in the coal or other mining industry must be the health and safety of its most precious resource–the miner . . . .” and “. . . deaths and serious injuries from unsafe and unhealthful conditions and practices in coal or other mines cause grief and suffering to the miners and to their families.” Congress chose those words deliberately, thinking of those who pay the price for our advancement and prosperity as a country. This is the spirit of the agency that we are all a part of. Our success is measured each and every day by those who return from their day’s work in the mines — each shift — free of injury or illness.

Secretary of Labor Hilda L. Solis has articulated a forward-looking vision of assuring “good jobs” for every worker. That includes safe and healthy workplaces, particularly in high-risk industries like mining — and a voice for workers in the workplace. We at MSHA are guided by those principles in what we do. In this past year, we have made some great strides toward making the Secretary’s vision a reality – and your hard work and dedication is responsible for those great strides.

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Gazette photo by Lawrence Pierce/John Sawyer, chief technical officer at Liberty Hydrologic Systems, has installed selenium-treatment tanks like this one at sites in three states in the U.S.

In an earnings statement issued today, Patriot Coal told investors about its recent legal settlement regarding treatment of toxic selenium pollution from its strip mines:

During the 2010 third quarter, the Federal District Court in Huntington, West Virginia ruled on selenium lawsuits brought by various environmental constituencies against the Company’s Apogee and Hobet subsidiaries. Pursuant to the court order, Apogee was ordered, among other things, to install a biological-based fluidized bed reactor system to treat selenium discharges at certain affected outfalls. Additionally, Hobet was ordered to submit and implement a treatment plan to come into compliance with applicable selenium discharge limits under its Hobet 22 permit. As a result of this order, the Company recognized a charge of $20.7 million, which is expected to be spent over the estimated operating life of the treatment system. The charge was included in reclamation and remediation obligation expense in the 2010 third quarter. Additionally, the Company estimates the capital investment required as part of the order will be approximately $50.0 million.

In a conference call with industry analysts, Patriot CEO Richard M. Whiting had this to say about the legal settlement and the selenium issue:

It appears to us that it is an industry-wide issue and it will require an industry-wide comprehensive solution. There is definitely going to be impact to other people who mine coal.

There is no silver bullet to fix this quickly. It will take time and it will take money. There’s going to be a lot of activity around it for many years to come.

It seemed like the Patriot comments were especially timely, given a story in today’s Gazette in which Keith Pauley, CEO of the Mid-Atlantic Technology, Research & Innovation Center (MATRIC), announced:

… A MATRIC spin-off company, Liberty Hydro, has received a $500,000 investment from a Philadelphia-based private equity firm. Liberty Hydro has developed a system designed to remove selenium from water.

You have to wonder if these investors were aware of what U.S. District Judge Robert C. Chambers had to say in a recent ruling about zero-valent iron, or ZVI, selenium treatment technology that both Liberty Hydro and another firm have touted.

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